Ing and Australian Postal Corporation - [2000] AATA 1047

DECISION AND REASONS FOR DECISION [2000] AATA 1047

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/862

GENERAL ADMINISTRATIVE DIVISION       )
           Re      VISAKHA ING
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member

Date28 November 2000
PlaceSydney

Decision      The decision under review is set aside. The Respondent is liable to pay compensation to the Applicant in accordance with the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of an injury suffered by the Applicant at work on 25 January 1995 which has resulted in an incapacity for work. This decision is effective as of 1 February 1999 in respect of any incapacity payments for which the Applicant qualifies under s 19 of the Act and as of 25 February 1999 in respect of any compensation for medical treatment payable under s 16 of the Act.
  ..............................................
  Senior Member
CATCHWORDS
COMPENSATION – workplace injury - incapacity for work – injury to cervical and thoracic spine – rehabilitation

Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19

REASONS FOR DECISION

28 November 2000 Mr M J Sassella, Senior Member Dr P D Lynch, Member

APPLICATION

On 3 February 1999 the Visakha Ing ("the Applicant") lodged with the Australian Postal Corporation ("the Respondent") a claim for rehabilitation and compensation (T8) in accordance with the requirements of the Safety Rehabilitation and Compensation Act 1986 ("the Act"). It was in respect of partitions that fell onto Mrs Ing at about 3.50 pm on 25 January 1999 as she sat a table in an amenities room in the Respondent's workplace.
On 26 February 1999 a delegate decided (T11) for the Respondent to accept liability in respect of "upper back injury" that occurred on 25 January 1999. The decision accepted liability for "bruising of neck and upper back" and the compensation was for four days of normal weekly earnings.
On 12 March 1999 a delegate decided (T15) for the Respondent that the Respondent's liability for incapacity for work ceased on 1 February 1999 and liability for the Applicant's medical expenses ceased with effect from 25 February 1999.
On 8 April 1999 the Applicant's solicitor requested a reconsideration (T17) by the Respondent. On 7 May 1999 a delegate of the Respondent decided to affirm the original decision of 12 March 1999 (T21).
On 7 June 1999 the Applicant lodged with the Tribunal an application for review of the Respondent's decision (T1).
The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken in as evidence (Exhibit TD1) in addition to the following material:
Exhibit No Description Date
A1 A2 A3 A4 A5 A6 A7 A8 R1 R2 R3 R4 R5 R6 R7 R8 R9 R10 Report of Dr Patrick Four photographs of Australia Post Amenities Room at South West Suburbs Mail Centre Report of Dr Baz Report of Dr Vote Clinical Records from Fairfield Hospital Bundle of receipts Report of Dr Liew Physiotherapy Report of B. Fernihough Report of Dr Liew Report of Dr Liew Report of Dr Chase Report of Dr Maxwell Letter to the Applicant from Australia Post Temporary Employment Contract signed by the Applicant Temporary Employment Contract signed by the Applicant Temporary Employment Contract signed by the Applicant Letter of referral by Dr Tan to Dr Liew Clinical notes of Dr Tan with attached Migraine Questionnaire 3 September 1999 29 January 1999 13 June 2000 7 April 2000 25 January 1999 various 29 March 1999 13 May 1999 19 May 1999 20 July 1999 8 May 2000 15 June 2000 12 November 1998 30 November 1998 30 December 1998 5 January 1999 16 March 1999 1990 -1998

LEGISLATION

The relevant sections of the Act in this matter are ss 14, 16 and 19. Section 14 provides:
"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.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."
Section 16 of the Act provides, as relevant:
"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.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…"
Section 19 of the Act provides, as relevant:
"19. (1) This section applies to an employee who is incapacitated for work as a result of an injury…
(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…
(3)Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation [in accordance with a statutory formula]:
…
…"

FACTS AND OTHER RELEVANT MATTERS FROM EXHIBIT TD1
Incident report

The Applicant completed an incident report (T3) on 25 January 1999. She made the following points in that report. She was on her tea break. She sat down on a chair facing the television set for about 10 minutes. She was hit by the partition wall as it fell on her upper back. Her injury was not a recurrence of a previous injury or type of illness. She had an absence from work after the day of injury. She obtained treatment from a hospital on the day of the incident at 6.25 pm. There was a witness to the incident, Mr Colin Boyles. He completed a witness statement dated 1 February 1999 (T7). New material in his statement is that "After being hit, [Mrs Ing] was in pain and stayed in sitting position with head on table until ambulance arrived".
A report by Mrs Ing's supervisor included in T3 stated that the partition was a wall that was used to separate a table tennis table from the dining table. As two staff members were playing table tennis one of them bumped into the partition/wall. After the incident, by 28 January 1999, the partition had been removed and replaced by a net. A more permanent solution was being investigated.
The shift manager submitted a report dated 27 January 1999 to the Respondent's Work Environment Branch. New information in that report was that the table tennis game was a doubles game. There was an attempt to prevent the partition falling but it was unsuccessful. The partition wall was removed and disassembled immediately after the event and a temporary net put in place.
Physiotherapy
The Applicant commenced a course of physiotherapy on 30 January 1999 affecting the cervical spine (T4). Approval was sought for 1-10 treatments. On 24 February 1999 the Respondent approved physiotherapy treatment for up to 10 sessions (T9). The letter to the Applicant contained advice on action that should occur if further treatment were desired after those sessions.

