Re Munswamy and Australian Postal Corporation
[2009] AATA 982
•20 October 2014
[2014] AATA 757
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3270, 5629, 2013/2153
Re
Ishwari Munswamy
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr W Isles, MemberDate
20 October 2014
Place
Sydney
The decisions under review are affirmed.
....................[sgd]....................................................
Ms G Ettinger, Senior Member
CATCHWORDS
COMPENSATION – employee of licensed corporation – injury in 2008 – liability to pay compensation for injury to lumbar spine accepted – subsequent decision of no present entitlement to compensation for medical expenses and incapacity affirmed by consent – present proceedings involve review of three decisions – determination of no present entitlement to compensation for medical expenses and incapacity in relation to accepted aggravation of constitutional degenerative changes in lumbar spine – denial of liability to pay compensation for new claim of aggravation of constitutional degenerative changes in lumbar spine – denial of liability to pay compensation for psychological injury due to alleged bullying and harassment – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 6, 14, 16, 19
CASES
Comcare v Mooi (1996) 69 FCR 439
Re Munswamy and Australian Postal Corporation [2009] AATA 982
Watts v Rake (1960) 108 CLR 158
REASONS FOR DECISION
Ms G Ettinger, Senior Member
Dr W Isles, Member20 October 2014
SUMMARY
Ms Munswamy is 44 years old, and has been working as a driver/mail sorter with the Australian Postal Corporation (Australia Post) since 1999. Ms Munswamy told us that on 30 January 2008, she lifted a parcel from the ground to load it into her van when she felt a sharp pain in her lower back. She indicated that the pain was in the lumbar sacral region, midline, and that she had pain in her legs, and could not walk. Liability to pay compensation was accepted for acute mechanical low back pain. Ms Munswamy had time off, an MRI in February 2008, various Rehabilitation Programs, and a graduated return to work.
In 2009 Ms Munswamy applied to the Tribunal for review of three decisions made by Australia Post. A hearing was conducted in 2009 and a decision made by the Tribunal: Re Munswamy and Australian Postal Corporation [2009] AATA 982. The two main issues at that hearing were Australia Post’s decision dated 13 March 2009 to suspend Ms Munswamy’s rights to compensation because she had not undertaken a Rehabilitation Program which was affirmed, and a decision dated 2 February 2009 deeming the Applicant fit to work six hours a day, five days a week, also affirmed.
There was a further application (2010/2992) to the Tribunal which was settled by consent in April 2011. The Tribunal’s consent decision affirmed Australia Post’s decision that there was no present entitlement to the payment of compensation from 22 April 2010 for the injury of 30 January 2008.
There are now three applications before the Tribunal. Ms Munswamy is the Applicant in each, and the Australian Postal Corporation (Australia Post) is the Respondent.
Matter 2012/3270 concerns an application Ms Munswamy made with regard to an injury arising from an incident on 28 October 2011. The decision under review accepted liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for aggravation of constitutional degenerative changes in the lumbar spine, but found that as of 11 November 2011 the effects of the injury had ceased such that Ms Munswamy was no longer entitled to compensation for medical expenses and incapacity pursuant to sections 16 and 19 of the Act.
The Applicant seeks to relate the 2011 injury to the 2008 injury. In that regard, we note the decision of the Tribunal arrived at by consent of Ms Munswamy and Australia Post, and having taken into account the evidence and submissions of both parties, for reasons which we discuss further on in this document, reject her claim that the 2011 injury or aggravation of her degenerative spine arose out of the 2008 injury.
Matter 2012/5629 concerns an application Ms Munswamy made with regard to an incident she says occurred on 14 August 2012. Liability for aggravation of constitutional degenerative changes in the lumbar spine was denied pursuant to section 14 of the Act.
Matter 2013/2153 concerns an application for anxiety neurosis Ms Munswamy made with regard to alleged workplace bullying and harassment. Liability was denied pursuant to section 14 of the Act.
We heard from the Applicant, and various doctors who have examined her over the years.
We did not consider Ms Munswamy to be a convincing witness. She gave vague replies at the Tribunal, and answers to questions often either retreated into can’t recall, or answering to best advantage.
Amongst others, we noted the following:
·Notwithstanding that 2006 and 2004 consultations with doctors about her back and leg pain had already been the subject of evidence at the Tribunal in 2009, Ms Munswamy gave evidence before us that she was unable to recall 2006 and 2004 injuries. She was reluctant to admit that she had suffered any back pain prior to 2008.
·We noted that the history Professor McGill elicited from Ms Munswamy was that she had no incidents prior to that of 30 January 2008. However, he noted from the medical records that her doctor had recorded as follows:
o5 December 2006 – muscle pain in her back. Hurts moving arm and back. No injury or strain. Voltaren prescribed.
o28 October 2007 – [one week] gradual onset of pain at left lower anterior chest wall aggravated by movement. Disturbed sleep. Woke up with same pain. Tender +++. Denied any trauma. Brufen continued.
o5 March 2008 – injured her back last [month] after picking up an oversize unlabel [sic] parcel …
o5 May 2009 – Dr B Darwish, a neurosurgeon and spinal surgeon, recorded: she continues to complain of lower back pain not radiating anywhere and not associated with any sensory or motor symptoms. Her examination was unremarkable. Advised continue analgesics.
·Ms Munswamy’s evidence regarding a consultation with Dr Lee on 18 November 2004 where she allowed her brother-in-law to use her Medicare card, and at which it seems from the doctor’s notes that she was not present. Dr Lee’s medical notes of 18 November 2004 indicate as follows:
only partner present
request voltaren for leg pain
suggest to come in for examination
due for her pap smear
·Ms Munswamy denied she agreed to sign consent orders at the Tribunal in April 2011, stating that she was coerced to sign. We reject that evidence on the basis that she was legally represented throughout the proceedings.
