Duong and Australian Postal Corporation
[2007] AATA 1542
•12 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1542
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1124
GENERAL ADMINISTRATIVE DIVISION ) N2006/1423 Re CUC KIM DUONG Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell Date12 July 2007
PlaceSydney
Decision Proceedings N2005/1124
1. Mrs Duong has not succeeded in her claims for permanent impairment in proceedings N2005/1124, however the decision that liability had ceased was wrong at law. We therefore vary the reviewable decision finding that Australian Postal Corporation (“APC”) is not liable to pay compensation to Mrs Duong in respect of permanent impairment to her right upper limb and cervical/lumbar spine pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act (“SRC Act”) as a result of injuries that occurred on 28 April 1995 and 24 December 1997.
Proceedings N2006/1423
2. In proceedings N2006/1423, we set aside the reviewable decision and substitute therefore the following decision:
(a) APC is liable pursuant to s 14 of the SRC Act to pay compensation to Mrs Duong for an injury suffered to her neck on 6 March 1994.
(b) APC is not liable pursuant to s 14 of the SRC Act to pay compensation to Mrs Duong in respect of injuries to the right upper limb, cervical and lumbar spine, arising from the nature and conditions of her employment.
(c) APC is not liable to pay compensation to Mrs Duong for permanent impairment pursuant to ss 24 and 27 of the SRC Act in respect of injuries to her neck and right shoulder suffered on 6 March 1994, to her right upper limb on 28 April 1995, or to her lower back suffered on 24 December 1997.
(d) APC is not liable for incapacity and medical expenses pursuant to ss 19 and 16 of the SRC Act in relation to the injury Mrs Duong suffered to her lower back on 24 December 1997.
COSTS
3. The parties are to advise the Tribunal of an agreed order for costs within 7 days of the publication of this decision, or the matter will be re-listed for argument thereafter.
.......................[sgd].......................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
WORKER’S COMPENSATION – various claims for compensation, permanent impairment and medical expenses – one matter is a federal court remittal – whether work related injury resulting in incapacity or impairment – whether injuries arose from nature and conditions of work – whether Comcare liable for medical expenses – applicant partially successful – permanent impairment claims not successful.
LEGISLATION
Safety, Rehabilitation & Compensation Act 1988: sections 14, 16, 19, 24 and 27.
REASONS FOR DECISION
Senior Member Mrs Josephine Kelly Introduction
1. Mrs Cuc Kim Duong was employed by the APC as a mail officer from 1985 until she was medically retired on 24 August 2000 by APC on the basis that she was unable or incapable of discharging her duties. She had been directed on sick leave on 25 February 1999 and therefore did not attend work from that date.
2. Mrs Duong claimed that she suffered three injuries during her employment. As she described them at the hearing they were:
a.an injury to her neck on 6 March 1994 when she lifted a mail bag to tip the mail onto a conveyor belt (“the neck injury”).
b.an injury to her right arm on 28 April 1995 caused by a forklift that accidentally hit a bag rack near which she was standing, which in turn struck her right arm/elbow (“the right arm injury”).
c.an injury to her lower back on Christmas Eve, 1997, when she lifted down a full mail tray from above her head using both hands and turned around to put the tray down (“the lower back injury”).
3. Mrs Duong claimed compensation pursuant to the SRC Act for the right arm and lower back injuries around the times they occurred. The first time she claimed compensation for the neck injury was in December 2000, after she had been retired (T34, 2000). It was claimed again in 2006. A weight limit for Mrs Duong of 10 kgs rather than the usual 16 kgs for a mail officer was recommended by Dr Chen, Consultant in Occupational Medicine, in a report date 24 June 1994. The reason Dr Chen gave for the recommendation was Mrs Duong’s small build and below average height. The 10 kg weight limit remained until she left APC.
What are these proceedings about?
Remittal from the Federal Court
4. The first matter that is before us is the reviewable decision made by APC on 8 November 2001 which was remitted to this Tribunal by Justice Edmonds [1] for review according to law (proceedings N2005/1124). His Honour stated that the claim the subject of the decision “had been rearticulated as a claim for ‘payment of compensation for permanent impairment in respect of right upper limb, cervical/lumbar spine’”. His Honour referred to the injuries in 1994, 1995 and 1997 and said it was unclear whether the 1994 injury (the neck injury) was maintained, but also stated that it was difficult to understand the relevance of submissions to the Tribunal and before him by both sides which referred to the “neck injury”. The parties accepted, as we understand it, his Honour’s characterisation of the claim the subject of the proceedings being for permanent impairment as a consequence of the right arm and lower back injuries, and we proceed on that basis.
[1] Cuc Kim Duong and Australian Postal Corporation [2005] FCA 991, Edmonds J, 20 July 2005
4. APC’S decision dated 27 July 1995 accepted liability for the right arm injury. In particular, liability was accepted for the right arm and shoulder. In a letter dated 10 August 1995, the decision-maker concluded that “the recommendations of Dr Chen still apply to your management of this case and there is good reason to decline to accept the suggestion of Dr Hoolahan”. Dr Hoolahan had recommended a weight restriction for lifting of 6 kg for 12 weeks (but allowed her to work a full day) [T26].
5. On 16 March 1998 APC decided that compensation was payable to Mrs Duong in respect of a soft tissue injury to the lower back injury. The decision-maker continued: “I will arrange for a determination to be issued awarding compensation for your absence from work up to 5/1/98. We have on file a number of medical accounts which will be processed in the next few days. If you have any other accounts/receipts relating to medical treatment, please forward them for processing”. Liability was said to cease from the date of the decision.
The 2006 claim
6. The second matter before us is a claim made on 11 May 2006 (proceedings N2006/1423). Mrs Duong claimed compensation for neck, back and right shoulder. The reviewable decision was made on 30 August 2006. There was a dispute before us as to what was encompassed by the claim. The parts of the body referred to were right upper limb, cervical and lumbar spine. The responses to the questions about date of injury and when medical treatment was sought were “Please refer to Dr Lawson’s report”. Dr Lawson saw Mrs Duong on 13 March 2006.
