Nguyen and Australian Postal Corporation
[2005] AATA 82
•18 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 82
ADMINISTRATIVE APPEALS TRIBUNAL ) N2002/893
) N2003/77
GENERAL ADMINISTRATIVE DIVISION ) N2003/1460 Re MINH DUC NGUYEN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal PJ Lindsay, Senior Member
Dr J D Campbell, MemberDate18 January 2005
PlaceSydney
Decision The Tribunal decides as follows:
(a) The decision under review in matter number N2002/897 is affirmed;
(b) The decision under review in matter number N2003/77 is affirmed;
(c) The decision under review in matter number N2003/1460 is affirmed.
[Sgd] P J Lindsay
Senior Member
CATCHWORDS
WORKER’S COMPENSATION - delay in applying for compensation - permanent impairment - issue of creditability – decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1988, sections 14, 16, 19, 24 and 27
REASONS FOR DECISION
18 January 2005 PJ Lindsay, Senior Member
Dr J D Campbell, Member1. This is an application by Minh Duc Nguyen “(the Applicant”) for review of the following decisions made by the Australian Postal Corporation (“the Respondent”):
·A reviewable decision made on 19 June 2002 that Mr Nguyen is not entitled to compensation for cervical spondylosis/neck condition (N2002/893).
·A reviewable decision made on 3 January 2003 that Mr Nguyen is not entitled to compensation for permanent impairment of his right shoulder and neck (N2003/77).
·A reviewable decision made on 5 September 2003 that Mr Nguyen is not entitled to compensation under any of the benefits provisions of the Safety, Rehabilitation and Compensation Act 1988 (the Act), which includes the provisions of sections 14, 16, 19, 24 and 27 of the Act, in respect of left shoulder injury (N2003/1460).
2. At the hearing, Mr Grey of counsel appeared for the Applicant and Mr Jones appeared for the Respondent. The Tribunal heard evidence given by Mr Nguyen with the assistance of an interpreter, Dr C Browne, Rheumatologist, Professor P Sambrook, Rheumatologist, and Dr N McGill, Rheumatologist. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the Exhibits tendered during the hearing.
3. The Applicant, Minh Duc Nguyen, was born on 17 July 1944 in Vietnam and began his employment with Australia Post on 15 May 1989 as a postal worker. His duties in the role included unloading bags of mail from trucks and then sorting the bags of mail which consisted of letters and packages. After he completed sorting the mail he would fill a backpack with mail and deliver it. He would walk his mail run rather than using a motorcycle or bicycle.
4. The Applicant worked in this role until 1997 when he requested four weeks annual leave as well as twelve months leave without pay. During his leave without pay the Applicant returned to Vietnam. While in Vietnam Mr Nguyen attended a hospital in Ho Chi Minh City, complaining of right side pain in the neck and shoulder. He was referred for an x-ray of the cervical spine.
5. On 24 March 1998 Mr Nguyen wrote to the Respondent advising them that he was resigning from his position with Australia Post as from that day. In his letter he explained that he could not continue with is duties as a postman due to his “family circumstances” (T6 lodged under section 37 of the Administrative Appeals Tribunal Act 1975 relating to proceeding N2002/893).
6. Mr Nguyen visited Dr Ngo-Duc, General Practitioner, on 28 June 2000. Dr Ngo-Duc provided the Applicant with a medical certificate that reported that Mr Nguyen was suffering from cervical spondylosis caused by the lifting of mail bags in the course of his employment (T8). He recommended physiotherapy and analgesics.
7. On 28 August 2000 the Applicant lodged a Claim for Compensation with the Respondent (T7). He particularised his claim as being a torn tendon in his right shoulder and disc problems in his neck. He indicated on the form that he first noticed the injury in January 1995 and first sought medical treatment for it at the same time.
8. On 4 September 2000, the Applicant’s solicitors at the time wrote to the Respondent to request details concerning the details of Mr Nguyen’s employment with Australia Post; such as the duties he performed, the award he was employed under and the periods he had taken off work (T9). In reply to the letter from the Applicant’s solicitors, the Respondent sent a letter on 8 September 2000 requesting reasons why Mr Nguyen had delayed his application for five years and why he had failed to give formal notification of the injury pursuant to section 53 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) (T10). On 7 February 2001 the Applicant’s solicitors replied to the letter from the Respondent and explained that Mr Nguyen did not believe that the pain was so bad, however in the intervening five year period the pain became progressively worse (T11). The letter also explained that Mr Nguyen was not aware of the requirement of giving formal notice of his injury under the SRC Act. The letter stated that the Applicant first sought medical attention in July 1999 when he complained of pain in the shoulder and right hand and that the pain became worse after he resigned.
