Rezk and Australian Postal Corporation
[2005] AATA 67
•18 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 67
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N2002/1720; N2003/164; N2003/257; N2004/350
Re: Gihan Rezk
Applicant
And:Australian Postal Corporation
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
Date: 18 January 2005
Place: Sydney
Decision: The tribunal:
- sets aside the reconsideration made on 12 September 2002 affirming a determination to cease liability from 9 August 2002 in respect of “soft tissue injury cervical spine” (N2002/1720)
- sets aside a reconsideration made on 24 July 2002 affirming a determination denying liability for certain periods of incapacity for the periods 29 April 2002 to 1 May 2002 and 7 to 8 May 2002 and remits the matter to the respondent to determine the correct amounts of compensation payable (N2003/164);
- affirms a reconsideration made on 6 February 2003 affirming three determinations denying liability for certain periods of incapacity between 15 May and 17 September 2002 (N2003/257);
- affirms a reconsideration made on 9 March 2004 affirming a determination that Australia Post was not liable to compensate Ms Rezk for permanent impairment of her “neck, shoulder and upper limbs”. (N2004/350)
The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the tribunal.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member
© Commonwealth of Australia (2005)
Administrative
Appeals
TribunalADMINISTRATIVE APPEALS TRIBUNAL ) N2002/1720
)
GENERAL ADMINISTRATIVE DIVISION )
Re: GIHAN REZK
Applicant
And: AUSTRALIAN POSTAL CORPORATION
Respondent
ORDER TO AMEND WRITTEN DECISION [2005] AATA 67
TribunalJustice Downes, President
Date10 February 2005
PlaceSydney
WHEREAS:
1. The Tribunal released a written decision in this matter, which was dated 18 January 2005.
2. It has come to the Tribunal’s attention that there was an error in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
THE TRIBUNAL THEREFORE ORDERS that the first paragraph of the decision read as follows:
- sets aside the reconsideration made on 12 September 2002 affirming a determination to cease liability from 9 August 2002 in respect of “soft tissue injury cervical spine”. In substitution thereof, the Tribunal’s decision is that the respondent continues to pay compensation to Ms Rezk in accordance with s. 14 of the Act in respect of soft tissue injury to cervical and lumbar spine, disc budge C3/C4 suffered on 27 March 2002.
...………………………
[sgd] Garry Downes
President
CATCHWORDS
COMPENSATION – soft tissue injury to neck and lower back in work related motor vehicle accident – liability accepted for injury - purported decision to cease liability - decision set aside - whether applicant’s injury results in closed periods of incapacity for work – applicant entitled to compensation for some periods of incapacity - claim for permanent impairment in respect of neck and shoulder rejected – permanent impairment decision affirmed
Administrative Appeals Tribunal Act 1975 ss.25, 37
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 19, 24, 27, 60, 62, 64
Rosillo v Telstra Corporation Limited (2003) 77 ALD 396
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Re Liu and Comcare (2004) 79 ALD 119
REASONS FOR DECISION
P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
1. This is an application for review of four reconsideration decisions made by Australia Post relating to Gihan Rezk (the applicant):
· N2002/1720: a reconsideration made on 12 September 2002 affirming a determination to cease liability from 9 August 2002 in respect of “soft tissue injury cervical spine”;
· N2003/164: a reconsideration made on 24 July 2002 affirming a determination denying liability for certain periods of incapacity between 29 April and 8 May 2002;
· N2003/257: a reconsideration made on 6 February 2003 affirming three determinations denying liability for certain periods of incapacity between 15 May and 17 September 2002;
· N2004/350: a reconsideration made on 9 March 2004 affirming a determination that Australia Post was not liable to compensate Ms Rezk for permanent impairment of her “neck, shoulder and upper limbs”.
2. At the hearing Mr Richards of counsel appeared for Ms Rezk and Mr Elliott of counsel appeared for Australia Post. The tribunal heard evidence from Ms Rezk and Dr O’Neill, consultant neurologist. The tribunal also heard evidence concurrently from Professor Sambrook, Professor of Rheumatology, and Dr McGill, Consultant Rheumatologist. Documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) were before the tribunal and the exhibits tendered at the hearing.
background
3. Ms Rezk (the applicant) was born on 4 May 1961 in Egypt. She graduated from university in that country with a degree in Agricultural Science. She subsequently worked as Assistant to the Director of Public Relations in the Mayor’s office in Alexandria. She married and has a daughter who is now 17 years old. In 1992 she was divorced. In 1994 she migrated to Australia and soon after remarried and had a son who is now nine years old. Her second marriage ended in 1996 and she now lives with her first husband.
4. Ms Rezk speaks several languages but English is her third language and is not her best language for communication. She has applied for, but not obtained, administrative work in Australia. She worked as a cleaner and a security officer for P&O Shipping from 1995 to 1998. Ms Rezk stopped working for P&O after she was assaulted on her way home from work. She suffered physical and emotional injuries from the assault. She commenced her employment with the respondent in mid 2000 as a parcel contractor and then in May 2001 as a part time mail officer.
5. On 27 March 2002 Ms Rezk was involved in a motor vehicle accident on her way to work with the respondent. She lodged a claim for rehabilitation and compensation on 8 April 2002 where she described her injuries as “soft tissue injury, neck and the lower back bulged disc C3C4” (T5). By determination dated 12 April 2002 the respondent determined that Ms Rezk was entitled to compensation for “soft tissue injury-neck and lower back bulged disc c3 and c4 [sic]” suffered on 27 March 2002 (T9).
6. On 22 April 2002 the respondent determined that Ms Rezk should commence a rehabilitation program on 30 April 2002. On 15 July 2002 the respondent determined that Ms Rezk should commence a rehabilitation program, which was affirmed on 17 September 2002. The respondent made a number of determinations that Ms Rezk was not entitled to compensation for absences in certain periods in the months following the accident. Ms Rezk requested reconsideration of the determinations denying compensation for absences but the determinations were affirmed.
7. On 9 August 2002 the respondent notified Ms Rezk that liability had ceased from that date in respect of “soft tissue injury- neck and lower back”. That determination was affirmed on 12 September 2002.
8. On 13 January 2004 Ms Rezk made a compensation claim for permanent impairment of her neck, shoulders and upper limbs. On 5 February 2004 the respondent determined that Ms Rezk was not entitled to the payment of compensation under s24 and s27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). That determination was affirmed on 9 March 2004.
issues
9.The issues for determination are whether:
· The respondent is entitled to cease liability for Ms Rezk’s injury on 27 March 2002 on and from 9 August 2002;
· Ms Rezk was incapacitated for work in certain periods between 29 April 2002 and 17 September 2002.
