Jason GALLWAY and Australian Postal Corporation
[2015] AATA 259
•27 April 2015
[2015] AATA 259
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4233
Re
Jason GALLWAY
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Ms S Taglieri, Member
Date 27 April 2015 Place Canberra The reviewable decision is set aside and remitted to the Respondent to give effect to the determinations made by the Tribunal.
.............................[sgd]...........................................
Ms S Taglieri, Member
CATCHWORDS
COMPENSATION – whether Applicant no longer suffered effects of injury – whether pain the result of work related injury – Applicant undertaking modified duties – some continuing symptoms consistent with injury – treatment requires pain management – decision set aside and remitted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16 and 19
CASES
Australian Telecommunications Commission v Barker [1990] FCA 489
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth of Australia v Muratore [1978] HCA 47
Keys and Comcare [2011] AATA 277
Makita (Australia) Pty Ltd v Sprowles [2001] NSWLR 705
Manns v Comcare [2012] AATA 462
McDonald v Director-General of Social Security [1984] FCA 57
Re Prica and Comcare (1996) 44 ALD 46
Smith v Comcare (2013) 212 FCR 335Tran and Comcare [2010] AATA 719
REASONS FOR DECISION
Ms S Taglieri, Member
INTRODUCTION
Mr Gallway has been employed by the Respondent at the Canberra Mail Centre for numerous years, having held the position of a Mail Officer on a full-time basis since about the year 2000.
Part of his duties as a Mail Officer is to perform duties on a large machine called a Bar Code Sorter (“BCS”).
On 9 November 2010 Mr Gallway made a claim for compensation pursuant to the Safety Rehabilitation & Compensation Act 1988 (“the Act”) in respect of left and right hand and forearm pain. The claim was accompanied by a medical certificate which identified his diagnosis as bilateral forearm tendonitis[1] (“the injury”).
[1] T4 and T5 respectively
The claim referred to in paragraph 3 was accepted by the Respondent and payments of compensation made under the Act, until the Respondent determined that it was no longer liable to pay compensation for the injury. Mr Gallway was notified of this by letter dated 20 May 2013 and the determination of the Respondent took effect from the same date (“the Reviewable Decision”).[2]
[2] T62 at page 137 of T Documents
Mr Gallway applied for review of the Reviewable Decision. A hearing of his application took place on the 10th and 11th of February 2015, and was adjourned pending various Rulings and Directions that were necessary. Final submissions were made by the parties’ Counsel on 23 February 2015 and video footage of the BCS machine was received into evidence with my leave on 4 March 2015.
THE ISSUES ARISING
The ultimate issue in this case is whether the determination made by the Respondent on 20 May 2013 was the correct or preferable decision. This in turn requires findings to be made about:
(a)the injury for which liability to pay compensation was accepted;
(b)whether Mr Gallway continued to suffer that injury on and after 20 May 2013; and
(c)if so, did the injury cause incapacity such that weekly compensation, and whether medical treatment expenses continued to be payable thereafter.
As to the first issue, it appears to have been common ground that the injury for which liability had been accepted encompassed (amongst potentially others) diagnosis of left and right sided lateral and medial epicondylitis. The medical evidence also referred to conditions of carpel tunnel syndrome and nerve entrapment. At the hearing Applicant’s Counsel did not seek to persuade me that Mr Gallway continued to suffer from either of these conditions after the determination to cease liability on 20 May 2013. The case put for Mr Gallway was that he continued to suffer bilateral lateral and medial epicondylitis after 20 May 2013 which were productive of pain and incapacity.
THE EVIDENCE BEFORE THE TRIBUNAL
The T documents were received into evidence with the parties consent and have been considered and taken into account to the extent they are relevant. The Applicant gave evidence and was cross-examined at the hearing. The substance and effect of his evidence was that he is restricted in performance of duties on the BCS machine due to pain in his hands and forearms. He described his pain to be constant and probably 8 out 10 in severity, on a scale out of ten. The effect of his evidence in chief was that the level of pain was the essentially the same from the time of onset of injury and to the present.
When specifically asked by his Counsel if he experienced tingling or numbness, he replied “yes…down my forearms”. But, when asked if it was pain or numbness, he clarified that it was just painful and that it was only if he kept his arm and hands lowered or raised for a certain timeframe, he would experience tingling.
