Jian Jiang and Australian Postal Corporation
[2012] AATA 724
•22 October 2012
[2012] AATA 724
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3279
Re
Jian Jiang
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Dr William Isles
Dr Saw TohDate 22 October 2012 Place Sydney The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
WORKERS COMPENSATION –– whether incapacitated for employment –– conflicting medical evidence –– whether an injury (other than a disease) or a disease injury –– whether employment contributed to injury to a significant degree –– chronic regional pain syndrome – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(9), 5A, 5B, 19,
CASES
Clement v Comcare [2012] FCA 166
Comcare v Etheridge [2006] FCAFC 27
Comcare v Sahu-Khan [2007] FCA 15
Hart v Comcare [2005] FCAFC 16
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
REASONS FOR DECISION
Senior Member A K Britton
Dr William Isles
Dr Saw Toh
In June 2010 Australia Post employee, Mr Jian Jiang made a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of a “right shoulder injury”. Australia Post initially accepted liability for that injury, but in January 2011 refused Mr Jiang’s claim for compensation for incapacity and medical expenses. On reconsideration that decision was affirmed. Mr Jiang now seeks review of that decision by the Administrative Appeals Tribunal.
Mr Jiang claims that he continues to suffer from the effects of the injury and that it was caused by the repetitive work he had been undertaking. Australia Post contends that Mr Jiang is not incapacitated for work as a result of, and nor does he need to obtain medical treatment in relation to, that injury. Furthermore Australia Post contends that the initial determination accepting liability should be revisited.
The central issues to be decided are:
Whether Mr Jiang was incapacitated for work, for some or all of the period, 21 January 2011 to date?
If so, whether the incapacity is as “a result of” the subject injury?
Whether it is reasonable for Mr Jiang to obtain medical treatment in relation to the subject injury?
To put the parties’ submissions in context it is necessary to examine the background to Mr Jiang’s alleged incapacity and the medical evidence.
Motor vehicle accident
In August 2007 Mr Jiang was involved in a motor vehicle accident. On the day of injury his GP made a diagnosis of “sprained neck, shoulders and [illegible]”. Over the ensuing 18 months Mr Jiang saw a number of medical practitioners and reported that he suffered neck and shoulder pain and, on occasion, numbness in both hands (see for example report of Dr Philip Grove, 30 December 2007 and report of Dr Michael Carroll, 11 April 2008).
Mr Jiang claimed compensation for injuries and disabilities resulting from that accident, including “injury to neck and restriction in movement” and “pain in shoulders”. The claim was settled for a significant sum.
Apart from a couple of months where he returned to work on a part-time basis, Mr Jiang did not resume work until January 2009. Prior to his return, Mr Jiang was referred by Australia Post for medical assessment and certified fit to perform his pre-injury duties.
Return to work
On returning to Australia Post in January 2009 Mr Jiang worked in the “business pick up” area. That work involved sorting and delivering heavy items. He complained that he was treated unfairly and given the heaviest and most difficult jobs.
In April 2010 Mr Jiang fractured a toe and could no longer work in the business pick up area. He was given “culling” and “face up” duties, to be performed on a rotational basis. The former involved removing letters and small parcels from a conveyor belt and sorting them into boxes; the latter involved placing envelopes stamp side up and could be undertaken while seated or standing.
Between April 2010 and June 2011, Mr Jiang spent two hours culling and the balance of each day on face up duties. In mid-2011 he was allocated face up duties only. He worked full-time until March 2012 when his hours were reduced to 21 hours per week.
Onset of symptoms
In a statement prepared for these proceedings, Mr Jiang wrote that he developed right shoulder pain after being given culling and face up duties on a full-time basis. When asked to point to the area where he felt pain, he pointed to:
The supra scapular region (or trapezoid region), of the right shoulder girdle
The region of the actual right shoulder joint (the gleno humeral joint)
The lateral border of the right scapula
In an incident report completed on 7 June 2010, answering the question, “How did the accident happen?”, Mr Jiang wrote “facing up the mail for a couple of weeks and pain starting happen”. On the same day, in a letter of referral, his GP wrote:
C/O pain in the back of the R shoulder for 2 weeks, worse today. Triggered by sorting mail.