· Ms Rezk suffers from a permanent impairment of her neck, shoulders and upper limbs entitling her to compensation pursuant to s. 24 and 27 of the Act.
N 2003/1440 relating to a claim for plantar fasciitis was resolved between the parties and the tribunal did not consider this matter.
applicable legislation
10. The following definitions of injury in s. 4 of the Act are relevant:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; ...
11. The Act makes provision for liability as follows:
Section 14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
...
Section 24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
...
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
...
evidence
12. Ms Rezk’s evidence was that around the end of 1999 and early 2000, she commenced employment with Australia Post, initially as a parcel contractor for 4-6 months and subsequently as a part-time Mail Officer working 5 hours each day for 5 days a week. She injured her forearm at work in May 2001 but recovered quickly by performing pre-work exercises.
13. At around 9.30 PM on 27 March 2002 Ms Rezk had a single vehicle accident on the M5 Motorway, on her way to work. Ms Rezk claimed it was a high speed (110 km/h) accident that occurred as she went to pass another vehicle and then swerved to miss an animal on the road. She lost control of the vehicle. It appears the vehicle spun several times and eventually collided with a guardrail and came to a stop in the median strip. Ms Rezk was wearing a seatbelt at the time of the accident but was thrown around in the vehicle and sustained multiple soft tissue injuries and bruising. The car, a 1993 Toyota Camry, was nearly written off and there is sufficient evidence to establish that she did suffer soft tissue injuries. Ms Rezk was able to get out of the vehicle with assistance but refused an offer of calling an ambulance and instead had a friend collect her and take her home. She rapidly developed multiple aches and pains, getting little sleep that night and presented to her general practitioner the next morning. After several days, the focus of her pain was in her neck and right shoulder.
14. The records of her general practitioner, Dr G Tosson, whom she initially consulted the day following the accident, show that Ms Rezk was encouraged by him to return to work as soon as possible, but she considered she could not respond to this expectation because of complaints of recurrent pain in her neck and right shoulder.
15. Dr Tosson’s medical certificates (T6) for the various periods she was off work following the accident record the original diagnosis of soft tissue strain injury of cervical spine and lumbar spine disc bulge C3/C4 on 28 March 2002 and that she was unfit for work until 5 April 2002. A medical certificate dated 5 April 2002 stated that Ms Rezk was fit from that date for suitable duties with restrictions to “avoid working with arms above shoulders avoid lifting heavy loads.” Subsequent certificates were given for various periods of unfitness or fitness for light duties with restrictions that varied from time to time to include:
·from 15 April 2002 “no lifting carrying pushing and pulling with no lifting or carrying greater than 5 kg, no work with arms above shoulders for 5-10 minutes per hour”,
·from 9 May 2002 “no sorting carrying lifting pushing or pulling for one month then review”
·from 30 May 2002 “please note that the patient is not able to drive more than 15 minute and previous restriction”
·on 21 June 2002 “I don’t think that she’s fit for driving more than 30 mins” which is repeated on subsequent certificates
·17 July 2002 “unfit to attend work from 17 July 2002 to 17 September 2002 and is not fit to drive from c/town to St Leonards”
16. The stated medical condition in the medical certificates also varied as follows
·2 ,5,8,9,16 April 2002 - cervical spine disc lesions
·29 April 2002 - cervical spine disc lesion/ right shoulder pain
·8 May 2002 - cervical spine disc lesion affecting both shoulders and arms,
·14 May 2002 - severe cervical spine pain and stiffness
·16 May 2002 - severe neck pain and stiffness
·24 May 2002 - reactive depression and severe cervical neurological pain
·28 May 2002 - cervical spine disc lesion and reactive depression
·13,14,19 June 2002, 3 July 2002 - depression or reactive depression are listed with cervical disc issues
·9, 10 July 2002,- cervical spine disc lesion, secondary migraine and reactive depression
17. Ms Rezk agreed to a return to work plan on 9 April 2002 for the period to 30 April 2002 which included duties of small letter sorting for her previous hours, but with restrictions of no lifting or carrying, no pushing, pulling, no working with arms above shoulder height.
18. Ms Rezk gave evidence that before the accident, she had worked on a machine to sort the mail but when she returned to work after the accident on 5 April 2002 she was given labelling duties because of her pain. She visited first aid every night she worked because she felt pain. The pain was in her neck, hands, numbing in right hand, and shoulder pain up to her back. She worked the 10pm to 3am shift but sometimes she would go home early. On some days, she could not work because she thought that she could not drive to work safely.
19. Following a Rehabilitation Assessment on 9 April 2002, Ms Rezk was issued a Rehabilitation Program (T10) on 15 April 2002 to work normal hours performing selected duties outlined for the period 22 April 2002 to 3 June 2002 by which time she would be performing full duties. On 19 April 2002 Dr Tosson assessed Ms Rezk was fit to participate in the program. She failed to attend work on a regular basis during the period covered by the program. On 7 May 2002 suffered right shoulder and upper arm pain while “clearing stackers on the BCS” (T13). Her evidence was that she had only worked on the machine for a matter of hours, when she felt the pain in her shoulders and arm.
20. After 7 May 2002 Ms Rezk was performing clerical work of re-wrap and labelling duties, which she acknowledged in cross examination to be extremely light work, until she ceased work in July 2002. She did not agree that the work, which she could perform at her own pace, was well within her capacity as the necessity to tear labels caused her pain in her arm and hands. It was on 14 May 2002 that the 70 minutes drive to work was affecting her, giving her very severe pain, headache and pain in her hands, and then she was unable to tear labels.
21. The first medical certificate to raise the restriction regarding driving was dated 28 May 2002 for the period from 30 May 2002.
22. In a letter dated 3 June 2002 Ms Rezk referred to the BCS incident but claimed that she had previously experienced pain in her shoulder and right arm from sorting duties on the VSD. She claimed that she had pain in her shoulder and arm from her drive to and from work and found that sorting duties per the rehabilitation program further exacerbated the pain. (T16) These symptoms caused her work attendance to be intermittent up to July 2002.
23. On 10 July 2002, Dr Tosson provided a medical certificate that she was suffering from cervical spine disc lesion/secondary migraine/reactive depression and fit for suitable duties from 17 July 2002 to 7 August 2002 subject to restrictions of travelling up to 30 minutes.
