Linton and Australian Postal Corporation

[2008] AATA 526

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 526

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/0572
  N2006/0262

GENERAL ADMINISTRATIVE   DIVISION		)         N2006/0073           N2007/4770
Re		SUSAN LINTON

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal MS N BELL, Senior Member
Dr MEC Thorpe, Member

Date              25 June 2008 

PlaceSydney

Decision

1.        The reviewable decisions in applications N2005/0572 and N2006/0262 are set aside and instead the Tribunal decides that Ms Linton suffered no injury on 19 July 2004 or arising out of anything that happened on that day and that consequently there has been no liability to pay her compensation in relation to the incident on 19 July 2004.

2.      The reviewable decision in application N2006/0073 is affirmed.

3.      The reviewable decision in N2007/4770 is affirmed.

...................sgd.........................

Ms N Bell, Presiding Member 

CATCHWORDS

WORKERS’ COMPENSATION – review of decisions of the Respondent relating to compensation alleged injuries sustained at work in respect of muscular pain in neck and shoulders and head – decisions in matters N2005/0572 and N2006/0262 are set aside – suffered no injury on 19 July 2004 and N2006/0073 and N2007/4770 are affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988; sections 14, 16, 19, 67(8) and 67(9)

CITATAIONS

Riley v Comcare (1994) 48 FCR 449

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Konstantanos Gourvelos and Telstra Corporation Limited [1994] AATA 213

De La Cruz v Australian Postal Commission (1997) 143 ALR 193

REASONS FOR DECISION

25 June 2008 MS N BELL, Senior Member
Dr MEC Thorpe, Member

1.        Ms Susan Linton began work with Australia Post as a Postal Delivery Officer in 1991, sorting mail and parcels, bundling and packing it into motor cycle bags and delivering it by motorbike.  The advent of the V-Sort Frame technology in 1998 brought some changes to Ms Linton’s work.  She worked at the V-sort frame for three or four hours in the morning and then did her deliveries on a motorbike for up to five hours in the afternoon.

2.        Ms Linton has led an unusually active and athletic life, engaging in a number of demanding sports including cross country skiing, horse riding, sail boarding, motor bike riding and bushwalking.  She is an artist and has painted two large commercial murals.  She played a major role in the clearing and fencing of the rural property she owns with her partner.  Ms Linton is, in many ways, a very physically strong and resilient woman.

3.        Ms Linton complains of a range of symptoms, concentrated in her neck, shoulders and head.  They have been the subject of a range of diagnoses by some doctors and others have been puzzled by them.  She contends that her symptoms have been caused by the nature and conditions of her work, including strain she experienced from operating a twist grip on the motor cycle and wearing a heavy helmet, together with four specific incidents or developments of injury:

·26 April 2002 – a gradual onset of pain in her shoulders and neck with headache;

·1 July 2003 – muscular pain down right hand rear side of her neck and into right shoulder blade whilst working at the V- sort frame; and

·22 May 2004 – a muscle spasm in her left shoulder, neck and arm occurring at home after a “big week” at work.

·19 July 2004 – an onset of symptoms when Ms Linton put on extra jumpers and a jacket against the cold and then a helmet and commenced her deliveries.

4.      Ms Linton made a claim for compensation in relation to the incident on 19 July 2004 and a claim for injury arising from the nature and conditions of her work as a postal delivery officer.  In addition, she claimed compensation for permanent impairment.

5.      Australia Post, in spite of having accepted liability in relation to the incident on 19 July 2004 up until 8 November 2004, contends that Ms Linton suffered no injury and has no entitlement to compensation at all.

issues

6.      The essential issue is whether Ms Linton suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (the Act), that is, whether she suffered an injury or an aggravation that arose out of, or in the course of, her employment.

7.      The range of medical opinions about her physical condition is diverse.  While it is not strictly necessary that we reach a conclusion as to the precise diagnosis of Ms Linton’s condition, in order to address the question of causation it is necessary for us to reach a conclusion as to its nature and aetiology.

