Nguyen and Australian Postal Corporation
[2001] AATA 657
•18 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 657
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/419 &
) N2000/371
GENERAL ADMINISTRATIVE DIVISION )
Re THI QUANG KIM NGUYEN
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr M E C Thorpe, Member
Date18 July 2001
PlaceSydney
Decision 1. The decision under review of 3 March 1999 is set aside and the Tribunal substitutes in lieu of that decision its decision, namely THAT: the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 for low back strain for the period 17 November 1998 to 18 December 1998 inclusive. 2. The decision under review of 14 January 2000 is affirmed. 3. The Applicant is entitled to her costs in matter No N1999/419 being the application to review the decision of 3 March 1999.
(Sgd) M D ALLEN
..............................................
Presiding Member
CATCHWORDS
WORKERS COMPENSATION - Back injury and psychiatric illness. Did psychiatric illness depend upon back injury being work caused.
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
18 July 2001 Senior Member M D Allen Dr M E C Thorpe, Member
On 19 March 1999 the Applicant sought review of a "reviewable decision" by the Respondent on 3 March 1999 which decision affirmed a prior determination rejecting the Applicant's claim for compensation for low back pain said to have been caused by an incident at her place of employment on 17 November 1998.
An additional claim for permanent impairment and psychiatric injury was lodged with the Respondent and on 14 January 2000 that claim was rejected. On 8 March 2000 review was sought in relation to that determination. Both matters came on for hearing before this Tribunal on 19, 21 and 22 June 2001.
The real issues before the Tribunal were succinctly set out in the report of Dr Lovell, Psychiatrist, dated 2 November 1999 (Exhibit R3) namely:
"Currently it seems likely that Ms. Nguyen suffers from major depression. This condition has been present for the last 5 months. … It seems unlikely that work has contributed toward her current condition, unless it is thought that her lumbar back pain is work related. …"
The Applicant gave evidence that she was born in 1966 at Hue in the then Republic of South Vietnam. She came to Australia under the Family Reunion Programme in 1989. She married on 21 December 1991 a fellow Vietnamese and the couple have two children aged 8 and 5.
On 18 January 1991 the Applicant commenced permanent employment with the Respondent as a mail officer. At all relevant times she was employed at the Sydney East Letters Facility sorting mail. This duty involved her not only in sorting letters but in carrying bags of mail, pushing containers containing mail bags and carrying boxes of sorted mail plus working at machines where rapid keying was required. For example, one machine required 8500 key strokes per hour. Duties were, however, rotated during the course of a shift.
In November 1994 the Applicant developed pains in the right side of her neck, right shoulder and arm as a result of repetitive strain. The Applicant's initial claim for compensation for this condition is at Document T12 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
The history of the Applicant's repetitive strain injury is set out in the reports of Dr Sachdev, Orthopaedic Surgeon, and Dr Chen, Consultant in Occupational Medicine.
Dr Sachdev, in his report of 16 January 1995 to the Respondent (T13), states:
"She gave me a history that on 20 October 1994 while working on a computer keyboard she had severe pain in the neck. She, however, continued working. The pain gradually got worse. She was seen by Dr. Van Vinh in November 1994 and was given acupuncture. This gave her temporary relief. The pain, however, gets worse at the end of the day's work (sic). She says tablets which were given to her do not help her a great deal. She says the pain radiates to the right arm and forearm and is associated with numbness sometimes.
In her past history she has never had any trouble with her neck.
On examination she was a young woman of stated age in no great distress."
On 27 January 1995 Dr Sachdev reported that (T13 p153):
"Examination of cervical spine revealed still some tenderness in the cervical spine. Movements of the spine were limited in extension. Other movements showed a fairly good range. There is no neurological deficit."
And by 6 July 1995 Dr Sachdev reported that the Applicant's movements were full and unrestricted.
On 11 April 1996 Dr Sachdev noted that the Applicant had returned to work and was managing although, at the end of the day, the pain in her neck got worse. The pain did not radiate anywhere and movements of the spine were full and unrestricted.
Dr Chen examined the Applicant on 16 March 1995. During her examination she gained the impression that there was volitional under performance. She reported to the Respondent (T14 p167):
"The clinical findings suggest pain of myofascial origin in the shoulder girdles and upper limbs, the aetiology of which is uncertain but probably due to a combination of psychological, emotional and physical factors. She has been conditioned (through the workplace culture and peer influence) to expect pain with the task of indexing, evidenced by her identification of that particular task as the aggravating factor, not any other task which she had performed. Her small build is indicative of a reduced tolerance for repetitive heavy manual handling compared to average. In that regard, she may experience pain of muscular overload when performing repetitive heavy manual handling.
