Mutawe and Australian Postal Corporation
[2001] AATA 572
•22 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 572
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. N1999/860
N1999/1046
N1999/1963
N2000/504
N2000/762
GENERAL ADMINISTRATIVE DIVISION )
Re Farouk Mutawe
Applicant
And Australian Postal Corporation
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Dr J D Campbell, Member
Date22 June 2001
PlaceSydney
Decision The Tribunal affirms the decisions under review.
..............................................
M T Lewis
Presiding Member
CATCHWORDS
COMPENSATION – incapacity – whether ongoing incapacity in right knee, lower back, left shoulder and/or right elbow arising from various work incidents -– applicant suffers from degenerative condition - credibility of Applicant and medical witness
Permanent impairment - whether applicant suffered permanent impairment to back, right knee, left shoulder and right elbow
Safety, Rehabilitation and Compensation Act 1988: ss14, 19, 24, 27, 62
Compensation (Commonwealth Employees) Act 1971: s27
REASONS FOR DECISION
Mrs M T Lewis, Senior Member Dr J D Campbell, Member
This is a review of a reconsideration decision of a delegate of the Australian Postal Corporation ("the Respondent") dated 10 May, 2000, in relation to the claim of Farouk Mutawe ("the Applicant") for permanent impairment of the back, left shoulder and right elbow. The Respondent affirmed previous decisions dated 15 January 1992, 18 April 1994, 4 June 1999, 16 November 1999, 23 February 2000 and 25 February 2000, that denied liability for permanent impairment. The decision under review also determined that any permanent impairment in the Applicant's back, left shoulder and right elbow did not arise from injuries and incidents the subject of previous claims for compensation or in respect of the general nature and conditions of his employment with the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 in the matter of N2000/762, incorporating the documents relevant to applications N1999/860, N1999/1046, N1999/1963 and N2000/504, including a consolidated index and additional folios in respect of N2000/762.
The Applicant gave oral evidence at the hearing. Dr Maniam, Dr Searle, and Dr Griffith gave oral evidence at the hearing on behalf of the Applicant. The following documents were tendered as evidence on behalf of the Applicant:
Report of Dr N Griffith, neurologist, dated 22 December 1999 (exhibit A)
Reports of Dr A N Searle, orthopaedic surgeon, dated 23 September 1999 and 23 November, 1999 (exhibit B)
Dr D C Maxwell gave oral evidence at the hearing on behalf of the Respondent. The Respondent tendered the following documentary evidence:
Surveillance video film labelled "Farouk Mutawe 12 Powell St. Yagoona" (exhibit 1)
Clinical notes produced in response to summonses issued by the Tribunal on 23 November 1999 to Dr Sheiban, (exhibit 2), Dr Adatio, (exhibit 3), and Dr Boulis, (exhibit 4).
history of claims lodged
Because of the long and complex history in this matter and in order to avoid any confusion the Respondent, on 10 May 2000, made a reviewable decision pursuant to s62 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). This decision in effect provided an omnibus decision bringing together a number of previous decisions being litigated by the Applicant. The following table sets out the relevant history:
Injury type and date incurred Type of compensation claim sought Date of decision in respect of claim (primary decision) Date of reconsideration decision Reconsideration 10 May, 2000
Back and left shoulder, 4 July 1977 1) Permanent impairment:s24 18 April, 1994 23 February 2000 – affirmed ie no liability for injury Affirmed ie no liability for compensation
2) Incapacity and medical expenses: ss14,19 5 March, 1999 21 April 1999 - Affirmed
Back, 22 October 1981 1) Permanent impairment 16 November, 1999 16 November, 1999 Affirmed
2) Incapacity and medical expenses 5 March, 1999 21 April 1999 Affirmed
Injury type and date incurred Type of compensation claim sought Date of decision in respect of claim (primary decision) Date of reconsideration decision Reconsideration 10 May, 2000
Back and left shoulder, 29 April 1986 1) permanent impairment 16 November, 1999 23 February, 2000 Affirmed
2) incapacity and medical expenses 5 March 1999 21 April 1999 Affirmed
Back injury, 8 April,1987 1) Permanent impairment 16 November,1999 16 November,1999 Affirmed
2) incapacity and medical expenses 5 March 1999 21 April 1999 Affirmed
Back injury, 3 Dec 1989 1) permanent impairment 16 November,1999 16 November,1999 Affirmed
2) incapacity and medical expenses 5 March 1999 21 April 1999 Affirmed
Right elbow injury 23 May 1990 1) Permanent impairment 20 May, 1999 4 June 1999 Affirmed
2) incapacity and medical expenses 5 March 1999 and 20 May 1999 21 April 1999 and 4 June 1999 Affirmed
Back and shoulder injury 18 Feb, 1991 1) permanent impairment 21 February 1994 18 April 1994 Affirmed
2) incapacity and medical expenses 24 October 1991 15 Jan 1992 Affirmed
Back and shoulder 22 July 1992 1) permanent impairment 30 December 1999 25 February 2000 Affirmed
2) incapacity and medical expenses 30 December 1999 25 February 2000 Affirmed
Right knee 4 February 1992 Incapacity and medical expenses 5 March 1999 21 April 1999 Affirmed
The Applicant sought review of the decision made by the Respondent dated 21 April 1999 that his right knee injury of 4 February 1992 did not result in any incapacity to work (s19 of the Act). The Applicant received lump sum compensation pursuant to ss24 and 27 of the Act for permanent impairment and non-economic loss respectively, in respect of an injury to his right knee sustained on 4 February 1992. He did not seek review of that decision.
The Applicant also sought review of a decision of the Respondent dated 24 October 1991 that rejected his claim in respect of liability beyond 28 February 1991 for an injury to his back and shoulder incurred on 18 February 1991. The decision was reconsidered and affirmed on 15 January 1992. The Applicant subsequently sought review of the decision of 15 January 1992 by this Tribunal and on 23 December 1993 that decision was affirmed by consent of the parties. At no time prior to the Tribunal's decision of 23 December 1993 had any claim been made by or on behalf of the Applicant in respect of permanent impairment to his back, left arm, right arm or right leg.
Ambit of Tribunal's consent decision of 23 December 1993
The issue arose at the commencement of these proceedings as to the ambit of the Tribunal's consent decision dated 23 December 1993. It was submitted for the Applicant the Tribunal was functus in respect of the Delegate's decision of 24 October 1991 in respect of any entitlement to weekly compensation and medical expenses arising from the injury on 18 February 1991, between the date of injury and the date he ceased employment with the Respondent on 21 October 1992.
The Respondent contended the consent decision of the Tribunal dated 23 December 1993 was effective to determine the Applicant's rights with respect to the injury sustained on 18 February 1991: Bogaards v McMahon (1988) 80 ALR 342, so that the Tribunal was functus in relation to what was then before it. That determination ceased liability on 28 February 1991. However it was submitted there were other injuries both before and after that date and indeed the Tribunal's consent determination of 23 December 1993 related also to the earlier injuries. It was submitted, however, that the injuries to the Applicant's back and left shoulder that he incurred between February 1991 and the date of the Tribunal's consent decision, 23 December 1993 were still open for consideration by the Tribunal.
Alternatively, the Respondent contended that as a matter of discretion the issues considered in the Tribunal's consent decision should not be revisited in such a way as to contemplate a different decision on those issues: Quinn v Australian Postal Corporation (1992) 15 AAR 519. That is, the effect of the injury sustained on 18 February 1991 should be excluded from the overall injury to the relevant areas.
It was submitted for the Applicant that the consent decision of the Tribunal on 23 December 1993 did not impede the claims later made by the Applicant or the review that he currently seeks.
applicant's evidence
Back, left shoulder and right elbow conditionThe Applicant migrated to Australia from Jerusalem in 1972. He commenced work in 1974, as a technician's assistant at the Redfern Mail Centre. The Applicant worked on a mail coding machine. He considered that work was sometimes physically heavy and sometimes light. On some occasions he was required to move heavy parts of the machinery. Although the Applicant reported an injury to his left shoulder in July 1977, in oral evidence he could not recall having had an injury while working at the Redfern Mail Centre.
