Garza and Australian Postal Corporation - [2002] AATA 905

DECISION AND REASONS FOR DECISION [2002] AATA 905

ADMINISTRATIVE APPEALS TRIBUNAL ) N2001/332

) Nos. N2001/1216

GENERAL ADMINISTRATIVE DIVISION          )                N2001/1949
           Re      Maribel Garza
  Applicant
           And    Australian Postal Corporation
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr J D Campbell, Member

Date9 October 2002
PlaceSydney

Decision The Tribunal decides pursuant to section 43 of the AdministrativeAppealsTribunalAct 1975, that:

In relation to matter numbers N2001/332 and N2001/1949, the decisions under review are set aside and in substitution therefor, the Tribunal determines that:

a)the Respondent is liable to pay the Applicant weekly payments of compensation pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 from and including 1 January 2001 and continuing in respect of her cervical spine and right upper limb injuries and any compensation relevant under section 20 of the Safety, Rehabilitation and Compensation Act 1988;
b)the Respondent is liable to pay the Applicant's reasonable medical expenses incurred from the treatment in relation to her workplace injuries pursuant to section 16 of the Safety,Rehabilitationand CompensationAct 1988 from 1 January 2001 and continuing.

The decision under review in relation to matter N2001/1216 in terms of permanent impairment as provided under section 24 of the Safety, Rehabilitation and Compensation Act 1988 is affirmed and the Applicant is also not entitled to non-economic loss compensation pursuant to section 27 of the Safety,Rehabilitation and CompensationAct 1988.
In relation to matters N2001/332 and N2001/1949 the Respondent is to pay the Applicant's legal costs as agreed or taxed in accordance with the Practice Direction of the President of the Tribunal.

..............................................
Ms S M Bullock
Presiding Member

CATCHWORDS
WORKERS COMPENSATION- Incapacity - Pre-existing Condition – Aggravation - Medical Treatment - Permanent Impairment

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19, 20, 24, 27.

AUTHORITIES
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Commonwealth Banking Corp v Percival (1988) 20 FCR 176
Canberra Abattoir Pty Ltd v Asioty, Federal Court, 26 April 1988, 831/1988
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Re McKinnon and Australian Postal Corporation (2001) AATA 297
Australian Postal Corporation v Bessey (2001) 32 AAR 508

REASONS FOR DECISION

9 October 2002 Ms S M Bullock, Senior Member Dr J D Campbell, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mrs Maribel Garza, in relation to three reviewable decisions made by the Respondent, the Australian Postal Corporation:
(i)8 February 2001 (N2001/332) which affirmed a determination dated 30 October 2000, denying liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 for compensation for injury to shoulder, neck, back, right thumb and arm;
(ii)8 February 2001 (N2001/1216) as varied by the determination of 26 July 2001, denying liability for permanent impairment and non-economic loss under section 24 and section 27 of the Safety, Rehabilitation and Compensation Act 1988; and
(iii)Section 62 determination under the Safety, Rehabilitation and Compensation Act 1988 dated 2 November 2001 (N2001/1949), which revoked the determination of 26 July 2001 and determined that:
(a)Compensation was payable under section 19 of the Safety, Rehabilitation and Compensation Act 1988 between 30 August 2000 and 31 December 2000 in respect of cervical spine and right limb injuries;
(b)Reasonable medical treatment expenses were payable pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 between 30 August 2000 and 31 December 2000;
(c)No liability for compensation for permanent impairment and non-economic loss was accepted pursuant to section 24 and section 27 of the Safety, Rehabilitation andCompensation Act 1988 ;
(d) Liability for Mrs Garza's injuries ceased on 1 January 2001.
A Hearing was held before the Tribunal in Sydney on 21 January 2002. The Applicant was represented by Mr R Harrington of Counsel and the Respondent was represented by Ms R Henderson of Counsel. The Applicant provided oral evidence to the Tribunal. Oral evidence was also provided by Dr R A Evans and Dr M Gliksman, Occupational Physician. Documents were taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents": N2001/332, T1-T27; N2001/1216, T1-T6; N2001/1949, T1-T11) in additional to the following exhibits:

EXHIBIT NO DESCRIPTION       DATE
A1      Clinical notes of Dr S Perla, General Practitioner         Various
A2      Clinical notes of Dr T Nguyen-Duc        Various
A3 (T6, N2001/1216)          Report of Dr R A Evans     20 June 2001
R1      Report of Dr M Gliksman, Occupation Physician          3 May 2001
R2      Report of Dr M Gliksman, Occupational Physician      30 May 2001
R3      Report of Dr M Gliksman, Occupational Physician      30 August 2001
R4      Photographs from Information Brochure published by Australia Post, "All in a Days Work" pp10-11.
R5      Video tape of the Applicant – 19 minutes duration.      18 September 2001 29 September 2001
R6      Radiological Report of Dr H Wong          21 March 2001
R7      Report of Dr D C Yee, Hand Surgeon     23 November 2000

LEGISLATION

The relevant legislation in this matter is the Safety,Rehabilitationand CompensationAct 1988 ("the Act").
Section 4 of the Act deals with definitions and as relevant states:
""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.
…
"medical treatment" means:
(a)    medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;
(b)     therapeutic treatment obtained at the direction of a legally qualified medical practitioner;
(c) dental treatment by, or under the supervision of, a legally qualified dentist;
(d)    therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be;
(e)     an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis;
(f)     the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance;
(g) treatment and maintenance as a patient at a hospital; or
(h)     nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise."
Section 14 of the Act deals with compensation for injuries and as relevant provides:
"Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…"
Section 16 of the Act deals with compensation for medical and other reasonable treatment expenses and states as relevant:
"Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…"
Section 19 of the Act deals with compensation for injuries resulting in incapacity and as relevant states:
"Compensation for injuries resulting in incapacity
19. (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 of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NEW - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
…"
Section 20 of the Act deals with compensation for injuries resulting in incapacity where the employee is in receipt of superannuation.
Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and as relevant states:
"Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
…"

10. Section 27 of the Act deals with compensation for non-economic loss and as relevant states:

"Compensation for non-economic loss
27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…"

