Geary and Australian Postal Corporation
[2005] AATA 29
•14 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 29
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/899, Q2004/508
GENERAL ADMINISTRATIVE DIVISION )
Re DANIELLE GEARY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date14 January 2005
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. ...................[Sgd].............................
RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements - applicant suffering from soft tissue injuries to shoulder and thoracic spine – conditions initially caused by the applicant’s employment –cessation of liability – no material contribution from employment to chronic pain syndrome – no permanent impairment
Safety Rehabilitation and Compensation Act 1988 ss 4, 6, 14, 24
Geary v Australia Post [2001] AATA 457
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
REASONS FOR DECISION
14 January 2004 Mr RG Kenny, Member Background
1. Danielle Geary (the applicant), who was born on 2 April 1968, was employed by the respondent, Australian Postal Corporation (Australia Post), from December 1996 as a trainee postal delivery officer. While carrying out delivery duties on 1 July 1997, she fell from her motor-cycle and subsequently lodged a claim for rehabilitation and compensation for neuropraxia right arm. On 24 July 1997, the respondent accepted liability for that condition in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Compensation was paid to Mrs Geary until 31 January 1998 at which time it was determined that the effects of her arm injury had ceased. That decision was affirmed on 18 March 1998 and an application to review that decision was made to the Administrative Appeals Tribunal (the Tribunal) on 12 December 2000. This application was made outside of the lodgement time-frame in section 29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and, on 28 May 2001, an application for extension of time was refused (see Geary v Australia Post [2001] AATA 457).
2. On 11 December 2000, Mrs Geary lodged a further claim for permanent impairment and compensation for an injury described as “disc injury T10/11 intervertebral disc”. On 2 July 2001, Australia Post determined that she had suffered a soft tissue injury to her thoracic spine in the accident on 1 July 1997 but that the effects of this injury had ceased by the end of 1997. That decision was affirmed on 29 August 2001 and Mrs Geary now seeks review of that decision by the Tribunal (Q2001/899).
3. On 16 October 2003, Mrs Geary lodged a further claim for permanent impairment and compensation and, on 16 March 2004, the respondent determined that there was no ongoing entitlement by Mrs Geary to compensation or any permanent impairment arising from the 1997 incident in relation to her arm, shoulder, neck, thoraco-lumbar spine and/or any psychiatric sequelae including any chronic pain syndrome. That decision was affirmed on 23 June 2004 and, on 1 July 2004, Mrs Geary sought review of that decision by the Tribunal (Q2004/508).
Hearing
4. At the hearing, Mrs Geary was represented by Mr A Anforth of counsel. The respondent was represented by Mr G Handran of counsel.
5. Material prepared in accordance with section 37 of the AAT Act was taken into evidence as exhibits 1 (T1–T139) and 5 (T140-T192), respectively. In addition, the following material was taken into evidence:
§exhibit 2 - a compensation claim for permanent injury, dated 10 December 2000;
§exhibit 3 - a compensation claim for permanent injury, dated 7 April 2002;
§exhibit 4 - a claim for rehabilitation and compensation, dated 3 July 1997;
§exhibit 6 - a statement of non-economic loss, dated 7 April 2002, with annexures;
§exhibit 7 - a medical report, dated 2 May 2003, by Dr Gregory Day, orthopaedic surgeon;
§exhibit 8 - an incident report, dated 3 July 1997; and
§exhibit 9 - a witness statement, dated 8 May 2002, from Andrew Geary.
Issues and Legislation
6. The issues for the Tribunal to determine are whether the respondent is liable, under section 14 of the Act, to continue to pay compensation to Mrs Geary for incapacity or impairment in accordance with sections 16 and 19 of the Act on or after 31 January 1998; and whether the respondent is liable, under section 24 of the Act, to pay compensation to her for permanent impairment. Relevant to the determination of those matters are the following provisions of the Act:
“4 - Interpretation
(1) In this Act, unless the contrary intention appears: …
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;
…
permanent means likely to continue indefinitely.