There was no evidence to suggest any active tendonitis in the rotator cuff of the right shoulder.
The cervical spinal x-rays revealed fairly clear evidence of disc degeneration at C6/7. The calcification of the anterior longitudinal ligament suggests and (sic) old injury, and this has definitely not been caused by her work. … although I feel that there may be some dysfunction in the lower cervical spine due to the disc degeneration, I do not consider her right arm pain to be directly associated with the C6/7 disc degeneration. It is more than likely that her right arm pain is associated with her right shoulder girdle myofascial pain condition. However, there may be contribution to her myofascial pain condition in the right shoulder girdle by cervical spine dysfunction secondary to lower cervical disc degeneration."
And recommended that the Applicant should not engage in repetitive heavy manual handling. Initially a maximum lifting restriction of 7 kilograms was thought appropriate and that in the long term, a 10 kilograms restriction should be applied.
The Applicant continued to consult Dr Chen at the request of the Respondent. On 30 September 1998, Dr Chen reported (T20):
"Ms Nguyen informed me that she is 'feeling much better'. She stated that her symptoms usually abate during the summer months. She stated that she has had no pain in the right shoulder girdle for the past one month.
She is currently performing restricted duties within her lifting restriction of 7 kg.
…
On examination, there was no evidence of any abnormality in her neck or shoulder girdle. She demonstrated full range of cervical spinal flexion, extension and rotation without any evidence of discomfort. Lateral flexion of the cervical spine was possible to 40 degrees in both directions without any evidence of discomfort. There was no tenderness to palpation in the cervical spine or in the right or left shoulder girdles.
…
There is no clinical evidence of any abnormality in the cervical spine, shoulder girdles or upper limbs.
..
I consider Ms Nguyen is fit for full normal duties as a mail officer."
As at 30 September 1998 when the Applicant consulted Dr Chen, she had in fact returned to full duties. Her evidence to the Tribunal was that she had returned to full duties in August 1997. On 15 May 1998 the Applicant consulted her general practitioner, Dr Yvonne Pham, because she was experiencing back pain. There is no reference in Dr Chen's report to back pain and the Applicant said she did not tell Dr Chen of back pain as it was intermittent.
In November 1998 the Applicant again consulted Dr Yvonne Pham because her lower back pain had become worse. Dr Yvonne Pham referred her for a CT scan which was to take place on 19 November 1998. On 17 November 1998, whilst pushing a trolley full of mail bags, the Applicant experienced acute pain in her lower back which also extended down her right leg.
That night when the Applicant returned home she was in a lot of pain. Her husband rubbed an analgesic cream into her back as well as her neck and right shoulder which had also become sore.
The next day the Applicant went to work and although in pain, she performed her normal duties. The 19 November 1998 was a rostered day off for the Applicant and she attended for the CT scan previously arranged by Dr Yvonne Pham. She then had two days off work and returned to work on 22 November 1998. Whilst at work that day, with the help of a union delegate, she completed a form claiming compensation. The Applicant did attend work on 24 and 25 November but 27 and 28 November were rostered days off. On 29 November 1998 she returned to work on light duties. On 30 November 1998 she attended Dr Yvonne Pham in the morning and then told her sister, who also worked at the same Mail Centre, to inform her superiors that she would not be attending work because of back pain.
Initially there was some dispute as to what was said by the Applicant's sister to the managers at the Mail Centre but, to our minds, nothing turns upon this.
Dr Yvonne Pham referred the Applicant to Orthopaedic Surgeon, Dr Kalnins. Dr Yvonne Pham also issued certificates stating that the Applicant was unfit for work. The Applicant did return to work for a short period in January 1999 but last worked on 15 January 1999. On that day she ceased work because of pain in her right shoulder and in her spine extending from her neck to her lower back. On 1 March 2001 the Applicant's services with the Respondent were terminated.
Currently the pain the Applicant experiences makes her very difficult to live with. She becomes angry with her children and argues with her husband. Her husband has given up work in order to care for the children, and does other domestic tasks such as cooking and washing. The Applicant also receives assistance from her mother. Dr Kalnins recommended she undertake hydrotherapy but she no longer attends as it is too expensive. Her local swimming pool is heated so she goes there and performs the exercises taught to her when she did attend hydrotherapy.
Cross-examined, the Applicant agreed that she drives a motor vehicle but denied squatting or jogging. A video film of the Applicant did show her squatting on one occasion and also breaking into an action best described as a fast shuffle. We were not materially assisted by the video films of the Applicant except to say she can probably do slightly more than she is prepared to concede.
