Fam and Australian Postal Corporation
[2008] AATA 1069
•1 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1069
| ADMINISTRATIVE APPEALS TRIBUNAL ) | |||||||
| ) No W 200600243, 2007/3150, ) 2007/4221 | |||||||
Applicant | |||||||
Respondent | |||||||
| DECISION | |||||||
Date 1 December 2008 | |||||||
| Place Perth | |||||||
..........sgd S D Hotop........ ..... | |||||||
| Deputy President | |||||||
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by respondent from 1993 – applicant previously suffered from back ailment – applicant denied prior back trouble in application for employment – applicant sustained lower back ailments in course of employment in 2000 – applicant claimed compensation – applicant’s false representation that he had not previously suffered from back trouble not made wilfully – respondent liable to pay compensation to applicant in respect of lower back injuries – amount of compensation – applicant entitled to compensation for medical expenses – compensation for incapacity – suitable employment – applicant able to earn in suitable employment – applicant contracted mental ailment in 2006 – applicant claimed compensation – applicant’s mental ailment contributed to in material degree by employment by respondent – applicant’s mental ailment not suffered as result of failure to obtain benefit in connection with employment – respondent liable to pay compensation to applicant in respect of mental injury – amount of compensation – applicant entitled to compensation for medical expenses – applicant’s mental injury does not result in incapacity for work – applicant not entitled to compensation for incapacity – reviewable decisions set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 7(7), s 14(1), s 16 and s 19
Comcare Australia v Porter (1996) 70 FCR 139
Comcare v Ross [1996] FCA 1669
Van Reesch v Health Insurance Commission [1996] FCA 1279
REASONS FOR DECISION
| 1 December 2008 | Deputy President S D Hotop Dr P A Staer, Member |
Introduction
John Fam (“the applicant”), who was born in January 1955, commenced employment with Australian Postal Corporation (“Australia Post”) (“the respondent”) in 1993 and has, at all material times, been employed by the respondent.
On 3 April 2000 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for an injury to his lower back said to have occurred while he was lifting mail bags in the course of his employment by the respondent on 27 March 2000. On 10 April 2000 the respondent accepted liability under the SRC Act to pay compensation to the applicant in respect of an injury described as “left lower back strain”, but on 20 June 2000 the respondent determined that it was not liable to pay compensation to the applicant for incapacity and medical treatment in respect of that injury on and from 10 June 2000. That determination was, following a belated request by the applicant’s solicitors for a reconsideration, ultimately affirmed by the respondent in a reviewable decision dated 24 August 2007. The applicant has applied to the Tribunal for review of that reviewable decision (Application No 2007/4221).
On 14 December 2000 the applicant claimed compensation under the SRC Act for a “disc protrusion” injury to his lower back said to have occurred when he stumbled while carrying a large box down a flight of stairs in the course of his employment by the respondent on 5 December 2000. On 9 January 2001 the respondent accepted liability under the SRC Act to pay compensation to the applicant in respect of an injury described as “aggravation of a pre-existing condition, namely L4 disc protrusion”, but on 16 May 2006 the respondent determined that it was not liable to pay compensation to the applicant for incapacity and medical treatment in respect of that injury on and from 4 May 2006. That determination was affirmed by the respondent in a reviewable decision dated 2 August 2006. The applicant has applied to the Tribunal for review of that reviewable decision (Application No W 200600243).
On 17 May 2006 the applicant claimed compensation under the SRC Act for “depression due to back injury and wrist injury” said to have been suffered by him on 28 February 2006. On 14 June 2006 the respondent determined that it was not liable under the SRC Act to pay compensation to the applicant in respect of depression. That determination was affirmed by the respondent in a reviewable decision dated 29 June 2007. The applicant has applied to the Tribunal for review of that reviewable decision (Application No 2007/3150).
The Tribunal’s Determination
For the reasons which follow, the Tribunal has determined that the respondent is liable to pay compensation, in accordance with the SRC Act, to the applicant in respect of his lower back and mental conditions.
The Legislation
The relevant provisions of the SRC Act (as in force at all material times) are as follows:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
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.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
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.
…
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment – employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee’s age, experience, training, language and other skills;
(ii)the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case – any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
…
(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.
…
7 Provisions relating to diseases
…
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
…
14 Compensation for injuries
(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.
…
16 Compensation in respect of medical expenses etc
(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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
(2A)For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a) it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b) the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours.
…
(3)Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(Adjustment percentage x NWE) – AE
where:
adjustment percentage is a percentage equal to:
(a) if the employee is not employed during that week – 75%; or
(b) if the employee is employed for 25% or less of his or her normal weekly hours during that week – 80%; or
(c) if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week – 85%; or
(d) if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week – 90%; or
(e) if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week – 95%; or
(f) if the employee is employed for 100% of his or her normal weekly hours during that week – 100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee’s normal weekly earnings.
…
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self-employment) – the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
…”
The Evidence
The evidence before the Tribunal comprised:
· the “T Documents” lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of Application No W 200600243 (T1 – T100, pp 1 – 273; ST1 – ST81, pp 1 – 532), Application No 2007/3150 (T1 – T14, pp 1 – 44), and Application No 2007/4221 (T1 – T17, pp 1 – 43);
· Exhibits A1 – A9 tendered by the applicant;
· Exhibits R1 – R25 tendered by the respondent; and
· the oral evidence of the following witnesses;
-the applicant and Dr A Nguyen and Dr A Home (who were called by the applicant); and
-Mr P Hardcastle, Dr J Low, Dr R Lai, Dr P McCarthy, Ms M Taylor, Ms R Kendell and Mr R Barnard (who were called by the respondent).
The applicant’s evidence
The applicant tendered in evidence a signed Outline of Evidence, dated 8 May 2007, as follows:
“ …
3.I have a very limited ability to read in English. I was born in Vietnam and came to Australia in 1981.
4.In general terms when I fill out a claim form or make any claim for compensation the form is being completed for me by somebody I trust and I simply sign the form.
5.I have not been able to read or understand any of the Notices that have been sent to me by Australia Post in this matter, and generally need somebody to assist me to understand them.
6.I am able to fill out some bits of some forms myself and read some paragraphs myself, but in general terms I get assistance from a fluent English speaker.
7.I am preparing this statement with the assistance of my nephew Tam Pham.
8.I commenced employment with Australia Post in about 1993.
9.In March of 2000 I sustained an injury to my back and a claim for compensation was lodged.
10.Prior to that claim for compensation I had no back pain.
11.After that injury referred to in that claim form as a lower back strain I had ongoing back pain but I was able to work and continued to work.
12.My care in relation to that first injury was managed by Dr Rob McDonald and Dr John Low. Both of whom I was referred to by Australia Post.
13.I obtained a final medical certificate in respect of that injury notwithstanding the fact I was still at that time experiencing pain in my back.
14.I continued to see Dr Low to whom I was sent through Australia Post and was managed by Australia Post with a return to work.
15.In December of that year there was an incident where I was carrying a box down a set of stairs when I stumbled and although I didn’t fall to the ground I caused a further aggravation of my back pain.
16.I completed an incident report and made a claim for compensation.
17.I cannot recall now who helped me fill out that claim form but the writing on the form is not mine. I think the form was largely filled out by Christine Robinson who was the Occupational Health and Safety Officer, employed by Australia Post.
18.In the filling out of the claim form I am sure that I have advised Australia Post and probably Christine Robinson that this injury represented an aggravation of the first back injury that I had suffered in March of the same year.
19.I note that in the ‘investigative findings’ … the injury [is] described as an aggravation of my previous lower back injury.
20.Between March 2000 and December 2000 I had never become pain free from the first injury.
21.I have continued in my employment with Australia Post with various periods of time off as a result of my back. I have symptoms in my back which include;
1)Pain in my left groin;
2)Pain going all the way down my left leg;
3)Pain in my left foot;
4)Numbness in my left shin between my ankle and my knee.
22.I have been complaining about this symptom (sic) all the way back to when I first saw Dr Low before my injury in December 2000.
23.I have had further incidents in my employment with Australia Post and have completed claims for compensation.
24.I was injured whilst cleaning graffiti off a street postal box in October 2004. I attach a copy to this statement of my claim for compensation in respect of that condition.
25.I also had an incident where I was involved in a gym program as a part of rehabilitation when I had further symptoms in my back whilst doing back extension exercises. I attach a copy of the incident report in respect of that incident.
26.In relation to the suggestion that my back condition has ceased to cause problems all I can say is that I have at all times told all of the doctors I have seen the truth about my condition and about the way that it affects my ability to work.
27.I have a condition in my right wrist for which liability has been accepted and which is not subject to any dispute at this time.
28.What prevents me from working at present is my back and leg pain.
29.I have endeavoured to return to some kind of employment with Australia Post but Australia Post will not let me return to work until I am completely fit. Australia Post have told me that until I am complete (sic) fit I am not able to do any kind of rehabilitation or any other kind of work.
30.I do not wish to leave my employment with Australia Post and want to be rehabilitated as quickly as possible. Because my claim has been ceased and because I am arguing about that decision to cease my claim I do not think I am being dealt with fairly by Australia Post.
31.Since September 2006 they have not permitted me to return to work on any rehabilitation program because liability for my claim is at an end. …
…
33.I do know however that my back and leg pain makes it impossible for me to my old job (sic), but I do want to do whatever else I can to return to some kind of employment.
34.I still experience back and leg pain on an almost constant basis. The pain only varies with the amount I do.” (attachments omitted) (Exhibit A1)
The applicant’s oral evidence-in-chief may be summarised as follows:
· he was born in Vietnam and came to Australia as a refugee in 1981;
· he was offered a job by Australia Post in 1993;
· his most recent previous employment was at Pilkington Glass;
· his employment duties at Australia Post from 1993 included handling mail bags (“relay bags”), some of which were heavy and some of which were light;
· in March 2000 at the Gwelup Delivery Centre he was lifting large mail bags in order to place them on a trolley and, in so doing, he twisted his body and felt “a little bit sore”;
· when he returned home after work that day he thought it was “okay” but the next day when he woke up he felt more pain on the left side of his back;
· he reported that incident and his back pain to his supervisor and he was subsequently medically examined and sent for an x-ray and he received physiotherapy treatment for a few weeks;
· in December 2000 he went to a customer’s address in the city in order to collect parcels and while carrying a “big box” at those premises he stumbled and hurt his back but he continued to carry the box to the mail van;
· when he woke up the next day he felt more pain on the left side of his back and when he arrived at work he reported it and he was sent for a medical examination;
· on 1 July 2005 he attended a meeting at the Transport Section at Australia Post regarding his work duties;
· when he went into the meeting room he asked where the Vietnamese interpreter was and he was informed that an interpreter had not been arranged, whereupon he said that they could discuss the matter with his lawyer, gave them his lawyer’s card, and left the meeting;
· at a previous Australia Post meeting he attended on 2 June 2005 at which no interpreter was present, he found that he could not understand what was being said because the people were speaking too quickly, and he told them that he wanted an interpreter to be present at future meetings;
· his claim for depression came about because he was upset and worried about his future by reason of his incapacity as a result of his injuries;
· his wife advised him to consult his general practitioner about it and he was referred to a psychologist and subsequently to a psychiatrist, Dr Kerry Monick.