…
6 - Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) …..
(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment…;
…
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.
…
24 - Compensation for injuries resulting in permanent impairment
(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.”
Submissions
7. It is not disputed that Mrs Geary was injured when she fell from her motor- cycle whilst delivering mail on 1 July 1997. The respondent accepted liability for incapacity associated with an injury referred to as neuropraxia right arm and soft tissue injury to the thoracic spine. On her behalf, it was submitted that she suffers continuing incapacity and permanent impairment for a right shoulder condition which affects her right arm; for an injury to the neck in the nature of a ligamentous strain with some referred pain to the thoracic spine; to an injury to the thoracic spine, whether in the nature of a ligamentous strain or aggravation of the previously asymptomatic degenerative condition or both; for chronic pain syndrome deriving from those conditions; and for depression. For the respondent, it was submitted that the effects of the injuries which had originally been accepted as being related to her employment had ceased by 30 January 1998 and that any symptoms which she now has are unrelated to any aspect of her employment.
Applicant's Evidence
8. Mrs Geary outlined her employment history with the respondent and the events concerning the incident on the motor-cycle on 1 July 1997 in the following way. She was based at the Stafford Delivery Centre. In December 1996, she was employed as a trainee postal delivery officer and was required to demonstrate proficiency in completing her rounds. In March 1997, her contract was terminated because of her failure to do this but she was reinstated in April 1997 after intervention by union representatives. Subsequently, she was again adjudged to have failed and was scheduled to be further tested three days after the date of her accident.
9. Mrs Geary had almost completed her round on 1 July 1997 when, on approaching a letter-box on a footpath, the bike slipped from underneath her and she fell to the ground, landing on her knees and falling forward so that her upper body, particularly her right shoulder, also made contact with the ground. She said that the grass was not wet at the time and denied advising others that the ground had been wet. The only mark on her clothing was a grass stain on her trousers near her knee. She was able to continue her deliveries and returned to her depot where she told her supervisor, Joan Dorricott, what had happened and completed a minor incident report. She made a complaint only about her knee even though she was “sore all over” and this was because she did not want to make a “big deal” out of what had happened. She went home, commuting on her own motor-cycle, and returned to work the next day at the usual time and completed her round without incident. She saw the Delivery Centre’s manager, Michael Ronan, who asked about the incident and she told him that she was “fine” but did so in a sarcastic manner because she did not have a good relationship with him.
10. On 3 July 1997, she telephoned the Delivery Centre at 5am and reported that she was ill and would not attend for work. She was unable to move her arm and attended her general practitioner, Dr Swanson, to whom she complained of a “dead arm”. He diagnosed neuropraxia right arm. Mrs Geary was unable to tell him of any other injuries from the fall because he was very busy at that time. A medical certificate was issued to excuse her from work. On the same day, she went to the Delivery Centre and completed a claim for compensation. In the following weeks, she underwent physiotherapy treatment and saw Dr John Sowby, a specialist in occupational medicine, during July 1997. Dr Swanson remained her general practitioner until August 1997 when she changed to Dr David Schultz in the same practice. Later that month, she returned to perform light duties at the Ferny Hills Centre working with mail boxes, mainly with her left arm. She experienced much pain in the right shoulder and was unable to continue beyond a few days. She was then off work until December 1997 and, during that time, underwent physiotherapy and saw an occupational physician, Dr Edwin Castrisos, and orthopaedic surgeons Dr Bill Ryan and Dr David Gilpin.
11. Mrs Geary saw Dr Castrisos in November 1997, December 1997 and January 1998 and attended a rehabilitation clinic for about 3 weeks in November 1997 where she undertook an exercise and physiotherapy program, learned relaxation techniques and received occupational therapy guidance. She said that these assisted her but did not relieve her pain. She had been engaged under a contract which expired before Christmas 1997 but a new contract was drawn up and she was continued into January 1998 when she again had difficulty and was off work with medical certification after 6 January 1998. Her employment and compensation were terminated from 31 January 1998. She continued to see Dr Castrisos until April 1998 but then made no further contact with the respondent until May 2000.