7. Mr Jackson, counsel for Mrs Duong, argued that the claim was for:
(a)section 14 liability in respect of the neck injury;
(b)a nature and conditions claim in relation to the right upper limb, cervical and lumbar spine;
(c)permanent impairment claims for the right upper limb, cervical and lumbar spine encompassing the three frank injuries and the nature and conditions claim;
(d)section 19 (incapacity) and section 16 (medical expenses) in relation to injury to lower back injury.
8. The initial argument put by Mr Pollin, counsel for APC, was that the only matter before us was the permanent impairment claim in respect of the right arm and lower back injuries remitted by Edmonds J. He argued that the 2006 application was an abuse of process because his Honour had not permitted an extension of time to appeal against the 1995 and 1998 reviewable decisions. He also argued that although Dr Lawson’s report was relied upon by Mrs Duong to support the new nature and conditions claim, the report did not mention nature and conditions of work. We also understood him to argue that because the decision-maker dealt with the claim on the basis that it was a nature and conditions claim, that was the only basis upon which we could deal with it. In particular, Mr Pollin argued that we could not deal with the neck injury in 1994 because, as we understood his argument, liability had not been accepted, “it was not an open claim”.
9. We stated our view that we are not bound by a decision-maker’s interpretation of a claim and we understood Mr Pollin to accept that proposition. We did not understand Mr Pollin to argue that his client would suffer prejudice if we dealt with the claims.
10. We proceeded to hear the evidence and by the end of the case we expressed the view that we would deal with all matters before us. We did not understand Mr Pollin to maintain his opposition. In any event we consider that as an administrative body, we can deal with a new claim.
What are the issues in these proceedings?
11.In summary, the matters before us are:
(a) a section 14 liability claim for the neck injury;
(b) a section 14 claim in respect of the right upper limb, cervical and lumbar spine arising from the nature of conditions of employment;
(c) claims for permanent impairment of the right upper limb and cervical and lumbar spine arising from the frank injuries and the nature and conditions of employment;
(d)a claim for incapacity (s 19) and medical expenses (s 16) in relation to the lower back injury.
Mrs Duong’s duties
12. From the evidence given by Mrs Duong and a Workplace Assessment done in 1988, which she agreed described her duties, her duties can be summarised as follows.
Letter sorting –Two separate tasks were to sort standard and large letters into sorting frames with appropriately sized apertures which began at waist height. She had to reach up to some of the apertures.
Letter Preparation Line – This was a machine that faces up small letters and cancels stamps. Five people rotate through different tasks. One loads the machine which involves lifting a mail bag (16 kg maximum) from a container located next to the machine. The string around the mail bag is cut and the contents upended onto an inclined conveyor belt. A second person is responsible for culling inappropriate mail from the conveyor. That person reaches across the conveyor, to remove the letter and place it in a wheeler bin. A third person clears the output stackers. Bundles of letters are removed from a stacker at a height of 1060 mm, placed in a small letter tray and then onto a trolley. The other two people empty the reject stacker and the baskets underneath the machine and stop the machine to clear jams.
Opening and culling – This involved two people. One person opened a mail bag (16 kg max) which they removed from a unitary load device (“ULD”) container. The person cut the string and put the contents onto an inclined conveyor belt. A second person would stand beside the conveyor and cull inappropriate mail into a wheeler bin.
Hand Cancelling Mail - Mail that was unsuitable for the automated process, was cancelled by hand using a hand roller.
Parcel sorting – Parcels were removed from ULDs for sorting. Parcels typically weigh up to 10 kg, but can weigh up to 32 kg. APC’s position was that employees were told to get assistance with weights greater than 16 kg. Parcels in the ULDs are from shin to hip height, and the ULDs have removable sides. The employee sorts the parcels by walking past rows of ULDs, and dropping the parcels into the appropriate ones.
Dock mail receipts – The majority of mail is received in ULDs which may contain trays of large and small letters, bags of mail and small parcels. They are removed from a truck using a powered pallet truck and are manoeuvred within a facility using powered lifting/lowering handling equipment, for example a forklift.
Dock mail despatch – mail is despatched from the operations area to the dock in trays on trolleys or in bags in either wheelers or ULDs.
Loose mail despatch - ULDs are placed behind an extendable conveyor which reaches into the vehicle. Mail officers remove the mail from the ULD and load it onto the conveyor which then moves it into the vehicle.
Mrs Duong’s injuries and symptoms at work
13. Following is a summary of Mrs Duong’s evidence. She is right handed. Her evidence of how the frank injuries occurred has been summarised in the opening paragraph of this decision.
14. Following the injury to her neck she said that she stopped work and reported to her supervisor. Dr Chen put her on light duties, with a 10 kg lifting limit. She was to get assistance to lift anything heavier.
15. In relation to her right arm injury, Mrs Duong said that the bag rack hit her elbow, and her arm felt like pins and needles. She said that she had a few days off after that and that her arm got better, that it is sometimes alright but if she does heavy work, her arm is very painful.
16. In relation to the back injury, she said that the letter tray that she was lifting down weighed 8 or 10 kilograms. She described the tray as being four levels high. At the time she felt a sharp stabbing pain in her lower back at about the belt line. She tried to return to her bench and sit down. She could not move. She took a few days off work but was fortunate because she said it was then Christmas Day and she came back after that. It got a little bit better but she still has pain when she bends down or turns or does something.
17. When she was at work she said that she would tell her supervisor that she was going to rest for five minutes. She would massage deep heat cream, which she still uses, and would take Panadol and Voltaren. It was not clear whether this was after the lower back injury or one of the previous injuries.
18. Mrs Duong said that at the end of an ordinary day at work her arm, back and neck were painful. Some days it was not much worse, but other days it was. She said that if she did a heavy job like lifting parcels or small packets her arm hurt. If she did a lot of lifting and sorting, her back became sore.