We have decided to affirm all three decisions under review. Our reasons follow.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988, in particular sections 5A, 5B, 6, 14, 16 and 19.
ISSUES BEFORE THE TRIBUNAL
The Tribunal must decide:
·Matter 2012/3270 concerns an application Ms Munswamy made with regard to an injury arising from an incident on 28 October 2011. Liability was accepted for aggravation of constitutional degenerative changes in the lumbar spine. The Tribunal must decide whether the effects of the 2011 back injury ceased to result in a need for medical treatment or an incapacity for work as at 11 November 2011.
·The Applicant seeks to relate the 2011 injury to the 2008 claim. The Tribunal must decide whether injuries/aggravations the Applicant has suffered following the 2008 incident arise out of that incident.
·Matter 2012/5629 concerns an application Ms Munswamy made with regard to an incident she says occurred on 14 August 2012. Liability for aggravation of constitutional degenerative changes in the lumbar spine was denied pursuant to section 14 of the Act. The Tribunal must decide whether liability should be accepted for that incident.
·Matter 2013/2153 concerns an application for anxiety neurosis Ms Munswamy made with regard to alleged workplace bullying and harassment which took place in October 2012, in particular on 26 October 2012. Liability was denied pursuant to section 14 of the Act. The Tribunal must decide whether Australia Post is liable to pay compensation for the workplace bullying and harassment as alleged by Ms Munswamy.
THE 2008 INJURY
Ms Munswamy’s evidence is that on 30 January 2008, she lifted a parcel from the ground to load it into her van when she felt a sharp pain in her lower back. She indicated that the pain was in the lumbar sacral region, midline, and that she had pain in her legs, and could not walk. She said that customers assisted with loading the van, and getting her back to the depot. Ms Munswamy reported the incident to her supervisor, and completed an incident report and a claim for compensation. There is no dispute that liability was accepted for acute mechanical low back pain.
Dr J Kafiris, Ms Munswamy’s general practitioner, in a report dated 6 January 2009 stated that he considered that she may have suffered a disc injury on 30 January 2008. He stated that he reviewed her again five days later, and noted her symptoms were consistent with a disc injury. He referred to an MRI scan in February 2008, which he said revealed a high intensity zone/radial disc tear of L4/5 and as well as a broad-based L5/S1 disc bulge compressing both S1 nerve roots. He also referred to a further MRI in October 2008 which he said showed at L4/5 there was a posterocentral disc prolapse with mild canal stenosis and compression of L5 nerve roots on both sides. There was mild-moderate posterocentral disc protrusion at L5/S1 compressing both S1 nerve roots, more so on the left side, although he noted that Ms Munswamy also complained of leg pain on the right side.
Dr G Griffith, a consultant surgeon, provided a report dated 8 November 2012 (Exhibit A6). He was the only doctor to refer to the 2008 injury as the Index Injury. Dr Griffith agreed with the diagnosis of Dr Kafiris that the problem following the injury of 30 January 2008 was primarily discogenic, and that there is a neuropathic pain element present. Dr Griffith’s view was that Ms Munswamy suffered two level disc protrusions on 30 August 2008.
Dr Griffith mentioned Professor McGill’s inclination to attribute the Applicant’s problems to degenerative disease, opining that there were certainly elements of degenerative disease present at the time of his (that is, Dr Griffith’s) examination. He emphasised however, that there were quite specific acute disc lesions at L4/5 and L5/S1 which occurred on 30 January 2008. He noted there was also some evidence of pain behaviour.
Certain of the other doctors who examined Ms Munswamy during 2008, seemed perplexed regarding the sites of her pain. In a letter of 29 October 2008, Dr G Etherington, a spine surgeon, wrote to Dr D Rail, a neurologist, in the following terms:
MRI in Feb 08 & Oct 08 do not show any overt compression but mild degen[erative] changes.
At present I would like to try to confirm where the L leg is coming from (!)
Dr J O’Neill, consultant neurologist, provided two reports dated December 2008 (Exhibit R1 - T152/355 and T160/373), and a report dated 1 November 2010 (Exhibit A4). In his first report, dated 9 December 2008, he discussed Ms Munswamy’s back and leg pain. He accepted that Ms Munswamy was likely to have experienced acute mechanical low back pain on 30 January 2008. He opined that would have been expected to settle within a period of some weeks to months. He opined there was at no stage any documentation showing left S1 radiculopathy, and commented that the nerve conduction study conducted by Dr Rail was normal in every respect. He added that there was no clinical evidence of radiculopathy.
Dr O’Neill added that:
The current working diagnosis should be mechanical low back pain with non-verifiable radicular pain in the left leg but there is undoubtedly abnormal illness behaviour which, in my view, largely accounts for continuing symptoms.
In his report of 1 November 2010 (Exhibit A4), Dr O’Neill stated that Ms Munswamy has:
never had signs of lumbar radiculopathy and nor would this be expected from the radiological findings.
…
My understanding is that Mrs Munswamy did not have low back pain prior to the lifting incident at work on 30 January 2008 so that that incident was responsible for initiation of mechanical low back pain which is now most reasonably attributed to her constitutional degenerative disease of the lumbar spine.
As intimated above, psychological factors (dispute with her employer) would undoubtedly be a contributing factor to the continuing complaints.
