Georgina Mackay and Australian Postal Corporation
[2014] AATA 201
•9 April 2014
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/4746
Veterans' Appeals Division ) 2011/4747
Re: Georgina Mackay
Applicant
And: Australian Postal Corporation
Respondent
CORRIGENDUM
TRIBUNAL: Senior Member Bernard J McCabe
DATE: 16 April 2014
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Replace the name “Dr Sinclair” with “Dr Sterling” in paragraph 15. The reference to
“Dr Sinclair’s reports” in paragraph 15 is to be replaced with “Dr Sterling’s reports”.
...................................................................
Senior Member
[2014] AATA 201
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4746
2011/4747
Re
Georgina Mackay
APPLICANT
And
Australian Postal Corporation
RESPONDENT
Decision
Tribunal Senior Member Bernard J McCabe
Date 9 April 2014 Place Brisbane The decisions under review are affirmed.
..........................SGD.....................................
Senior Member Bernard J McCabe
Catchwords
COMPENSATION – Ankle injury – Claim for incapacity – Claim for permanent impairment – No medical evidence connecting symptoms to accepted workplace injuries – Decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 19; s 24
Cases
Mackay and Australian Postal Corporation [2013] AATA 368
REASONS FOR DECISION
Senior Member Bernard J McCabe
9 April 2014
Ms Georgina Mackay was formerly employed by Australia Post, the respondent. She injured her right ankle at work in 2004, and experienced a further injury to the ankle in 2006. Australia Post has accepted liability for those injuries under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Ms Mackay asked for compensation for incapacity under s 19 (application no 2011/4747) and compensation in respect of permanent impairment under s 24 (application no 2011/4746). The respondent rejected those claims in reviewable decisions dated 19 October 2011.
The current proceedings have a background that requires explanation. Ms Mackay has lodged a number of applications for compensation over the years in respect of her ankle injury. Six of those applications came before the Tribunal on 17-18 June 2009 but they were withdrawn before the Tribunal completed its review under s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth). The applications were therefore deemed to have been dismissed by the Tribunal: s 42A(1B). Ms Mackay subsequently applied to have the applications reinstated pursuant to s 42A(10) because she claimed her lawyers were not acting in accordance with her instructions when they withdrew the proceedings. The application for reinstatement was refused on 6 May 2013:
see Mackay and Australian Postal Corporation [2013] AATA 368.
The disposition of the earlier proceedings has implications for the way in which I approach the current applications. I do not propose to re-visit the claims made in the earlier proceedings except insofar as the evidence in those proceedings sheds light on the questions at hand. I will focus on evidence relating to incapacity and permanent impairment entitlements which post-dates 19 June 2009. I am not aware of any fresh evidence or developments that would justify revisiting the earlier proceedings.
One of the applications taken to be dismissed in 2009 does merit special mention. That application – no 2008/3881 – refers to a reviewable decision dated 12 August 2008 to refuse liability for a re-injury of the right ankle and injuries to the wrist and hand that were sustained in a fall on 12 July 2008. Since the reviewable decision is taken to be affirmed by the withdrawal of the application, and the reviewable decision says the respondent is not liable for that injury or anything flowing from it, any ongoing problems associated with the fall cannot provide a basis for compensation in these proceedings under ss 19 or 24 of the Act.
As it happens, I do not think anything turns on all that. For reasons I will explain, the relevant medical evidence does not provide any basis for concluding the respondent is liable to pay compensation under s ss 19 and 24. I explain my reasons below.
a brief summary of the facts
Ms Mackay worked at Australia Post. In 2004, she injured her right ankle in a motorcycle accident while delivering the mail. The respondent accepted liability for that injury under s 14(1) of the Act in its determination of 23 March 2004. The applicant was paid compensation and participated in a return-to-work program. The respondent determined there was no further compensation payable in its determination of 29 June 2005.
The applicant subsequently re-injured the ankle on 2 February 2006. The respondent accepted liability for that re-injury on 15 May 2006. The applicant continued to experience problems with her ankle and reported pain and incapacity. She said she was prone to falling, most obviously in July 2008. She was medically retired from
Australia Post on 23 December 2009. She is no longer working, but says she continues to experience pain and swelling, and her gait is affected. She often uses crutches because she has difficulty taking weight on her ankle, and she says she cannot walk long distances. She claims she is permanently impaired and incapacitated for work.the medical evidence
The applicant led evidence from two colleagues at Australia Post at the hearing in addition to her own testimony. They all spoke of Ms Mackay’s impairment and discomfort in the workplace. That evidence is of limited assistance because the respondent says the applicant’s current condition – whatever it might be – is not the product of the injuries for which it accepted liability. I agree that, in order for
Ms Mackay’s application to succeed, I must be satisfied the original ankle injury (and the re-injury in 2006) are connected to the current symptoms she describes. The medical evidence is crucial. I have been provided with a wealth of material from doctors and allied health practitioners recording Ms Mackay’s claims of pain and disability, but that material relies on self-reporting. The more useful material is the collection of reports and testimony provided by the specialists who have investigated the injury itself and commented upon the connection between the injury and the reported symptoms.