Mrs Duong’s circumstances since 1999
19. Mrs Duong said that she started a small business late in 1999. It was a two person company which distributes polystyrene foam. She works 20 to 25 hours a week doing office work. She tries to clean her house. Her arm and back get very bad. She always takes Panadol when she gets pain. Her husband massages her back and arm with cream and she has a massage machine. It helps a little.
20. During cross-examination, Mrs Duong said that if she works more than 25 hours, she is in pain and therefore does not want to try more hours.
The neck injury in 1994
21. It was not really suggested on behalf of APC that Mrs Duong had not suffered the injury to her neck in 1994, and from the evidence it is apparent that APC was aware of the injury at the time. We find that she did suffer an injury to her neck and right shoulder on Sunday 6 March 1994 while at work based on her evidence and the contemporaneous reports of Dr Le Vot, Commonwealth Medical Officer (CMO), her treating doctor Dr Scruby, Dr Miskell, CMO, and Dr Chen, Consultant in Occupational Medicine who reported to APC.
22. Mrs Duong’s complaints to Dr Le Vot on 9 March were of pain in her neck which radiated into her right shoulder, heaviness of the right arm, and associated dull headache. She had taken Panadol at first, then Naprosyn and later Voltaren. Dr Le Vot found muscle spasm in the right trapezius muscles and along the cervical paravertebral muscles, and some restriction in movement. She denied any previous problem with her neck when she first saw Dr Le Vot. He imposed a lifting restriction of 10 kg. Various weight restrictions were applied thereafter. In the report of 17 March 1994, Dr Le Vot referred to x-rays done at the request of her treating doctor which showed very early degenerative changes at the C5/C6 level.
23. Dr Chen first saw Mrs Duong on 23 June 1994. She concurred with the then lifting restriction of 5 kgs. In her report dated 13 September 1994 Dr Chen recorded that Mrs Duong had reported continuing but intermittent pain in the right shoulder girdle with heavy manual handling and prolonged letter sorting. Dr Chen found no clinical evidence of specific musculo-skeletal pathology in Mrs Duong’s cervical and thoracic spine or shoulder girdles. Dr Chen wrote: “Residual symptomatology may be related to a combination of psycho-social factors, subconscious holding of the shoulder girdle …”, in a particular position when sorting mail. She did not consider the x-ray changes in the cervical spine were causing the symptoms then present. Dr Chen recommended hands-on physiotherapy treatment be discontinued but that Mrs Duong be discharged with a program of exercises. She also stated that clinical findings do not support any need for ongoing restrictions to the right shoulder girdle, “However, in view of her small build and below average height, I would recommend that her lifting restriction be maintained at a maximum of 10 to 12 kg instead of the usual 16 kg” for mail officer. She certified that Mrs Duong was fit for full time duties and overtime if required.
24. The appropriate finding is that APC is liable pursuant to s 14 of the SRC Act for the neck injury.
1995 onwards
25. Given the number of issues to be considered, the most convenient way of addressing them, is to summarise the evidence from 1995 onwards in chronological order.
The right arm injury
26. In a report dated 16 May 1995, a manager who investigated the right arm injury found that Mrs Duong was hit by a 16kg mail bag rather than the bag rack, and found it difficult to believe that the injury Mrs Duong alleged could have resulted. In a letter dated 25 May 1995 a Medical Services Adviser noted that opinion and referred to Dr Chen’s September 1994 report “to the effect that (Mrs Duong) was exaggerating” her right shoulder disability and suggested that if Dr Chen “again” found Mrs Duong was exaggerating, certain steps be taken to “extinguish such totally unacceptable behaviour”.
27. Dr De Silva, her general practitioner had diagnosed right lateral epicondylitis and muscle strain as a result of the right arm injury. Dr Chen in a report dated 26 May 1995 found no objective evidence of musculo-skeletal abnormality in Mrs Duong’s cervical spine, shoulder girdles or upper limbs and no convincing evidence of epicondylitis and that further absences from work and restrictions were unjustified. In a 1 June 1995 certificate Dr De Silva referred to “painful [right] shoulder and elbow”. Mrs Duong took time off in May and early June.
28. Dr Manohar, Rehabilitation and Musculo-skeletal Medicine specialist, saw Mrs Duong a number of times in June and July 1995. His diagnosis was “musculo-ligamentous strain of the paracervical muscles, trapezius, levator scapulae latissimus dorsi and lateral epicondylitis and tendonitis of the extensor carpi-radialis brevis”. In his last assessment on 14 July 1995 he reported that she had “increasing neck and shoulder girdle pain” and referred to a pain chart showing pain in the posterior cervical region extending to the cervico-thoracic region and to the right shoulder tip with associated paraesthesia in the right hand. Following a conversation with Mrs Duong’s sister in the US, he saw Mrs Duong and told her and her husband that her management was under the care of Dr Hoolahan, “as requested by her sister”.
29. An MRI scan of the cervical spine dated 19 June 1995 revealed C4/5 and C5/6 posterocentral disc protrusions and some intervertebral disc dessication and some ligamentous hypertrophy overlying the apophysial joints consistent with the degenerative changes in the apophyseal joints. Mrs Duong complained of pain in her neck extending to the right shoulder and down the posterior aspect of the right upper arm to the elbow, and extending across the extensor surface of the right forearm which was aggravated by activities involving an abducted position of the shoulder and activities at work, especially if lifting a heavy bag and sorting mail.
30. She saw Dr Lethlean, a neurologist, at the request of her sister who is doctor in the US. He provided a certificate dated 30 June 1995 that stated that Mrs Duong had attended for treatment on account of “cervical disc & joint difficulties”.
