Singh and Australian Postal Corporation

[2004] AATA 544

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 544

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/940

GENERAL ADMINISTRATIVE DIVISION		)
Re		Kushma Singh

Applicant

And Australian Postal Corporation

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member
Dr M E C Thorpe, Member

Date28 May 2004 

PlaceSydney 

Decision

The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that:

(i)   The Respondent is liable to pay compensation for  Mrs Singh’s right

and left shoulder and neck conditions pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“The Act”), from 12 January 2001 up to and including 26 February 2002;

(ii) The Respondent is liable to pay compensation pursuant to section 19
of the Act in addition to medical expenses pursuant to section 16 of the Act from 12 January 2001 up to and including 26 February 2002.

(iii)  The Respondent is to pay the Applicant’s legal costs as taxed or agreed.

..............................................

Ms S M Bullock
  Presiding Member

COMPENSATION – Incapacity – Medical expenses – Right and left shoulder and neck conditions

Safety,Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19

REASONS FOR DECISION

28 May 2004  Ms S M Bullock, Senior Member
  Dr M E C Thorpe, Member

1.      Mrs Kushma Singh, the Applicant, was employed by Australia Post as a Postal Sorting Officer and claims that during the course of her work, she suffered an injury to her right and left shoulders and her neck.  Mrs Singh has claimed compensation and medical treatment expenses for these injuries (T4, T6).  Determinations were made denying liability for these conditions on 4 and 10 April 2001 (T9, T11) and when these determinations were reconsidered on 11 May 2001, the original determinations were affirmed (T19).

2. Mrs Singh has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”). The Hearing commenced on 3 June 2003, resuming on 4 June 2003, 11 August 2003 and 2 December 2003. Mrs Singh was represented by Mr D Timmins of Counsel and the Respondent, the Australian Postal Corporation, was represented by Miss R Henderson of Counsel. Mrs Singh provided oral evidence to the Tribunal as did her husband, Mr Amarjeet Singh. Oral evidence was also provided concurrently by Dr I Gotis-Graham, Rheumatologist and Consultant Physician and by Dr N W McGill, Consultant Rheumatologist. Evidence was provided also at Hearing by Dr H J Napper, Consultant and Medicolegal Psychiatrist, and Dr M Walden, Consultant Psychiatrist. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”, T1 – T20) and a number of exhibits which are listed in Schedule 1 to this decision.

issue

3. At issue in this matter is whether or not Mrs Singh suffered an injury to her right and left shoulders and her neck in accordance with section 4 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) so as to establish liability for compensation under sections 14, 16 and 19 of the Act.

legislative context

4. A decision in this matter requires the application of the relevant provisions of the Act.

(i) Section 4 of the Act deals with the interpretation of various terms including as relevant to this matter, the definition of “injury” which is taken to mean:

“

(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;

but does not include any such disease, injury or aggravation suffered by   an employee as a result of reasonable disciplinary action taken against the employee  or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

(ii) Section 14 of the Act deals with compensation for injuries and as relevant states:

“

(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.

(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”

5. Section 16 of the Act deals with compensation in respect of medical expenses.

6. Section 19 of the Act deals with compensation for injuries resulting in incapacity for work and deals with the manner in which compensation is to be calculated.

evidence of mrs kushma singh

7.      Mrs Singh was born in Fiji on 11 February 1957.   Mrs Singh came to Australia in 1991 from Fiji.  She married on 29 November 1997 and has no children.  Since arriving in Australia, Mrs Singh has worked in a number of occupations including in a clothing shop as a shop assistant, a nursing assistant and as a customer service officer at the company, Mistral.

8.      On 27 November 2000, Mrs Singh was reported as being capable of performing the typical duties of a Postal Sorting Officer at Australia Post (T3).  She commenced employment with Australia Post on 19 December 2000.  Mrs Singh told the Tribunal that she had taken leave without pay from the company Mistral, from 19 December 2000 for approximately six to eight weeks, to take up employment with Australia Post.  This was so Mrs Singh could return to her previous place of work, in the instance she did not enjoy her new occupation.  By the time of her injury at Australia Post, on 12 January 2001, it was too late for her to return to her former employment. 

9.      Mrs Singh stated that on 12 January 2001, she undertook what was referred to as “BT” training.  Mrs Singh noted that she was the only person being trained on that particular day and her training occurred between approximately 12pm and 2pm.  The training took about 15 to 20 minutes.  Mrs Singh explained that the BT is a machine that moves pallets from one place to another and is a fork-lift type device used to lift unit loading devices or “ULD’s”.  Mrs Singh described a ULD as a wire caged box into which mail, mail trays or mail bags are placed.  During the course of her training on the BT machine, Mrs Singh stated that she jarred her right shoulder as a result of the jerky operation of the machine.  Mrs Singh told the Tribunal that she did not know how to control the BT machine or how to stop it.  The machine was controlled by a handle but she confused herself in its operation.  Instead of releasing the handle to stop the machine, she pressed down on it, resulting in the machine pulling her faster and jerking her arms even more.  The BT machine ceased operation when it bumped into a ULD.  There were a number of occasions during Mrs Singh’s training where she was subject to the jerking of the machine.  No one came to Mrs Singh’s assistance during that brief training period.  Mrs Singh stated that she did not recall the name of the person who trained her on the BT machine.  She stated that other employees were observing her and laughing because the BT machine was jumping everywhere.  Mrs Singh told the Tribunal that two employees, “Jing” and “Huang” commented to her that they did not like the BT machine.  When Mrs Singh finally mastered the BT machine, the other staff clapped.  After 12 January 2001, Mrs Singh did not use the BT machine again.  Mrs Singh believes that using the BT machine is the genesis of her shoulder problems.  On 12 January 2001, Mrs Singh ceased work at 7pm, having worked seven hours. 

10.     On the day of her injury, at approximately 2pm, Mrs Singh commenced her normal duties after having undertaken the BT training.  She stated that she was required to perform duties that involved lifting heavy bundles of mail.  The business mail was coming in and she was involved in sorting that mail which came in on trays. The mail was sorted with the standard mail going into standard trays, large letters going into the large letter trays, parcels into the ULDs and the express post mail going into the express post bag.  At that time, as soon as a tray was full, it would be lifted into the ULD.  Another employee, a lady who was working on light duties with Mrs Singh at that time, needed help to lift the full trays into the ULD and Mrs Singh stated that she had to oblige.  The mail trays weighed approximately eight kilograms.  Mrs Singh stated that she would carry out sorting until about 6pm as the last delivery for customers occurred at 6pm.  Mrs Singh told the Tribunal that by the end of her shift she was experiencing a great deal of pain.  Mrs Singh thought this may have been because she was undertaking extra lifting as a result of assisting the injured staff member.  Mrs Singh noted that currently, mail bags weigh approximately 16 kilograms and letter trays about eight kilograms. 

11.     Mrs Singh told the Tribunal that she thought the pain she was experiencing in her shoulder was muscular pain only.  Another worker, Rob, saw Mrs Singh rubbing her shoulders and asked her what had happened.  She told him that she thought she had done a great deal of lifting that day.  He replied that she should not worry, because the weekend was coming up and her husband would be able to help with the housework.  Rob was not a supervisor.  At that time, Mrs Singh stated that she did not know who the supervisor was or who was in charge because it appeared that everyone was working as a team.  When Mrs Singh left work at 7pm, she was still experiencing pain.  Mrs Singh did not think that the pain was a major problem.  At that time, Mrs Singh was living in Liverpool and working at the St Leonards Business Centre.  Mrs Singh drove to and from work.  By the time Mrs Singh reached home on 12 January 2001, she was still experiencing a great deal of pain.  Her right hand was very painful and she was very upset.  Mrs Singh arrived home at approximately 8pm and at that stage, her husband was getting ready to go to work.  Mrs Singh told her husband about her pain and of her undertaking a great deal of lifting.  Mr Singh suggested to her that on Monday, she should report her pain to her supervisor at work. 

12.     Mrs Singh told the Tribunal that she was angry at her husband on the night of suffering the injury because he had encouraged her to take up a position at Australia Post as a mail officer, rather than as a customer service officer, which was the position she had originally wanted and unsuccessfully applied for.  Mr Singh had told Mrs Singh that working at Australia Post would provide her with a better future than where she was working at the time.  Mr Singh was also an Australia Post employee and, at the time of the Hearing in June 2003, Mr Singh had been working for Australia Post for approximately four years.

(iii)     On the night of 12 January 2001, Mrs Singh stated that she continued to experience a great deal of pain and massaged herself with “Vicks”.  She went to bed but could not sleep and then took a “Panadol”.  When she still could not sleep, Mrs Singh took another Panadol.  The next morning, Mrs Singh reported that her shoulder was still painful and she noticed this particularly when she brushed her teeth.  At about 9am on Saturday, Mrs Singh visited a lady who provided her with a massage for 15 to 20 minutes.  Mrs Singh felt more relaxed after that.  She also had a hot shower and had applied a “hot pack” which she made by using a hot towel.  On the Sunday morning after the Friday incident, Mrs Singh stated that she was not in that much pain.  She asked her husband to massage her shoulder and again she took Panadol. 