9. On 25 July 2001 Professor P Sambrook, Professor of Rheumatology, provided a report at the request of the Applicant’s solicitors (T15). Professor Sambrook obtained a history that included Mr Nguyen first developing problems in his neck and shoulders in approximately 1995. The pain was initially in the right shoulder but subsequently included the cervical region. Mr Nguyen experienced generally dull pain in the shoulder but both it and the pain in the cervical region became sharp when he raised his arm above 90 degrees. The Professor reported that the symptoms gradually increased in severity and frequency and that the Applicant took his trip to Vietnam in 1997 because he thought that the warmer weather may improve his symptoms. Professor Sambrook diagnosed cervical spondylosis and rotator cuff disease that had been treated surgically. In Professor Sambrook’s view the nature and conditions of Mr Nguyen’s work duties, involving the lifting of mail bags, stressed his cervical spine and shoulders and significantly contributed to the development of his problems. Under Table 9.6 of the Guide to the Assessment of the Degree of Permanent Impairment he assessed Mr Nguyen as having a 10 per cent permanent impairment.
10. On 28 November 2001 Mr Nguyen signed a statutory declaration that provided a chronology of his complaint and an explanation regarding why he had not made a claim to Australia Post earlier. In the statutory declaration he stated he was not informed by the Respondent that he could make a workers’ compensation claim for a repetitive strain injury and he explained that he understood workers’ compensation to be limited to frank injuries at the workplace such as a broken leg.
11. On 9 April 2002 Dr N McGill, Consultant Rheumatologist, examined the Applicant and provided a report at the request of the Respondent (T24). During the examination Mr Nguyen described his current symptoms as soreness at the back of his neck if he sits for a period of time and an ache in the left trapezius muscle close to the midline. He also described how he had a slightly numb feeling along the ulnar border of his right forearm that also involved the flexor aspect of his right middle and ring fingers. Dr McGill diagnosed cervical spondylosis and right supraspinatus tendon tear. The tear had been repaired by surgery in 1999. The doctor recommended that Mr Nguyen should not perform repetitive activities that involve elevating or abducting the right arm above 90 degrees. Dr McGill opined that the tear of the Applicant’s right supraspinatus tendon was “probably contributed to or aggravated by his work duties with Australia Post, particularly sorting into the higher pigeon holes.” However, in regards to Mr Nguyen’s cervical spondylosis, Dr McGill was firmly of the view that it was “entirely constitutional” and that his work duties did not have any influence on the development or progression of the disorder (T24, p52). In a supplementary report of the same date Dr McGill assessed Mr Nguyen’s permanent impairment at 5 per cent in accordance with Table 9.1 of the Guide to the Assessment of the Degree of Permanent Impairment (T25). This impairment related to the loss of function of the right shoulder.
12. In a determination dated 19 April 2002 the Respondent accepted liability for the tear of the right supraspinatus tendon (T26). However liability was denied in respect of the Applicant’s cervical spondylosis. In its reconsideration dated 19 June 2002 the Respondent affirmed its earlier decision accepting liability for the right rotator cuff condition and denying liability for Mr Nguyen’s cervical spondylosis (T28).
13. On 1 October 2002 Professor Sambrook provided a further medical report at the request of the Applicant’s solicitors (T1 lodged under section 37 of the Administrative Appeals Tribunal Act 1975 relating to proceeding N2003/77). Professor Sambrook reported that Mr Nguyen complained of chronic cervical pain that was present at all times and that it radiated into the trapezius region of both shoulders. He noted that this pain could become more intense at times with certain physical activity and on occasion will radiate into his head, causing a headache. Mr Nguyen complained of weakness in the right upper limb if he attempts to lift it above shoulder level. The Professor also recorded complaints of parasthesia along the inner aspects of both arms with it being worse on the right arm and radiating to the third to fifth digits of the right hand. Although Professor Sambrook agreed with Dr McGill that cervical spondylosis does have “a significant inherited component” he commented that in the context of his published research on the topic “one cannot exclude from these publications that the work activities Mr Nguyen had to perform are not causative, in part, for his developing cervical spondylosis.” He further stated that “there is a clear temporal relationship between the onset of [Mr Nguyen’s] symptoms and some of the activities he had performed during his work at Australia Post.” Professor Sambrook assessed Mr Nguyen as having a 10 per cent permanent impairment of his cervical spine according to Table 9.6. He also assessed the Applicant as having a 5 per cent impairment rating under Table 9.1 relating to his right shoulder.