As stated above, the Applicant was referred by her general practitioner, Dr Yvonne Pham, for a CT scan on 19 November 1998. The report of that investigation is at Document T21 and reads inter alia:
"Central disc herniation is noted in the region of L4/5 and L5/S1 displacing the thecal sac but not causing stenosis or any pressure on the exiting or descending nerve roots."
Prior to seeing Dr Kalnins in January 1999, the Applicant had attended Dr Chase, Occupational Physician, on 18 December 1998 at the request of the Respondent. Dr Chase's report following that consultation is Document T22A.
At page 2 of that report Dr Chase details the history taken from the Applicant. It reads:
"As noted above Ms Nguyen remained on suitable duties until 9th October 1998 when Ms Nguyen was certified fit to return to her full duties. On 17th November 1998 Ms Nguyen was working on the OCR which required her to lift a 'heavy' tray of mail. She felt 'tired' that day but was not sure 'exactly where'. She then felt pain in her back and was 'very tired'. She saw Dr Phan (sic) the next day and was sent for a CT scan. She returned to work on suitable duties and was referred to an Orthopedic (sic) Surgeon Dr Kalnins whom she saw on 4th December 1998. He has put her off work with the specific treatment of 'bed rest'."
Some of Dr Chase's history is inconsistent with the Applicant's evidence but Dr Chase did not have the advantage of an interpreter and where histories differ, we prefer the evidence of the Applicant.
At pages 3 and 4 of the report, Dr Chase commented:
"Ms Nguyen's presentation is confusing and contradictory. Her physical examination is unrewarding and indeed there are features that suggest that she is deliberately exaggerating her symptomatology. …
I am not convinced of the significance of the CT scan. Weisl et al noted that a herniated nucleus pulposus was present in 19.5% of asymptomatic persons under the age of 40 but there was wide variation between different radiologists. This variation ranged between 15.5% and 30.6%. I have little doubt from my own reading of the x-ray there is some disc protrusion at L4/5 and L5S1 but it is entirely possible that these were present before Ms Nguyen ever suffered from any back pain and they may be purely incidental findings.
To make a diagnosis one needs to have a coherent history, physical examination, plus or minus x-rays. Ms Nguyen is presenting as a woman who believes herself to be significantly disabled yet I do not believe that is the case on physical examination. …
Of course I cannot say Ms Nguyen does not have pain and it is almost certain that there are significant cultural or other psycho-social factors impinging upon her presentation. …
…
Ms Nguyen may suffer from low back pain of unknown origin. I am not convinced that it is discogenic pain as she does not have any clinically (sic) signs to support such a diagnosis. She may have sustained a simple muscular strain. She may also not have sustained any injury whatsoever.
…
… It is possible that her back pain came on as a result of the incident on 17th November 1998 although I draw your attention to her history which is very poor and of a cumulative onset. Much back pain comes on for no reason and goes away without treatment. If Ms Nguyen had been diagnosed as having an acute muscular strain and had not been sent for a CT scan it is probable that her prognosis would be considerably better. In other words, it is possible that her back pain is due to the 17th November 1998, but not probable."
The report of Dr Chase is supported by a later report to the Applicant's general practitioner by neurosurgeon Dr Elliott. In that report dated 11 March 1999 (Exhibit R5), Dr Elliott states:
"This patient has evidence of minor L4/5 and L5/S1 disc lesions but these are quite mild and could not be in any way responsible for her symptoms. Clearly there is quite marked functional overlay."
More importantly, however, Dr Elliott concluded his report by stating:
"The patient was asking me for a letter to support her appeal against the rejection of her claims for her back problem. I have advised her I do not feel that she has reasonable grounds to dispute this decision."
The Applicant's claim to have her alleged back injury accepted as compensable was rejected on 29 December 1998 and a reconsideration of that decision pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 affirmed that decision on 3 March 1999. On 8 April 1999 the Applicant was advised by the Respondent that she was required to attend work on a graduated return to work programme commencing on 3 May 1999.
Following the rejection of her claim for compensation, the Applicant changed general practitioners. Her new general practitioner was a Dr Quang Pham.
On 26 March 1999 Dr Quang Pham referred the Applicant to psychiatrist Dr Law. The letter of referral (Exhibit R6) states that the Applicant's compensation claim had been rejected and that the Applicant suffered from depression and had been prescribed the anti-depressant Zoloft. Interestingly, Dr Quang Pham says of the Applicant's depression:
"… This began after the onset of right neck/shoulder/upper limb pain in Oct 1994 and low back pain in 17 Nov 1998."