24. On 15 July 2002 the respondent determined under s. 37(1) of the Act that Ms Rezk should commence a rehabilitation program commencing on 15 July 2002 (T26). This program was for restricted duties for the period 15 July 2002 until 26 August 2002 when she was to resume full duties. The program contained the same duties as the earlier program. (T10)
25. Ms Rezk said in evidence that just prior to 17 July 2002 she had been taking breaks every 20 minutes to stretch while driving to work, yet she found she could not control the steering as her hand was very sore. On 16 July 2002 she had been vomiting with a headache at work and on the drive home, she felt bad pain in her hands. She was continuing to vomit when she saw Dr Rail, consultant neurologist, the next day. On 17 July 2002 Dr Tosson provided a medical certificate that Ms Rezk was suffering from cervical spine disc lesion and cannot attend work from 17 July 2002 until 17 September 2002 and was not fit to drive from Campbelltown to St Leonards. The applicant stayed home and stopped work on 17 July 2002 until 6 November 2002.
26. On 17 September 2002 the respondent wrote to Ms Rezk’s representative confirming that Ms Rezk had been given an extension of time to 31 August 2002 to provide further medical evidence, but they had declined to do so. The respondent gave notice that Ms Rezk was required to immediately commence duties in accordance with the s.37 Determination issued on 15 July 2002.
27. In response to Ms Rezk’s request to work closer to home, the respondent agreed to change the location of her work taking effect from 6 November 2002. She was to work a 5 hour shift.
28. Ms Rezk has continued in this work since that time. She works a 9 PM to 2 AM shift, 5 days per week and is coping with this employment. This employment is in a similar pattern to her work before the motor vehicle accident on 27 March 2002. Therefore it is accurate to say Ms Rezk had returned to full time employment before Christmas 2002 and has, since then, been attending regularly.
29. During her evidence, Ms Rezk showed an extensive range of upper body movement as she demonstrated her work duties. While these actions were not sustained for long periods, as would have been required by her work, they were carried out rapidly and without any signs of pain, discomfort or restriction.
30. Ms Rezk claimed she currently suffers pain in her neck, very bad pain in her shoulder, pain in her arm and hand and numbing in her fingers and that these restrict her ability to do housework. The work she does every day aggravates her pain and becomes worse the more she works. She acknowledged that her condition started improving in about Christmas 2002 when she started to drive her car and do other things and that she has improved further since then.
31. Video evidence taken in February 2003 (exhibit R6) showed Ms Rezk engaging in a normal range of movement. Most of the movement was mid-range in nature, with little at the extreme range. However, immediately before the video was shown to the tribunal she answered questions indicating that she could not do many of the activities she was seen to be quite capable of performing on the video.
32. Ms Rezk appeared before the tribunal demonstrating no signs of distress. She behaved in a normal, appropriate manner at all times. She spoke and understood quite well but tended to over-state matters in her response to questions. It appeared that this was a manifestation of English being her third language. This brought about a perception that she was embellishing her responses.
33. Counsel for the respondent made submissions as to the reliability of Ms Rezk as a witness, being an inconsistent presenter and embellisher of her evidence. In that regard, the tribunal prefers Dr Chase’s opinion that Ms Rezk appeared to be convinced that she has a significant problem in her neck and it is difficult if not impossible to shift such ideation. The tribunal considers that there is an inconsistency between what Ms Rezk genuinely believes she can do and what she actually does and this is borne out in Drs Chase, McGroder, McGill and O’Neill’s views or reporting of their findings during their examination of Ms Rezk. It is on this basis that we have found it difficult to prefer Ms Rezk’s evidence when faced with more objective conflicting evidence.
Dr D Rail – Consultant Neurologist
34. Dr Rail was asked to see Ms Rezk by Dr Tosson when Ms Rezk’s symptoms failed to improve. In his report dated 5 June 2002 (T17) Dr Rail outlined the history of the motor vehicle accident and subsequent symptoms of neck pain referred to the shoulder and down her arms with tingling intermittently in the hands. On examination, he found restricted neck movements without any neurological signs. He prescribed Epilim and suggested an increase in the physiotherapy, which she had been receiving for neck and shoulders.
35. At a review of Ms Rezk on 19 June 2002 Dr Rail noted an improvement in pain but a tingling in her arms and considered her neck pain had not gone. The doctor opined that Ms Rezk’s mail sorting was probably exacerbating her pain. On 17 July 2002 Dr Rail reported (T27) that he found Ms Rezk tremulous and quite upset that day and that she had found going back to work had exacerbated her neck pain, which was spreading into the arms with associated tingling in the hands again. He recommended Epilim and physiotherapy.
Dr G McGroder – Consultant Occupation Health Physician
36. Dr McGroder assessed Ms Rezk on behalf of the respondent. In his report dated 1 July 2002 (T22) he noted that whilst Ms Rezk complained of constant neck pain radiating into both shoulders, she initially gave the impression of someone who was in no discomfort at all. He acknowledged the symptoms could best be explained by musculo-ligamentous strain and perhaps some facet joint irritation, but he obliquely indicated the presence of a “whiplash“ type syndrome. He considered she presented with subjective upper limb tenderness and a distribution of pain that was not anatomical. He felt that some musculoligamentous strain involving the neck area and perhaps some facet irritation may be responsible. He acknowledged her treatment for depression, and considered some underlying depression was contributing to her ongoing symptomatology. Ms Rezk’s range of motion was variable from initially full and free movement of her neck and arms, to a 30% reduction in her ability to move her right shoulder on formal examination and further significant reduction of internal or external rotation. Dr McGroder made no formal assessment of range of motion, according to the Comcare tables.
37. As at 1 July 2002, Dr McGroder’s recorded Ms Rezk was currently working normal hours and in his opinion she was fit to continue these and the only restriction, based on her subjective symptoms, was that he considered it appropriate for her to avoid sustained arm elevation and sustained neck flexion.
38. In a supplementary report on 10 July 2002 (T25), Dr McGroder stressed his recommendations were based on Ms Rezk’s subjective symptoms and not on any objective signs. If based on objective signs, he was sure she could do more than she claimed. He suggested the addition of motivations to her proposed rehabilitation program and also suggested she break up her long drive with rest as well as posture and stretching sessions. The doctor indicated the timetable for the rehabilitation program would probably need to be extended because of Ms Rezk’s depression.
Dr R Chase – Occupational Physician
39. On 22 August 2002 Dr Chase provided a report at the request of the respondent (T38). Dr Chase saw Ms Rezk when she was “an unhappy woman who wept throughout most of the consultation”. He recognised the possibility of diagnosing a mild whiplash associated disorder Class 1, because of her symptoms of increasingly severe neck pain with it radiating to her arms. He recorded that Ms Rezk appeared to be convinced that she has a significant problem in her neck and predicted this ideation would be hard to shift. Dr Chase also considered that she exhibited increasing pain behaviours which were affecting both her work and home life and that her family was reinforcing these behaviours. Dr Chase notes “her overwhelming presentation was of pain behaviours”. He found no physical reasons why Ms Rezk could not drive in an unrestricted manner. “Most of the problems that she has imposed upon herself are related to the pre-existing psychiatric state dating back to the alleged assault in 1998”. He also noted that most of Ms Rezk’s “symptoms appear to be related to anxiety. She was clearly predisposed to developing an anxiety condition as a result of the alleged assault in 1998 … Most of Ms Rezk’s psychiatric condition appears to relate to that original assault”. He could not see any physical reasons why Ms Rezk could not perform the selected duties program as outlined in the report dated 15 April 2002 (T10) and no physical reasons why she could not upgrade to full duties in the next four to eight weeks.