In 1980 the Applicant was transferred from Redfern to Rushcutter's Bay to a position of mail officer. His duties involved sorting mail, tipping mail bags into bins, and loading bags from the floor to a device for moving the bags. The Applicant said the bags, that weighed on average 16 kgs., contained large and small sized letters, as well as parcels. The Applicant recalled that at the time he consulted his general medical practitioner Dr Joshi, but he could not recall visiting Dr Joshi in October 1981. In cross-examination the Applicant could not recall any incident prior to his accident in the Turrella Mail Centre in April 1986. Nor could he recall having related any incident prior to 1986 when he spoke to Dr Mellick seven months previously.
The Applicant commenced working at Turrella Mail Centre in 1986. He said that on 29 April 1986 he injured his left shoulder and lower back while lifting a mail bag weighing 22kg to the bins. He took time off work and consulted Dr Adatia about his injuries. Dr Adatia referred him for X-ray and prescribed medication for the pain. The Applicant said there was no improvement in the symptoms in his back and shoulder at that time. He returned to work at the Turella Mail Centre but later took more time off because of pain to his back and shoulder, but could not recall the date. The Applicant claimed compensation in respect of these injuries.
In relation to the incident on 29 April 1986, the Applicant told Dr Maxwell (T99) that he took two days off work for the injuries to his left shoulder and lower back and then returned to work and kept working. In cross-examination the Applicant could not recall what he had said to Dr Maxwell during the medical examination on 24 February 2000.
In relation to the Applicant's injury in April 1986, he consulted Dr Maniam who reported on 3 December 1991 (T20). Dr Maniam noted that the Applicant took a two day rest period during which time he attended physiotherapy. After symptoms gradually improved he returned to work. Dr Maniam noted the Applicant still complained of "some minimal pain" although this did not disturb his physical activity in a significant way. The Applicant conceded in cross-examination that after the incident on 29 April he took two days off before returning to work but he said he then commenced taking sick leave on occasions when he felt pain.
In 1987 the Applicant made a claim for compensation in relation to an accident in that same year. However when he consulted Dr Mellick during March 2000 (T101) he said he had no recollection of that accident. When confronted with this in cross-examination he said he could not remember, but he had pain "all the time".
On 3 December 1989, he injured himself while loading a box, weighing 30 kgs, from a conveyor belt to the wheeler. He said he dropped the box as he was lifting it from the conveyor belt and hurt his back and shoulder. The conveyor belt was positioned just above the height of his waist. The Applicant said he had time off work for this injury but he could not recall for how long. He sought medical treatment from Dr Maniam, his treating orthopaedist, in relation to this injury. The Applicant said he first experienced pain in his back and left shoulder after the accident in 1986, but felt more pain after an accident in 1989. He agreed in cross-examination that the 1989 accident was the most severe incident that had occurred. In his report dated 27 March, 2000, Dr Mellick recorded that the Applicant recalled an incident on 3 December 1989 where he was lifting a box and experienced pain in the back and the left shoulder (T101). As a result of the pain, he was away from work for two days. Dr Mellick recorded that the Applicant said the symptoms continued after that until another incident in 1990 when he was picking up bundles of mail. However in cross-examination the Applicant had no recollection of what he said to Dr Mellick about that incident.
The Applicant continued working at Rushcutters Bay after this incident. He was required every 3 to 4 weeks to feed letters from a stacking table into a machine, whilst standing. He said he would insert about 30,000 letters in the machine per hour. This required him to move quickly to keep up with the machine. He said if he did not work fast the machine would slow and his supervisors would know he was not working quickly.
The Applicant said that on 23 May 1990 he noticed pain in the muscles of his right elbow that had spread from his lateral right forearm. He reported the incident and sought medical treatment and physiotherapy. He took time off work for the injury, but again could not recall for how long. As a result of this, the Applicant was no longer deployed feeding bundles of mail into the machine. He claimed compensation in respect of this injury. The Applicant described the pain he felt in his right elbow as "a sudden burst of pain". He said he stopped working after he informed his supervisor that he had hurt his elbow. When challenged in cross-examination that he was exaggerating, he denied that and said he felt sudden pain, and continued working for "a couple of minutes" or "five minutes" or "one hour" and then stopped. However, in a document signed by the Applicant dated 23 May 1990, he explained that the pain "increases when picking mail from trays to feed the machine" (T13).
In relation to the incident on 23 May 1990 Dr Mellick noted in his report that the Applicant could not recall or give him details about this incident. When asked in cross-examination why he had no recollection of the incident when questioned about it by Dr Mellick, the Applicant could not recall if Dr Mellick had asked him specifically about this incident or if he had given him an answer.
The Applicant said that the pain in his left shoulder and lower back continued after the onset of the problems with his right elbow. The pain in his left shoulder and lower back also interfered with his work performance, in particular, the task of opening and screening bags of mail, as he felt pain when he carried anything heavy.
On 18 February 1991, whilst lifting bags of mail from the wheeler on to a ULD ("Unattended Loading Device"), the Applicant felt pain in his left shoulder and back. He then took time off work and consulted Dr Maniam. The Applicant also said the symptoms in his right elbow persisted. Dr Maniam prescribed medication for his pain and physiotherapy for his back, shoulder, elbow and knee. The Applicant continued physiotherapy for all these conditions for some 1½ years. Dr Maniam administered manipulative therapy under general anaesthetic on the Applicant's back. He said the manipulation helped his back on that occasion, but the pain returned after a "couple of hours". He received compensation from 18 February to 27 February 1991 (T4, p19).
In October 1991 Dr Adartia, the Applicant's general practitioner, referred him to Dr Maniam for specialist opinion. The Applicant has remained under Dr Maniam's care since that time.
Knee injuryOn 4 February, 1992, whilst still working at Rushcutter's Bay Mail Centre, the Applicant slipped on a wet floor in the toilets and fell on to his knees. As a result of a consequential injury to his knee the Applicant was unfit for work from 12 to 14 March 1992 and again on 7 May 1992. The Applicant sought medical attention from the medical officer at the Mail Centre. He had physiotherapy treatment to his knee and he took pain-killers. He could not recall when he ceased having physiotherapy for his knee. He continued working after the knee incident but his duties were restricted to "facing up" the letters and fixing labels on mail bags, which he performed whilst seated. The task of "facing up" involved placing the letters face up on a tray. Once full, the tray was then placed on a "kingfisher" which in turn took the mail to the loading machine.
From time to time the Applicant was referred to doctors for examination on behalf of the Respondent. It was suggested to the Applicant that about April 1992 the Respondent informed him of a program to have him return to perform full duties. However he did not recall having been so informed.
Further injury to lower back and left shoulderOn 22 July 1992, while the Applicant was performing the task of "facing up" letters, the chair underneath him moved and he fell from the chair. The Applicant said that he felt pain in his lower back and left shoulder after this fall. In oral evidence, he described the pain as "worse than before". The Applicant consulted Dr Maniam after this incident. Dr Maniam certified that the Applicant should undertake "lighter" jobs. However when the Applicant returned to work after taking some time off after that incident, the shift manager refused to give him lighter duties. The Applicant said he could not cope physically with the normal task of opening and lifting bags of mail. Because the Respondent refused to pay him compensation he took sick leave. The Applicant said he continued to feel pain in his knee and elbow at the time of the injury to his lower back and left shoulder. Dr Mellick, in his report (T101), noted the Applicant could recall this incident which he described as an occasion when he was lifting a bag which caused pain in his back and left shoulder. The Applicant told Dr Mellick that as a result of this incident he was away from work for two days. However in cross-examination the Applicant could not recall the amount of time he took off work immediately following this incident.