31. Dr Carless, from APC’s human services department wrote a letter dated 13 July 1995 to the manager of the mail centre where Mrs Duong worked. He had spoken to Dr De Silva and to Dr Manohar, both of whom said that they had not seen Mrs Duong recently. He said that Dr Manohar agreed that the changes in Mrs Duong’s neck apparent in the MRI were consistent with typical findings in a woman of her age and there was nothing which could be described as a definite cause of her symptoms and said that there were possibly psychosocial factors which he had been unable to identify. Dr Manohar asked whether she was in conflict with management. Dr Carless replied that he believed that she was being fairly treated, and in the letter wrote “I did not think that poor relationships with management was a primary cause of any illness behaviour but it might be a consequence.” He considered that Dr Chen’s assessment was reasonable and that the manager might reasonably conclude that Mrs Duong was exaggerating her disability.
32. Dr Hoolahan, Anaesthetist, Co-ordinator Chronic Pain Services, Concord Hospital was consulted by Mrs Duong. He knew her family. He sent reports to the APC on 30 July 1995 and 2 September 1995. His diagnosis was myofascial pain precipitated by injury and maintained by mild depression and some unsympathetic management and developing some chronic pain – not all the fault of the post office. It seems he was referring to pain in the arm, shoulder and neck. He said that physical signs were few but maintained his diagnosis. He advised Mrs Duong to consult privately Dr Davidson, rehabilitation physician, and to see a psychologist.
33. In a report dated 3 October 1995, Dr Dragutinovich, clinical and consulting Psychologist, found that since the right arm injury “Mrs Duong has progressively decompensated into symptoms of labile depression reactive to inability to escape persistent aversive stimulation”. She was distressed by APC’s medical services advisor’s management of her case. He had arranged for her to have cognitive behavioural treatment for pain-related depression.
34. The evidence reveals that from the date of Dr Chen’s report in May 1995, APC thought Mrs Duong was not doing duties that she was fit to do, whereas Mrs Duong’s position was that she was refusing to do those duties she was certified unfit to do.
The lower back injury
35. Following the back injury on 24 December 1997, Mrs Duong took 3 days off work and returned to work with a 5 kg weight restriction imposed by Dr Scruby. Her claim for the lower back was initially refused. APC had doubts as to the genuineness of her lower back claim [ST33]. Mrs Duong undertook physiotherapy for her lower back in 1998. A CT scan dated 12 January 1998 revealed no disc lesion, facet joints were normal, and no narrowing of the foramina.
36. Dr Gliksman, occupational physician, saw Mrs Duong on 22 January 1998. Mrs Duong mentioned the right arm injury but not the neck injury when giving her medical history. He considered that she was experiencing a slow but steady recovery in a soft tissue injury to the right paralumbar spine. He expected full recovery within 2 – 3 weeks and recommended the continuation of physiotherapy.
37. A work assessment was done on 20 January 1998 which concluded that Mrs Duong was fit to upgrade to usual duties at the end of January per Dr Gliksman’s report.
38. Compensation for the period 25 December 1997 to 5 January 1998 was granted in a reconsideration decision dated 16 March 1998.
39. After that decision was made, the Manager of the mail centre where Mrs Duong worked wrote to the decision maker “for the record”. He stated that Mrs Duong had a history of embellishing conditions to remain on compensation/restricted duties and had tried to avoid duties that she was fit to perform by claiming to supervisors she was restricted from particular duties. “Bearing this in mind, it is imperative that the bona fides of her claim are established. In my opinion this has not been accomplished.”
40. Mrs Duong was seen by Dr Gliksman on 27 October 1998 at the request of APC for a medical review, in particular, for his comment on whether Mrs Duong required the 10 kg restriction due to her stature. Mrs Duong told him that she no longer had any lower back symptoms while at rest or when performing most duties, but when performing highly repetitive lifting she experienced mild lumbosacral pain which did not radiate. She experienced that symptom when maintaining a fixed posture for more than 45 minutes. Her treatment comprised Panadol as required, which was about five or six days a month. As well as a 10 kg weight lifting restriction, she was restricted from opening and tipping bags when she saw Dr Gliksman. Mrs Duong asked him for a restriction to be placed on “split tray work”. It was the repetitive nature of the work that concerned her. The doctor asked to see her work place before commenting on that request.
How Mrs Duong’s employment ended
41. In January 1999 a new policy for the management of staff on restricted duties came into force. Mrs Duong was interviewed on 25 January and told that she would be directed on sick leave from 25 February 1999 unless she provided satisfactory evidence that she would meet the inherent requirements of her position in 3 months. APC advised Mrs Duong in a letter dated 1 February 1999 that she was directed on sick leave under the “Non Work-Related Restricted Duties Policy” on 25 February 1999.
42. In a report dated 17 February 1999 Dr Scruby advised APC that Mrs Duong’s medical condition was a back injury, that she had a restriction as to lifting and proposed a four stage upgrading schedule from 10 kgs on 31 March 1999, with 2 kilogram increases on each of 30 April and 31 May and then no restriction from 1 June 1999.
43. On 16 March 1999, APC advised Mrs Duong that Dr Gliksman’s opinion dated 24 February 1999, was that she required a permanent lifting restriction of 10 kg because of mild osteoarthritic change in the lumbosacral region. Dr Gliksman examined Mrs Duong on the same day he wrote the report. The clinical examination was consistent with Mrs Duong’s statement to the doctor that she had experienced no symptoms during the past two months. She denied symptoms related to the cervical spine, bilateral shoulders, lumbosacral spine, or the upper and lower limbs. The clinical findings were consistent with that. Mrs Duong denied taking any pain relief medication and all physically based treatments had ceased. However, Dr Gliksman said that there were clinical signs consistent with a diagnosis of mild osteoarthritic change in the lumbosacral region.
44. Mrs Duong was cross-examined about seeing Dr Gliksman in February 1999. When asked whether she remembered telling him that she had had no pain for 2 months and no symptoms whatsoever at that time, she said that she could not remember but that she was trying to get back to full-time duties with APC. She denied telling Dr Gliksman that she had no problems in her neck, either shoulder, lower back upper and lower limbs and said that maybe be that day she was feeling better. She also said that she could not remember what she told him. She said that she would never have told him that she had no restrictions with daily living, domestic tasks and that she shopped without difficulty. She said that she is in pain until now.