13.     On Monday 15 January 2001, Mrs Singh proceeded to work.  She tried not to use her right hand as she normally would and relied upon her left hand for sorting mail.  Mrs Singh was trying to avoid aggravating her pain.  She stated that before commencing work, she had attempted to see her General Practitioner, Dr J Le, but the surgery was “packed” and Mrs Singh left.  After work on Monday, Mrs Singh was experiencing a great deal of pain.  On the next day, Tuesday, she had left home by 12.30pm so as not to get caught in traffic.  She then reported to her supervisor Mr J Masters that she had the injury.  She first spoke to an Assistant Manager, Gary.  She told Gary what had happened and that she was nervous about reporting the injury.   Gary then accompanied Mrs Singh to see her supervisor.  Mrs Singh stated that she told her supervisor the truth about the incident.  Mrs Singh told the Tribunal that she had not reported her injury on 12 January 2001, because she thought the pain was muscular and would resolve.

14.     Mrs Singh left work on time at 7pm on Tuesday, 18 January 2001.  That night, she stated that again she experienced a great deal of pain.  The next day, she consulted Dr Le at approximately 8.45am.  She told Dr Le about what had happened on Friday and of her ongoing right shoulder pain.  Dr Le provided her with a Medical Certificate certifying that she should lift less than 10 kilograms in weight (T7, p39).  Mrs Singh stated that she told Dr Le the truth as she has done with all of the doctors who have examined her.

(iv)     Mrs Singh agreed that she had received training about avoiding injury and about the importance of reporting incidents and of making claims on the same day as the incident occurred.  Mrs Singh agreed that she had been told about the “P400” forms and that she must report any incidents.  Mrs Singh later stated in evidence that she did not fill in a P400 form about her right arm injury until March 2001, because she had not been given the form until that time.  It was Mrs Singh’s evidence that her supervisor at the time, Mr Masters, told her that it was too late to fill in the form.  She had told him of her sore right shoulder and that she had been sharing the duties of an injured worker and lifting that worker’s trays.  Mrs Singh reported that Mr Masters said he could not give her the P400 form but that he would write a diary note.  Mrs Singh also stated that she had not reported her condition because she was on probation at Australia Post and was scared that if she reported any injury or pain she may lose her job. 

15.     Between 17 January 2001, when Dr Le provided a Medical Certificate and 14 March 2001, Mrs Singh stated that she asked people at work to assist her with her duties.  During this period she reported having trouble with sorting and elevating her arms.  Mrs Singh stated that there was much pain in her right arm, and that this pain travelled from her neck, into her shoulder, down her arm to about her elbow and then to a lesser extent into her right wrist.  From 17 January 2001 until 14 March 2001, Mrs Singh believed Dr Le had given her certificates indicating that she should be placed on light duties and she had provided those certificates to her supervisor, Mr Masters (T7).  Mrs Singh asked Mr Masters for assistance to hold her tray and if she had to lift more than 10 kilograms.  She was also asking for assistance when she had to move mail bags.  Mrs Singh stated that was she was not officially placed on light duties.  It was Mrs Singh’s evidence that she undertook normal duties but made adjustments for herself and noted that there was some improvement in her condition as a result.

(v)     On about 15 March 2001, Mrs Singh was transferred to another Australia Post facility, as a relief worker at the Chatswood North Parcel Business Centre.  The work there involved sorting mail.  Mrs Singh was not so happy about this move because she did not know how to get to Chatswood.  Mrs Singh told the Tribunal that there were many parcels received at that centre as well as more mail than was received at the St Leonards facility.  At the Chatswood centre, mail arrived in ULD’s and Mrs Singh was required to pull the ULD’s some distance to where she was working.  The ULD’s were not meant to be packed higher than chest level, but often they were packed higher than that level.  Mrs Singh had to pull the mail bags, drop them onto the work bench, then sort out the mail items.  She believed that the mail bags weighed approximately 16 kilograms.  There was some heavy lifting required, certainly more at Chatswood than there was at St Leonards.  On 20 March 2001, Mrs Singh’s full-time employment was confirmed and her hours of duty were also confirmed.  Her posting previously had been for three months from 17 March 2001.  Mrs Singh did not agree that at the time, her work was found to be unsatisfactory.  After April 2001, Mrs Singh did recall being asked to undertake duties of “facing-up” which required her to arrange envelopes so that the stamps appeared on the top right hand corner.  She undertook these duties with her left hand.  Mrs Singh had trouble undertaking this work because of her back but this has now abated.  Mrs Singh reiterated that her right shoulder injury is the main problem for her.

16.     Mrs Singh had a discussion with another supervisor, Ms Simpson, about the pain that she was experiencing at that time and Ms Simpson advised Mrs Singh to see Dr S Woolnough (T7, p41).  After consulting Dr Woolnough, Mrs Singh was, she recalls, provided with lighter duties.  Mrs Singh later clarified in evidence that she had completed a claim for compensation on 23 March 2001 (T4).  There was a further incident report dated 28 March 2001 which related to Mrs Singh’s left shoulder (T5).  A claim for rehabilitation and compensation also dated 28 March 2001, claimed compensation for her left shoulder and the left side of her back as a result of sorting and stacking the mail in the ULD’s (T6). 

17.     Mrs Singh told the Tribunal that on 24 March 2001, she consulted her General Practitioner, Dr Le, and he provided her with a Medical Certificate (T 7, p42).  On 27 March 2001, Mrs Singh was placed on what she referred to as “office duties” following the results of a workplace assessment.  There was a case management plan developed for her.  Mrs Singh was then referred to Dr I Gotis-Graham on or about 25 May 2001 (Exhibit A1, Attachment C).  Dr Gotis-Graham took a history and examined her and Mrs Singh stated that she told him the truth.  Mrs Singh could not recall if Dr Gotis-Graham gave her a Medical Certificate restricting the lifting of weights over 5 kilograms.  Dr Gotis-Graham advised Mrs Singh to undertake physiotherapy and she followed this advice.  At the time she saw Dr Gotis-Graham, she was concerned about her pain and her future.  Mrs Singh said she had been prescribed medication for pain but had an allergic reaction to Aspirin.  This allergy involved her experiencing shortness of breath, lip swelling and rashes on her body.  Mrs Singh attended physiotherapy on a fortnightly basis, recalling that she had eight to ten visits.  She continued to consult her General Practitioner and was reviewed by Dr Gotis-Graham on a number of occasions.  Mrs Singh stated that she felt she had received no long term benefit from physiotherapy.  Later, Mrs Singh was asked by her employer to see Dr N W McGill, Consultant Rheumatologist, on or about 29 August 2001 (Exhibit R2).  Mrs Singh was examined by Dr McGill and stated to the Tribunal that she had told him the truth.

18.     Mrs Singh noted that she has been away from work from time to time as a result of her injuries.  She is currently continuing on light duties, working five hours per day, five days per week.  It is Mrs Singh’s evidence that she has paid all of her own medical and related expenses.

19.     Prior to working with Australia Post and prior to her injuries, Mrs Singh noted that she would undertake all household work unassisted.  Before 12 January 2001, she had no trouble lifting weights.  Once, when working with another employer, she experienced stomach pain after lifting weights and this was subsequently found to relate to gynaecological problems.  Prior to 12 January 2001, Mrs Singh did all her own washing in a twin-tub washer, using her hands to rinse the clothes.  She was able to take the wet laundry downstairs in a clothes basket and hang it on the clothes line.  Mrs Singh was able to vacuum, mop, make beds, scrub the toilet, and clean the windows and doors.  She was able to wash her own car which she did every four to six weeks.  Mrs Singh told the Tribunal that she has had to purchase an automatic washing machine as she was otherwise unable to use the twin-tub washer and that in addition, she is now unable to complete any of the other tasks described. 

20.     Mrs Singh told the Tribunal that prior to 12 January 2001, she could shop independently and, as she lived only seven to ten minutes away from the shops, she was able to walk this distance carrying shopping bags.  Mrs Singh stated that now she is unable to carry the shopping.  Before her injury, Mrs Singh recalled having no trouble driving.  After 12 January 2001, Mrs Singh stated that her main problem is with lifting and carrying.  She feels pain when she does this.  Mrs Singh told the Tribunal that she feels pain in her right side, from below her head down her right arm.  She stated that she has difficulty carrying two kilogram weights and that carrying two litres of milk causes her some difficulties if she tries to use her right hand.  Shopping is also a problem for Mrs Singh as she stated that she cannot reach up to the higher shelves in the supermarket.  Mrs Singh stated that if she goes shopping alone, she has to ask someone in the shopping centre to take the object off the shelf for her.  Mrs Singh stated that she now has to drive the car to the shop but that someone needs to be in the car with her. 