Voluntary redundancy and further employmentOn 17 September 1992 the Applicant was offered a voluntary early retirement. He said he accepted this offer because he could not cope with the "full duty job" the Respondent kept " 'pushing' him to do" and saw the redundancy package as an opportunity to get money to leave the job. The Applicant did not seek employment after accepting the retirement package until he started work as a driving instructor about one year later in 1994. He worked as an instructor between 2 to 4 hours a day and was paid by the hour. For the first three years the Applicant worked for himself but from 1997 he was employed by the Apia Driving School as a part time driving instructor. He said he worked for no more than 20 hours each week and sometimes less. The Applicant decided to work for Apia because he wanted to limit his working hours due to the pain he was experiencing in his back, shoulder and knee. He ceased working as a driving instructor in July 1999. He said he has not found further work since this date and has been in receipt of a disability support pension since October 1999.
Current symptoms
The Applicant said the symptoms in his shoulder, right elbow and right knee had not changed since ceasing work with the Respondent. He said because of the symptoms in his right arm he found it difficult to do tasks requiring use of his right hand, such as holding scissors, and writing for a long time. He said after about five minutes his arm felt "very painful". He said he no longer does tasks that require the use of his right hand. He also said he could not use his left arm for lifting heavy things, but he could carry shopping weighing 3 to 5 kgs. In relation to his back the Applicant said he experienced pain after sitting in a car for about one hour. He uses a special belt and a small cushion behind his back, as recommended by his doctor. He also felt pain in his lower back after climbing long flights of stairs. The Applicant said he felt numbness in his left leg when he started to walk and he needed to sit down after about 10 to 15 minutes.
In his report dated 8 May 2000 Dr Sinnathamby, the Applicant's general medical practitioner, noted the Applicant "cannot clean his house, or garden, difficulties with shopping" (PT104, p375). However the Applicant said in cross-examination that he had never done gardening, shopping or cleaned his house.
The Applicant said the symptoms in his shoulder have continued since 1989; in his right elbow since the incident in 1990; in his back since 1989; and in his right knee since the incident in May 1990. However Dr Hughes examined the Applicant in October 1991. He noted in his report dated 24 October 1991 that the Applicant "complains of only occasional slight aching in his back and left shoulder" (T15). Dr Hughes also noted that examination of the Applicant's left shoulder "revealed no muscle wasting" and "full painless movements". However, in cross-examination the Applicant said this was not true and at the time he did not have full movement in his left shoulder. Dr Hughes also noted the Applicant's back "revealed a normal lumbar lordosis" and he "reached to his ankles with outstretched fingertips without any tilt of the lumbar spine or spasm of the sacrospinalis muscles". Dr Hughes also stated the Applicant could achieve a straight leg raise. In cross-examination the Applicant disagreed with this account.
During the hearing the Applicant was requested to demonstrate how far he could bend forward, and he proceeded to bend no further than about 10 degrees. He said he squatted to pick things from the floor. He said he could not bend further than the degree he demonstrated without feeling severe pain.
In a report dated 11 November 1991 (T19), Dr Parnall, Commonwealth Medical Officer, noted the Applicant's "back flexion was to mid leg" and that his "shoulder movements were normal". However in oral evidence the Applicant said that at the time he saw Dr Parnall he was unable to bend forward to touch mid-leg. Nor did the Applicant agree that his shoulders movements were "full".
Dr King in his report dated 9 April 1992, noted the Applicant could bend slowly to knee level from a standing position and he sat upright in a couch with fingertips reaching to his ankles (T25). However, in cross-examination, the Applicant disagreed with Dr King's account of his level of movement.
The Applicant was also examined by Dr Ambrose, Commonwealth Medical Officer. In a report dated 9 July 1992 (T26), he noted the Applicant maintained a rigid lumbar spine. In cross-examination the Applicant disagreed that on that occasion he was unwilling to move his spine, or that he was pretending that his spine was more restricted than it actually was. In fact, the Applicant could not recall the detail of what he said or did during his consultation with Dr Ambrose.
In his report dated 23 September 1999 (exhibit B), Dr Searle, orthopaedic surgeon, noted the Applicant's movements were improved whilst dressing as compared to when he was being examined. He also noted the Applicant's ability to feel sensation over his right leg was diminished. In cross-examination the Applicant said he could not recall what he said or did during the examination with Dr Searle.
In his report dated 14 May 1999 Dr McGill, rheumatologist, noted the Applicant had a full range of movement in both of his elbows (T82). The Applicant disagreed generally with what the doctor wrote and said he had no recollection of whether or not he had full movement in both of his elbows. When asked in cross-examination whether he was able to fully move his elbow, the Applicant said he could not do that. The Applicant also said he could not fully move his lumbar spine, or his shoulder.
When asked why he stopped his work as a driving instructor in July 1999, the Applicant said he could no longer work because he felt more pain. He said the way in which he had to turn his head, shoulder and knee caused pain to his knee and back. He said he stopped because he could not move or work. In his report dated 23 June 1995, Mr Anthony, clinical psychologist, noted that, in relation to his work as a driving instructor, the Applicant reported "pain and restricted movements especially turning of his head and body interfered with his work performance" (T49). However in cross-examination the Applicant said that turning his head and body was not the main problem with his work as a driving instructor. This was despite Dr Griffith's report dated 18 July 1999 where he noted the Applicant's head turn to the right was limited to 45 degrees and 30 degrees to the left (T89). In cross-examination the Applicant could not recall whether at the time of the examination his head turns were limited to the degree noted.
In relation to the injury to his right elbow the Applicant's evidence was that it did not stop him from driving, and that he was able to use his right hand on its own. However in his claim for permanent impairment to his right elbow, dated 1 April 1999, the Applicant stated it was "necessary to drive an automatic vehicle so that I can control the steering wheel with the left hand" (T79). He also said "when pain in right elbow I stop work as a driving instructor and stop using my right hand". In cross-examination, the Applicant said he could use his right hand when driving, but not for long.
In his report dated 8 June 1986, Dr Eggins noted that on examination the Applicant could raise each leg to 90 degrees without expressing any concern (T53). However, in cross-examination, the Applicant denied that he did not feel pain when he raised his legs to that level.
The Applicant was asked whether he thought it was probable that all of the doctors who examined him and reported his movement as greater than what the Applicant had been claiming, were right. He replied that he did not disagree with the doctors.
In his report dated 24 February 2000 Dr Maxwell noted that the Applicant was able to flex his lumbar spine and reach to his knee level (T99). When Dr Maxwell's observation was put to the Applicant in cross-examination he said he could not remember how he moved his body on the day he was examined. The Applicant's evidence was that when he bent to knee level he felt "severe pain". Dr Maxwell also noted in his report the Applicant refused to extend his spine past the upright position and his movements were greater when doing things around the room than during the formal examination. The Applicant did not agree with these observations when put to him in cross-examination and he denied that in effect he was not co-operating maximally.
In his report dated 17 March 1993 Dr Maniam understood that the Applicant's intentions on leaving Australia Post were to lead a retired life and that he worked on a casual basis as a driving instructor for three or four hours per week (T36). The Applicant agreed that his intention on leaving Australia Post was to retire and that at no time had he applied for full-time work. He said he chose to work as a casual driving instructor because he could not endure longer hours.
At the hearing, the Applicant was shown a video surveillance film in which the Applicant was filmed opening the bonnet of his car on 21 February 2000. He was also filmed bending forward to use a tap. The Applicant said he was not "fully bent" as filmed in the video, and that he did not bend fully to the knee. The Applicant made no reply to the assertion of Counsel for the Respondent that the film showed he had a lot more movement than he was prepared to demonstrate to the Tribunal. In the video the Applicant noted that he was filmed reversing his car from his driveway using the rear vision mirror rather than turning his head.
medical evidence
Dr Griffith, neurologistDr Griffith examined the Applicant on 9 July 1999 at the request of the Applicant's solicitors and provided a report dated 18 July 1999 (T89). He also provided reports dated 6 September 1999 (T92) and 22 December 1999 (exhibit A).