A letter dated 29 January 2009 from Dr Etherington to Dr Lee, the Applicant’s general practitioner, stated:
Mrs Munswamy was reviewed in my spine clinic on the 29-01-09 with regard to her lumbar spine degenerative problems.
…. the leg pain seems to have improved.
Her main problem now is axial low lumbar pain in the midline and slightly towards the left…
In his oral evidence at the Tribunal, Professor McGill noted that Ms Munswamy reported pain in both legs following the incident of 30 January 2008. He said that he did not understand the mechanism of bilateral lower limb pain, but that was what the Applicant had reported.
Dr Etherington arranged for Ms Munswamy to have L4/5 and L5/S1 facet joint injections. In order to exclude other conditions, even a bone scan was suggested. In that regard Dr N Dan, neurosurgeon, wrote to Dr Kafiris in the following terms on 10 February 2010 suggesting a bone scan:
The radiology really hasn’t given a good explanation for a radiculopathy and facet arthropathy would not explain the sensory changes but would explain the back pain.
As can be seen from the above, following the 2008 injury, Ms Munswamy consulted a number of doctors. She had various radiological investigations and treatments, and a graduated return to work. Drs Kafiris, Maxwell, (orthopaedic and spinal surgeon), and others commented upon her pain and illness behaviour even in 2008. Ms Munswamy was referred to a psychologist, Ms B Adam during 2008 in connection with anxiety and depression.
The Tribunal in Re Munswamy and Australian Postal Corporation [2009] AATA 982 affirmed the suspension of Ms Munswamy’s rights under the Act because she had failed without reasonable excuse to undertake a Rehabilitation Program, and affirmed a decision of Australia Post that in January 2009, she was fit to work six hours a day five days, a week.
At the hearing before us, Ms Munswamy was asked about medical notes indicating she had sought assistance in 2004 and 2006 for back pain and leg pain. Notwithstanding those dates and events had been the subject of evidence at the 2009 hearing at the Tribunal, Ms Munswamy continued, before us, to insist that she had had no back pain before 2008.
In matter (2010/2992) which followed in April 2011, Ms Munswamy signed consent orders affirming the decision that there was no present liability as at 22 April 2010 in relation to the 2008 injury. Ms Munswamy told us that she knew of the settlement of her claim on 19 April 2011. She said however that she did not read or understand the settlement, and was coerced to sign it. We are not satisfied with that evidence on the basis that she was legally represented throughout the proceedings.
The Applicant was certified by Dr Kafiris to return to work full-time during suitable duties on 29 July 2011. However, she may not have returned to her designated job of loading and unloading mail and parcels, and doing her pre-injury duties until September 2011. She told us that at that time, her back was the same as after the accident in 2008, that she was suffering pain, and that she was not coping well as the work was aggravating her leg and back. Her evidence was that following the incident of 30 January 2008, the pain in her back and her legs in which she experienced a burning sensation, continued. She said that she had not experienced anything like that before 2008. Her evidence of continuous pain following the incident of 30 January 2008, was not borne out by the medical records of Professor McGill, and the clinical notes of her general practitioners.
Dr D Maxwell, an orthopaedic and spinal surgeon, provided a report for the purpose of these proceedings dated 18 April 2013 (Exhibit R7). He described the history given by Ms Munswamy, but commented on the MRI scan of April 2011 in the following way:
The radiologist described foraminal stenosis at L4/5 but the foramen looked normal to me.
Dr Maxwell also noted that Ms Munswamy complained of back pain which [was] non-specific and an unusual burning pain in both legs which does not fit any radicular pattern.
Dr Maxwell not only disagreed with the report of Dr M Davies, a neurosurgeon, dated 17 December 2010, but made disparaging comments which we find inappropriate. We disagreed with his comment that: Dr Davies bought [sic] out the old ‘chestnut’ of ‘aggravation of underlying pre-existing degenerative changes in the lumbar spine’. He commented: These so called degenerative changes in fact consist of developmental variants due to genetic factors and age-related changes. Dr Maxwell considered that (on 30 January 2008), Ms Munswamy probably sustained an acute back sprain which usually involves some inflammation of the facet joints of the lower lumbar spine with recovery taking 4-6 weeks. He opined that there had been no pathological change in her back at that time.
Dr M Davies provided two reports, dated 17 December 2012 and 11 June 2013 (Exhibit A5). Dr Davies found Ms Munswamy’s account to him of her injuries, unclear. However, he was able to discern that following the 2008 injury, she tried suitable duties, and was able to return to pre-injury duties in about July/August 2011 until she reported a recurrence of back pain in October 2011. He noted she returned to pre-injury duties again in April 2012, until a further recurrence of pain occurred in August 2012, but with no history of any specific incident precipitating this recurrence. In December 2012, Ms Munswamy told Dr Davies that she had constant low back pain, with burning pain down the back of her legs. She told him she would rather do a morning shift as the pain becomes worse as the day progresses.
Dr Davies noted that the initial MRI scan showed evidence of pre-existing degenerative changes in Ms Munswamy’s lumbar spine. He also noted, however, that she had been asymptomatic prior to 30 January 2008. His view was that she has an easily irritable lumbar spine, and that she is likely to have intermittent flare ups of pain from time to time.
Dr Davies disagreed with Professor McGill that Ms Munswamy’s condition is simply constitutional and unrelated to her work incident of 30 January 2008. He noted that Professor McGill acknowledged the work duties in late October [2011] probably caused an increase in symptoms but that it was unlikely that those duties caused any change to the structure of her back. He opined: One does not need to see changes in structure … to be able to relate somebody’s back pain to a back injury.