Compensation claim

The Applicant's claim for compensation (T8), in addition to above material mentioned that Mrs Ing was born on 28 December 1968, that Mrs Ing was a casual employee and that there were three named witnesses to the incident.

Rehabilitation

Dr Tan, the Applicant's general practitioner, completed a form requesting rehabilitation for Mrs Ing (T6). It is undated. In it he recorded that Mrs Ing had soft tissue injury, cervical spine. It said she was responding well to physiotherapy and that a return to work program should be discussed in two weeks time. Mrs Ing was rejected for rehabilitation on 25 February 1999 (T10) on the basis that she would not significantly gain from a rehabilitation program given the resources available. It was noted that she was employed on a casual basis and was certified unfit for work until 2 March 1999. She was to be referred again for rehabilitation intervention if she was cleared for restricted duties or if her compensation claim was accepted (which it was on the next day). In T16, 18 March 1999, the Respondent's rehabilitation counsellor again rejected Mrs Ing for rehabilitation noting that Mrs Ing's compensation had ceased and that she was, on Dr Tan's certification, fit only for work involving lifting of weights no heavier than 5 kg, restricted pushing and pulling and alternating sitting and standing, until 1 April 1999. She had no work because there were no suitable duties. It was noted that Mrs Ing's contract with the Respondent had expired. Mrs Ing was to be considered again for rehabilitation if her compensation was restored on reconsideration or if she returned to work.
Medical certification

At T13 is a collection of medical certificates issued for Mrs Ing by Fairfield Hospital and by her general practitioner, Dr Tan, between 25 January 1999 and 4 March 1999. The certificate from Fairfield Hospital is not easy to read. It said she had contusions of the neck, shoulder (apparently) and upper back. Treatment was with analgesics. She was unfit for work on 25 January 1999 but fit to return to pre-injury duties on 27 January 1999. Dr Tan on 27 January 1999 diagnosed soft tissue injury cervical spine. He wrote that she needed physiotherapy for two to three weeks and she needed analgesics. She was unfit for work on that day and was to be reviewed on 3 February 1999. He noted that Mrs Ing had commenced work with the Respondent on 23 November 1998.
Dr Tan certified on or about 4 February 1999 that Mrs Ing was totally unfit for work until 17 February 1999. On or about 18 February 1999 Dr Tan certified that Mrs Ing was totally unfit for work from 18 February 1999 until 3 March 1999. A review was set for 3 March 1999. On or about 4 March 1999 Dr Tan certified the Applicant totally unfit for work until 17 March 1999. On 2 July 1999 Dr Tan certified Mrs Ing as physically fit for all pre-injury duties from 5 July 1999 (T22).
Dr Chase
Mrs Ing was referred by the Respondent to Dr R Chase, occupational physician, who reported on 8 March 1999 (T14). In his report the following relevant material was presented. Mrs Ing's employment with Australia Post was as a mail sorter. She worked 30 hours a week. She denied any past medical history and specifically denied any prior neck injuries. She was injured on 25 January 1999 while watching television in an amenities room in Australia Post premises when a partition wall was knocked over by people on the other side who were playing table tennis. The partition fell on the back of Mrs Ing's head. At the time of Dr Chase's medical examination Mrs Ing was taking no medications. Mrs Ing said she had pain from the neck to the top of her head. Her head felt "heavy" and "cold".
Dr Chase observed that Mrs Ing nodded and shook her head when answering questions with no apparent problems. However, he noted that her range of neck movement decreased dramatically on what he referred to as formal examination. There was generalised tenderness of all bony and muscular structures of the entire cervical spine and trapezeii extending down to the thoracic level and mid scapula level. There was a full range of movement in both shoulders but tenderness in all structures of the shoulders.
Dr Chase found no objective physical signs. Mrs Ing was complaining of subjective pain, tenderness and voluntary decrease in range of movement in the neck. He saw her as having soft tissue injury to the cervical spine with possible ongoing mild neck tenderness. Any residual symptoms were probably very minor. He said it was entirely possible that a partition wall falling on Mrs Ing's neck could result in bruising. He saw no potential benefit in rehabilitation. There was no evidence of pre-existing conditions. She required no treatment and "specifically…no physiotherapy". There was "no objective evidence of any ongoing problem in Mrs Ing's case. She [was] fit to perform her full and normal duties." She needed only two to seven days off work. She should then have returned to work on suitable duties for between one and five weeks. By then the injury should have settled. She might have residual aches and pains for several months but these would pass with time.
It was Dr Chase's report that prompted the Respondent to cease compensation coverage for Mrs Ing in its decision of 12 March 1999 (T15). Mrs Ing's solicitor provided the Respondent with two reports in support of Mrs Ing's request for a reconsideration. These were by Dr D Y K Tan, Mrs Ing's treating doctor, and Dr M Liew, rheumatologist.
Dr Tan
Dr Tan on 4 May 1999 (T19), amongst other things, made the following points. Mrs Ing was struck by three parallel partitions rather than a single partition. They fell on her, struck the back of her neck and head and she fell forwards and struck her upper chest against the table. Fairfield Hospital took x-rays of Mrs Ing's neck and chest. There were no fractures. She was prescribed voltaren and prodeine 15 as analgesics. Her early symptoms were pain across the back of her shoulders, pain down her right arm to thumb and middle finger, stiff neck, headaches, drowsiness and dizziness. She had no previous history of neck injury. She had soft tissue injury to the cervical spine.
Dr Tan had asked for a rehabilitation officer to speak to him when he lodged Mrs Ing's request for rehabilitation form (T6) but no one did.
Mrs Ing had reported that she aggravated her symptoms in her neck after she was seated at a table at home tying up small pieces of cake with strings. As a mail sorter she would be seated at work. She was unfit for two weeks beyond that visit to Dr Tan.
In March 1999 Dr Tan recommended Mrs Ing for light duties from 18 March 1999.
Mrs Ing's condition had flared up in March 1999 when she stopped physiotherapy. Dr Tan had her resume physiotherapy.
Dr Tan considered that Mrs Ing suffered more than simple bruising. He agreed with Dr Liew that muscle spasm was contributing to her symptom complex and so physiotherapy was appropriate. He considered that Mrs Ing had soft tissue damage despite lack of gross signs. The injury was caused by a sudden and massive blow by three partitions crashing on to the back of the patient's head. That impact was likely to cause intra-muscular tearing. He saw Mrs Ing's complaints as genuine because of her consistent neck stiffness over repeated examinations. He expected a favourable prognosis.
Dr Liew
Dr Liew, a rheumatologist, wrote on 5 May 1999 (T20) and he made the following relevant points. He first saw Mrs Ing on 26 March 1999. She reported some 50 per cent improvement in her symptoms some six weeks following the accident. Nevertheless, she complained then of pain and stiffness to the neck associated with occipital frontal headaches, pain to the upper back and some radiant pain to the right shoulder girdle, upper limb and occasionally to the contralateral upper limb. He diagnosed soft tissue injury to her neck in the incident on 25 January 1999. It was reasonable to relate her complaints to the injury from the accident. He prescribed prothiaden 25 mg nocte and application of a hot pack, together with muscle strengthening and relaxation exercise concentrating on the cervical and shoulder girdle musculatures. Mrs Ing remained unfit for work with the Respondent or for any other employment for which she was suited. He felt that Mrs Ing would continue to suffer pain and stiffness in the neck with some radiant pain to shoulder girdles and upper back. However, it was unlikely that she had sustained any significant irreversible structural damage to the cervical spine. She was expected to continue to improve with complete resolution in time.
EVIDENCE AT THE HEARING
Mr Smith, for the Applicant, opened the Applicant's case by emphasising that after the incident on 25 January 1999 the Respondent offered Mrs Ing no rehabilitation assistance and no work. Mrs Ing suffers continuing effects. She lodged a claim for compensation for a permanent impairment on 16 June 2000, although no decision related to this claim was before the Tribunal at this time. She was seeking from the Tribunal recognition that she has continuing incapacity and medical attention resulting from the incident and she also seeks rehabilitation. She has not found work since finishing with Australia Post.
Mrs Ing