O/E
Tender over right trapezius, aggravated by movement of R shoulder
Mr Jiang has given various accounts about the nature of his symptoms and when onset occurred. For example, he told: surgeon, Dr Gregory Burrow, in September 2010 that he became aware of shoulder and neck pain over the month after he was placed on culling duties; rheumatologist, Dr Neil McGill in November 2011 that he “became troubled by pains across the upper back and in both shoulder regions” about five weeks after commencing culling; rheumatologist, Dr David Champion in January 2012 that he experienced pain in both shoulders, initially on the left, a couple of weeks after being given culling and face up duties.
Current symptoms
Mr Jiang testified that he continues to experience pain in his right shoulder (as described in [11] above) and that it is worse at the end of the day, and worse again by the end of the working week. He claims that since June 2010 the pain has gradually worsened and interferes with his sleep.
To date the only treatment Mr Jiang has received for the subject injury is physiotherapy and simple analgesics.
Post claim medical assessments
Since making a claim for compensation under the Act, Mr Jiang has been assessed by a number of practitioners, from a range of disciplines.
In September 2010 Dr Burrow made a diagnosis of bilateral soft tissue injuries to the shoulder and scapula area, as a result of “prolonged work in the culling room”. In a report dated 21 September 2010, Dr Burrow recorded that Mr Jiang “[N]ever had [bilateral posterior scapula and shoulder and neck pain] before. It was quite different to the whiplash pain in 2007”. On testing, Dr Burrows found the range of movement in Mr Jiang’s shoulders to be preserved but that of his neck reduced by about 50 per cent.
In November 2010, orthopaedic surgeon, Dr Paul Hitchen concluded that Mr Jiang had not suffered “a shoulder injury” and that the pain in his right trapezial and periscapular region was referred from the cervicothoracic spine. He thought it “highly likely” that Mr Jiang’s restricted neck movement was attributable to the 2007 motor vehicle accident and “possible” there was underlying cervical spondylosis. He made similar findings to Dr Burrow about the range of movement of Mr Jiang’s shoulder and neck.
In March 2011 Mr Jiang was assessed by surgeon Dr Neil Berry. In contrast to Drs Hitchin and Burrow, on testing he found Mr Jiang’s range of neck movement to be unrestricted but the movement in both shoulders, restricted. He diagnosed a chronic muscular strain involving both arms.
Recent medical assessments
More recently, Mr Jiang was assessed by rheumatologists, Drs David Champion and Neil McGill. Each prepared reports and gave evidence concurrently. Despite assessing Mr Jiang within six weeks of each other — Dr McGill in November 2011 and Dr Champion in January 2012 — they reached conflicting conclusions on diagnosis and Mr Jiang’s fitness for work.
Dr McGill concluded that there is no physical diagnosis relevant to Mr Jiang’s symptoms and that he is fit to perform his pre-injury duties. Dr Champion thought that Mr Jiang suffered from chronic regional pain syndrome (CRPS) involving both shoulder joint complexes and the cervical and upper thoracic spine and was unfit for full-time work.
In reaching his opinion Dr McGill thought the following to be relevant. First, the absence of any substantial abnormality revealed on imaging studies (X-rays and ultrasounds of both shoulders, taken in November 2011 and ultrasound of both shoulders taken in July 2012). He thought the “minor pathology” in the rotator cuff revealed on ultrasound would not account for the widespread symptoms complained of by Mr Jiang. He pointed out that those types of results are common in people with asymptomatic shoulders. Second, the marked variation demonstrated on testing in the range of movement of Mr Jiang’s neck and shoulders. On testing Dr McGill found the range of movement of Mr Jiang’s neck to be “full and fluent” and that of his shoulders variable. He also found Mr Jiang’s active (unassisted) shoulder movement to be slow at first but eventually unrestricted; and the range of movement on passive (assisted) testing “substantially less”. Third, he thought that the pattern of pain reported by Mr Jiang to be inconsistent with any physical disease.
Dr McGill was unable to offer an opinion as to whether Mr Jiang’s reported symptoms ― pain in the upper back radiating out to both shoulders and widespread tenderness ― reflected depression or other psychological disturbance, as opposed to falsification.
In his opinion culling and face up work involved almost no movement above shoulder height and while repetitive, was not “excessively so”. In his opinion this work was “entirely appropriate” to be undertaken by Mr Jiang.