In cross-examination the applicant gave evidence as follows:
· he joined the South Vietnamese Army as a volunteer in 1971 when he was 16 years old and he stayed in the Army until 1975;
· in 1974 during the Vietnam War he was badly injured when a hand grenade exploded nearby and he sustained shrapnel wounds to his left arm, his buttocks and his legs, and he was in hospital for a few months;
· he did not sustain a shrapnel injury to his groin, nor did he injure his back, in that incident;
· after he arrived in Australia in 1981 he worked as a cook from 1982 and from 1987 to 1990 he worked as a window frame joiner at Pilkington Glass;
· while working at Pilkington Glass he injured his left thumb and he had an operation in hospital and he received compensation;
· from 1990 to 1993 he was unemployed and was in receipt of social security;
· the Department of Social Security sent him to Australia Post and Australia Post offered him a job driving a van;
· he first worked at Osborne Park Delivery Centre for a few years, then at Gwelup Delivery Centre for a few years, and he was then moved to the Transport Division near Perth Airport;
· he drove his car to and from work each day up until 2006 when he ceased to attend work.
The applicant was referred to his Application for Employment with Australia Post, dated 23 July 1993, and the Pre-Placement Medical Report, dated 14 September 1993, signed by him (W 200600243 – T4, T5). As regards the latter form, the applicant acknowledged that, in answer to the question “Can you read and understand English?” in section 1 of the form, he wrote: “Yes”. He also acknowledged that, when he completed that form, he knew that he must do so honestly, but he added that when he read the form he did not “understand much”. He confirmed that he remembered, on that occasion, a person asking him questions about his health and then ticking boxes in the form. It was put to the applicant that several of his responses to questions recorded in that form were false, including the response “No” to each of the following questions:
· “Have you had any back/neck trouble of any kind?”
· “Have you had any severe injury or operation?”
· “Have you ever been on workers’ compensation for any reason?”.
The applicant explained that:
· as regards his back, he was feeling “absolutely nothing” at that time;
· although he had been severely injured in the Vietnam War, he misunderstood the question in that he thought it referred only to his life in Australia;
· although he had an operation on his left thumb when working for Pilkington Glass, he answered “No” to the question because his thumb was “back normal”;
· although he had received workers’ compensation for his thumb injury, he did not think that was important because it was about his thumb and his thumb was “back to normal”, and so he answered “No” to the question about workers’ compensation.
As regards the question “Have you had any back/neck trouble of any kind?”, it was also put to the applicant that he had consulted his general practitioner, Dr Nguyen, about back pain in June 1992 following three falls at home, and also in March and June 1993 following a motorcycle accident during a visit to Vietnam in January 1993. The applicant acknowledged that he had consulted his general practitioner about back pain on those occasions and that he did not tell Australia Post about that but he reiterated that at the time of his pre-employment medical examination (14 September 1993) he was not feeling any soreness in his back.
As regards the question “Have you had any severe injury or operation?”, it was also put to the applicant that he had undergone a tendon transfer operation on his left hand at Royal Perth Hospital in May 1992, and that he had failed to disclose that operation to Australia Post. The applicant acknowledged that he had had that operation but he maintained that he answered “No” to the above question because he was not then feeling any pain or soreness in his left hand.
The applicant confirmed that in 2005, when he was working at Australia Post’s Transport Division near Perth Airport, Australia Post offered him a position as assistant to the Manager of the Gwelup Delivery Centre. He confirmed that that offer of employment was communicated in a letter, dated 5 July 2005, from Bill McDonald, Manager, Injury Prevention and Management Unit, to his solicitors. The contents of that letter are as follows:
“I met with Mr John Fam at his workplace on 1 July 2005. Mr Fam had Mr Bryan Watkins (CEPU) with him as his support person. My intention was to discuss with Mr Fam, the possibility of him relocating to Gwelup Delivery Centre. During the discussion Mr Fam indicated to me that I should discuss this matter with you.
I am sure you are familiar with the background to Mr Fam’s case, so I will not go over these details. However the important point is, that due to a work related injury, Mr Fam is unable to perform the inherent requirements of his nominal position. As a result, Australia Post is endeavouring to find a position within the organisation that is more suitable to Mr Fam’s medical restrictions.
Prior to working at our Transport Division, Mr Fam was stationed at Gwelup Delivery Centre and is therefore familiar with the workplace and staff. The position now being offered to Mr Fam is one of general assistant to the Manager. The role involves administrative duties, assisting customers who come to the Centre to collect their mail and short driving duties. I have included a copy of the Return to Work Programme compiled by Post’s Occupational Therapist Min Taylor. This was compiled after Ms Taylor and Dr Roger Lai visited and examined Gwelup Delivery Centre with the specific purpose of identifying suitable duties for Mr Fam.
If Mr Fam is able to perform specific shuttle run duties, a vehicle may be provided that Mr Fam can use for travel to and from work. In addition, when Mr Fam’s duties are finished for the day, he will be allowed to leave the workplace and will be paid for the remainder of his shift.
Although Mr Fam initially seemed enthusiastic about this move, he has recently refused to speak with anyone about it. Would you please discuss the above with Mr Fam and advise me on Mr Fam’s position.” (W 200600243 – ST150)
The applicant confirmed that his solicitors, in accordance with his instructions, wrote to Mr McDonald on 1 August 2005, in response to his letter of 5 July 2005, as follows:
“ …
The position is that Mr Fam will attend to carry out work at the Gwelup Delivery Centre in accordance with your proposal.
The position is that at present Mr Fam is not able to do driving duties and so your offer in respect of the provision of a van is not able to be complied with.
The only matter that my client would require to be attended to is that in the event any difficulty arises with the carrying out of the return to work plan and before any action is taken to interfere with the terms or general basis of the plan that you make contact with my client’s union representative Brian Watkins at the CEPU and have your first contact in relation to that matter with Mr Watkins.
Mr Watkins will then arrange to attend at the work site with Mr Fam to talk through any difficulties.
My client is very grateful to you for the offer in respect of this matter and looks forward to a productive working life with Australia Post but is concerned to ensure that in the carrying out of the return to work program he is not exposed to any further risk of injury.
I will forward a copy of this letter to Mr Watkins and to Mr Fam and no doubt arrangements to commence Mr Fam and (sic) his new place of work can take place soon.” (W 200600243 – ST75)
The applicant said that he knew that that job would involve driving an Australia Post van and that van driving was an essential part of that job, but he said that he had previously told Australia Post that he could not drive a van. He acknowledged that he had driven his car to and from work each day but he said that driving a van was different from driving a car. He explained that a van is bigger, and “a little bit harder” to steer, than his car. He added that getting into a van is more difficult because it is higher than a car and he has to hold onto the steering wheel in order to pull himself up into the van. He said that if he had a normal back and normal wrist he would be able to drive a van but because of his back and wrist conditions he was unable to do so. He acknowledged that Australia Post vans have power steering and automatic transmission but he said that he had tried to drive an Australia Post van and found that he could not do so. Later in his evidence the applicant said that he would do that job if the driving duties could be performed in a station wagon vehicle rather than a van.
The applicant was next questioned about his claim for depression. He confirmed that he was referred by his general practitioner to a clinical psychologist, Mr Janong, whom he saw three or four times in early 2006, and that he was subsequently referred by his general practitioner to a psychiatrist, Dr Monick, whom he saw in August 2006.
It was put to the applicant that he lodged his claim for depression, dated 17 May 2006, because he had become aware in April 2006 that Australia Post was proposing to cease paying him compensation in respect of his lower back condition. The applicant rejected that suggestion and added that he had become depressed before then.
The evidence of the medical witnesses
Dr Anh Nguyen
Dr Nguyen said that has been practising as a general practitioner in Perth since 1991 and that the applicant has been his patient since 1992.
Dr Nguyen referred to his clinical notes regarding consultations with the applicant which included, inter alia, the following relevant entries:
· 24 June 1992: “… had 3 falls at home … (L) knee/face/back pain …”;
· 8 March 1993: “Jan 93 motorbike accident in VN → (R) eye/(R) frontal pain
Now (R) eye blurring of vision … back ache …”;
· 15 June 1993: “Back pain”;
· 8 April 2000: “… Back pain ↓↓”.
As regards the consultation on 8 April 2000, Dr Nguyen commented that he did not regard the applicant’s reported back pain as serious enough to warrant an examination, and he said that the applicant did not refer to any workplace injury to his back.
Dr Nguyen’s subsequent clinical notes refer to, inter alia, the applicant’s right hand injury which (it is common ground) he sustained in the course of his employment on 24 January 2003. On 5 August 2005 Dr Nguyen issued a Workers’ Compensation Progress Medical Certificate in which he commented as follows:
“Driving trucks or vans is not recommended as he cannot have full use of his right hand.”
Dr Nguyen acknowledged that previous medical certificates issued by him in relation to the applicant did not refer to work restrictions regarding driving a truck or a van, and that Dr Lai, an Australia Post Medical Adviser, had written to him on 9 June 2005 that it had been agreed with the applicant that a “reasonable initial work trial” may include, inter alia, “van driving with assistance provided for loading and unloading mail”. Dr Nguyen added that at that time he had “no problem” with the applicant driving a van but that the applicant had subsequently complained to him about his difficulty in changing gears and steering when driving a truck or a van and, on that basis, he included, in the medical certificate issued on 5 August 2005, the comment that driving trucks or vans was not recommended. He subsequently issued medical certificates indicating that the applicant was not to drive a truck, van or motorbike but that he could drive an automatic sedan.
Dr Nguyen provided a report, dated 14 February 2008, in which he commented on the applicant’s work capacity as follows:
“ 7. Work prospect: Mr Fam always expressed his willingness to return to the workforce.
a- currently:
Mr Fam has very little hope to return to his pre-accident capacity due to his enduring pain and limitation of his right wrist functions. The pain in his back and groin further distant (sic) this hope.
b- in the future:
Only if the wrist pain resolves and his wrist functions regained then Mr Fam would be able to compete in any meaningful employment. It might be reasonable for him to undertake sedentary or semi-sedentary works but for this he needs more training which seems to be difficult due to his current level of education and English language capacity.” (Exhibit A5)
Dr Alan Home
Dr Home, who has been practising as a specialist occupational physician since 1993, confirmed that, at the request of the respondent’s solicitors, he had examined the applicant on 21 December 2006 and prepared a report of that date in relation to the applicant’s low back condition and work capacity.
Dr Home’s report of 21 December 2006 states (inter alia):
“ …
History From Examinee
Mr Fam states that he has not experienced low back pain prior to 2000. On 27 March 2000 he was lifting a mailbag containing parcels from a sorting frame onto a trolley. This required him to turn to his right side. He recalls the immediate onset of pain in his lower back. He recalls early onset of pain in his left leg, associated with numbness along the medial border of his left leg.
He attended Dr John Low who was at the time an occupational physician trainee working at Australia Post and also Dr Rob McDonald, who was working at the Carepoint Medical Clinic.
He underwent plain radiographs of the lumbar spine. He underwent CT scan examination of the lumbar spine. These demonstrated a large left paramedian disc protrusion at the L4/5 level.
He was referred for physiotherapy treatment for a period of nine weeks. He tells me that his back pain symptoms did improve over that nine week period.
He adds that he has been left with numbness in his left leg ever since that episode.
He states that he did manage to return to his normal duties as a delivery van driver thereafter. He states that pain did continue, albeit at a lower level than he had experienced prior to commencing physiotherapy treatment.
He does recall experiencing ongoing mechanical low back pain related to twisting activities. Pain was predominantly felt in the left side of his lower back.