40. Dr Chase recorded a decreased but highly variable range of motion of her neck:
· Her range of motion in the cervical spine was reduced by 50%;
· Her range of motion in the right shoulder was reduced by 50%; and
· Her left shoulder was hesitant but normal with 100% range of motion.
41. Ms Rezk also had global tenderness in her neck and right arm but no evidence of radicular pain or radiculopathy, which Dr Chase considered could possibly be referred pain from the neck. This history and examination was thorough and detailed and is considered by the tribunal to be a significant and accurate assessment of Ms Rezk.
Dr A Ganora - Specialist in Rehabilitation Medicine
42. On 12 June 2003 Dr Ganora examined Ms Rezk and provided a medical report at the request of Ms Rezk’s solicitors (Exhibit A1). Dr Ganora obtained a history of Ms Rezk having no neck problems before the motor vehicle accident, but having continuing neck pain radiating to both shoulders after the accident. Maintaining the arm in an elevated position aggravated this pain. Initially she had numbness in both hands but at the time of the examination, it was only present in the middle finger of the left hand. Ms Rezk also told the doctor that she had difficulty sorting mail for more than one hour. His examination showed neck rotation to the left was decreased by 40%. Lateral flexion was reduced by 75% and produced pain in the posterior cervical area extending into the suprascapular area. Ms Rezk’s right shoulder was found to be restricted and weak with pain on testing resisted abduction at 90 degrees. Internal rotation of the right shoulder had decreased by 50% and external rotation had decreased by 25%.
43. Dr. Ganora diagnosed Ms Rezk as having “cervical intervertebral joint sprain affecting the cervicothoracic region and possibly the right shoulder”, as a result of the motor vehicle accident. He also stated that Ms Rezk’s work, which requires elevated and repetitive use of her right hand, is aggravating her condition and that she was not fit for full duties. Using the Comcare Tables, he assessed her impairment as 5% for the cervical spine and 10% for restriction of movement of the right shoulder. He then derived a 15% total body impairment rating.
44. The tribunal is of the opinion that the use of resisted abduction as a range of movement measure is questionable as it represents heavy lifting of a most uncommon circumstance. The report of Dr Ganora is short and appears to indicate little consideration of the significant psychological overlay present in this case. In addition, the workplace assessment is not based on detailed evidence of Ms Rezk’s duties as described in other doctors’ reports such as that of Professor Sambrook. Therefore Dr Ganora’s assessment is considered with some uncertainty and regarded as not in accord with the overall body of evidence.
Dr N McGill - Consultant Rheumatologist
45. On 5 May 2003 Dr McGill examined Ms Rezk and provided a medical report at the request of the respondent’s solicitors (exhibit R2). Dr McGill reported that Ms Rezk generally “moved normally and looked well”. She gave him a history that at that time she was “okay” provided she did not work too hard as this caused her to have pain and she then was unable to sleep. Her problems with work were related to repetitive elevation of her right arm and the carrying of too many 16 kilogram bags of mail. This description of what caused pain together with her account of other social activities, including swimming twice a week, playing basketball with her children and studying at 2 AM with her daughter, clearly justified Dr McGill’s opinion that she had little functional disability. Ms Rezk also complained to Dr McGill of lower back pain for “the last 4 months”.
46. Dr McGill’s examination revealed a full range of movement in Ms Rezk’s neck and arms with some pulling on lateral flexion. He found her neurological symptoms were inexplicable and found no detectable abnormality. His diagnosis was musculoligamentous strain as a result of the motor vehicle accident on 27 March 2002. He considered that the CT scan findings of a slight bulging of the C3-4 disc made after the accident were possibly caused by the accident but were more probably pre-existing or constitutional. Dr McGill found her fit for full duties, which he considered she was already performing.
47. Dr McGill re-examined Ms Rezk on 3 October 2003 and provided a medical report at the request of the respondent’s solicitors. At this examination Dr McGill confirmed the history of his previous report and noted minor developments but confirmed that Ms Rezk was performing her full duties. He noted that Ms Rezk did report some increase of pain in her lower neck, some numbness in her left hand, pain in her axilla and in her feet (in the arches and heels). His examination revealed normal function, except for some evidence of plantar fasciitis. Dr McGill considered that Ms Rezk had no impairment rating in any of the Tables in Section 9 of the Comcare Guide.
Professor P Sambrook - Professor of Rheumatology
48. Professor Sambrook examined Ms Rezk on two separate occasions at the request of Ms Rezk’s solicitors and subsequently provided two medical reports on 8 October 2003 and 31 August 2004 (Exhibit A6). Professor Sambrook’s history was little different from the majority of the other detailed reports except that in the report dated 31 August 2004 he records a current history of pain each day when Ms Rezk works more than 90 minutes with her arms at or above shoulder height. However in Ms Rezk’s description of her typical work duties she did not suggest that she was required to undertake such duties. His physical examination showed some restriction of the right shoulder at 120 degrees of abduction due to pain – contrasting with 160 degrees in the earlier examination held in October 2003, as well as some decrease in power in her fingers, hands and elbows. In addition, he found marked tenderness over the trapezius region and posterior spinous processes from the mid cervical spine to the mid thoracic spine. Professor Sambrook diagnosed whiplash injury to the cervical spine caused by the motor vehicle accident. Using the Comcare tables he considered her impairment rating in the cervical spine as 5% (Table 9.6) and impairment rating of 10% in the right shoulder (Table 9.1).
Concurrent Evidence
49. At the hearing Dr McGill and Professor Sambrook gave their oral evidence concurrently. Neither expert compromised on their initial diagnosis. Dr McGill considered the symptoms pattern was not typical of whiplash, particularly Ms Rezk’s complaint of pain in the axilla and her strange sensory complaints. He thought Ms Rezk had musculoligamentous injury from the motor vehicle accident and that this would be unlikely to make her completely unfit for work. He was of the opinion that the injury would have resolved rapidly. Dr McGill acknowledged Ms Rezk’s other disorders could have delayed her recovery but these, he maintained, were not related to her work caused injury. Discussion developed over the role of her general practitioner, Dr Tosson, and it was concluded that he had encouraged her to return to work but he was unsuccessful. Dr Tosson gave Ms Rezk medical certificates when Ms Rezk decided she could not work.