Central to Dr Champion’s diagnosis are his findings on somatosensory testing, a “highly repetitive series of comparisons of the responses in the pain area” to light brushing and pin-pricks (Transcript of Proceedings, Jiang and Australian Postal Corporation (AAT, 2011/3279, Senior Member Britton, Member Isles, Member Toh, 30 July 2012) p 236). On deep pressure testing he found abnormal responses, and repetitive deep pressure stimuli in the supra scapular area was associated with temporal summation of pain and abnormal persistence of pain after sensation. He found light touch and static punctate pressure (pin prick type) testing of Mr Jiang’s hands (peripherally) and the supra scapular region (upper shoulder blade area) elicited decreased sensation (hypoaesthetic/hypoalgesic responses) both peripherally and over the supra scapular area. He asserted that these results are typical of chronic pain syndrome.
According to Dr Champion somatosensory testing was not reliant on a person’s subjective response. He asserted that it would be counter intuitive to report, as Mr Jiang did, reduced responses to light touch and more heightened responses to a “benign kind of punctate pressure”. He described Mr Jiang’s responses on testing as “highly characteristic” of disordered sensory processing in the central nervous system — a key indicator of a regional pain disorder.
In Dr Champion’s opinion, while the pathology revealed on imaging studies taken in 2011 was “very modest”, the ultrasound taken in 2012 revealed “some regression” in the left shoulder. While he disagreed with Dr McGill’s description of “minor pathology” he agreed that the pathology alone would not account for the pattern of widespread pain reported by Mr Jiang.
Dr Champion also tested the range of movement of Mr Jiang’s neck and shoulders and made different findings to Dr McGill. He found Mr Jiang’s neck movement on extension to be slightly restricted resulting in pain in his upper back; painful restriction on abduction and forward flexion particularly in the right shoulder, only slight restrictions in other movements.
Dr Champion thought the reason he and Dr McGill had reached such different diagnoses was because they operated in a “different paradigm” and the approach taken by his colleague “discounted the neurobiology underlying the chronic pain experience and the associated hyperalgesic (increased sensitivity to pain) state”. He thought Mr Jiang’s case presented a “beautiful example” of the danger of placing too much weight on pathology because of the poor correlation between pathology and pain related disability.
Is Mr Jiang incapacitated for employment?
Compensation will be payable to Mr Jiang if he is incapacitated for work “as a result of” the subject injury (s 19 of the Act). “An incapacity for work” is defined to include “an incapacity to engage in work at the same level at which he or she was engaged by the … licensed corporation in that work or any other work immediately before the injury happened” (s 4(9) of the Act).
Incapacity for work?
Before determining whether Mr Jiang has been incapacitated for work since January 2011 we must identify the “work at the same level” he had been undertaking prior to the subject injury. Immediately prior to the subject injury Mr Jiang was working full-time on culling and face up duties.
The experts who concluded that Mr Jiang had some incapacity for work, disagree about its extent and cause but agree that the nature of the incapacity was an inability to perform certain movements within reasonable pain tolerances.
Dr Burrow thought Mr Jiang totally unfit to perform his pre-injury duties; Dr Champion thought it advisable that Mr Jiang not undertake such duties, but, if he were to do so, he should work no more than 20 hours per week; Dr Hitchen thought while advisable that Mr Jiang avoid his pre-injury duties he could undertake such duties if rotated and given an opportunity to stretch. The only restrictions recommended by Dr Berry — not to undertake heavy lifting or to work above shoulder height for lengthy periods — did not form part of Mr Jiang’s pre-injury duties.
The range of opinion about Mr Jiang’s fitness for employment is attributable in part to the passage of time — Drs Champion and McGill conducted their respective assessment about 12 months after the other experts — but largely to differing diagnoses. Dr Burrow thought Mr Jiang had sustained a soft tissue injury; Dr Hitchen thought Mr Jiang was experiencing referred pain from the cervicothoraic spine and, possibly, an underlying cervical spondylosis; Dr Berry thought Mr Jiang suffered from muscular strain in both arms; Dr Champion thought he suffered from CRPS. Dr McGill is the sole expert to conclude that Mr Jiang’s complaint of widespread pain was not attributable to any physical disease.