Mrs Ing's evidence in chief resulted in the following new information.
Mrs Ing's personal history is that she came to Australia in 1988 (aged 20) with about nine years of education in Cambodia. She married in 1989. She embarked on study courses in English and office skills. She worked at Concord Hospital doing data entry during her course. She has never actually been employed in an office. She has worked at sewing, packing and mail sorting for Australia Post from November 1998. She was a casual sorter working from 2.00 to 10.00 pm five days a week. She was uncertain how long the job would have continued, however others who were casual employees at the same time she was a casual are still, to the Applicant's knowledge, working there. She has relatives working at the Australia Post office so she is aware of the situation.
Her work was in the south-western suburbs of Sydney. It involved lifting, pushing and sorting mail with an 18 kg lifting limit. She had done the job without any accidents before the incident in January 1999. She had no earlier health problems with her neck, shoulders or back.
In discussing the events on 25 January 1999 several fresh elements emerged. There was exercise equipment, in addition to the table tennis table, on the side of the partition away from the television set.
Not all three partitions may have connected with Mrs Ing. Two were "saved" as they fell. A set of four photographs showing the partitions and the table was entered into evidence as Exhibit A2.
The Applicant walked with assistance down stairs to the ambulance that took her to hospital. She had pain in her back, chest, head with other aches and pains all over her body. She could not stand.
On the next day, 26 January 1999, Mrs Ing could not get up from her bed. She had a very painful upper back and shoulders. She stayed in bed and took the medications given her.
She had physiotherapy from March to May 1999 with an emphasis on massage of the upper back, neck and head. She had heat treatment. Relief was temporary. She ceased physiotherapy after a rough massage session. Dr Liew agreed she should cease. She went to a sauna instead. This has continued. She also uses a heat pack on her back once or twice a day. She has fewer symptoms in summer. She now has pain across each shoulder and up her neck. The right shoulder is worse. Her arms ache. Her hands sometimes are numb. She has headaches five or six days a week.
Mrs Ing still sees her general practitioner, Dr Tan. He prescribes the use of the heat pack and voltaren for her problems. She discussed returning to work with Dr Tan. He considers she could return to light duties.