45. In the 16 March 1999 letter, Mrs Duong was also advised that her entitlement to sick leave was 78 weeks, after which APC “would have no option but to retire” her.
46. Mrs Duong’s then solicitors wrote to APC on 13 April 1999 seeking an extension for a reconsideration of the direction to take sick leave as they had been instructed to obtain further medical evidence.
47. There is in evidence an incident report form dated 1 July 1999 for injuries to neck, back and right arm due to the nature and conditions of work from 1994 to February 1999 and from the frank injuries already discussed.
48. There was correspondence between Mrs Duong’s solicitors and APC, including a letter of 10 August 1999 to APC enclosing a report from Dr Roebuck, medico-legal consultant, orthopaedic surgeon, dated 18 May 1999 prepared at the request of her solicitors. Mrs Duong gave a history of neck pain and back pain arising in 1994 and 1997 respectively “as a result of physical activities with sorting heavy mail”. The doctor found restriction of movement of the neck and back. Neurological examination of her arms and legs was normal with no clinical evidence of nerve root pressure, intra spinal lesion or disc protrusion. Examination of X-rays, CT scan and MRI showed some degenerative change in her neck. X-rays of her back were basically normal. The doctor diagnosed musculo ligamentous injury of Mrs Duong’s back and aggravation of cervical spondylitis in her neck as result of the nature and conditions of her employment. He attributed 5% whole person impairment to each of the neck and back under Table 9.6.
49. This attempt to claim compensation seems to have ended with a letter from APC dated 23 August 1999 which stated that as “there was no compensation lodged” for the neck injury in 1994, liability could not be determined. In relation to the right arm and back injuries the letter stated that “liability no longer exists to continue payment for compensation” for those injuries and therefore consideration of ongoing compensation “is not permitted”. The letter also advised if there had been a new specific incident, a new claim could be made.
50. A Vocational Report dated 12 August 1999 prepared on referral from CRS Australia was prepared by a psychologist who had met with Mrs Duong at the end of June and beginning of July 1999. Mrs Duong complained of variable pain in the lower back but not of any symptoms in her neck, shoulder or right arm. The lower back pain occasionally disturbed her sleep. She had to vary her posture every one to two hours to prevent the pain escalating. She had some difficulty with stairs when her back was more painful. She needed support to complete household duties. She could not vacuum or hang out washing. She was having physiotherapy treatment upon referral from Dr Davidson.
51. On 11 April 2000 Dr Davidson, rehabilitation specialist, reported to Dr Scruby that Mrs Duong was still attending a fitness program swimming and doing some gym work. She was walking most days and had had no symptoms in her neck, shoulder or back for several months. On examination she had normal range of movement of her shoulders, neck and back. He observed that she had probably had a minor decline since completing her supervised exercise program at Port Kembla Hospital “however she is determined to return to work”.
52. An exercise physiologist reported to Dr Davidson on a Functional Fitness Reassessment on 18 April 2000. Mrs Duong had reported that she had no pain in her lower back, neck and right shoulder or elbows. She had been undertaking her exercise regime of walking, resistance exercise for upper and lower body, and swimming.
53. In a report dated 3 May 2000, Dr Davidson stated that Mrs Duong “has no significant medical condition at this time. She in fact is a woman of above average fitness and strength. She has a history of neck and arm pain after a work accident from which she has recovered completely. She has another historical episode of non specific back pain. Again, she has recovered completely.” He considered no medical restrictions necessary, “aside from those appropriate for the industry and her gender.” He considered Mrs Duong able to perform the inherent duties of her position and had been fit for some time. He disagreed with Dr Gliksman’s claim to be able to predict an increased risk of injury because of the “minor wear and tear changes on Mrs Duong’s x-rays, and despite a normal CT scan”.
54. When asked during cross-examination whether she told the truth to Dr Davidson, Mrs Duong said she did.
55. Dr Gliksman prepared a report dated 14 June 2000 when Mrs Duong had attended his rooms. She told him that she experienced no symptoms currently, and that she had not experienced any symptoms anywhere in the body since he had last seen her in February 1999. He recorded that she told him “I feel better since I stay at home”. She was taking no medication for her previous problems and had last received physiotherapy six months before for the purpose of assessment of work capacity and muscle strengthening. She was keen to return to previous unrestricted duties and had no restrictions in the activities of daily living. He noted the difference of opinion between him and Dr Davidson and recommended that Mrs Duong be referred to an independent physician for assessment to resolve that “impasse”.
56. Dr Pierides, specialist in occupational medicine, saw Mrs Duong on 11 July 2000. Taking into account the degeneration in her neck, her stature, the need to lift 16 kg mail bags up to 30 times a day, and her past history of significant injuries on two (sic – the doctor referred to the three injuries in the report) occasions which took a long time to settle down, his opinion was that she was at a much greater risk of injuring herself doing unrestricted duties.
57. In a letter from APC dated 21 July 2000, Mrs Duong was advised that the decision-maker was satisfied that she was unable or incapable of discharging the duties of her position and should be retired, to take effect from close of business on 24 August 2000 and provided a further opportunity for Mrs Duong to provide fresh medical evidence.
58. On 31 July Mrs Duong wrote to the Human Rights and Equal Opportunity Commission (“HREOC”) seeking assistance. She noted that she had not been offered a redundancy package which others in similar situations to her had been offered. She expressed her desire to return to work.
59. Mrs Duong declined to participate in an assessment APC arranged with CRS Australia in July to identify and locate suitable work outside APC. On 21 August 2000 a final letter was sent to Mrs Duong stating that her retirement was effective from close of shift on 24 August 2000.