12. From April 1998, Mrs Geary undertook work through the Drake employment agency. She was not engaged on a full-time basis and did clerical, accounts, computer and filing work although she did not cope well. This lasted until shortly before the birth of her first child in December 1998. She and her husband had not planned to have a baby at that time but, rather, had intended to work for some years and pay off their house. While she was off work in early 1998, she felt lonely and they decided to use the time to have a baby. She had a second child in September 2000. She said that she breast-fed each of her children for about 15 months and that, during the last months of pregnancy, she felt “quite good” and felt that the baby supported her back.
13. In describing her symptoms after the fall and until the end of January 1998, Mrs Geary said that she was “sore all over” for the first week and then the pain localised around her ribs and right shoulder and subsequently down her arm, across her shoulder into her neck and down to the middle of her back. She also felt that she had developed an asymmetry in her upper body shape, particularly around her ribs, which was of concern to her. She said that she had these symptoms when she saw Dr Swanson a second time but, again, did not detail these to him because he was too busy. Mrs Geary said that, since the accident, she has felt inadequate in her responsibilities in the home, requiring her husband to undertake many of the household duties and this adversely affected their relationship. She said that these limitations on ability to cope with household duties continued and she cannot perform repetitive activities and has difficulty washing dishes, vacuuming and even cutting food is a problem for her and she is still having difficulty lifting a spoon to her mouth. She is unable to lift her children, cannot stand or sit in one position for any length of time and is unable to bend because she “gets stuck”. However, she said that she looked after her children while her husband was at work which was, typically, from 6 am until 4 or 5pm.
14. Mrs Geary has owned and ridden a motor-cycle since 1990. There was a family car but her husband used this as his work vehicle and she continued to use her motor-cycle, a 600 cc Suzuki, as a commuting vehicle in 1997 and 1998. She said that she had difficulties in riding it because she felt “pain everywhere”. Her husband also had a motor-cycle at that time and, prior to July 1997, they would go on long rides together. After the fall, this was only done on one occasion in Easter 1998 when they rode about 40 kilometres. She sold her motor-cycle in 1999.
Conditions for Consideration
15. The conditions for which liability was accepted by the respondent were neuropraxia right arm and soft tissue injury to the thoracic spine. Dr David Gilpin, who gave evidence for the respondent, is an orthopaedic surgeon specialising in upper limbs. He explained that neuropraxia was an alteration of nerve function due to some mechanical pressure. In the case of the arm, he said that it could be due to falling asleep on it. He said it was a condition of immediate rather than gradual onset and of a temporary nature which would always disappear within 2 to 3 weeks. When investigating Mrs Geary’s claim, the respondent had before it medical reports indicating that she was complaining of a shoulder problem over and above the neuropraxia and I am satisfied that the compensation and treatment she was given under the Act was in respect of that more broadly based sprain of the shoulder. This is consistent with a submission by Mr Anforth that precision in diagnosis is not required under the Act as long as there is an employment-related injury which has resulted in incapacity and/or impairment. I am also satisfied that the shoulder injury and soft tissue injury to Mrs Geary’s thoracic spine provide a full response to her claims in relation to “shoulder, arm, back and neck”.
16. Other conditions which Mr Anforth submitted were related to Mrs Geary’s employment were depression and chronic pain syndrome. I accept his submission in relation to the latter condition but not in relation to depression. Mrs Geary has been examined by psychiatrists Dr George Freed, Dr Frank New and Dr Michael Leong. Dr Freed prepared a report on 11 December 1997 in which he said that he was not able to enter a specific psychiatric diagnosis and, in their evidence, Dr New and Dr Leong said that Mrs Geary did not have a depressive disorder. Dr New said that, while he accepted that Mrs Geary experienced pain, he was reluctant to use the term “chronic pain syndrome” and considered that she suffered from an adjustment disorder. Dr Leong examined Mrs Geary in December 2003. He diagnosed body dysmorphic disorder and pain disorder associated with psychiatric factors (chronic). Rheumatologist, Dr Joseph O’Callaghan, described Mrs Geary as having features of chronic pain syndrome and orthopaedic surgeon, Dr Bill Ryan, also reported in 1997 that she may have been developing that condition.