8.      The picture of causation of her symptoms is also muddied by Ms Linton’s physically active background and a number of activities and incidents, including falls from a horse which she experienced as a sportswoman.   Added to this is some more recent activity she has engaged in, including painting two (9 x 3 and 7 x 3) murals.

9.      We will address these questions in order to reach a conclusion as to causation.  If we find that her injury did arise out of or in the course of her work with Australia Post, we will then consider her specific claims as to the 19 July 2004 incident, the nature and conditions of her work and permanent impairment.

symptoms, diagnoses and opinions as to cause

10.     Ms Linton described a constellation of symptoms including headaches, shoulder pain, neck pain, jaw and tooth pain.  She said these symptoms, now that she ceased work in 2005, are brought on by sitting, looking down, writing, reading, talking on the telephone and watching television for long periods of time and sometimes by walking.  She now avoids a range of domestic chores including shopping, washing clothes and dishes, ironing and vacuuming.  She said she does not drive long distances and for some time she stopped painting, bushwalking and horse riding but has now resumed these activities with some modifications.  She said repetitive sorting, scanning, writing, reading, photocopying, filing and other light  duties she performed at Australia Post all aggravate her condition.  She also said any of the heavier work at Australia Post, such as pushing trolleys, is beyond her.

11.     We observed that, during her oral evidence, she knelt or stood instead of sitting on a chair.  The reason she gave for this was that it wards off headaches and neck pain.

12.     Ms Linton also gave evidence of having painted, commercially, two (9 x 3 and 7 x 3) murals in 2005 and 2006.  These, she said, took longer than she would normally spend on them and involved standing on ladders and scaffolding.  In other aspects of her painting business, she said she works between five and 15 hours per week.  She also gave evidence of having been thrown from a horse in December 2006 while doing some small jumps.  She was flown by helicopter to hospital in Newcastle and discharged two days later. 

13.     Ms Linton also said she goes for bushwalks of five to six hours with the local bushwalking club but sometimes struggles with the easiest of walks and her jaw and neck pain is exacerbated.  She has also taken up kayaking but says she can only do this for short periods.

14.     Dr D M Mathers, Rheumatologist, in his report of 20 May 2005, diagnosed cervicobrachial myofascial pain syndrome with underlying osteoarthritis of the cervical spine.  He originally attributed Ms Linton’s condition to repetitive work activities but later modified his view when he was informed of other, non work accidents and activities experienced by her.

15.     Dr G Champion, Rheumatologist, in his report of 4 June 2005, diagnosed cervical spinal pain syndrome and considered Ms Linton’s work activities to be the cause of her condition.  In cross examination he said he had not been aware of two falls from a horse or Ms Linton’s mural painting.  He also conceded that she has slight degeneration of her spine which could produce symptoms, but only if mechanically provoked.  He said that repetitive and sustained activities most increase the risk of a condition becoming symptomatic, but agreed he did not have details of the rate at which Ms Linton performed activities at work or the frequency with which she alternated her duties.  He also agreed that he would not expect delivering mail in the cold in July 2004 to have a physically traumatic effect on her.  He also said he does not understand why a person would kneel to relieve neck and shoulder pain.

16.     Dr J F Davis, Consultant in Occupational Medicine, in his report of 5 September 2005, diagnosed an occupational overuse injury due to repetitive movements at work.  He later agreed that he had assumed that the movements made by Ms Linton at work were “rapid”.  In cross examination, he said he had not been aware of two of Ms Linton’s falls from a horse or that she had painted the murals.

17.     Professor J Oakshott, Consultant Surgeon and Rehabilitation Physician, in his report of 13 October 2005, was of the opinion that Ms Linton’s symptoms were the result of factors other than any physical injury at work and found no abnormality on physical examination.  He identified no pathology or objective evidence of injury.  When he was advised of the two murals she had painted he was unsurprised, he said, given her physical capabilities.  He said he considered the 19 July 2004 incident to be an insignificant injury when one considers the range of other activities she was capable of.  Professor Oakshott said in oral evidence a fall on one’s head from a horse was more likely to do damage than anything she undertook at work.