His leg pain resolved after treatment. He was, however, left with numbness in his left leg, that had been present since March 2000.
On 5 December 2000 he experienced an aggravation of his lower back complaint whilst carrying a large box up stairs. He recalls that he was ascending steps in a poorly lit location from the basement at a customer’s premises when he tripped forward on a step. He did not fall to the ground but managed to regain his balance.
He states that the box was of light weight although it was large in size and therefore cumbersome to carry.
He recalls that after the tripping incident he experienced the immediate onset of more prominent pain in his lower back and left leg. He was unable to attend work the following day.
He attended Dr John Low on 7 December 2000.
He confirms that he was diagnosed as suffering from a symptomatic aggravation of his left sided L4 disc protrusion.
He was referred to a physiotherapist in Booragoon and within a week his care was transferred to Lifecare Physiotherapy. He tells me that he received treatment with lumbar traction and thereafter hydrotherapy treatment.
He recalls that his symptoms did improve during his period of hydrotherapy exercise, that was administered over a period of one or two months.
He did manage to return to full duties by March 2001. He recalls that he was experiencing ongoing low back pain at that time.
At that stage he returned to his normal duties as a van driver with the transport division.
He states that he experienced a further exacerbation of low back pain on 9 June 2001 whilst loading the company van with heavy containers of liquid at a customer’s premises.
He was again referred to Dr Low, who referred him on to Lifecare Physiotherapy in Greenwood for treatment over a three-week period.
He again returned to his normal duties as a van driver.
He states that over the next eighteen months he did continue work within the transport division, however he was taken off van driving and placed on a truck. This transfer occurred due to his complaints that he was experiencing difficulty lifting parcels. He adds that although most of the parcels were of light nature, there was occasional lifting of up to 20kg.
During the course of his work as a truck driver he was transporting ULDs from the Perth Mail Centre near the Perth Airport to various depots in Rockingham, Mandurah, Joondalup and Osborne Park. The ULDs were moved by forklift or by use of a walkie stacker.
He states that in the period leading up to his wrist complaint, he was continuing to experience mechanical low back pain, with pain present every day, although of mild severity.
Again, there was the ongoing numbness in his left leg. He does not recall any leg pain at that stage.
He recalls that back pain would be exacerbated by deep forward bending at the waist, squatting, twisting his back, and during cold weather conditions.
On 24 January 2003 he sustained injury to his right wrist. This occurred whilst he was operating a load shifting device, the walkie stacker, with his right wrist and fingers caught against the wire cage of the ULD.
He sustained local lacerations and these were treated at Rockingham Hospital.
He later underwent investigations of the right wrist. These demonstrated evidence of a pisiform fracture in addition to ulnar impingement at the left wrist.
I note that the operation consisted of arthroscopic debridement of the triangular fibrocartilage tear, synovectomy and open pisiform excision, and a resection osteotomy of the distal ulna bone with plating.
He underwent post-operative care under the management of Mr Hales, including numerous radiographs to ensure that the ulna shortening procedure was successful.
He confirms that he did undertake office duties after recovering from his right wrist injury.
He does continue to experience pain at the ulnar aspect of the wrist, particularly at the volar surface of the wrist.
He also describes altered sensibility in the ulnar nerve distribution involving the ring and little fingers of his right hand during cold weather.
He describes activity-related pain at the ulnar aspect of the wrist. This occurs when he is writing for more than several minutes, holding a steering wheel firmly with his right hand, and with lifting activity.
He states that he drives his passenger vehicle holding the steering wheel lightly with the fingers of his right hand, and more firmly with his left. He does use the fingers of his right hand to manoeuvre the indicator, but he does not use his right hand firmly when steering.
He retains good movement at the right wrist.
He does take Tramadol analgesia, 50mg twice daily for wrist pain.
He states that in relation to his low back complaint, there was no significant deterioration or improvement in his back pain during his period of recuperation undertaking office work, whilst recovering from his wrist injury.
…
He states that he continued to work in an office at the Australia Post transport centre near the domestic airport until September 2006. He was then advised by the company to take sick leave pending further placement.
He confirms that in July 2005 he was offered a position as an assistant to the postal manager at Gwelup. He tells me that he felt unable to undertake the work, as there was a requirement to drive a truck or van to perform deliveries.
He volunteers three complaints preventing him from driving a van or truck. Firstly, he describes difficulty with access and egress due to the high step. Secondly, he describes difficulty operating vehicles with manual transmission due to the effect of the clutch upon his back pain. Thirdly, he describes difficulty undertaking steering of a van or truck due to his right wrist discomfort.
…
Vocational Outlook
Discussing his vocational outlook, he is happy to undertake office work. He is happy to drive a motor vehicle transporting light parcels and mail. He believes that he is able to drive a normal automatic passenger vehicle, provided that he has the opportunity to stretch his back at half hour intervals.
He is unwilling to drive a truck or van due to his complaints as detailed above.
…
Assessment
Mr Fam presents with a history of low back pain of variable severity since March 2000. It is apparent from my review of his history and the accompanying medical file that Mr Fam sustained an acute left sided L4/5 disc protrusion in March 2000. This pathology was superimposed upon underlying degenerative change, as is the case in almost all cases of disc prolapse.
The evidence for an acute left sided L4/5 disc protrusion occurring in March 2000 is his history of back pain and sciatic pain in the left lower limb, subsequent sensory abnormality in the distribution of the left L4 nerve root, moderate left thigh wasting consistent with longstanding L4 deficit, and the initial CT scan appearance which shows a large disc protrusion in comparison to the later scans. The latter shows a disc osteophyte complex consistent with a healing reaction within the disc substance and reactive bone formation surrounding this disc protrusion.
Over time there has been a progression of narrowing at the L4/5 level as a secondary degenerative process.
It is apparent from the history and my review of the medical file that Mr Fam sustained a material exacerbation of his injury in December 2000, when he tripped whilst carrying a box. There is clear medical evidence in the report of Dr John Low that this man presented with clinical features of a radicular nature, with recurrent left leg pain. This presentation is consistent with an extension of the initial disc pathology.
Thereafter Mr Fam has recovered to the extent that he reports that he suffered only mild low back pain associated with some residual sensory abnormality in the L4 dermatome.
He was able to return to his normal van driving duties albeit with some modification of his duties with transfer into a truck driving position, which required less manual handling. His symptoms of low-grade low back pain remained static in the period leading up to his wrist injury.
…
In relation to his right wrist complaint, he has undergone an ulna shortening procedure to relieve ulnar impaction. It is apparent that in his workplace trauma he sustained a fracture of the pisiform bone and arthropathy involving the pisiform triquetral joint.
Despite surgical excision of the pisiform and an ulna shortening procedure, he continues to describe ulnar-sided activity-related pain at his right wrist.
On the basis of the subjective clinical findings on examination of the right upper limb, it is probable that his activity-related pain complaints reflect residual pathology within the triangular fibrocartilage or post-operative scarring in the region of his pisiform bone excision arthroplasty.
There is little to find on objective clinical examination, with symmetrical muscle tone in the forearms and normal grip strength to clinical testing with Jamar Dynamometer. However, he may well experience activity-related pain as he reports.
In answer to your specific questions:
1.I do concur that it is likely that there was a background of degenerative change involving the L4/5 interverterbral disc prior to the initial disc protrusion that occurred in March 2000 and a subsequent aggravation occurring in December 2000. Again, degenerative change within the disc substance (drying out of the disc causing susceptibility to annular fissuring) is a normal precursor to subsequent traumatic disc protrusion.
2.There is diagnostic imaging evidence of a progression of L4/5 disc degeneration from the time of the initial scans in 2000 and the more recent scans performed in 2006.
I do not agree with Mr Hardcastle that Mr Fam’s back condition would be exactly the same now even without the aggravations or injury sustained at Australia Post.
Again, there is clear evidence of material disc protrusion occurring at the L4/5 level causing foraminal compression of the left L4 nerve root in March 2000.
It is also evident from my review of his history and the medical file that there was a material aggravation of that disc injury in December 2000, relying upon the history provided by the examinee and the documentation of clinical findings outlined by Dr Low.
3.I anticipate that the aggravation experienced on 5 December 2000 would have gone through a normal process of tissue healing. This occurs within three of four months of a disc injury, including healing of any associated disc tear and shrinkage of the disc protrusion. It is evident from my review of the subsequent investigations, that there has been the development of more severe degenerative change at the L4/5 level, that has progressed from 2000 to 2006. These findings would explain the persistence of symptoms. It is also reasonable to conclude that the injuries arising in 2000 have predisposed to and accelerated the progression of degenerative change in the L4/5 intervertebral disc.
…
4.Mr Fam is, in my opinion, fit to return to work with Australia Post. In my opinion it is reasonable for Mr Fam to undertake sedentary or semi-sedentary work tasks.
It is my opinion that Mr Fam is able to drive an automatic motor vehicle. I do accept his history that due to his left sided low back pain he experiences symptom exacerbation when operating a manual vehicle (pushing the clutch), such that he would be restricted to short hours of work driving a manual vehicle, no more than one to two hours per day. He could feasibly drive an automatic vehicle through much of the working day, up to six hours per day, provided he has the opportunity to alight from the vehicle to stretch his back at 30 minute intervals.
…” (Exhibit A4)
Mr Philip Hardcastle
Mr Hardcastle, Consultant Orthopaedic Surgeon, examined the applicant on 11 April 2006 at the request of the respondent and prepared a report dated 13 April 2006 (W 200600243 – T86). That report states (inter alia):
“ …
HISTORY:
This history was taken through an interpreter, but was still difficult.
1.Low Back Pain:
Mr Fam reports that he was lifting some heavy bags, twisting and turning when taking them from the ground to a trolley on the 5/4/2000, when he developed low back pain. He went off work and was treated with hydrotherapy, physiotherapy and medication for a period, though he is not sure how long.
He then returned to work on the 1/5/2000 doing five hours a day, five days a week, which was driving errands and some sorting. He reports some numbness of his left leg over the medial aspect below the knee, with an associated burning sensation starting at about this time, although I could not get a specific period when this started.
On his return to work, he graduated back to seven hours a day, five days a week, with occupational therapy and exercise, and resumed normal duties. He was then moved to the airport, still doing normal duties, and at that stage, his symptoms had virtually resolved.
At the airport, there was an increase in symptoms, and he said that there was a re-injury to his back in 2001, but he is not sure when, and I could not get specific details. He was off work for a few days and returned to his normal work. He asked to go to a truck driving position, which avoided lifting, and such a position was provided for him. He did this for a year, up until his hand injury.
2. Right Hand Injury:
He reports, on the 24/1/2003 he was driving a forklift truck and sustained a laceration to the back of his right hand on a sharp corner, when he put his hand to get something. He was taken to Rockingham Hospital and this was sutured over the dorsal aspect of the ring and little fingers. He showed me the scars. He was off work for about a week before returning to work. The pain from the lacerations settled down, but he said he lost some movement in these two fingers.
He continued working and said that he had some pain starting in his wrist joint about six weeks after this, with no specific injury. There is mention in the notes of a crush injury between the trolley and bench at work, but he refers to his injury as only that of putting his hand in and lacerating the back on a sharp object, he did not describe a crush injury.
After his review by Mr Hales, and x-rays showing some cystic formation in the pisiform and evidently an MRI which showed an undisplaced fracture of the pisiform, and demonstrating an ulnar impaction, he underwent surgery in February 2004. I understand the operation was an arthroscopic debridement of a TFCC tear, and synovectomy, followed by an open pisiform excision and recession osteotomy of the distal ulnar, with plating, from which he made an uncomplicated recovery.