Mr Gallway said that at work he was restricted to working 4 x 15 minute stints on the BCS machine since March 2012, but otherwise performed the usual duties of a mail officer on a full-time basis. This, he said, was in contrast to his pre-injury pattern of work that involved him working 2 to 4 hours a day performing BCS duties, while rotating with other duties.
The Tribunal received evidence about the nature of the duties on the BCS machine from Mr Gallway. The Tribunal also received video footage of the operations of the BCS machine. The evidence given provides me with a good understanding of the duties performed on the BCS machine. Essentially, the work entails two aspects:
(i)Loading the letters into the BCS machine from rectangle shaped containers by grasping a comfortable sized bundle of letters with both hands and placing them in the machine.
(ii)Collecting the sorted letters from the BCS machine from four levels, where they have been sorted by reference to destination, and then placing them into containers behind the operator by reference to their corresponding destination. Both hands are used when collecting a bundle of letters and placing them into the containers.
The work is repetitive and reasonably fast paced work. The hands and arms do the vast bulk of the work.
In evidence in chief, Mr Gallway claimed that his pain increases when he performs the duties on the BCS machine. However, in cross-examination, in response to the proposition put to him that the way he was presently working (doing 4 x 15 minute stints on the BCS machine) was comfortable and he was coping, Mr Gallway replied, ”yes, it’s the way I have been going and I can continue”. These two pieces of evidence are not entirely congruous as the experience of increased pain would not ordinarily be consistent with the meaning of comfort. Mr Gallway was also asked about hobbies and other jobs but he said he did not have any.
The evidence given by Mr Gallway as to medical treatment was that since 20 May 2013 he had continued to see Dr Main, his General Practitioner. He had physiotherapy in the past, but it had ceased because it did not assist. In May 2013 it had been recommended that a second ultrasound scan be performed, but that had not occurred because he could not afford the cost. He also gave evidence that he had been provided with a splint which he used. He also performed stretches as required, which had been instructed by the physiotherapist and/or his supervisor at work, Mr Downes.
The effect of the oral evidence given about medical treatment was that after 20 May 2013, the only medical consultations Mr Gallway had were with his General Practitioner. His written statement of evidence provided that he used “Voltaren gel” and “Pain Away cream and spray” for pain.[3] The Tribunal received medical records from Dr Main’s practice into evidence, being records created by Dr Main on 4 June 2013 and 2 August 2013, when he attended Mr Gallway, and also a copy report dated 18 May 2013 from Dr Eaton to Dr Main. The records contain notes confirming that physical examination was undertaken, and there was discussion about Voltaren gel on 4 June 2013.
[3] Paragraph 12 of Exhibit A1
Two medical experts were called to give evidence about Mr Gallway’s current upper limb condition. The Applicant called Dr Bodel, a Consultant Orthopaedic Surgeon. His evidence was largely contained in a report dated 18 December 2012 and in substance was that Mr Gallway probably had mild nerve compression at the wrists and mild lateral epicondylitis. He considered that Mr Gallway was partially incapacitated for work because he was not fit for unrestricted work in mail sorting. Despite this, Dr Bodel noted that Mr Gallway had calloused hands. He suggested that it would be prudent for Mr Gallway to rotate through tasks and not use either arm for prolonged periods. Dr Bodel considered Mr Gallway to be fit for the duties he was performing and the only specific restriction identified was avoidance of strenuous and repetitive tasks.
When cross-examined, Dr Bodel made numerous concessions that the clinical signs elicited during his examination of Mr Gallway were not consistent with diagnosis of lateral epicondylitis or carpel tunnel syndrome (that is nerve compression at the wrists). Upon direct questioning from the Tribunal, Dr Bodel stated that Mr Gallway’s symptoms of pain (despite the absence of clinical signs) were consistent with lateral epicondylitis but not carpel tunnel syndrome. Dr Bodel was also asked by the Tribunal to clarify the comment in his report concerning Mr Gallway having calloused hands. He stated that such callousing was less likely to be caused by duties as a mail officer and more likely to be caused by hard labour, or activities involving heavy weights.
The total effect of Dr Bodel’s evidence was that that while he accepted Mr Gallway had suffered lateral epicondylitis and carpel tunnel syndrome, by the time he examined him, there were no clear clinical signs of either but there were symptoms (i.e. pain) consistent with lateral epicondylitis. Such an opinion appears to be based on the past investigations and examinations by Doctors Eaton and Chase, and his acceptance of Mr Gallway’s continuing complaints of pain and the attribution of that pain to duties on the BCS machine.