Lumbar spine condition
In his report dated 18 July 1999, Dr Griffith concluded that with respect to the low lumbar region it was likely the Applicant suffered a combination of disc and facet joint injuries during the period of employment with the Respondent. On examination he noted evidence of muscle spasm and restricted range movement commensurate with the degree of muscle spasm in the lower lumbar region. MRI scan showed minor disc degeneration and disc protrusion. In his oral evidence he said that the radiological changes and findings on examination were consistent with disc pathology. He also said that the sort of pain described by the Applicant was more consistent with facet joint problems than from a disc compressing on a nerve root.
In his report Dr Griffith also noted the Applicant had ceased mowing the lawn. In his oral evidence Dr Griffith said that according to his clinical notes, the Applicant had moved into a house prior to seeing him and that at some stage in the past he had mowed the lawn.
Dr Griffith said that at the time of his examination on 9 July 1999 the Applicant was having difficulty continuing to work as a driving instructor. He considered that the Applicant's back was a major factor limiting his ability to work as a driving instructor. Dr Griffith expected the Applicant could sit for about one hour before feeling pain in his back.
Dr Griffith in his oral evidence said that some of the minor degenerative changes could be caused by bending, lifting, twisting, and in his opinion it was reasonably likely that the Applicant's disc changes were brought by a series of events in the course of his employment.
Dr Griffith said that in view of the Applicant's lumbar spine pathology and the consequential pain he would have difficulty with repetitive and prolonged periods of standing, bending and flexing required by his duties as a mail officer. Dr Griffith did not accept that if the Applicant returned to work after a couple days off, and continued to work, this suggested any sprains to the lumbar spine were likely to have been temporary.
Dr Mellick in his report dated 27 March 2000 (T101) suggested there were no objective indicators of any focal disorder, but Dr Griffith disagreed. Dr Griffith disagreed with Dr Mellick that the radiological features were not diagnostic of any spinal pathology. Dr Griffith considered that they were connected to trauma particularly if there was a specific event to which it could be linked. He considered that, based on the Applicant's history, there was a series of events that on the "balance of probability" caused the back disc lesion. He conceded that radiological evidence similar to that found in the Applicant could be asymptomatic.
Dr Griffith noted in his report dated 6 September 1999 15 percent impairment of the Applicant's thoric and lumbar spine. However he noted a 20 percent impairment to the same region in his report dated 22 December 1999. Both reports were based on the same medical examination. Dr Griffith acknowledged in his oral evidence that there was variability in the assessments made and he ultimately conceded that the recording of 20 percent was incorrect. In the report dated 18 July 1999 he recorded numbness in the Applicant's right leg and injury to the right knee. However he assessed permanent impairment to the left leg as well, arising from the lumbar spine.
Right elbow inuryIn relation to the Applicant's right elbow injury, Dr Griffith noted in his report (T89) that the Applicant complained of right elbow pain that is constant and more intense when he writes. He concluded the Applicant had epicondylitis that can result from repetitive activities using the arm. He considered that the Applicant's task of operating a machine that required him to feed letters from a bundle into a mail sorting device, was consistent with the nature of the pain he presented at the medical examination by Dr Griffith on 9 July 1999.
Dr Griffith opined, in respect of the Applicant's elbow pain, that the Applicant had experienced epicondylitis that fluctuated. He believed the Applicant had used the term "constant" to mean that it was current, not that it had not varied. He considered the Applicant, even at his best, could not have stood for eight hours to sort mail without causing his epicondylitis to flare.
He considered it was impossible to say whether there would be a spontaneous resolution of the condition. The level of pain felt varied from one person to another. He said the likely progression of his condition, on the assumption the Applicant continued to have symptoms almost nine years after the onset of the symptoms, depended on his level of activity. If the Applicant resumed activity, of the sort previously described, he expected that the sort of pain would flare at various times. Dr Griffith saw no inconsistency in the Applicant's account of the history of his work incidents and his actual presentation at the examination.
In his report dated 6 September 1999, Dr Griffith found no permanent impairment to the Applicant's right elbow.
Knee injury
In relation to the knee injury Dr Griffith noted that the Applicant had a horizontal tear in the lateral meniscus. When asked if there was a possible relationship between the incident at work (on 4 February, 1992) involving his knee and the Applicant's complaint about his right knee, Dr Griffith said the tear of the meniscus could have occurred "very easily" with that sort of accident. He also said it was likely that the injury to the Applicant's knee would impact on his capacity to work as a mail officer, adding that if the Applicant was on his feet all day he would expect him to have pain.
Shoulder pain
In his report Dr Griffith was of the view that the Applicant's shoulder pain was muscular in origin. He noted on examination that the Applicant had muscle spasm in the cervical region between the neck and shoulder and in the lower lumbar region. Dr Griffith noted that muscular spasm is commonly seen in people with disc and other pathology in the lower lumbar region, particularly spasm around the neck and shoulder region.
In his report dated 22 December 1999 Dr Griffith made reference to the Comcare Guide. He noted the Applicant had a 10 percent permanent impairment of his left shoulder. In his oral evidence he considered the impairment to have been present since at least 22 July 1992. In his report dated 18 July 1999 Dr Griffith noted the Applicant "was unable to elevate the left shoulder above the horizontal". His oral evidence was that this was "more than slight" restriction, rather than "very slight restriction".
Dr Griffith was of the view that the symptoms in the Applicant's shoulder had been the same since 1989. This view was based on the fact that the Applicant had a degree of muscle spasm in the shoulder area that he called "constant". He acknowledged, however, there was some variation in the pain, but it was still present. Dr Griffith said a rotator cuff tear in the shoulder could be the underlying pathology that continued to create the variability in the pain.
Dr Griffith considered there was enough radiological evidence in the Applicant's cervical spine X-rays to account for the pain in his left shoulder. He did not consider that even if the Applicant was "faking" limitation of movement of his left shoulder (as suggested by other doctors) it would suggest that pathology in his neck was not associated with his shoulder. However Dr Griffith did remark it was "a little bit odd" that the Applicant had more restricted range of shoulder movement than he would expect from "a pure neck problem". Dr Griffith agreed that a person presenting with rotator cuff would not produce a full range of shoulder movement, although a full range of shoulder movement does not exclude partial "rotator cuff". However, it was unlikely the Applicant would have full thickness rotator cuff tear if he can get an objective full range of left shoulder movement.
Surveillance video
Dr Griffith was shown the surveillance video during his oral evidence. He considered that the view of the Applicant undertaking various activities was not inconsistent with his examination in July 1999. He said that during his examination the Applicant bent to place his hands on his knees and this was what he "pretty much expected". He considered that the Applicant was able to carry out some activities he was not fully fit. Dr Griffith observed that in the video the Applicant did not do things quickly and was walking around doing "low impact things that did not equate with the sort of job he was doing". He said that -
once bent over does not mean you can do for 8 hours a series of bends, walking backwards and forwards and sorting letters or pushing 90 kilogram trolleys. I think there's a different ethos to the two.
In cross-examination Dr Griffith conceded that it was inconsistent that the Applicant demonstrated to the Tribunal that he could no more than 10 degrees spinal flexion, compared with Dr Griffith's examination in July 1999 and his presentation in the video film. He also agreed that the Applicant being found on examination to be perfectly rigid would not reflect his full potential. However, he expected there would be a degree of variation from one examination to another.
It was put to Dr Griffith in cross-examination that the Applicant appeared in the video to get in and out of car easily without apparently experiencing any practical restrictions with his knee or any other complaints. Dr Grittith considered that a one minute view of the Applicant walking and getting into a car was not a fair assessment of the knee joint. He considered that the Applicant's knee condition would restrict his activities, including walking up and down steps and bending his knee over a prolonged period. He did not find any inconsistencies or significant variations between how the Applicant presented in examination (in July 1999) and how he presented in video.