Post Retirement
60. Mrs Duong wrote a letter to APC on 27 August 2000 in which she referred to the compensation claims for the right arm and lower back injuries and asked that the decision to retire her be reconsidered. On 31 August she lodged a written appeal with the Grievance/Appeals Unit “because my condition is a result of workplace injuries sustained while employed at Australia post. As a result of these work related injuries, I have only been eligible for light duties”. She concluded: “I am very saddened by the treatment I have received from Australia Post despite my long and loyal service to the organisation”. The appeal was dismissed in October 2000.
61. Dr Scruby provided a report dated 30 August 2000 in which he certified that Mrs Duong suffered from injured neck, right shoulder and right arm, as well as a lower back injury and consequently was unable to lift anything heavier then 10 kg. She was fit to return to work on restricted duties.
62. Mrs Duong lodged a compensation claim dated 20 December 2000 for “neck, shoulder, right arm and lower back” injuries, which were in effect the same injuries already referred to at length. It is not clear what happened to this claim, but it may have been the initiating document which gave rise to the decision on 14 September 2001, referred to later.
63. In a letter dated 22 February 2001 Mrs Duong wrote to HREOC setting out what she was seeking from APC: (compensation) for loss of income, a redundancy package and damages for pain and suffering. A conciliation conference was held in March 2001 but the matter did not resolve and was terminated.
64. Dr Giblin provided medico-legal reports to her current solicitors on 25 June and 24 August 2001. In the June report, Dr Giblin reported Mrs Duong’s complaints as follows. In her back she had an ache, with sharp stabbing pains and pins and needles which were aggravated by mechanical activities, associated with minor degree of restriction when walking and inability to stand or sit for more than an hour. She had difficulty lifting weights greater than 15 kgs, and could no longer lift heavy bags of washing or groceries. Her husband was hanging the clothes on the line and doing the ironing. Her right arm ached with repetitive activity, and cutting and stirring activities in the kitchen aggravated her symptoms. Various activities related to self-care aggravated the discomfort in the right shoulder. Rolling over in her sleep caused pain. She did very little housework or shopping and outside maintenance work. She drove short distances. His diagnosis was “soft tissue injury to the neck with referred symptoms to the right arm, soft tissue injury to the lower back, reasonably causally related to the nature and conditions of her work environment as being the substantial contributing factors”. She was permanently unfit to use her right upper limb in a heavy repetitious or impact fashion, and permanently unfit for heavy repetitive bending, lifting or twisting work environments.
65. In the August report Dr Giblin said that according to Table 9.4 Mrs Duong had 10% impairment of her right upper limb as a result of her injury, and 5% in relation to her cervical spine and 5% in relation to her lumbar spine, both according to Table 9.6, giving a 19% whole person impairment according to Table 14.4.
66. On 14 September 2001 a decision was made refusing a claim for “permanent impairment in respect of right upper limb, cervical/lumbar spine”.It is the reconsideration of this decision on 8 November 2001 which is the subject of proceedings N2005/1124.
67. Dr McGill, Consultant Rheumatologist, wrote a report on 4 August 2003, having seen Mrs Duong on that day and recorded the following. Mrs Duong used an occasional Panadol. She was working 25 hours per week doing office duties. Following her neck injury, her symptoms improved although when she had to lift or move a lot of mail over a period of time she would feel sore in the neck and right shoulder and proximal arm regions. She received Naprosyn, Voltaren and physiotherapy. She reported an increase in right shoulder region pain following the right arm injury with two or three days off work and then resuming her light duties. In relation to the back injury, she was off work for about two days and subsequently experienced intermittent pain in the low back. Her symptoms during her last 12 months working were fluctuating discomfort in the neck and right shoulder region and to a lesser extent in the low back. Her symptoms were somewhat better after stopping work and her current work did not affect her symptoms. She had seen her general practitioner a few weeks before seeing Dr McGill because of increased soreness and had been advised to use a heat pack. He diagnosed constitutional degenerative change in the cervical and lumbar spine which may have been temporarily aggravated by her work duties. There was no evidence of epicondylitis or musculoligamentous strain from the right arm injury.
68. Dr Gilbin provided another report on 26 August 2004. Mrs Duong reported persisting symptoms in her neck, right shoulder and trapezius area, recurring symptoms in the right arm of pain, pins and needles and an ache, and persisting central non-radiating low back symptoms. She was taking Panadol and Voltaren for the symptoms, which remained largely related to physical activities. His opinion was that she was fit for her current work but unfit to increase her physical activities beyond that. His opinion was essentially unchanged from his previous “report”.
69. Dr Lawson, Consultant Physician, saw Mrs Duong on 13 March 2006 and provided a report. He recorded that Mrs Duong had ongoing neck and shoulder pain of varying severity following the neck injury. The right arm injury aggravated the neck and shoulder pain and caused ongoing pain of her right elbow. She had physiotherapy, returned to light duties and suffered ongoing pain. Following the back injury she did an exercise program and had physiotherapy with some brief improvement. There was some radiation of pain into her right leg. Her current complaints were daily posterior neck pain varying in severity radiating upwards to the back of her scalp and to the top if the right shoulder. There was lower back pain at waist level radiating to the right buttock and right thigh affecting the anterior and lateral surface of her upper leg. The leg pain was intermittent but the lower back pain was a constant problem aggravated by fairly minimal activities including bending, or prolonged sitting in one posture. There was pain at the right shoulder affecting the posterior shoulder surface, involving the right upper arm to the elbow joints. There was pain over lateral surface of the elbow. The arm pain was more severe. She had some sensory changes of her right hand with numbness and pins and needles of global distribution within the hand. She was doing no housework, and self-care activities such as dressing and showering were restricted and sleep disturbed, particularly with pain aggravation of the right shoulder and right arm with is associated with numbness and pins and needle sensory disturbance. She continued to take Panadol and Voltaren for pain.