14. On 14 October 2002 Dr C Browne, Rheumatologist, provided a medical report at the request of the Applicant’s solicitors (T4). The Applicant gave a history of first becoming aware of neck pain, radiating to the trapezius region in 1995. He was particularly aware of the pain when standing to sort mail and placing it in the pigeon holes that were above his head height. Dr Browne diagnosed aggravation of cervical spondylosis and right rotator cuff tendonitis and cuff tear. He agreed that the cervical spondylosis is chiefly constitutional in nature but was of the opinion that it has been aggravated by the nature and conditions of his work with the Respondent. In regard to his right shoulder disorder Dr Browne held the view that it is more likely to be causally related to the nature and conditions of Mr Nguyen’s work. The doctor advised Mr Nguyen that he was not advised to continue his program of 300 – 400 metres of swimming each week in the stroke of freestyle. Dr Browne considered the Applicant permanently unfit for his pre-injury work duties and assessed his impairment as 10 per cent under Table 9.1 and an impairment of 5 per cent relating to the cervical spine under Table 9.6.
15. A completed Compensation Claim for Permanent Injury was sent to the Respondent on 31 October 2002 (T5). In the permanent impairment claim Dr C. L. Duong, General Practitioner, assessed the Applicant as suffering from a cervical spine impairment of 5 to 10 per cent, a right shoulder impairment of above 5 per cent and a whole person impairment of 10 per cent.
16. On 12 November 2002 a delegate of the Respondent found that the Applicant’s right shoulder impairment did not reach the required level of 10 per cent pursuant to section 24 of the SRC Act (T6). Consequently the delegate determined that Mr Nguyen was not entitled to the payment of compensation pursuant to sections 24 and 27 of the SRC Act.
17. On 10 December 2002 Dr F Doull, Radiologist, performed an ultrasound on the Applicant’s left shoulder (T3 lodged under section 37 of the Administrative Appeals Tribunal Act 1975 relating to proceeding N2003/1460). In his report of the same date the doctor reports that there are “secondary signs of a rotator cuff tear.”
18. A reviewable decision made on 3 January 2003 affirmed the earlier determination that Mr Nguyen was not entitled to payment of permanent impairment benefits (T8 of N2003/77 proceedings).
19. In a report dated 23 February 2003 Dr Duong recorded that Mr Nguyen had begun to have problems with both of his shoulders and experienced neck pain in 1995 while working for Australia Post (T4). Dr Duong noted that Mr Nguyen noticed that the pain radiated down his shoulders from his neck and along the trapezius muscles. Dr Duong diagnoses a rotator cuff tear in the left shoulder and opined that the rotator cuff tear “is likely to be related to the nature and conditions of his work [with Australia Post]”.
20. A further Claim for Rehabilitation and Compensation was completed by the Applicant on 13 March 2003 (T5). The claim was made in respect of “right rotator cuff tear, left rotator cuff tear and disc injury in neck” and was said to have occurred in May 1995 while performing his usual duties as a postman.
21. In a determination dated 1 August 2003 a delegate for the Respondent determined that Australia Post was not liable to pay compensation to the Applicant for any injury to the left shoulder (T8). In earlier communication between the parties it was agreed that the later claims made for the right shoulder and neck injuries had already been dealt with in earlier claims.
22. In a reviewable decision dated 5 September 2003 it was determined that there was “insufficient objective evidence” to establish a nexus between Mr Nguyen’s left shoulder condition and his employment with Australia Post (T10). Consequently the earlier determination denying liability was affirmed.
Evidence
23. In a follow up review on 12 May 2003 Professor Sambrook provided a further report at the request of the Applicant’s solicitors (Exhibit A2). The Applicant gave a history of chronic cervical pain that is present at all times. This pain radiates into the trapezius region of both of his shoulders. He said that he experiences parasthesia along the inner aspect of his right arm but on his left arm he experiences pain on the outer aspect of his left elbow. Professor Sambrook maintained his diagnosis of cervical spondylosis and also diagnosed bilateral rotator cuff disease. It was the view of Professor Sambrook that:
“Although the nature of the conditions of his employment including the handling of heavy mail articles and repetitive elevation of his shoulders above shoulder height would have had some general effect to predispose him to rotator cuff disease, the right side occurred during his period on employment and can be more generally related to his employment than his left side, which has only become clinically apparent more recently. Given the previous normal examinations of the left shoulder by a number of doctors, it is unlikely the left rotator cuff had been torn and asymptomatic. Rather it seems to be a new lesion and I would disagree with Dr Duong that this can be directly related to the nature and conditions of his work. Any relationship is indirect and because of the time lapse, difficult to substantiate.”
Professor Sambrook assessed permanent impairment between 5 per cent and 10 per cent in both shoulders according to Table 9.1.