In his further report of June 2013, Dr Davies commented on Dr Maxwell’s report, and the differing views they have of pain. He summarised as follows:
I disagree with Dr Maxwell’s opinion regarding complete lack of relationship between Mrs Munswamy’s employment with Australia Post and her symptoms. I do not dispute that there are psychosocial issues contributing to the situation but I do not believe that this is the sole explanation for her pain. Dr Maxwell seems to assume that all back injuries get better within four to six weeks and those that do not are due to psychosocial problems.
We are mindful of the medical evidence regarding the incident of 30 January 2008, and the results of imaging undertaken, noting that although an MRI scan was taken in February 2008, there was no MRI scan before the date of the injury. Whilst we accept the results of the scans as reported below, we particularly value the opinion of Dr R Shnier, a prominent radiologist, who reviewed the February 2008 MRI as indicated below. Reports of the following scans (not an exhaustive list), were amongst the material before the Tribunal.
·MRI of February 2008 showed disc desiccation at L3/4, L4/5 and L5/S1 with central disc protrusions at L4/5 and L5/S1; reviewed by Dr R Shnier, radiologist in March 2008. Dr Shnier stated in his report that Ms Munswamy had an L4/L5 annular tear and L5/S1 disc protrusion. He stated that: The protruded disc certainly does not touch or compress the nerve root sleeves. In my experience, acute apophyseal joint pain can give the level of disability that Ms Munswamy is allegedly suffering.
·CT scan of May 2008 confirmed the disc bulges/protrusions at L4/L5 and L5/S1, endplate osteophytes and facet joint osteoarthritis.
·MRI of October 2008 showed the same findings as previously with disc dehydration at the lower three lumbar levels and the bulge/protrusion of the L4/5 and L5/S1 discs.
·MRI of January 2010 again demonstrated degenerative disc disease with no change compared with previous studies including February 2008.
·Multipositional MRI of April 2011 showed a slightly more pronounced disc protrusion at L4/5 with extension of the lumbar spine; otherwise images as previously documented.
·MRI of February 2012 showed the same changes as had been previously demonstrated.
We have noted the reports of the doctors who examined Ms Munswamy in connection with the 2008 incident. Mr Anforth submitted that Drs Davies, Griffith, Dan and Abraszko, (a neurosurgeon and spinal surgeon), amongst others, disagreed with Professor McGill and Dr Maxwell who appeared focused on there not being a long term aggravation possible because they perceived no structural change had occurred in Ms Munswamy’s spine following the incident of 30 January 2008.
We are satisfied from the evidence of the MRI scans, Dr Shnier, and that of Professor McGill and Dr Maxwell who examined Ms Munswamy, that the 2008 incident did not cause structural damage to her spine, but was an aggravation of her multilevel degenerative spine. Professor McGill concluded that Ms Munswamy had not incurred a significant disc injury. He noted that Ms Munswamy suffers episodes of non-specific low back pain, which he opined occur in a large number of people, and resolve spontaneously. He also noted that the Applicant has constitutional degenerative changes at multiple levels of her spine. He opined that following the 2008 incident, she did not have signs or symptoms of radiculopathy.
We accept from the medical evidence that whether or not structural change occurs is not the deciding factor in whether a person suffers back pain. We understand that Ms Munswamy’s reports of her leg pain did not conform to a physiological pattern, and that may have been the reason why the doctors were focused on commenting on radiculopathy. However, we also accept that radiculopathy is not necessarily the deciding factor in whether a worker who experiences back and leg pain should be compensated. Liability for Ms Munswamy’s 2008 injury was accepted, and she had rehabilitation programs to get her back to work. A consent decision of the Tribunal with terms signed on behalf of Ms Munswamy and Australia Post held that she did not have present entitlement to compensation from 19 May 2010. We are satisfied from the evidence that the effects of the 2008 injury which several of the doctors felt should have lasted only a few weeks or months, were no longer compensable following the settlement of Ms Munswamy’s claim at the Tribunal in April 2011. We noted the decision that she had no present entitlement to compensation for her 2008 injury after 19 May 2010.
We moved then to consider Ms Munswamy’s injury incurred on 28 October 2011 as a separate injury.
MATTER 2012/3270 – WHETHER THE EFFECTS OF THE 2011 INJURY CEASED TO RESULT IN A NEED FOR MEDICAL TREATMENT OR AN INCAPACITY FOR WORK AS AT 11 NOVEMBER 2011
Mr Anforth argued that on 30 January 2008, Ms Munswamy suffered a frank injury to her lumbar spine at L3/4, L4/5 and L5/S1, and that the aggravation on 28 October 2011 was onto her spine, which had been damaged on 30 January 2008. He submitted that there was no evidence to suggest that she suffered the disc injuries (as described by Drs Kafiris, Darwish, O’Neill and Dan), other than in that incident.
Mr Anforth argued, in the alternative, that even if there was some evidence of spondylosis before the 2008 injury, Ms Munswamy was asymptomatic before 30 January 2008, and had been suffering back pain, accompanied by leg pain, ever since. He relied on the application of the well known principles in Watts v Rake (1960) 108 CLR 158 to found the connection between the injury of 2008 and injury/aggravation of 2011.
We noted that liability was accepted for aggravation of constitutional degenerative changes in the lumbar spine for the incident Ms Munswamy reported occurred on 28 October 2011. The Respondent decided that the effects of the 2011 injury ceased to result in a need for medical treatment or an incapacity for work as at 11 November 2011. Ms Munswamy applied to the Tribunal for review of this decision, and we must decide the issue.