Medical and Other Evidence
17. Medical practitioners called to give evidence for the applicant were Dr Neil Hearnden who was her general practitioner from 3 March 1998; Dr Gregory Day, orthopaedic surgeon, who saw her in July 1998 and in May 2003; Dr Alan Searle, orthopaedic surgeon, who saw her in February 2002; Dr Joseph O’Callaghan, rheumatologist, who saw her in January 2004; and Dr New, who also saw her in January 2004. Those who were called by the respondent were Dr Ryan who saw her in September and December 1997 and in November 2003; Dr David Gilpin, orthopaedic surgeon specialising in the upper limbs, who saw her in September 1997; Dr Edwin Castrisos, an occupational physician with the respondent’s medical services unit who saw Mrs Geary on 19 November 1997 and thereafter until April 1998; and Dr Michael Leong, psychiatrist, who saw her in December 2003.
18. Dr Hearnden, Dr Day, Dr Searle and Dr O’Callaghan all examined Mrs Geary after her compensation payments ceased and all said that they placed reliance on her self-reporting to them of her history. On the other hand, Dr Ryan, Dr Gilpin and Dr Castrisos saw her in the period more proximate to the time of Mrs Geary’s accident. That is also the case with Dr John Sowby, visiting specialist in occupational medicine, who saw Mrs Geary during the weeks after her fall.
19. Dr Hearnden saw Mrs Geary on 3 March 1998, some 9 months after her fall, when she complained of right-sided rib cage pain relating to her right shoulder but not shoulder pain. He saw her on a few occasions in April 1998 and then not for a further 4 years when she was complaining of more generalised pain. He said that his examination in 1998 failed to reveal any major organic pathology. Mrs Geary underwent an MRI procedure on her spine in February 1999 and he noted that she had undergone nerve root blocks at T10/11 based on the MRI findings. He said that the pain described to him was at a level higher than that part of the spine. He said that she had spinal degeneration and that, while this could have been related to trauma, this was not necessarily the case.
20. Dr Day said that Mrs Geary described to him a painful neck, ribs, right shoulder and right knee at the time of the accident. He considered that she was suffering from thoracic pain and pain in the right costal margin which radiated from a soft tissue injury to her neck. He also noted from the MRI scan some desiccation of the T10/11 discs and said that this may have been related to a twisting injury. He said that the degree of spinal degeneration was not common for a person of Mrs Geary’s age and that the findings were unlikely in the absence of injury, infection or Schermann’s disease. Dr Day said that it was not possible to say whether the MRI findings were directly related to the fall from the motor-cycle. He also said that he was not aware of reports in September 1997 and December 1997 where Mrs Geary was described as having a full range of movement of the cervical and thoracic spine.
21. Dr Searle referred to the report of the MRI scan and noted that it described desiccation rather than degenerative changes and he said that the former was a precursor to degeneration and that it would probably have occurred “within a few months” of the scan being taken. He said that, when a desiccation occurs, it was not unusual for 2 to 3 weeks to pass before pain is felt. He agreed that it would not take 2 to 3 years for consequential pain to develop. He said that a fall such as Mrs Geary described could be responsible for the condition of her spine. He considered that she was genuine in her presentation but noted that there was no muscle wasting in the right arm.
22. Dr O’Callaghan said that he assumed that the MRI findings had resulted from the fall though he was not confident of that. He said that the chest pain that Mrs Geary described was higher than what would be expected for a pain referral from the T10/11 of the spine. He described an absence of neurological signs and said that, if she had suffered a subluxation of the shoulder or neuropraxia, then these would have been experienced at the time of the fall. He said that her problem was likely to have been a soft tissue injury and that it was not uncommon for this to take a few weeks before being symptomatic. As noted above, he said that Mrs Geary had features of chronic pain syndrome and he also referred to some psychological concerns by Mrs Geary about her body image.