ISSUES
11. The issue in this matter is whether or not Mrs Garza is entitled to compensation for her injury pursuant to sections 14, 16, 19, 20, 24, and 27 of the Act from 1 January 2001 and continuing.
EVIDENCE
Maribel Garza
12. The Applicant was born on 14 September 1953. She came to Australia from the Philippines in July 1987. Mrs Garza attended secondary school and then attained tertiary education achieving a degree of Bachelor of Commerce. Mrs Garza completed her formal education when she was approximately 21 years old. Following completion of her education, Mrs Garza worked in a bank and later in her sister-in-law's company undertaking accounting/book work until she came to Australia. Mrs Garza is married to an engineer and Mr and Mrs Garza have three children aged at the time of Hearing, 23 years, 22 years and 16 years.
13. The Applicant told the Tribunal that she is five foot five inches tall and weighs 55 kilograms.
14. In Australia, Mrs Garza has worked variously undertaking clerical and process type work. Mrs Garza told the Tribunal that she is quite proficient in both spoken and written English and is improving all the time. Prior to working with Australia Post, Mrs Garza hurt her back lifting some objects in 1995. She stated that at that time she had one week off work and received physiotherapy treatment for two weeks after which her back was fine. The backache Mrs Garza experienced during 1995 occurred from the middle of her upper back to her neck. It also occurred in between her shoulder blades. Mrs Garza told the Tribunal that she had no accidents as a child.
15. Having commenced work at Australia Post's St. Leonards Depot in 1996, Mrs Garza was transferred to the Clyde facility after about eight or nine months. Mrs Garza was a mail sorter at both St. Leonards and the Clyde facilities working approximately 7.21 hours per day, five days per week.
16. Mrs Garza next undertook work which variously included coding or data entry on the keyboard, using her right hand as she is right hand dominant. This work was undertaken sitting down. Later Mrs Garza would direct the mail into postal bags, occasionally she would have to get up and down to do this. She also was required to place mail onto a conveyor belt and to do this she would turn from the right side and estimated that she would do this very frequently in a 30 minute work session. Mrs Garza stated that she would undertake this work for two or three hours at a time and found it was very tiring for her right arm.
17. Mrs Garza also undertook mail opening duties which involved cutting the string at the top of a mail bag and then sorting the letters. The mail bag had to be hung on a hook once it was open. This work was "non-stop" and she was dealing with a range of articles including letters and magazines. Further duties involved culling which required her to put the mail articles down various shoots. The weight of the articles varied Mrs Garza stated. If the article was heavy, the instruction was that the mail officer had to put it in a bin and then push it to the shoot, lifting it then into the shoot. Sometimes the articles were too heavy and when she checked the weight and found that this was so, she would obtain assistance from a colleague. All of the work described by Mrs Garza had to be undertaken very quickly, she stated.
18. Distinct from the duties detailed above, was the task of parcel opening. Sometimes Mrs Garza would have to unload mail bags to get at the parcels. She would often use two hands in this process as the articles were heavy. Mrs Garza estimated that she would undertake parcel opening duties for approximately two hours each day. She described this work as being hard. Her shift was usually from 2pm but if she was on the early shift, she would work longer at this task. The culling of parcels involved sending the items down the "Free Shoot" into the "ULD" bin. Sometimes she would have to lift parcels into the bin. This could involve lifting items which weighed between 20-25 kilograms. Mrs Garza explained that sometimes she would call for assistance. If the weight of the item was displayed on the article then it would be clear from the outset whether or not she needed assistance. Often there was no display of the article's weight and it had to be tested before determining whether or not the article was above the weight limit for a single person.
19. A third type of work involved working at the Receiving Dock. Mail would arrive at this location in containers or would come in what Mrs Garza described as an "Igloo" which Mrs Garza explained was a "small shed on the loading dock". Mrs Garza's duties were to lift mail from the container or the Igloo and put it on the receiving dock and onto a conveyor belt. The mail could be large or small, but the mailbags in the container were mostly large and could be as large as one metre wide. Mrs Garza later explained that the container in fact could be an Australia Post long truck and that mail officers would walk into this truck to obtain the mail and carry on with their duties. Mrs Garza stated that it could take an entire day to unload a container. A large container could contain up to 300 mailbags and would require two people to empty it. The mailbags could each weigh between 30 or 40 kilograms. People working at the receiving dock always worked as a team, Mrs Garza informed the Tribunal. If working in the Igloo, the postal officer had to walk into it and may have to lift individual items weighing between 16 or 20 kilograms. While one person was working in the Igloo, the other person would be putting the articles onto the conveyor belt to be distributed to various parts of the facility. From the Igloos, the mail would be taken to the sorting depot where the work required lifting of the mailbag off the conveyor belt and lifting it up onto the hooks. The Applicant told the Tribunal that she also undertook some parcel sorting and "bagging". This could be heavy work and was very busy.
20. During the working days there were two 12 minute tea breaks and a 35 minute meal break.
21. Having described the variety of her duties, Mrs Garza noted that leading up to August or September 2000, she was working in the receiving dock for approximately three weeks. She estimated that she could have worked there six or six and a half hours per day, but during this period she may also have worked on the counter. Normally Mrs Garza's shift was from 10.39am for seven hours and 21 minutes. At about 6pm, she would move to sorting duties. The shift finished at approximately 6.25pm. If Mrs Garza finished early in the receiving dock, then she would undertake the sorting duties, but she emphasised that her work during that three week period was mostly in the receiving dock.
22. Mrs Garza stated that during the middle of 2000, some parcels were lifted, but mostly they were put into the free shoot. Mrs Garza further explained that prior to her working three weeks in the receiving dock, she had worked there on occasions, estimating that perhaps she worked there each month but could not recall the frequency during those months. Mrs Garza did recall that prior to August/September 2000, she may have worked in the receiving dock for three days. Mrs Garza noted that from Exhibit R4, which contained photographs from the Information Brochure, "All in a Days Work", that the ULD and the conveyor belt depicted were similar to those she used during the period of work under review. Mrs Garza did think however, that she worked with a conveyor belt which was at a higher height. Mrs Garza stated that she was not only lifting articles onto the conveyor belt, which was about knee height but also lifting goods from out of the container or Igloo. These lifting activities varied depending where the article was, that is whether it was at the top or the bottom of the container.
23. During the three weeks that Mrs Garza was in the receiving dock, after about 3.45pm each day, she would experience pain in her back, right shoulder, right arm and right hand, particularly when lifting parcels when working in the container. Mrs Garza stated that she continued to do the work, even though the pain was getting worse. By the end of the third week, she had consistent pain in her right shoulder, back, right arm and in the right side of her neck, and the pain continued from the upper right arm to the elbow into the wrist and into her right thumb. Mrs Garza stated that she reported the symptoms and filled a "B400 Form-Injury Report". Mrs Garza consulted Dr T Nguyen-Duc, a General Practitioner at Carlingford. Mrs Garza stated that Dr D Teo, is at the same medical practice as Dr Nguyen-Tuc, and Dr Teo is in fact her main treating doctor. Mrs Garza told the Tribunal that she then had a day off work. Since that time, she stated that she has taken approximately 20 days off work. Dr Teo prescribed "Vioxx", which is a nonsteroidal anti-inflammatory medication and "Endep", an antidepressant. Mrs Garza stated that Dr Teo first examined her for her right shoulder and arm. Dr Teo also suggested acupuncture.

24. On 8 September 2000, Mrs Garza consulted both Dr S Perla, a General Practitioner retained by Australia Post for its employees and also the General Practitioner at Dr Teo's practice, Dr Nguyen-Duc. Mrs Garza stated that she continued to see both doctors. Mrs Garza could not recall if she obtained a medical certificate from Dr Nguyen-Duc. Mrs Garza stated that she did provide Australia Post with all of Dr Perla's assessments. Mrs Garza stated that prior to 10 September 2000, if she was ill, she would consult Dr Teo. When she consulted Dr Nguyen-Duc, she told her about her shoulder, right arm and back problems. Following the initial consultation, Mrs Garza had ten physiotherapy sessions and then later went to another physiotherapist. Mrs Garza stated that she still has physiotherapy treatment from time to time which she takes in blocks and then has a break. Mrs Garza did not consider that the acupuncture treatment was particularly helpful for her problems. Currently, Mrs Garza takes "Panadeine Forte" and/or "Nurofen".
25. When Mrs Garza goes on holidays and is rested, she feels much better and although the pain in her back, neck, right arm and down into her right thumb is considerably less, it does not go away completely. Mrs Garza has been undertaking light duties at work and has found that her pain and conditions are much better. Such work involves sorting small and large letters and small parcels. While work can still on occasions be "a bit hard" because she is "sitting down too much", she wants to continue working. Mrs Garza told the Tribunal that she prefers to be able to work on light duties. Initially when Mrs Garza reported her symptoms, she was told that she had to leave work. Subsequently this decision was reversed. Mrs Garza has trialed undertaking her former duties but has been unable to continue because the pain returns.
26. In relation to her right thumb pain, Mrs Garza recalled that she consulted Dr D Yee, Hand Surgeon, and told the doctor about the pain in her right thumb. This was when she was still working in the receiving dock. Mrs Garza did not remember if she told Dr Nguyen-Duc or Dr Perla about her right thumb pain. She did tell Dr Yee about her back and neck problems but he concentrated on her right thumb. Dr Yee gave no medication and Mrs Garza has not seen Dr Yee again. Mrs Garza believes that Dr Yee had her right hand x-rayed and later on ordered x-rays for her neck and upper back.
27. Mrs Garza also recalled for the Tribunal that on 7 August 2000, she moved from her house into another larger home to be closer to Mr Garza's and her work locations. She took a day off work for this purpose. There were five people's things to be moved from her house. Mrs Garza stated that she did not help with the packing or unpacking. She had to be present however, to supervise the removalists. Mrs Garza said that she did not have to pack the clothes as the children did this and they also helped unpack. She recalled that she unpacked some small boxes containing glass ornaments. Her sister assisted her during this moving process.
28. In the first home, Mrs Garza would sweep the kitchen often and would cook. Her children vacuumed and cleaned the bathrooms and car. Mrs Garza did the dusting and folding of clothes. Mrs Garza noted that she had tried to vacuum in July when she was on holiday. She further noted that in 1987/1988, she lived with her sister and would dust. Her husband at that time also vacuumed her sister's home.
29. Currently, Mrs Garza's right arm, shoulder and elbow are still painful and her ability to use her right arm has been effected, she told the Tribunal. She continues to be unable to undertake any heavy lifting. Mrs Garza now does not have much difficulty dressing. However this was previously a problem. Mrs Garza stated that she can do up and undo buttons. She does not undertake any sport or any housework. Mrs Garza had explained this to Dr Evans during her examination, she stated.
30. Mrs Garza denied previously having any problems with her body. In August 2000, when the problem with her back, right arm, neck and shoulder arose, Mrs Garza's husband did the vacuuming, but he had always undertaken those duties, she advised. Before August/September 2000, Mrs Garza would hang out the washing with the children. Since her injury, she stated that the children mostly hang out the washing and bring it in.
31. Mrs Garza cooks for five people, but does not cook a hot meal everyday. She prepares soups, meat and vegetables in her small kitchen. Mrs Garza stated that she is unable to lift up saucepans and if cooking in the oven, she leaves the container in the oven for someone else to lift out. However, Mrs Garza is able to drive, although previously she had difficulty turning her head because of the problems with the right side of her neck. This problem does not happen so much now Mrs Garza informed the Tribunal.
32. Mrs Garza reiterated that she had told the truth to Dr Evans and Dr Gliksman. She did not recall telling Dr Gliksman that she had symptoms if she scrubbed or vacuumed. Mrs Garza stated that she did scrub and vacuum once, and did this with her sister, once or twice. She also stated that before August 2000, she may have done such domestic chores as scrubbing a toilet, but she now gives her children such duties. There are always things at home that her husband and children have to do because she is unable physically to undertake many household duties.
33. Mrs Garza described the pain in her right shoulder making her feel as if she needs to have a massage. She becomes very stiff and the pain is always there, but not as bad as previously. It is like muscle pain she stated, not like the pain from a toothache. Sometimes Mrs Garza experiences pain more from the upper neck to the shoulder then going down her right arm. She feels the pain everyday, even if she does not undertake any work.
34. Mrs Garza identified herself in the video evidence stating that she was attending an auction for the sale of a house. She was standing and at times interacting with a small child being held by another woman. Mrs Garza also identified herself in the video as opening a car door and driving off in the vehicle. She is also shown reverse parking a car and walking.