The Respondent called A/Prof McGill, a Consultant Rheumatologist. His reports of 29 November 2012 and 22 December 2013 were received into evidence. The substance of A/Prof McGill’s opinion was that on Mr Gallway’s history, investigations performed in the past and the opinions of Doctors Eaton and Chase, Mr Gallway probably suffered bilateral epicondylitis and mild bilateral carpel tunnel syndrome as a result of his work on the BCS machine. However, at the time he examined Mr Gallway, the clinical signs and symptoms did not demonstrate bilateral epicondylitis or carpel tunnel syndrome.
Under cross-examination A/Prof McGill maintained his opinions, despite it being put to him a number of times that he had stated that “there was no evidence of significant residual lateral epicondylitis” and that must mean that there was some evidence of residual lateral epicondylitis. The explanation given for maintaining his view was that Mr Gallway had responded in the affirmative to many enquiries about the presence of pain or tenderness in particular anatomical locations, which was not a pattern of location of pain consistent with lateral epicondylitis. As a result, he appears to have discounted the reliability of his answers about pain.
A/Prof McGill’s view was that the total picture was not consistent with a conclusion that Mr Gallway probably still had lateral epicondylitis. My interpretation of A/Prof McGill’s evidence is that he did not accept that Mr Gallway’s reports of pain were consistently accurate and therefore they ought not be relied upon alone, to base an opinion about whether he still suffered from lateral epicondylitis.
Counsel for Mr Gallway sought to persuade me that the contents of medical certificates, notes or records, made by Dr Main, were relevant to determination of the issues. I consider that they and other medical reports in the T Documents ought to be given less weight than the competing opinions of Dr Bodel and A/Prof McGill, because they have not been tested and in some instances are unclear and not particularly material to the issue of whether Mr Gallway still suffered from the compensable injuries on 20 May 2013. To the extent that they assist the Tribunal in determining the issues, they have been taken into account.
Although Dr Bodel and A/Prof McGill examined Mr Gallway several months after the decision to cease liability, the parties proceeded at hearing on the basis that there had been no material change in Mr Gallway’s condition between May 2013 and the dates both experts examined Mr Gallway.
WHAT IS THE INJURY FOR WHICH LIABILITY TO PAY COMPENSATION WAS ACCEPTED?
The Tribunal finds on the basis of all the evidence received that the Respondent had at all material times before 20 May 2013, accepted liability to pay compensation pursuant to section 14 of the Act for bilateral forearm tendonitis, being an injury which encompassed the diagnosis of bilateral medial and lateral epicondylitis and probably also bilateral carpel tunnel syndrome.
DID MR GALLWAY STILL SUFFER FROM THE COMPENSABLE INJURY ON AND AFTER 20 MAY 2013?
The Tribunal is not persuaded, on the balance of probabilities,[4] that Mr Gallway continued to suffer bilateral carpel tunnel syndrome on and after 20 May 2013. A/Prof McGill and Dr Bodel (after he had been cross-examined and his views were clarified by questioning from the Tribunal) both agreed that Mr Gallway no longer suffered carpel tunnel syndrome.
[4] Briginshaw v Briginshaw (1938) 60 CLR 336, followed in many Tribunal cases, such as Manns v Comcare [2012] AATA 462
Neither Dr Bodel nor A/Prof McGill considered that Mr Gallway still suffered from bilateral medial epicondylitis and the Tribunal finds that he did not on 20 May 2013.
Whether Mr Gallway still suffered lateral epicondylitis on 20 May 2013 is a more difficult issue and it is appropriate to mention the well-established principles that need to be applied to the question of whether the decision under review has been shown to be incorrect or not preferable. As already noted the civil standard of proof applies. In addition, there is no onus of proof as that concept is understood at common law. The status quo of liability ought to remain unless the evidence established otherwise.[5] Nevertheless, the Tribunal needs to have an acceptable level of satisfaction of the case put by the Applicant to allow the application for review.[6] The Tribunal therefore needs to be satisfied that there is some evidence that Mr Gallway still suffered lateral epicondylitis when the decision to cease liability was made on 20 May 2013. Then, if the Tribunal is not persuaded to the requisite degree that Mr Gallway no longer suffered lateral epicondylitis, the Reviewable Decision ought to be set aside.