50. Professor Sambrook argued that, currently, neck injury and pain were not fully understood, and that there were many causes for ongoing pain following neck injury that could not be confirmed. He suggested an MRI scan could possibly have revealed a cause for the whiplash but this examination was not available. However, he clarified the diagnosis of whiplash syndrome. For whiplash syndrome to be diagnosed, one only required a history of injury, complaint of accurate and reliable symptoms and no inconsistency in presentation.
51. The concurrent evidence clarified some elements of the different diagnosis but still left the tribunal with the task of resolving the differing opinions.
Dr J O’Neill - Consultant Neurologist
52. On 14 March 2003 Dr O’Neill examined Ms Rezk and provided a medical report at the request of the respondent’s solicitors (R4). Ms Rezk told Dr O’Neill she had constant pain at the base of her neck, under her armpit and throughout both arms with numbness restricted to her left little finger. She presented in a jovial mood and talked happily about things other than her medical complaints. Ms Rezk gave a poor account of her motor vehicle accident and Dr O’Neill appears to have considered her accident less serious than the evidence to others indicates. He found her physical examination did not support her complaints. He therefore found she had no evidence of neurological dysfunction and concluded that she had no permanent impairment of her neck or arms above her elbows as a consequence of the motor vehicle accident on 27 March 2002.
53. At the hearing Dr O’Niell gave oral evidence and viewed a video of Ms Rezk (exhibit R6) going about daily activities that was submitted for evidence by the respondent. The doctor considered that the movement shown by Ms Rezk were consistent with his assessment of zero disability. Dr O’Neill considered the CT scan was only useful when used to confirm clinical findings. As he found no signs of pathology and a full range of movement he therefore considered the CT scan was of no significance.
consideration and findings
Section 14 Determination
54. On 8 April 2002, Ms Rezk completed a Claim for Rehabilitation and Compensation form in respect to the injuries of soft tissue injury, neck and lower back bulged disc c3 and c4 sustained in the motor vehicle accident. On 12 April 2002, the respondent accepted liability under s.14(1) of the Act for soft tissue injury to cervical and lumbar spine, disc bulge of C3/C4. The date of the injury was determined as 27 March 2002. (T9)
55. On 8 July 2002 the respondent wrote to Ms Rezk advising that Dr McGroder’s report dated 1 July 2002 indicated that any symptoms that she might have experienced from the car accident had by then ceased.Ms Rezk was invited to provide specialist opinion as it was the respondent’s intention to cease further payments of compensation based on Dr McGroder’s opinion. (T23) As noted above, Ms Rezk consulted Dr Rail on 17 July 2002.
56. The respondent ceased liability from 9 August 2002 in respect of a “soft tissue injury – neck and lower back”. The respondent had considered Dr Rail’s report dated 17 July 2002, which states “that going back to work has exacerbated her neck pain. The pain is spreading into her arms with associated tingling in the hands again”. The respondent preferred Dr McGroder’s opinion as Dr Rail’s report did not state the particular work that exacerbated the neck pain. As well, Dr Rail and did not provide further evidence as to why Ms Rezk was still suffering symptoms of the injuries sustained in the incident.
57. On 12 September 2002, the respondent affirmed the determination dated 9 August 2002 that the respondent was not liable to pay compensation for Ms Rezk’s condition. Dr Chase had examined Ms Rezk on 16 August 2002. After summarising medical evidence the respondent’s delegate stated “Whilst I accept that Dr Chase considers it is “conceivable” that you sustained mild whiplash at the time of the accident on 27 March 2002, I am not satisfied on the available evidence that you continue to suffer any effects of the work related aggravation. For this reason I affirm the decision of the delegate dated 9 August 2002 to cease liability in respect of soft tissue injury cervical spine”. (T40)
58. Ms Rezk contended in her amended Statement of Facts and Contentions dated 10 August 2004 that the respondent’s decision dated 12 September 2002, affirming the determination dated 9 August 2002, is not a valid determination in accordance with the decisions of Rosillo v Telstra Corporation Limited [2003] FCA 1628, Australian Postal Corporation v Oudyn [2003] FCA 318 and Re Liu and Comcare [2004] AATA 617. Counsel submitted that a determining authority could not make a decision accepting liability for a period under s.14 and thereafter determine that the claim does not satisfy s.14 for a more recent period of time.
59. The respondent contended in its Statement of Facts and Contentions dated 12 June 2003 that the injury sustained to Ms Rezk’s neck or lower back had resolved by 9 August 2002 and that Ms Rezk was not entitled to any compensation under the Act after 9 August 2002. The respondent submitted the context in which the issue of s.14 came to be determined in the decision of the delegate was based on the report of Dr McGroder. It was the delegate’s opinion that there was no continuing objective evidence of an injury to Ms Rezk. It was not in the context of somebody attempting to put forward a barrier to any claim ever being lodged in the future, it was in response to a medical report received.
60. The tribunal’s jurisdiction is conferred by s.25(1) of the AAT Act and s.64(1)(a) of the Act and is restricted to a review of a reviewable decision. Section 60 of the Act defines reviewable decision relevantly as a decision made pursuant to s.62 of the Act, which is reconsideration by the determining authority of a determination made by it. We will set out the relevant parts of those sections:
Section 60 Interpretation
…
reviewable decision means a decision made under subsection 38(4) or section 62.
Section 62 Reconsideration of determinations
…
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
Section 64
Applications to the Administrative Appeals Tribunal
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth—the Commonwealth; or
(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII— the licensed corporation.
(3) Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.
61.Cooper J in Oudyn stated the following principles that bind the tribunal:
… the power of the determining authority to reconsider a determination under s.62 of the Act, when exercised in relation to a determination made under s.14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s.14 of the Act to pay compensation for a particular injury. (at 667)
… The determining authority cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s.14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s.14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s.54 of the Act.(at 667)
62. In Re Liu and Comcare (2004) 79 ALD 119 Downes J, DP Handley and SM Allen discussed s.14 of the Act:
“[It] creates a general liability for the payment of compensation to injured workers covered by the Act. … A positive determination under s.14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury that has been determined to be a compensable injury under s.14 will not cease to be a compensable injury. … The compensable injury may never give rise to any future entitlement to compensation. But this cannot be known or determined in advance … the only time that liability under s.14 can be reconsidered is under s.62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability. A changed determination upon such a reconsideration is a determination that there never was a compensable injury. … (at 120)
63. The tribunal finds that the respondent’s determination on 9 August 2002 to cease liability under s.14 of the Act for Ms Rezk’s “soft tissue injury – neck and lower back” from 9 August 2002 is an attempt to exclude a future claim for compensation in relation to an injury for which the respondent has already accepted liability under s.14 of the Act. Applying the principles above, the tribunal sets aside the decision under review dated 12 September 2002. In substitution, the tribunal’s decision is that the respondent continues to be liable to pay compensation to Ms Rezk in accordance with s.14 of the Act in respect of soft tissue injury to cervical & lumbar spine, disc bulge C3/C4 suffered on 27 March 2002
Applications for incapacity for work pursuant to s.19 of the Act
64. There are two applications for review of reviewable decisions that relate to claims for absences from work between 29 April 2002 and 17 September 2002.