He still had ongoing symptoms over the ulnar aspect and he said that he had been off work for about a month, having physiotherapy and exercises after the initial operative procedure.
Because of the ongoing symptoms, he underwent EMG studies after an assessment by Dr Gubbay, which demonstrated no evidence of a right ulnar or other neuropathy in the right upper limb. At Mr Fam’s review by Mr Hales on 4/3/2005, he was having complaints of wrist, forearm and shoulder, and so had the plate removed from the right ulna on the 4/4/2005, from which he made an uncomplicated recovery. He was off work for about a month.
He said he has had no treatment since then, and resumed his office duties, which he had been doing since after the first operation in February 2004.
He had another EMG analysis by Professor Mastaglia, and this did not demonstrate any denervation of the hand muscles, or ulna nerve lesion.
…
STATUS AT PRESENT:
Mr Fam complains of some neck and shoulder pain, mainly if elevating his right shoulder, which radiates into the hand. These symptoms occur also if he lies on his shoulder.
His right wrist symptoms are reported as being permanent over the ulna aspect of the wrist, and aggravated by repetitive movement; holding his pen and lifting and holding objects for short periods of time. Overall, he uses his left arm to drive.
He also gets low back pain, which he said is the worst of his problems, and described it as constant. It is helped by physiotherapy exercises, which he does three times a week. He said that the pain is also in the left groin, and occurs here, particularly when lying down at night.
When asked about the aggravating factors, he later said cold weather, but also that the symptoms were present all the time, and pressing on his back, aggravated by the physiotherapy at times, spreading the pain everywhere.
…
PHYSICAL EXAMINATION:
…
Upper Limbs:
…
Examination of the wrist itself demonstrated a normal range of movement, with pronating, supination, dorsiflexion, palmar flexion, ulnar deviation and radial deviation compared to the left. There was no evidence of any carpal instability. On stressing the radio-ulnar joint there was no pain at all. The only pain in this region was local pain to pressure over the distal end of the ulna.
Grip strength was 42kg to measurement on both sides.
Spine/Back:
There was slight asymmetry, but on forward flexion this disappeared. He had two surgical scars over the scapula, being lower on the right than on the left side. These were two separate scars, evidently from the removal of skin lesions in the past.
The only local tenderness was over the posterior iliac crest in the midline, and anteriorly over the anterior/superior iliac spine.
On forward flexion the fingertips came to the knees. Extension was 20 degrees, which cause pain anteriorly over the anterior iliac spine. On later flexion, the fingertips came to the knees. Thoracolumbar rotation was 70 degrees to both sides. Spinal rhythm was normal.
…
In answer to your specific questions:
GENERAL – BACK:
…
3 Your diagnosis of Mr Fam’s current low back condition.
The diagnosis is that he is suffering from tendonitis of the long head of the rectus and gluteus maximus posteriorly.
4Whether the current symptoms and physical restrictions Mr Fam reports to you are consistent with your findings on clinical examination.
The subjective complaints are a lot higher than one would expect from the physical assessment. The findings themselves are non-specific. They are consistent with Mr Fam having some degree of pain, but the level of subjective symptoms is a lot more than clinical examination would expect.
5The factors that are currently likely to be contributing to Mr Fam’s low back condition, including your comments as to whether it is likely that Mr Fam’s back condition has now reached a point at where it would be in any event irrespective of any aggravations of pain through work at Australia Post (that is, whether ongoing pain and disability is now the natural progression of the underlying degenerative disease rather than the result of an aggravation at work).
It is my opinion that Mr Fam’s back problem would be exactly the same now, even without the aggravation as described through Australia Post.
There has been a natural progression of degeneration, and there is no evidence of any neural compression that has resulted from the lifting injury at work, as described, and the subsequent aggravation as referred to.
His present problems do not appear to be spine-related, but more due to local tendonitis, and this has developed due to the aging process.
…
GENERAL – RIGHT WRIST:
…
3Your diagnosis of Mr Fam’s current right wrist condition.
Mr Fam has wrist pain of uncertain aetiology.
4Whether the current symptoms and physical restrictions Mr Fam reports to you are consistent with your findings on clinical examination.
The subjective complaints are again a lot higher than physical examination suggests. He has virtually normal grip strength, appreciating that he possibly has difficulty maintaining this, and there is no evidence of any loss of movement or instability.
There is no associated swelling or evidence of local tendonitis, though the cause of the pain is probably a form of soft tissue swelling in the ulnar aspect of the wrist, which is quite localised.
There is no evidence of pain coming from the radio-ulna joint, where he has previously had symptoms.
5The factors that are currently likely to be contributing to Mr Fam’s right wrist condition.
I cannot find any specific factors contributing to his right wrist condition.
…
RESTRICTIONS – RIGHT WRIST AND BACK:
1Whether there are any work restrictions that need to be applied, and if so, the nature of these restrictions, including your views as to whether Mr Fam is able to drive a car, a van, and a truck (please specify whether restrictions are due to the right wrist, or back, or both conditions).
It is my opinion that Mr Fam retains the capacity to work on a full-time basis, and has the physical capacity to drive a car, van or light truck.
He could do deliveries, though he should restrict the weight that he carries to no more than 10 – 15kg in relation to the symptoms that he complains of.
He is also suitable for office duties.
…”
Mr Hardcastle, at the request of the respondent’s solicitors, reviewed the applicant on 12 August 2008 and proposed a report, dated 21 August 2008, which states (inter alia):
“ …
Through the interpreter I revisited some of his past history that had been provided in relation to previous back problems. He said that he did have a motor bike accident in 1993 with some tenderness in the back for a few days and was checked by his doctor on his return from Vietnam. He also reports a fall at home but he said this did not affect his back and he took some analgesics. Then there was an injury of January 1996 when he said he was doing some heavy duties at the post office and carrying heavy bags and he got some muscle aching from this.
He reports that he has not worked for a year now and that he had injections on 13 September 2005 and 20 June 2006 without any effect.
He has been advised to do hydrotherapy but he cannot swim because of his wrist pain. He has been doing walking exercises in the pool twice a week and he walks around his street regularly for about 20 minutes at a time before resting as part of his exercise treatment.
…
STATUS AT PRESENT
Right Wrist
Pain is worse in the cold and with activities such as writing, using chopping sticks (sic), holding objects for a short period or direct pressure. Pain he said radiates up to the elbow and he gets tingling and numbness in the ulna distribution of the right hand but he also admits to having this on the left side. He reports this tingling and numbness has been since his operative procedures.
Lower Back Pain
He has reported his lower back pain as constant for which he uses a support all the time. It is a mild ache a lot of the time but is aggravated by walking distances, sitting and standing for periods and if he is on rough roads. He gets leg pain with sitting and standing as well as walking and this is in the groin going to the lower leg.
CURRENT ACTIVITIES
He drives an automatic car. He lives with his wife and does very little around the house and no gardening. They do not go out apart from his walking and hydrotherapy and he generally lies down a lot.
…
In response to your specific questions:
2.1Whether you continue to be of the same views as expressed in your report dated 13 April 2006.
There is no reason to alter any opinion expressed in my report 13 April 2006.
2.2Whether you remain of the view expressed in your April 2006 report that:
… Mr Fam retains capacity to work on a full time basis, and has the physical capacity to drive a car, van or light truck.
He could do deliveries, though he should restrict the weight that he carries to no more than 10-15kg in relation to the symptoms that he complains of.
I have no reason to alter this opinion.
… (Exhibit R7)
Dr John Low
Dr Low has been practising as an occupational physician since 2000. He has examined the applicant on numerous occasions since April 2000 regarding the applicant’s lower back condition and has prepared various reports regarding the ongoing status of that condition and its impact on the applicant’s work capacity. The contents of those reports may be summarised as follows:
· 20 April 2000: he saw the applicant on 4, 10 and 20 April 2000 in relation to lower back symptoms following the work incident of 27 March 2000, and he opined that the applicant aggravated a pre-existing left L4 nerve root impingement in his lumbar spine in the incident of 27 March 2000 (Exhibit R18);
· 8 January 2001: he saw the applicant on 7 December 2000 and 2 January 2001 in relation to lower back pain radiating to his lower leg following the work incident of 5 December 2000, and he opined that the applicant aggravated his left L4 disc protrusion which predated the incident of 27 March 2000 (W 200600243 – T6);
· 17 September 2005: he saw the applicant on 8 September 2005 and he noted that the applicant continued to “describe symptoms and demonstrate signs consistent with an L4 disc injury and left sided nerve root irritation” and that those symptoms have “continued to persist, waxing and waning since the incident of 27 March 2000 which “aggravated the pre-existing L4 disc injury and left L4 nerve root impingement” (W 200600243 – T64);
· 11 May 2008: he saw the applicant on 1 May 2008 and noted that his lower back condition had not changed significantly since he was last seen in September 2005, and he opined that the applicant’s work capacity had not changed in that period and that he continued to be fit to work full-time hours but with “restrictions to minimize the bio-mechanical load on his lower back to maintain him comfortably and effectively at work” including the following restrictions:
-“maximum weight of occasional lifting of 8kg (between thigh and chest height, close to body only)”
-“no repetitive or sustained back bending, leaning, stooping or twisting activities”
-“not suitable to work in awkward positions”
-“always observe good manual handling practices”
-vary sitting, standing and walking positions as required”
-“no forceful pushing or pulling activity”. (Exhibit R21)
Dr Low also issued numerous workers’ compensation progress medical certificates in relation to the applicant’s right wrist injury in 2003 and 2004. In the period June-September 2004 Dr Low certified that the applicant was fit to drive a truck subject to restrictions, namely, for no longer than half of each day and on straight runs without excessive turning.
Dr Low also provided to the respondent a report dated 29 July 2007 regarding the impact of the applicant’s right wrist condition on his work capacity. In that report, which was based on an examination of the applicant on 20 July 2007, Dr Low commented that the applicant’s situation had not changed significantly since he was last examined in September 2006, and he expressed the following opinion:
“Mr Fam is not totally unfit as a result of the wrist condition. My opinion regarding his work capacity in relation to the wrist has not changed.
Based on the pathology identified, and the findings on clinical examination, I believe he is fit to undertake alternate work which does not involve:
§Sustained or repetitive forceful gripping.
§Work with the wrist in awkward positions.
§Work involving the wrist in end range positions.
§Sustained and repetitive wrist movements.
§Repetitive or sustained twisting activity involving the right hand.
§Forceful jarring to the right wrist.
As indicated previously, Mr Fam has maintained work within the above restrictions for a sustained period of time without major difficulty prior to going off work.” (Exhibit R23)
Dr Roger Lai
Dr Lai’s Outline of Evidence, which was tendered by the respondent (Exhibit R13), states as follows:
“1 I am employed as an occupational physician at Occumed which is located in Subiaco. Occumed provides a medical advisory and consulting service to Australia Post in respect of its employees.
2In 2005 I was involved with Australia Post in its attempt to successfully rehabilitate Mr John Fam (John).
3On 9 June 2005 I wrote a letter to Dr A Nguyen, Bulwer Medical Centre, who was John’s treating general practitioner at that time. The reason I wrote to Dr Nguyen was to advise Dr Nguyen that it had been decided to explore the option of redeploying John into a job at the Gwelup Delivery Centre. My letter to Dr Nguyen included a list of the duties John would be required to perform.