[5] McDonald v Director-General of Social Security [1984] FCA 57; Commonwealth of Australia v Muratore [1978] HCA 47, both followed in Australian Telecommunications Commission v Barker [1990] FCA 489 at paragraph 8
[6] McDonald; Tran and Comcare [2010] AATA 719; Manns and Comcare [2012] AATA 462
Having carefully considered the evidence of Dr Bodel and A/Prof McGill, the evidence of the Mr Gallway and all other relevant evidence, the Tribunal is not persuaded that Mr Gallway no longer suffered from effects of lateral epicondylitis on 20 May 2013. The effects of it had improved since the original injury but remained, with very minimal limitation in function of his arms and hands due to mild pain in the forearms and hands.
I have made this finding on the basis that there was no evidence upon which I could be satisfied, that Mr Gallway did not genuinely continue to experience some pain in his hands and forearms which were likely to be attributable to lateral epicondylitis given the known history and the entire picture conveyed by the evidence. A/Prof McGill accepted that some of the symptoms of discomfort upon examination were supportive of the diagnosis of lateral epicondylitis. I am not prepared to dismiss lateral epicondylitis as the probable explanation for Mr Gallway’s pain, merely because the pattern of complaint of tenderness did not entirely correlate with a diagnosis of lateral epicondylitis, when there was no evidence put before the Tribunal to otherwise explain the pain.
Despite the finding above, I consider that Mr Gallway exaggerated to some degree, the extent of pain experienced for the following reasons:
·His evidence that he experienced pain in severity of 8 out 10 when he gave evidence at the hearing, was implausible as that level of pain was the same level as when he made the claim for compensation, when he had been certified as totally unfit for work;
·His evidence that his pain remained essentially at the same level always was not consistent with the improved clinical examination findings as time passed and the increased return to work duties.
·That his pain was managed by ‘Pain Away spray/gel’ and that he did not pursue any other treatments with the benefit of Medicare rebates in relation to consultations or investigations.
I am unable to reach any conclusions either favourable or adverse to either party on the basis of the presence of callousing on Mr Gallway’s hands. Dr Bodel considered it more likely explained by hard labour, involving heavy weights, but A/Prof McGill stated it was, “presumably related to his mail sorting duties”.
The respondent urged me to prefer the evidence of A/Prof McGill to that of Dr Bodel for the purpose of determining the issue of whether Mr Gallway still suffered lateral epicondylitis or indeed any injury for which liability to pay compensation was first accepted. I was referred to Makita (Australia) Pty Ltd v Sprowles[7] and invited to dismiss Dr Bodel’s views because they lacked scientific criteria. I am not required to dismiss or accept one expert over another to determine the issues in this case. The court’s decision in Makita concerned the admissibility of expert evidence, not the weighting or effect of expert evidence. In any event, the Tribunal is not bound by strict laws of evidence and I do not find it appropriate to dismiss Dr Bodel’s views. I have considered the views of both Dr Bodel and A/Prof McGill and weighed them up with all other relevant evidence to arrive at the conclusions above.
[7] [2001] NSWLR 705 at paragraph 87
DID BILATERAL EPICONDYLITIS CAUSE INCAPACITY FOR WORK?
The evidence clearly demonstrates that Mr Gallway was performing all duties required of a Mail Officer at 20 May 2013. The only difference between what he did prior to his injuries and on and after 20 May 2013, was that the length of time worked on the BCS machine was modified such that he only worked 4 x 15 minute rotations a day. The uncontradicted evidence is that he coped comfortably with this and had not made any complaints of being unable to perform work full-time according to such a pattern. Despite the decision to cease liability in May 2013, he has continued to work the same pattern full-time and his earnings have been equivalent to the earnings of a full-time mail officer.
In order to determine this issue, I must determine, whether on or after 20 May 2013, Mr Gallway was incapacitated from engaging in work at the same level as he did before suffering the compensable injury.[8] The approach to be taken when determining this question has been considered and settled by Re Prica and Comcare[9] which has been followed in Smith v Comcare[10] and also Re Moon and Telstra[11] and Keys and Comcare,[12] to which I was referred by Counsel for the Respondent.
[8] As required by Section 4(9) of the Act
[9] (1996) 44 ALD 46
[10] (2013) 212 FCR 335
[11] Re Moon and Telstra Corporation Ltd (2006) 93 ALD 740.