Concluding comments
Dr Griffith said the way in which the Applicant perceived his pain, and what he perceived he could do, had a bearing on the explanation for the variation in his function.
Dr Griffith considered there had been a genuine series of accidents experienced by the Applicant that would fit with his symptoms. Superimposed on this was a degree of degeneration. The Applicant had some restricted movements on examination. He said he suspected the Applicant's disc lesion might have been constitutional. However a short time later in his evidence he said "on the balance" the Applicant's disc lesion was likely to be related to his employment. He said the Applicant "had history of back pain and then a series of periods of time off work with the nature of the work he described, pushing things 90 to 180 kilograms, it's reasonable…that those sort of activities can cause that condition".
Dr Griffith said other aspects of the Applicant's employment may have contributed to his back condition including standing up for long periods, lifting the mail bags weighing 20kg or less and lifting mail bags from trolley to trolley over time. He expected some pathology to emerge after a period of five to years of "wear and tear" type work undertaken by the Applicant. Dr Griffiths said that if the Applicant had suffered a back and shoulder injury in 1977, and he had started work with the Respondent in 1974, then this would have been sufficient to cause a condition in the Applicant's back and left shoulder.
Dr Maniam, orthopaedic surgeon
Dr Maniam was the Applicant's treating surgeon and had examined him on about 20 occasions. He gave oral evidence at the hearing. In cross-examination, Dr Maniam agreed that he had accepted the Applicant as "more or less forthright" in his presentation. By this he inferred that he accepted the history and his presentation more or less as it was. He agreed that there was no evidence of any significant muscle wasting of any of the muscles examined.
Lumbar spine condition
In his report dated 3 December 1991 (T20) Dr Maniam diagnosed chronic back strain. He noted that he did not have access to an MRI scan at that stage. He considered the L5/S1 moderate posterior disc protrusion reported on MRI more recently to be clinically significant. He considered this would cause pain when stress was applied to the lumbar spine. He also said "one could not discount" and that "it is likely" that these findings could produce symptoms. He considered that based on the MRI findings, a lesion of that nature would produce problems with prolonged standing, prolonged sitting, repetitive bending, heavy lifting and trunk twisting.
Dr Maniam agreed that X-ray of the Applicant's lumbar spine in 1981 was normal but by 1991 CT scans showed degeneration in the form of minor posterior central bulging at L4/5. He conceded it was possible that the degeneration shown in 1991 was simply a normal progression of human development. He also conceded that because an MRI scan is a very sensitive test it could produce findings in a person who had no symptoms. He noted that pain is only periodic when one has a disc lesion. He disagreed with Dr Maxwell who said that the radiological appearances are excellent for a person of the Applicant's age. Dr Maniam agreed that a forward flexion of only 10 degrees was inconsistent with the Applicant's performance during his examinations.
Dr Maniam conceded that he would expect back strain to resolve in a matter of days or weeks unless there is some aggravating factor that perpetrates the symptoms. He conceded that the Applicant was more likely than not to have sustained temporary strains to his back during the incidents at work.
Dr Maniam noted a variation in the level of symptoms in the Applicant's low back. The Applicant told him of specific instances where back pain had been precipitated and which Dr Maniam accepted. Dr Maniam considered that the Applicant had an excessive amount of degenerative change in his lumbar spine, particularly noting that these changes were present in 1986 when he was aged 39 years. Dr Maniam considered pushing and pulling trolleys weighting 80 to 100 kgs "might be a problem" because of the Applicant's shoulder and back conditions.
Right elbow injury
Dr Maniam diagnosed a right sided lateral epicondylitis. He said he had no doubt about the diagnosis on 22 January 1992. He said that epicondylitis symptoms of pain and weakness can affect the whole limb and are not necessarily confined to the epicondyle. He agreed that the examination report of Dr McGill reflected a symptom pattern that was too diffuse to be explained as epicondylitis.
Dr Maniam also said that the Applicant had complained about left elbow pain "throughout his visits". However he had not examined the Applicant's right elbow since 1994 at which time there was tenderness in the external epicondyle. In respect of the right elbow Dr Maniam considered the Applicant would have problems gripping and in performing repetitive movements.
Shoulder pain
Dr Maniam diagnosed periarthritis of the left shoulder that he also referred to as capsulitis. The symptoms related to this are pain and restriction of movement. On most occasions when Dr Maniam examined the Applicant there was a full range of movement of the left shoulder, but there was pain beyond 90 degrees abduction. He concluded that because of the full range of movement the condition was "not extremely severe". Indeed, he said "his capsulitis is only minimal" and he would not place any restrictions on his use of the shoulder. He agreed that this could be developmental in nature or that it could develop spontaneously without any injury. They could be age related. He conceded, however, that the Applicant would have a problem holding his arm up without any support. Lifting up to 10 kgs was reasonable. More than 10 kgs would cause problems in his view. Dr Maniam agreed that ultrasound showed that the rotator cuff was intact and ultrasound examination was normal.
Knee injury
Dr Maniam noted that an arthrogram taken of the Applicant's right knee following an injury in February 1992 showed a horizontal tear of the lateral meniscus. Going on the Applicant's history, Dr Maniam said that his fall could give rise to an injury of that nature. He did not consider the knee would give rise to "too many constraints". Indeed he did not consider it to be incapacitating. There was a chance he may experience "giving" and "locking" in some situations, including bending and straightening up. It would not be a "major constraint" on his ability to push and pull trolleys weighing 80 to 100 kgs.
Dr Maniam opined that the Applicant is not significantly restricted.
Dr Searle, orthopaedic surgeon
Dr Searle examined the Applicant on 20 September 1999 and provided medico-legal reports dated 23 September 1999 and 23 November 1999 (exhibit B). He gave oral evidence at the hearing.
In his report dated 23 September 1999, Dr Searle opined that the general nature of the Applicant's employment conditions have led to the development of cervical and lumbar spondylosis with minor disc lesions. He also diagnosed capsulitis of the left shoulder with arthritic change in the shoulder joint and AC joint. He said the injury at work on 4 February 1992 ultimately led to degenerative changes in the left knee. He also said the work demanded of the Applicant's employment caused overuse syndrome in the right arm and right lateral epicondylitis. He said due to the Applicant's injuries he was permanently incapacitated for work. He said the symptoms and disability would progress in all areas except his elbow. The symptoms and disability in relation to his right lateral epicondylitis will remain unchanged. Dr Searle also noted that the Applicant's movements when dressing were "slightly improved" compared with movements demonstrated during the formal examination which led to his conclusion that there may be a degree of psychological overlay to his organically based symptoms.
In oral evidence, Dr Searle considered that the Applicant's pain did not depend on nerve root impingement. Rather, it was referred pain. He considered that the X-ray appearances were consistent with degenerative changes, but he also said that those changes could be induced by trauma or "repeated minor trauma".
In relation to the Applicant's shoulder condition, Dr Searle considered that one could not generalise, as indeed Dr Maxwell had done, that capsulitis would resolve spontaneously within twelve months. While some people recover from adhesive capsulitis, "a large proportion" of people who suffer from irritative capsulitis have it for the rest of their lives. He considered the Applicant's condition would remain unchanged throughout his life.
Dr Searle was referred to Dr Mellick's opinion that the Applicant suffers from "chronic pain syndrome without any evidence of an underlying organic spinal disorder". In his opinon, Dr Searle said "it" (presumably meaning chronic pain syndrome) is a term used when doctors are "incapable of making a diagnosis in a case that has organic disability". Dr Searle considered that there was sufficient evidence of organic disability to account for the Applicant's pain. He did not consider that the Applicant was merely "imagining the pain" or that he was malingering. He relied on the history and the examination in forming his opinion.
