Pepperell and Australian Postal Corporation
[2004] AATA 11
•9 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 11
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/751
GENERAL ADMINISTRATIVE DIVISION ) Re SUSAN PEPPERELL Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date9 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .........(Sgd) O Rinaudo.......
Member
CATCHWORDS
WORKERS’ COMPENSATION –liability – injury at work – injury to back, neck and shoulder after relatively minor fall at work – causation and diagnosis – medical evidence - no organic basis found for continuing pain – pain syndrome – pain ceased after surgery - date at which liability for conditions should cease
Safety Rehabilitation and Compensation Act 1988
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australia Postal Corporation [1998] FCA 335
Re Howard and Australian Postal Corporation [2002] AATA 400
Re Daaboul and Comcare [2002] AATA 1208
Re Roe and Comcare [2003] AATA 126
Casarotto v Australian Postal Commission (1989) 86 ALR 399REASONS FOR DECISION
9 January 2004 Mr O Rinaudo, Member 1. Mrs Pepperell seeks review of a decision of the respondent, Australia Post Corporation, to cease liability for injuries sustained in an accident at work, on 29 August 2001, on and from 1 May 2002.
2. Mrs Pepperell seeks that liability be accepted until 30 January 2003 being six months after operation by Dr Gilpin on 30 July 2002.
Issues
3. The issue for the Tribunal is:
(a)whether Australia Post correctly ceased liability for injuries sustained by Mrs Pepperell at work on 29 August 2001 on and from 1 May 2002 or;
(b)whether liability should have been accepted until 30 January 2003.
Evidence
4. Mrs Pepperell gave evidence at the hearing. In addition evidence was heard from Drs Coroneos, Nutting, Reid, Goode and Jackson.
5. Documentary evidence was also tendered as follows:
§ Exhibit 1 T documents
§ Exhibit 2 Report of Dr Gilpin dated 30 July 2002
§ Exhibit 3 Report of Dr Reid dated 23 November 2001
§ Exhibit 4 Report of Dr Goode dated 30 August 2001
§ Exhibit 5 Handwritten letter of Dr Howard Arbuthnot
History
6. Mrs Pepperell injured herself during her employment as a postal transport officer on 29 August 2001 when she tripped and fell into the back on her delivery van. In respect of the accident Mrs Pepperell’s evidence was that, after the fall, she completed the run then reported that she had had a fall. She filled out the necessary claim form and was treated at Sunnybank Hospital with pain killing tablets for “general all over pain at that time – like I had played a hard game of football”.
7. Liability was accepted for left shoulder, elbow, neck and lower back pain.
Medical History
8. Whilst the circumstances leading to her injury at work are able to be described in very short compass, her accident set off what can only be described as an extraordinary history of medical examination and intervention. The extent of this medical history can be seen by the summary following. It should be noted that Mrs Pepperell has seen many other doctors besides the ones listed here. However, the ones listed highlight the most important issues which the Tribunal has to consider. Mrs Pepperell provided a copy of her diary in which she noted:
“Wednesday – August 29th approx 6.30pm fell into side door of van whilst throwing mail towards back. Struck left elbow on door pillar. Door closed on right hip. Fell forwards onto mail bags. Continued run. Reported incident on return to Underwood and was taken to Mater Hospital – the wait was to be too long so I was then taken to Sunnybank Hospital. The Doctor gave me a Brufen and said it was too early to do X-rays.”
There is a list of 85 attendances at various doctors, physiotherapists and medical examinations such as ultrasound, MRI scan and surgery. This is between the dates of 30 August 2001 and 7 August 2002.
Dr Coroneos, Consultant Neurosurgeon
9. Dr Coroneos reported on 29 November 2001 (T67, folios 84/90) and on 24 April 2002 (T118, folios 160/168). In his evidence Dr Coroneos referred to page 5 of his report (T67, folio 88) and noted that Mrs Pepperell had undergone a cervical spine x-ray on 20 September 2001 which showed “No boney injury seen. Disc spaces all normal. No fracture or dislocation. Soft tissue examinations normal. Foramina normal”. He also confirmed that Mrs Pepperell had an MRI scan of her left shoulder on 14 November 2001 which reported “minor degenerative changes in left AC and adjacent soft tissues. The glenoid labrum is normal – no fracture or dislocation. No partial or full thickness rotor cuff tendon tears. Minor degeneration consistent with age. Normal examination”.