4Dr Nguyen did not contact me regarding my letter, however, he issued a progress medical certificate dated 20 June 2005 in which he ticked the box that read ‘Vocational rehabilitation has been initiated and is continuing with Occumed.’
5On 9 June 2005 I met with John with an interpreter present. He raised the issue that another transport employee on rehabilitation had been given a ‘special run’ which involves driving and asked if that was an option for him. I informed John that I had already spoken to Jim Rolt and that such a position was not available.
6When I met with John on 12 July 2005, he was reluctant to undertake the Gwelup job or to progress with his rehabilitation and indicated to me that he was afraid that Post (sic) was not acting in his best interests and that he could be disadvantaged in some way if he took on this job or if he progressed with rehabilitation. In my view, John’s reluctance was more likely to have been related to his other compensation claims (ie claims other than for the right hand injury), and not necessarily related to his physical restrictions.
7On 27 June 2005, I attended at the Gwelup Delivery Centre for discussions with Min Taylor (rehabilitation case manager) and Roy Barnard (Manager, Gwelup Delivery Centre) regarding the job and to assess the duties that John would be required to perform.
8I assessed the job at Gwelup as being suitable for John based on the information I was given. I considered that John was capable of doing the required driving duties, or at least that he should be prepared to give it a go. At this time, John was driving his own car to and from work, and this involved driving around 25 kilometres each way from Greenwood to the Transport Section of Australia Post. He had also previously expressed interest in a ‘special run’ provided to another injured colleague which also involved driving.
9Dr Nguyen had made no mention of driving restrictions in the progress medical certificate dated 20 June 2005.
10On 29 June 2005, John telephoned me with concerns regarding the claims handling of his other compensation claim (not the right hand injury). He also said that his lawyer had told him ‘not to talk to rehab and management before talking to them (his lawyers).’ He expressed reluctance to attend a Friday meeting regarding the Gwelup position.
11While John’s physical capacity remained pretty much unchanged during April/May 2005, by June 2005 I thought that he could do more than he said he could do, or at least try to do more and to play it safe in doing so. Nothing had changed in the right hand, and by June it had been two months since the metal plate had been removed. I believe that there was nothing unstable that may have caused further injury to John, although it is possible that some pain may have been experienced when doing some tasks.
12By September 2005 as nothing had changed over some period of time, it was my view that John was putting up barriers to his rehabilitation as to what duties he could do, or at least try to do. I came to the conclusion that John is a type of person who gives the indication that he wants to do more, but when the crunch comes he finds reasons for not being able to do more, or to even try to do more. That is, I considered that he remained unmotivated.”
The letter referred to in para 3 of Dr Lai’s Outline of Evidence states as follows:
“Dear Dr Nguyen
ALERNATIVE DUTIES FOR JOHN FAM
Thank you for the ongoing care you have been providing Mr Fam. After meetings between human resources, managers, Mr Fam, rehabilitation manager and myself, it has been decided to explore the option of redeployment to the Gwelup Delivery Centre. Mr Fam has previously worked at Gwelup and has a good relationship with the manager there. I am mindful that Mr Fam has multiple medical restrictions. Therefore, I discussed with Mr Fam today the list of available duties at Gwelup wit which he is familiar.
·Admin type duties (filing, outward mail) up to 2hrs/day
·Deliver mail items and posting bags to retails sites – this involves loading, unloading and driving a van
·Streeting mail (mail sorting into boxes)
·Van duties (picking posties up, picking up mail items from customers).
Some of the duties require heavy lifting and are currently beyond his capacity. Mr Fam and I agreed that a reasonable initial work trial may include the following duties:
·Admin type duties
·Van driving with assistance provided for loading and unloading mail
·Streeting mail.
I am hopeful that as he gains confidence in his abilities there will be scope for further upgrading of duties with time. I have attached his current certificate which lists his medical restrictions. Thank you for your support and if you have any queries or concerns please contact myself.” (Exhibit R10)
In his oral evidence Dr Lai confirmed that the “special run” referred to in paras 5 and 8 of his Outline of Evidence involved driving an Australia Post truck rather than a van, and he commented that driving a truck was more difficult than driving a van.
Dr Lai was referred to medical certificates which he had issued in relation to the applicant’s work capacity in June and July 2005 (W 200600243 – ST19, pp116-117). In the medical certificate issued on 9 June 2005 in connection with the applicant’s proposed work trial at Gwelup Delivery Centre (see para 3 of Dr Lai’s Outline of Evidence and his letter of 9 June 2005 set out in paragraph 29 above), Dr Lai did not specify any restriction on truck driving or van driving duties. In the medical certificate issued on 12 July 2005, however, Dr Lai did stipulate that the applicant was not to undertake any truck driving or van driving duties. Dr Lai explained that the reason for his stipulating “no truck/van driving” in the medical certificate of 12 July 2005 was that the proposed work trial at Gwelup Delivery Centre had been put “on hold” and that, had he not so stipulated in the medical certificate, the applicant may have been required to drive a truck or a van in other than a “controlled environment”.
Dr Peter McCarthy
Dr McCarthy, Consultant Psychiatrist, examined the applicant on 28 August 2007 at the request of the respondent’s solicitors and he prepared a report, dated 12 October 2007, in respect of that examination. In that report Dr McCarthy set out in detail the applicant’s social and employment history and then referred to his recent history of psychiatric symptoms as follows:
“Mr Fam says he developed moodiness, depression and irritability in early 2006. He says his wife noticed his irritability and told him to see his doctor. He says he became depressed as his physical injuries were interfering with his work. He says he suffered then and continues to suffer now from back and groin pain, radiating down the inside of his left leg. He says that he is only able to walk for about 20 minutes and has difficulty standing or sitting for any length of time because of his pain. He is able to attend to his own dressing, showering and toileting. In addition to his back pain he says he has right wrist pain, and thus has difficulty writing and driving a motor vehicle.
He says that since 2006 he has suffered from fluctuating symptoms of depression and anxiety. He says he has disturbed sleep and although he is able to get off to sleep, he tends to wake after about 4 hours and then he can’t return to sleep because of pain. He says that with sleeping tablets he can sleep up to 6 hours but he is tired during the day. He admits to snoring but there is no clear history of sleep apnoea. He says he has had some problems with his memory and concentration; he has a poor libido and has put on weight. He says his wrist pain is sufficiently severe that he has trouble using chopsticks or brushing his teeth. He says that at home both he and his wife attend to the bills; he receives sickness benefit and his wife now works. He says he is sensitive to noise, he jumps if touched and he is worried about the future. He is able to cheer up but he doesn’t describe any clear hobbies, sports or interests. He is able to visit his wife’s relatives and can help with cleaning up around the home but his wife does most of the housework and cooking. His neighbour does the lawn and Mr Fam says that at home he does relatively little except watch TV. He says he remains moody and irritable and that his ‘head’ is not stable. He says he also suffers from tinnitus, affecting both ears. He says that at home he just wants to sit quietly and not do much. He says he and his wife have had some problems maintaining the mortgage of their house. There is no history of self-harm, nor is there any suicidal ideation. He says his self-esteem is poor but that he and his wife still relate reasonably well. He says he is able to drive, to go shopping with his wife and he is able to read Vietnamese. He doesn’t have many friends and he doesn’t much like to go out because he prefers not to drive.
He says that in 2006 he saw a clinical psychologist, Hendrik Janong, on four occasions but found the treatment unhelpful. He says that in mid to late 2006 he was also seen by the Psychiatrist, Dr Kerry Monick on 4 or 5 occasions at monthly intervals. He says he saw the Psychiatrist as since the accident with his back and hand, he can’t do a lot of his daily activities; he feels stressed and depressed, has lost his sexual activity and complains that it hurts him to go near his wife and therefore he can’t perform a husband’s role.
…”
Dr McCarthy, in response to questions asked of him by the respondent’s solicitors, opined as follows:
“1. Whether Mr Fam currently has any psychiatric illness (that is a psychiatric condition outside the boundaries of normal mental functioning) and if so, your diagnosis in this regard
On the history available Mr Fam developed fluctuating symptoms of anxiety and depression in early 2006. They have persisted with fluctuating severity to the present although there may have been some improvement with his anti-depressant medication. This man is suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. This refers to the development of emotional and behavioural symptoms in response to an identifiable stress or stressors with a significant impairment in his social and occupational functioning. His psychiatric symptoms are not of sufficient severity or duration to warrant the diagnosis of a more severe mood disorder, such as a major depressive disorder. His adjustment disorder is now chronic as it has lasted more than 6 months, although with some improvement.
2.If you are of the view that Mr Fam does suffer a psychiatric illness, whether all or any of the following are likely to have contributed to that illness:
a)Mr Fam’s current financial predicament, that is, inadequate finances due to him being on unpaid sick leave
b)Mr Fam’s fear or uncertainty as to his employment prospects, that is, the prospect that he may be medically retired or have his employment terminated
c)Mr Fam’s fear or uncertainty as to the prospects of not having compensation payments recommence
d)The workers’ compensation process and/or disputes
On the history available all these factors have significantly contributed to his mood disorder. He claims to suffer from recurrent chronic back pain and right wrist pain. He says he has become depressed because he is frustrated and distressed over his various pains however, he freely admits that he is concerned over his financial predicament and his employment future. He says he wishes to return to work on light duties and is concerned that he may be medically retired or terminated in his employment. He has found the compensation process vexatious and does describe some concern over not having his compensation payments recommenced.
3.Please also advise of any other factors that you consider are contributing to Mr Fam’s psychiatric condition
Mr Fam claims that his relationship with his wife is satisfactory. He does have an upbringing and background that is likely to increase the probability of a mood disorder and it is hard to believe he did not suffer from a significant mood disorder at some time prior to his service with Australia Post, given his, at times, challenging experiences during his life. He has been married on 3 occasions and also has had another significant relationship. He had a somewhat difficult upbringing, in a boarding school, he never knew his father, and he served in the Army in his late adolescence and then was incarcerated in a communist concentration camp. He eventually made his way to Australia as an illegal refugee. All those experiences are highly likely to have had their psychological cost and to be contributing to his current psychiatric condition. I did not receive the impression there are other external factors contributing to his psychiatric condition however it is highly likely the (sic) personality characteristics are also contributing at least somewhat to his psychiatric condition.
4. Whether you concur with Dr Monick that from a strictly psychiatric point of view, Mr Fam would be able to undertake his previous work responsibilities
I agree, that from a strictly psychiatric point of view, Mr Fam is able to immediately undertake his previous work responsibilities, rehabilitation, retraining or work in any alternative occupation for which is suited by training, experience or qualifications
5.Whether you are of the view that Mr Fam requires any psychiatric treatment, and if so, the nature of this treatment
I think Mr Fam would be likely to benefit from more robust psychiatric treatment. I suggest he return to see his Psychiatrist approximately monthly for 12 months. He may benefit from some degree of psychological treatment during this time however he is not a good candidate for psychotherapy and has previously seen a Psychiatrist (sic) without much subjective benefit. He may, however, benefit from a review of his medication. I note the comments in Dr Monick’s report about possible drug interactions, complicating his treatment. Although these various drugs can be quite potent with significant side effects or the possibility of various interactions, not on that account would I refrain from treating him more robustly with psychiatric medication. There is a wide range of appropriate medications that could be safely used in these circumstances, at least by a specialist Psychiatrist and perhaps by his General Practitioner. I believe he should have a review of his anti-depressant medication with a view to increasing the dose to a more effective level or alternatively, if necessary, changing the nature of the anti-depressant. It is probable that with this treatment his psychiatric condition would significantly improve and with appropriate psychiatric treatment I do not anticipate that he will suffer from any permanent psychiatric impairment attributable to his workplace circumstances.” (Exhibit R2)
In his oral evidence Dr McCarthy confirmed that, in his opinion, the applicant’s back pain and right wrist pain are included amongst the various factors (including his whole of life experiences) which have contributed to his psychiatric condition.