Ms Munswamy’s evidence was that between July and October 2011 she was designated to return to full-time normal duties, but did not commence until September. We note that Dr Kafiris had certified her fit for full-time suitable duties from 29 July 2011.
She said that her lower back pain was severe, and she had the same burning sensation in her legs. We noted Dr Kafiris’ clinical record of 29 September 2011 indicated Ms Munswamy was doing her exercises, 3 weeks – better … handling 16 kg… next week – buddy system with driver – 2 weeks – see how goes, then back to usual. On 17 November 2011 he recorded that for the three weeks preceding 28 October 2011, the Applicant was performing her old job, and was tolerating it. He also recorded: Nil end of day symptoms. Ms Munswamy disagreed with the last point, saying that as always, she suffered pain at night.
In describing the injury of 28 October 2011, Ms Munswamy told us that she was clearing a mail box which contained a bag weighing more than 25 kg. She said that she tried to empty some of the contents before loading the bag in the van, but felt severe pain in her back, and informed her supervisor. She said that she had a few days off, and a Rehabilitation Program was organised to get her back to her pre-injury duties. Ms Munswamy agreed with the evidence that she improved from 29 October 2011, adding that she used pain relief, and was doing light duties. She said that if she tried to do her pre-injury duties her back got worse.
Professor McGill, who saw Ms Munswamy in April 2009, February 2010, December 2011 and August 2012, reported on 8 December 2011(in relation to the incident of 29 October 2011), that there was no evidence of radiculopathy, but accepted that given Ms Munswamy’s constitutional degenerative changes in her low back, she would remain susceptible to episodes of low back pain. He saw nothing to prevent her from resuming full duties. He accepted that it was probable that her work duties in late October caused an increase in symptoms relating to the underlying degenerative changes in her back.
Most notably Professor McGill recorded that Ms Munswamy told him that her back symptoms had resolved in early 2011 for no apparent reason. He said in his oral evidence that Ms Munswamy was not sure of the exact date on which she returned to work, but that it could have been July or September 2011.
Professor McGill’s report of December 2011 states that On Thursday 27 October [2011] she picked up large letter trays from the floor and experienced a burning throbbing sensation in the low back when she was sitting and driving. On the basis of Professor McGill’s examination and report, (he considered the effects of the aggravation should have ceased within a couple of weeks), compensation ceased on 11 November 2011.
Professor McGill’s report of 11 May 2013 noted that an MRI of the lumbar spine on 6 February 2012 was unchanged from an MRI on 11 April 2011. He added that:
The nature of the work event which was associated with an exacerbation of her back symptoms in October 2011 was such that it would have been unlikely to have caused any structural change in her back. The most sensitive imaging modality available (MRI) showed no change when comparing images obtained before and after that event. She did not develop any symptom that would suggest a new physical injury (such as the development of radiculopathy). My view is that the effect of the work activities on about 27 October 2011 was likely to have resolved in less than two weeks I think remains valid and is based on the nature of the activities which appeared to precipitate the increase in symptoms, the lack of any MRI evidence of alteration, and the lack of any clinical evidence of a new problem.
Professor McGill opined that symptoms related to degenerative change in the lumbar spine such as the Applicant has, typically fluctuate. He recorded that when he last saw the Applicant on 27 August 2012, she was experiencing pain in the low back in the midline, bi-frontal headache and tingling or burning of both feet. He stated that he did not consider that those symptoms were related to her employment with Australia Post, including consideration of the events on 30 January 2008, 27 or 28 October 2011 and 14 August 2012.
Pursuant to the reviewable decision, and based on Professor McGill’s report, compensation payments ceased on 11 November 2011. Ms Munswamy’s evidence to us was that her pain continued after 11 November 2011, and because compensation payments had ceased, she funded her own medical treatment, pain medication, consultations with her GP, Dr Manohar, a pain specialist, and Dr R Abraszko, a neurosurgeon and spinal surgeon. Ms Munswamy complained to Dr Abraszko (as recorded in the doctor’s report of 17 April 2012), of back pain radiating to both legs following the incident of 28 October 2011. We noted that Dr Abraszko felt that as a last resort, Ms Munswamy may need surgery.
Following further investigations including an MRI in February 2012 which Professor McGill held was consistent with previous imaging studies of degenerative back disease, his diagnosis did not change. In April 2012, Ms Munswamy returned to full duties. On 31 July 2012, she applied to this Tribunal for review of the decision to cease compensation payments on 11 November 2011.
Ms Munswamy told us that on 3 May 2012, she was doing full duties at Australia Post. When asked whether, in the period May to August 2012, she still had problems as the records indicated she was not consulting doctors, Ms Munswamy said that she was coping with the pain, and only attended at a doctor when in severe pain. She said she did the job despite the pain, which was worse at night. That was the reason, she said, that she desired a morning shift. As discussed below, she lodged an incident form for a further injury/aggravation on 14 August 2012.
The medical records indicate that in the period May 2012 to 14 August 2012, when Ms Munswamy claimed she again aggravated her back, she did not attend doctors, and did not have time off work except on 27 July. She told us that she continued with her pre-injury duties and was able to do the work. She had told her then general practitioner, Dr Singh in May 2012, that she wanted to return to work to her normal duties. The Applicant said that she could do the work between May and August 2012 notwithstanding suffering pain.
We were satisfied from the medical evidence that the aggravation of 28 October 2011 was just that, an aggravation of degenerative changes in Ms Munswamy’s spine, and that the effects would have resolved by 11 November 2011 as held by the Respondent.