21.     Considering matters of self-care, Mrs Singh’s evidence is that she has difficulty with washing her hair.  Whenever Mrs Singh brushes her teeth, she experiences pain.  Mrs Singh stated that this led her to purchase an electric toothbrush.  Mrs Singh has also purchased an electric can opener and a battery operated massage machine.  Mrs Singh stated that she finds it difficult making Indian bread because the process of rolling and kneading the dough causes her pain.  Mrs Singh explained that she finds cooking difficult because it involves activities such as stirring the food, chopping the meat and vegetables. 

(vi)     During the Hearing, Mrs Singh stood up and when asked why, she stated that this is because when she is sitting down she feels tense in her right shoulder and standing relaxes her arm. Also during the Hearing, Mrs Singh was questioned about her demonstrating certain actions and movements which at face value, seemed not to indicate any pain.  Mrs Singh stated that during the Hearing she was in fact in a great deal of pain and had to take medication.  After the Hearing on the first day, it was Mrs Singh’s evidence that she only slept one and a half hours that night because of pain.

22.     In relation to Mrs Singh’s personal life, in her marriage, she stated that her sex life has been more problematic since the injury.  She is in constant pain from the right side of her neck down into her right shoulder and right arm and this discourages her from engaging in any intimate contact.  Mrs Singh stated that she can handle the pain she experiences on her left hand side, as it is the right hand side that is “really tough”.  Mrs Singh said she cannot drive for more than half an hour because of her injury.  Social contact with friends and relatives has diminished.  She used to help her friends out at parties by preparing food in their kitchens, but is now unable to be involved in this way.  Mrs Singh is unable to participate in games such as cricket or badminton, activities she previously enjoyed.  Mr Singh stated that at work, the management, staff and supervisors are giving her “a hard time”.  Mrs Singh feels neglected at work and has the impression that “no one wants to know” her.  Mrs Singh told the Tribunal that in her experience, the Management and supervisors do not treat her the same way they treat other staff. 

23.     Before the injury, Mrs Singh stated that she could sleep well.  Her preferred sleeping position was on her shoulders.  She would sleep seven to eight hours per night, but since the injury she finds it difficult to sleep, and when she wakes up, it is hard for her to return to sleep.  Mrs Singh takes one Panadol every night before retiring.  She will sleep for one or one and a half hours and then she will wake up.  Quite often it will be the case that once she wakes up, she will not be able to sleep again until morning.  When this occurs, she will take “Endep”.  Mrs Singh is then not able to go to work until later because she feels very drowsy and is also concerned that she should not drive a car in that state.

24.     Mrs Singh has consulted a psychologist, Ms E Johanna, on more than one occasion.  Ms Johanna helped her deal with her anger and also tried to assist her with managing her pain.  Mrs Singh believes that there has been some improvement since undergoing this counselling.  Mrs Singh recalls first seeing Ms Johanna in about July 2002.  Mrs Singh is prepared to do anything recommended to her by medical professionals to assist her to return to health.

25.     Mrs Singh was asked about her relationships at work.  She denied saying to her supervisor Ms Simpson, “God will judge you for your sins” or, “God help you and your children”.  Mrs Singh stated that she knew that religion should not come into the workplace according to the Code of Conduct, which she understood covered her behaviour.  She did agree that she had said to Ms Simpson, “If I was your daughter would you do this to me now?”  Mrs Singh stated that she knew Ms Simpson did not like her saying that.  Mrs Singh noted that she was formally disciplined for these remarks and that there was an official inquiry.  On 24 May 2001, it was found that Mrs Singh had breached the Code of Conduct and would be transferred.  Mrs Singh stated that she was accused of something that she did not do and she was very unhappy.  Mrs Singh denied stating to Management after these disciplinary proceedings that she would see her doctor in order to have him certify some time off work.  She noted though that she did obtain a Medical Certificate from her doctor giving her time off work from 25 May 2001 until a date in June, which she could not recall. 

26.     There was also discussion at the Hearing about a complaint that Mrs Singh had made about a supervisor, Raj, at the Mailroom in Strawberry Hills.  Mrs Singh had complained that Raj was harassing her and discriminating against her.  Mrs Singh stated that she withdrew the complaint because she was in fact transferred.  There was also an issue at work with other managers, one of them being, Asher Singh.Mrs Singh also told the Tribunal that another supervisor, Mr Robert, was placing her under stress and had questioned her about the complaint she made about Asher Singh.  Mrs Singh stated that at that time, she was under a great deal of stress.  Mrs Singh knew that other people had been interviewed about her complaints.  It was Mrs Singh’s evidence that it was suggested to her that she withdraw her complaint, after it was found that no other worker corroborated what she had complained about.  As no one was supporting her, Mrs Singh stated that she withdrew her complaint.  Mrs Singh told the Tribunal that she had lodged an appeal about the decision to transfer her to the Australia Post facility at Strawberry Hills.  The appeal was lost when a Board of Reference conducting the appeal upheld the decision to transfer her.

27.     In summary, Mrs Singh noted that the clerical work undertaken at St Leonards from 26 February 2001 until 8 March 2001 was sorting, but not principally lifting.  Instead of lifting the whole tray, Mrs Singh said that she would split the mail into small amounts and generally liked the work in this area.  In Chatswood, she stated that she liked her colleagues but there were difficulties at Chatswood with the Manager.  There was also an issue at that time of her wishing to take a break every two hours.  Currently, Mrs Singh is located in the mail room in the Strawberry Hills facility, but the actual workplace has moved to Redfern.  Mrs Singh told the Tribunal that her current work situation has changed for the better, in that people are more caring of her and about her injury.  Mrs Singh noted that she has been back to India for treatment, particularly for her right shoulder, and is feeling better but still experiences pain when she works.  She referred to this as aggravated shoulder pain which has a burning sensation and travels from her neck down into her arm. 

28.     Referring to a video shown during the course of the Hearing, which depicted Mrs Singh carrying a shopping bag, Mrs Singh stated that the bag did not have a great deal of weight in it.  She was carrying a work uniform which consisted of two pairs of uniform pants which she believed would have weighed less than half a kilogram. 

29.     When Mrs Singh was questioned about her participation in in-vitro fertilisation procedures, she stated that this was not a matter that was in her hands, but was in “God’s hands”.  She stated that there was no point worrying about her and her husband’s inability to conceive and this was not an issue for her.  Mrs Singh told the Tribunal that she had been trying in-vitro fertilisation since 2000.  She had seen Dr B Lee, General Practitioner at the Liverpool Family Medical Centre, who had referred her to Dr Bernstein in 2001.  During that process, there was a three week period when Mrs Singh recalls being told not to lift anything heavy and obtained medical certificates for work.  Mrs Singh believed that this was in about January or February 2000.  She was on the program for approximately one month and took some drugs which resulted in side effects affecting her for three months after January or February 2000.  Mrs Singh stated that she had pain on the side of her stomach and she could not do any lifting at that time.  Later in evidence, Mrs Singh stated that she was referred to Dr Bernstein in 2001.  She talked to the doctor and chose at that time not to go on to the program. 

30.     Mrs Singh provided the Tribunal with details of her current medication:  “Neurontin”; “Cipramil; “Endep 10”; “Arudis SR”; ”Epilam”; “Telfast”; “Digesic”; “Neocytamin Injection 1 ml”; “Celebrex 200mg”;” Viox”; “Voltarin”; “Panadol”; “Ice gel”; “Tiger Balm” and “Omron Electronic Pulse Massager”.  Mrs Singh stated that she takes just one quarter of an Endep tablet, if she takes half a tablet she is unable to go to work the next morning as she is too drowsy and is unable to drive. 

concurrent evidence of dr i gotis-graham, rheumatologist and consultant physician, and dr n w mcgill, consultant rheumatologist

31.     Dr Gotis-Graham and Dr McGill provided oral evidence concurrently.  The Tribunal had the benefit of reports from Dr Gotis-Graham dated 3 May 2000 (Exhibit A3); 8 June 2001 (Exhibit A4); 13 July 2001 (Exhibit A5); 27 August 2001 (Exhibit A6); 18 November 2002 (Exhibit A 7).  The Tribunal had reports from Dr McGill dated:  29 August 2001 (Exhibit R2); 11 March 2002 (Exhibit R3); 16 May 2003 (Exhibit R5).

Dr Gotis-Graham

32.     Dr Gotis-Graham stated that he had seen Mrs Singh, as her treating doctor on a number of occasions, the last occasion being in October 2002.  Accordingly, Dr Gotis-Graham was unable to comment on Mrs Singh’s current status.  The important issue, Dr Gotis-Graham commented, was whether Mrs Singh actually sustained any injury at work and if so, what was the extent of those injuries.  It is Dr Gotis-Graham’s opinion that Mrs Singh did actually sustain an injury at work, but that it was difficult to assess the extent to which work caused any objective problem because her anxiety and depression may have coloured the way the symptoms were reported.  It was very clear to Dr Gotis-Graham that anxiety and depression were major factors throughout his interviews with Mrs Singh.  On the very first occasion that Dr Gotis-Graham examined Mrs Singh, he clearly remembered that she was tearful throughout the whole interview.  It was extremely difficult to examine her and to be objective about what true clinical signs were present because of her anxiety-related symptoms. 