[12] [2011] AATA 277
I must consider if Mr Gallway was incapacitated from undertaking work of the same grade or salary. The facts of this case are very similar to Moon, in that the nature and quality of the duties Mr Gallway has performed since 20 May 2013 do not materially differ from his pre-injury duties. The only difference is that the BCS duties are performed for less time and possibly fewer rotations.
Applying the above authorities which ought to be followed, the Tribunal is not satisfied that Mr Gallway was incapacitated by lateral epicondylitis after 20 May 2013. I accept that Mr Gallway suffers some pain while performing BCS duties, but I am not satisfied that he is incapacitated from working as a full-time mail officer, and he has continued to do since 20 May 2013. The authorities do not import into the meaning of “level of work” a notion of pattern of time for which one task of many is performed during a full-time position of employment.
As a consequence of this finding, Mr Gallway is not entitled to compensation pursuant to section 19 of the Act for weekly compensation as he was not incapacitated by lateral epicondylitis, being the only injury he still suffered at the relevant time.
DID MR GALLWAY REASONABLY REQUIRE MEDICAL TREATMENT FOR LATERAL EPICONDYLITIS AFTER 20.5.2013?
The Tribunal has found that it is persuaded that Mr Gallway continued to suffer very mild effects of the lateral epicondylitis on 20 May 2013. Resolution of this question therefore involves a consideration of whether the medical treatment received was reasonably required for lateral epicondylitis.
Section 4 of the Act defines “medical treatment” for which there is a liability to pay under section 16 of the Act. The definition is exhaustive in my view and it is useful to set it out:
"medical treatment" means:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c)dental treatment by, or under the supervision of, a legally qualified dentist; or
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e)an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g)treatment and maintenance as a patient at a hospital; or
(h)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i)any other form of treatment that is prescribed for the purposes of this definition.
Mr Gallway gave evidence that he saw his GP for certificates and advice about managing his pain. He also said that he used “Voltaren gel” and “Pain Away cream or spray”. This evidence was not materially challenged. However, the Respondent argued that seeing the GP for certificates did not constitute reasonable medical treatment. The Respondent did not address whether the use of “Voltaren gel” or “Pain Away cream/spray” did constitute reasonable medical treatment.
The Tribunal has considered Mr Gallway’s evidence and the contents of Dr Main’s notes and reports. The Tribunal is satisfied that what Dr Main did during consultations with Mr Gallway was well beyond merely writing a medical certificate. In particular, the notes and reports demonstrate that the doctor examined Mr Gallway, made observations about his condition and complaints. He also made recommendations as to future management and treatment for his pain.
As such, it is unnecessary for me to determine the question of whether the mere writing of a certificate by a doctor, constitutes medical treatment. I am satisfied that the attendances upon Dr Main constitute reasonable medical treatment for lateral epicondylitis, being the condition Mr Gallway continued to suffer from.
The Applicant’s Statement of Facts Issues and Contentions also refers to a night splint and passive stretching, presumably as medical treatment reasonably required by Mr Gallway.[13] I find that they are not medical treatments reasonably required for the compensable condition (lateral epicondylitis), from which Mr Gallway continued to suffer. The evidence of Dr Bodel upon which this claim was based, was to the effect that such treatment was for carpel tunnel syndrome. As I have found that Mr Gallway no longer suffered carpel tunnel syndrome at the date of the decision to cease liability, I find that provision of a night splint and passive stretching is not reasonable medical treatment for which there is a liability to pay compensation under section 16 of the Act. Further, I do not consider passive stretching to be “medical treatment” within the definition in section 4 of the Act. Regardless, it is an activity expected to be performed and at the direction of the employer.
[13] At paragraph 4.1
I accept the views of Dr Chase and Dr Main that simple analgesia, self-directed exercises and use of Voltaren Gel are reasonable medical treatments to manage pain symptoms from the mild residual lateral epicondylitis Mr Gallway continued to suffer.[14]
[14] T 30 at page 64, T60 at page 135 and Dr Main’s clinical notes, exhibit A6
The Application is allowed. The reviewable decision is set aside and remitted to the Respondent to give effect to the determinations made by the Tribunal.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri ................................[sgd]........................................
Associate
Dated 27 April 2015
Date(s) of hearing 10-11 February 2015 Date final submissions received 4 March 2015 Counsel for the Applicant David Richards Solicitors for the Applicant Slater and Gordon Lawyers Counsel for the Respondent Peter Woulfe Solicitors for the Respondent Australia Post Licensing, Litigation and Compliance
2
7
0