We were not satisfied that Ms Munswamy was entirely candid in reporting her levels of pain and its duration. Her evidence was sometimes quite vague. We do however wish to put on record that Ms Munswamy often reported to doctors and others that she wanted to work day shift because her pain became progressively worse as the day wore on, and that she was better in the morning. This was noted by Drs Abraszko, Davies and others, as well as her manager, Mr Ibrahim. We noted that Ms Munswamy was given morning shifts when she did light duties, but did not achieve that transfer to morning shift on full duties until after the events of 26 October 2012, which are discussed below.
On the basis of the evidence, including the medical evidence, we affirm the decision of Australia Post the decision to cease compensation payments on 11 November 2011.
MATTER 2012/5629 – WHETHER AUSTRALIA POST IS LIABLE FOR THE EFFECTS OF THE 2012 AGGRAVATION
Australia Post did not accept liability for aggravation of constitutional degenerative changes in the lumbar spine pursuant to section 14 of the Act for the incident Ms Munswamy says occurred on 14 August 2012. Ms Munswamy’s compensation claim form in which she claimed for aggravation of lower back dated 16 August 2012 was Exhibit A1. The accompanying report of the ‘Incident Investigation’ noted that Ms Munswamy reported the injury occurring as a result of repetitive heavy lifting at approximately 19:35. The Tribunal must decide whether the Respondent is liable.
We noted that Ms Munswamy did not specify which parcel, or what caused the aggravation of her lower back. We noted however, that she ticked the box on the claim form stating that the injury resulted from one specific incident (at a time not specified).
Ms Munswamy’s claim was refused on the basis of Professor McGill’s report which stated that the diagnosis remained constitutional degenerative change in the lumbar spine including disc degeneration and facet joint osteoarthritis. He had also indicated that the state of Ms Munswamy’s back would be the same if she had not been performing her current duties. He opined further that the duties might at times increase the level of discomfort, but that having heightened symptoms did not mean that Ms Munswamy had suffered a work related injury or aggravation.
We noted also that Ms Munswamy stated in regard to the lower back aggravation which she reported in the ‘Incident Form’ (Exhibit R2, T7) that what happened was: frequently bending and lifting heavy parcels and heavy bags filled with parcels from the floor and loading it in my van my back got aggravated. Prior to my normal duties there was not back symptom. (Tribunal’s emphasis.) (Exhibit A1).
We noted Mr Anforth’s argument that the highlighted sentence above: Prior to my normal duties there was not back symptom referred to 2008. We did not accept that interpretation of the words which to us indicated she meant prior to duties on 14 August 2012.
In the incident form which was handwritten and formed part of Exhibit A1, Ms Munswamy answered 30/01/08 in reply to the question: What is the start date of this previous injury/illness, whereas at Exhibit R2 (p.13), in the typewritten version, (not prepared by her), the start date is shown as 30.01.2012.
In considering the claim we noted that the records indicate that in the period May 2012 to 14 August 2012, when Ms Munswamy claimed she again aggravated her back, she did not attend doctors, (except on 30 July 2012), and did not have time off work except on 27 July.
When it was indicated to the Applicant that Drs Kafiris and Singh had recorded that she had no problems between January and July 2012, Ms Munswamy said that she still suffered pain, but was coping regarding her back during that period, trying (to cope). She told us that she continued with her pre-injury duties, and was able to do the work. She had told her general practitioner, Dr Singh in May 2012, that she wanted to return to work to her normal duties. The Applicant said that she could do the work between May and August 2012, notwithstanding suffering pain
When asked whether her pain had resolved before she returned to work in April 2012 as recorded by Professor McGill in his report of 27 August 2012, Ms Munswamy said that was incorrect, but said that she could not recall what she had told Professor McGill. We noted she consulted Dr Abraszko in April 2012.
Dr Abraszko, neurosurgeon and spinal surgeon, provided reports dated 17 April 2012 and 14 November 2012 which were part of Exhibit A8. She saw the Applicant on four occasions. She recommended permanent restrictions on weight lifting and generally permanently modified duties. Dr Abraszko also opined, in her report of 14 November 2012, that:
[Ms Munswamy’s] main problem is L4/5 and L5/S1 disc bulge which are not degenerative changes as she is too young for degenerative changes. In my opinion she has a work related condition which is a disc injury at L4/L5 and L5/S levels.
…
I recommended her to see Dr Manohar and I gave her a letter that she is not fit to work afternoon shifts as her pain usually starts in the mornings.
Dr Abraszko’s report of 14 July 2013 was Exhibit A7. Her opinion was that Ms Munswamy provided consistent history with radiological examination and neurological findings. She recommended Dr Manohar, a pain specialist, and considered surgery may be necessary.
The MRI scans to which Professor McGill referred in his report of 27 August 2012 provide the basis for his diagnosis of Ms Munswamy’s condition as multilevel degenerative changes of her lumbar spine, including disc degeneration and facet joint osteoarthritis. He considered the physical state of her back was the same as would have been the case had she not performed work for Australia Post. He considered that she had a work related increase in symptoms due to the underlying degenerative changes with no change in the structure of her back.
Professor McGill, in his 11 May 2013 report, opined that symptoms related to degenerative change in the lumbar spine such as the Applicant has, typically fluctuate. He recorded that when he last saw the Applicant on 27 August 2012, she was experiencing pain in the low back in the midline, bi-frontal headache and tingling or burning of both feet. He stated that he did not consider that those symptoms were related to her employment with Australia Post, including consideration of the events on 30 January 2008, 27 or 28 October 2011 and 14 August 2012.