Additional medical evidence
Report of Dr Kerry Monick
Dr Monick, Psychiatrist, prepared a report, dated 12 September 2006, at the request of the applicant’s solicitors. In her report Dr Monick noted that she had seen the applicant on 2 and 16 August and 6 September 2006 following a referral by Dr Nguyen on 11 July 2006. She described his presentation as follows:
“At presentation Mr Fam complained of depressed mood, anxiety, low libido, interrupted sleep, weight loss (5kg), concentration and memory problems and feelings of helplessness and hopelessness secondary to his back and wrist injury and the resulting pain.”
Dr Monick then summarised the applicant’s history regarding his back and wrist injuries, his reported depressive and anxiety symptoms, and his personal history, and made the following diagnosis of the applicant’s psychiatric condition:
“Adjustment Disorder with Mixed Anxiety and Depressed Mood, mild”.
Her prognosis was stated as follows:
“I believe that Mr Fam has a resilient personality considering the previous hardships he has endured. I also believe that his psychiatric condition is secondary to the pain experienced by the above detailed injuries and that its prognosis thus relies to a major extent on the prognosis of his physical conditions.”
Finally, Dr Monick expressed the following opinion regarding the effect of the applicant’s psychiatric condition on his work capacity.
“From a strictly psychiatric point of view …, your client would be able to undertake his previous work responsibilities as his psychiatric disability is mild.” (No 2007/3150 – T11)
Report of Hendrik Janong
Mr Janong, Psychologist, provided a report, dated 29 March 2006, to Dr Nguyen as follows:
“Thank you for referring Mr Fam to my private practice with the request for clinical assessment and management of his depression and stress at work. I did my psychological assessment of him, on Tuesday, 21st March 2006. He was accompanied by a work colleague during the consultation.
During my clinical interview with Mr Fam, he was pleasant and cooperative in discussing his feelings of depression and his physical injuries which resulted from the work place accident in 2000 and 2004 at Australia Post. However I found that it was sometimes difficult to communicate with him because of his lack of English.
As a result of the above accident, he reported that he continues to have pains in his right wrist, hand and shoulder and his left lower back and feelings of numbness in his left leg. He also complains that he is unable to carry out his duties at work and home and has sleeping difficulty because of this pain. As a result, he often expresses his feelings of frustration and anger to his wife. He also reported that he had injured his lower back unintentionally 3 times during work from 2000 and 2005. He also stated that he experienced pain almost every day and without medication he rated his feelings of pain at about 8/10 and with medication it reduced to between 5 and 7/10.
Mr Fam reported that he had been working full-time as a truck driver at Australia Post for about 13 years. As a result of the above accident, he has been assigned to office-based duties and driving a car since 2003. However he reported that he experiences bullying at his work place. He stated that he has been asked to do much more than his work restrictions allow and his manager is not cooperative in processing his compensation, including paying his medical treatment bills. He believes that the above conditions are created deliberately by his manager in order to pressure him into resigning without asking for compensation.
Based on my clinical assessment, I found that Mr Fam’s feelings of depression have a significant relationship to his stress at work and his pain problems. His feelings of frustration and hopelessness that any future plans have changed because of the accident, his feelings of anger and being bullied at his work (especially by his manager), his inability to relax, and lack of social support, have contributed significantly to his stress and feelings of depression. In addition, prior to the accident, he reported that he never had significant symptoms of depression and anxiety.
…” (part of Exhibit R12)
The evidence of the lay witnesses
Rosemary Kendell
Ms Kendell’s Outline of Evidence (Exhibit R24) states as follows:
“1 I am an occupational therapist and my clinical area of expertise is hand therapy. I have been a qualified occupational therapist for 25 years.
2.I have worked as a rehabilitation case manager for Australia Post for various periods of time as required since 1993.
3I was involved with John Fam’s (John) rehabilitation as his rehabilitation case manager in 2000 and for several months in 2006. In 2000 John was employed at the Gwelup Delivery Centre, but in 2006 he was at the Transport Section.
4In 2000 when John was involved in rehabilitation at Gwelup, I found his manager Roy Barnard to be very helpful and absolutely genuine in his endeavours to rehabilitate John.
5I found that in 2006 John’s attitude had become different towards rehabilitation notwithstanding that he had suffered further injuries in this time.
6It was my general impression throughout the whole process of my involvement with John in 2006 that he was significantly magnifying his symptoms. Examples of this were:
(a)On 17 July 2006 at a review meeting I had with John he walked very slowly into the office by ‘shuffling along like an old man’. He said he was not well and that this was due to the recent injection he had in his back not working. During this meeting John’s mobile phone rang and he quickly twisted and reached across the front of his body with his right hand/arm to delve into his left side track suit pants pocket to retrieve the phone.
I considered that these movements were an unguarded and immediate response to the mobile phone ringing and in being so, indicated that John’s presentation was contrived. The smooth and immediate nature of the movements used to access the phone, suggested that he was not as limited in movement or as restricted by pain as he would have had me believe. John’s reaching for the phone was most inconsistent with his story of feeling ‘no good’ and with the physical movements he had demonstrated when entering the room earlier and ‘gingerly’ sitting down in a chair.
(b)There were a number of occasions when I went out to review John and to talk to other people at Transport. On these occasions I observed John in the normal work environment demonstrating no signs of walking with discomfort or apparent pain. In contrast, when he attended for reviews with me at some of these times he would shuffle along and present as if he was experiencing considerable discomfort.
7It is my view that John wasn’t motivated towards being successfully rehabilitated. I believe that he had considerably more ability to work than he indicated during the whole time I was his case manager in 2006.
8During my time at Australia Post I conducted numerous assessments for driving and I believe that John was capable of driving an automatic van or a station sedan. I have seen many people with hand/arm conditions who are able to undertake driving by using an adjusted steering wheel.
9I also found it difficult to accept that John had a lifting limit of only 2-2½ kilograms. He had a normal left arm and from my experience and knowledge, his bilateral lifting should not have been restricted to this extent by his general practitioner.
10I do not believe that John required active rehabilitation during the time I dealt with him in 2006 – he just needed to be reviewed (followed up) every so often to see how he was going. The duties that were suggested as being suitable for John to perform were never acceptable to his general practitioner and this made rehabilitation attempts very difficult.”
Mary (“Min”) Taylor
Ms Taylor’s Outline of Evidence (Exhibit R14) states as follows:
“ 1 I am an occupational therapist and have been qualified for around 30 years.
2I have worked as a rehabilitation case manager for Australia Post on a contract basis for the past 10 or 11 years. Over the last 2 to 3 years, my Australia Post employment has been mainly in a relief capacity.
3I was John Fam’s (John) rehabilitation case manager for around 12 months from October 2004 to October 2005. During this time he was located at Australia Post’s transport section.
4In June 2005 I was involved in attempts to successfully manage John into a job that had become available for him at the Gwelup Delivery Centre. As part of this attempt at redeploying John I consulted with Dr Roger Lai and Roy Barnard, Manager, Gwelup Delivery Centre.
5On 27 June 2005, I recall attending a worksite meeting at the Gwelup Delivery Centre with Dr Lai and Roy Barnard. The purpose of this meeting was for Dr Lai and me to discuss and assess the duties which Roy Barnard had arranged for John’s proposed redeployment to Gwelup.
6I recall that during or following the Gwelup meting on 27 June 2005 a return to work programme was drawn up for John in consultation with Dr Lai. At that time I don’t recall having any concerns about the duties John would have been expected to perform ,and I would not have drawn up a return to work programme if I did have any concerns.
7On 1 July 2005 I attended a meeting at the transport section at which John Fam, Brian Watkins, Bill McDonald, Roy Barnard and Jim Rolt were also present. It is my recollection that the purpose of this meeting was to meet with John and inform him of the outcomes of Dr Lai’s assessment of the duties of the Gwelup job, to discuss the return to work programme, and hopefully make the necessary arrangements for John to commence in that job. After Bill McDonald had explained to John the reason for the meeting, John handed over a piece of paper which read that he would now only discuss matters through his lawyer, ...
8I found Roy Barnard to be a most genuine person and that he was very sincere in trying to assist with John’s rehabilitation at Gwelup.”
Roy Barnard
Mr Barnard’s Outline of Evidence (Exhibit R25) states as follows:
“1 I am currently employed in the position of Hub Manager (Level DM4) at the Australia Post ‘Hub’ at Osborne Park. I have occupied this job since March 2008, and have been employed with Australia Post for 8 years.
2Prior to moving into the Hub Manager role at Osborne Park I was employed as the Delivery Manager (Level DM3) at the Gwelup Delivery Centre. My current job requires me to oversee two Osborne Park Delivery Centres and the Gwelup Delivery Centre, which incorporates a delivery area of approximately 150 square kilometres, over 80,000 delivery points and around 160 staff.
3I have known Mr Fam (John) for around 8 years. John worked for me at Gwelup Delivery Centre for 1 to 2 years before he moved across to the Transport Section in or around 2001.
4I clearly recall that in June 2005, I was involved in Australia Post’s efforts at redeploying John by creating a job for him working for me at Gwelup Delivery Centre.
5.The duties of the job which were primarily as a general assistant to me, were made up of:
(a)Administration duties (filing, outward mail) – for around 2 hours per day.
(b)Mail delivery (delivering mail items and posting bags to retail sites. This involved loading, unloading and driving a van).
(c)Streeting (or sequencing mail) ie mail sorting into boxes.
(d)Van driving duties (picking up PDOs (posties), and picking up mail items from customers).
6John had undertaken mail delivery, mail streeting duties and driving duties during the time that he had previously worked at Gwelup.
7Because some of the van driving duties required some heavy lifting and lifting above shoulder height, I was prepared to work on these with John and modify if required after he commenced in the job. I had already made arrangements with the Karrinyup Postal Manager to assist John with the unloading of private box mail, parcels and stock for the Karrinyup Post Shop.
8Prior to being offered the job at Gwelup, John initially appeared keen to move and he even came to talk to me about the job and said that he wanted to move back to Gwelup because he would be happy there. I had always got on well with John.
9If John had started in the job, I was prepared to allow him to ‘settle in’ to the job, and ensure that he showed a duty of care in relation to his physical capabilities and the return to work program. This would have included lifting mail items and mail bundles at weights that were suitable to him.
10I recall that some time in June 2005 a meeting was held at Gwelup at which I attended with Min Taylor (rehabilitation case manager) and Dr Roger Lai. At this meeting we discussed the duties that I had arranged for John to perform and whether they were suitable. I recall that following this meeting everything appeared to be okay for John to commence in the job.
11I next attended a meeting shortly afterwards at Transport Section where John Fam, Brian Watkins (union representative), Min Taylor, Jim Rolt, John Dixon and Bill McDonald were present. It was at this meeting that I recall John electing not to do the Gwelup job, and I also remember him handing over a piece of paper advising that all matters needed to go through his solicitor.