Dr R A Evans, Physician
35. Dr Evans examined Mrs Garza on 20 June 2001 and prepared a report of that date (T3, N2001/1216). Mr Harrington asked Dr Evans to assume certain facts as detailed in Mrs Garza's evidence to the Tribunal. This included evidence that from 1996 through to August 2000, the work Mrs Garza performed at Australia Post was repetitive, and required the use of both upper limbs. The work was reasonably heavy, given that Mrs Garza weighed only 55 kilograms and was five feet five inches tall. Mr Harrington noted for Dr Evans that Mrs Garza was required to unload trailers and a shed [Igloo] of bags containing various types of mail, these bags weighing up to 40 kilograms. It was further noted by Mr Harrington that Mrs Garza's evidence was that on some occasions she had assistance with two people lifting mail bags which were 40 kilograms or more. Furthermore, Mr Harrington asked Dr Evans to assume that Mrs Garza had to handle articles of mail and parcels of various weights, again weighing up to 40 kilograms, which had to be tested from time to time, in order for her to assess whether or not assistance was required in lifting such articles.
36. Mr Harrington noted that in a three week period in August/September 2000, Mrs Garza was almost entirely full-time lifting bags or handling bags of mail and parcels at the receiving dock, taking the contents from containers and putting them on a conveyor belt. Mr Harrington noted Mrs Garza's evidence that if another person was assisting, Mrs Garza and the other officer would drag bags of parcels and other mail and take them out of the container, truck or Igloo and put them onto a conveyor belt which was located at about knee height. Depending on where the bags were in the container, truck or Igloo, Mrs Garza could be pulling them from the top or from the bottom of the container or shed. Undertaking this work, Mr Harrington noted Mrs Garza's evidence that she experienced pain in the right side of her neck, the right shoulder, right arms and down into her right thumb. Mr Harrington further noted that Mrs Garza sought medical treatment in September 2000 and has continued with such treatment, including physiotherapy up to the present time.
37. Dr Evans noted that of the history Mr Harrington had asked him to assume, he had only previously obtained a history of rapid repetitive sorting of parcels. He had not qualified with Mrs Garza what this had actually meant. Dr Evans noted that he had not obtained a history of three weeks of heavy work in the receiving dock, thinking that she was standing and moving the parcels. He thought there was some lifting that was heavy, as well as a fair amount of repetitive movement with light packages.
38. Dr Evans stated that given the scenario provided by Mr Harrington from Mrs Garza's evidence, the type of work described would aggravate degenerative changes already present in Mrs Garza and as shown in X-rays at the C6/7 level. This aggravation would render the areas described as symptomatic and probably worsen the symptoms. However, Dr Evans explained that it was impossible for him to estimate when the aggravation commenced. He considered that the degenerative changes present in Mrs Garza were constitutional and that they could have been aggravated at any time when the pain started. He believed that there could have been aggravation of the degenerative changes before the onset of the actual symptoms. (Transcript, p4)
39. Dr Evans noted that if a disc becomes degenerate and collapses slightly, then the joints around it will also become degenerate and pain can arise from the disc and from the joints. Therefore, the whole segment and not just the disc becomes degenerate. The work described by Mrs Garza in the receiving dock would act on Mrs Garza's already existing pathology and increase it. The deterioration of the annulus of the disc and the alteration and stress on facet joints could be described as a disease process. It could be argued, Dr Evans opined, that Mrs Garza has a degenerative process or a disease process because the symptoms are causing pain. Dr Evans concluded that Mrs Garza has a disease process aggravated by the work that she was doing (Transcript, p4).
40. Dr Evans opined that there could be irritation of the C7 nerve root and that would normally cause the right middle finger and the fingers either side to be symptomatic. Mrs Garza's symptoms were more in the thumb which indicates possible problems in C6. It is very difficult, Dr Evans opined, to tell which finger is affected by a particular nerve root. Mrs Garza's symptoms of pain all the way down the right mid-forearm could be as a result of referred pain or nerve root irritation. Furthermore, Dr Evans opined that one could reasonably argue that there has been mild rotator cuff damage to the right shoulder and irritation there, noting it is painful when Mrs Garza lifts her right arm. Dr Evans noted that Mrs Garza also experiences pain in her right elbow. There is no absolute proof of rotator cuff damage because sometimes people with painful necks also have pain if they lift their arms.
41. On examination of Mrs Garza, Dr Evans noted that there was tenderness over the extensor muscle to the forearm next to the lateral epicondyle. There is reasonable evidence, Dr Evans opined, of mild lateral epicondylitis and there is certainly reasonable provocation from her work duties. Dr Evans stated however, that it is impossible to state with confidence that there was epicondylitis, but it could be reasonably argued that it was present. On the balance of probabilities, Dr Evans opined that Mrs Garza has aggravated degenerative changes in her neck and there is also mild to moderate damage to her right shoulder, right elbow and upper forearm region. There was not tenderness over the lateral epicondyle, but the muscles below that were tender. This is often the case with lateral epicondylitis, Dr Evans noted. Furthermore, Mrs Garza did not have the usual positive provocative test result for epicondylitis but again, this can occur with a person who has proven epicondylitis. Elbow pain can be aggravated by gripping or twisting with the right hand. Dr Evans had reported this in his report of 20 June 2001.
42. While Mrs Garza's English was not "bad", it was not "great", Dr Evans commented, and in his questioning of her during the examination, he did not go beyond discussing with her "gripping" or "twisting". Dr Evans informed the Tribunal that he usually asks patients whether they have difficulties undoing a lid of a jar or bottle or "working a stiff door handle". Specifically in relation to Mrs Garza, he could not recall whether he specifically mentioned those examples to her. Dr Evans stated that he believed that Mrs Garza was being honest in her statements to him. He opined that if she was going to "cheat", she would actually have said in the examination that various parts of her body hurt. There were many occasions, Dr Evans stated, during the examination where, if Mrs Garza had the intention of misleading him, she would not have reported the lack of symptoms or the intensity of pain that she did. Dr Evans considered that Mrs Garza was entirely credible.
43. While Dr Evans acknowledged that the C6/7 changes, which have been observed on x-ray, could in another patient be asymptomatic, he concluded that on the balance of probabilities, if Mrs Garza has pain in the neck and degeneration at that level, it is more likely than not that the changes have been aggravated by her work. Dr Evans noted that Mrs Garza had a full range of neck movement but reiterated that this pointed to her honesty. Dr Evans explained that a great many people indicate having no neck movement but he does not believe them. With an honest person showing a mild to moderately troublesome disc lesion, such a person would have the range of movement as demonstrated by Mrs Garza. There is not a great deal more impairment of movement than that experienced in a normal person unless the condition is very bad, Dr Evans stated.
44. Furthermore, in relation to Mrs Garza suffering from a right rotator-cuff problem, Dr Evans noted that Mrs Garza complained of pain and that she experienced pain when she elevated her right arm at the shoulder. She did demonstrate impairment of shoulder movement particularly of rotation and this often goes with rotator-cuff problems. Dr Evans thought that the involvement of Mrs Garza's work provided a reasonable explanation for her symptoms. Dr Evans opined that the pathology developed in Mrs Garza's right shoulder and elbow because of the elevation of the arms, particularly against resistance. Such activity puts strain on the rotator-cuffs of the shoulders and can then cause pain in the shoulders. Clenching of the hand and twisting with the right hand puts a strain on the extensor muscle attachments on the elbow and hence can lead to damage which can lead to the classic tennis elbow. X-rays do not show rotator-cuff pathology or epicondylitis. Dr Evans noted that in Mrs Garza's case, because the shoulder problem is so mild and Mrs Garza's movements were only minimally reduced, that such damage may not even be detected on ultra sound examination. An MRI scan could well show an area of degeneration in the supinator tendon.
45. Dr Evans noted that Mrs Garza was right hand dominant and that the right upper arm was point six centimetres less than the corresponding part of her left upper arm. Usually, Dr Evans explained, the dominant arm would be one centimetre bigger than the non-dominant arm. While this showed minimal wasting, he commented that the differences were so small as to not allow much to be made of such a finding on examination. He noted that there was never any suggestion of serious impairment with Mrs Garza's conditions.
46. Dr Evans opined that the fact that Mrs Garza had been undertaking light duties since September 2001, with lifting restrictions to 10 kilograms with the resultant improvement of her condition, was consistent with his opinion about the aggravation of her condition being caused by her work. Dr Evans commented that the video of Mrs Garza standing at an auction, touching her face and later, driving a car, did not change his opinion that her work caused aggravation to her neck, shoulder, back and arm problems. He opined that standing at an auction or driving a car would be less stressful than undertaking her work. When Dr Evans last examined Mrs Garza, he considered she was fit for light duties but certainly not full duties. It was furthermore reasonable for her to have physiotherapy from time to time. If acupuncture helped, then in his view it could be utilised.
47. In relation to whether Mrs Garza has arthritis, Dr Evans opined that she has an arthritic condition in the neck because, as well as disc damage, there are some osteophytes and damage to the little joints at C6/7. In the shoulder, it was more of an irritation probably of the supraspinatus tendon and accordingly Dr Evans did not think best described as arthritis. In relation to the elbow, he reiterated that there was inflammation of the attachment of the extensor muscles to the bone and again this was not really an arthritic condition rather, it is a muscular ligamentous disorder.
48. Dr Evans stated that the simultaneous development of problems in a number of areas of Mrs Garza's body is the type of pattern that would not be surprising in a little woman doing heavy work using her dominant right arm. He used the example of seeing a person who has had a single fall and will have pain from head to toe. But in Mrs Garza's case, he did not at all think that the combination of the problems was unreasonable. Dr Evans contended that in relation to Mrs Garza's neck it is stiff and there is clear degeneration with tenderness. The fact that she has pain in elevating her shoulder and impairment of shoulder movements fits with a rotator-cuff problem. She was not all that tender which could go against a finding of rotator-cuff. However, putting all of the evidence together, Dr Evans still considered it was a reasonable proposition that Mrs Garza had rotator-cuff problems. What she has, Dr Evans concluded, is over use problems with the right upper limb. All of these problems often go together in varying degrees. In relation to the elbow, Dr Evans stated that he could not be certain because the elbow was tender slightly below the epiconda but again, he stated that this is often the case in epicondylitis. The fact that the provocative tests were negative made diagnosis a little less certain.
49. Dr Evans could understand their being some unhappiness about his seemingly vague diagnosis but he stated that it was impossible to be absolutely dogmatic. On the balance of probabilities however, he concluded that Mrs Garza has definitely got problems in her neck. She has also probably got mild rotator-cuff damage to the shoulder and mild lateral epicondylitis. In relation to her hand, he did not know whether there was carpal tunnel syndrome present or not. In relation to her grasping, holding and general dexterity, Dr Evans stated that he did not undertake any specific tests to exhibit such difficulties.
50. Dealing with assessment, Dr Evans stated that he had some difficulty with the Comcare Tables. He felt obliged at the time of his examination to assess Mrs Garza at 20 per cent using Table 9.4. If there was evidence of improvement, then the situation had changed. Certainly if Mrs Garza's evidence was that she did not have difficulties with grasping and holding, then Dr Evans would not be able to justify an assessment of 20 per cent, he stated. She would need to have symptoms to justify such a rating.