33.     Dr Gotis-Graham had not seen any reports from Consultant Psychiatrists, Dr M Walden and Dr H J Napper, or a report from Psychologist, Ms E Johanna.  Dr Gotis-Graham also did not know about the fertility problems being experienced by Mr and Mrs Singh.  All he could do, while stating that he was not a Psychiatrist, was to “acknowledge anxiety and depression are major factors” in what he was seeing with Mrs Singh (Transcript, 11 August 2003, p 44).  Dr Gotis-Graham stated that Mrs Singh’s level of distress fluctuated quite a lot.  She was anxious and tearful on the first occasion but this varied.  When Dr Gotis-Graham examined Mrs Singh on 8 June 2001, she told him that she had a 70 per cent improvement in her right shoulder pain, following a back steroid injection (Exhibit A4).  On 13 July 2001, Mrs Singh reported overall that her neck and right arm had improved by 50 per cent as compared to the initial consultation (Exhibit A5).  In January 2002, Mrs Singh stated that her pain was no better than when he first saw her and, at that stage, he organised further investigations including the MRI scan of the right shoulder and neuro-physiological studies in the upper limbs to ensure that there was no other cause of her pain.  On 1 March 2002, Dr Gotis-Graham commented in his notes that Mrs Singh was “pain focussed and overwhelmed by her problems” (Transcript 11 August 2003, p45).  On 24 June 2002, on examination, Mrs Singh stated that she was no better to when Dr Gotis-Graham had first seen her and that comment applied for the remainder of his consultations with Mrs Singh until October 2002.  Dr Gotis-Graham noted that in October 2002, Mrs Singh had approximately three weeks off work and had noted a 40 per cent improvement in her pain. 

34.     It was Dr Gotis-Graham’s initial view that the medical problems Mrs Singh had related to the rotator cuffs of both of her shoulders.  There was evidence on other occasions of pain in the region of the bicep tendons, which is a part of the rotator cuff of the shoulder on both sides.  The MRI of both shoulders undertaken reported on 26 February 2002 (Exhibit A8), indicated mild to moderate tendonopathy of the supraspinatus tendons (Transcript 11 August 2003, p 28).  While the MRI does not show major abnormalities, it did show a problem in the right shoulder where Mrs Singh was reporting symptoms (Exhibit A8), Dr Gotis-Graham opined.  In January 2002, Dr Gotis-Graham considered that the bicipital tendonitis was not as prominent as when he first saw Mrs Singh.  Dr Gotis-Graham did not feel that the absence of MRI scan changes of the bicipital tendonitis indicate that she did not have it, commenting that it is often a clinical diagnosis.  In this regard, Dr Gotis-Graham noted that it was not always the case that changes in the MRI scan would be seen, and in any event, the scan was undertaken after the bicipital tendonitis had improved to some extent.  Mrs Singh did have changes in the supraspinatus tendons region.  Dr Gotis-Graham does not dispute Dr McGill’s assessment, noting that diagnosis is a matter of interpretation and dependent upon where the emphasis is put.  As a treating physician over time, he has been able to build up a picture of Mrs Singh but what is important, Dr Gotis-Graham stated, is how the test results are interpreted.  Thus Dr Gotis-Graham still considered that there are some changes apparent on the MRI which would indicate that there are many other problems going on and there is some problem in the right shoulder rotator cuff.  Dr Gotis-Graham noted Mrs Singh also had widespread pain and tenderness throughout the precervical spinal muscles and posterior chest wall muscles, but the abnormalities which Dr Gotis-Graham felt confident about as being work-related, were those to do with the shoulder rotator cuffs.

35.     Dr Gotis-Graham opined that it is quite conceivable that using the faulty BT machine in January 2001, would have contributed to some of her problems.  He also felt that the repeated lifting of parcels at work would have contributed.  Dr Gotis-Graham was not convinced that it was just a “one-off episode” of Mrs Singh operating the BT machine that brought on the Applicant’s problems.  Mrs Singh did not tell Dr Gotis-Graham on the first consultation, but it became clear on subsequent consultations, that she had been undertaking repetitive lifting and she thought that had contributed to her bilateral shoulder pain.  She told Dr Gotis-Graham that she had definitely lifted objects greater than five kilograms because the limitations imposed upon her were five to six kilograms after the initial assessment, so that the weight must have been around ten to 15 kilograms.  Dr Gotis-Graham could not recall at what stage Mrs Singh was lifting ten kilograms and he also did not have a record of when he placed her on a lifting restriction of five kilograms. 

(vii)   Dr Gotis-Graham stated that he could not explain or understand all of Mrs Singh’s pain over the period of follow-up of injury to the rotator cuff.  In his opinion, there were other factors and issues driving her symptom complex.  Dr Gotis-Graham’s explanation for the fact that her symptoms were in excess of objective clinical damage to the rotator cuffs was that anxiety and depression were predominant.  These were major factors throughout the whole follow-up period and he had sent letters to the General Practitioner emphasising that point.  Dr Gotis-Graham stated that he has never concluded that the damage to the rotator cuffs was the only cause of Mrs Singh’s ongoing problems.  When Gotis-Graham first examined Mrs Singh, he would have expected “a lot of the symptoms to have improved” (Transcript, 11 August 2003, p26).  Some of those other problems included incidents with supervisors at work who Mrs Singh believed were not being supportive.  Dr Gotis-Graham did not gain the impression from Mrs Singh that her problems were being accepted and were being dealt with at work.  Dr Gotis-Graham further noted that Mrs Singh has a definite, medically significant, allergic reaction to Aspirin which was in the realms of being almost a life threatening reaction.  She also had a sensitivity to most medications and while this was not an allergic reaction, she had many adverse effects from various other medications.  In this regard, Dr Gotis-Graham noted that “Amitriptolene” or “Endep” made Mrs Singh excessively drowsy.  This was surprising as pharmacologically trivial doses (2.5 milligrams) of “Amitriptyline” made her excessively drowsy.  Dr Gotis-Graham and Dr Le went through a wide range of medications trying to find something which Mrs Singh could tolerate to ameliorate her symptoms, in order to allow her to undertake exercise and rehabilitation. 

36.     Dr Gotis-Graham referred to the video footage of Mrs Singh walking down a street and he stated that he did not see that the video “caught Mrs Singh out” in any way, or disproved the fact that she has significant shoulder problems.  Dr Gotis-Graham told the Tribunal that he had indeed encouraged her to lift things. 

37.     In conclusion, Dr Gotis-Graham opined that Mrs Singh has had a rotor cuff injury.  It is reasonable from the history Mrs Singh provided that the use of the BT machine and the repeated lifting that she was required to do at work contributed to her injury.  Dr Gotis-Graham has no evidence that there was any pre-existing degenerative disease.  The MRI scan, performed almost a year after the onset of her problems, showed that there were minor changes in part of the rotator cuff, the supraspinatus tendon, where Mrs Singh had complained of experiencing pain at that time.  Overall, it is extremely difficult, Dr Gotis-Graham suggested, assessing Mrs Singh’s problems because of her anxiety and depression.  Dr Gotis-Graham stated that he was not in a position to comment as to whether the anxiety or depression is to do with the problems she had with fertility, or a reaction to the injuries she had at work.  Dr Gotis-Graham had no doubt that Mrs Singh’s anxiety and depression had exacerbated and perpetuated her symptoms which he could not explain and never could explain throughout his interviews during the period of follow-up.  He concluded that the rotator cuff damage was present and could not be dismissed. 

dr n w mcgill

38.     Dr McGill noted that Mrs Singh told him a very similar history to that recorded by the Tribunal.  She reported to him that she felt very depressed in the period of time prior to commencing work with Australia Post, as Dr McGill had recorded in his first report.  By the time Dr McGill saw her in August 2001, he thought that it was clear that her symptoms did not fit a diagnosis of rotator cuff disease or bilateral bicipital tendonitis.  Dr McGill noted that Dr Gotis-Graham is a very good Rheumatologist and if he thought Mrs Singh had bicipital tendonitis at the time he first saw her then Dr McGill is happy to accept that that may have been a component of her illness at that stage.  However, when Dr McGill examined Mrs Singh in August 2001, she did not show any evidence of bicipital tendonitis and the pattern of symptoms that she reported from the beginning and she had told the Tribunal about, are not symptoms of bicipital tendonitis.  It is possible, Dr McGill opined, that there may be bicipital tendonitis hidden amongst a range of other symptoms but he questioned whether the symptom complex described by Mrs Singh could reasonably be expected in someone with bicipital tendonitis.  Dr McGill was confident that the answer to that question, is no. 