In none of the reports before the Tribunal relating to the 1994 neck shoulder injury was depression referred to nor do they contain any complaint or history of depression.
Dr Law, in his initial notes of his consultation with the Applicant, noted that she "cried often and had pain all over the body".
Dr Laws' initial report to Dr Quang Pham is dated 12 April 1999 (Exhibit A14). In that report he states:
"Ms Nguyen had seen me on 1-4-99 and 8-4-99. She told me that in the past few months she had been feeling worried, anxious, and on and off agitated. She tended to throw temper against her children, who were now being looked after by some house-helpers. She also suffered from impaired concentration and sleep. She cried to herself from time to time, and during such times she would be particularly cranky. In the recent 2-3 months she suffered from pain in both upper limbs and back pain as well, and she became increasingly worried and desperate."
And continued:
"Mental examinations revealed an obviously anxious and dejected lady, showing frequent frowning of forehead, and she was much preoccupied with her pain over multiple areas of the body. She was concerned with various X-ray reports indicating pathology in her spine, and she was also concerned with her 'depression and bad temper'."
In the opinion of Dr Law the Applicant suffers from an adjustment disorder with depression and also a chronic pain disorder.
Dr Law was extensively cross-examined. In cross-examination he conceded that so far as opinions as to physiological matters were concerned, he deferred to the opinion of Dr Elliott who is a neurologist. He was then asked:
Question:"But if the Tribunal finds that her lumbar back pain is not work related, then your diagnosis of adjustment disorder goes out the window?"
Answer:"Yes".
And later the following exchange took place:
Question:"If the lumbar back pain is not work related, then it is difficult to connect the diagnosis of adjustment disorder with Australia Post. Do you agree?"
Answer:"Yes."
Later in cross-examination Dr Law conceded that the Applicant's depression and chronic pain disorder could exist without a linkage to the work situation, and that the Applicant's current inability to work could be due to depression and chronic pain.
Dr Law further stated that his diagnosis was based on the Applicant's complaints of pain in her lower back and other regions of the body and that the Applicant had never presented with just low back pain.
In our opinion, and we so find, the concessions made by Dr Law in cross-examination result in his opinions conforming with the opinion of Dr Lovell in Exhibit R3, namely that:
"… It seems unlikely that work has contributed toward her current condition, unless it is thought that her lumbar back pain is work related. …"
The opinion by Dr Elliott, Neurosugeon, that the Applicant's back complaint was not compensable has been referred to above. Dr Maxwell, Orthopaedic Surgeon, was also of the opinion that the Applicant had not sustained a work related injury. In his report of 15 July 1999 (Exhibit R2) he states inter alia (page 4):
"I could find no objective physical abnormality on examination of Mrs Nguyen.
I do not consider she has sustained a work-related injury.
…
Her overall prognosis from a physical point of view is excellent."
Dr Maxell noted that when formally examining the Applicant, she appeared to be voluntarily restricting her movements.
Dr Chase furnished a second report to the Respondent on 27 May 1999. That report took account of reports by Drs Law and Kalnins, and Dr Chase commented (T6 in N2000/371 p38):
"In combination I believe that Ms Nguyen's major problem is her psychiatric state, specifically her depression. She probably has an adjustment disorder but I cannot state with any certainty what the main cause of this adjustment disorder is …
I stand by the report on 21/12/98 as I draw your attention once more to the fact that I did not say that she did not have back pain. I stated that she essentially had a low back pain of unknown origin although with the positive MRI scan I must admit that it is quite possibly due to annular tears as stated by Dr Kalnins. Such pathology does not inevitably cause a person to end their occupational life and I stand by my statements that Ms Nguyen's main problems are psychosocial issues which may or may not include occupational factors. …"
More importantly, Dr Chase concluded the report by stating:
"In my previous report, particularly paragraph four of my discussion I noted that Ms Nguyen was fit to perform her full and normal duties. I also noted that she was highly unlikely to comply with that advice and recommended a return to work on suitable duties. I do not change that advice although clearly Ms Nguyen will never agree with that."
On 22 February 2001 the Applicant was examined by Dr Gliksman, Occupational Physician. Unfortunately Dr Gliksman was specifically asked not to comment on the Applicant's back or psychological state nor her ability to undertake work. For those reasons we do not derive any assistance from Dr Gliksman's report. There is little use in asking an occupational physician to report on psychiatric illness when the Applicant is currently being treated by a psychiatrist.