Mrs Ing was shown the return to work form at T22 in which Dr Tan said she was fit for pre-injury duty as long ago as July 1999. She had given this to Australia Post but no work was offered to her. She was unsure whether she was fit to return to full duties at the time. She does not now think she can return to work full time but is prepared to try. She has telephoned to apply for jobs outside Australia Post in areas such as packing. She last applied for a job a few weeks before the hearing. There are really no light duties jobs advertised in the newspaper.
Mrs Ing used to do her own gardening but had stopped. She does her own cleaning and housework, although this is painful.
Mrs Ing was aware that Dr Patrick and Dr Vote had recommended that MRI scans be done but she said that none had been done.
Mr Kelly, representing the Respondent, cross-examined Mrs Ing. The following new aspects emerged.
In her early accounts of the fall of the partition Mrs Ing had told the ambulance officers and the doctor in Fairfield Hospital that the screen had hit her on her upper back, not her head. In the compensation claim (T8) the screen was described as falling down on Mrs Ing's upper back. Mrs Ing responded that her sister, a co-worker at Australia Post, had seen the incident and filled in the form for Mrs Ing. Mrs Ing conceded she was not sure whether the partition had hit her on the head. She also said that in Cambodia the concepts involved do not differentiate greatly between the head and the neck. Mr Kelly also confirmed with Mrs Ing that when she first saw Dr Tan her main complaint was chest pain. Mr Kelly suggested that she had mentioned the screen hitting her on her head only to doctors seen more recently.
Mr Kelly put to Mrs Ing that when she saw Dr Chase there was no mention made of shoulder pain. Mrs Ing said her main current problems were her back, her head and her ear. Mr Kelly queried whether she had mentioned her ear problem to Dr Tan. She said that she had but he seemed not to take it seriously and may not have noted it. Counsel stressed that it had been mentioned to only Dr Baz (Exhibit A3). In her report dated 13 June 2000, Dr Baz, an occupational physician, records a noise as present in both of the Applicant's ears, a noise like a wind. There is associated pain. This has been present since the accident.
Mr Kelly quoted from Dr Baz's report (Exhibit A1) where it states that Mrs Ing had no problem using her hands; that she could lift without difficulty and that she has no problems walking. Prolonged sitting, however, aggravates her neck discomfort. The Applicant queried whether she had really told Dr Baz she could lift so easily.
Mrs Ing agreed she could shop and water the garden, albeit with impediments. This work was feasible if not heavy. There was discussion about how this compared to work in Australia Post. Mrs Ing was doubtful she could lift weights of up to 16 kg. She saw her headaches as a major problem. She can lie down at home but not so easily so at work. She saw her back problem as causing her headache. Mrs Ing said she would be prepared to try her old sorting job. She did not clearly answer whether that was also the case on 1 February 1999.
The terms of Mrs Ing's employment with Australia Post were then discussed. Mrs Ing's contract with the Respondent expired on 31 January 1999. This was why her work with the Respondent had ceased. Exhibit R5 was a letter from the Respondent offering employment from 30 November 1998 until 23 December 1998. Exhibit R6 was a contract for this work signed by the Applicant. Exhibit R7 was a contract signed by the Applicant engaging her to work from 29 December 1998 until 30 December 1998. Exhibit R8 was a contract signed by the Applicant securing her to work for Australia Post from 4 January 1999 until 30 January 1999. Mrs Ing said she was unsure of the implications of these arrangements. She did not necessarily accept that Australia Post had no commitment to her employment after 30 January 1999.
Mr Kelly asked Mrs Ing about her headaches. They were worse lately. They were worse in cold weather. She experienced them six days a week. In summer they occur once or twice a week. Mr Kelly put to Mrs Ing that she did not mention headaches when she saw Dr Chase. She responded that he did not seem to have much time for her. She said she told him of the headaches but he was unsympathetic.
Mr Kelly put to Mrs Ing that when she saw Dr Maxwell (Exhibit R4) she mentioned pain in her neck and arm but nothing about headaches.
Mr Kelly asked Mrs Ing about headaches she had experienced prior to the incident. She agreed she had such headaches but they were not like the current headaches.
Counsel for the Respondent quoted from Dr Tan's clinical notes (Exhibit R10) which had been summonsed. These referred to severe and frequent headaches for two weeks in February 1991. Mrs Ing had completed a migraine headache questionnaire. It said she had had headaches for over a year. These were several times a month at times. Other times they were several times a week. They lasted three to six hours. There was discussion about the part of the Applicant's head affected by these headaches. The Applicant suggested that these earlier headaches affected a different part of the head.
Mr Kelly referred to the questionnaire which recorded that the headaches were very painful. It said Mrs Ing's father and sister suffer from the same problem. It said that the weather affected the headaches. Mrs Ing was taking medication for headaches at the time. Mrs Ing's evidence was that these headaches ceased when she gave birth in 1992.
Mr Kelly put to Mrs Ing that she again reported headaches to Dr Tan in 1993 and 1994. The Applicant suggested they might be because she had a second baby. She insisted again that the current headaches are different from these earlier headaches.
Mr Kelly put to Mrs Ing that headaches had been a severe and frequent problem for her since 1989. As regards recent symptoms, he put to Mrs Ing that she had reported headaches to Dr Tan only on 3 and 8 February 1999. Mrs Ing said in reply that she had reported headaches to him many times but that he laughed at her.
Mr Kelly asked Mrs Ing about her playing badminton. She told Dr Baz she played badminton whereas she had told Dr Chase she played no sport and had no hobbies. Mrs Ing said badminton was her mother's suggestion and she gave it up very soon after starting. She was no longer playing when she was injured. She could not recall how often she and her husband had played.
Counsel for the Respondent concluded by suggesting to Mrs Ing that she had recovered by 1 February 1999 and was able to do her previous job. He suggested that she was exaggerating her level of incapacity. She was also exaggerating by insisting that the partition hit her on the head when it did not.
Tribunal member Dr Lynch asked the Applicant a number of questions about her headaches. Her current winter headaches start after she does something like housework, dishes, ironing or hanging out clothes and last two to three hours. They are relieved by resting. They are not accompanied by nausea. The pain starts in her shoulder, goes up her neck to the right side of her head. It is a pulsing pain. The intensity is extreme but relieved by massage around the neck.
The type of headache she had in earlier years would be present when she got up. She was dizzy. She would take a panadol. It would last one or two hours.

