Helen Matthews and Commonwealth Bank of Australia

[2015] AATA 344

[2015] AATA 344  

Division

GENERAL ADMINISTRATIVE DIVISION

File Numbers

2014/0061

2014/6089

Re

Helen Matthews

APPLICANT

And

Commonwealth Bank of Australia

RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC; Dr M Sullivan, Member
Date	15 May 2015
Date of written reasons	19 May 2015
Place	Brisbane

In each application the decisions under review are affirmed.

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Deputy President P E Hack SC

COMPENSATION – whether trauma to elbow – reliability of applicant’s account – inconsistency between first accounts and evidence – decisions affirmed

REASONS FOR DECISION

Deputy President P E Hack SC;
Dr M Sullivan, Member

15 May 2015

1. There are two applications before the Tribunal in which Ms Helen Matthews seeks review of the decision of the respondent, the Commonwealth Bank. The Bank is a licensee in the scheme of compensation created by the Safety Rehabilitation and Compensation Act 1988 (Cth).

2. Application 2014/0061 involves the review of a decision of the Bank made on 6 November 2013 which affirmed,

   (a)a decision made on 21 June 2011 that the Bank was not liable to pay compensation pursuant to the Act for a cervical spine condition;

   (b)a decision of the same day denying liability to pay compensation for a left shoulder condition;

   (c)a decision of 23 June 2011 that Ms Matthews was not entitled to weekly incapacity payment for the then accepted left elbow condition after 1 April 2011; and

   (d)a decision of 31 August 2011 denying liability to pay medical expenses pursuant to s 19 of the Act for proposed surgery on Ms Matthews’ left elbow.

3. The subject matter of application 2014/6089 is the Bank’s decision, made pursuant to s 62(5) of the Act, revoking a determination made on 21 June 2011. By that determination the Bank had accepted liability to pay compensation for the left elbow condition, described in the determination as a left lateral epicondylitis.

4. On 12 May 2015 the solicitors for Ms Matthews informed the Tribunal that she wished to withdraw so much of application 2014/0061 that sought a review of the cervical condition liability decision, the left shoulder liability decision and the left elbow medical expenses decision[1]. It is common ground that those decisions must be affirmed. Since there remains one aspect of application 2014/0061 that is not the subject of the concession it is not possible to give effect to a withdrawal as the Act might otherwise permit[2].

   [1]See Exhibit 3.

   [2]See s 42A(1A), Administrative Appeals Tribunal Act 1975 (Cth).

5. What remains in issue in application 2014/0061 is Ms Matthews’ entitlement to incapacity payments for the left elbow after 1 April 2011. The Bank’s revocation decision, the subject matter of the other application, also remains in issue.

6. It is accepted by Mr Black, counsel for Ms Matthews, that the case turns upon Ms Matthews’ reliability as a witness, in particular, whether, as she alleges, she hit or knocked her left elbow against a lift frame at her place of work in late January 2011. 

7. For the reasons that follow we have come to the conclusion that we are not satisfied that her account of that incident is reliable. We reach that view by reference to two categories of contemporaneous documents, prepared by authors who would be expected to be particularly interested in the mechanism of injury – medical practitioners and Ms Matthews’ supervisor at work who commenced the preparation of a workplace health and safety assessment.  To understand why we have taken the view we have it is necessary to recount some history of the matter.

8. The incident relied upon by Ms Matthews was said by her to have occurred as she was coming back from lunch around 1 or 1.30 on the afternoon of Friday, 28 January 2011. She said that as she departed the lift she bumped the elbow against the frame on the exterior of the lift well, not the lift door itself, as her statement[3] says in two places, but the hard surface surrounding the lift.  She had earlier experienced pain in and around the left elbow but she describes the pain resulting from this bump as much more acute. She left work that afternoon around 3.30 or 4 o'clock although we note that the leave records, which form an index to the witness statement of Ms Matia Cindric, her former supervisor, do not indicate any leave having been taken on 28 January 2011. She says, as well, that before her departure that day she reported the incident to Ms Cindric.