51. Dr Evans did not agree with Dr Gliksman's opinion that Dr Evans had no objective findings to support his conclusions. Dr Evans noted that there were x-rays which indicated degeneration. In relation to his reference to swelling and wasting, he had made findings about this. He had mentioned minimal wasting of her right upper arm. Dr Evans disagreed with Dr Gliksman's further opinion that he was just putting forward a restatement of what Mrs Garza told him.

Dr M D Gliksman, Occupational Physician
52. Dr Gliksman examined Mrs Garza on 3 May 2001. He provided a report dated 3 May 2001 (Exhibit R1) and two subsequent reports dated 30 May 2001 (Exhibit R2) and 30 August 2001 (Exhibit R3).
53. Referring to his examination of Mrs Garza, Dr Gliksman noted that there was a half centimetre greater degree of circumference in the right biceps as compared with the left, and the forearm measurements of both left and right limbs were equal.
54. Dr Gliksman agreed that the x-rays of C6/7 showed the narrowing of the disc space and this indicated some changes in the disc. Furthermore, there was an indication that there was some impingement at C6/7 and this had the potential to cause nerve root irritation. The x-ray report did not comment on the facet joints and this did not allow Dr Gliksman to opine whether these had changed and he could not with any certainty make any comment.
55. Dr Gliksman noted that there is a strong debate in medicine about the causal connection between whether with use, the hard outer core of the disc, the annulus, can be stretched without prolapse. Some opinion is that changes to the disc occur as part of the ageing process and dehydration of the connective tissue. Dr Gliksman agreed that trauma could cause tearing. Furthermore, Dr Gliksman agreed that the work that Mrs Garza was carrying out, acting on her pre-existing degenerative condition, produced symptoms. Dr Gliksman noted that there certainly could be irritation but irritation to nerve root or to nerves or structures can occur without change in the underlying pathology. Dr Gliksman agreed that from the x-rays, there is impingement at the exit foramina. Dr Gliksman stated that he had no evidence of the nerve being impinged only of it being irritated.
56. While Dr Gliksman acknowledged that Mrs Garza's work caused symptoms, it was his opinion that this did not cause a change in pathology. The mechanism by which this would be caused is that there is, as a result of degenerative change, less freedom of movement allowed for various structures before irritation or inflammation occurs. The pre-existing condition and the lack of space then more easily could create irritation, Dr Gliksman opined. He had no evidence of there being swelling of the nerve in Mrs Garza's case.
57. In relation to Mrs Garza's neck structure, with the repetitive work she was carrying out, Dr Glliksman opined that the pre-existing osteophytes and damage to the disc created a vulnerability in Mrs Garza who was carrying out that sort of work. He noted however, that narrowing of the disc, especially if minimal, will not cause any symptoms. This is particularly so if there is no potrusion. As all of us age, Dr Gliksman noted, there is dehydration and in terms of Mrs Garza's pathology, he thought that the osteophytic encroachment would cause vulnerability given the type of work she was undertaking.
58. Dr Gliksman further opined that once a nerve is irritated and symptoms are set up, then they can continue for long periods of time. Dr Gliksman did not agree however, that even if Mrs Garza's evidence was accepted as to the continuity of symptoms, that it could be concluded that it was the effects of the work as carried out in August/September 2000 which caused the symptoms. The reason why this is incorrect, Dr Gliksman explained, is that unless there has been further deterioration in the underlying degenerative changes, if the work activities have been responsible for symptomisation, once the repetitive activities ceased, the body's healing mechanism would gradually remove the symptoms and the underlying inflammation. If that did not happen, then it could be concluded that there had been progress in the disorder or a conclusion could be made that the work-related activities caused the problem.
59. Dr Gliksman opined that if it was accepted that there was an aggravation in August/September 2000 and the symptoms have continued, albeit with some improvement, up to the present time, then it is quite possible that the aggravation has continued up to the present time. Dr Gliksman agreed that the assessment of the cessation of liability after four months from the onset of Mrs Garza's symptoms in August 2000 was an arbitrary period. He considered that four months was probably picked because it was at the outer limit of what one would consider to be a reasonable time for the work-related symptomatology to subside. That assumed that the irritation caused as a result of the aggravation did not cause some permanent damage to the nerve. Dr Gliksman stated that there had been no objective evidence of permanent damage to the nerve and no electromyographical studies had been undertaken.
60. Dr Gliksman agreed that in a slight woman weighing 55 kilograms, the work she had carried out from 1996 for Australia Post to the present time was fairly repetitive and heavy for a woman of her build. Considering Mrs Garza's duties of dragging and pulling bags weighing up to 20 kilograms or up to 40 kilograms with the assistance of another officer, handling parcels and letters of various weight, Dr Gliksman was not able to conclude that such work on a repetitive basis would have been so selective as to produce an effect at the C6/7 level. Certainly, he agreed that the work was less than ideal and should not be carried out, but Dr Gliksman could not perceive how these duties would be responsible for the specific pathology complained of by Mrs Garza.
61. In relation to the possibility of Mrs Garza having mild rotator-cuff damage, on Dr Gliksman's clinical examination, he found no evidence. He later stated that even with mild rotator-cuff difficulties, he would have thought that he would have been able to diagnose this condition. Later in evidence, Dr Gliksman stated that the symptoms Mrs Garza complained of, notably pains in the back of the shoulder and into the right arm made it possible that a differential diagnosis of that pain could be a rotator-cuff injury. The only way to exclude it would be to carry out an ultrasound and yet this would be by no means definitive.
62. In relation to the possibility of Mrs Garza suffering from a mild degree of epicondylitis, Dr Gliksman opined that if epicondylitis was present, sufficient to cause symptoms, then he would have expected the pressure over the epicondyla regions or the tendons would produce tenderness. Dr Gliksman agreed that on examination, Mrs Garza did complain of pain radiating intermittently into the right upper limb, but he stated that overall, the clinical examination did not suggest epicondylitis.
63. Dr Gliksman opined that the whole problem with Mrs Garza was tied to her neck because it provided the only patho-physiological basis that explained some of her symptoms. Dr Gliksman noted that in his report of 3 May 2001 (Exhibit R1), he had reported that Mrs Garza had informed him that she had several months of gradual and mild onset of symptoms. He agreed that his notes indicated that Mrs Garza had a history of complaining of increasing symptomatology while she was undertaking her work. Then after a period of a particular activity she reported a greater increase in symptomatology. Dr Gliksman related Mrs Garza's first symptoms to the nature and conditions of her work situation. Looking then at the x-rays, there is osteophyte formation, which would have taken longer than a week to develop. Dr Gliksman agreed that with the progress of natural degeneration upon which was imposed the performance of duties as described for three or four years that this work would have contributed to her pathology. Dr Gliksman also agreed that it would be unwise to place Mrs Garza back into her full-time work situation. Leaving aside the question of causation, Dr Gliksman opined that even if Mrs Garza's neck symptoms had resolved fully she would still have a permanent risk of re-injury which was why he would not promote her being placed back into the same work situation.
Dr H Wong, Radiologist
64. Dr Wong provided a report dated 21 March 2001 concerning x-ray of Mrs Garza's cervical spine and right shoulder (Exhibit R6).
65. In relation to the cervical spine, Dr Wong noted a clinical history of pain in the region of the right trapezium and shoulder for six months. Minimal narrowing of the C6/7 disc space was noted, associated with mild osteophytic changes. There was slight encroachment on exit neuroforamen at C6/7 on the right side.
66. In relation to the right shoulder, the alignment was normal and the subacromial space was preserved.
67. Dr Wong concluded that there was mild changes of cervical spondylosis at the C6/7 level.