10. At page 6 (T67 folio 89) of his report Dr Coroneos confirmed that:
“There is not evidence of any identifiable injury on clinical, musculoskeletal, neurological, radiographic, computer tomographic, ultrasonographic, nuclear bone scan, MRI or electrophysiological examinations.”
11. Dr Coroneos confirmed his conclusions as set out in page 7 of his report (T67 folio 89) and in particular paragraph 8 which said:
“I am unable to find any basis for reported continuing symptoms and claimed incapacity nor am I able to find a basis for the requirement for any occupational, domestic or recreational restriction or impairment.”
12. Dr Coroneos confirmed there was no other test available which Mrs Pepperell could have had.
13. With reference to his second report, dated 24 April 2002, Dr Coroneos confirmed that Mrs Pepperell did not mention any back problem to him. Dr Coroneos confirmed the statement at page 7 of his report (T118, folio 166) that:
“I reviewed the various examinations including x-rays, CT, ultrasound, MRI, radioisotope, bone scan, detailed electrophysiological studies etc and all of these studies showed no evidence of any abnormality and in particular no evidence of any acute injury in the cervical spine, brachial plexus, left shoulder or left upper limb and in particular there was no evidence of any lacerations, abrasions, scars, fractures, dislocations, subluxations, disc protrusions, disc herniations, neural compression, neural injury, joint injury, partial or full thickness tendon tears in the rotator cuff and no evidence of any peripheral nerve or soft tissue abnormality with full range of movement and detailed neurological examinations noted in all sites.”
He further confirmed page 8 of his report (T118, folio 167):
“I am unable to identify any injury, impairment, incapacity as a result of the alleged incident 29/08/01 and there is no organic explanation for the reported symptoms and claimed incapacity…”
14. Dr Coroneos confirmed his finding that:
“I believe that Mrs Pepperell is fit and able to return to her normal employment without any requirement for restriction and no requirement for any specific form of medical, surgical, physical or rehabilitative therapy and I refer to the results of clinical evidence based medication.”
15. Dr Coroneos gave evidence that impingement meant a limited range of movement in the shoulder. He stated that on examination Mrs Pepperell had a full range of movement in the shoulder.
16. Dr Coroneos also gave evidence that the procedure carried out by Dr Gilpin could not have given the result claimed by Mrs Pepperell.
Dr Nutting, Orthopaedic Surgeon
17. Dr Nutting reported on 26 November 2001 (T64 folio 80) as follows:
“Thanks for asking me to see Susan Pepperell again. It is quite possible that her persisting symptoms are related to the blood supply of the brachial plexus, since extreme postures do alter her comfort.
I note that she has seen Peter Johnstone and had an MRI performed, which revealed changes in the attachment of subscapularis and degenerative changes in the acromioclavicular joint, but she does not have symptoms in that area.
It would seem to me that she has persisting neuralgic type pain and I note that she has been referred to the Logan Private Hospital Pain Clinic by Peter Johnstone.
I doubt that Michael Coroneos would find a surgical proposition here, but I think that persistence with an exercise programme, particularly an isometric type exercise programme, should pay dividends.”
18. Dr Nutting noted that he had a special interest in the area of shoulders. His evidence was that he could categorically state that Mrs Pepperell did not have impingement when he saw her. He stated that he did not think that there was anything wrong with Mrs Pepperell’s shoulder.
19. Dr Nutting denied that he had made a diagnosis of thoracic outlet syndrome as suggested in note at T87 p112.
Dr Allison Reid, Neurologist
20. Dr Reid gave evidence and she said that she had seen Mrs Pepperell on two occasions. Dr Reid explained the term chronic regional pain syndrome. She said the only description of the pain was the person themselves saying I have a pain in this region. It is not diagnosed by any objective criteria. Dr Reid commented that reflex sympathetic dystrophy and complex regional pain syndrome type 1 are the same. Dr Reid said Mrs Pepperell was reporting symptoms but she could not find cause for them. Dr Reid said that she did not perform an EMG because she knew that it would be returned normal. She stated that this was the next level up from an MRI investigation which had been done.
21. Dr Reid reported on 23 November 2001 (T63, folio 78) that “all electrical parameters were well within normal limits”.