Dr Baz

Dr Baz, an occupational physician, was called by the Applicant's representative to give evidence by telephone. Dr Baz had prepared a report dated 13 June 2000 (Exhibit A3) which contained the following new material.
Mrs Ing told Dr Baz that the partition struck the back of her head. She had immediate pain in the neck and head and could not move her head.
She told Dr Baz that her doctor had recommended she return to work on light duties. She took a certificate to this effect to her work place. Her manager wanted her back on full duties. She was not seen by a rehabilitation provider and she seemed to have no workplace assessment. She was not allocated any light duties.
Symptoms reported to Dr Baz included pain in the neck radiating to the top of both shoulders and between the shoulder blades. There was an ache radiating diffusely to the posterior aspect of both arms, especially the right arm. The pain radiated also to the right breast and anterior neck and sometimes to the anterior chest wall. Pain worsens in the morning, in cold weather and when activity increases.
She described daily occipital headaches radiating frontally. About every 10 days this was a very bad headache with "the eyes popping out". There was no dizziness. There had since the accident been pain and a noise in both ears "like a wind". She had no problems with her hands and could lift without difficulty. Prolonged sitting aggravated her neck discomfort. She had no problems walking. She uses panadol intermittently.
Mrs Ing told Dr Baz she drove her children to school but that frequent turning of the vehicle aggravated her pain. She used to enjoy a range of exercise such as badminton, skipping and running but had not done these since the accident except for badminton once, which she found aggravated her neck pain.
She told Dr Baz that she had not returned to normal duties because even at home any bending or twisting or heavy lifting aggravated the pain. She was confident, however, that she could lift up to 10 kg. In mail sorting the bags she would have to lift would vary from 5 kg to 20 kg.
Dr Baz diagnosed a musculo-ligamentous injury to the cervical and upper thoracic region. Her history, presentation and the documentation were consistent with the injury as described. She had sustained a whiplash type injury when a partition struck her from behind while she was seated during her tea break. Mrs Ing's headache, neck and upper back pain, decreased neck movement, aggravation of symptoms by fixed postures and heavy activity involving the upper body were consistent with the injury. There was no evidence of a pre-existing condition. Dr Baz considered all of her current conditions the consequence of the injury as described.
Dr Baz thought Mrs Ing should have further physiotherapy to address her general fitness, her flexibility, especially in the neck and upper back, and a stretching program to increase her cervical movement and activity tolerance. This would require about three months. Continued analgesics were required. It was to be expected that Mrs Ing would have some degree of residual neck pain and restriction to her activity.
As regards Mrs Ing's work capacity, Dr Baz said that she would have been unfit for normal work for three weeks following the injury. She could then have returned on graduated light duties. She could have been expected to return to full duty within six months. In June 2000 Mrs Ing was fit for light, mixed duties. She could appropriately return to work with a 10 kg lifting, pushing and pulling limit on a part-time basis on non-consecutive days with a gradual increase to full-time work. Achievement of full-time duty would be likely to take over six months because of the long delay.
In examination in chief in the Tribunal Dr Baz provided the following additional information. She understood that the partition had hit Mrs Ing in the beck of the head. She relied on her report for this confirmation. She held to her view that there had been a whiplash injury causing headache and radiated pain symptoms.
She regarded the noise in Mrs Ing's ears as not related to the accident.
While the range of symptoms experienced by Mrs Ing might have been expected to lift after five weeks maximum, there is a spectrum of possibilities and Mrs Ing's history of symptoms is within a reasonable critical course. There may have been a better outcome with better rehabilitation opportunities. Her general practitioner had recommended that but it was not pursued. Mrs Ing is currently not working because she had no rehabilitation. This could be remedied but a full work effort would take longer now to achieve.
Mrs Ing really needs to be rehabilitated by Australia Post and assisted by Australia Post to find a new employer.
At present Mrs Ing could perform light duties such as benchwork, retail or mail sorting under a graduated return to work program. She would need a physically strengthening exercise program. She is limited at present by her neck pain, stiffness and headaches. She is limited in lifting, pushing and pulling.
In cross-examination Dr Baz said that she relied on the severity of Mrs Ing's injury in stating that Mrs Ing's recovery period had reasonably taken longer than five weeks. She had not relied wholly on Mrs Ing's own history. She agreed that her examination findings relating to tenderness and loss of range of movement were subjective and within the control of Mrs Ing. However, she found clinical corroboration for much of Mrs Ing's presentation.
Mr Kelly put to Dr Baz that the work at Australia Post is within the Applicant's capacity. Dr Baz was prepared to agree provided Mrs Ing was offered a graduated return to work.
Mr Kelly put to Dr Baz that some of her symptoms, eg the headaches, were present as long ago as 1989. Dr Baz did not disagree with this.
MISCELLANEOUS DOCUMENTARY EVIDENCE

In addition to Exhibit TD1, there were other documents before the Tribunal.
Dr Patrick

Exhibit A1 was a report by Dr W G D Patrick, surgeon, dated 3 September 1999 provided to the Applicant's solicitor. The salient points from that report are as follows.