23. Mrs Geary told Dr New that, after she fell from the motor-cycle, she was in a kneeling position and had landed on her head, that she was experiencing pain “everywhere” and that all of her pains began at the time of the motor-cycle accident. She also told him that the neuropraxia in her arm had resolved quickly but that she had been left with continuing pain. Dr New said that, while he accepted that Mrs Geary experienced pain, he was reluctant to use the term “chronic pain syndrome” and considered that she suffered from an adjustment disorder and that she might benefit from the implementation of a counselling program. He also said that, if she had injured herself, she may continue to experience pain even after the physical injuries had repaired. He said that this could be because of some changes in the spinal cord or it could be due to psychological factors.
24. When Dr Ryan examined Mrs Geary in November 1997, she told him that she had been “smashed” into the ground in the fall and had bruised her knee and hip. On examination, he noted that her cervical spine had a full range of movement though there was a restriction to rotation of the thoracic spine to about 75% with pain at the extremes and slight restriction of the lumbar spine to about 80%. He noted no spinal tenderness or spasm. X-rays revealed no abnormality of the lumbar or cervical spine and he considered that she had suffered a soft tissue strain of the thoracic spine. He described her pain symptoms as not well localised being felt on the right side of her trunk from her shoulder, on the left side of her back, in the lumbar region and in the left thigh. He also described the pain on rotation at the thoracic level as being symmetrical which suggested to him that it was not due to an injury.
25. Dr Ryan referred Mrs Geary to the Gregory Terrace Rehabilitation Centre for an intensive program and she commenced this on 24 November 1997. He saw her again in December 1997. He described her as complaining of low-mid thoracic and sub-costal pain but with full range of movement in the thoracic spine. He thought that the effects of any injury in July 1997 had ceased and that her symptoms were not proportionate to his objective findings. In his first report, Dr Ryan opined that Mrs Geary may be developing a chronic pain syndrome and that counselling may be appropriate. However, he said that there was no objective basis for the pain to have continued for that time in Mrs Geary.
26. On seeing her in November 2003, Dr Ryan noted that Mrs Geary had a thoracic spinal movement range of 60%, which was symmetrical, and with slight pain at the extremes. She described pain throughout the thoracic spine posteriorly with radiation to the right shoulder and right upper limb. He noted the MRI scan and said that these were consistent with degenerative change and that the degree of spinal change noted would not have occurred so quickly after an injury. He said that the description of symptoms was out of proportion to the objective findings and that the soft tissue strain she had in July 1997 would have resolved within 6 months. He concluded that her symptoms were unrelated to the motor-cycle incident. Dr Ryan said that, if she was injured in the fall, she would have experienced pain at that time and that it was uncommon for it to appear some weeks later. He said that reporting of the pain in that time-frame made it highly unlikely that it was due to the fall. He also said that Mrs Geary related to him that she could sit for 60 minutes, stand for 20-30 minutes, walk 2 kms and lift her 16 kg child. He considered that, with those capacities, it could not be said that she was unfit for employment
27. When Dr Gilpin first saw Mrs Geary in September 1997, she described the accident and said that she felt shaken up and bruised and had reported only her knee condition because she did not think that she had a localised problem in her shoulder. Dr Gilpin said that she complained to him of pain in the top of her right shoulder but he was unable to identify any localised pathology and arranged for a bone scan to be done. Having seen the results of this, he concluded that she had a low grade sprain of the right acromioclavicular (AC) joint ligament and said that this was related to the fall from the motor-cycle. He saw her again in January 1998 and noted tenderness around the rotator cuff but, in evidence, he said that this was not the same as the AC joint. He noted that she continued to complain of pain but he was unable to find any physical reason for it in relation to her right arm. He was also unable to detect any loss of function in the right shoulder.