39.     Dr McGill did not wish to imply that Mrs Singh’s distress and symptoms are not genuinely felt by her.  At the time he examined her, he gave Mrs Singh the benefit of the doubt, presuming that what she was telling him was genuinely experienced.  The difficulty, Dr Mcgill opined, is that Mrs Singh’s evidence to the Tribunal was that the major problem currently is her right arm.  If someone has a major problem in lifting and carrying with the right arm, then when carrying a bag of whatever contents were seen on the video, it would not be expected that the goods would have been carried in the right hand.  Dr McGill further commented that such behaviour commonly applied to lifting even light objects.  Furthermore, the bag depicted in the video did not look to Dr McGill as if it contained only a few clothes.  To Dr McGill, the bag appeared somewhat heavier, particularly when noting the way the plastic of the bag was stretched.  The fact that Mrs Singh made much of her right hand symptoms meant that the video was relevant in considering the accuracy of Mrs Singh’s evidence. 

40.     In relation to the 26 February 2002 MRI scan (Exhibit A8), Dr McGill stated that the interpretation of imaging studies needs to be undertaken within the context of the presenting symptoms and signs.  While there were minor abnormalities depicted in the MRI, it was otherwise normal.  The minor changes shown are related, in Dr McGill’s view, to Mrs Singh’s age.  Dr McGill stated that at an earlier stage the changes in the MRI might have been considered to be caused by her work, although the history as it was presented to Dr McGill suggests that by time he saw Mrs Singh in August 2001, she did not have any evidence that her work caused those symptoms.  Furthermore, MRI imaging is certainly able to pick up soft tissue injuries and tendonitis.  Dr McGill was of the opinion that the only way of understanding Mrs Singh’s symptoms, if it was to be accepted that they are genuinely felt, is to attribute them to unhappiness or depression as they do not fit the pattern of a physical lesion.  When Dr McGill took a history from Mrs Singh, she mentioned that she was feeling very depressed at the time and this was in the context of there being a discussion about her work.  Mrs Singh told Dr McGill that she had not taken anti-depressant medication at that stage, and could not recall mentioning the symptoms of depression or anxiety to her doctor.  Dr McGill gathered, from Dr Gotis-Graham’s evidence at the hearing, that Mrs Singh had mentioned her unhappiness to him on the first assessment and he had recommended “Amitriptolene”.  While Dr McGill noted that he is not a Psychiatrist, it was reasonable, he believed, to conclude that Mrs Singh might be unhappy about not being able to conceive a child.  Dr McGill had not read reports from Dr H J Napper or Dr M Walden, Psychiatrists, nor had he read Ms E Johanna’s psychologist’s report. 

41.     Dr McGill was told by Mrs Singh of an injury occurring on 12 January 2001, but not of a further injury in March 2001.  He was told of ongoing symptoms but not of further injury.  It was put to Dr McGill that Mrs Singh was suggesting that because she was favouring the right side of her body carrying out activities that she then suffered problems with her left shoulder and arm extending to the back area.  Dr McGill stated that he would not describe that as another injury but noted Mrs Singh had reported to him that she did develop left shoulder pain.  Dr McGill recalled that Mrs Singh related this pain to the fact that she was reducing her activities and use of the right shoulder.  That history did not change Dr McGill’s view.  Dr McGill was referred to medical certificates provided by Dr S Woolnough, General Practitioner, in which he had recorded a number of possibilities in trying to explain the pain Mrs Singh experienced such as bicipital tendonitis with rotator cuff pathology and also cervical sprain on the right side (T7, p41).  Dr McGill was then referred to a medical certificate dated 5 April 2001, in which Dr Woolnough diagnosed rotator cuff pathology of the right shoulder and mild medial epicondylitis with symptoms developing in the left shoulder and depressed mood (T7, p48).  It was put to Dr McGill that the depressed mood could in fact relate to Mrs Singh becoming steadily more depressed because of injuries she felt she was not recovering from.  Dr McGill opined that to reach such a conclusion would be reading more into the medical certificate than was possible.  Dr McGill stated that Dr Woolnough’s first certificate mentioned bicipital tendonitis, rotator cuff pathology and the cervical sprain, so he was either suggesting three injuries, or more likely, he was indicating that he was not sure where the pain was coming from, but recorded the possibilities.  The pattern of symptoms reported by Dr Woolnough did not, in Dr McGill’s opinion, fit with a physical pathology in one site as one might expect if someone had suffered a particular strain.  If a sudden jerking movement caused muscle strain or a tendon strain, then Dr McGill would have expected the symptoms to be well localised. 

42.     With Mrs Singh, from a very early stage, there was a range of sites thought of as possible explanations for her symptoms.  Dr McGill stated that this supported his comments that if Dr Gotis-Graham felt Mrs Singh had bicipital tendonitis when he first examined her, he was willing to accept that that was the case, but the history was not one of typical bicipital tendonitis or of any other localised physical problems.  If Dr McGill was being asked whether he could be certain as to what the physical situation was in January 2001, Dr McGill concluded that the symptoms, and what was documented, did not allow him to identify a physical problem, but there could have been a minor physical problem hidden amongst other symptoms.  There was, however, no evidence that there was an ongoing physical problem accounting for a significant amount of her symptoms.  It is unlikely that Mrs Singh had a further injury in March 2001.  Furthermore, there was no evidence of a pre-existing injury prior to December 2000.  Having said that, Dr McGill noted that the sort of degenerative changes seen on the MRI scan are quite likely to have been there prior to that, but it was not apparent when those findings would have been first noticed.  Dr McGill reiterated that Mrs Singh’s symptoms, when he first saw her and subsequently occurring in March 2001, did not fit with the minor changes on her MRI.  Dr McGill agreed with Dr Gotis-Graham that a rehabilitation program would assist Mrs Singh.  Dr McGill thought a work-based program would be beneficial and should have been put in place a long time ago.

43.     Dr McGill concluded that the use of the BT machine and general work duties undertaken by Mrs Singh during the early stages of her employment in January 2001 could have caused a temporary physical problem. If there was a physical lesion at the beginning, it does not now explain Mrs Singh’s ongoing symptoms.  The overall pattern of the symptoms cannot be explained solely on the basis of a rotator cuff lesion and certainly, Mrs Singh’s presentation when Dr McGill examined her, was not of a rotator cuff lesion.  If one assumed that Mrs Singh’s symptoms are genuinely felt by her then, in Dr McGill’s opinion, they are a reflection of unhappiness.  He further opined that Mrs Singh’s assessment of her own physical function or capacity is not reliable as there is a marked contrast between what she thinks she is able to do physically and what the physical signs and imaging studies demonstrate. 

evidence of dr h j napper, general and medicolegal psychiatrist

44.     Dr Napper provided a report 6 September 2002 (Exhibit A10).  Dr Napper reported that Mrs Singh suffered a work-related injury on 12 January 2001 which resulted in chronic pain and disability.  Dr Napper noted that over the last 12 months, Mrs Singh’s anxiety and depressive symptoms have been particularly severe.  In Dr Napper’s opinion, Mrs Singh’s anxiety and depressive symptoms have significantly contributed to the perpetuation of her pain and disabilities.  Dr Napper also agreed with Dr Gotis-Graham’s opinion that physical factors alone have not been responsible for Mrs Singh’s current pain and disabilities.  In Dr Napper’s opinion, Mrs Singh has a pain disorder associated with both psychological factors and a general medical condition and this is a diagnosis from the “Diagnostic and Statistical Manual of Mental Disorders” of the American Psychiatric Association (“DSM-IV”).  The psychological factors are Mrs Singh’s anxiety and depression and the general medical condition is Mrs Singh’s work-related injuries.  In Dr Napper’s opinion, this DSM-IV diagnosis is synonymous with what Dr Gotis-Graham has called a chronic pain syndrome.  Dr Napper could find no evidence that Mrs Singh was depressed prior to commencing with Australia Post or prior to her work injuries thus accordingly, the depression that she now experiences has arisen entirely as a consequence of her work injuries.  Dr Napper was presented with no evidence from Mrs Singh to support Dr McGill’s opinion that Mrs Singh was unhappy with her supervisors or that the interpersonal relationships at work may have contributed to her symptoms.  As Mrs Singh’s anxiety and depression have arisen from her work injury and has been a major perpetuating factor with respect to her injury it is important, Dr Napper opined, that Mrs Singh receive adequate psychological treatment.  This could be done either with a psychologist or a psychiatrist through cognitive behavioural therapy in combination with anti-depressant medication.  At the Hearing, Dr Napper noted that he did not document the exact time Mrs Singh was off work and Mrs Singh herself was not sure of the duration.  Dr Napper was aware of a work injury on 12 January 2001.  He was not told of another injury in March 2001.  Mrs Singh indicated to Dr Napper that she had pain in both of her shoulders and down her arms (12 to 16 inches on the right and eight inches down her left arm).  Dr Napper believed that Mrs Singh’s anxiety and depression were greater since the onset of physical pain and over the 12 month period previous to his report. 

45.     Dr Napper treats many patients with pain disorder and it is not common for the pain disorder to come on immediately after the injury.  A person may go through an optimistic stage but then there is no improvement and that can lead to chronic pain patients becoming anxious and depressed that they are not becoming better.  There is no history of Mrs Singh suffering panic attacks, just anxiety and depressive symptoms were present and had come on over a number of months.  Dr Napper noted that Mrs Singh had difficulty driving a car, was on restrictive duties at work and was functionally limited, but operated within her pain threshold. 