Dr Searle considered that the wide range of the Applicant's disabilities would preclude him from performing full duties as a mail officer. Dr Searle could not recall whether any one of the Applicant's disabilities was more disabling than the rest.
Dr Searle indicated that in taking the history from the Applicant he identified from the documents sent to him the specific injury incidents and asked the Applicant to identify what part of his body had been affected. He said that the Applicant provided him with the dates of the incidents but he did not describe the incident.
Dr Searle agreed that in respect of the Applicant's back, the investigations themselves were neutral and could occur without having spinal symptoms and in the absence of any specific trauma. He agreed that he was reliant on the Applicant to describe his symptoms. He agreed that between the various incidents the Applicant would have returned to work free of pain. He agreed that a proportion of the Applicant's back condition was likely to be due to an underlying degenerative condition caused by minor trauma. He did not agree that the incidents described by the Applicant would have had only a temporary effect on his degenerative back condition.
In relation to the Applicant's elbow injury, Dr Searle diagnosed epicondylitis. In respect of Dr McGill's examination of the Applicant's elbow where his findings were very diffuse, Dr Searle noted from his own examination that the Applicant had tenderness of the epicondyle and the attached muscles. He said that Dr McGill's examination showed resisted muscle contraction which meant that it did not cause the Applicant pain on that occasion. However, this did not mean that he did not have epicondylitis.
Dr Searle said it was typical of epicondylitis to be symptomatic one day and not another. He said that the condition could be in remission since the Applicant ceased the activities that caused the condition, but as soon as that activity is reproduced then epicondylitis will recur. When it was suggested in cross-examination that this was inconsistent with the Applicant's history, Dr Searle then said "well then, he's got epicondylitis all the time". When referred to the fact that the Applicant complained of tenderness not just in the muscle bellies attached to the epicondyle but tenderness of a generalised nature, Dr Searle said he would assume some psychological overlay that would not be surprising given the duration of his symptoms.
Dr Searle said that a tear of the meniscus would not repair over time, but rather it would become worse. He said the symptoms vary depending on the position of the tear, and the torn portion can move in and out of the joint.
Dr Maxwell, orthopaedic surgeonDr Maxwell provided a medico-legal report at the request of the Respondent (T99), and gave telephone evidence. In his report, Dr Maxwell opined that the Applicant did not suffer from any significant conditions. He said –
He appears to have suffered sprains to his left shoulder and back over periods of time in the course of his employment. These injuries did not seem disabling for any significant period of time. The back and neck X-rays are excellent for his age with no significant degenerative changes.
…
I do not consider that his condition now has any relationship to his employment. I do not consider there is any other contributing factors to his condition.
… I do not consider he is incapacitated and he would be fit to undertake any form of employment.Dr Maxwell noted in his oral evidence that the Applicant was a poor historian who had to be prompted about the accidents he had and the dates on which they occurred. He said "often he didn't remember them". Dr Maxwell considered that the Applicant did not suffer from any serious back injury during his employment, and any sprain he suffered would get better after six to eight weeks. He considered that his X-ray appearances were "very good for his age with regard to degenerative changes".
In relation to the surveillance video, Dr Maxwell noted that the Applicant was moving quite freely, showing more back and neck movements than when formally examined. He concluded that the Applicant was "voluntarily restricting some of the movements". He also noted on the video film that the Applicant was moving his neck quite freely and that when he reversed his car he turned his neck fully and looked to the rear between the seat headrests, revealing a great deal more movement than he exhibited on formal examination. He also said the Applicant was walking briskly without a limp. He bent over and picked up an object from the ground, showing a greater degree of movement in his lumbar spine than at the formal examination.
In his report, Dr Maxwell noted that X-ray of the right elbow was also normal. He was referred to a report of Dr McGill dated 14 May 1999 (T82). After reading sections of Dr McGill's report, Dr Maxwell said that he considered epicondylitis causes tenderness over the lateral epicondyle and not tenderness in other areas. He considered a diagnosis of lateral epicondylitis less likely on the basis of the description of Dr McGill's examination. In his report, Dr Maxwell noted "with regard to his right elbow he feels pain on the outer side of the elbow when he lifts objects". His written notes show that on examination the muscles of the Applicant's forearm showed no wasting, and the range of movement of his elbow was full. In oral evidence, he agreed that the presence of lateral epicondylitis does not necessarily restrict the range of movement of the elbow and that the primary symptom was tenderness or pain in the vicinity of the epicondyl. He agreed that the Applicant's complaints are consistent with a diagnosis of epicondylitis. He said he would not expect wastage if the epicondylitis was mild. Wastage depends on the amount of restriction of movement.
In his report, Dr Maxwell noted "with regard to his right knee, the Applicant develops pain on twisting". In respect of the Applicant's right knee Dr Maxwell's oral evidence was that he found no evidence of quadriceps wasting and no muscle wasting. He had a good range of movement, there was no limp and no evidence of a meniscal lesion. In light of the history given by the Applicant to the Tribunal in respect of his knee, Dr Maxwell said he would expect to find wastage of the knee and the quadriceps. He said he was aware of the results of an arthrogram of the right knee but he made no reference to this in recording the investigations to which he had access. Indeed, in cross-examination, Dr Maxwell noted that he made no reference to the Applicant's knee in his report (with the exception of observing that the Applicant develops pain on twisting), that he considered to be an oversight. He recalled that the arthrogram showed a tear of the lateral meniscus that he agreed may be of significance. Dr Maxwell understood that the Applicant has had no treatment for his knee for the last eight or nine years. He concluded that the tear had healed. On examination of the knee there were no signs of a torn meniscus, but he conceded that the symptom reported by the Applicant to the Tribunal of pain on twisting might indicate that the Applicant has a torn meniscus. He said he did not find any sign of this in his examination and there was no muscle wasting. Dr Maxwell noted that the normal symptoms of a torn meniscus are locking, catching, swelling and giving way. The Applicant did not report any of these symptoms. Pain on twisting may be a symptom, but not always.
In oral evidence, Dr Maxwell noted "a little bit of restriction of movement of the left shoulder with regard to abduction" which appeared to be voluntary. The arc of movement did not appear "particularly painful". X-ray did not reveal any arthritic condition in the left shoulder. Dr Maxwell concluded that the restriction of movement was not likely to be indicative of tendonitis of the shoulder. When the diagnosis of capsulitis was put to him, Dr Maxwell considered that was a temporary condition that normally gets better after a year. He said he was not familiar with the diagnosis of periarthritis. Dr Maxwell did not think the Applicant's shoulder problem was referred from his neck, and he did not consider the Applicant had any significant pathology in his neck. He agreed that if the Applicant had limitation of movement of the shoulder or pain on full movement, then the diagnosis of an inflammatory condition of the shoulder was acceptable. He also agreed that if the Applicant had some degree of symptoms in his shoulder since the time of the injuries at work until the present time one would reasonably conclude that the pathology was related to the incidents at work.
In cross-examination, Dr Maxwell agreed, in relation to the Applicant's back condition, that he demonstrated a limitation of movement of the lumbar spine. Indeed, he conceded that on examination on forward flexion he was able to reach his knee, although he considered on viewing the video that he was flexing further than that. He considered that prolapses almost always get better, particularly if there is no nerve root involvement, which in this case has never been exhibited. Dr Maxwell considered that the Applicant had had some minor sprains of the facet joints that were not long-standing and that normally recover quite well. When it was put to him that one of the Applicant's clinical findings was that he could bend his back to reach his knee level only, Dr Maxwell considered that this finding would be significant on the assumption that there was no voluntary restriction. He considered that the radiological evidence may or may not be associated with true pathology in the lower back.