Ms Munswamy told us that she had time off from the incident of 14 August 2012. We understood she did not return to full light duties until almost the second half of 2013. She was unable to attribute the injury/aggravation to the lifting or moving of a particular parcel, and said that there were typically a lot of bags and parcels.
We are mindful of the Applicant’s evidence and that of Mr Ibrahim, the hub manager who gave evidence before the Tribunal, that Ms Munswamy had wanted for sometime, to work a day shift. She expressed her wish to Drs Abraszko, Davies and others on the basis that her pain became more severe as the day progressed, and that she functioned best in the morning.
A further issue which was raised at the Tribunal in conjunction with the August 2012 claim was that Ms Munswamy had requested time off over the Christmas period. There was evidence that she was upset that the application for leave had not been processed correctly, and that her request had therefore been refused.
Mr Gollan, counsel for the Australia Post, submitted that Ms Munswamy taking leave after the alleged incident, after August 2012 achieved her purpose in being transferred to the day shift, and having the Christmas period off.
She said that since her full return in mid-2013, she has been working full-time on restricted duties, which indicate she should avoid bending, and not lift weights greater than eight kilograms. However, she said that her job always involved bending, lifting and twisting.
We are satisfied from the evidence that as Professor McGill and Drs Maxwell opined, symptoms related to degenerative changes in the lumbar spine such as the Applicant has, typically fluctuate. That means she will have periods where she is pain free, as indicated from the records before us. We have relied on the evidence of the abovementioned doctors in that regard, and prefer their evidence, and evidence from the records of Dr Kafiris and his practice over that of Ms Munswamy who insisted at the hearing that she had pain on a continuous basis.
In coming to a decision regarding the claim for an aggravation on 14 August 2012, we noted that Ms Munswamy was unable to attribute the injury/aggravation to the lifting or moving of a particular parcel, and said that there were typically a lot of bags and parcels. What she wrote in her claim form, which was, frequently bending and lifting heavy parcels and heavy bags filled with parcels from the floor and loading it in my van my back got aggravated, indicated to us that it was more by way of a nature and conditions claim, which is not before us. Accordingly her claim for compensation for an injury or aggravation which occurred on 14 August 2012 cannot succeed.
We are also mindful of the Applicant’s evidence, and that of Mr Ibrahim, the hub manager who gave evidence before the Tribunal, that Ms Munswamy had wanted to work a day shift for some time, and that she was dissatisfied that her leave over the Christmas period had not been approved. We accept they were additional reasons for taking time off following Ms Munswamy’s report of injury/aggravation of her back on 14 August 2012. We affirm the decision regarding the 2012 injury.
MATTER 2013/2153 – WHETHER AUSTRALIA POST IS LIABLE TO PAY COMPENSASTION FOR ANXIETY NEUROSIS AS A RESULT OF WORKPLACE BULLYING AND HARASSMENT IN 2012 AS ALLEGED BY MS MUNSWAMY
Ms Munswamy made a claim for compensation with regard to workplace bullying and harassment on 26 October 2012. The Applicant said that her colleague, Zac, told her she was a f… princess in front of the supervisor. She said that he used the f… word and told the supervisor that she wasn’t doing anything (any work) there. She said that her reaction was anger, and that she was crying all the time.
Dr Singh provided a medical certificate dated 3 December 2012 with the diagnosis of anxiety neurosis. The period of sick leave was extended, and Ms Munswamy returned to work on 16 December 2012, only to go off again on 27 December 2012. Her request to take holidays over the Christmas period had not been granted. However, the Respondent’s submission was that she had achieved it through obtaining a medical certificate.
When cross-examined, the Applicant said that in her 14 years at Australia Post, she had heard a lot of swearing by her co-workers, and that she was usually able to ignore it, but on the particular occasions 20 February 2012, 18 September 2012 and 26 October 2012 to which she referred, and to which she attributes her illness, Zac just went on and on, in particular on 26 October 2012. She said that she decided on that occasion that it was just too much for her, and she reacted by being angry and crying.
Ms Munswamy said, in relation to the February incident, that Zac had been swearing about the labels on the ULD, but that she had not done that job on that day. She agreed when asked that Zac had been swearing at two other co-workers, and that she had intervened, so that he had sworn at her too.
Mr Ibrahim, manager of the hub where Ms Munswamy worked, investigated her claims regarding swearing, in particular in regard to the events of 26 October 2012 involving Zac, and concluded the language was inappropriate, and a breach of Australia Post policy. He gave evidence at the Tribunal, and said that he had organised a formal meeting for Zac to apologise to Ms Munswamy, but could not recall if he had attended. He said that Ms Munswamy informed him Zac had apologised, but that she had not accepted the apology. Mr Ibrahim told us that there had been a period of two to three years during which the Applicant and Zac did not get on.
Ms Munswamy said that a month after the incident on 26 October 2012, Zac apologised rudely to her in front of all the co-workers. She said she would not accept the apology. She said that she had two months off work, and paid for a psychologist herself. She finally returned to work full-time on 29 January 2013 and was transferred to a different section with restricted duties, but was not happy, and her back was worse.
Mr Ibrahim said that when Ms Munswamy returned from sick leave on 29 January 2013 she was moved to the morning shift. He was aware she had not been granted leave over Christmas as applied for.
We noted in that regard that the Applicant’s leave application made in August 2012, for Christmas 2012 had not been approved. She was however away over that period by way of a medical certificate.
Ms Munswamy told us that she had asked to be moved away from working with Zac, but that that meant moving her to another shift. We noted that she achieved her aim to be moved to a morning shift, as she said her main reason was that her pain was worse as the day progressed.