70. Dr Lawson’s opinion was that Mrs Duong was medically fit to cope with work of a sedentary office category on half-time basis. He assessed her permanent impairment as 30% according to Table 9.4 for right upper limb impairment, 5% for cervical spine according to Table 9.6 and 10% for the lumbar spine according to Table 9.6, with a 40% whole permanent impairment as a result of work injury.
71. Dr Lawson also gave oral evidence. Significantly, he had not addressed the possibility of a “nature and conditions” injury in his report, but in response to a question from counsel for Mrs Duong, he readily determined that Mrs Duong’s injuries were a result of the nature and conditions of her employment.
72. Dr Maxwell, Orthopaedic and Spinal Surgeon, saw Mrs Duong on 25 May 2006 and provided a report of the same date. Mrs Duong was taking Panadol only when the pain was bad, averaging 1-2 a day. She also took 1 Voltaren a week, on average. She did the cooking at home, sometimes her husband helped with the washing up. He and her son helped with the housework. When she does physical activities at home she experiences in the region of her right shoulder. She drives an automatic car fitted with power-steering short distances. She does not garden but goes shopping with her husband. She was working 25 hours a week doing office work. She gave histories of her injuries. She reported using a sling after her right arm injury and that at the time she also felt some pain in her neck. Following the back injury although it improved after a few weeks, it continued to ache particularly after prolonged standing. Since leaving APC she said her symptoms had fluctuated. Her current work did not affect her symptoms, but repetitive activities caused pain in her right arm and shoulder. Her current symptoms were pain in the back of her neck and in the region of the right scapula, mostly in the area of the right trapezius muscle, pain sometimes radiating into her right arm, and sometimes pins and needles in her right hand. She had a mild lumbar ache at the L5 S1 level. Her back pain was better when she walks but was aggravated by walking up hills. She had less pain descending stairs than ascending. She sometimes woke up at midnight with back ache but denied experiencing pins and needles or paraesthesia in her legs.
73. Dr Maxwell was not convinced that Mrs Duong had sustained any specific pathological injuries to her cervical or lumbar spine at the time of the injuries. He considered that Mrs Duong demonstrated lack of voluntary effort during testing of some movements during examination. He considered that she may have aggravated some underlying degenerative condition in her neck at the time of the neck injury which would normally have resolved in a matter of weeks. He would have expected the soft tissue injuries consisting of bruising and soft tissue contusion during her right arm injury to have resolved over 4 weeks. He considered that she had suffered a mild lumbar strain at the time of the back injury which would have settled in 3 to 4 weeks. He did not consider that she continued to suffer the effects of the injuries. In particular, he considered it probable that she would have developed her current symptoms, particularly the discomfort in her neck radiating into her shoulder, as a natural progression of the pre-existing degenerative changes. He assessed impairments, which were not attributable to the injuries:
Right shoulder: 0% (Table 9.1), 0% (Table 9.4)
Cervical spine: 5% (Table 9.6)
Lumbar spine: 5% (Table 9.6)
74. Dr McGill re-examined Mrs Duong on 11 December 2006 and provided a report of that date. At that time, Mrs Duong was taking an hypertensive medication, occasionally, Panadol, and rarely Voltaren. She was continuing her office work, between 15 and 20 hours a week. Mrs Duong reported that she was continuing to experience similar symptoms over the three years since she had last seen him. When resting she was aware of some discomfort in the right trapezius region, radiating to the right elbow. Repetitive activities caused increasing soreness in her right upper limb. She continued to experience intermittent pain in the low back, such as when bending or walking for more than 20 minutes. Her treatment in the previous three years involved various creams and occasional massage by her husband. She sometimes rested at work because of discomfort in the right upper limb.
75. Dr McGill stated that “the examination today did not reveal any objective abnormality, independent of her cooperation or reporting. Her behaviour with respect to power and movement in the right upper limb was non organic and not explicable on the basis of cervical spine, right shoulder or muscular disorders”.
76. In relation to her neck injury, Dr McGill considered that Mrs Duong had probably experienced an exacerbation of symptoms related to underlying degenerative change in the cervical spine as a result of that injury, but noted that the natural history of degenerative spinal disease is to produce exacerbations of pain even in the absence of any apparent aggravating activity. He considered that the effect of any injury would have settled within three months. Her subsequent work duties may have influenced the level of discomfort, but the discomfort would have ceased when she stopped the activity. In his opinion the radiological changes and the underlying pathological changes of her cervical spine were constitutional.
77. In relation to the right arm injury, he thought she could have experienced bruising which may have taken up to a month to settle.
78. Again, in relation to the lumber spine he thought the degenerative changes on the imaging studies were constitutional. Her back injury may have caused her pain but would have made no difference to the underlying pathology and the effects would have ceased in a few days.
79. He did not consider that she had sustained any injury or condition as a result of the nature and conditions of her employment:
I think her current genuine physical state would have been the same regardless of her employment with Australia Post. I think her abnormal behaviour with respect to the right upper limb is likely to be a reflection of the medicolegal process. In view of the lack of muscle wasting after more than a decade of alleged symptoms, the restricted power and restricted movements which she today demonstrated in the right upper limb are not an indication of her usual function.
80. Dr McGill provided an assessment of impairment, although there was no work related condition in his opinion. He found no impairment of the right upper limb in accordance with Table 9.1 or 9.4. He found 5% for each of the cervical and lumbar spine according to Table 9.6, entirely related to constitutional degenerative change.
Consideration
The section 14 claim in respect of injury to the right upper limb, cervical and lumbar spine arising from the nature and conditions of employment
81. The evidence does not persuade us that Mrs Duong suffered injuries to her right upper limb, cervical and lumbar spine as a result of the nature and conditions of her employment. The duties that Mrs Duong carried out with APC as outlined above may be described as repetitive in nature, however, the evidence discloses complaints arising from the three frank incidents detailed previously, with the symptoms settling down, rather than there being ongoing complaints. Mrs Duong’s duties were subject to the 10 kg lifting restriction from 1994. There was clearly conflict between Mrs Duong and APC management in relation to each incident.