24. At the request of the Respondent’s solicitor Dr McGill re-examined the Applicant and provided a report dated 29 September 2003 (Exhibit R1). Since the last examination with Dr McGill Mr Nguyen had developed pain in his left shoulder. He was forced to stop swimming because of the pain and was at that time on a waiting list for shoulder surgery. Dr McGill diagnosed cervical spondylosis and bilateral cuff disease of the shoulders. The doctor was of the view that the left shoulder rotator cuff disease was “a reflection of his constitutional pre-disposition to rotator cuff changes and his swimming activities”. He was not of the opinion that his previous work duties with Australia Post had any influence on the development of the disease in 2002. In a separate report of the same date Dr McGill assessed Mr Nguyen’s whole person impairment as 5 per cent for both of his shoulders under Table 9.1 and 5 per cent in relation to the cervical spine under Table 9.6. However, Dr McGill noted that it was only in relation to the right shoulder that his work duties played a role in the impairment.
Injury
25. Mr Nguyen gave evidence at the hearing that it was in the beginning of 1995 when he began experiencing soreness in his right shoulder and neck. He also stated that before 1995 he had a dull pain in his left shoulder. He was under the impression that the pain was work related however he did not place a claim with Australia Post; instead he only spoke to his work mates about his symptoms. He had not realised that he may have been eligible for compensation for such an injury – believing that workers compensation was only available when an employee suffered a serious external injury such as a broken limb rather than an internal pain.
26. In May 1995 he was involved in a motor vehicle accident and was taken to Royal North Shore Hospital where he underwent x-rays and was later released. Mr Nguyen gave evidence that he did not suffer any injury from the accident. During cross examination the applicant further denied suffering any pain due to the accident. He did agree that he had had his neck x-rayed after the accident but asserted that the pain that he was suffering in his neck was in relation to his work rather than the accident.
27. Mr Nguyen explained the family circumstances that he referred to in his resignation letter to Australia Post dated 24 March 1998. He said that these circumstances related to the pain that he was experiencing at the time and the fact that his relationship with his wife had deteriorated to such a level that they had separated from each other. However, he further explained that he did not tell Australia Post in specific detail about the pain that he was experiencing in his right shoulder and neck because his family troubles were overwhelming, so much so that he could not think about other things at that time. However, under cross-examination the Applicant admitted telling people on occasions that he had not revealed the details of his injury to his supervisor out of a fear of losing his job.
28. In 2000 the Applicant underwent surgery to fix his right shoulder problem. The operation was a success and appeared to fix the problem for some time. Mr Nguyen told the Tribunal that although the pain in his right shoulder had been alleviated he was still experiencing pain in his neck. Also, after the operation to his right shoulder the pain in his left shoulder began to get progressively worse.
29. The Applicant gave evidence concerning his current restrictions due to the pain in his left shoulder and neck. He told the Tribunal that when the temperature is cold his shoulder and neck become very sore and he is restricted in his movements. When he is sore he cannot hang up the clothes on the washing line and has some difficulty doing the vacuuming. He also finds it hard to turn to either side and is very sore when he tries to move his head in an upwards direction.
30. Under cross examination Mr Nguyen denied being injured during the Vietnam War while he worked in the Military Police for the South Vietnamese. He did, however, agree that he had been injured when an army vehicle he was travelling in overturned. He received a cut on his right forearm that required stitches. In 1975 he was sent to a “re-education” camp by the ruling forces. There, he explained, he grew rice but was beaten only once. The beating involved all parts of his body excluding the head or neck.
31. Evidence was led that the Applicant had successfully applied for a Veterans’ Affairs pension for his services working with the allied forces during the Vietnam War. In his application for the pension he had claimed that his neck pain was associated with his war experiences and thereafter. The Applicant explained that he found it difficult to distinguish the origin of his pain as coming from the war or from his work because he had not suffered prolonged pain until 1995 while working at Australia Post. During cross examination Mr Nguyen agreed that his application for a Veterans’ Affairs pension was that he was suffering, amongst other ailments, Post Traumatic Stress Disorder (“PTSD”) and that this condition prevented him from returning to any form of work.
32. In a report dated 6 January 1998 Dr S Law, Consultant Psychiatrist, diagnosed the Applicant as suffering from PTSD. In the report he noted that the Applicant’s “PTSD most probably has been causally related to his past adverse war and re-education experiences”. The doctor was also of the view that Mr Nguyen’s symptoms “had become significant and disabling in the past 2-3 years” and that he is “probably permanently incapacitated for work” because of his condition. Dr Law noted that the onset of the PTSD was after Mr Nguyen’s arrival in Australia.
33. On 5 November 1999 Dr N Hunter performed a bilateral shoulder ultrasound. On the report of the same date Dr Hunter wrote that there was a supraspinatus tear on the right shoulder but found no abnormality of the left shoulder (Exhibit R4). Professor G Murrell, Orthopaedic Surgeon, provided a series of reports assessing Mr Nguyen after he underwent surgery to his right shoulder in 2000. These reports, dated 2 August 2000 (Exhibit R8), 30 August 2000 (Exhibit R9) and 29 November 2000 (Exhibit R10) indicate that Mr Nguyen was generally happy with the progress of his right shoulder and that examination revealed that he had developed a good range of motion and power in the shoulder. In the report dated 29 November 2000 Professor Murrell indicated that freestyle swimming was causing the Applicant some discomfort so he recommended that Mr Nguyen undertake breaststroke for a month.