The respondent relies on the evidence of Dr Peereboom, who provided reports dated
14 August 2007; 17 September 2007; 21 October 2007; 10 June 2008; and
27 January 2009. The respondent also relies on the evidence of Dr Saxby, who provided reports dated 11 December 2007; 6 May 2008; and 9 October 2008. Dr Saxby also gave evidence at the hearing. The applicant relies on the reports of Dr Purssey dated
18 September 2007; 31 January 2008; 19 November 2008; and 9 March 2012.
Dr Purssey gave evidence at the hearing in 2009, and a transcript of his evidence on that occasion was tendered in these proceedings. The applicant also referred to reports provided by Dr Sterling dated 30 July 2010 and 26 November 2010.
I will say at once the evidence of Dr Sterling does little to assist the applicant’s claim for permanent impairment because he suggests the level of impairment is only 3%. A claim for permanent impairment cannot succeed unless the level of impairment is at least 10%.
The evidence of Drs Peereboom and Saxby is to the following effect: the applicant suffered what was essentially a severe ankle sprain involving a small avulsion fracture in 2004. Dr Saxby explained in his oral evidence that an avulsion fracture occurs when a small part of the bone attached to the tendon comes loose. Ms Mackay may have experienced a further sprain at work in 2006, but that was unlikely to be a source of ongoing problems. Clinical and radiological observations since that date confirmed there was a non-union of the fracture. Both experts agreed this is not unusual and said the condition should have settled down. Indeed, Dr Peereboom noted in his report of
14 August 2007 that he was aware of Olympic athletes who were able to compete successfully despite avulsion fractures. Both experts said the applicant exhibited abnormal pain behaviour and suggested her gait was eccentric and not consistent with the pain she reported. They both referred to an absence of inflammation on the MRI scans. They also insisted there was no organic basis for the applicant’s ongoing complaints of pain and disability. Dr Saxby concluded in his report of 11 December 2007 that the ankle was stable. He reviewed the applicant after her (non-accepted) injury in 2008 and concluded in his report of 9 October 2008 there had been a fresh injury on that occasion that was unconnected to the earlier (accepted) incidents. He left open the possibility that her symptoms in 2008 might be explained by the 2008 fall, although he did not press that view in his oral evidence.
Both of these experts are well-credentialed. I did not have the benefit of hearing from
Dr Peereboom at the hearing, but Dr Saxby was called by the respondent. He was a careful and obviously knowledgeable witness. He clearly explained how he reached his conclusions. He allowed that the applicant’s pain might be an obstacle to her continuing to work in roles that involve robust physical activities, and suggested she would be suitable for administrative duties of a more sedentary nature. But his central conclusions about the impact of the accepted injuries withstood challenge (although I must acknowledge he was not cross-examined by a skilled advocate – he was questioned by Mr MacDonald, a family friend and work colleague of the applicant).
I have already acknowledged Dr Sterling concluded the applicant only experienced a 3% permanent impairment. (I also note Dr Sterling raised the possibility that the applicant might also be experiencing chronic regional pain syndrome, or some other non-organic explanation for her symptoms.) That is not enough to trigger a claim for compensation for permanent impairment. Dr Purssey suggested the applicant was suffering a 20% permanent impairment by 2007 which he attributed to the workplace injuries that had occurred. He revised that estimate to 30% after he saw her in 2008 following the (non-accepted) injury in July of that year. Given the injury in 2008 was not accepted as being work-related, the applicant may only rely on the reports suggesting a 20% permanent impairment. But I am not persuaded I should prefer Dr Purssey’s report in any event.
Dr Purssey has extensive experience as an orthopaedic surgeon but he ceased clinical practice almost a decade ago. He has focused more recently on medico-legal reporting. There were also some shortcomings in his report of 18 September 2007 that were uncovered during cross-examination at the earlier hearing. For example, Dr Purssey had concluded the applicant was unable to walk about 250 metres, but it turns out he formed that view after seeing the applicant walk only a short distance. He relied on her
self-reporting as the basis for his opinion. The rigour of a number of his other observations was also called into question during cross-examination.
Given the more recent clinical experience of Drs Saxby and Peereboom and their demonstrated familiarity with the latest medical thinking in relation to ankle conditions,
I am satisfied their evidence should be preferred over the evidence of Dr Purssey.
I also prefer the evidence of Drs Peereboom and Saxby to the evidence of Dr Sinclair to the extent of any inconsistency. Dr Sinclair’s reports are brief and contain much less detailed explanations of his view.
conclusion
The applicant says she experiences ongoing pain and discomfort. She complains she is incapacitated. She has referred to a good deal of medical and other evidence in support of that claim. But the crucial medical evidence which I have discussed here suggests her current symptoms cannot be connected with the accepted workplace injuries. That means her claims in respect of incapacity and permanent impairment cannot be sustained.
The decisions under review must therefore be affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe .......................... SGD............................
Associate
Dated 9 April 2014
Date(s) of hearing 27 & 28 March 2014 Applicant In person Counsel for the Respondent Mr Charles Clark Solicitors for the Respondent Sparke Helmore Lawyers
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