   [3]Exhibit 7.

9. On 31 January 2011 Ms Matthews consulted a general practitioner Dr Zaki. He was not her usual practitioner. What is important is that, in his clinical notes of the consultation[4], there is no reference to a mechanism of injury arising from a trauma, rather the complaint is of pain over the past two months to the left elbow which, as we interpret the notes, seemed to be radiating to the left side of Ms Matthews’ chest. It is undoubtedly the case that Ms Matthews was not present at her work for at least some of the day although there is controversy whether she attended work at all that day. Ultimately we need not decide that controversy since it is no doubt the case that she did attend Dr Zaki.

   [4]Exhibit 5.

10. Ms Matthews appears to have returned to work the following day and to have continued in her normal work until she saw her regular general practitioner, Dr Rino Tringali on 22 February 2011. His clinical notes of that attendance record[5]:

    Whilst working as sales associate – continuous repetitive use of left and right upper limb. Data entry. Felt acute left elbow shoulder/neck pain wrist pain

    Right elbow shoulder pain

    DOA^[[6]] 21/02/11 at 9.00 am – continued work till pm, pain deteriorated this am unable to carry out work duties. She has had progressive upper limbs pain L > R /cervical region last 2-3 weeks

    Dr Tringali provided Ms Matthews with a medical certificate[7] which, in answer to the question "how the injury occurred" recited

    Whilst repetitive use of left and right upper limbs carrying out data entry, felt acute pain in these areas

    The date of injury is said to be 21 February 2011. It is remarkable that in neither the clinical notes nor the medical certificate, no reference is made to a bump or knock or trauma.

    [5]Exhibit 1, page 157.

    [6]We take that to mean “date of accident”.

    [7]Exhibit 6.

11. On 3 March 2011 Ms Cindric completed an occupational health and safety report regarding the injury. She no longer has any independent recollection of her conversations with Ms Matthews, but it is evident from the document that the source of information was Ms Matthews. The incident, subject of the report is described in these terms:

    Helen has a sick day on 31/1 due to a sore elbow.  She has 23/2 to 8/3 sick leave due to her sore elbow. 

    In a later part of the document recording "Where Did the Incident occur?" Ms Cindric noted "other – No Incident per se". Again, that recording is not consistent with Ms Matthews account of a knock or bump to her elbow.

12. The first reference to a knock appears in a report of 15 March 2011, a rehabilitation report prepared by Ms Kate Atkins, a rehabilitation consultant with the Bank’s internal rehabilitation provider. Ms Atkins records the background to the injury in these terms[8]:

    Ms Matthews reported that she has felt symptoms in her left elbow for 2-3 months, however thought they would eventually go away. She reported that approximately 5-6 weeks ago she knocked her elbow resulting in significant pain. She reported that 2 weeks later the symptom had not subsided and she consulted with a doctor at a local medical centre, whose name she couldn’t recall, who advised her that there would have been inflammation in the area prior to knocking it and the knock has aggravated the inflammation. Ms Matthews reported that he prescribed her anti-inflammatories and diagnosed her as having “tennis elbow”. She reported that she [sic] advised her to see him again if the symptoms didn’t subside. Ms Matthews reported that on 22 February 2011, 2 weeks later, when the symptoms had not subsided she consulted with her family doctor, Dr Tringali (Nominated Treating Doctor). She reported that he certified her as unfit for work as her symptoms had been worsening as a result of her work duties. Ms Matthews reported that she had been off work since this time.

    [8]Exhibit 1, page 48.