Dr D C Yee, Hand Surgeon
68. Dr Yee provided a report to Dr Teo, Mrs Garza's General Practitioner, dated 23 November 2000 (Exhibit R7). Dr Yee noted that in September 2000, Mrs Garza was working at Australia Post when she developed pain around the base of her right thumb. This also occurred over the metacarpo-phalangeal heads of her middle and ring fingers. There is also pain up her right forearm to the lateral aspect of her right elbow.
69. Dr Yee noted on examination that Mrs Garza had some fairly diffuse pain around the lateral epicondyle. Further examination of her right wrist and hand was normal. There was no degeneration of the carpo-metacarpal joint of the right thumb. There were no symptoms of carpal tunnel syndrome. An x-ray of Mrs Garza's right hand and thumb showed no abnormality, especially at the carpo-metacarpal joint.
70. Dr Yee concluded that the diagnosis is mild lateral epicondylitis but no surgical treatment was necessary nor was injection required. Dr Yee preferred to observe Mrs Garza and re-examine her in early 2001.
SUBMISSIONS
71. Mr Harrington submitted that Mrs Garza has carried out very repetitive process work for the period that she has worked at Australia Post. Mrs Garza had an incident in 1995, prior to her working at Australia Post causing her back pain, but from which she recovered. The nature of Mrs Garza's work from 19 January, 1996 through to August 2000 was not only repetitive but could be described as quite heavy work, Mr Harrington submitted. Mr Harrington noted that Mrs Garza is provided with assistance if she is required to move articles of 40 kilograms and above. There was no dispute however, that on occasion heavy articles had to be processed by Mrs Garza. Mr Harrington submitted that before she obtained assistance from another officer, Mrs Garza had to test the article in terms of weight prior to lifting and/or moving it.
72. Mr Harrington submitted that Mrs Garza would not have been able to undertake such work if she had had any previous symptomatology or ongoing condition. Mr Harrington contended that the Tribunal should accept Mrs Garza's evidence in its entirety that she was able to do her work at Australia Post up until August 2000. Furthermore, Mr Harrington submitted that Mrs Garza provided evidence in an open manner and made concessions when called for. In this regard, Mr Harrington noted Mrs Garza's evidence that there has been some improvement in her condition. That is not the evidence that one would expect of a person who was fabricating symptoms in order to gain advantage, Mr Harrington concluded.
73. Considering Dr Perla's examination, he noted that Mrs Garza was tender on the right side of the neck (Exhibit A1). Dr Nguyen Duc reported in her clinical notes that Mrs Garza had presented after heavy lifting at her work with Australia Post.   There was a record of a painful right arm for two weeks, and difficulty with pronation of the shoulder (Exhibit A2). Both doctors made these findings from their examination, as it turns out, on the same day.
74. Mr Harrington submitted that there is agreement between Dr Evans and Dr Gliksman about her symptoms, it is just a question of causation. This is not a case where the condition came on and Mrs Garza rushed off to obtain workers' compensation. She initially had one day off work and subsequently has had twenty days off since that time.   Mrs Garza would like to remain at work undertaking light duties, although again she notes that such duties are still quite repetitive. Mrs Garza has had appropriate treatment, including physiotherapy and is now undergoing further physiotherapy. Mrs Garza has also given evidence that she has reduced or "weaned" herself off medications. This evidence, Mr Harrington submitted, points to an aggravation of her existing degenerative condition in the form of repetitive strain pathology. Mr Harrington further contended that Mrs Garza's evidence supports and is consistent with her claim.
75. Dealing with the 20 minute video of Mrs Garza, Mr Harrington submitted that there was nothing in this to displace Mrs Garza's claim. The film showed Mrs Garza standing for some period at an auction and then driving a car. Mrs Garza has always maintained that she could drive a car and in Mr Harrington's submission the work that she was doing currently on a light duty basis would be infinitely more demanding than anything that was shown on the video.
76. Mr Harrington submitted that there was nothing put to Mrs Garza in cross-examination to attack her credit. Accordingly, he contended that the Tribunal was faced with a situation that if her evidence was accepted that she was asymptomatic prior to the onset of the heavy work and that Mrs Garza has now become symptomatic as a result of her work and the symptoms have continued, though improved somewhat with light duties, then in Mr Harrington's submission there is no basis for arbitrarily cutting her off after four months of compensation. There has been some change in her condition and in Mr Harrington's view, this is probably a change to her cervical spine. Mr Harrington contended that there is also probably some irritation or nerve root damage to the disc or facet joints. There has also been, Mr Harrington submitted, some structural change in Mrs Garza's neck as a result of the ongoing heavy work. Mrs Garza is now undertaking work which is entirely appropriate in the form of lighter duties and she is doing well with periodic treatment as required.
77. Mr Harrington submitted that the Tribunal should have no difficulty in finding that as a result of Mrs Garza's work during August 2000, there was an aggravation of the degenerative changes in her neck either by way of disease or frank injury and that the aggravation or the disease is continuing to the present time. In relation to other pathology, notably the rotator-cuff and epicondylitis, as Dr Evans had pointed out, in a slight woman, the nature of the work undertaken by her would have led to the types of pathology of a mild rotator-cuff problem and epicondylitis on the right side. The symptoms, because they were mild, would not necessarily show up on x-rays. Mr Harrington contended that clinicians have to deal with these diagnostic problems frequently. With epicondylitis, unless an ultra sound is undertaken, it is impossible to confirm the diagnosis and even then a diagnosis may not be confirmed through this test, as was noted by both Dr Evans and Dr Gliksman.
78. Mr Harrington submitted that Dr Evans' opinion, in addition to the concessions made by Dr Gliksman, indicate that Mrs Garza has ongoing problems of either pathology in the neck or a combination of the neck, the right shoulder and arm. In relation to there being carpal tunnel syndrome, a finding of such a condition was less certain and the evidence not great, Mr Harrington conceded. Mrs Garza's right thumb symptoms may arise, Mr Harrington explained, either by way of referred pain or some generalised arthritic changes in the thumb joint which could have been aggravated. Whilst there is speculation about this and the carpel tunnel syndrome, there is no speculation about the neck, Mr Harrington contended.
79. On the balance of probabilities, Mr Harrington submitted that there had been pathology caused by work and there were ongoing problems in Mrs Garza's neck. In relation to her right shoulder and elbow, Dr Evans' diagnosis, as supported by Mrs Garza's symptomatology, would be the preferred diagnosis. Mr Harrington contended therefore that Mrs Garza continues to have a work-related symptoms.
80. In relation to assessment, Mr Harrington noted that Mrs Garza has been symptomatic since seeing Dr Evans some ten months ago. Although her symptoms have improved over time, referring to the Comcare Guide, Mr Harrington submitted that Mrs Garza still has difficulties and that she has given evidence that she could not go back to her former duties and undertake such work as grasping and the pulling of the mail bags. In relation to Mrs Garza's neck, Mr Harrington submitted that the appropriate assessment is five per cent from Table 9.6 of the Comcare Guide.
81. From the Applicant's submissions, and the opinion of Dr Evans, a rating of 20 per cent under Table 9.4 is appropriate which would indicate that Mrs Garza could use the limb for self care but has no digital dexterity or has difficulties grasping and holding.
82. In relation to Dr Gliksman's opinion, Mr Harrington noted that Dr Gliksman has certified Mrs Garza as unfit to return to her pre-injury work, particularly the heavy lifting and moving. Mr Harrington submitted that this opinion begs the question that if she is unfit to go back to her former duties, why is it not Dr Gliksman's opinion that the work situation would continue to create and has created further pathology. Mr Harrington also noted that in relation to questions asked by Dr Campbell, Dr Gliksman conceded that he could not conclude that there was not some pathological change in the cervical area. Furthermore, Mr Harrington asked the Tribunal to take particular note that Dr Gliksman had conceded that the four months allowed by the Respondent to indicate that her condition had resolved in this time, was an arbitrary period and should be rejected given Mrs Garza's truthful evidence of continuing symptomatology and her being allocated to lighter duties.
83. Mr Harrington's final submissions noted that there was nothing in Table 9.4 of the Comcare Guide which referred to repetitive use, only difficulty with grasping and holding. There was also nothing in the video evidence which would assist the Tribunal in deciding whether or not Mrs Garza had difficulty with grasping and holding.
84. Ms Henderson, for the Respondent, submitted that Mr Harrington represented his client as a person who was left unaided to deal with 20 kilogram weights and was able to obtain assistance when the weights were of the magnitude of 40 kilograms.   Ms Henderson contended that Mr Harrington took the high point of Mrs Garza's evidence noting that this was that the items in the containers weighed between 30 to 40 kilograms and furthermore, it was intended that two people work together on the loading dock not as a favour but as a normal part of the procedure of working in this area. Furthermore, Ms Henderson submitted that in relation to the 20 kilogram weights, this related to the evidence concerning mail bags in the Igloo and Mrs Garza had stated that the weight was between 16 to 20 kilograms. Ms Henderson noted the evidence was that the two individuals rotated between looking after the articles going onto the conveyor belt in case items fell off and the other duty of undertaking lifting activities.