82. There is no contemporaneous evidence of continuing complaints or treatment for the neck injury from 13 September 1994 (Dr Chen’s second report) until the right arm injury in March 1995.
83. Following the right arm injury, the conflict between management and Mrs Duong was intense. Her sister, a doctor in the US, became involved. However, there is no contemporaneous evidence of ongoing complaints, treatment or sick leave after the report of Dr Dragutnovich on 3 October 1995 until she was directed on sick leave in 1999. Mrs Duong’s own evidence was that she had only a few days off after the neck injury. Her leave records reflect several days off work in May and June 1995, apparently related to the right arm injury and also the cervical spine, including investigations but nothing thereafter. It is significant that on 27 July 1995 APC accepted liability pursuant to s 14 of the SRC Act and determined to pay medical expenses pursuant to s 16, until 26 May 1995.
84. In relation to the back injury, Mrs Duong said that she took three days off work after the injury. Her leave records refer to leave for the back injury from 24 December to 2 January 1998. The next record of leave for back pain was one day, 10 November 1998. This was after Dr Gliksman’s review for APC on 27 October 1998, detailed above.
85. When in 1999 APC flagged that she would be directed onto sick leave if she could not carry out her duties, Mrs Duong obtained a report from Dr Scruby which upgraded her to all her duties over three months. In March 1999 she denied to Dr Gliksman having had any symptoms in her cervical spine, bilateral shoulders, lumbosacral spine or upper limbs and clinical findings were consistent with that. She was clearly anxious not to lose her job. Solicitors became involved in April, first seeking an extension of time to obtain further medical evidence in relation to her fitness for her duties, and then the incident claim form dated 1 July 1999 was lodged which raised a nature and conditions claim for the first time, and Dr Roebuck’s report was provided.
86. The evidence detailed above after that reflects that Mrs Duong was angry and aggrieved by APC’s treatment of her in 1999, and was seeking redress in whatever way she could. Dr Lawson’s evidence supporting a “nature and conditions” was given only in evidence in chief in response to a leading question. It was not based on a sound understanding of the contemporaneous evidence and we do not accept it.
The permanent impairment claims
87. As Mrs Duong has been unsuccessful in relation to the “nature and conditions” claims, we consider only the three frank injuries in relation to the permanent impairment claims. We prefer the evidence of Dr McGill and Dr Maxwell to that of Drs Lawson, Giblin, and Roebuck, because it accords with the history of Mrs Duong’s injuries and her symptoms. The reports of Dr Davidson, Mrs Duong’s own specialist, and the Vocational Report of August 1999 also support this finding. Mrs Duong suffered injuries, recovered from those injuries, but continues to suffer to some extent from the consequences of degenerative constitutional changes in her cervical and lumbar spine. We find particularly that the neck and lower back injuries caused aggravations of her underlying spinal degeneration which then settled and that she did not suffer injuries to the spine on either occasion. We understand that Mrs Duong feels aggrieved by APC’s treatment of her since 1994 and particularly from 1999, and find that this has led her to believe that all her symptoms arise from the injuries she suffered and this has coloured her evidence. However, our analysis does not support this conclusion. The symptoms which Mrs Duong suffers now and any permanent incapacity she may have are not attributable to the injuries she suffered at work. We find that Mrs Duong’s claims for permanent impairment are not successful.
Claim for incapacity and medical expenses in relation to the lower back
88. For the reasons already stated, Mrs Duong’s claim for incapacity and medical expense in relation to the lower back is also unsuccessful. Mrs Duong received compensation until 5 January 1998 for incapacity and medical expenses. The evidence does not persuade us that APC was liable for incapacity payments or medical expenses after that date. As stated previously, the only evidence of time off work for back pain after 5 January 1998, was 10 November 1999. We do not consider that back pain at that time was a consequence of the back injury. There was no evidence of medical expenses being incurred beyond 5 January 1999 in relation to the back injury during a period which we consider could be attributable to that injury, or even after that.
The Decisions
Proceedings N2005/1124
89. Mrs Duong has not succeeded in her claims for permanent impairment in proceedings N2005/1124, however the decision that liability had ceased was wrong at law. We therefore vary the reviewable decision finding that APC is not liable to pay compensation to Mrs Duong in respect of permanent impairment to her right upper limb and cervical/lumbar spine pursuant to s 24 and 27 of the SRC Act as a result of injuries that occurred on 28 April 1995 and 24 December 1997.
Proceedings N2006/1423
90.In proceedings N2006/1423, we set aside the reviewable decision and substitute therefore the following decision:
(a) APC is liable pursuant to s 14 of the SRC Act to pay compensation to Mrs Duong for an injury suffered to her neck on 6 March 1994.
(b) APC is not liable pursuant to s 14 of the SRC Act to pay compensation to Mrs Duong in respect of injuries to the right upper limb, cervical and lumbar spine, arising from the nature and conditions of her employment.
(c) APC is not liable to pay compensation to Mrs Duong for permanent impairment pursuant to ss 24 and 27 of the SRC Act in respect of injuries to her neck and right shoulder suffered on 6 March 1994, to her right upper limb on 28 April 1995, or to her lower back suffered on 24 December 1997.
(d) APC is not liable for incapacity and medical expenses pursuant to s 19 and 16 of the SRC Act in relation to the injury Mrs Duong suffered to her lower back on 24 December 1997.
COSTS
91. The parties are to advise the Tribunal of an agreed order for costs within 7 days of the publication of this decision, or the matter will be re-listed for argument thereafter.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr John Campbell.Signed: Ms P Nimmagadda
Associate
Date of Hearing 16 & 18 May 2007
Date of Decision 12 July 2007
Solicitor for Applicant Pham Lawyers
Counsel for the Applicant Mr C Jackson
Solicitor for the Respondent Sparke Helmore
Counsel for the Respondent Mr N Pollin