13. Ms Matthews lodged a claim for compensation on 29 March 2011[9]. The claim covers a variety of conditions, including what is described as "acute left elbow…tear in elbow and shoulder". In answer to the question “When were you injured or when did you first notice you were ill?” Ms Matthews recorded. “28 January? Early Feb not sure”. She advised that she first sought medical treatment form Dr Tringali on 22 February but added a handwritten addendum that she initially went to a doctor around 31 January but was unsure of the date and wanted a second opinion. This is undoubtedly consistent with the objective evidence of her consultations with medical practitioners. We note in passing that in answer to the question “Have you ever received medical treatment for a similar injury or illness?” she recorded “No”. The document asked “What action, exposure or event happened to cause your injury or illness?” and her response was “? sudden acute pain ? in left elbow, neck, shoulder” and then, in answer to the question, “What actually injured you or made you ill? For example: a car, the floor, a computer keyboard, a person, a stairway, a box.)” Ms Matthews left that blank except for “?”

    [9]Exhibit 1, page 61.

14. One might have thought that at least in one of those answers some reference might have been made to the trauma involving part of the lift but it is absent.

15. Similarly, there is no reference in the history recounted by Dr Herald, an orthopaedic surgeon consulted by Ms Matthews on 31 March 2011, although reference is made, in passing, in the report of Dr Robert Breit, another orthopaedic surgeon who saw Ms Matthews on 4 April 2011 and whose report of 12 April 2011 records:

    Initially she stated that there was just pain in the left elbow and noted that it started after she simply knocked it when walking in the office, indicating the lateral aspect.

16. Treating doctors, and someone in the position of Ms Cindric, who was making enquiries for the purposes of work safety, would usually be expected to make an enquiry about the mechanism of injury. And, we would have thought, they would record the outcome of those enquiries. It is an important clinical consideration for a medical practitioner, and an important consideration in a workplace health and safety enquiry, to enquire as to the particular mechanism of injury. The contemporaneous documentation, and in particular the documentation of the medical practitioners consulted within days of the injury, make no reference to an account of a single event of trauma aggravating pre-existing pain, but suggest instead gradual onset of pain which the medical evidence otherwise suggests was the product of degenerative change. 

17. It is, as well, of some significance that Ms Cindric, whose evidence we otherwise accept, reports that had she been told, as Ms Matthews says she was, of an incident in which Ms Matthews was injured, she would have been required, as a supervisor, to make, and would have made, a contemporaneous record of the incident, including the mechanism of injury. That absence also casts considerable doubt as to the reliability of the evidence of Ms Matthews on this point. There were other aspects of Ms Matthews’ evidence that was unsatisfactory, instances where she was shown to be unreliable in her evidence.

18. Mr Black stressed that there was some contemporaneous support for her account, but that was some considerable time after the event and some considerable time after the much more contemporaneous recordings that do not make reference to trauma to the elbow.

19. Ms Matthews may well have managed to convince herself that she bumped her elbow. We do not suggest that she is consciously fabricating her account. But the contradictions between the contemporaneous records and her account, together with our otherwise unfavourable view of her evidence, and the view we have of the evidence of Ms Cindric, leave us well short of being satisfied that she did in fact bump her elbow in the way that she says. 

20. Each of the medical witnesses called, Dr Home and Dr Breit, agreed that, absent satisfaction as a matter of fact of the occurrence of the bump or knock, there is no evidence of any connection between the elbow condition and Ms Matthews’ employment. 

21. In light of our conclusion that we are not satisfied that there was a trauma to the elbow, we conclude that the Bank’s decision to revoke the earlier acceptance of liability was correct, and ought be affirmed. Similarly, and it follows from that conclusion, the decision to refuse to pay incapacity payments for the period after 1 April 2011 was correct. In light of those conclusions and the concessions made in relation to other aspects of the decision, each of the decisions under review will be affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr M Sullivan, Member

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Associate

Dated 19 May 2015

Dates of hearing	14 & 15 May 2015
Counsel for the Applicant	Mr M Black
Solicitors for the Applicant	Shine Lawyers
Counsel for the Respondent	Mr D Richards ( directly briefed)