· The application for review of the reviewable decision dated 24 July 2002 relates to the absences on 29 April 2002 to 1 May 2002 and 7 May 2002 to 8 May 2002.
· The application for review of the reviewable decision dated 6 February 2003 (relating to determinations made 9 July 2002, 23 July 2002 and 1 August 2002) relates to the absences on
o 15 May 2002 to 19 May 2002, 24 May 2002 to 29 May 2002, 4 June 2002 to 5 June 2002, 12 June 2002 to 16 June 2002, 19 June 2002, 22 June 2002 to 23 June 2002 (determination affirmed 9 July 2002),
o 28 June 2002 to 1 July 2002, 3 July 2002 to 6 July 2002, 9 July 2002 (determination affirmed 23 July 2002) and
o 17 July 2002 to 17 September 2002 (determination affirmed 1 August 2002).
65. The reason for the reviewable decision dated 24 July 2002 was based on the following:
· The decision maker was not satisfied that Ms Rezk was totally incapacitated from work in the relevant periods.
· A backdated certificate by Dr Tosson dated 8 May 2002 indicated that he did not see the respondent until after the absence on 7/8 May 2002.
· Acceptance of Dr McGroder’s opinion of 1 July 2002 that he could not explain Ms Rezk’s condition based on objective signs.
The reason for the reviewable decision dated 6 February 2003 was based on the following:
·Dr Tosson’s medical certificates gave little detail regarding Ms Rezk’s fluctuating levels of incapacity.
·Mention in certificates of reactive depression secondary to the compensable injury and inability of Ms Rezk to drive from Campbelltown to St Leonards.
·Dr Tosson endorsed his medical approval that Ms Rezk was fit to participate in the upgrading program recommended after the workplace assessment on 15 April 2002.
·Dr McGroder had examined Ms Rezk on 1 July 2002 and considered there should be no reason why she was totally unfit for work in light of the suitable duties available and that the number of stops available on the way to work between Campbelltown and St Leonards would allow her to vary her neck position and rest her arms on her lap.
·Dr Chase examined Ms Rezk on 22 August 2002 and concluded that there was no physical reason why she could not perform the restricted duties in accordance with the workplace assessment of 15 April 2002. He expressed concerns of her cooperation with the return to work program. He noted increasingly disabling behaviours and could not exclude functional overlay.
66. Counsel for Ms Rezk submitted that Ms Rezk had sustained a serious injury in a serious motor vehicle accident. Professor Sambrook’s evidence was that Ms Rezk may have suffered a fluctuating degree of severity of the injury on any particular day and it was submitted that Ms Rezk’s evidence supported the fluctuating severity of her condition. To find against Ms Rezk the tribunal would have to accept that, notwithstanding her serious injuries and her ongoing symptoms, she should only be entitled to 65 hours of incapacity payments.
67. The respondent submitted that up to 9 August 2002 Ms Rezk was incapacitated for her pre injury duties but she had been offered duties that were well within the capacity of any problem she may have had. After 9 August 2002 it was disputed that she had an incapacity to perform her pre injury duties.
68. Section 19 of the Act provides for compensation for injuries resulting in incapacity for work. Section 19 applies to an employee who is incapacitated for work as a result of an injury and provides for payments to the employee in respect of the injury. The relevant provisions are as follows:
Section 19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
Relevant also is subsection 4(9) of the Act which reads:
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
69. In relation to an incapacity for work the amount of compensation paid is calculated according to the provisions of ss 19(2) and (3).
70. The following matter, found in the definition of ‘suitable employment’ in s.4 of the Act, must be considered:
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b) in any other case—any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
71. Ms Rezk suffered multiple soft tissue trauma as a result of a motor vehicle accident on the 27 March 2002, while travelling to work. Within several days there emerged persistent symptoms of pain in the right shoulder and neck. Ms Rezk’s medical complaints were complicated by an exacerbation of her ongoing depression dating back to an assault in 1998. There was no psychiatric evidence of her depression being related to her work with the respondent or being secondary to the motor vehicle accident injuries. Ms Rezk’s ongoing depression probably explains why her symptoms did not subside within the usual 4 to 6 week period. Certainly the first mention of depression in medical certificates is on 24 May 2002, some 8 weeks after the accident.
72. The clinical notes of Dr Tosson from 1 September 1998 to 21 December 2002 (Exhibit A5) along with his medical report dated 18 March 2003 (A2) show a complex doctor-patient interaction. Dr Tosson actively encouraged Ms Rezk to return to work but she did not respond. The doctor sympathetically issued Ms Rezk with medical certificates in response to her complaints of ongoing pain and her inability to perform work or household duties.
73. We agree with Dr McGill’s summary in his report dated 5 May 2003:
I note that the early medical certificates by Dr Tosson included a recommendation that she was fit to resume suitable duties from 5 April 2002 (as per his report dated 5 April 2002) He issue subsequent certificates on 8 April 2002 (when he revised his view and stated that she was fit for suitable duties from 6 April 2002) and on 9 April 2002 (when he again he revised his view and stated that she was unfit for work from 8 April but fit for suitable duties from 15 April 2002). I presume from the pattern of those certificates that although he recommended that she return to suitable duties, that did not occur and he then deemed that she was unfit for work for the days that she had not returned to work.
74. Dr Tosson’s retrospective report, dated 18 March 2003, is inconsistent with his contemporaneous notes regarding two significant items. Firstly, in the report he states that “her physical conditions are well controlled by treatment”, whereas his notes clearly show her diabetes is very poorly controlled. Secondly, Dr Tosson’s clinical notes record that Ms Rezk has been on antidepressant medication and has had repetitive bouts of anxiety and depression, severe at times, which very significantly recurred immediately before her motor vehicle accident and during her prolonged rehabilitation program. Yet his report fails to mention her clinical depression. This omission is significant as the subsequent evidence points to Ms Rezk’s depression being a major factor in her protracted and failed post accident rehabilitation program.