34. Mr Nguyen described his current symptoms to the Tribunal. He said that he has difficulty reaching up with his right arm because of the pain in his right shoulder. Consequently, he explained, he avoided vigorous activity with his right arm as much as possible. He also stated that he has trouble driving because his neck hurts when he attempts the action involved in changing lanes. Also, his arms give him some problem when driving because they get tired. To avoid the tiredness in his arms he drives with one arm, rather than holding on with both hands on either side of the steering wheel. Generally he avoids driving although he did admit that he does drive every day to visit his children.
35. Mr Nguyen told the Tribunal that he could only lift his left arm to about the same level as the table that he was sitting at and that he had to alternate use of his arms when he attempted to engage in prolonged activity involving his left and right hand. When pressed he agreed that he generally avoided such activity. The Applicant denied being able to complete everyday activities that involved reaching up well above his shoulder with both his left and right hands and that he could also move his neck in more or less a normal fashion.
36. In a video shown to the Tribunal Mr Nguyen was seen to wash three cars in succession on 20 July 2003. Mr Nguyen was seen to use a sponge in his right hand and wash each vehicle. He was shown to reach with his right arm to wash and chamois the rooves of each vehicle. In the video he was also shown to hang on to the roof racks of a car with his right hand and fully extend his left arm out to wash its roof. At one point he was also seen to retrieve the tailgate of one of the vehicles.
trips to vietnam
37. Mr Nguyen gave evidence that in July 1997 he travelled to Vietnam under the assumption that the warmer weather may alleviate some of the pain that he was experiencing in the right shoulder and neck. However, in cross examination Mr Nguyen admitted that one of the main reasons he took the trip to Vietnam was because his daughter was in Ho Chi Minh City, staying with his relatives while recovering from a drug addiction. He agreed that he was very worried about his daughter and her rehabilitation and that on returning to Australia was sent to counselling by a Dr. Duc. The Applicant said that he had gone to Vietnam for many reasons and that one of them was to alleviate the pain in his shoulder and neck. He disagreed with the proposition that was put to him that the reason he had stopped work was because of his family problems rather than his injury. Mr Nguyen explained that his resignation from work with the respondent was a culmination of many factors rather than one sole reason.
dr c browne, rheumatologist
38. Dr Browne provided further medical reports at the request of the Applicant’s solicitors on 3 June 2004 (Exhibit A1) and 29 June 2004 (Exhibit A3). In the report dated 3 June 2004 Dr Browne noted that Mr Nguyen’s duties when he was employed with the Respondent required him to engage in “repetitive elevation of his right arm in the course of sorting mail at levels equal to or above shoulder height” as well as “repeated back extension”. He confirmed his earlier impression that the cervical spondylosis that the Applicant suffered from was chiefly constitutional in nature but had been “aggravated by the nature and conditions of his work”. In terms of the Applicant’s left shoulder disorder Dr Browne was of the view that this could not be attributed to the Applicant’s work as it was asymptomatic during his time with Australia Post. In the report dated 29 June 2004 Dr Browne commented on the video that had been taken into evidence during the Tribunal hearing. It was the doctor’s view that Mr Nguyen “demonstrated a similar range of movement in his shoulders as during the physical examination in June 2004”. He concluded that the actions that Mr Nguyen was performing while washing the cars were not inconsistent with the physical findings that he had earlier made.
39. In oral evidence Dr Browne maintained his diagnosis. He explained that in terms of shoulder movement, the activity that Mr Nguyen displayed in washing the cars was not too great a variation from what the doctor had observed in his examinations with the Applicant. However, in terms of neck movements he felt it was hard to assess this from the distance the video had been shot at. In terms of Mr Nguyen’s left shoulder injury he explained that it was most likely to have been caused by swimming because that activity can ultimately go on to cause a tear in the rotator cuff on some occasions.