28. Dr Gilpin saw Mrs Geary again in February 2004. At that time, she complained of pain in the peri-scapular area with radiation into the arm and neck. She also described a loss of movement in her shoulder and a range of limitations on daily activities such as preparing meals, household cleaning and hanging the washing. His examination at that time revealed no drooping or muscle wasting and he said that she demonstrated a changed symptom complex in comparison with her situation in 1997. Rather than the top of the shoulder, her pain was in the thoracic cavity particularly in the peri scapular area. Dr Gilpin said that the lack of muscle wasting was not consistent with Mrs Geary’s references to reduced daily activities. He also said that any effects to Mrs Geary’s arm and shoulder from the 1997 fall had ceased though he conceded that there may be continuing problems with pain generally but said that this was outside his area of expertise.
29. Dr Michael Leong examined Mrs Geary in December 2003. She told him that her motor-cycle had skidded on wet grass, that she had landed on her head and that she felt sore everywhere. He concluded that she was not suffering from depressive disorder but he diagnosed body dysmorphic disorder and pain disorder associated with psychiatric factors (chronic). He described the first of these conditions as involving a preoccupation with the body where the level of concern grossly exceeds any problem of physical appearance. He described the second condition as involving the experiencing of pain where there is no or insufficient underlying physical pathology to justify it and said that Mrs Geary’s experiencing of pain continued because of her body dysmorphic disorder. Dr Leong said that he was not able to connect either of these conditions with Mrs Geary’s fall from her motor-cycle in 1997. In his detailed report, Dr Leong wrote:
“Mrs Geary’s psychological distress appears to be more focused on her perception of having a distorted or changed body shape and image, and her perception that she no longer has the beautiful body that she once did. These perceptions, in my opinion, relate to Mrs Geary’s underlying personality traits, interaction with normal changes and the processes of ageing, changes in lifestyle with having children, and to the passage of time.”
30. Dr Castrisos first saw Mrs Geary in November 1997 before she commenced the program at the Rehabilitation Centre. He said that, while she referred to pain in the thoracic area, the sternum area and the top of her shoulder, her main complaint at that time was not pain but, rather, the asymmetrical appearance of her chest. He reviewed the medical reports including the X-rays and body scan results and said that these appeared normal and consistent with a soft tissue injury as a result of the fall. He described the musculature of the shoulder as being normal although he noted that she held it in an abnormal protective manner. Dr Castrisos also referred Mrs Geary to psychiatrist Dr George Freed.
31. Dr Castrisos saw her again on 5 December 1997 in conjunction with her rehabilitation team. Her rehabilitation program had involved intensive treatment for 2 weeks and he said that the reports were favourable and recommended that she return to work. He referred Mrs Geary to physiotherapist, Sue Lister, for back manipulation and said that she made excellent progress there. On 27 January 1998, his examination revealed a full range of movement in the shoulder and no tenderness in the spine. He recommended that she continue with physiotherapy not so much to focus on her shoulder but for general fitness for work.
32. Dr Castrisos also saw Mrs Geary after she ceased working for the respondent. This was in February and in April 1998. He said that, at that time, she had been attending gym classes three times per week, was looking for courses to do and was walking regularly. In April, she told him that she had “pulled a back muscle” in the gym. He said that he was not able to detect any symptoms which were related to her fall in July 1997.
33. Carmel Hill is a clinical psychologist who saw Mrs Geary in September 1997 and was told that she could not recall the circumstances of her fall but that she woke up lying on her right side. Mrs Geary told her that she only reported the knee injury because that was where the grass stain was although she was aching all over. Ms Hill considered that Mrs Geary had symptoms consistent with pain disorder associated with psychological factors and a general medical condition. She also described Mrs Geary as having an “over concern with her body image”.