85. Ms Henderson concluded that Mr Harrington painted an heroic view of Mrs Garza struggling with 20 kilogram weights unaided and 40 kilogram weights being ones where she was allowed to have some assistance. Mrs Garza's evidence was plain that the work involving the containers and the Igloos was work that she always did as part of a team of two. It was not fast speed work given that they were dealing with approximately 50 bags an hour. Ms Henderson also noted that Mrs Garza was taking regular breaks. Duties were done in rotation with other activities which were far less strenuous than Mr Harrington had suggested. In this regard, Ms Henderson referred the Tribunal to the opening of the string on a mailbag and that this was not a particularly heavy job but was something that Mrs Garza would do for two hours at a time. The tipping of mail on to the conveyor belt was also not described as strenuous. While Mrs Garza had to push items along, it was not suggested that this was difficult, except in the case of some of the heavier parcels which needed more force to move them along.
86. Referring to the culling duties undertaken by Mrs Garza, these were also not characterised as a hard job and Mrs Garza did not have to lift much as part of that particular duty. In relation to parcel opening, Mrs Garza described that as heavy when having to push items down the free shoot. She also described the job called hooking which meant that she sometimes had to lift the weight of the bag in order to put it on to a hook so that it could be carried away.
87. Mrs Garza described a range of different tasks done in different postures. She did not describe herself, Ms Henderson submitted, as somebody who was struggling with the 20 kilogram weights all day, everyday. Mrs Garza also did not describe herself as only being allowed assistance when the weights reached 40 kilograms, Ms Henderson contended.
88. Ms Henderson submitted that it was not clear from the manner in which Mrs Garza's case had been presented, whether it was her intention to contend that by virtue of the range of work she undertook for Australia Post from 1996 onwards, that she developed osteophytes in her back. That seemed to be what Mr Harrington was suggesting. Ms Henderson contended however that this was not the view of the medical practitioners who have given evidence in this matter. For example, Dr Evans stated that the changes in Mrs Garza's back were constitutional. Dr Evans did not suggest that any work-degenerative process had been triggered at the C6/7 level in Mrs Garza. Dr Gliksman, the Occupational Physician, pointed out that the changes at C6/7 occur with age. Ms Henderson contended that in the absence of any medical support for the proposition that there had been pathological change induced by regular work duties over the years, the Tribunal should be disinclined to accept such a submission. Ms Henderson added that supposition by a legal representative is not enough to maintain that particular hypothesis.
89. Alternatively, if the case is put on the basis that for a three week period in August 2000, Mrs Garza was working consistently on the receiving dock, emptying containers at 50 bags an hour, then the Tribunal would need to look at the medical evidence. After that period of time, Ms Henderson noted that unusually, Mrs Gaza attended two different general practitioners, on the same day.
90. Turning to the medical evidence in this matter, Ms Henderson noted the history given to Dr Yee suggests that Mrs Garza's symptoms were noticed in her right thumb. The clinical notes from Dr Perla and from Dr Nguyen-Duc both focus on the right arm and upper back problems. Dr Nguyen-Duc actually noted tenderness over quite a range of the cervical vertabrae all the way from C6 to C8, but did not initiate any exploration by way of x-ray or other testing of Mrs Garza's neck. Dr Nguyen-Duc's notes indicate that when she did seek x-ray in March 2001, this was at Mrs Garza's lawyers request and was not diagnostic. Reading Dr Yee's Report in isolation, Ms Henderson submitted that one could form the impression that Mrs Garza had problems in her right thumb and in the base of two of her fingers which made their way up to her arm. That is quite different historical picture Ms Henderson contended, to that which was painted by other documents. As a result of a lawyer asking Mrs Garza to obtain a cervical spine x-ray, the focus in recent times has been on Mrs Garza's cervical spine.
91. Ms Henderson submitted that it was not the reaction of those practitioners who examined her close to the time of the onset of her symptoms, that they were dealing with a patient with arm or neck problems, the neck problems being attributable to a C6/7 lesion. Thus, Ms Henderson submitted that the emphasis in the case has shifted into an area which neither of the general practitioners who examined Ms Garza at the time of her original symptoms found was the source of her problems. Consistently through the medical certificates and the statements made by medical practitioners who saw Mrs Garza at that time, they thought she had some sort of soft tissue sprain. Ms Henderson submitted that within a few weeks of the examinations, they had come to the conclusion that she was suffering from lateral epicondylitis. That is the condition which is consistently reported and which led to the referral to Dr Yee, the hand surgeon. It is solely within the context of medico-legal investigations that attention became focused on Mrs Garza's C6/7 degenerative problems which were discovered on x-ray.
92. Ms Henderson noted that Mrs Garza is a person who reports a diffuse set of symptoms affecting all of the joints of her upper limb, from the wrist to the elbow to the shoulder. Occasionally there are symptoms at the base of the thumb and apparently from Dr Yee's Report, at the base of some of the fingers. Dr Evans and Dr Gliksman, from their evidence, agree that C6/7 problems explains some of the symptoms that Mrs Garza reports. The involvement of C6/7 receives prominence because it is their best guess as to what is going on and what might have caused Mrs Garza's right hand problems. Neither Dr Evans nor Dr Gliksman have been able to demonstrate a continuing epicondylitis in Mrs Garza. In such circumstances, Ms Henderson contended that the best conclusion would be probably reached by those practitioners who diagnosed the problem in the first place and that the epicondylitis has run its course and is no longer a factor.
93. In relation to the right rotator-cuff problem which has been provided by Dr Evans as a possible consequence of Mrs Garza's work, this submission was not one which was supported or advanced by the general practitioners who were simultaneously examining the Applicant in September 2000 and thereafter. Ms Henderson submitted that the rotator-cuff findings asserted by Dr Evans some years after the event, bears no credible connection with the symptoms which were reported in August 2000.
94. Ms Henderson submitted that Dr Gliksman has been quite clear in his evidence that this is a pathological process which is likely to be age-related and at that point, Dr Evans is in agreement. The encroachment of osteophytes or enlargement of osteophytes over time, which is quite a lengthy process, has left Mrs Garza in a situation where she is no longer able to perform the work duties which she was previously undertaking, Ms Henderson submitted. It is logical, Ms Henderson further submitted, that if she attempts those former work duties she will become irritated and sore. This does not indicate that there is pathological change occurring, Ms Henderson contended. Dr Gliksman's evidence was also quite clear on this point. What happens during the irritation is that there is a period of inflammation when the work is ceased, the inflammation resolves and the symptoms improve. This is consistent with Mrs Garza's evidence. It is therefore not necessary, Ms Henderson submitted, to look for a pathological change in order to understand the period of irritation.
95. Dr Evans did not provide evidence that Mrs Garza is suffering an aggravation in the form of a pathological change at the C6/7 level. He asserted simply that there has been an aggravation. Dr Evans did not attempt the analysis undertaken by Dr Gliksman, which led Dr Gliksman to conclude that that period of irritation had ceased. It follows that in view of Dr Gliksman's evidence, that the Respondent has conceded the maximum amount of compensation for the period in which the irritation was present. Ms Henderson submitted that lacking from the material is any indication that Mrs Garza's underlying pathological condition has been altered in any way by her work. It is Dr Evan's view and also Dr Gliksman's opinion that Mrs Garza has a constitutional condition which has simply degenerated over time in the natural way.
96. Turning to the issue of permanent impairment, there is difficulty in relation to the issue of whether or not Mrs Garza is able to grasp and hold objects. Ms Henderson submitted that Dr Evans appeared to read into Table 9.4 of the Comcare Guide having a difficulty of repetitive grasping and holding of objects. This description is not present in Table 9.4 and cannot be read into it, Ms Henderson submitted. The video demonstrated that Mrs Garza was reaching out confidently to grab the backdoor of a car. She opened the car door. Mrs Garza put items inside the car and then reached again with confidence to open the front door of the car, allowing herself to sit in the driver's seat. In cross-examination, Mrs Garza stated she had no difficulty in holding the steering wheel and moving it as is required when driving.
97. Mrs Garza provided evidence about her domestic duties which involved her preparing food. She was reluctant to agree that she ever picked up a pot of soup and moved it from one place to another, Ms Henderson submitted. Nevertheless, she did not report any difficulty in actually holding objects while cooking. That was the only domestic activity apart from dusting, which she undertakes. Furthermore, Ms Henderson submitted that Mrs Garza did not give evidence that she had any difficulty grasping and holding a duster.
98. When considering the video evidence, Ms Henderson noted that at the beginning of the film, as Ms Garza walks forward toward the auction, she is grasping and holding the hand of a small child. Furthermore, at the beginning of the auction, Mrs Garza was seen dangling some object for the entertainment of a child who was being held by another woman. Mrs Garza was also waiving at the child to distract it. She grasped and held an object which she returned to her left wrist. She then appeared to be fastening a bracelet back onto her arm and then swung her left arm down again. Ms Henderson submitted that the film quite clearly showed Mrs Garza was not a person who was unable to grasp and hold. She showed complete confidence and a normal type of movement in the various activities which she undertook.
99. Table 9.4 is not a Table which refers to an inability to work, Ms Henderson submitted. Thus a person could technically qualify under these Tables and still be able to remain in full-time work, Ms Henderson submitted. The Tables are directed to ordinary everyday living activities, which a person with normal functional/physical abilities would be able to perform. All of the activities seen on the video are precisely typical of such activities. Furthermore, Ms Henderson submitted that Mrs Garza showed a full range of neck movement during the video. She swung her head comfortably during the auction proceedings and demonstrated all the ranges of movement that would be expected of a lady of her age.