22. In her next report of 25 February 2002 (T96, folio 123), Dr Reid made a number of observations. On page 3 of that report she notes:
“On inspection the contours of the neck and shoulder girdles are normal and she has a full and free range of shoulder joint movement.”
On page 129, Dr Reid describes the incident in which Mrs Pepperell was injured as “a trivial unwitnessed incident”. Dr Reid noted that what she meant by this was that Mrs Pepperell should have got better in a short period of time.
23. On that page, Dr Reid also reports that over the months this lady has been given a variety of labels to account for her pain including:
§ Soft tissue strain
§ Chronic regional pain problem
§ Persisting neuralgic pain type
§ Myofascial pain syndrome
§ Functional thoracic outlet syndrome.
24. She noted that:
“These are no more than labels in an attempt to account for the reporting of subjective pain.
From the neurological perspective may I assure you that this lady has nothing wrong with her. Based on the description of her pain, the clinical examination, and the investigations to date, I do not consider this lady’s pain as a reflection of cervical root irritation, brachial neuritis, thoracic outlet syndrome or any peripheral nerve entrapment. In short Mrs Pepperell does not have a neurological condition.
From the rheumatological aspect I can only say that she has a full and free range of left shoulder joint movements, and no sites of soft tissue tenderness, swelling or crepitus in the left upper limb.
Very careful clinical examination has not revealed a single clinical feature of reflex sympathetic dystrophy.”
Dr Reid concluded that:
“In my view this lady has no identifiable organic diagnosis. She is perfectly fit for work and has some unknown agenda to account for her reporting of ongoing intractable subjective pain.”
25. Dr Reid noted in her evidence that what she meant by this was that as there was no cause for the pain Mrs Pepperell should have been back at work. Dr Reid’s final conclusion noted:
“She has not responded to a variety of modalities of treatment over a six month period and I believe that further formal treatments and rehabilitation would be a waste of time.
You asked me to comment on Dr Jackson’s statement: ‘Her prognosis is guarded to poor due to the central sensitization which results in a chronic pain syndrome that is difficult to reverse…’
This type of statement if not evidence-based. It is not supported by the scientific literature, and it is of no scientific validity.
May I draw your attention to the truly excellent report of Dr Michael Coroneos (29 November 2001) in which I am in complete agreement.
Now another three months have passed, nothing has changed and, in fact, Mrs Pepperell states that she is getting worse. In other words this claim has become a farse.
…There is no identifiable organic diagnosis or injury and, in my view, there is no assessable permanent partial impairment.”
26. Dr Reid noted in respect of her comment that the claim had become a farse and that she said this because after an injury, in her experience, people usually get better.
Dr Goode, Specialist in Occupational Medicine
27. Dr Goode gave evidence that he had seen Mrs Pepperell twelve times and had provided reports on all but one occasion. These reports can be seen at Exhibit 4 and T documents 7, 13, 14, 21, 45, 61, 65, 66, 69 and 71. Dr Goode reported that Mrs Pepperell had a full range of movement in her shoulder the day after the accident.
28. In his report at T14 folio 24 Dr Goode noted that “Ultrasound of left shoulder dated 12th September 2001 is reported as normal”. In his evidence Dr Goode said Mrs Pepperell showed no evidence of impingement. He stated that chronic regional syndrome was pain which a patient says they have but in this case he noted that the injury Mrs Pepperell suffered from was a soft tissue injury and he therefore could not understand why her symptoms were persisting. He described as bizarre her complaint she had pain when talking.
29. He stated that on examination he would see pain on abduction for a superspenosis nove. Dr Goode said that if Mrs Pepperell was suffering from depression then she would have a lower pain threshold. He stated that impingement was a possible outcome of the accident but this was unlikely. He further commented that all symptoms complained of by Mrs Pepperell could not have come solely from impingement. In his report of 20 November 2001 (T61,folio 75), Dr Goode wrote:
“I can identify no organic or physical reason for the protracted and pervasive symptoms.”
Dr Jackson – Musculoskeletal Medicine
30. Dr Jackson saw Mrs Pepperell on 18 December 2001 and reported at T86 folio 111. In his report he stated:
“On examination, I found intervertebral dysfunction (tenderness, asymmetry, reduced range of movement and increased tissue compliance) between C0/1/2/3, C5/6/7/T1 including the first rib and T3/4. She also had signs of a painful stiff left shoulder. Furthermore I found myofascial tight bands containing tender trigger points in her sternocleidomastoid, trapexius, scalenes, pectoralis group of muscles and her anterior deltoid. Her left first rib was elevated, hypormobile and tender as its anterior and posterior joints.