He recorded injury as at September 1999 as being to the back of the head and to the neck/shoulders and chest. Up to three plywood partitions struck Mrs Ing "on the back of the head and neck".
As at September 1999 Mrs Ing complained of "significant pain in both breasts, left worse than right". This had become worse in the previous three or four months.
Her headache troubled her on most days. It was mainly in the right occipital region. There was some radiation to the right fronto-temporal region. At times it felt "like [her] eyes [were] popping out".
She told Dr Patrick that following her injury she was given light duties. Subsequently Dr Tan gave her a certificate for normal duties which she handed in, however she had not been called back to work.
She had some dizziness in September 1999.
Dr Patrick diagnosed cervical and upper thoracic musculo-ligamentous strain injury and direct trauma to the upper chest. There was "probably some ongoing cervical headache." Her continuing symptoms were genuine, consistent with and significantly resulted from the work injury of 25 January 1999. She was partially incapacitated for her work. She was not fit for rapid or repetitive work, being seated for long periods without being able to move about, or for heavy or repetitive work using her arms.

Dr Vote

Dr J J Vote, an orthopaedic surgeon, wrote a report for Mrs Ing's solicitor dated 7 April 2000 (Exhibit A4). Salient features of that report were as follows:

Some plywood partitions were knocked over and struck Mrs Ing on the back of her head and dorsal area of her spine. She sustained a head injury but was not rendered unconscious.
She said she experienced headaches prior to the accident but they were much greater in intensity and frequency by April 2000. She occasionally experienced paraesthesiae in the anterior chest and right arm.
Mrs Ing was taking voltaren intermittently.
Dr Vote diagnosed musculo-ligamentous injury mainly relating to her thoraco-cervical area and anterior chest area. Her symptoms stemmed from the work accident of January 1999. She would benefit from further physiotherapy and a general stretching program.
Her complaints of discomfort and restriction on certain movements of her back and complaints of her headaches are consistent with the physical findings and history.
She was probably totally incapacitated for work in the first three or four months but she would then have been able to involve herself progressively in a return to work program starting with reduced hours and light work. She was in April 2000 not fit for moderate to heavy manual work of repetitive nature. She could do light work of a part-ambulatory part sedentary nature.

Records from Fairfield and District Hospital

Exhibit A5 is a set of clinical notes from Fairfield and District Hospital. It records, amongst other things, that a hard panel fell on Mrs Ing's back at work. Her chief complaint was upper back injury. Pain was in the upper back, more to the right. The records for 25 January 1999 stated "denies hitting head".

Invoices and receipts

Exhibit A6 is a set of receipts and invoices for treatments Mrs Ing has had. These presumably relate to her wish to have entitlements under s 16 of the Act restored. These accounts might in that case be covered by the Respondent.
Dr Liew

Exhibits A7, R1 and R2 are reports by rheumatologist, Dr M Liew, dated 29 March 1999, 19 May 1999 and 20 July 1999 respectively. Dr Liew provided the report at T20 also. Salient matters in these reports are:

He recorded that three partition boards struck the back of Mrs Ing's head.
Mrs Ing's neck pain had flared up again when she stopped physiotherapy.
Mrs Ing appeared to have sustained a soft tissue strain injury to the neck on 25 January 1999. Muscle spasm contributed to her symptoms.
On her last visit before 29 March 1999 Mrs Ing displayed positive vertebral artery signs during an objective examination. These included headaches, nausea and dizziness with 10 degrees right cervical rotation.
By May 1999 Mrs Ing's condition appeared to have improved generally. Dr Liew advised that she carry out a regular stretching and muscle relaxation exercise program but no physiotherapy as it did not seem to assist.
By July 1999 Mrs Ing was reporting that her neck and shoulder girdle pain had largely resolved. However, pain in the left shoulder girdle and arm had increased because of increased activities. Dr Liew advised Mrs Ing that her condition was muscular and that muscle tension contraction appeared to contribute significantly to her complaint. He advised her to carry out an effective stretching program.
Dr Liew believed Mrs Ing fit for work for which she was suited.

Dr Chase

Dr Chase provided the Respondent with a report dated 8 May 2000 (Exhibit R3). New matters raised in that report were:

Mrs Ing's history was consistent with bruising and soft tissue injury to the cervical spine as a result of a partition wall falling on the back of her head. This would have brought about local bruising and perhaps some injury to the musculature of the neck and thoracic region.
Physical examination revealed very little in the way of objective clinical findings. However, he added that in neck injuries such as whiplash associated disorders it is possible that people will have pains for some months if not years but in the majority of cases they settle down without any active treatment beyond reassurance and the normal activities of daily living.
Dr Chase found a full range of movement on formal examination. He acknowledged slow, steady recovery. He found that Mrs Ing's condition had improved and largely resolved over the 15 months since her injury. The effect of her injury resolved "many months ago". Her symptoms will continue to improve with time.
Mrs Ing will probably have some minor aches and pains in her neck for the rest of her life. This is common in the community and does not constitute an injury per se.
Mrs Ing's alleged ongoing incapacity was said to relate either to her own belief systems and/or to other psycho-social factors that have impinged on her recovery. These would include the stress of her husband's illness through 1999, adjustment factors being a refugee from Cambodia to Australia, undoubted financial difficulties as a result of both their illnesses in 1999, probable depression as a result of the above including the stress itself of the workers compensation process. He saw the workers compensation process as encouraging disability and that could be a significant factor in her belief that she was seriously injured. He suggested that the legal process was partly at fault and he noted that a degree of deliberate fabrication could not be excluded in conjunction with the psycho-social and cultural factors.