40. In cross examination Dr Browne was questioned about the variation in the range of movement of the Applicant at different medical examinations over a short period of time. Dr Browne explained that there can be variations in people’s neck pain and range of movement from week to week and that different results could even be found at different points of the day because various factors play a role in the limitation of movement. Dr Browne defended his assessment of the Applicant as having ten per cent whole person impairment according to the Comcare Tables even when the Applicant was managing to swim significant distances using the freestyle stroke. He claimed that this is what the Tables allowed for and that the range of movement in the applicant’s right arm required to swim freestyle was consistent with the range of movement Mr Nguyen had displayed on examination.
professor p sambrook, professor of rheumatology
41. Professor Sambrook gave evidence that his research had shown that in relation to neck and back problems in patients genetic factors are clearly important in terms of the radiological appearance of some form of abnormality using MRI scanning technology. However, he explained it was a mis-interpretation of the data to conclude that the majority of neck and back abnormality is constitutional or genetic and that there is little contribution from environmental factors. Instead he thought that his research demonstrated that there are genetic factors that show a patient is at risk of getting an abnormal MRI and there is also a genetic component to a risk of getting pain but that the second risk is rather less than the first.
42. It was the view of Professor Sambrook that it was the lifting of the heavy mail bags by the Applicant on his shoulders and in the close vicinity of his neck that was probably the most relevant aspect of his occupation in relation to his injury. Professor Sambrook believed that on the balance of probabilities the type of duties Mr Nguyen was undertaking would have materially contributed to his disc disease and his pain.
43. In terms of the variations in the range of movement that Mr Nguyen had displayed on various medical examinations Professor Sambrook was of the opinion that the natural history of most musculo-skeletal conditions is that the level of pain will vary from time to time. In both his report dated 22 July 2004 (Exhibit A4) and oral evidence Professor Sambrook conceded that the neck movements that Mr Nguyen displayed in the surveillance video were more extensive than he had displayed on examination. At the hearing however, Professor Sambrook pointed out that it was difficult to determine exactly what angle the neck is reaching by simply viewing a video. In regards to the Applicant’s shoulder movement Professor Sambrook did not believe he needed to change his opinion because he had not seen the Applicant abduct beyond the angle he had assessed during his clinical evaluation.
44. In cross examination Professor Sambrook explained that he had not seen Mr Nguyen had make any actions with his arms above 110 or 120 degrees, even when he was closing the tailgate of one of the cars. Although pressed about the level of his comprehension of the applicants duties while at Australia Post Professor Sambrook maintained that the history that he had been supplied by Mr Nguyen led him to consider that there was a material aggravation or contribution to his condition from his occupational exposure.
dr n mcgill, consultant rheumatologist
45. On 5 October 2003 (Exhibit R14) and 22 August 2004 (Exhibit R15) Dr McGill provided reports at the request of the Respondent commenting on the surveillance video and Professor Sambrook’s research respectively. The report dated 5 October 2003 states that there was no inconsistency in the Applicant’s movements in the video with the findings that he had made in his earlier report dated 29 September 2003 (Exhibit R1). He states that the video evidence supported his assessment of the Applicant’s good shoulder function and did not require him to alter his conclusions he had reached in his earlier report.
46. In oral evidence Dr McGill stated that he was of the view that because the Applicant could engage in reasonably lengthy amounts of regular swimming that Mr Nguyen had very good shoulder function at that stage. Dr McGill did not believe that the lifting of the mail bags or the carrying of a backpack full of mail would have had any effect on the Applicant’s cervical spine because there is no evidence that those types of activities make any difference to the pathology of the cervical spine. Instead he thought that the radiological scans of the Applicant were entirely consistent with constitutional degenerative change in the cervical spine. Dr McGill stated that he was unaware of any medical studies that showed a relationship between weight-bearing activity and neck pain.
47. When commenting on the surveillance video Dr McGill thought that Mr Nguyen demonstrated “good normal function over a long period of time”.
48. Dr McGill conceded in cross examination that he was not aware of the exact style that Mr Nguyen used when he was swimming freestyle. However he pointed out that he had obtained in history that Mr Nguyen used a snorkel while swimming so that he did not have to rotate his neck. Dr McGill explained that in order for Mr Nguyen to get his arm out of the water while using a snorkel he would have needed to abduct his arm considerably.
49. Dr Mc Gill conceded in cross examination that he was not aware of the exact style that Mr Nguyen used when he was swimming freestyle. However he pointed out that he had obtained in history that Mr Nguyen used a snorkel while swimming so that he did not have to rotate his neck. Dr McGill explained that in order for Mr Nguyen to get his arm out from the water while using a snorkel he would have needed to abduct his arm considerably.
consideration and findings
50. In preliminary comment we note that there is agreement between all the specialists in this matter that Mr Nguyen suffers from the following conditions, namely:
·cervical spondylosis
·tear right supraspinatus tendon
·tear left supraspinatus tendon
We find that Mr Nguyen suffers from these three conditions.
51. We further note that Mr Nguyen submitted the claim for compensation for his neck condition on 28 August 2000 in which he cited that the neck pain commenced when lifting mail bags in November 1995. We also note that Mr Nguyen resigned from Australia Post in March 1998, having spent the previous year (1997) in Vietnam on leave without pay.