Diagnosis was myofascial pain syndrome of the muscles of her left upper quadrant with a functional thoracic outlet syndrome. Because of the length of time since injury she would also have sensitization of the subtending spinal cord segments.
Prognosis is guarded to poor due to the abovementioned central sensitization which results in a chronic pain syndrome that is difficult to reverse.”
31. In his evidence Dr Jackson commented that he considered impingement could be a factor in Mrs Pepperell’s condition. He noted that impingement would show up on an ultrasound. He stated that clinical examination would show up a painful shoulder. He said that he did not see the level of pain and symptoms complained of as coming just from impingement.
32. Dr Jackson stated that he would not have recommended an operation for Mrs Pepperell.
33. He described chronic pain syndrome as self-perpetuating pain which he said can last for years.
Dr Malisano, Orthopaedic Surgeon
34. Dr Malisano saw Mrs Pepperell on 25 March 2002 some seven months after the accident at work on 29 August 2001. In his report at page two he says:
“…The diagnosis of Sue’s condition remains undefinable. It is not my place nor within my capacity to advise with respect to the disc bulge in the cervical spine and you should review the reports by the neurologist’s [sic} and neurosurgeon with respect to this point of view. From the point of view of her shoulder condition, it would appear that there is no tendon disruption nor is there instability. The radiological features are those that would normally be seen with degenerative process in the shoulder joint.. it should also be noted that such changes are not acute in nature and are reflective of a degenerative process in the longer term. I therefore would not agree that this is due to her recent injury.
Therefore as far as I am concerned my input into Sue’s process is to define the contribution from her shoulder alone and I can find no reason why there is an acute work related injury. Certainly there is an underlying condition which may have been aggravated by her fall, but I can find no investigatory evidence that this (is) in fact the case. In conclusion there is no acute lesion that I have identified which would be consistent with her mechanism of injury and her subsequent symptoms.”
Dr Melinda Pascoe, Neurologist
35. Dr Pascoe saw Mrs Pepperell on 14 March 2002 and reported on 18 March 2002. In that report Dr Pascoe opines:
“I believe Susan is suffering from a chronic regional pain syndrome as a result of a relatively minor injury that did not result in any demonstrable injury to the nerves, muscles or tendons. However, she does describe neuralgic type pain and has signs consistent with myofascial pain syndrome. There is no clinical evidence of reflex sympathetic dystrophy although she remains at risk of this entity should she not gain the use of her arm in a fully functional manner”.
36. Dr Pascoe recommended that “More detailed Nerve Studies would be appropriate to exclude chronic nerve root impingement or thoracic outlet syndrome”.
37. These nerve studies were conducted and the results are contained in the report of 28 March 2002 (see T112, p148). Dr Pascoe does not suggest that the studies (which appear normal) confirmed any thoracic outlet syndrome or chronic nerve root impingement.
Dr Castrosis , Medical Services Advisor
38. Dr Castrosis saw Mrs Papperell on 4 February 2002 and reported on 9 April 2002 as follows:
“When I reviewed Ms Pepperell on 4 February 2002 I noted she had remained off work. She presented as very defensive and guarded – refusing to answer questions initially. She claimed to have ongoing pain in the Left anterior shoulder/upper chest region of a deep and constant nature. …She told me the injections from Dr Bowles and Dr Jackson gave her partial relief only for a couple of days. She said that one of the injections caused numbness of the Left side of her face and arm, and removed the pain and tingling in her arm and hand. She told me her neck pain was exacerbated by talking or yelling!!… Clinical examination revealed only some muscle tension Left cervical region, mild non-specific left sided supraclavicular soft tissue tenderness, reduce/stiff cervical movements, and mild crepitus left shoulder 9full range of movement).”
39. Dr Castrosis reported after seeing Mrs Pepperell on 27 February 2002 that a cortisone injection in her right shoulder had not changed her symptoms. She continued to complain of neck stiffness. Dr Castrosis reported that Mrs Pepperell told him that she had driven to Dubbo and back in her husband’s vehicle.
