Tadros and Australian Post
[2005] AATA 406
•5 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 406
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/867 ) N2002/1648 ) N2003/549 ) N2003/550 ) N2004/117
GENERAL ADMINISTRATIVE DIVISION ) Re NABILA TADROS Applicant
And
AUSTRALIA POST
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member and Dr. J. Campbell, Member Date5 May 2005
PlaceSydney
Decision 1. The reviewable decision by the Respondent on 31 May 2002 in proceedings N2002/867 is affirmed.
2. The reviewable decision by the Respondent on 5 September 2002 in proceedings N2002/1648 is affirmed.
3. The reviewable decision by the Respondent on 3 February 2003 in proceedings N2003/549 is affirmed.
4. The reviewable decision by the Respondent on 27 February 2003 in proceedings N2003/550 is affirmed.
5. The reviewable decision made by the Respondent on 30 December 2003 in proceedings N2004/117 is varied and substituted for that decision is a decision that Australia Post is not liable for any medical treatment for the right shoulder and neck.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
WORKER’S COMPENSATION – several injuries - capability of duties – rehabilitation program – permanent impairment – evidence supports full time hours with some restrictions – evidence supports no permanent impairment - decision varied
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 24 and 27
Administrative Appeals Tribunal Act 1975 ss 37, 42(2) and 42C(1)(a)
CASELAW
Liu v Comcare (2004) 79 ALD 119
Plumb v Comcare (1992) 39 FCR 236
REASONS FOR DECISION
5 May 2005 Mrs Josephine Kelly, Senior Member and
Dr J. Campbell, MemberBackground
1. The Applicant, Mrs Tadros, was born in Egypt on 28 May 1950 and came to Australia in 1971. She has worked for the Respondent, Australia Post, since November 1972. On 4 May 1988 Mrs Tadros injured her right arm and shoulder when helping another employee lift a box of frozen chickens off a trolley (“the 1988 injury”).
2. On 4 December 1995, this Tribunal determined that Australia Post was liable to pay Mrs Tadros compensation for a soft tissue injury, over-use syndrome of the right upper limb and neck arising from the 1988 injury (Exhibit T1, T34, pp 141-154) (“the 1995 Tribunal decision”). She was awarded compensation for loss of earnings for the period 18 July 1994 to 2 June 1995 and medical expenses until the decision date.
3. On 8 November 1996 Mrs Tadros fell down stairs when leaving a butcher’s shop and fractured her right ankle (“the 1996 injury”). She was on her way home from work.
4. A claim for permanent impairment of the neck and upper right limb arising from the 1988 injury and 1994 exacerbation was the subject of a Tribunal decision made pursuant to s 42C(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) on 29 June 2000 (Exhibit T2 at pages 192) (“the 2000 Tribunal decision). That is, the decision was agreed by the parties and was not the subject of a hearing. The decision was that Mrs Tadros had sustained a 10 per cent whole person impairment of her neck and right shoulder and was entitled to compensation pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act. The documents lodged with the Tribunal pursuant to s 37 of the Act in those proceedings (N1999/1399) were Exhibit T1.
5. On 8 August 2000 Mrs Tadros was injured in a motor vehicle accident on her way to work. Australia Post accepted liability for injury to the right shoulder, neck and lower back (Exhibit T2 document T35).
Reviewable decisions
6. Following is a summary of the reviewable decisions and their history.
7. In proceedings N2002/867, the reviewable decision of 31 May 2002 (Exhibit T2, document T73) varied the determination of 17 May 2002 so that “the rehabilitation program instead of ending on 14 June 2002 shall cease on 31 May 2002”. The rehabilitation program requirement was for Mrs Tadros to work 3 hours per shift, Monday to Friday, carrying out the duties set out in Workplace Assessment report dated 5/5/00. On the same day the decision was made (T2, document T74) which is the subject of proceedings N2002/1648 requiring Mrs Tadros to upgrade to her full hours carrying out suitable duties over a 7 week period. The 1996 injury was the subject of both proceedings. The documents filed in proceedings N2002/867 pursuant to s 37 of the AAT Act became Exhibit T2.
8. The reviewable decision in proceedings N2002/1648, dated 5 September 2002 (Exhibit T3, document T6) affirmed the decision of 31 May 2002 requiring Mrs Tadros to upgrade her duties. The documents filed in these proceedings pursuant to s 37 of the AAT Act became Exhibit T3.