52. In addressing the issue of Mr Nguyen’s reliability as a historian, we note the following:
·The delay in making his claim for compensation in relation to his neck condition and the reasons given by him for such a delay;
·The delay in making the claim for compensation in respect of the tear of the left supraspinatus tendon in March 2003 (N2003/1460), symptoms of which were first noticed in May 1995 (T5, p11);
·The absence of complaint of left shoulder pain until noted in Dr Duong’s report of 23 February 2003 (T4, p17) in which reference is made to an ultrasound examination of 10 December 2002 (T3, p6). The absence of such a complaint and/or symptoms relating to the left shoulder is noted in the reports of Professor Sambrook of 25 June 2001 and 10 October 2002, Dr McGill of 9 April 2002 and Dr Browne of 14 October 2002;
·The variance in reasons given for his year’s leave without pay in Vietnam;
·The denial of any neck and/or shoulder injury prior to the onset of such symptoms and the later admissions pertaining to a claim to the Department of Veterans’ Affairs for a disability pension for neck pain arising from injury during the Vietnam war. Also the later admission of his neck being x-rayed in May 1995 following his admission to Royal North Shore Hospital following a motor vehicle accident;
·That the date of separation from his wife and his account of marital difficulties varied.
53. Further we also note the variation of the range of movement recorded by examining doctors over time, and while recognising that some variation in range is not uncommon at examinations over time with such a condition, we note the comment made by Professor Sambrook in his report of 22 July 2004:
“I have previously also noted some restriction of cervical spine movement (about 10-20%). It is fair to say that Mr Nguyen appears to move his cervical spine in excess of that degree and the cervical mobility seen is unusual for someone who complains of chronic cervical pain and reduced ability to look from side to side.”
54. As a consequence of the observations made in the last three paragraphs we express reservations about the reliability of Mr Nguyen’s history in so far as it appears to us that the history varies with the need to add and/or subtract happenings that may have significance to an issue in question. By way of example we note the issue of the left shoulder, which is first raised in late 2002, despite symptoms stated to have first occurred in May 1995 with ample opportunity earlier to inform attending specialists of such.
55. Having stated our concerns about the reliability of Mr Nguyen to present a history which we believe is in part factual and in part constructed, we move to a consideration of each of the conditions found to exist.
right shoulder
56. The history given by Mr Nguyen in this issue has been consistent over time, although we note the tardiness with which the claim has been made. We note that Professor Sambrook and Dr Browne consider that the condition in the right shoulder was causally related to the nature and conditions of his work, while Dr McGill was of the opinion that Mr Nguyen’s right supraspinatus tear was caused and/or aggravated by workplace activities at Australia Post. With these opinions we conclude that the tear of the right supraspinatus tear was causally related to the nature and conditions of Mr Nguyen’s employment. As a result we affirm the decision of No.N2002/893 in so far as it relates to the right shoulder condition.
57. The Tribunal reviewed the assessments of the whole person impairment made by the clinicians, made pursuant to the Approved Guide and which include pursuant to Table 9.1, 5 per cent by Dr McGill, and 5-10 per cent made by Professor Sambrook. We have reviewed the video which showed Mr Nguyen’s range of right shoulder movements and again having assessed the specialists’ comments in light of their viewing of the video, conclude that Mr Nguyen has a 5 per cent whole person impairment pursuant to Table 9.1. Finally we did not accept Dr Browne’s 10 per cent assessment as such an assessment was inconsistent with the residual demonstrated and loss of the normal range of movement of the right shoulder as demonstrated by the other clinicians and the video. With such a finding of 5 per cent whole person impairment we affirm the decision under review in matter number N2003/77.
cervical spine
58. The history given by Mr Nguyen in relation to the cervical spine details pain commencing in earlier November 1995 (N2002/843, T8, p17) or in May 1995 (N2003/1460 T5, p11) or indeed even in January 1995 while working at Australia Post. We note a prior history of neck pain arising from injury in Vietnam during the war documented in a claim to the Department of Veterans’ Affairs and a history of his neck being x-rayed in May 1995 following a motor vehicle accident.
59. We have already concluded that Mr Nguyen suffers from cervical spondylosis. We note the following:
· Professor Sambrook considers that Mr Nguyen’s work at Australia Post had materially contributed significantly to the development of the cervical spondylosis (report 25 July 2001); of being causative in part, with a clear temporal relationship between the onset of symptoms and some of his work activities (1 October 2002), while his comments on 1 July 2004 following his viewing of the video indicated that Mr Nguyen demonstrated a fairly full range of neck movements;
· Dr Browne considered that Mr Nguyen had suffered an aggravation of cervical spondylosis, with cervical spondylosis being chiefly constitutional in nature, but in this case aggravated by the nature and conditions of his employment (report of 14 October 2002). This opinion he repeated in a second report dated 3 June 2004, a third report dated 29 June 2004 after viewing the video and in oral evidence;
· Dr McGill in his report dated 9 April 2002 considered that Mr Nguye’s cervical spondylosis was entirely constitutional and that his work duties have not had any influence on either the development or progression of the disease. In subsequent reports Dr McGill confirmed his opinion, adding that he was unaware of any medical studies that showed a relationship between weight bearing and neck pain.