40. After a review on 28 March 2002, Dr Castrosis reported that Mrs Pepperell told him that she was walking every day and that she had been undertaking a range of normal domestic activities including shovelling a load of soil into her garden.
41. On 9 April 2002, Dr Castrosis reported (see page 4 of his report):
“In summary, this 36 year old lady has been off working claiming total incapacity for ill-defined Left neck and shoulder girdle pain for approximately six months. Despite extensive neurological and radiological investigation by no less than 4 orthopaedic surgeons, 2 neurologists and a neurosurgeon, no objective physical findings or signs of injury to account for her symptoms has been determined.
I have seen Mrs Pepperell on a number of occasions since 4th February 2002. I have been unable to find any physical features consistent with the alleged mechanism of injury. I have been unable to make a diagnosis for her pain disorder which I consider is likely to be of a non organic aetiology. I have considered her symptoms were out of proportion to objective clinical findings and not consistent with the history of such a relatively minor injury mechanism. I do not consider Ms Pepperell has any cervical injury, thoracic outlet syndrome, Reflective sympathetic dystrophy or Left shoulder injury. …I would concur with the opinion of Dr Martin regarding the probable diagnosis of adnormal illness behaviour. I do not accept the diagnosis or label of Regional Pain Syndrome, Myofascial Pain Syndrome or Fibromyalgia. These are merely descriptive terms regarding reported symptoms, not pathological diagnoses representing objective clinical findings…
I would consider the effects of the injury of 29th August 2001 to have ceased previously. I do not consider her ongoing reported complaints or claimed degree of incapacity to be related to that previous injury.”
42. Dr Martin, who saw Mrs Pepperell on 29 February 2002, noted that she had a full range of movement in all plains and concluded that her symptoms could not be explained in terms of any organic injury which could be linked to the accident. He was concerned to not promote an “abnormal illness behaviour” which he considered was evolving, by proposing any further treatment or investigation.
Dr David Gilpin, Orthopaedic Surgeon
43. Dr Gilpin operated on Mrs Pepperell on 30 July 2002. Mrs Pepperell says that within six months of this operation she was symptom free. Dr Gilpin reported on 30 July 2002 that:
“I have operated on Sue today undertaking an arthroscopic acromioplasty to her right shoulder. It has been a little difficult to decide whether this procedure will be of any benefit to her, given the wide-ranging symptoms that she has in the shoulder. All I can say is that there were some changes consistent with impingement and given the fact that she had responded to a cortisone injection, albeit for only a short period, there seemed to be a reasonable option to undertake this particular treatment.
Obviously we will start her into a physiotherapy programme and follow it from there. The proof of the pudding will obviously be in the eating. I think there is a 50/50 chance whether this makes any significant long-term difference. Nevertheless, it really is the last throw of the dice fro her. If she did not have this, there would really be nothing left to offer.”
44. In her submissions counsel for the respondent questioned the use of the report from Dr Gilpin noting that from the report it was not clear:
(a)whether Dr Gilpin found an impingement at all or whether he merely found some changes consistent with impingement at a prior time;
(b)the precise location of the impingement (if any), and the nature of the impingement (if any);
(c)the cause of the impingement (if any) and, in particular, whether it was caused by the accident on 29 August 2001;
(d)the length of time that any impingement was present.
45. The submission went on to say:
“Accordingly, and having regard to the vague and frankly ambiguous nature of the letter written by Dr Gilpin, very little can be concluded from this letter beyond the fact that some type of operative procedure was, in fact, performed. Even if, to put the applicant’s case at its highest, there was impingement in the shoulder and this was corrected by Dr Gilpin, there is no evidence that the impingement was in any way caused by the incident on 29 August 2001 and, in fact, the evidence of the examining and treating doctors in 2001 (in particular) tells strongly against any conclusion that such impingement was caused by thr accident at work. Furthermore, the existence of any such (presently unspecified) impingement cannot explain the nature of the symptoms alleged to be experienced by Mrs Pepperell after the accident.”