34. Dr John Sowby, visiting specialist in occupational medicine, saw Mrs Geary during the weeks after her fall. The only conditions which are noted in his reports are those relating to the knee and shoulder. In his report, dated 17 July 1997, he referred to a significant improvement with her knee but noted that she was still restricted in relation to her shoulder. He recommended that she continue with physiotherapy. He saw her again on 21 July 1997 when she expressed concern that she may have fractured her shoulder. Accordingly, Dr Sowby arranged for an X-ray to be taken. In his report, dated 31 July 1997, Dr Sowby noted that the X-ray revealed a sprain of her right AC joint. He expressed the opinion that an injury of that nature would usually settle within five to eight weeks.
35. Dr Swanson and Dr Schultz treated Mrs Geary for shoulder and knee strain. On 14 July 1997, Dr Swanson described an excellent prognosis and an expectation of an early return to full duties.
36. Andrew Geary, the applicant’s husband, gave evidence and said that he had a vague recollection of the day when she fell from her motor-cycle. He could recall that she complained of shoulder pain and he provided massages in the area around her shoulder blade. He said that she was limited in her capacity to carry out her usual household duties and that he assumed responsibility for most of these. He said that he did the cooking, the clothes washing including the baby’s nappies and jobs such as vacuuming. He also conceded that he was a contract worker at the time of the injury and that he routinely went to work at about 5.30 am and was away for about 12 hours per day. He said that Mrs Geary would look after the children during the day. Mr Geary said that he and Mrs Geary had motor–cycles until 1999 but that she had only been on one pleasure ride after her fall. He said that, previously, they would have frequent excursions on their bikes.
37. Joan Dorricott was Mrs Geary’s administrative officer at the Stafford Delivery Centre. She recalled the day that Mrs Geary reported her fall. She said that Mrs Geary had reported that the bike slipped on wet ground and that she had hurt her knee. She said that Mrs Geary did not report for work on 3 July 1997 and recalled that she was greatly surprised by this because she understood the fall to be of a minor nature only. In particular, she felt that way because Mrs Geary had commuted to and from the Centre on her own motor-cycle on the day of the fall and the following day.
38. Michael Ronan was the manager of the Stafford Delivery Centre in July 1997. He described Mrs Geary’s work performance as poor and not up to the required standard of Australia Post. This had brought about her dismissal earlier in the year but she was reinstated after union intervention concerning fairness issues. He could not recall seeing her on the day of the fall but he recalled that she came to work on the following day when she completed her usual round. He could not recall speaking with her on that day but believed that he would have asked after her health. He said that he had not enjoyed a good relationship with Mrs Geary because she had a poor work ethic. He recalled that she arrived at the Centre on 3 July and filled out an incident report which he subsequently completed. Mr Ronan inspected the site of Mrs Geary’s fall. He said that there was little damage to the grass where she fell but conceded that this was a few days after the incident.
Cessation of Liability
39. Mrs Geary’s accounts of her fall have varied in relation to the manner of her landing on the ground after her fall from the motor-cycle and also the condition of the ground at the time. She described significant continuing limitations of movement and yet, during her evidence, she stood down from the witness box and demonstrated how she landed at the time of her fall. In doing so, she knelt down, leaned forward to place her head and shoulders on the floor and then re-assumed the standing position. She carried out that manoeuvre unaided and with no apparent restriction or difficulty. She has also described significant limitations on her capacity to carry out domestic duties in the home because of her right arm. However, physical examinations by Dr Searle and Dr Gilpin noted an absence of muscle wasting. Dr Gilpin said that the lack of muscle wasting was not consistent with Mrs Geary’s references to reduced daily activities.
40. Mrs Geary described pain all over her body at the time of the fall to various practitioners. That was also her evidence. Yet, in the Incident Report that she completed on 3 July 1997, she stated that she “noticed pain last night (2/7/97)”. I do not accept her evidence that she experienced the degree of overall pain that she claimed on the day of the accident. I do not accept her explanation that she did not wish to make a “big deal” out of it; she did take the time to complete an incident report and could easily have made reference to other matters. She complained only of her knee to Ms Dorricott. She was able to ride her own motor-cycle home that day; she returned to complete her duties on the following day; and advised Mr Ronan that she was feeling fine, albeit, on her evidence, in a sarcastic manner. Importantly, she did not report her injuries to Dr Swanson when she saw him on the following day but complained of a “dead arm”. I do not accept her evidence that she did not get the opportunity to explain things to Dr Swanson on the first or second consultations with him.