Turning to Table 9.6 of the Comcare Guide which deals with minor restrictions of movement of the cervical spine, Ms Henderson submitted that the video should satisfy the Tribunal that Mrs Garza is not suffering minor restrictions in her neck area. Furthermore, Dr Evans did not validate or confirm in any clinical sense Mrs Garza's claims that she was having difficulty with gripping and holding objects.
Ms Henderson submitted that it was bizarre in the extreme that Mrs Garza chose to give Dr Gliksman evidence that she was having difficulty with scrubbing and vacuuming. This contrasted with her own evidence to the Tribunal that she has done less vacuuming than most people and certainly has not been accustomed to do much in the way of any domestic chores. Ms Henderson submitted that Mrs Garza looked quite alarmed when it was suggested during questioning that she might ever have scrubbed anything. The only item that she could think of as a possible example was where she might have cleaned a toilet. Ms Henderson submitted that Mrs Garza's evidence is contradictory and unreliable in that she says that on the one hand she is able to do certain things and then says that she is not able to do these things. Given, as Dr Gliksman pointed out, that so much in this case depends on Mrs Garza's reliability in terms of reporting her abilities, Ms Henderson submitted that the Tribunal should approach her claims with some caution. In any event, the video made it quite clear that Mrs Garza does not have any noticeable restrictions in relation to the ordinary use of her neck and right arm.
Furthermore, it should be noted that the treating medical practitioners have treated Mrs Garza in a way which is consistent with conservative treatment for strain or soft tissue injury for epicondylitis. The level of treatment has been minimal. Contrary to Mr Harrington's submission that Mrs Garza weaned herself off medication, Ms Henderson noted that Mrs Garza said that she took the arthritis medication for one script only without any further comment as to why it was not continued. She gave similar evidence in relation to Endep. The continued need Mrs Garza has for Panadeine Forte is entirely consistent, Ms Henderson submitted, with the fact that she is suffering a natural deterioration of the C6/7 pathology which has been caused by age and constitutional factors. Ms Henderson submitted that it is significant that none of the treating practitioners, Dr Perla, Dr Nguyen-Duc and Dr Teo have found any need for specialist intervention, apart from a single referral to Dr Yee which resulted in no treatment and no continuing consultations.
Ms Henderson submitted that on all of the evidence before the Tribunal, it should be satisfied that the injury suffered by Mrs Garza was perceived by her treating doctors as a brief episode of irritation, as Dr Gliksman had said, and that it has now resolved. The remaining medical problems experienced by Mrs Garza are, in the Respondent's submission, entirely unrelated to work.
In conclusion, Ms Henderson submitted that Dr Evans has given extremely tentative and unpersuasive evidence in this matter. Dr Gliksman's views are entirely consistent with the manner in which the treating practitioners have cared for Mrs Garza. Dr Gliksman's view should be preferred, Ms Henderson submitted.
Ms Henderson concluded that the Tribunal should affirm the final determination made by Australia Post which was to admit liability up until 1 January 2001 and to deny liability for permanent impairment.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the evidence, the submissions, the legislation and case law.
The Tribunal agrees with Ms Henderson that this case depends on the acceptance or not of Mrs Garza's evidence. In the Tribunal's view, there were many opportunities for Mrs Garza, either during clinical examination by medical practitioners or in evidence to the Tribunal, to embellish or manipulate the evidence to suit her situation. The Tribunal considered that this did not occur and agreed with Dr Evans' assessment that Mrs Garza is an honest person with a mild to moderately troublesome disc lesion and there is not a great deal of impairment of movement to be evidenced in a genuine person experiencing this degree of impairment. Furthermore, the Tribunal finds that it is not surprising in a woman of Mrs Garza's proportions to have developed symptoms simultaneously given the work that she was doing.
In this matter, the Respondent accepted liability for Mrs Garza's condition of the cervical spine and the right limb injuries for the period 30 August 2000 until 31 December 2000 and compensation and medical treatment expenses were paid for that period under sections 19 and 16 of the Act. Liability for the injury ceased on 1 January 2001 (T9, N2001/1949).
The medical evidence from Dr Evans is that on the balance of probabilities, Mrs Garza permanently aggravated pre-existing degenerative changes in the neck and furthermore there is mild damage to the right shoulder and right forearm and elbow occasioned by her work at Australia Post, particularly the concentrated three week period working on the receiving dock. Dr Evans noted that the shoulder problem was so mild and her movements were only minimally reduced and therefore could not be objectively found on testing. An ultrasound had not been performed. The fact that Mrs Garza is currently working on light duties and has experienced improvement in all of her symptoms was consistent, in Dr Evans' view, with the change of duties and furthermore, reinforced his opinion that there was a causal connection between the heavy repetitive work in August/September 2000 and her symptoms. There was no other explanation for these symptoms and particularly one would not have expected the pre-existing degenerative changes at C6/7 to have caused the severity of the symptoms. Even though it was possible C6/7 changes observed on x-ray could be asymptomatic, Dr Evans' view was that the pain in Mrs Garza's neck combined with other symptoms made it more likely than not that the underlying degenerative changes were aggravated by her work situation.
The Tribunal finds it reasonable that the combination of the duties Mrs Garza undertook during that three week period in and around August 2000 aggravated her neck, upper arm and shoulder problems. She was reported to have tenderness and pain elevating her shoulder. The impairment of the shoulder movements fitted with rotator-cuff syndrome as Dr Gliksman conceded. The lack of specific tenderness at this point does not, given the evidence and clinical findings, in the Tribunal's mind, discount the probability that there is a rotator-cuff problem. The Tribunal considers that Dr Evans' opinion that Mrs Garza has an overuse problem with the right upper limb and of the elbow has not been disproved on the balance of probabilities. As Dr Evans noted, and the Tribunal so finds, the fact that neither Dr Evans nor indeed Dr Gliksman are as certain about the causation issues as one would like, given all of the evidence and on the balance of probabilities, Mrs Garza certainly has neck problems and probably mild rotator-cuff damage with mild lateral epicondylitis causally related to her employment. The Tribunal does not consider on the evidence that a finding concerning a work-related carpal tunnel syndrome could in any way be made.
The Tribunal finds that Dr Gliksman's opinion that Mrs Garza had a work-caused closed period of symptomatology of her neck and right limb which resolved, is contrary to his strong view that if Mrs Garza was to return to her previous full duties, this would not be in her best interests and would in all likelihood cause further aggravation to her underlying pre-existing degenerative changes. In the Tribunal's view, if there were no change in pathology as a result of her period of work during August 2000 in the receiving dock, and the aggravation was only temporary, then it would not be logical to preclude Mrs Garza from returning to those full duties. Furthermore, Dr Gliksman agreed that the period of approximately four months acceptance of liability after which it was determined that the problem had resolved, was an arbitrary period. The Tribunal finds therefore that the effects of the specific work during the three weeks in August/September 2000 on the receiving dock, in the context of her previous repetitive work at Australia Post, permanently aggravated Mrs Garza's underlying degenerative condition at C6/7 and caused further continuing problems with the right upper limb.