Had Mr Jiang sustained some form of soft tissue injury or muscle strain, consistent with the opinion of Dr McGill, we think it likely that his symptoms would have resolved by the commencement of the claim period. Given their widespread nature, we think it improbable that Mr Jiang’s reported symptoms are simply the result of referred pain from the neck. It follows that on the medical opinion before us that the most probable explanations for Mr Jiang’s symptoms, are, that they have no organic basis (as Dr McGill believes) or, are the result of CRPS (as Dr Champion believes).
Does Mr Jiang suffer from a chronic regional pain syndrome?
Critical to the competing opinions of Drs McGill and Champion is the veracity of Mr Jiang’s complaint of widespread pain.
A review of the medical evidence reveals significant inconsistencies in the accounts given by Mr Jiang to the Tribunal and the experts who assessed him. In these proceedings for example, Mr Jiang testified that he had not experienced any shoulder problems before June 2010. When taken to the extensive evidence of having not only complained of, but making a claim in respect of, shoulder pain following the motor vehicle accident, Mr Jiang responded that he had forgotten. Given the absence of any reference to earlier shoulder problems in the histories recorded in the medical reports tendered in these proceedings, we think it reasonable to assume that Mr Jiang also failed to disclose those problems to the experts who examined him in the context of his current claim.
Similarly Mr Jiang told the Tribunal and some experts that on his return to work in 2009 he was symptom free and remained so until placed on culling and face up duties some 16 months later. That claim is inconsistent with the note made by his GP shortly after his return to work “noticing aggravation in back of neck, lower back stiff”.
A further inconsistency is the description of symptoms given to the experts. Mr Jiang complained to Drs Burrow (in September 2010) and Hitchen (in November 2010) of neck pain. In contrast he told Dr Berry (in March 2011) that he was experiencing shoulder, not neck pain. As Australia Post points out this shift in focus from neck to shoulder complaints occurred after the rejection of Mr Jiang’s claim for compensation on the basis of Dr Hitchen’s opinion that his symptoms were the result of the pre-existing neck injury.
Coupled with these inconsistencies are the discrepancies in movement demonstrated by Mr Jiang on testing. As Dr McGill commented, at times Mr Jiang has demonstrated full movement of both shoulders and markedly restricted neck movement and, at other times, the reverse. While arguably fluctuation in symptoms might account for these discrepancies, they would not explain the discrepancies observed by Dr McGill during the one assessment.
Given these inconsistencies, in our view a cautious approach must be taken to Mr Jiang’s complaint of pain-induced movement.
While Dr Champion’s diagnosis rests in part on Mr Jiang’s self-report it is also based on the results of somatosensory testing. Dr Champion considered that Mr Jiang reported abnormal responses on testing, which in his opinion was characteristic of, and the “best clinical indicator” of, deep secondary hyperalgesia. He thought it “extremely unlikely” that the results could be fabricated.
Dr Champion also thought pathology contributed to Mr Jiang’s condition, pointing out that:
There is rotator cuff; there is supraspinatis tendonopathy; there’s partial tear on the under or bursal surface; there is bursal thickening of a degree reported as consistent with chronic bursitis and on the right shoulder there was a kind of snapping effect under the coracoacromial ligament on abduction on the left side, it was pain that was blocking the abduction, according to the ultrasound interpretation.
In addition he thought the evidence of a C5/6 intervertebral disc lesion to be relevant.
We have before us competing diagnoses by eminent practitioners from different disciplines. A diagnosis of a CRPS will seldom be supported by objective evidence and in our view it would be unreasonable to dismiss Dr Champion’s diagnosis on that basis alone. In any event as he points out there is some objective evidence to support his diagnosis — abnormal responses on somatosensory testing and a degree of pathology. Nonetheless his opinion is also based upon Mr Jiang’s account of widespread symptomology and resultant restrictions in movement. While there may be an innocent explanation for those inconsistencies — poor memory, language difficulties (English is not Mr Jiang’s first language) or, as Dr Champion suggests, fluctuation in symptoms — they would not explain the marked discrepancies in range of movement, including those observed by Dr McGill.
While we cannot exclude the possibility that Mr Jiang suffers from CRPS we think it more probable that, as Dr McGill believes, there is no physiological basis for the symptoms about which he complains. Dr McGill has provided a well-reasoned explanation for his opinion. His opinion provides a plausible explanation for the variation in symptomology and the discrepancies in the range of movement demonstrated by Mr Jiang since the onset of the claimed symptoms in 2010.