12I cannot recall that there was ever any indication shown by John that he couldn’t do the job, and I believe that he just decided that he didn’t want to do the job.
13I recall that Brian Watkins (union representative) was in favour of John doing the job.
14In the time since John declined to do the Gwelup job, a job has been created for another employee with restrictions and it is staffed by this person in a full-time capacity.
15If John had accepted the redeployment offer in June 2005, I see no reason why he would not have still been employed in the job today.”
In his oral evidence Mr Barnard confirmed that the respondent’s job offer to the applicant (as described in his Outline of Evidence) has always been “open”, and it presently remains “open”, to the applicant. He also confirmed that van driving is an essential duty in that job but he added that the daily duration of such van driving duties would be only approximately 1½ hours in the morning and approximately 1½ hours in the afternoon.
Analysis and Findings
The applicant’s claims in respect of a back condition (Application No W 200600243 and No 2007/4221)
Did the applicant suffer an “injury” to his back, for the purposes of the SRC Act, in March 2000 and/or December 2000?
As previously mentioned (see paragraphs 2 and 3 above), on 10 April 2000 the respondent accepted liability under the SRC Act to pay compensation to the applicant in respect of an injury described as “left lower back strain”, and on 9 January 2001 the respondent accepted liability under that Act to pay compensation to the applicant in respect of an injury described as “aggravation of a pre-existing condition, namely L4 disc protrusion”. In the Tribunal’s opinion the respondent’s abovementioned determinations of 10 April 2000 and 9 January 2001, whereby it accepted liability under the SRC Act to pay compensation to the applicant in respect of a lower back condition, were appropriate having regard to the information provided by the applicant and the medical evidence which was available at the relevant times.
The Tribunal, on the basis of the whole of the evidence before it, is satisfied, and finds, that:
·in an incident on 27 March 2000 the applicant, in the course of carrying out the duties of his employment by the respondent, suffered an aggravation of a pre-existing degenerative condition in his lumbar spine resulting in an “acute left sided L4/5 disc protrusion” (as described by Dr Home in his report of 21 December 2006);
·in an incident on 5 December 2000 the applicant, in the course of carrying out the duties of his employment by the respondent, suffered a further aggravation of his abovementioned lower back condition.
In making those findings the Tribunal accepts the evidence of Dr Low, who examined the applicant at the request of the respondent shortly after each of the abovementioned incidents (see paragraph 25 above), and the evidence of Dr Home as set out in his very comprehensive report of 21 December 2006 (see paragraph 22 above).
The respondent submits, relying on s 7(7) of the SRC Act, however, that, even if each of the abovementioned lower back ailments suffered by the applicant is a “disease” within the meaning of s 7(7), each such “disease” must not be taken to be an “injury” for the purposes of that Act because the applicant, in connection with his application to the respondent for employment in July 1993, made a wilful and false representation that he had not previously suffered from that disease.
In considering the validity of that submission the Tribunal has had particular regard to the personal health history questionnaire in the “Pre-Placement Medical Report” form signed by the applicant and dated 14 September 1993 (W 200600243 – T5, pp10-11) and the applicant’s oral evidence (see, in particular, paragraphs 11-13 above). The Tribunal is satisfied that some of the responses made by the applicant in that questionnaire were objectively false, including, most relevantly, his negative response to the question “Have you had any back/neck trouble of any kind?”. The question whether that response constituted a “wilful and false representation”, within the meaning of s 7(7) of the SRC Act, is more problematic.
In Comcare Australia v Porter (1996) 70 FCR 139 the Federal Court of Australia (Jenkinson J), in relation to s 7(7) of the SRC Act, said (at 149-150):
“… The verbal context supplied by the phrase ‘false representation’ exposes the legislature’s attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word ‘false’, and the representor’s knowledge of the falsity, commonly signified in civil proceedings by the word ‘fraudulent’. … The clause ‘if the employee has … made a … false representation’ may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of ‘wilful’ in that verbal context excites the expectation that what the whole clause in the section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s 7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease – a subject notoriously liable to human misapprehension – the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.” (citations omitted)
In Van Reesch v Health Insurance Commission [1996] FCA 1279 the Federal Court of Australia (Finn J), in the context of s 29(3) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the statutory predecessor of s 7(7) of the SRC Act), commented (at para 29):
“A finding that a person has been guilty, in effect, of fraud is not one lightly to be made.”
In the present case the applicant sought to explain his false negative response to the abovementioned question about “back/neck trouble” by reiterating that he was not experiencing any soreness in his back at that time (14 September 1993) although he acknowledged that he had consulted his general practitioner regarding, inter alia, back pain in June 1992, and March and June 1993. He also referred, by way of explanation, to his limited understanding of English.
The Tribunal notes that, in the relevant personal health history questionnaire form, the phraseology of the questions is not consistent. Whereas the relevant question about “back/neck trouble” is expressed as follows:
“Have you had any back/neck trouble of any kind?”
the word “ever” is added in a series of subsequent similar questions, such as:
“Have you ever had any ankle/knee trouble of any kind?”
“Have you ever had any wrist/elbow trouble of any kind?”
Although the abovementioned question about “back/neck trouble” is phrased in the perfect tense and relates to a prior time rather than the present time, a person with limited understanding of English may, in the Tribunal’s opinion, understand that question to relate to the present time, especially when it is contrasted with questions, such as those set out above, which include the word “ever” and which more obviously relate to a prior time.
Although the Tribunal accepts that the applicant’s understanding of English is by no means complete, it has serious reservations regarding his abovementioned explanation of his negative response to the question about “back/neck trouble” which necessarily implies that he understood that question to relate to the present time and not to a prior time. The Tribunal has similar reservations regarding his explanations of his false negative responses to other questions in the relevant personal health history questionnaire form (see paragraphs 11 and 13 above). Having regard, however, to all the circumstances – including the considerations referred to in the preceding paragraph – the Tribunal is not prepared to make the very serious finding that the abovementioned false negative responses made by the applicant to questions in the personal health history questionnaire form – in particular his false negative response to the question “Have you had any back/neck trouble of any kind?” – were made fraudulently by him.
Accordingly, the Tribunal is not satisfied that the applicant, in completing the personal health history questionnaire on 14 September 1993 for the purpose of his application to the respondent for employment, made a “wilful and false representation”, within the meaning of s 7(7) of the SRC Act. The Tribunal concludes, therefore, that s 7(7) of the SRC Act has no application in the circumstances of the present case.
It follows that the Tribunal finds that the applicant suffered an “injury”, for the purposes of the SRC Act, in respect of his lower back in an incident on 27 March 2000, namely, an aggravation of a pre-existing degenerative condition in his lumbar spine resulting in an acute left-sided L4/5 disc protrusion, and in an incident on 5 December 2000, namely, a further aggravation of his abovementioned lumbar spine condition. The respondent is therefore liable, under s 14(1) of the SRC Act, to pay compensation in accordance with that Act to the applicant in respect of each of those “injuries”.
What compensation is the respondent liable, in accordance with the SRC Act, to pay to the applicant in respect of each of his lower back injuries?
It follows from the Tribunal’s abovementioned finding that the applicant suffered an “injury” (for the purposes of the SRC Act) to his lower back in an incident on 27 March 2000 and in an incident on 5 December 2000 that the respondent has been liable at all material times, and is presently liable, to pay to the applicant compensation in respect of the cost of medical treatment, in accordance with s 16 of the SRC Act, in relation to each of those injuries, and the Tribunal so finds.
As regards compensation by way of incapacity payments pursuant to s 19 of the SRC Act, the Tribunal understands that the respondent made such payments to the applicant in the period from 27 March 2000 to 3 May 2006 on the basis that he was incapacitated for work as a result of either or both of his abovementioned lower back injuries in that period. The matter for the Tribunal’s determination is whether the respondent has continued to be liable to pay to the applicant compensation for incapacity resulting from either or both of those injuries from 4 May 2006 (being the date of cessation of payment of such compensation by the respondent pursuant to its determination of 16 May 2006 and its reviewable decision of 2 August 2006 which affirmed that determination (see W 200600243 – T89 and T97, respectively)).
The Tribunal finds, on the basis of the evidence before it (including, in particular, the applicant’s evidence and the evidence of Dr Low and Dr Home), that the applicant has, from 4 May 2006 to the present, continued to experience, and presently experiences, lower back pain as a result of his abovementioned lower back injuries and that those injuries have, from 4 May 2006 to the present, continued to result, and presently result, in “incapacity for work” (as defined in s 4(9)(b) of the SRC Act).
The critical matter for the Tribunal’s determination, for the purpose of working out the amount of compensation payable to the applicant in accordance with s 19 of the SRC Act, is the amount per week (if any) that the applicant has been from May 2006 to the present, and is presently, “able to earn in suitable employment”.
As regards what constitutes “suitable employment” (as defined in s 4(1) of the SRC Act) for the applicant in the period from 4 May 2006 to the present time, and as at the present time, the Tribunal finds, on the basis of the evidence of Dr Low and Dr Home, that “suitable employment” for the applicant in the abovementioned period has been, and is presently, employment by the respondent involving sedentary or semi-sedentary work tasks and subject to the work restrictions specified by Dr Low in his reports of 29 July 2007 and 11 May 2008 (see, respectively, paragraphs 27 and 25 above).
More specifically, however, the question arises whether work duties involving driving an Australia Post van fall within the concept of “suitable employment” for the applicant. As regards the relevant medical evidence, the Tribunal notes that:
· Mr Hardcastle, in his report of 13 April 2006, opined, having regard to the applicant’s right wrist and back conditions, that the applicant “has the physical capacity to drive a car, van or light truck”, and he adhered to that opinion in his report of 21 August 2008;
· Dr Home, in his report of 21 December 2006, opined, having regard to the applicant’s back condition, that the applicant “could feasibly drive an automatic vehicle through much of the working day, up to six hours per day, provided he has the opportunity to alight from the vehicle to stretch his back at 30 minute intervals”.
The Tribunal notes Dr Nguyen’s evidence that, in June 2005, he had “no problem” with the applicant driving a van but that, because the applicant had complained to him about his difficulty in changing gears and steering when driving a truck or a van, he had, from August 2005, certified that the applicant was not fit to drive a truck or a van. The Tribunal also notes that Dr Home recorded in his report of 21 December 2006 that the applicant had expressed to him the following reasons why he was unable to drive a van or truck:
· “difficulty with access and egress due to the high step”;
· “difficulty operating vehicles with manual transmission due to the effect of the clutch upon his back pain”; and
· “difficulty undertaking steering of a van or truck due to his right wrist discomfort”.
The Tribunal, however, heard evidence – in particular, from Ms Kendell and Mr Barnard – that the respondent’s vehicle fleet includes late model vans which are equipped with automatic transmission and power steering and which can be entered and exited from either side (the passenger side allowing access/egress at a significantly lower height than the driver side).
The Tribunal is satisfied, on the basis of the evidence before it, that none of the abovementioned reasons, expressed by the applicant to Dr Nguyen and Dr Home, for his alleged incapacity to drive an Australia Post van is necessarily valid. On the contrary, the Tribunal is satisfied that the applicant has, at all material times, had the physical capacity to drive an Australia Post van equipped with automatic transmission and power steering for up to 6 hours per day, provided that he has the opportunity to alight from the vehicle to stretch his back at 30-minute intervals (as stated by Dr Home), and that he presently retains that capacity. Accordingly, the Tribunal finds that work duties involving driving an Australia Post van (as described above) have at all material times fallen within, and presently fall within, the concept of “suitable employment” for the applicant.