Discussion and Decision
46. Three distinct possibilities arise from the analysis of the medical evidence as set out above.
1.That the applicant was indeed suffering from impingement caused by the injuries sustained in the accident and corrected by Dr Gilpin. This would limit the liability of the respondent to payment of incapacity payments to six months after the date of the operation undertaken by Dr Gilpin on 30 July 2002; or
2.The applicant is suffering from some form of pain syndrome as reported by Dr Jackson, which was again some how corrected by Dr Gilpin; or
3.As contended by the respondent, the applicant does not suffer from any kind of ongoing or permanent injury from the incident at work on 29 August 2002.
47. The overwhelming weight of evidence supports the third of these possibilities. The bulk of the doctors across various disciplines concur that the applicant should have recovered from what are described as relatively minor injuries sustained in the accident. They are unable to determine why the applicant should continue such pain which is described by them as of unknown origins.
48. In submissions the representative of the applicant sought to rely on a number of authorities to establish that the applicant was entitled to compensation on the basis of the diagnosis of pain syndrome. It is clear on the authorities that such a pain syndrome can be compensable: refer, Commonwealth v Beattie (1981) 35 ALR 369; Tippett v Australia Postal Corporation [1998] FCA 335; Re Howard and Australian Postal Corporation [2002] AATA 400; Re Daaboul and Comcare [2002] AATA 1208; Re Roe and Comcare [2003] AATA 126.
49. The applicant’s representative referred the tribunal to the decision of Daaboul in particular where the Member said (at par 90):
“Mrs Daaboul reports pain in the left and right wrists with the left no being worse. There is some numbness. The symptoms however are not, in the tribunal’s view, convincing as reflecting true carpel tunnell syndrome, particularly when faced with the clinical presentation, objective testing and Mrs Daaboul’s own evidence. The tribunal has considered Comcare v Mooi (supra) in which it was determined by Drummond J that even though a condition might not be identified with the label of a medical condition, it may still be compensable under section 14 of the Act, if it is determined that the worker is in a condition that is outside the realm of normal function and behaviour.”
50. It should be noted that the only doctor in this case to diagnose pain syndrome is Dr Jackson. He does so in the following terms:
“Diagnosis was myofascial pain syndrome of the muscles of her left upper quadrant with a functional thoracic outlet syndrome. Because of the length of time since injury she would also have sensitization of the subtending spinal cord segments. Prognosis is guarded to poor due to the abovementioned central sensitization which results in a chronic pain syndrome that is difficult to reverse.”
Dr Jackson goes on to say that:
“…treatment involves cognitive behavioural therapy, education Re: chronic pain, advice Re; posture and lifestyle and stress management. She needs exercise therapy and an attempt to reverse the myofascial pain syndrome and associated intervertebral joint dysfunction by various musculoskeletal medicine techniques such as mobilisation with impulse trigger point incisions or injections, muscle energy techniques and post isometric relaxation techniques. Failing this she should attend a multidisciplinary pain clinic.”
51. The Tribunal cannot accept the evidence of Dr Jackson. Far from requiring the significant and multifaceted treatment proposed by him it is now known that the only treatment undertaken by Mrs Pepperell was the operation performed by Dr Gilpin which is largely non specific. Accordingly the Tribunal does not accept that Mrs Pepperell is suffering from any sort of pain syndrome. The medical evidence is simply overwhelming on this point.
52. The Tribunal accepts the submission of the respondent referred to in paragraph 45 above, with respect to the report of Dr Gilpin. It is simply too vague to be accepted as evidence which would lead the Tribunal to disregard the evidence of the other doctors on this point. In this regard it should be noted that the applicant did not call Dr Gilpin to clarify his evidence. The applicant says this is because she could not afford it. In any event it is worth noting the comments Hill J in Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 413, when discussing the issue of “onus of proof”:
“Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf Vulic v Capital territory Health Commission (1982) 5 ALD 35 at 38 per Morling J) and ultimately the tribunal, in considering the claim, can only act on evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant fro review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant’s case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant’s case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant.”
53. The Tribunal cannot find any evidence which supports the applicant’s contention that the affects of the injuries she suffered in the accident on 29 August 2001 continued past 1 May 2002 when liability for the injuries was ceased.
54. Accordingly, the Tribunal affirms the decision under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: (Sgd) S Oliver...
AssociateDates of Hearing 18 to 20 August 2003
Date of Decision 9 January 2004
For the Applicant Mr G Hill (the Applicant’s brother)
Counsel for the Respondent Ms K Downes
Solicitor for the Respondent Clarke and Kann
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