In case we are wrong, we will assume that Mr Jiang suffers from CRPS and resultant incapacity — restricted movement — and decide whether that incapacity is a “result of” injury.
Characterisation of injury
Before determining whether Mr Jiang’s incapacity for work was “a result of” injury it is necessary to characterise the subject injury for the purpose of the Act. This is because the Act distinguishes between, and applies different tests of causation to, “an injury (other than a disease)” and a “disease injury” (see ss 5A and 5B of the Act).
Australia Post contends that if, as claimed, Mr Jiang suffers from CRPS and that is the cause of his incapacity, consistent with the approach taken by the Full Court of the Federal Court in Comcare v Etheridge [2006] FCAFC 27, the injury must be categorised as a “disease injury”. In Etheridge, the Full Court considered the meaning of “injury” as defined by the Commonwealth Employees’ Compensation Act 1930 (Cth) — “any physical or mental injury and includes an aggravation, acceleration or recurrence of a pre-existing injury”. In the leading judgement, Branson J said at [35] that the definition:
In the context of workers’ compensation legislation an injury has long been understood in Australia to be a sudden or identifiable physiological change including a change internal to the body (see Kennedy Cleaning Services Pty Limited v Petkoska [(2000) 200 CLR 286; [2000] HCA 45] per Gleeson CJ and Kirby J at [35]-[36]).
In the passage from Petkoska referred to above, Gleeson CJ and Kirby J commented:
[T]he mere fact that a sudden physiological change is in some way connected with an underlying “disease” process does not, of itself, prevent the classification of such a change as an “injury” within the primary statutory provisions that apply to such a case.
We were not taken to, and on scrutinising the evidence could not identify, any evidence of “a sudden or identifiable physiological change including a change internal to [Mr Jiang’s] body”. It follows that the alleged injury must be categorised as a “disease injury”, the relevant disease being CRPS.
Did employment contribute to Mr Jiang’s CRPS to a “significant degree”?
The Act defines “disease” to mean “an ailment suffered by an employee” or an “aggravation of that ailment” that was “contributed to, to a significant degree, by the employee’s employment by the licenced corporation” (s 5B). “Significant degree” is defined as “a degree that is substantially more than material” (s 5B(3)).
Section 5B(2) provides:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
In Comcare v Sahu-Khan [2007] FCA 15 Finn J stated at [16] that the determination of whether an ailment or an aggravation of an ailment was “contributed to, in a material degree” by employment, required a threshold evaluation, namely:
[A]n evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question
While His Honour’s formulation related to the test of causation that applied prior to the amendments to the Act introduced in April 2007, it nonetheless provides assistance to the approach to be taken to the application of the amended definition. Adopting that approach the following questions fall for determination:
What factors — including those listed at s 5B(2) of the Act — contributed to Mr Jiang’s CRPS, or aggravation of his CRPS?
Are any employment-related?
If so, did they contribute to a degree that is substantially more than material?
The duration of the employment: While Mr Jiang had been employed at Australia Post since 2000, he had been undertaking culling and face up duties, on a full-time basis for only a short period before the date of alleged onset of shoulder and upper back pain.
The nature of, and particular tasks involved in, the employment: As noted Mr Jiang undertook face up and culling duties, on a rotational basis, from April 2010 and culling duties only, from mid-2011. In broad terms Drs Champion and McGill agree that that work was repetitive, did not involve heavy lifting or any significant movement above shoulder height. They also agree that this type of work would be unlikely to produce the type of symptoms of which Mr Jiang now complains. Dr Champion however believes that between five to ten per cent of the population are vulnerable to pain-related disorders if they undertake repetitive work. He asserted that it had been “well researched” that:
[r]epetitive muscle and tendon usage patterns produce in vulnerable people – produce in everyone – little almost subliminal sub-symptomatic slow conducting pain nerve impulses into the spinal cord, and that is the mechanism of the biological process of central sensitisation … that is particularly important in the chronic pain experience.
Any predisposition of the employee to the ailment or aggravation: Dr Champion thought it “highly likely” that Mr Jiang’s previous whiplash and associated chronic pain experience resulted in “disordered somatosensory processing in the central nervous system”, leaving him at increased vulnerability to a pain disorder.