The Tribunal notes Commonwealth v Beattie (1981) 35 ALR 369 at 378 in which it was held that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological changes take place and it is a question of fact for the Tribunal to decide whether there is an aggravation. In Tippett v Australian Postal Corporation (1998) 27 AAR 40, Finkelstein J noted at 44 that:
"What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corp v Percival (1988) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corp v Percival at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment: Canberra Abattoir Pty Ltd v Asioty (unreported, Fed Ct, FC, 26 April 1988) a proposition which was not disturbed on appeal at Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
However, as was pointed out by the Full Court in Commonwealth v Beattie, at 201 per Evatt and Sheppard JJ:
"It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury."
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
…"
In Re McKinnon and Australian Postal Corporation (2001) AATA 297, the Tribunal relying on Australian Postal Corporation v Bessey (2001) 32 AAR 508 had no confidence in the Applicant's testimony and went on then to find that there was no permanent aggravation.
Dr Gliksman conceded that if it was accepted that an aggravation had occurred and the symptoms of the aggravation continued, albeit in an improved state, when on light duties, then it was possible that the aggravation continued past the four month period. In answer to Dr Campbell's questions, Dr Gliksman could not exclude that the pathology in relation to the degenerative condition which was a gradual process, was developing concurrently with the change in pathology as a result of the nature and conditions of Mrs Garza's work long term, performing the sort of duties she had done for three or four years and this could have contributed to the pathology. Dr Gliksman conceded that it could not be excluded with any certainty, given the history of Mrs Garza complaining of increasing symptomatology while she was doing her work after a period of a particular activity in the receiving dock, that she experienced an increase in the symptomatology. Dr Gliksman agreed with the proposition that the nature and conditions of Mrs Garza's work contributed to the gradual onset of her problems.
On all of the evidence, the Tribunal finds on the balance of probabilities that the work-caused symptoms of pain and slight restriction of movement in Mrs Garza's neck and right upper limbs, including her right shoulder and elbow have continued beyond 31 December 2000 and that liability should not cease for these conditions on 1 January 2001. The Tribunal finds that there has been a permanent aggravation of Mrs Garza's underlying degenerative condition as a result of her employment. Mrs Garza is accordingly entitled to compensation in respect of incapacity payments by reason of injury to her cervical spine and right limb problems. Compensation is also payable, the Tribunal considers, in respect of any reasonable medical treatment Mrs Garza obtained for her injuries from 1 January 2000 and continuing.
In relation to Mrs Garza's claim for permanent impairment, the Tribunal considers that under Table 9.4 of the Comcare Guide, a nil impairment is appropriate. The Tribunal on all of the evidence does not find that Mrs Garza has difficulty with digital dexterity. This is based not only on her own evidence but on evidence provided by the video. In relation to the level of impairment for Mrs Garza's cervical spine, using Table 9.6 of the Comcare Guide, the Tribunal finds that the correct impairment is five percent which indicates minor restrictions of movement. This rating is supported by Mrs Garza's evidence in addition to the expert medical opinions. Accordingly, with a combined impairment of five percent, Mrs Garza is not entitled to receive compensation for permanent impairment as provided in section 24 of the Act, nor is Mrs Garza entitled to compensation for non-economic loss as provided in section 27 of the Act.
In all of the circumstances and taking into account the evidence, the Tribunal makes the following decision pursuant to section 43 of the Administrative AppealsTribunal Act 1975:
1. In relation to matter numbers N2001/332 and N2001/1949, the decisions under review are set aside and in substitution therefor, the Tribunal determines that:
a) the Respondent is liable to pay the Applicant weekly payments of compensation pursuant section 19 of the Safety, Rehabilitation and Compensation Act 1988 from 1 January 2001 and continuing in respect of her cervical spine and right upper limb injuries and any compensation relevant under section 20 of the Safety, Rehabilitation and Compensation Act 1988;
b) the Respondent is liable to pay for the Applicant's reasonable medical expenses incurred from the treatment in relation to her workplace injuries pursuant to section 16 of the Safety,Rehabilitationand CompensationAct 1988 from 1 January 2001 and continuing.
2. The decision under review in relation to matter N2001/1216 in terms of permanent impairment as provided under section 24 of the Safety, Rehabilitation and Compensation Act 1988 is affirmed and the Applicant is also not entitled non-economic loss compensation pursuant to section 27 of the Safety,Rehabilitation and CompensationAct 1988.
3. In relation to matters N2001/332 and N2001/1949, the Respondent is to pay the Applicant's legal costs as agreed or taxed in accordance with the Practice Direction of the President of the Tribunal.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr JD Campbell, Member.
Signed:         .....................................................................................
  Associate
Date of Hearing   21 January 2002
Date of Decision   9 October 2002
Counsel for the Applicant         Mr R Harrington
Solicitor for the Applicant          McClellands Solicitors
Counsel for the Respondent    Ms R Henderson
Solicitor for the Respondent   Australian Government Solicitor