75. The tribunal accepts Dr Tosson’s history and findings at the time of the accident as a brief and factual record of medical evidence of Ms Rezk’s injuries from the motor vehicle accident on 27 March 2002. Dr Tosson’s clinical notes also document Ms Rezk’s medical progress, or lack thereof, during her protracted return to work. The tribunal accepts his records show Ms Rezk suffered multiple soft tissue traumas from being thrown around whilst restrained in a seat belt. It is noted that the doctor’s clinical notes make no reference to facial lacerations or extensive bruising. It is also accepted that his records show her initial, rather generalised soreness, rapidly became localised to her neck and right shoulder. The tribunal considers Dr Tosson’s report supports this finding but considers that his diagnosis of Ms Rezk “suffering from cervical disc lesion at C3-4” and “aggravation of Lumbo sacral ligamentous strain”, are not supported by the available evidence.
76. Ms Rezk did return to work on light duties and a rehabilitation program, however her participation was intermittent and eventually she stopped attending, claiming the long drive from the Campbelltown region to St Leonards was aggravating her neck and hands.
77. Dr Rail did not refer in his reports to Ms Rezk’s clinical depression, did not refer to her alleged difficulties driving to work, on 5 June 2002 described her occupation as machine operator, a duty she had not performed since early May 2002 and noted on 17 July 2002 Ms Rezk found her neck pain was exacerbated through mail sorting, when at that time she was carrying out extremely light labelling duties. He did not provide an opinion of Ms Rezk's capacity to work in her pre injury duties or otherwise.
78. Ms Rezk was referred to Dr McGroder and gave a general impression of someone without any discomfort. In his report dated 1 July 2002 the doctor found Ms Rezk had a near full range of upper body movement but complaints of pain and sensory disturbance that could not be explained on any anatomical basis. Consequently he diagnosed musculo-ligamentous strain and perhaps some facet joint irritation and mentioned whiplash as a remote possibility. He found Ms Rezk was working her normal full hours and noted that she was fit to continue to do so. In his report dated 10 July 2002 he considered that she was able to drive from her home to her work with resting of arms and change of neck positioning in expected stoppages on the way. Dr McGroder considered her depression was contributing to her ongoing symtomatology.
79. On the basis of Dr McGroder’s report Australia Post denied payment for a series of compensation claims for absences from work dated from 28 June to 9 July 2002. Dr Chase assessed Ms Rezk on 22 August 2002 some 6 weeks after Dr McGroder, when Ms Rezk was emotionally disturbed. He found that Ms Rezk had upper body limitation of movement of the order of 50%. He found she demonstrated major abnormal pain behaviour, which he considered was entrenched and would be difficult to displace. He diagnosed the condition to be possibly mild whiplash associated disorder Class 1 but found her physically capable of driving and attending work. Dr Chase considered her depression was a major factor interfering with her rehabilitation program and that this was unrelated to her work.
80. The respondent has conceded that Ms Rezk was incapacitated for her pre injury duties up to 9 August 2002. The evidence also supports this position.
81. The applicant’s work prior to the injury, involved operating a mail sorting machine. The post injury work:
(a)referred to in the Return to Work Plan dated 9 April 2002 to commence that date,
(b)referred to in the rehabilitation program determined to commence on 30 April 2002,
(c)offered to her following the BCS machine incident on 7 May 2002 of re wrap and labelling, and
(d)referred to in the rehabilitation program determined to commence on 15 July 2002
were duties with which she was familiar, were within the range of her experience and were at the location where she had been employed before her injury. The tribunal finds that the post injury duties of work were those for which Ms Rezk was suited having regard to her age, experience, training, language and other skills.
82. Dr Tosson certified Ms Rezk as fit for suitable duties with restrictions from 6 April 2002. The tribunal finds duties specified in the Return to Work Plan, which she was able to perform at her own pace, from 9 April to 30 April 2002 were within the restrictions suggested by Dr Tosson, taking into account the nature of her condition.
83. Dr Tosson certified on 17 April 2002 that Ms Rezk was fit for the rehabilitation program commencing 30 April 2002. Following complaints of pain in her shoulder and upper arms while operating the BCS machine on 7/8 May 2002, Ms Rezk discontinued the rehabilitation program. Dr Tosson, during the period from 2 May 2002 to 7 May 2002 had certified that Ms Rezk was fit for her restricted duties from time to time. The tribunal finds the duties that Ms Rezk was offered during that time, which she was able to work at her own pace, were within the range of her restrictions, taking into account the nature of her condition.
84. The tribunal is satisfied that the duties she was offered on 8 May 2002 of re-wrap and labelling duties and possibly some clerical work, which she continued until she ceased work on 17 July 2002, were duties well within Dr Tosson’s certified restricted duties. She was able to work at her own pace. The tribunal accepts the opinion of Dr McGroder who examined Ms Rezk on 1 July 2002 and also found that the only restriction based on subjective symptoms was that of sustained arm elevation and neck flexion. Dr McGroder concluded that the duties she was undertaking at that time were within her capacity. The tribunal finds that these duties were within the range of her restrictions, taking into account the nature of her alleged condition.
85. A rehabilitation program was to commence on 15 July 2002, which Ms Rezk did not commence. Taking into account the medical opinions of Dr McGroder and Dr Chase, the tribunal finds that the duties were within her capacity to perform, in light of the range of her restrictions and the nature of her condition.
86. In relation to the days in which Ms Rezk did not attend work between 29 April 2002 and 8 May 2002, the tribunal considers that her failure to attend work in that period, in all the circumstances, was reasonable. We note that she had sustained a mild whiplash type injury in a car accident and that lapses in the usual recovery period of some 4 to 6 weeks could be expected. The tribunal accepts that the nature of her complaint of pain in her shoulders and arms as a result of using the BCS machine on the late shift on 7 May 2002 was referred pain from the neck. The tribunal also accepts the applicant’s submissions that there is a clear reason why the medical certificate given by Dr Tosson on 8 May 2002 was ‘backdated’ to include unfitness for duties on 7 and 8 May 2002, that is the pain that prevented her continuing her shift on 7 May 2002 occurred very early on 8 May 2002 but that was still during the 7 May 2002 shift. This is supported by the incident report. Therefore notwithstanding that it is backdated, the subject certificate is a satisfactory medical certificate for 7 and 8 May 2002.