Any activities of the employee not related to the employment: There is no evidence of any non-work related activity that might have contributed to Mr Jiang’s condition or experience of pain.
Any other matters affecting the employee's health: Dr Champion thought “psychological factors” also played a contributory role in the development of Mr Jiang’s condition. He explained that a persistent pain disorder of the type suffered by Mr Jiang involves the “integration in the brain of nociceptive inputs and psychological factors”. He thought Mr Jiang’s pre-existent depression together with his perception of hostility and unfairness in the workplace and fears about job security “undoubtedly impacted” on the severity and nature of the condition.
Dr McGill agreed with the proposition that psychological factors can be relevant to a person’s perception of pain and that it was “very possible” that this occurred in this case.
Findings and conclusions: The consensus of medical opinion is that the type of movement involved in culling and face up work is unlikely to have caused the symptoms complained of by Mr Jiang. Dr Champion’s opinion — that work was a substantial contributing factor to Mr Jiang’s CRPS — rests on the assumption that he fell within a small group within the population who have some “underlying vulnerability” to repetitive work.
Even on Dr Champion’s analysis the nature of the work performed by Mr Jiang was but one of a number of contributing factors to his condition. He thought underlying pathology, psychological factors and pre-existing disordered somatosensory processing also played a role. The weight of medical evidence suggests that the neck pathology was caused by the original whiplash injury and that culling and face up duties were unlikely to have contributed to the development of his shoulder pathology. While plain that Mr Jiang perceives that he has been treated unfairly by Australia Post, in our opinion it would be unsafe to conclude as Dr Champion apparently has, that any psychological contribution to the condition is work-related. Not only is this contention not supported by the opinion of a suitably qualified expert, there is evidence of pre-existing psychological problems. (See for example, the reference made by Dr Phillip Grove in his report of 30 December 2007 to Mr Jiang receiving treatment for depression and his opinion that his patient’s recovery from whiplash injury may have been complicated by “psychological factors”).
These non-work related factors must be balanced against those that would tend to support a finding that employment contributed to Mr Jiang’s CRPS. These include Dr Champion’s opinion about the link between repetitive duties and Mr Jiang’s condition. In addition, the timing of the alleged onset of symptoms, shortly after Mr Jiang was allocated face up and culling duties, while not determinative, cannot be ignored.
While possible that employment contributed to Mr Jiang’s CRPS, or an aggravation of that condition, on balance we could not be satisfied that it contributed to a degree that was more than material.
Injury (other than a disease)
In the interests of completeness we will consider whether if, as initially decided by Australia Post, Mr Jiang sustained “injury (other than a disease)”, namely a “muscle strain of the right trapezius”, he would be entitled to compensation for incapacity and/or medical expenses.
Claim for incapacity
A person is incapacitated for work as “a result of” an injury if that injury is a material cause of the relevant incapacity (Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29). See also Clement v Comcare [2012] FCA 166 (at [8]).
The weight of medical evidence suggests that had Mr Jiang suffered a muscle strain of the right trapezius he would have recovered from its effects by the commencement of the claim period. We note that Dr Champion has not suggested that Mr Jiang’s incapacity is a result of a “muscle strain of the right trapezius” or, that it contributed to the development, or aggravation of his CRPD.
Accordingly, Mr Jiang was not incapacitated for work “as a result of” injury and has no entitlement to compensation under s 19 of the Act.
Claim for medical expenses
There is no medical evidence to suggest that any medical treatment obtained by Mr Jiang throughout the claim period was obtained in relation to the “muscle strain of the right trapezius”.
Summary
Given our finding that during the claim period Mr Jiang was not incapacitated for work as a result of the subject injury, or in need of medical treatment in relation to that injury, we must affirm the decision under review.
I certify that the preceding 71 (seventy one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
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Associate to Senior Member Britton
Dated 22 October 2012
Date(s) of hearing 2 July 2012, 3 July 2012, 30 July 2012 Counsel for the Applicant Ross Hanrahan Solicitors for the Applicant Nicole Hinks
Bryan Gorman & Co. SolicitorsCounsel for the Respondent
Paul Jones
Advocate for the Respondent
Donna Hatton
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