46.     Dr Napper was not aware that Mrs Singh had been counselled by Ms E Johanna, Psychologist (Exhibits A9, A20).  He noted that Mrs Singh took medication “on and off”.  The dose she took of “Epilim” was very small.  This dose, Dr Napper opined, may have assisted her sleep but would have few other benefits.  Dr Napper noted that in any event the outcome of treating pain disorder with medication is poor.  The issue is dealing with the pain.  It was Dr Napper’s view that if Mrs Singh was in a more friendly work environment, there would be an improvement to her anxiety and depression.  Dr Napper did not agree that Mrs Singh suffered from an Adjustment Disorder as was diagnosed by Dr M Walden (Exhibit R4).  Dr Napper’s view is that Mrs Singh is impaired at work because of her pain and that people with pain symptoms are pain-focused. 

evidence of dr m walden, consultant psychiatrist

(viii)   Dr Walden provided a report dated 5 September 2002 (Exhibit R4).  Dr Walden opined that Mrs Singh presented as being mildly depressed.  From a psychological point of view, Mrs Singh described difficulties in coping with her experience of pain and ability to only undertake restricted activities.  Her symptoms are, in Dr Walden’s opinion, consistent with a DSM-IV diagnosis of adjustment disorder with depressed mood and her mental state examination is consistent with this.  Mrs Singh presents as being excessively pain-focused and fearful that activity will exacerbate her pain.  It is likely that her current depressive symptoms are heightening her perception of pain and exacerbating her somewhat abnormal response to her experience of pain.  Dr Walden opined that if it is accepted that Mrs Singh has a physical condition that is work-related and is responsible for her pain, then it follows that her psychological condition is also work-related.  Dr Walden noted that whilst there have been some other stressors in her life with regard to infertility, she appears to have come to terms with this and it did not appear to Dr Walden, at the time of her interview, to be a relevant factor Mrs Singh’s current complaint of depression.  Dr Walden opined that Mrs Singh’s adjustment disorder is not of sufficient severity to preclude her from performing her work duties.  Dr Walden added, however, that the disorder is likely to be impacting on her work attendance in that her depression is exacerbating her perceptions of pain and her reluctance to take part in day to day activities.  Mrs Singh reported to Dr Walden some improvement in her feelings of depression following psychological counselling, but she continues to meet the criteria for Adjustment Disorder. 

47.     In terms of treatment, Dr Walden recommended that Mrs Singh consult a psychiatrist with the view to being placed on appropriate anti-depressant medication for her depressive disorder.  Because of Mrs Singh’s sensitivity to medication, she would need to be carefully monitored and encouraged to persevere with an anti-depressant medication of an adequate therapeutic dose.  It was further recommended by Dr Walden that Mrs Singh have six to eight sessions with a psychiatrist over the next 12 months.  Dr Walden predicted that Mrs Singh would need to remain on medication for a period of 12 months once the dose stabilised.  Mrs Singh also needs an approach to pain management which incorporates cognitive behavioural aspects of pain management and encourages her to increase her physical activity within the limits of what is considered suitable by her Consulting Rheumatologist.  It is of some concern to Dr Walden, in relation to Mrs Singh’s prognosis, that her symptoms have been present since early 2001 and her patterns of pain behaviour are now well-entrenched. 

48.     At Hearing, Dr Walden noted that she was not aware that Mrs Singh had made other attempts to conceive a child.  Mrs Singh had told Dr Walden only of the IVF attempt in 1999, and that she had come to terms with that not being successful.  The new information about other attempts to conceive a child made Dr Walden think that Mrs Singh was more concerned about the fertility issue than Dr Walden had originally thought and that this issue could be linked to Mrs Singh’s depression.

49.     Dr Walden noted that Mrs Singh believed she was unfairly treated by her supervisors, felt unduly harassed and monitored.  This contributed to Mrs Singh’s depression.  Mrs Singh had also not told Mrs Walden about her being disciplined at work or that this was the reason for her being transferred to the Strawberry Hills facility.  Again, this information led Dr Walden to opine that those other factors could lead to her feelings of disability and cause her to focus on her pain. 

50.     In forming her opinion, Dr Walden took into account Mrs Singh suffering an injury at work on 12 January 2001.  Dr Walden did not believe Mrs Singh was feigning.  The perception of pain is an individual issue and some people are able to cope better than others.  Mrs Singh had told Dr Walden that she took only Panadol for pain management in addition to a third of a tablet of “Endep”.  Dr Walden noted that this is a very low dose.  Mrs Singh had taken “Cipramil”, but this made her feel breathless – not a known side effect, Dr Walden stated.  If Mrs Singh took a normal dose of “Endep” of between 150 – 300 mg, that caused her marked sedation.  Dr Walden noted that Mrs Singh would take this medication twice per week.  That is not a therapeutic dose and it would need to be taken for five days over two weeks to be effective.  Dr Walden concluded by stating that her own diagnosis and that of Dr Napper’s are not significantly different.

evidence of ms e johanna, psychologist

51.     The Tribunal had two reports from Ms Johanna, one undated (Exhibit A9) and the other dated 7 August 2003 (Exhibit A20).  In her first report, Ms Johanna opined that using the DSM-IV criteria, Mrs Singh’s symptoms indicate that she is suffering from trauma, anxiety and depression.  Ms Johanna saw Mrs Singh initially for 15 sessions commencing in June 2002.  Mrs Singh originally presented as confused and distressed.  The traumatic experiences referred to by Ms Johanna involved the work accident on 12 January 2001 and then subsequent experiences in her workplace which caused her the emotional response to fear and mistrust other people and resulted in her feeling helpless and powerless.  Mrs Singh needed some education in controlling and dealing with her issues in a positive way to avoid future fears and anxieties, this could be accomplished through a procedure known as “Systematic Relaxation”. 

52.     In a subsequent report dated 7 August 2003 (Exhibit A20), Ms Johanna noted that Ms Singh was receiving counselling from Ms Johanna from December 2002 until 1 August 2003 having had a break prior to that of two months.  Mrs Singh appeared to be in a cheerful mood until the end of May 2003.  Mrs Singh had undertaken some naturopathy treatment in India and was feeling a little better because of that and also because she had had an opportunity to rest.  Mrs Singh indicated to her counsellor that her previous work supervisor and manager were on leave and the State Manager had been transferred, all whom Mrs Singh had had some difficulty with.  Mrs Singh’s present State Manager was friendly.  Mrs Singh reported to Ms Johanna that she was more relaxed now, although the pain in her shoulder stops her undertaking many of the activities she had done prior to her injury.  She also indicated that she was enjoying her current work.  In June 2003, Mrs Singh had commenced acupuncture to relieve her pain.  Mrs Singh also reported that she was experiencing severe headaches which sometimes lasted for several hours, accompanied by an aching sensation in her neck and shoulders.  She was experiencing palpitation of the heart, shortness of breath and had experienced traumatic stress and anxiety and a mild panic attack on several occasions during the past month, due to the traumatic events she was facing involving the Tribunal.  Her current medication at that time was “Panadol”, “Tramil” and “Pentacort”. 

53.     Ms Johanna noted that Mrs Singh was upset that her privacy had been invaded in terms of being asked about the IVF program, which she believed was irrelevant to her work.  Mrs Singh thought it insensitive and that she had not been shown respect in relation to her cultural beliefs.  Ms Johanna opined that Mrs Singh’s anxiety and depressive symptoms are associated with her general medical condition and also the effect of the court case and treatment by staff in her office.  Her ongoing pain as well as subsequent experiences impacted on her emotional condition.  It was likely that Mrs Singh would need ongoing counselling on a weekly basis for at least another three months. 

evidence of mr amarjeet singh

54.     Mr Singh is Mrs Singh’s husband and he was born in India on 11 June 1968.  Mr and Mrs Singh were married on 29 November 1997.  Mr Singh provided the Tribunal with a Statement 24 July 2003 (Exhibit A21).  He had arrived in Australia in 1993 or 1994.  Mr Singh noted that when he first met Mrs Singh, her physical health was good and she appeared very healthy.  She was a very attractive, slim woman.  She would keep herself fit by jogging and walking.  Mr and Mrs Singh belong to the Liverpool Christian Life Centre.  During their early life together, his wife was a very happy woman who was well-balanced.  There was nothing to be noticed in relation to her neck and shoulder before Mrs Singh commenced work at Australia Post. 