In connection with the claim for psychiatric injury, we had evidence from Dr R Way, a psychiatrist, whose report dated 3 October 2013 was Exhibit A2 before the Tribunal. He gave oral evidence by telephone.
He told us that when he saw Ms Munswamy in September 2013, he diagnosed major depression. Dr Way said that he took into account the 2008 injury, her unresolved anger and frustration, anxiety/depression. In his report Dr Way stated that:
Mrs Munswamy presented with symptoms of depression and anxiety, and recurrent anxiety attacks, associated with a preoccupation with obsessive thoughts concerning a number of episodes of harassment and bullying at her workplace.
She was traumatised by offensive, abusive and racist remarks that went unpunished by her employer, who failed to support her when she sustained a back injury at work.
Dr Way also stated in his report that Ms Munswamy was angry about her employer’s failure to acknowledge or validate her injury, which was labelled back strain whereas a surgical specialist, (Dr Griffith), found that she suffered from a quite specific acute disc lesion at L4/5 and L5/S1 level at the time of the index episode at her workplace.
Dr Way stated in his report that: her diagnoses in accordance with DSM-IV include major depression in addition to chronic adjustment disorder with depressed mood and anxiety; and chronic pain disorder.
We also heard from Dr J Champion, another psychiatrist, whose report dated 4 November 2013 was Exhibit R4, and who gave oral evidence. Dr Champion concluded after an examination of Ms Munswamy that she was not suffering a psychiatric illness, but rather that she was angry at the workplace, and that the matter was an industrial issue. He noted that when he saw her, she had had a transfer in regard to her work, and was happier. He also noted that she reported ongoing chronic pain from her 2008 injury, and when asked if such pain could be a co-morbid factor in depression, replied that it could be.
In his report Dr Champion stated:
The use of inappropriate language is likely to have been distressing but is unlikely in itself to have produced any significant or lasting psychiatric disorder. The history provided by Ms. Munswamy seemed to indicate that she had taken leave at that time in order to protest about the manner in which she had been addressed rather than because of any significant psychological/psychiatric disorder. This would be consistent with expectation given the nature of the stressor and given the fact that the general practitioner had not prescribed any specific treatment. Ms. Munswamy told me that her feelings had been hurt.
He also stated:
The second period of leave from 27th December 2012 appears to be more related to the failure of a leave application. Ms. Munswamy considered that this was due to faulty administration of her claims by her employers and perceived it, no doubt, as further harassment.
Dr Champion also commented on Dr Singh’s diagnosis of anxiety and neurosis. He stated:
It does not seem to me from the history provided by Ms. Munswamy, or from the nature of the stressor, that a psychiatric disorder such as anxiety neurosis had developed or indeed would be expected to develop on the basis of the claimed stressor.
Dr Champion who examined Ms Munswamy at approximately the same time as Dr Way, commented on Dr Way’s diagnosis of major depression in addition to chronic adjustment disorder with depressed mood and anxiety; and chronic pain disorder. Dr Champion opined that the report of Dr Way is likely to represent an exaggeration of symptomatology on the basis of the context of Ms. Munswamy’s claims ie compensation matters. He said that he based that view on the fact the general practitioner provided only a brief period off work on each occasion and that Ms. Munswamy was able to return to work when [the] industrial matters were resolved. He noted that neither the general practitioner nor Dr Way provided treatment, or referral on to other medical practitioners.
We are satisfied from the evidence that whilst swearing is unacceptable behaviour in a workplace, and that Ms Munswamy was subjected to it at Australia Post, her reaction did not cause a condition which was outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi (1996) 69 FCR 439). We are satisfied that Ms Munswamy was depressed back in 2008, and treated by Dr Kafiris and Ms Adam. We prefer the evidence of Dr Champion and accept that the issues in this matter concern a normal reaction to industrial issues rather than a psychiatric condition. The decision of Australia Post in that regard is affirmed.
THE TRIBUNAL’S CONCLUSIONS
As noted above, Mr Anforth bases his case on the fact Ms Munswamy was injured on 30 January 2008, and liability pursuant to section 14 of the Act was accepted by Australia Post. He submits that she suffered structural damage to her back on 30 January 2008, and has some support from the medical evidence before us for that submission. He submits in the alternative, that, in any case, the evidence indicates Ms Munswamy’s back was rendered symptomatic by that event, and had previously been asymptomatic. He also submits that the evidence indicates that Ms Munswamy has had continual and continued back pain ever since, and that the subsequent aggravation in October 2011 arose out of that 2008 injury, and is causally connected. The evidence and our conclusions are discussed above.
As discussed above, we consider that there are issues of credit involving Ms Munswamy in this matter.
We have found that the 2011 injury was an aggravation of degenerative changes in Ms Munswamy’s spine, and affirmed the decision of the Respondent that from 11 November 2011, she had no present entitlement to compensation for that injury.
We have found for the reasons stated above, that the 2012 incident may relate to a nature and conditions claim which is not before us. For the reasons discussed above, we have affirmed the decision that there is no liability to pay compensation for the injury alleged to have arisen that incident.
We are satisfied that Ms Munswamy does not suffer from a psychiatric injury, and accordingly that Ms Munswamy has not suffered a compensable injury as a result of the bullying she claims took place in October 2012.
DECISION
The decisions under review are affirmed.
There is no power to make an order for costs.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr W Isles, Member ..................[sgd]......................................................
Associate
Dated 20 October 2014
Dates of hearing 28-30 April, 14-15 August 2014 Counsel for the Applicant Mr A Anforth Solicitors for the Applicant Capital Lawyers Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Sparke Helmore
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