41. Dr Ryan, Dr Gilpin and Dr Castrisos saw Mrs Geary in the period when she was still in receipt of compensation and did so as part of the treatment regimen that was implemented for her. That was also the case with Dr Sowby. All of them were in a position to observe the symptom complex that she was manifesting at that time. That is significant in this matter because of the inconsistencies in accounts given by Mrs Geary in relation to the circumstances of her fall and of her symptoms and the need for practitioners who saw her in later years to rely on her self-reporting of her history and condition. Mr Anforth submitted that there were inconsistencies in the evidence of Dr Ryan and Dr Gilpin. However, I am satisfied that this was not the case. On the basis of the reports and evidence of Dr Ryan, Dr Gilpin, Dr Castrisos and Dr Sowby, I am satisfied that any employment-related incapacity in Mrs Geary resulting from her shoulder and soft tissue strain to the thoracic spine had ceased by 31 January 1998.
Liability for Chronic Pain Disorder
42. As noted above, Dr O’Callaghan described Mrs Geary as having some features of a chronic pain disorder; Dr Ryan considered that she may have been developing the condition; Dr Gilpin referred to the appearance of continuing pain but declared that this was outside his area of expertise; and Ms Hill described symptoms consistent with pain disorder. Dr Leong has diagnosed her as having that condition. He also gave evidence that this condition, as it presented in Mrs Geary, was specifically related to another condition which he diagnosed as body dysmorphic disorder. In cross-examination, he maintained his opinion that this, rather than the effects of her work-related injuries, was the cause of her chronic pain disorder. That is consistent with the evidence of Dr New who said that her continued experiencing of pain even after the physical injuries had repaired could be due to psychological factors. Ms Hill also associated the condition with psychological factors and described an over concern by Mrs Geary with her body image. Similarly, Dr O’Callaghan referred to psychological concerns by Mrs Geary about her body image.
43. Mr Anforth submitted that, if Mrs Geary was found to be suffering from some form of somatic disorder stemming from an underlying psychological susceptibility, this would not defeat her claim. I accept his submission in that regard provided there is evidence that links the condition in some way to some aspect of employment or an employment-related condition. This requirement will be met if these made a material contribution, as that term is explained below, to the continuation of the condition for the purposes of section 14 of the Act. As to the nature of the contribution which is required, in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, the Federal Court said (at 328):
“The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
44. The evidence is that Mrs Geary’s chronic pain disorder is related to an underlying psychiatric condition of body dysmorphic disorder and there is no evidence of any relationship between that underlying condition and her employment with the respondent.
45. I am satisfied that there has been no material contribution, as that term is explained in Treloar v Australian Telecommunications Commission (above), to Mrs Geary’s chronic pain disorder in the manner required for the purposes of section 14 of the Act.
Permanent Impairment
46. The definitions of impairment and permanent in sub-section 4(1) of the Act are set out above and any impairment in the applicant will be permanent if it is likely to continue indefinitely. However, on the basis of the finding that any work-related component of Mrs Geary’s shoulder and thoracic spine conditions had ended by January 1998 and that her chronic pain disorder is not related to her employment, I am satisfied that Mrs Geary does not suffer from permanent impairment in accordance with the terms of section 24 of the Act.
Decision
47. The Tribunal affirms the decisions under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .Denise Burton
Administrative AssistantDates of Hearing 26.5.03, 1.11.04, 2.11.04, 3.11.04
Date of Decision 14 January 2005
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Canberra Lawyers
Counsel for the Respondent Mr G Handran
Solicitor for the Respondent Clarke and Kann Lawyers
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