55.     When Mr and Mrs Singh first married, they expected they would have children and when Mrs Singh did not fall pregnant, they decided to seek medical advice and consulted Dr J Bernstein whom Mr Singh thought was a Gynaecologist and Obstetrician.  Mr and Mrs Singh answered questions put to them by Dr Bernstein truthfully.  Mr Singh was upset that his wife was asked about these things during the Hearing.  It was recommended to Mr and Mrs Singh that they become involved in an IVF program but Mr Singh was not sure how long his wife was involved in that program.  They came to terms with the fact that Mrs Singh did not fall pregnant and accepted that it was God’s will that they not have children.  They were both unhappy about not being able to become parents.  It was Mr Singh’s recollection that Mrs Singh had finished with the IVF program before she joined Australia Post in December 2000.  Mr Singh stated that he would not describe his wife as being depressed because of the problems arising out of not having a child. 

56.     In relation to the work incident, Mr Singh noted that his wife was hurt at work on 12 January 2001.  She came home and told him that she was in a lot of pain and had told him that she had been involved in a training course on how to use a “battery operated machine” which carried ULDs.  She believed that she had hurt her right shoulder because of the jerking forwards of the machine which she could not control.  Mr Singh recommended that his wife take some Panadol.  Mr Singh had a night shift that evening and when he came home the next morning, Mrs Singh was still in bed complaining that her shoulder was still sore and she told him that she was going to have a massage. 

57.     The pain in Mrs Singh’s right shoulder and neck continued, Mr Singh noted.  Mrs Singh continued to go to work but also consulted her doctor.  Mr Singh reported some improvement after Mrs Singh received medical care but then it seemed to go back to how it was before.  He tried to help his wife by undertaking some of the housework and indeed, she did not seem to be able to do even the simplest things.  Mr Singh noted that by looking at his wife, he could tell she was in pain and that she was restricted in the movement of her neck and her right shoulder and arm.  From time to time the condition would improve, but then it would become worse again.  Mrs Singh was, to Mr Singh’s observations, a changed woman physically and mentally.  She told Mr Singh that she was worried and was not getting better.  Mrs Singh also told her husband that she was suffering pain and could not do what she wanted to do – that made her very unhappy.  Now, Mr Singh has to do the shopping.  Sometimes Mrs Singh will come along but fundamentally he has to do it.  The apartment is not vacuumed unless he does it and he also has to carry out the washing and undertake the ironing.  Mrs Singh does some of the cooking, but Mr Singh has to complete most of the preparation, such as the cutting of meat and vegetables.  Currently, Mr Singh does most of the cooking because his wife has difficulty stirring the food or lifting the pots and pans.  Mr Singh makes the bed, cleans the bathroom and toilet, cleans up the kitchen and keeps the house neat and tidy.  The couple no longer have plants because Mr Singh could not keep up with looking after them. 

58.     Recreationally, the couple would go out at weekends but Mrs Singh does not want to do that anymore because she does not feel up to it.  They also used to see many friends and family but that is in the past, Mr Singh reported.  Mrs Singh is always telling Mr Singh about her pain and he feels very sorry for her.  He notices, when his wife is not aware, that she appears to be in pain and to be having difficulty with moving her neck, shoulder and arm.  Mr Singh opined that his wife is normally an excellent worker and has always been responsible.  She was always keen and enthusiastic and not one to take time off work or be late for work.  In all, Mr Singh concluded that his wife is a different woman.  He also noted that they used to enjoy a good sex life but nowadays, there is rarely any sexual contact, because Mrs Singh is in pain and not motivated because of her pain. 

59.     In relation to the injury of 12 January 2001, Mr Singh believed this occurred on a Friday and he had encouraged her to report it, which he believed his wife did on the following Monday.  Mr Singh could not remember when it was that he first had to undertake the activities he described to assist his wife. 

consideration and findings

60.     The Tribunal has made a decision in this matter, taking into account the oral and documentary evidence, the legislation and the case law. 

61.     Mrs Singh is seeking compensation in the form of incapacity payments and for treatment and medical expenses.  She asserts that she was injured on 12 January 2001 when training on a BT machine with further injuries occurring on or about 19 March 2001.  Mr Timmins contends, on Mrs Singh’s behalf, that Mrs Singh is a reserved woman who was uncomfortable discussing her personal situation.  If the Tribunal is concerned about her credibility, then Mr Timmins referred us to there being good support for her assertions when consideration is given to the evidence, particularly of her husband, and also the evidence of Dr Gotis-Graham and Dr Napper. 

62.     It is true that Dr McGill conceded that Mrs Singh may have had a rotator cuff problem arising out of the training on the BT machine and this was present when Dr Gotis-Graham examined Mrs Singh in May 2001 (Exhibit A3).  However, by the time Dr McGill examined Mrs Singh in August 2001, it was his opinion that there was no such indication of a rotator cuff problem (Exhibit R2).  Furthermore, while Dr McGill agreed that the MRI showed minor changes, the changes indicated on the MRI did not explain Mrs Singh’s symptoms.  It was also possible, Dr McGill concluded, that the injury which occurred on 12 January 2001, may have been an aggravation of a pre-existing condition.  Dr McGill also contended that if that were the case, he was not able to tell how long that condition had been in existence, if indeed it did exist.  Dr Gotis-Graham and Dr McGill were in agreement that anxiety and depression were present at the time of both their examinations.  It was Dr McGill’s view that Mrs Singh had been depressed before she came to Australia Post.  It is difficult for the Tribunal, on the evidence available to it, to accept one way or the other that there was anxiety and depression present prior to Mrs Singh working at Australia Post. 

63.     The difficulty for the Tribunal is that while a diary entry was made on 16 January 2001, of an incident at work, there was no further mention of any problems until a claim was made for an injury to her right shoulder joint on 23 March 2001 (T4).  This claim was made after Mrs Singh was counselled for unsatisfactory performance.  It was at that time also that Australia Post was provided with a medical certificate dated 17 January 2001 from Dr Le describing Mrs Singh’s restrictions (T7, p39).  Based on a memo from Ms L Jackson, Human Resources Commercial Division NSW/ACT of Australia Post dated 4 April 2001, it appears that the formal reporting of Mrs Singh’s right shoulder condition became apparent at the end of her three month probation, when her services were about to be terminated on 19 March 2001 (T6).  It is also apparent to the Tribunal from the evidence that Mrs Singh worked without restrictions until 19 March 2001.  The medical evidence was produced on 20 March 2001, from Dr Le, indicating that Mrs Singh had injured her right shoulder at work, and that she would only be able to lift weight up to 8 kilograms over the next eight weeks (T7, p40).  There was an earlier certificate from Dr Le, dated 17 January 2001, which indicated that Mrs Singh sustained a right shoulder injury at work and that she should have been on light duties from 17 January 2001, lifting weights less than 10 kilograms (T7, p39).  It would appear to the Tribunal that this document was not presented to Australia Post until some time in March 2001.  Furthermore there is a certificate from Dr S Woolnough, General Practitioner, dated 21 March 2001, noting right shoulder pain, right arm pain, and neck pain with diagnosis of bicipital tendonitis, but with evidence of rotator cuff pathology and cervical sprain on the right side (T7, p41).  Further certificates were received in relation to these symptoms from Dr Le on 24 March 2001; 28 March 2001; 31 March 2001; 4 April 2001; 7 April 2001; 7 May 2001 and 2 June 2001 (T7, pp42-56).  There was also a certificate from Dr Woolnough dated 5 April 2001 with certificates continuing on from various doctors (T7, p48).

(ix)     The Tribunal notes that by 29 August 2001, when Dr McGill examined Mrs Singh on the first occasion, he noted her reporting widespread pain involving her neck and shoulder regions bilaterally associated with sleep disturbance, but could not conclude that the pattern of her symptoms was in keeping with a physical injury (Exhibit R2).  He noted that in the future, Mrs Singh’s symptoms are likely to recur or exacerbate when she feels under stress or has deterioration of mood or sleep disturbance, regardless of whether those factors are related to events at work or elsewhere.  Dr McGill, in his evidence to the Tribunal, conceded that Mrs Singh may well have had a rotator cuff condition at the time Dr Gotis-Graham examined her in May 2001, and that this could have been precipitated by the occurrence on 12 January 2001 with the BT machine or alternatively, that incident with the BT machine could have aggravated some underlying pre-existing condition.  Dr McGill further opined however, that the effects of the work incident on 12 January 2001, was temporary.  He stated with certainty that by the time he examined her and specifically, given the objective results from the MRI in February 2002, while indicating minor changes certainly did not support the reporting by Mrs Singh of her pain in her right and left shoulders and in her arms and back. 

64.     The Tribunal notes that in relation to the MRI undertaken in February 2002, both Dr McGill and Dr Gotis-Graham reported mild abnormal findings.  Dr Gotis-Graham opined that what is apparent from the MRI is related to Mrs Singh’s work, while Dr McGill stated that the MRI did not adequately reflect the symptoms Mrs Singh complains of.  The Tribunal notes that the intensity of the pain reported by Mrs Singh is not reflected in the level of painkillers she takes, notwithstanding her sensitivity to medication.  Furthermore, on careful consideration of the video footage, the Tribunal does not consider that Mrs Singh’s unguarded presentation on video carrying, with her right hand, a plastic bag of goods, supports the level of disability that she would have us accept.  Mrs Singh stated that the shopping bag contained light items of two pairs of pants.  It is not possible on the video to confirm this, however, the Tribunal agrees with Dr McGill’s statements that the stretching and line of the plastic bag indicates contents considerably heavier than two pairs of pants.