60. On the balance of probabilities, we conclude that the cause of Mr Nguyen’s cervical spondylosis was not materially contributed to or was aggravated by the nature and conditions of his employment. In so finding we have given consideration to the following reasons:
·The history of commencement of neck symptoms is confusing with a previous history of neck pain from a war injury (claim to Department of Veterans’ Affairs); a motor vehicle accident in May 1995 and two documents which state his neck pain started in May or November 1995;
·The delay in claiming compensation has further obfuscated the nature and commencement of his pain in so far as either party has been able to investigate and detail the events leading to the neck pain occurring in 1995;
·That it is more probable than not that the cervical spondylosis was constitutional in origin and that an earlier injury may have had a role in either causation. The opinions of Dr McGill and Dr Browne are noted, but again we have difficulty in defining other than a vague history of commencement of when neck pain actually increased.
·That while Mr Nguyen reported symptoms occurring in 1995, the best evidence that is before the Tribunal relates to a stated temporal connection. Mr Nguyen portrays that his neck symptoms worsened and he took a year’s leave without pay to travel to Vietnam to be in a warmer climate, and also to care for his daughter. Mr Nguyen also portrays that his neck symptoms did not improve in that twelve moths and that they continue to cause him considerable difficulty;
·With the evidence of variability in clinical findings as to the limitation of the range of movements of the cervical spine and the comments made by the clinicians on the range of movement demonstrated in the video (particularly those of Professor Sambrook), there remain significant difficulties in assessing when the condition commenced, when it became symptomatic and when it could be said to have worsened. Added to this is the difficulty as to whether the employee’s employment has made a contribution to any aggravation which could be said to exist;
·In this regard the delay in lodging a claim for compensation has not assisted. Further the uncertainty inherent in the unreliability of Mr Nguyen’s attributes as a historian make retrospective construction as to what has happened by the clinicians less reliable. In so stating it is evident that there is an absence of reliable material which would allow clinical appraisal as to when the condition commenced, when did symptoms of pain commence and when if ever did the condition worsen and was this permanent and did it relate to the nature and conditions of employment. We are unable to answer these questions with reasonable satisfaction, and hence any claim that the condition of cervical spondylosis was work caused or work aggravated must be denied.
61. We acknowledge that the clinicians have assessed Mr Nguyen’s cervical spondylosis and stated their opinions of a number of occasions. Dr Browne considered there was a 5 per cent whole person impairment pursuant to Table 9.6, Dr McGill 5 per cent, and Professor Sambrook 10 per cent in his two earlier reports. In the circumstances we conclude that the whole person assessment for the cervical spondylosis is 5 per cent pursuant to Table 9.6. In not accepting Professor Sambrook’s assessment, we note his comments in his last two reports which were not consistent with the loss of range of normal movement leading to the 10 per cent assessment in his earlier reports. As we have concluded that the cervical spondylosis is not work related, the assessment is of limited relevance to these proceedings.
62. As a consequence of our findings we affirm the finding in relation to cervical spondylosis contained within matter number N2002/893, and also the reconsideration decision in relation to permanent impairment in matter number N2003/77, with the total whole person impairment being 5% (arising from employment).
left shouder
63. We have noted the history given by Mr Nguyen in relation to the left shoulder. We have already stated that we do not accept this history, in the light of a failure to disclose such a history to examining clinicians up to November 2003. While we accept that he has a tear of the left supraspinatus tendon we are unable to accommodate a finding that such is a work related injury. Such a finding is made after noting an ultrasound report of 5 November 1999 which did not demonstrate a tear in the left supraspinatus tendon and reviewing the opinions of Professor Sambrook, Browne and McGill, none of whom supporting an employment causation or aggravation.
64. In such circumstances we affirm the decision under review in matter number N2003/1460.
determination
65. The Tribunal determines that:
(a)The decision under review in matter number N2002/897 is affirmed
(b)The decision under review in matter number N2003/77 is affirmed
(c)The decision under review in matter number N2003/1460 is affirmed.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of PJ Lindsay, Senior Member and Dr J D Campbell, Member
Signed: Neil Glaser
AssociateDates of Hearing 10 and 11 June 2004
Date of Decision 18 January 2005
Solicitors for the Applicant Carroll & O’Dea Lawyers
Solicitors for the Respondent Graham Jones Lawyers
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