Dr McGill, rheumatologistDr McGill was asked to provide a report in relation to the Applicant's right elbow at a time in the history of this matter when the claims were being considered separately. In his report dated 14 May 1999 (T82) Dr McGill found the tenderness to the Applicant's elbow was not localised to the epicondyle or to any other specific structures. He also described a resistant muscle contraction pattern that in his view did not lead to a pattern of response in keeping with epicondylitis. That is, he found a diffuse pattern of complaint in relation to muscle contraction that was inconsistent with epicondylitis. He did not consider that the Applicant's right elbow would impede his performance as a mail sorter. Dr McGill said –
On the presumption that his report of discomfort when clipping grass edges for more than ten minutes is valid, I would have to conclude that that discomfort relates to muscle soreness as he has no evidence of epicondylitis at this time. Any muscle soreness he may experience when clipping his edges relates to his general level of fitness and not his former work activities.
Dr McGill considered that the natural history of the Applicant's complaint is to settle, and that it has occurred in this case. There was no evidence of any ongoing lateral epicondylitis.
Dr Mellick, neurologist
In his report dated 27 March 2000 (T101), Dr Mellick concluded that the history presented by the Applicant did not include any features that established the probability that his symptoms of pain, beginning in 1977, in the back and left shoulder, were determined by a structural lesion occurring in 1977. The findings on physical examination were characterised by the lack of objective abnormalities indicating a focal disorder. However there were a number of objective features to establish functional abnormalities of psychogenic origin. The radiological evidence was not diagnostic of any spinal pathology and the findings on MRI and CT scans should not be regarded as consequential of trauma, nor were they the cause of the symptoms described by the Applicant.
Much of the report of Dr Mellick has been identified in relation to the cross-examination of the Applicant. Dr Mellick concluded that there was no specific organic disorder. He considered that the total clinical picture was one of chronic pain associated with somatisation and associated functional abnormalities. However having noted this, he considered that these observations were not intended to suggest that the Applicant was consciously misleading or that the symptoms described were not present.
submissions
Applicant
In assessing the credibility of the Applicant it was submitted the Tribunal ought to consider his satisfactory employment history with the Respondent from 1974 to 1992, his willingness to seek employment after leaving the Respondent, and his lack of sophistication in using the English language. It was submitted that the video evidence was consistent with the Applicant's medical case. So too was the fact he had been working as a driving instructor for several years after ceasing employment with the Respondent.
With respect to incapacity, it was submitted that if the Tribunal accepted the medical assessment of Dr Maniam, it would therefore accept that at no relevant time the Applicant had been fit for his prior injury occupation as a mail officer. Therefore, the Applicant would have entitlement under s19 of the Act. In this regard, the Tribunal was asked to consider his stated reason for leaving the job and the nature and extent of his part-time work as a driving instructor.
It was submitted that the Applicant was a reasonable historian in relation to both his medico-legal examinations and the evidence he gave before the Tribunal, despite his inability to recollect all the incidents upon which he relied in these proceedings. Although the Applicant could not clarify other aspects of his medical history going back to 1974, it was submitted that this was not a cause for criticism nor was it inconsistent with the Applicant's medical case.
It was submitted the Applicant's records and oral evidence establish a series of left shoulder and low back injuries since about 1977 that caused him to take time off work and to receive "conservative treatment". It was also submitted that the significant change in the Applicant's history of injury, treatment and rehabilitation during 1991 and 1992 in the lead up to the termination of his employment in September 1992 was consistent with the Applicant having sustained injuries.
This pattern was also consistent with his overall work capacity having been affected by an accumulation of injuries to various parts of his body. For example, on 23 May 1990 the Applicant suffered an onset of lateral right elbow pain for which he received conservative treatment. He did not return to the duties of feeding bundles of mail in the machine after this incident. On 4 February 1992 the Applicant sustained a right knee injury at work. He performed modified duties after this incident (T21) as a result of formal rehabilitation procedures (T25, T26, and T28) and an informal arrangement with his supervisor. The Applicant sustained further injury to his left shoulder and back on 22 July 1992. Upon returning to work modified duties were not available despite continuing symptoms in his left shoulder, right knee, right elbow and back. He accepted a voluntary redundancy on 17 September 1992 because of his inability to perform full duties.
It was submitted that Dr Maniam's evidence was most useful as he had examined the Applicant over a period of time. He gave evidence in a cautious and conservative manner, giving reasonable concessions in cross-examination when called to do so.
The Applicant displayed a lack of co-operation in demonstrating lumbar flexion at the hearing. Dr Maniam agreed that an ability to flex the spine by only ten degrees was inconsistent with the underlying pathology. It was submitted that the Applicant's degree of lumbar flexion demonstrated at hearing should not detract from Dr Maniam's conclusion as it was not a feature of the Applicant's presentation to his treating doctor on numerous occasions.
It was submitted for the Applicant that the Tribunal should accept the diagnoses offered by Dr Maniam that the Applicant suffers from an intervertebral disc protrusion at L5/S1, a left shoulder capsulitis, right external epicondylitis and a lateral meniscal tear of the right knee (T76).
Dr Maniam conceded that right epicondylitis alone would not prevent the Applicant from working, although it continued to place restriction on his work capacity. He believed that the 15 hours per week work as a driving instructor was an appropriate workload given the Applicant's limitations.
It was submitted that Dr Griffith's diagnosis of paravetebral muscle spasm was significant as was his reference to spasm to the trapezius region. Dr Griffith considered this to be an objective sign reflecting an underlying irritative process. Dr Griffiths implicates both facet joint injury and disc pathology in the diagnosis of the Applicant's lumbar region.
RespondentIt was submitted for the Respondent that the Applicant was not a witness of truth or an accurate historian. The Applicant claimed an inability to do things when he had not in fact attempted to do such activities before, for example, using scissors, tending to the garden, cleaning the house and mowing the lawn. The Applicant claimed that his various injuries had remained the same since ceasing employment with the Respondent. However no muscle wasting had occurred, suggesting there was no injury. It was submitted that the Applicant's credit and his reliability as an historian are essential to his case, and his limitations in these respects are fatal.
It was submitted that there are significant difficulties for the Applicant arising from medical examinations that show his restrictions are different from those he states. The Applicant claimed, by demonstrating to the Tribunal, that he could not bend forward more than 10 degrees and that he squats to pick things up from the ground. However, both Dr Griffith and Dr Maniam consider a 10 degree forward flexion to be inconsistent with their examination findings. Curiously, Dr Searle found on examination that the Applicant could only flex 5 to 10 degrees, and he accepted that. However the rest of the medical evidence suggests that a 10 degree forward flexion is at best a gross exaggeration. Dr Maxwell considered that the video showed the Applicant moving quite freely, and that he had more neck and back movements than displayed to him on examination. Dr Maxwell concluded that the Applicant was voluntarily restricting movements.
It was submitted that there was no substance in the Applicant's allegation that he was unable to continue his driving instruction work because of pain turning his head and shoulder and in his knee on the basis of the video surveillance evidence and the opinion of Dr Maxwell.
It was also submitted that the Applicant's inability to remember so many of the incidents relevant to the claim also indicates that they were not significant incidents. Moreover, a lack of severity of injury in relation to the alleged incidents is indicated by the very limited time off work revealed by the Applicant in his evidence.
It was submitted that the Applicant is aged 53 years, and that he could have some level of age related degeneration independent of his work causing some level of discomfort, a factor acknowledged by Dr Griffith, Dr Maniam, Dr Searle and Dr Mellick.
It was submitted for the Respondent that the Applicant would have the Tribunal and the examining doctors believe that the first experiences of pain in any part of his body to which his claims related, was associated with one or more of the injuries claimed. However he was unable to explain in cross-examination the time off work he had taken on two separate occasions in 1975 for "fibrositis".
It was submitted that the evidence of Dr Maxwell is ultimately of most use to the Tribunal. He found on examination that the Applicant did not suffer from any condition of the lumbar spine, left shoulder, right knee or right elbow. He excluded serious back injury, such as a disc prolapse, and said that any sprains that occurred would usually get better after six to eight weeks. Dr Maxwell noted some voluntary restriction of the shoulder but no painful arc that would indicate tendonitis and there was no capsulitis.