(x)     Thus the Tribunal finds that on all on the evidence, Mrs Singh did experience an injury at work on 12 January 2001, causing the Applicant problems with her right shoulder, neck and arms.  The Tribunal also agrees that there does appear to be further exacerbation of that injury, on or about 19 or 23 March 2001, which caused similar symptoms in Mrs Singh’s left arm.  However, the Tribunal is satisfied that this condition was only temporary.  The Tribunal does not consider it realistic to expect that the conditions would worsen whilst Mrs Singh was undertaking light duties. 

(xi)     In coming to a final determination in this matter, however, the Tribunal must turn to the issue of Mrs Singh’s psychological health.  Dr Gotis-Graham and Dr McGill both reported that Mrs Singh was anxious and depressed when they examined her.  While both doctors acknowledged that they were certainly not psychiatrists, it was significant enough in Mrs Singh’s presentation to be reported.  Dr Napper and Dr Walden, both Consultant Psychiatrists, diagnosed a psychiatric problem, Dr Walden diagnosing adjustment disorder and Dr Napper diagnosing depression.  Both psychiatrists had not been told that during 2001, Mrs Singh was continuing to pursue the issue of infertility in that she had an appointment with Dr Bernstein.  Dr Walden had been told by Mrs Singh that she had moved on from that concern in her life whereas evidence before the Tribunal indicates that certainly during 2001, when Mrs Singh was reporting pain in her shoulders and was seen to be depressed by the Rheumatologists, she in fact was also concerned with trying to conceive a child.  This was also reported by Dr R Gyaneshwar, Clinical Director of Obstetrics and Gynaecology, Liverpool Area Health Services, in a report dated 17 December 2001 and a report of Dr Bernstein dated 8 October 2001 (Exhibit R11), following referral to him of Mrs Singh by her General Practitioner concerning fertility options.  We are not satisfied given all of the evidence, that the reports of pain were not unaffected by Mrs Singh’s psychological condition and note that Mrs Singh was not entirely frank with either Dr Napper or Dr Walden about her seeking continued assessment and guidance regarding her and her husband’s infertility difficulties. 

(xii)   Now faced with the question of what caused Mrs Singh’s psychiatric symptoms, the Tribunal refers to the reports of anxiety and depression made by the Consultant Psychiatrists, Dr Napper and Dr Walden as also observed by Dr Gotis-Graham and Dr McGill.  It must be decided whether, in Mrs Singh’s case, the anxiety and depression arose out of, or has been contributed to by, the injury sustained in the course of the Applicant’s employment with Australia Post.  The Tribunal is of the view that the anxiety and depression, for which there is no claim for compensation, is unrelated to Mrs Singh’s work injury.  The Tribunal thinks it is much more likely that there has been anxiety and depression present in Mrs Singh previously, arising out of Mr and Mrs Singh’s inability to conceive.  Furthermore, it seems that when Mrs Singh has been counselled for her performance and has suffered inquiries into various issues at work, this, understandably, causes her stress.  Mrs Singh made complaints of discrimination and harassment against a fellow worker but withdrew this as she found there was no support for her allegations from other members of staff.  As a result of a formal work inquiry and recommendations made on 21 May 2001, Mrs Singh was transferred to the position of Relief Postal Sorting Officer on 28 May 2001 with her Head Station to be that of Strawberry Hills (Exhibit R7).  This recommendation was confirmed on appeal through a Board of Reference which affirmed the original inquiry’s recommendation, formally recording its decision on 30 July 2001 (Exhibit R8). 

(xiii)   It is apparent to the Tribunal that there was a great deal going on in Mrs Singh’s life concerning her work performance, disciplinary matters and her concern about her and her husband’s fertility difficulties.  We consider Mrs Singh’s reported pain is disproportionate to the objective results, such as those found upon clinical examination, the video presentation, and the MRI results.  It is the Tribunal’s view, upon its most beneficial reading of the circumstances that, by the time of the MRI scan on 26 February 2002, the effects of the injuries sustained by Mrs Singh at work on 12 January 2001 and 28 March 2001 had abated.  Any reported pain continuing from that time is unrelated to the injury Ms Singh sustained on 12 January 2001, and its subsequent exacerbation on about 19 or 20 March 2001. 

(xiv) Thus in all of the circumstances, and for the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that:

(i) The Respondent is liable to pay compensation to Mrs Singh for her left and right shoulder problems and neck condition from 12 January 2001 up to and including 26 February 2002 pursuant to sections 14 and 19 of the Act.

(ii) The Respondent is liable to pay Mrs Singh’s medical and other related treatment expenses pursuant to section 16 of the Act from 12 January 2001 up to and including 26 February 2002.

(iii)  The Respondent is to pay the Applicant’s legal costs as taxed or agreed

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member

Signed:         .....................................................................................
  Associate

Dates of Hearing  3 June 2003, 4 June 2003, 11 August 2003 and      2 December 2003.
Date of Decision  28 May 2004
Counsel for the Applicant         Mr D Timmins
Solicitor for the Applicant          Ms R May, Morris May and Co
Counsel for the Respondent     Miss R Henderson
Solicitor for the Respondent     Ms E O'Connor, Sparke Helmore

schedule 1

list of exhibits

Number	Date	Description
A1	12 June 2002	Applicant’s Statement of Facts and Contentions with Attachments A, B, C
A2	undated	List of Medication brought by Applicant to Tribunal
A3	3 May 2000	Report by Dr I Gotis-Graham, Rheumatologist and Consultant Physician.
A4	8 June 2001	Report by Dr I Gotis-Graham, Rheumatologist and Consultant Physician.
A5	13 July 2001	Report by Dr I Gotis-Graham, Rheumatologist and Consultant Physician.
A6	27 August 2001	Report by Dr I Gotis-Graham, Rheumatologist and Consultant Physician.
A7	18 November 2002	Report by Dr I Gotis-Graham, Rheumatologist and Consultant Physician.
A8	26 February 2002	Report by Dr Tony Peduto, Radiologist.
A9	8 July 2002	Referral Letter by Dr J Le to Ms E Johanna, Psychologist, and Report on “Counselling Treatment of Mrs Kushma Singh”
A10	6 September 2002	Report by Dr H J Napper, General and Medicolegal Psychiatrist.
A11	22 September 2001	Receipt and Consignment document from Harvey Norman Electrics, Liverpool, referring to front-loading washer
A12	13 June 2001	Receipt plus Warranty for “Braun Oral 8” Toothbrush purchased at Grace Bros, Liverpool.
A13	25 August 2002	Receipt for Electric Can opener purchased at Grace Bros, Liverpool.
A14	20 November 2001	Warranty Card for “Pulse Massager” purchased at Liverpool Pharmacy.
A15	24 July 2002	Australia Post Leave Application of Mrs Kushma Singh.
A16	28 July 2002	Letter to Mrs Singh from George Jaramilla, Australia Post State Operations Manager, regarding Mrs Singh’s leave request.
A17	Dates from 17 January 2001 up to and including 12 May 2003.	Bundle of documents – “Kushma Singh v Australia Postal Corporation Medical Certificates”.
A18	20 August 2002	Letter to Dr M Walden from Sparke Helmore.
A19	undated	“Curriculum Vitae and Synopsis” of Dr H J Napper, Consultant Psychiatrist.
A20	7 August 2003	Additional Report by Ms E Johanna, Psychologist “Counselling Treatment of Mrs Kushma Singh”.
A21	24 July 2001	Statement by Amarjeet Singh.
R1	28 February 2002	Respondent’s Statement of Facts and Contentions.
R2	29 August 2001	Report by Dr N W McGill, Consultant Rheumatologist.
R3	11 March 2002	Report by Dr N W McGill, Consultant Rheumatologist.
R4	5 September 2002	Report by Dr M Walden, Consultant Psychiatrist.
R5	16 May 2003	Report by Dr N W McGill, Consultant Rheumatologist.
R6	16 May 2003 and 22 May 2003	Surveillance Video of Mrs Singh.
R7	21 May 2001 18 May 2001	“Notification of Inquiry Recommendation” to Mrs Singh from Australia Post.  Letter from Mr J Masters, Postal Manager, “Notification of Injury Recommendation”
R8	28 May 2001 24 July 2001 30 July 2001	Letter from Mrs Singh regarding “Board of Reference Appeal Against Transfer” Letter “Board of Reference Sydney” Letter from Warwick Rourke to Mrs Singh, “Appeal Against Transfer”
R9	10 July 2001, 13 July 2001	Letter of Complaint from Mrs Singh, “Harassment and Discrimination”. Minutes of Meeting and Petty Cash document for “Thimbles”
R10	14 September 2001 to 10 July 2001	“Leave Management Records” of Kushma Singh.
R11	14 January 2002	Clinical Notes from “Alpha Family Health Care”, Liverpool Centre.