Stimac and Australian Postal Corporation

[2005] AATA 276

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 276

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1357

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANET STIMAC

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date1 April 2005

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell

Senior Member

COMPENSATION – Whether employment has aggravated injury sustained by Applicant in 1995

Safety, Rehabilitation and Compensation Act 1988

Australian Postal Corporation v Bessey [2001] FCA 266

Tippett v Australian Postal Corporation (1998) 27 AAR 40

REASONS FOR DECISION

1 April 2005 Ms N Bell, Senior Member

1.      Mrs Stimac is a 40 year old woman who came to Australia in 1987 from the Philippines.  Mrs Stimac had begun work with Australia Post in 1989 as a postal services officer at the Liverpool branch later moving to the Cabramatta branch.

2.      In 1995 she was stabbed by her husband and sustained serious knife injuries to the left side of her neck and to her right hand.  She required operative treatment.  After this traumatic incident Mrs Stimac returned to work on 30 October 1995 on a graduated return to work program with lifting restrictions building up to full time work in 1996.

3.      In April 2003 Mrs Stimac underwent an operation on her right thumb to release the tension caused by scarring and returned to work in May.  On 17 May she lodged a claim for compensation in respect of an injury to her right hand and wrist, noting the date of injury as January 2003.  In particular, Mrs Stimac’s claim described the event leading to the injury as follows:

“Using stapler and have pain in the right hand and wrist.”

4.      Australia Post denied liability, and affirmed that decision on reconsideration.  Mrs Stimac was directed to take sick leave in August 2003 and has since been medically retired by Australia Post.

5.      The issue that arises in this application is whether Mrs Stimac’s incapacity is due to the injuries she sustained in the stabbing in 1995 or whether her incapacity is the result of an aggravation of those injuries by her work with Australia Post.

The incapacity caused by Mrs Stimac’s 1995 injury

6.      Dr L Chang, Hand Surgeon, treated Mrs Stimac in June 1995 when she was admitted to Liverpool Hospital with multiple stab wounds.  In his report of 18 December 1997 he said:

“The wound to the left neck had obviously damaged the brachial plexus and she is having continuing paraesthesia down that arm.  The right hand suffered a deep cut along the first web and the flexor pollicis longus tendon and both neuro-vascular bundles were severed.  The tendon and both digital nerves were repaired and she has excellent recovery, although incomplete, of function.

She has returned to work but is encountering difficulties with prolonged use of the hand, especially in writing.  She also has difficulty in manipulation because of incomplete recovery of sensation.  There is also persistent aching of the right thumb.  She wish (sic) to have further surgery to improve symptoms on both sides but unfortunately there is nothing I could offer her that is likely to make a substantial difference.”

7.      In August 1997 Dr P Campbell, General Surgeon, reported that Mrs Stimac was still troubled by pain in the back of the right hand and the wrist and some numbness  on the pad of the right thumb.

8.      In her evidence to the Tribunal Mrs Stimac agreed she experienced pain in her right hand and wrist in 1997 and 1998.

Mrs Stimac’s incapacity at the time of her claim

9.      Dr Ibrahim is Mrs Stimac’s general practitioner.  Her evidence was that she has treated Mrs Stimac since April 1998 and was first treating her for her 1995 injury.  She said Mrs Stimac has always been in pain since the assault in 1995 and agrees with Dr Chang as to the difficulties she would encounter at work and the little that could be done to improve her condition.  Dr Ibrahim agreed that her notes show Mrs Stimac complained in February of 2001 of pain in her right hand when using a stapler at work and also agreed that on the 27 further occasions on which she saw Mrs Stimac there is no mention in her notes of pain in Mrs Stimac’s right hand and no mention of a stapler.

10.     Dr Ibrahim considered that Mrs Stimac’s work had aggravated her pre-existing condition.  However, she said it is a “multi factorial” problem and does not blame her work entirely.  She also said that Mrs Stimac never complained to her about a specific incident at work.  She said Mrs Stimac had been capable of doing lighter duties, but in 2000 her capacity to do those lighter duties changed.

11.     Dr Ibrahim also diagnosed Mrs Stimac as suffering from bilateral epicondylitis, repetitive strain injury of both upper limbs and depression.