It was submitted that in relation to the right elbow condition, that the X-rays are normal and on the opinion of Dr McGill there was no epicondylitis as the symptoms are not localised. On the evidence of Dr McGill and Dr Maxwell there is no condition of the right shoulder. Although Dr Searle considered the Applicant did have epicondylitis, he conceded that in the majority of cases that condition resolved with time. He also agreed that the Applicant's work did not have features that point to epicondylitis, noting the presence of diffuse presentation recorded by Dr McGill. Taken in isolation, Dr Maniam said the Applicant's elbow would not incapacitate him for work.
In relation to the right knee, it was submitted that there was no evidence of quadriceps wasting. Dr McGill would expect there to be wasting if the Applicant's evidence about his knee was correct. Moreover, there was no muscle wasting, there was a good range of movement, no limp, no evidence of meniscal tension and a negative Murray's test. On the evidence of Dr Maxwell in relation to the arthrogram report that indicates no more than the possibility of pathology, any previous tear has resolved. It was submitted for the Respondent that there was nothing wrong with the Applicant's knee. In any event, Dr Maniam agrees the Applicant's knee was not incapacitating him and there was no loss of function but merely a risk of locking. Moreover, it was submitted the Applicant's preference for squatting rather than bending to pick things up was inconsistent with there being an "injury" to his knee.
It was submitted that Dr Maniam found the Applicant had a full range of shoulder movement on most visits. He considered the Applicant had periarthritis or capsulitis in his shoulder. It was submitted that this diagnosis was not supported by the medical evidence as a whole, but in any event the condition on Dr Maniam's evidence is "not extremely severe". Dr Maniam placed no restrictions with regard to the Applicant's shoulder. He accepted that the rotator cuff was intact and that periarthritis or capsulitis could be developmental or spontaneous.
It was submitted that the opinion of Dr Griffith that the "spasm" found on examination of the Applicant's shoulder was an objective sign, was not borne out by other medical opinion. Ultimately, Dr Griffith considered if there was spasm it was more likely to be related to the Applicant's neck and not his shoulder. It was submitted, therefore, that it is not compensable.
It was submitted that in the absence of an MRI report, Dr Maniam diagnosed strains to the back that he agreed were more likely to be temporary. He also agreed that the radiology findings for the Applicant, including the MRI, may not be the cause of the Applicant's symptoms and loss of movement.
consideration of evidence and findings of factThe Tribunal notes the gross discrepancy between what the Applicant was able to recall about the various incidents in which he has been involved when giving his evidence, and the incidents about which he had a recollection when he was examined by Dr Mellick some seven months previously. When considering that evidence in juxtaposition, the Tribunal finds that the Applicant has little recollection about the various incidents relating to his claims over the years, and that his evidence dating symptoms from the time of those incidents is fabrication. The Tribunal notes the submission for the Applicant that his inability to recall the history of these events is not significant. On the contrary, the Tribunal finds that it is significant for a number of reasons. It demonstrates the tenuousness of the history he provided to the various examining doctors, both in relation to the incidents and to the sequelae. The medical opinions provided by various doctors are flawed if they are based on inadequate histories. It goes to the Applicant's credit that he is unable to recall facts at the hearing when he has presented a history relating to those facts to a doctor some seven months previously. The Tribunal finds that the Applicant was not a witness of truth.
There is no evidence that enables the Tribunal to be reasonably satisfied that any of the incidents described by the Applicant were ones that would have caused his symptoms to have lasted for more than a few days or a few weeks.
The Tribunal accepts that the Applicant now suffers from some degenerative disease in various parts of his body that could account for some of his symptoms. However we find that he has grossly exaggerated his symptoms and he has misrepresented his history so that he would have the Tribunal believe that the entire litany of problems have arisen from his employment. Indeed, the Tribunal finds that each and all of the incidents described were not serious, and that any injury sustained at those times was short lived. Any ongoing symptoms that caused the Applicant to continue to attend for medical treatment were not, on the balance of probabilities, related to any longstanding effects of those injuries.
Dr Griffith's evidence demonstrates the absurd lengths to which he has gone in order to provide medical support for the Applicant's case. The Tribunal gives no weight to his evidence. In so doing the Tribunal notes the importance in the neutrality of an expert witness if the evidence is to be useful. Dr Searle's evidence was more reasonable, but it is flawed by his unquestioning acceptance of the Applicant's history.
Dr Maxwell's evidence also has its limitations. He appears not to have made a careful and detailed record of his examination. The Tribunal finds him to be somewhat extreme in his preparedness to say that the Applicant demonstrates no pathology at all, in light of the weight of the evidence that he does have some degenerative condition in his lumbar and cervical spine, albeit minor in degree. Dr Maxwell's observation of the video film is also inaccurate. The Tribunal finds that the Applicant demonstrates in the video film that while he was walking freely, it is somewhat extravagant to say that he was "walking briskly". Of particular concern is Dr Maxwell's allegation that the Applicant was backing his car and turning his head to look between the headrests to the rear of the vehicle.
On reviewing the video film after the hearing, the Tribunal finds that the Applicant was using the left hand side mirror to aid his backing and he was not turning his head to look between the headrests to the rear of the vehicle. Moreover, the Applicant did not stoop to the ground. Rather, he bent from the waist to a level where his hands would have been level with his knees. In respect of his walking pace, the Tribunal would agree that this was an apparently effortless and borderline brisk pace. Overall, the Tribunal finds that the Applicant showed no particular disability during any activities on which he was filmed. He pulled down the bonnet of the car and the boot with his right arm, and entered the driver's seat of the car effortlessly.
The Tribunal acknowledges that the evidence of Dr Maxwell is consistent with the conclusions the Tribunal has made on the whole of the evidence. However, the Tribunal finds that Dr Maxwell's evidence was somewhat careless and thus it must limit the weight given to his opinion.
Much of the medical evidence was tainted by the acceptance of the Applicant's history as given. The Tribunal is unable to accept that history on the grounds of its gross inconsistency and implausibility. The Tribunal has taken into account the limitations of the medical evidence, with the exception of Dr Griffith's evidence that was given no weight.
The Tribunal is not reasonably satisfied on the medical evidence that there is any non-organic pathology involved in this case. Rather, on the weight of the evidence, the Tribunal is more inclined to the view that the Applicant is consciously attempting to deceive the various doctors who have examined him. The evidence on the video film is not consistent with there being a chronic pain syndrome. Rather, it depicts a person who, on the balance of probabilities, has no perceptible incapacity.
The Tribunal is reasonably satisfied that the Applicant does not suffer from any ongoing incapacity in his lower back, left shoulder, right knee and right elbow, arising out of any injury or the conditions of his employment when working for the Respondent. There is no evidence to enable the Tribunal to be reasonably satisfied that any underlying degenerative condition in his back has been exacerbated or aggravated in anything other than a very temporary way by the conditions of his employment with the Respondent. The evidence of Dr Maniam, Dr Griffith and Dr Searle certainly does not convince the Tribunal to the requisite standard of that fact. The Applicant would rely on the concessions achieved in the cross-examination of Dr Maxwell, but this does not assist him. Those concessions rest upon the assumption that the Applicant does indeed have symptoms or signs; an assumption the Tribunal does not accept
The Tribunal finds that the Applicant has no entitlement to further compensation pursuant to s14 or 19 of the Act, or to s27 of the Compensation (Commonwealth Employees) Act 1971. Therefore, he has no entitlement to payment of compensation for any permanent impairment in respect of the conditions claimed.
The Tribunal will affirm the decision under review.
I certify that the 132 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 31 October – 1 November 2000
Date of Decision 22 June 2001
Counsel for the Applicant Mr P Stockley
Solicitor for the Applicant Paul A. Curtis & Co.
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Australian Government Solicitor
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