Dr Maxwell

Dr D Maxwell, orthopaedic surgeon, wrote a report dated 15 June 2000 (Exhibit R4) in which he made the following relevant comments:

Two partitions fell onto Mrs Ing as she sat at the table and hit her head and shoulders.
She had pain in the back of her head and neck radiating down to the upper thoracic spine.
Mrs Ing may have sustained some bruising and possibly a cervical sprain and direct contusions to her shoulders from direct trauma to her head and neck when the partition fell. By June 2000 Dr Maxwell did not think she was suffering any significant pathological condition of the neck and shoulders.
Mrs Ing's prognosis was excellent.
He did not think Mrs Ing entitled to any ongoing coverage for medical treatment.
Mrs Ing suffered any incapacity for employment for inly one or two weeks at the time of the initial injury. By June 2000 Mrs Ing was quite fit to work as a mail sorter without restrictions. She could do lifting and sorting.

Dr Tan's clinical notes

Exhibit R9 was Dr Tan's referral of Mrs Ing to Dr Liew on 16 March 1999. In the referral he says, amongst other things, that Mrs Ing fell forward and struck her chest against the table. She sustained soft tissue injury.
Exhibit R10 was Dr Tan's clinical notes. Although difficult to read, they appear to include a number of relevant entries.

11 December 1990: Headaches severe. Frequent 2/week. Headache questionnaire
14 December 1990: Headache questionnaire. This led to the diagnosis of migraine headache.
1 March 1991: Headaches much less.
8 June 1991: Headaches daily for 3 months.
29 September 1993: Headache 1 week.
15 March 1994: Frequent tension headaches.
27 January 1999: Three partitions fell on her as she was sitting down. She fell forward and struck her chest against the table. She had pain across the back of her shoulders and pain down her right arm, thumb and middle fingers. Her neck is stiff.
8 February 1999: Headache. Neckache. Physio.
2 June 1999: Return to work on selected duties 3/6 – 3/7.
2 July 1999: She is better. Return to work from 5 July 1999.
23 August 1999: She says pain in her neck down to the mid-thoracic level has worsened. She has difficulty when she twists her back. A constant ache in the back of the neck.

FINDINGS BASED ON THE EVIDENCE OUTLINED ABOVE

The Tribunal considers Dr Chase has underestimated the initial injury. His report refers to a partition when there were in fact three partitions. Also parties agreed in oral evidence that the partitions were made of "chipboard" (some medical reports described them as plywood screens or partitions) and not the usual caneite soft fibre board. The Tribunal acknowledges Dr Chase's observations regarding informal and formal examination but what Dr Chase observed is a common response by patients with painful conditions and he has not documented in his report any precautions he took to take this natural reaction into account in his total assessment.
Dr Chase, in his report of 8 May 2000 (Exhibit R3), persists with his denial of any ligamentous injury but is prepared to consider whiplash because of the Applicant's protracted symptomatology. He found a full range of movement on formal examination. He then acknowledged slow, steady recovery and he finds her condition has improved and largely resolved over the 15 month interval since her accidental injury but states the effect of the injury resolved "many months ago", which is unspecified but a softening of his initial report. However, he also states that Mrs Ing's symptoms will continue to improve with time. The Tribunal takes note of his opinions regarding pain and social and entitlement factors.
Dr Liew assessed Mrs Ing on 26 March 1999, 19 April 1999, 17 May 1999 and 19 July 1999. He obtained a history of three partitions being knocked over by a table tennis player and then hitting Mrs Ing on the back of the head. He recorded a 50 per cent improvement during the initial six weeks post injury. He found a decreased range of neck movement and tense muscles. He concluded that Mrs Ing had significant irritability of neck and in his opinion muscle spasm was contributing to the symptom complex.
The clinical course he observed in Mrs Ing was one of gradual improvement over six weeks then much slower improvement over the next four and a half months. This signifies a more severe initial trauma, musculo-ligamentous damage and slower recovery.
Dr Baz, with the advantage of hindsight, concurs with the slow progress being within the spectrum of the recovery patterns for whiplash injuries. Dr Baz was told by Mrs Ing a partition hit her on the back of the head and therefore this history would lead to an inference of a lower energy impact of the initial trauma than that which the Tribunal accepts. However, Dr Baz is highly critical of the lack of rehabilitation in her report at Exhibit A3, p1:
"…
Her doctor recommended she return to work on light duties. She took a certificate to this effect to the work place. She states her manager wanted her to work full duty. She was not seen by a rehabilitation provider, and does not describe any work place assessment. She states she was not allocated any light duties.
…"

Dr Baz also opined that because of this failure of case management the applicant now requires three months' further physical therapy to:

"…
…address her general fitness level and increase her flexibility particularly in the neck and upper back. She should have a supervised stretching programme to gradually increase her cervical movement and her activity tolerance…
…"

Dr Baz opined that Mrs Ing was currently able to work on light duties graduated both for time and load which she expected would return Mrs Ing "to achieve full duty within 6 months." Dr Baz predicted:

"…
...with further physical therapy and vocational rehabilitation to return to work her residual disability will be mild and her capacity for work will be close to that which she previously enjoyed.
…"

The reports of Drs Patrick, Vote and Maxwell were considered and added little to the picture of the clinical course described already. Dr Patrick highlighted the additional non employment pressures acting on Mrs Ing's symptom complex and his caution regarding:
"…
…Any invasive investigation/treatment which might have the potential to reinforce illness behaviour should be avoided.
…" (Exhibit A1)

Dr Patrick's reference to "illness behaviour" will be addressed further under "applicant's credibility".