18.     Dr N W McGill, Rheumatologist, diagnosed minor constitutional degenerative change in the cervical spine and fibromyalgia.  He considered Ms Linton may experience some discomfort and restriction of neck movement from her cervical spine condition but that her work played no role in this.  He thought her fibromyalgia could explain her other symptoms.  He noted Ms Linton’s habit of kneeling on the floor to alleviate or ward off pain and found no physiological explanation for this.  He regarded her pattern of behaviour as not associated with the physical problems she complained of and considered they were in keeping with a belief system she had adopted.  In cross examination, Dr McGill said he would not conclude that Ms Linton was lying or malingering but he was not entirely sure the belief system she adheres to is one in which she fully believes.  He found, on physical examination, that she had an abnormal psychological response.  He concluded that no physical injury, including a fall from a horse or repetitive work, could produce the pattern of symptoms she complained of.

other activities and injuries

19.     Ms Linton gave evidence of having been engaged in a number of extreme sports and other highly physical activities over the years including sail boarding, week long bushwalks for 10 or 11 hours per day carrying a 20 kilogram pack on her back, trail bike riding, horse riding (which included two falls in 1997 and 2005, the earlier of which rendered her unconscious and required her to take two weeks off work) and cross country skiing (which involved a fall in 1988 that had her wearing a neck brace for a number of days).  She also gave evidence of having cleared the 177 hectare property she owns with her partner and erected, with him, a number of fences on the property.  There are also the two large murals painted by Ms Linton in 2005 and 2006.

20.     We are also aware of a previous claim made by Ms Linton for major depression arising out of her work at Australia Post.  However, there was little evidence of this before us and no expert evidence as to her current psychiatric state.

an injury?

21.     In considering whether Ms Linton had an injury under the meaning of the Act, that is, an injury that arose out of or in the course of her employment, we prefer the evidence and opinion of Dr McGill because he was, in giving his opinion, appraised of all relevant information, including the nature of Ms Linton’s work at Australia Post, the specific incidents of injury she complained of and her past injuries and activities.  We also prefer his evidence and opinion because we found his reports and his evidence to be thorough and analytical.  His acceptance of her underlying mild cervical spondylosis and her fibromyalgia and his approach to her unusual responses and pattern of symptoms, as the product of a particular belief system rather than as a blemish on her credibility, impressed us as a considered and sympathetic view.

22.     We found, in other medical opinions, an unconsidered acceptance of loosely described “repetitive work” as the cause of Ms Linton’s symptoms – often without any detailed consideration of the nature of that work or the specific incidents complained of by her.  We also found the histories relied on to be incomplete and generally excluding knowledge of some of the previous injuries and activities experienced or undertaken by Ms Linton.

23.     Mr Batchelor, for Ms Linton, relied on Ms Linton’s steady attendance on Dr Burgess, General Practitioner, and her consistent complaints of pain and discomfort as supporting the veracity of her claims.  We do not doubt that Ms Linton has complained of pain steadily over the last decade or so.  We do, however, doubt its connection to her work.

24.     We are mindful of the contradiction between the activities engaged in by Ms Linton after her contended injury (horse riding, mural painting, kayaking) and the broad range of work tasks she maintains she can no longer perform (including sorting letters, photocopying and laminating).  Like Dr McGill, we do not leap to the conclusion that she is exaggerating or malingering.  However, we do consider that her perceptions are not based in reality.

25.     We are also mindful that, before her contended injury, Ms Linton engaged in a range of physically demanding sporting activities, including horse riding, bushwalking for up to 11 hours per day carrying a 20 kilogram pack on her back and cross country skiing, two of which gave rise to injuries to her neck.   This history of activity and injury makes it difficult to be satisfied that her current symptoms arose out of her work.