At the request of her solicitors, the Applicant consulted Dr Champion, Rheumatologist, at St Vincent's Clinic.
At the outset the history as reported by Dr Champion is inaccurate. In his report of 1 July 1999 (Exhibit A18) he states that the Applicant reported:
"… she had never had a significant disorder with her back prior to the injury of November 1998."
This is contrary to the Applicant's evidence that she experienced back pain commencing prior to 15 May 1998 when she consulted Dr Yvonne Pham.
In the opinion of Dr Champion the Applicant, on 17 November 1998, aggravated the disc lesions at L5-S1 and L4-5 and may have caused much of the pathology then.
Dr Champion's opinion is contrary to the opinions of Drs Maxwell and Elliott, and even Dr Kalnins does not directly implicate the incident of 17 November 1998 in causing the disc protrusion. In passing, we note that Dr Kalnins also received a history of no back pain prior to November 1998.
Given the history of no back pain prior to November 1998, the opinions of Drs Champion and Kalnins are understandable but wrong and we prefer the opinions of Drs Maxwell and Elliott.
Dr Champion, in reports dated 1 July 1999 and 13 October 1999, opined that the Applicant suffered a bilateral cervicobrachial pain syndrome. He expanded on this diagnosis in his report dated 13 October 1999 by stating (T1 in N2000/371):
"Today I focused more particularly on her neck and upper limb chronic pain disorders. I was satisfied that on the information available this is essentially a work related neck and arm pain syndrome (occupational cervicobrachial disorder of the so called repetitive strain syndrome category). This is primarily an organic peripheral neuropathic pain disorder with features of central sensitisation of nociception (deep secondary allodynia)."
But did comment that psychosocial factors were uncommonly prominent in the Applicant's case.
At the time Dr Champion first examined the Applicant, she had not worked since 15 January 1999. In her complaints to Dr Law, she stated that she had pain "all over her body".
To our mind, whereas the Applicant did suffer from pain in her neck, right shoulder and arm in 1994, on 30 September 1998 she informed Dr Chen that she was feeling much better and was found fit to return to normal duties. The only injury complained of on 17 November 1998 was low back pain and some radiation down the right leg, consequently we reject Dr Champions opinion that any pain the Applicant might now be suffering in her neck or upper limbs is work related.
Having regard to all the material before us we are satisfied that the Applicant presents with bizarre symptoms which are not always consistent. If adjudged purely on physiological findings, she is fit to return to employment and has been so since 3 May 1999 (see Document T28).
Clearly the Applicant is disabled by psychiatric illness. As her treating psychiatrist stated in cross-examination, that illness is referrable to her employment only if her back condition is referrable to her employment. Given the reports of Drs Maxwell, Elliott, Kalnins and Chase referred to above and the objective findings following investigation and examination together with the evidence of the Applicant to this Tribunal, we are satisfied that her back condition is not referrable to her employment. It follows therefore that her psychiatric illness is not employment related.
Notwithstanding the above findings, we found the Applicant to be generally credible although we find that she overstated her case as evidenced by the video film of her activities. We note that despite her complaints of pain, she still manages to drive a motor vehicle. We accept that she did experience a period of back pain following 17 November 1998. That pain was in all probability a discrete episode associated with the muscular strain. As pointed out by Dr Kalnins in his original report, it should have resolved with bed rest and anti-inflammatory medication.
It is difficult to assess the period during which the Applicant could be said to have suffered back pain sufficient to justify her absence from work. We note the Applicant did return to work prior to ceasing work on 15 January 1999. Whereas the Respondent finally directed the Applicant to return to work and undertake a Return to Work Programme as and from 3 May 1999, it is clear that she was fit to return to work well before that date. However, doing the best we can, we find that the Applicant should be entitled to compensation for low back pain for the periods of her absences from work between the period 17 November 1998 up to and including 18 December 1998, the date Dr Kalnins originally certified (see T29 in N1999/419). In all other respects the decisions under review are affirmed.
As the Applicant has been partially successful in this matter, pursuant to subsection 67(8) of the Safety, Rehabilitation and Compensation Act 1998 she is entitled to her tax costs in matter N1999/419.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr M E C Thorpe, MemberSigned: Kwai-Ling Wong .....................................................................................
AssociateDates of Hearing 18 July 2001
Counsel for the Applicant Mr A Tudehope
Solicitor for the Applicant Mr K Quy, Thomson Bentley & Partners
Counsel for the Respondent Mr B Skinner
Solicitor for the Respondent Mr G Jones, Graham Jones Lawyers
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