87. Ms Rezk said in cross examination that the tearing of labels (work she commenced after 8 May 2002) caused her pain. She said it was brought on by the pain she experienced in driving the long distance to work. The first mention of the driving compliant or restrictions in Dr Tosson’s clinical notes and medical certificates, was on 28 May 2002 even though he had seen the applicant on 8, 15, 16, 20, 23, 24 May 2002. There is no mention of driving complaints in the rehabilitation case notes before 16 June 2002 (T46). The tribunal prefers Dr Tosson’s record to Ms Rezk’s recollection as to when the driving affected her alleged condition. Dr McGroder’s opinion, following his examination of Ms Rezk a little over one month later, was that with periodically resting her arms and repositioning her neck, she was fit to drive the distance to work at St Leonards. The tribunal therefore finds that any claimed effect of the driving on her condition did not begin until 28 May 2002 and that the work she was offered from 8 May 2002 was well within her capacity. The tribunal finds that any absences in the period after 8 May 2002 were unrelated to the injury and her absences were not reasonable in the circumstances.
88. The tribunal accepts, in the absence of clinical evidence of her claimed ongoing pain and restrictions in her neck and referred pain to her upper limbs, that her pre existing psychiatric state (noting that there is no psychiatric evidence of accident/work related depression), the re-emergence of which is supported by Dr Tosson’s medical certificate dated 24 May 2002 and nearly every other certificate thereafter, was the major factor in her on going symptoms and her failure to fully engage from 24 May 2002 in the suitable duties that had been offered to her from 8 May 2002 to at least 17 September 2002. We consider this finding is supported by the opinions of Dr McGroder and Dr Chase. We find that her absences from 24 May 2002 were unrelated to her injury and were not reasonable in the circumstances.
89. In relation to hours, it is noted that Dr McGroder considered her fit to work full hours and that Dr Chase considered her fit to perform the duties referred to in the rehabilitation program. The tribunal finds that Ms Rezk had the capacity to undertake the restricted range of duties for her pre injury working hours.
90. In view of these conclusions the tribunal :
(a)sets aside the decision under review dated 24 July 2002. In lieu, the respondent is to pay compensation to Ms Rezk, for incapacity for work as a result of a motor vehicle accident on 27 March 2002, for the periods 29 April 2002 to 1 May 2002, and 7 to 8 May 2002 on the basis that Ms Rezk had no ability to earn in those periods , and
(b)affirms the decision under review dated 6 February 2003.
Permanent impairment claim
91. On 13 January 2004, Ms Rezk lodged a claim for permanent impairment of the neck, shoulders and upper limbs. (T5 N2004/350). On 5 February 2004, the respondent denied liability to pay compensation for permanent impairment pursuant to sections 24 and 27 of the Act. (T6 N2004/350). On 9 March 2004, the respondent affirmed the determination dated 5 February 2004. (T8, N2004/350)
92. The determination dated 12 April 2002 accepted liability under s.14 for compensation in respect of the injury of 27 March 2002, a soft tissue injury to cervical & lumbar spine disc bulge of c3/c4. The only issues which require determination under s.24 are whether Ms Rezk’s injury has resulted in a permanent impairment and if so the degree of permanent impairment. Relevant are the definitions of ‘impairment’, which s.4 defines to mean “the loss, the loss of use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’ and ‘permanent’, meaning ‘likely to continue indefinitely’ (s.4). There is no existing determination under s.14 that the respondent will be liable to pay compensation to Ms Rezk for an injury to shoulders and upper limbs and therefore the tribunal does not have jurisdiction in relation to that part of Ms Rezk’s claim.
93. The tribunal noted the dramatic and obvious difference in her general demeanour and presentation at the hearing compared to that recorded by Dr Chase on 22 August 2002. Consequently we asked Ms Rezk when this change occurred and invited her to broadly quantify the change as a percentage improvement. Her response was that she had improved around 60 to 70 per cent and that this change took place around Christmas 2002, when she was able to drive her car. Thus by her own assessment she was significantly better than she was in August when Dr Chase considered she would be was fit to work full-time in a matter of weeks. Ms Rezk was not working at Australia Post from July to November 2002 when, at her request, she was given work closer to her home. Ms Rezk commenced this work and has maintained this full-time work from December 2002 until the present.
94. Thus in broad terms the available evidence does indicate that Ms Rezk is currently capable of performing her varied work duties for the duration required without significant pain. Thus the opinions of Drs McGill and O’Neill, who assessed Ms Rezk as having no disability from her motor vehicle accident on the 27 March 2002 seems to have a solid foundation based on the reports of Drs McGroder and Chase. Their opinion is that the major factor prolonging the effects of the soft tissue injuries she did suffer in the motor vehicle accident was the presence of her post-assault depression. It is conceivable that all that has changed is a lifting of her depression and this has permitted her to resume her pre-accident activities.
95. Against this explanation is the persistent complaint by Ms Rezk that she has severe neck and right shoulder pain every day and particularly if she works too hard. Her description to Professor Sambrook outlining her duties was within the pain-free work limits she defined. Thus the tribunal considers Ms Rezk has a tendency to mood swings and has ongoing potential risks of having further episodes of depression. It is difficult for the tribunal to believe Ms Rezk is suffering daily, severe pain considering the active, happy presentation displayed at the hearing. This conclusion is supported by the evidence and is confirmed by Drs McGroder, O’Neill and McGill.
96. The evidence of Professor Sambrook and Dr Ganora somewhat surprisingly supports a diagnosis of a persistent and painful condition without any definite signs and fluctuating and bizarre sensory experiences in a person who has a psychiatric level of recurrent depression symptoms. Professor Sambrook diagnosed Whiplash Syndrome, while Dr Ganora considers Ms Rezk has cervical intervertebral joint strain and possible right shoulder strain. Whilst both specialists acknowledge Ms Rezk had ongoing depression and was on treatment they appear not to have considered that the depression had a great impact on her symptomatology.
97. The tribunal considers the more correct diagnosis, pointed to by the totality of the evidence is, musculo-ligamentous strain of the neck, which caused self-limiting pain in the lower neck and referred pain to the right shoulder. There is no evidence suggesting any internal pathology in the right shoulder. We find that the impairment resulting from the injury “soft tissue injury to cervical & lumbar spine. Disc bulge of c3/c4” has not stabilised. On balance we cannot be satisfied that there will not be an improvement in the condition resulting from the injury. The tribunal therefore prefers the opinion of Dr McGill to that of Professor Sambrook and accepts the disability assessment of 0% according to the Comcare Tables, section 9. Accordingly, we affirm the decision dated 9 March 2004 under review.
98. The applicant had partial success in the tribunal. We consider that it is appropriate that the respondent be liable to pay her costs of the proceedings in accordance with the General Practice Direction.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr P.D. Lynch, Member:
Signed: .....................................................................................
AssociateDate of Hearing 9 & 10 September 2004
Date of Decision 18 January 2005
Counsel for the applicant Mr RichardsCounsel for the respondent Mr Elliott
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