26.     This difficulty is compounded by the nature of the incident on 19 July 2004.  Dr Champion said he would not expect the incident to have a traumatic effect on her, but said her subsequent work activities, which he described as “light duties”, caused her damage.  However, when pressed in cross examination, Dr Champion conceded he made no enquiries of Ms Linton about what those activities were.  Dr Mathers described the July 2004 incident as a “trivial potentiator of exacerbation”.  Professor Oakshott said the incident was not a significant injury when one takes into account what she was capable of doing up until that time.  Dr McGill also considered the incident to be trivial.

27.     As to the nature and conditions of Ms Linton’s work, we note the very light nature of the work she performed after July 2004.  The work she performed prior to that date might be described as heavy and repetitive, although we have no evidence of frequency of repetition or rate, but, again, this must be considered in the context of her other physical activities and her unusual and contrasting responses to that work and to her continued pursuit of her non-work physical activities.

28.     We conclude, on this basis, that her conditions did not arise out of or in the course of her employment with Australia Post.  Ms Linton therefore suffered no injury within the meaning of the Act.  It follows that Australia Post is not liable to pay compensation to Ms Linton for incapacity or for medical expenses.  It also follows that Australia Post is not liable to pay compensation to Ms Linton for permanent impairment or in relation to the nature and conditions of her work.

the reviewable decisions

29.     Some confusion arose in the course of the hearing as to the effect of the series of decisions made by Australia Post.  Two of the reviewable decisions the subject of this application (in addition to the reviewable decisions relating to permanent impairment and a claim in relation to the nature and conditions of Ms Linton’s work) are:

·     16 March 2005 – revoking the determination of 13 December 2004 which denied all liability and determining instead that Australia Post is liable to pay compensation pursuant to sections 16 and 19 of the Act for the period 19 July 2004 to 8 November 2004;

·     8 February 2006 – an “own motion” reconsideration that purported to deny liability under sections 16 and 19 of the Act.  No mention was made of the decision of 16 March 2005.

30.     Some reasons were advanced by Mr Johnson for Australia Post for the confusing “own motion” reconsideration.  All that is necessary for us to state is that we have found that Ms Linton suffered no injury within the meaning of the Act and the reviewable decisions of 16 March 2005 and 8 February 2006 are inconsistent – with each other and with the conclusion of the Tribunal.

31.     On this basis, we set aside both of the above decisions and in their place, substitute a decision that Ms Linton suffered no injury on 19 July 2004 or arising out of anything that happened on that day and that consequently there has been no liability to pay her compensation in relation to the incident on 19 July 2004.

32.     We note, in this regard, the undertaking made by Australia Post to not seek to recover any compensation paid to Ms Linton in relation to the incident of 19 July 2004.

33.     We also affirm Australia Post’s reviewable decisions in relation to Ms Linton’s claims for permanent impairment and for injury arising from the nature and conditions of her work.

34.     The discretion in section 67 of the Act to award costs is enlivened by a decision of the Tribunal that is more favourable to the Applicant.  We note the authorities cited by Mr Batchelor.  The determinations we make are not more favourable to Ms Linton than the decisions we have reviewed.  It follows that we make no order for costs.

decisions

35.     The reviewable decisions in applications N2005/0572 and N2006/0262 are set aside and instead the Tribunal decides that Ms Linton suffered no injury on 19 July 2004 or arising out of anything that happened on that day and that consequently there has been no liability to pay her compensation in relation to the incident on 19 July 2004.

36.     The reviewable decision in application N2006/0073 is affirmed.

37.     The reviewable decision in N2007/4770 is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .......................................SGD.........................................
  Associate: Felicia Daniele

Date/s of Hearing   6 December 2006 and17, 18, 19 & 20 March 2008
Date of Decision   25 June 2008
Counsel for the Applicant          Mr B Batchelor
Solicitor for the Applicant           C Allen, Turner Freeman Lawyers
Counsel for the Respondent     Mr G.T.Johnson,
Solicitor for the Respondent      Mr C Hutchins, Snr Lawyer, Australian Government Solicitor