Dr Vote reviewed the clinical situation but this was of little additional help to the Tribunal. Dr Maxwell's report was found to be superficial and simplistic and of little assistance to the Tribunal in the consideration of the totality of factors operating in Mrs Ing's complex.
Dr Tan's management of Mrs Ing post accident was considered good and caring. His efforts to encourage earlier return to work in early March was considered optimal by Dr Baz and was earlier than suggested by Dr Liew.
Dr Tan's clinical notes were nearly impossible do decipher in any continuous way to give any certainty to what were the contemporaneous clinical details. However, the clinical notes did show that Mrs Ing did have headaches from 1990 onwards. However, the headache survey led to Dr Tan diagnosing migraine and a trial of anti-migraine medication which did appear to have some initial effect. The questionnaire did not suggest any typical migraine characteristics to the Tribunal. The incidence of headaches was infrequent within the records and the headaches were initially related in time to pregnancies. The frequency of the headaches changed dramatically after the January 1999 accident and did support Dr Baz's opinion that the headaches were related to the neck injury.
APPLICANT'S CREDIBILITY
This is a difficult issue in this case because of Mrs Ing's problematic ability to understand English fully and the use of the interpreter obscured assessment of any flaws in her presentation of evidence.
The Tribunal formed a tentative opinion that Mrs Ing was under considerable financial pressure to encourage her to maximise her symptoms. Dr Chase was convinced that the lack of objective signs of muscle spasm indicated a non-physical causation of her symptomology. However muscle tenderness can be assessed for consistency of response and can therefore be symptoms with signs.
Despite the difficulty with language and interpreting her response to questions, there was consistency in her claim of increasing symptoms, differing from observed clinical improvement. Yet there were examples where she understated her case such as telling Dr Baz she was hit with only one partition. There were certainly social and economic pressures on Mrs Ing to seek compensation but overall the evidence is equivocal and the Tribunal considered her more honest than dishonest. The clinical course was sufficiently clear to ignore the inaccuracies in her evidence but Dr Patrick's reference to her behaviour was considered a wise warning.
CONCLUSION
Mrs Ing was hit on the upper thoracic spine by three heavy wooden screens pushed over by a table tennis player. There was a reasonable probability that she injured her cervical spine which, in common terminology, is called whiplash. Considering that velocity is more important than mass [kinetic energy = ½ mass x velocity2], the kinetic energy imparted to her upper thoracic spine was of moderate severity (relative to a motor vehicle accident). There was no bony injury and no skin laceration, but there was musculo-ligamentous injury to the upper thoracic and cervical spine. Thus the injury was more severe than "simple bruising" as opined initially by Dr Chase.
Considering all the medical reports and the administrative decisions, the Tribunal considers the following an appropriate assessment of the evidence:

The injury was of moderate physical force and produced muscle and ligament injury to the thoracic spine (point of impact) and cervical spine (whiplash). The inclusion of ligamentous injury convinced the Tribunal that the optimistic and initial opinion of Dr Chase was unrealistic.
The initial improvement in symptoms observed and recorded by Dr Tan in the early post injury period (February) presented a window of opportunity to optimise the applicant's rehabilitation. His request (on 4 February 1999) for consultation with Australia Post rehabilitation personnel received no response. A letter of rejection of request for rehabilitation dated 25 February 1999 acknowledged Mrs Ing was unfit for duty until 2 March 1999. A request for a new referral if certain conditions were met seems to have been the only response.
It is this breakdown of provision of a proactive and coordinated rehabilitation service that is considered a failure of due care and a factor in the development of a less than optimal recovery by the Applicant.
The Tribunal accepts that Mrs Ing suffered a whiplash injury to the cervical spine and direct trauma to the upper thoracic spine. She attained around a 50 per cent improvement in the six weeks post injury. She then made a slower and unsteady progressive improvement until July 1999. She then made an even slower and as yet incomplete recovery to the present time.
The Tribunal accepts Dr Baz's analysis of the clinical progress and current status. It accepts Dr Baz's prediction that three months physical treatment is required and a well-graduated "time and load" program to restore Mrs Ing to near full work capacity and with minimal symptoms.

DECISION

The decision under review is set aside. The Respondent is liable to pay compensation to the Applicant in accordance with the Act in respect of an injury suffered by the Applicant at work on 25 January 1999 which has resulted in an incapacity for work. This decision is effective as of 1 February 1999 in respect of any incapacity payments for which the Applicant qualifies under s 19 of the Act and as of 25 February 1999 in respect of any compensation for medical treatment payable under s 16 of the Act.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  18 July 2000
Date of Decision  28 November 2000
Counsel for the Applicant        Mr M Smith
Counsel for the Respondent    Mr B Kelly