In determining, for the purposes of s 19 of the SRC Act, the amount per week that the applicant has at all material times been, and is presently, “able to earn in suitable employment”, the Tribunal, pursuant to subs (4) of s 19, is required to have regard to the matters referred to in that subsection, including (relevantly):
“(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
…
(f)where paragraph (b) … applies to the employee – whether the employee’s failure to accept an offer of employment … was, in [the Tribunal’s] opinion, reasonable in all the circumstances; …”
In the present case the evidence before the Tribunal establishes to its satisfaction that:
· in July 2005 the applicant received an offer of employment as assistant to the Manager of the Gwelup Delivery Centre;
· the applicant’s solicitors, in accordance with his instructions, notified the respondent, by letter dated 1 August 2005, that the applicant was unable to perform one of the duties of the employment which had been offered to him, namely, “driving duties” (see paragraph 14).
In the Tribunal’s opinion, the applicant’s solicitors’ letter of 1 August 2005 did not constitute an acceptance, on behalf of the applicant, of the offer of employment by the respondent; instead, it constituted, in effect, a counter offer, on behalf of the applicant, to the respondent. That counter offer has, of course, never been accepted by the respondent.
The question then arises whether the employment offered to the applicant by the respondent in July 2005, which was not accepted by him or on his behalf, was “suitable employment” (as defined in s 4(1) of the SRC Act). The Tribunal has previously discussed what, in its opinion, constitutes “suitable employment” for the applicant (see paragraphs 54-56 above). The Tribunal, having considered the specified work duties of the employment offered by the respondent to the applicant (including the driving of an Australia Post van), is satisfied that that employment has at all material times constituted, and presently constitutes, “suitable employment” for the applicant.
Accordingly, the Tribunal finds, for the purposes of s 19(4)(b) of the SRC Act, that the applicant received an offer of suitable employment in July 2005 and that he failed to accept that offer. The Tribunal, furthermore, is not satisfied that the applicant had any good reason not to accept that offer of employment and, accordingly, in the Tribunal’s opinion, his failure to accept that offer was not reasonable in all the circumstances.
The Tribunal also notes Mr Barnard’s evidence that the abovementioned offer of employment to the applicant (as described in his Outline of Evidence set out in paragraph 38 above) has always been, and presently remains, “open” to acceptance by him.
Accordingly, the Tribunal finds, for the purposes of s 19 of the SRC Act, that the amount per week that the applicant has been from 4 May 2006 to the present, and is presently, “able to earn in suitable employment” is the amount per week that he would have earned from 4 May 2006 to the present, and would presently be earning, if he were engaged in the employment as assistant to the Manager of the Gwelup Delivery Centre which was offered to him by the respondent in July 2005. The Tribunal understands that that amount is equivalent to the amount of the applicant’s “normal weekly earnings” within the meaning, and for the purposes, of s 19 of the SRC Act.
The applicant’s claim in respect of a mental condition (Application No 2007/3150)
The relevant issues which arise for determination are as follows:
· whether the applicant is suffering from a mental ailment; and, if so
· whether that mental ailment was contributed to in a material degree by the applicant’s employment by the respondent; and, if so
· whether that mental ailment was suffered by the applicant as a result of failure by him “to obtain … a benefit in connection with his … employment” (within the meaning of the definition of “injury’ in s 4(1) of the SRC Act).
Is the applicant suffering from a mental ailment?
Both Dr Monick and Dr McCarthy have opined that the applicant is suffering from a psychiatric disorder, namely, adjustment disorder with mixed anxiety and depressed mood. Dr Monick further described the applicant’s psychiatric disorder as “mild” and Dr McCarthy further described it as “chronic”. On the basis of that evidence, the Tribunal finds that the applicant is suffering from a mental ailment, namely, chronic adjustment disorder with mixed anxiety and depressed mood (mild).
Was the applicant’s mental ailment contributed to in a material degree by his employment by the respondent?
The applicant’s evidence was that he became depressed because he was upset and worried about his future by reason of his incapacity as a result of his work-related back and wrist injuries. Dr Monick opined in her report of 12 September 2006 that the applicant’s psychiatric condition is “secondary to the pain” experienced by him by reason of his back and wrist injuries. Mr Janong opined in his report of 29 March 2006 that the applicant’s “feelings of depression have a significant relationship to his stress at work and his pain problems”, including pain in his left lower back and right wrist. Dr McCarthy opined that various life experiences of the applicant, together with other factors including his financial predicament, his employment and the back and right wrist pain he experiences, have contributed to his psychiatric condition.
On the basis of that evidence the Tribunal is satisfied that the ongoing back pain and right wrist pain which the applicant experiences as a result of his abovementioned work-related lower back and right wrist injuries have made, and continue to make, a significant contribution to his psychiatric disorder. Accordingly, the Tribunal finds that the applicant’s mental ailment, namely, chronic adjustment disorder with mixed anxiety and depressed mood (mild), was, and is, contributed to in a material degree by his employment by the respondent. That mental ailment is, therefore, a “disease” (as defined in s 4(1) of the SRC Act).
Was the applicant’s mental ailment (being a “disease”) suffered by him as a result of failure by him “to obtain … a benefit in connection with his … employment” (within the meaning of the definition of “injury” in s 4(1) of the SRC Act)?
The respondent submits that the applicant’s mental ailment arose by reason of his frustration with the workers’ compensation process and, in particular, the respondent’s determination of 16 May 2006 to cease payments of compensation in respect of his lower back injury. That cessation of compensation payments constituted, the respondent submits, a failure by the applicant to obtain a benefit in connection with his employment and, accordingly, his mental ailment is not an “injury” for the purposes of the SRC Act because it is caught by the exclusionary provision in the definition of “injury” in s 4(1) of that Act.
The Tribunal does not accept the respondent’s submission. According to the evidence before the Tribunal, the applicant first sought medical treatment for depression when he consulted his general practitioner, Dr Nguyen, on 28 February 2006, and Dr Nguyen then issued a workers’ compensation progress medical certificate in respect of “depression, right wrist reflex sympathetic dystrophy, lower back pain”, and referred him to Mr Janong, Psychologist, for “clinical assessment and management of his depression and stress at work” (see Exhibit R12). The Tribunal notes that the respondent’s determination ceasing payments of compensation to the applicant was not made until 16 May 2006 – that is, almost 3 months after the applicant first sought treatment for depression. Apart from the chronological difficulty this presents for the respondent’s submission, the Tribunal would add that, although compensation payments constitute a “benefit”, it is very doubtful whether a deprivation of existing compensation payments constitutes a failure to “obtain” a benefit, within the meaning of the relevant statutory exclusionary provision: see Comcare v Ross [1996] FCA 1669 at paras 29-30. In any event, the Tribunal is not satisfied that the workers’ compensation process in general, or the deprivation of the applicant’s compensation payments on 16 May 2006 in particular, played any part in his contracting a mental ailment for which he first sought medical treatment on 28 February 2006. The fact that the applicant did not claim compensation for that mental ailment until 17 May 2006 – that is, the day after the respondent’s determination to cease his compensation payments – is, in the Tribunal’s opinion, irrelevant to the matter of the causation of that mental ailment.
Accordingly, the Tribunal finds that the applicant’s mental ailment (being a “disease”), namely, chronic adjustment disorder with mixed anxiety and depressed mood (mild), was not suffered by him as a result of failure by him “to obtain … a benefit in connection with his … employment”, within the meaning of the definition of “injury” in s 4(1) of the SRC Act. Nor was it suggested that any other part of that exclusionary provision in the statutory definition of “injury” is applicable in this case.
The applicant’s mental ailment is an “injury” for the purposes of the SRC Act
The Tribunal concludes, therefore, that the applicant’s mental ailment (being a “disease”), namely, chronic adjustment disorder with mixed anxiety and depressed mood (mild), is an “injury” for the purposes of the SRC Act, and that the respondent is liable, under s 14(1) of that Act, to pay compensation, in accordance with that Act, to the applicant in respect of that injury. The Tribunal is unable, on the basis of the evidence before it, to make a finding regarding the precise date on which the applicant sustained that mental injury. That being the case, the Tribunal is prepared to accept, on the basis that the applicant first sought medical treatment for the relevant mental ailment on 28 February 2006, that he sustained that mental injury in or about February 2006, and the Tribunal so finds.
What compensation is the respondent liable, in accordance with the SRC Act, to pay to the applicant in respect of his mental injury?
The applicant has conceded that his mental injury has not resulted in incapacity for work for the purposes of the SRC Act and, accordingly, he has not sought compensation for incapacity pursuant to s 19 of the SRC Act in respect of that injury. Having regard to evidence of both Dr Monick and Dr McCarthy to the effect that the applicant’s psychiatric condition has not affected his capacity to undertake his existing work duties, the Tribunal regards that concession as appropriate. Accordingly, the Tribunal finds that the respondent has not been liable at any material time, and is presently not liable, to pay to the applicant, compensation for incapacity pursuant to 19 of the SRC Act in respect of his mental injury.
The respondent has, however, been liable at all material times, and is presently liable, to pay to the applicant compensation in respect of the cost of medical treatment, in accordance with s 16 of the SRC Act, in relation to his mental injury, and the Tribunal so finds.
Decision
For the above reasons the Tribunal:
Application No W 200600243 and No 2007/4221
· sets aside the reviewable decisions of the respondent dated 2 August 2006 (W 200600243) and 24 August 2007 (2007/4221) and, in substitution therefor, decides that for the period from 4 May 2006 to the present date, and as at the present date:
-the respondent continues to be liable under s 14(1) of the SRC Act to pay to the applicant compensation in respect of the cost of medical treatment, in accordance with s 16 of the SRC Act, in relation to his lower back injuries sustained on 27 March 2000 and 5 December 2000;
-the respondent is liable under s 14(1) of the SRC Act to pay to the applicant compensation for incapacity, in accordance with s 19 of the SRC Act, in respect of his lower back injuries sustained on 27 March 2000 and 5 December 2000, the amount of such compensation to be worked out on the basis that the amount per week that the applicant has at all material times been, and is presently, “able to earn in suitable employment”, for the purposes of s 19 of the SRC Act, is the amount per week that he would have earned from 4 May 2006 to the present, and would presently be earning, if he were engaged in the employment as assistant to the Manager of the Gwelup Delivery Centre which was offered to him by the respondent in July 2005;
Application No 2007/3150
· sets aside the reviewable decision of the respondent dated 29 June 2007 and, in substitution therefor, decides that:
-the respondent has at all material times been liable, and is presently liable, under s 14(1) of the SRC Act, to pay to the applicant compensation in respect of the cost of medical treatment, in accordance with s 16 of the SRC Act, in relation to his mental injury, namely, chronic adjustment disorder with mixed anxiety and depressed mood (mild), which he sustained in or about February 2006;
-the respondent has not been liable at any material time, and is presently not liable, to pay to the applicant compensation for incapacity, pursuant to s 19 of the SRC Act, in respect of that mental injury.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: sgd E Jordan .....................................................................................
Associate
Dates of Hearing 7 April 2008, 1-4 and 9 September 2008
Date of Decision 1 December 2008
Counsel for the Applicant Mr A Gill
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Ms P Giles
Solicitor for the Respondent Sparke Helmore
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