12.     Dr McGill, Consultant Rheumatologist, described Mrs Stimac’s right upper limb condition as:

“restriction of right thumb abduction with a skin graft in the right thumb web space, both as a result of the assault she suffered in June 1995.  She also has widespread tenderness and diffuse pain which I think can reasonably be described as fibromyalgia or regional pain syndrome. Her fibromyalgia/pain syndrome is also a direct result of the injury in 1995.

As a result of the problems resulting from the 1995 injury, her work capacity has been restricted since that time.  I do not believe that there has been a work related contribution to her problem.  In this regard I think it is important to distinguish between the situation in which someone is not able to perform normal work duties because of a problem (which is the case here) and the situation where performing work duties results in a change in the condition, that is where there is a work related component to the problem (not the situation here).

I think her current capacity for work is the same as it would have been regardless of her work duties with Australia Post.”

13.     Dr McGill, in oral evidence, said the use of a stapler at work or the lifting of mail bags may cause discomfort at the time of the activity but would not cause harm.  He said such activity may actually improve the underlying condition by exercising the affected muscles.  He said there was no evidence of epicondylitis in Mrs Stimac’s elbows either in his own examination of her or in the clinical notes of Dr Ibrahim.  He also noted the result of an ultrasound in March 2003 which was normal and, in his view, along with other information, excludes epicondylitis.

14.     Dr R Chase, Occupational Physician, said, in his report of 15 June 2003, that Ms Stimac’s right hand condition can be entirely attributed to the original injury to the hand which resulted in some tethering which has since become symptomatic.  He allowed that some of the nature of her work may have made this increasingly symptomatic to the point of a contribution of 10 %.  He considered her unfit to work.

Mrs Stimac’s claim

15.     Mrs Stimac told the Tribunal that, while she had returned to work after the stabbing on restricted duties, she was later made to do full duties including dispatching mail and sorting.  It is noteworthy that during her evidence in chief Mrs Stimac did not mention using the stapler.

16.     Mrs Stimac said she had a gradual build up and worsening of pain in her hand throughout 2002 and in 2003 it became even worse and she could not work any longer.  She agreed that this came to a head when she had surgery to release the tension caused by the scarring to her right hand in April 2003 and that it was shortly after this operation that she lodged her claim for compensation.  She said Dr Ibrahim had advised her that the pain in her right hand was due to her work and it was on the basis of Dr Ibrahim’s opinion that she made the claim.

17.     Mrs Stimac also said she is unable to do any housework because of the pain she suffers.

Consideration

18.     Mr Polin, for Australia Post, drew my attention to the decision of the Federal Court in Australian Postal Corporation v Bessey [2001] FCA 266 in which Gyles J said:

“…if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable.  On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.”

19.     I am satisfied that Mrs Stimac’s 1995 injuries have caused her continuing pain since their infliction.  There is no evidence to establish that the particular pain in her right hand caused by Mrs Stimac’s activities at Australia Post was more than temporary, in the same way that the pain caused by her housework is temporary.  I am mindful of the evidence of Dr McGill in this respect.  I prefer his opinion, as a specialist Rheumatologist, that the pain felt by Mrs Stimac when performing duties at Australia Post was not indicative of an aggravation of her underlying condition, to that of Mrs Stimac’s general practitioner, Dr Ibrahim.  I also prefer Dr McGill’s view that Mrs Stimac does not suffer from epicondylitis.

20.     I have considered Dr Chase’s suggestion that “at most there is a 10% work-related contribution to her most recent symptoms”.  I note that Dr Chase preceded this suggestion with the following words:

“One could argue that because of some of the nature of her work it has become increasingly symptomatic but this does not change the fact that if she had not had the original trauma she would not have developed the subsequent symptoms.”

21.     I do not consider that an increase in symptoms of the kind described by Mrs Stimac amounts to an aggravation of her underlying condition (Australian Postal Corporation v Bessey, supra).  In Tippett v Australian Postal Corporation (1998) 27 AAR 40 Finkelstein J referred to the

“… very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely.  It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.”

22. I consider that a similar distinction applies here. It follows that Mrs Stimac did not suffer an injury to her right hand, within the meaning of section 4 of the Safety, Rehabilitation and Compensation Act 1988, as a result of her employment with Australia Post.

Decision

23.     The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member0

Signed:         .............[Linda Blue]...................................
  Associate

Date of Hearing  2 March 2005
Date of Decision  1 April 2005
Counsel for the Applicant         Mr R Keller
Solicitor for the Applicant          Somerville & Co
Counsel for the Respondent     Mr N Polin
Solicitor for the Respondent     Forners Solicitors