9. In proceedings N2003/549, the reviewable decision dated 3 February 2003 (Exhibit T4, document T14, pp 33/34) affirmed the decision of 26 November 2002 to suspend payments for failing to undertake the rehabilitation program which is the subject of proceedings N2002/1648.
10. In proceedings N2003/550, the reviewable decision dated 27 February 2003 (Exhibit T4, document T15, pp35-36) affirmed the decision of 29 November 2002 denying liability for permanent impairment of the right ankle pursuant to s 24 and s 27 of the Act. The documents filed in proceedings N2003/549 and N2003/550 pursuant to s 37 of the AAT Act became Exhibit T4.
11. In proceedings N2004/117 the reviewable decision dated 30 December 2003 (Exhibit T5, document T7 p 21) varied the determination of 29 October 2003 denying liability for payment for physiotherapy, holding that Australia Post’s liability for neck and right shoulder condition “has long since ceased” and therefore Australia Post ceased payment of compensation for that condition. The documents filed in these proceedings pursuant to s 37 of the AAT Act became Exhibit T5.
12. Two video tapes of Mrs Tadros were Exhibits R1 (October 2002) and R2 (December 2002). In summary, she was seen walking up and down steps at her home, closing a garage door with her right arm, walking in a shopping area carrying bags of shopping using her right arm as well as her left, and driving.
Mrs Tadros’s Work History
13. The following is not in contention. Mrs Tadros was working in the cafeteria at the Turella Mail Exchange when she injured her right arm, shoulder and neck in 1988. She was off work for about three weeks, and resumed her normal duties. As found in the 1995 Tribunal decision, in 1994 she suffered an exacerbation of that injury. She was off work for a period and then returned to work full-time on light duties which she continued. Following the injury to her right ankle in 1996, Mrs Tadros returned to work on reduced hours in April 1997. She told Dr Raftery on 24 March 1997 that she was able to walk 1 km without problems and could stand for over 2 hours (Exhibit T1 document T57). He recommended that she have physiotherapy. She had such treatment during 1997. On 5 August 1997 Dr Horsley carried out an arthroscopy of the right ankle (Exhibit T1 Document T72). By 8 December 1997 she was working full hours with restrictions on standing (Exhibit T1 document T85). Her job was split with 5.5 hours in the canteen and 2 hours performing repair work in damaged letter section. These duties continued until February 1999.
14. From February to 25 June 1999 Mrs Tadros was off work because of her right ankle and right shoulder (Exhibit T1 documents T93, T98). At that time her solicitors wrote to Australia Post inquiring about the possibility of settling Mrs Tadros’s claims, noting that there were moves to close the Turrella Mail Exchange and that Voluntary Retirement Packages might be offered. In March 1999 Dr Bentivoglio, who had cared for Mrs Tadros at the time of her 1996 injury, removed the internal fixation devices from her right ankle (Exhibit T1 document T101). In a report dated September 1999 he said that she had attained her optimal level of improvement. He said that she stood a small chance of developing degenerative osteoarthrosis; that she will continue to experience some degree of symptoms in her ankle region; always have some degree of restricted movement; will find it uncomfortable to walk for prolonged periods; particularly over uneven ground, and experience symptoms if she remained on her feet for prolonged periods.
15. From June 1999 Mrs Tadros was working 3 hours a day. She sat, doing labelling, administration duties and rewrapping duties (Exhibit T1 document T119). Following the closure of the Turella Mail Exchange, Mrs Tadros was sent to Clyde for re-training as a Mail Officer. In November 1999 she commenced a rehabilitation program 3 hours per day. She was transferred to Strathfield in about May 2000 and was working 4 hours a day repairing mail (Exhibit T2 document T75).
16. Throughout late 1999 until the reviewable decision of 31 May 2002 (Exhibit T2, document T73), there were a number of attempts to have Mrs Tadros increase her hours of work and undertake rehabilitation programs. Her complaints related to her neck, right shoulder and right ankle. In January 2000 there was an attempt to have her upgrade her work to 6 hours, however she returned to 3 hours (Exhibt T2 document T15). Some time later, probably around 10 June 2002 (Exhibit T2 document 75), Mrs Tadros began working four hours a day which she was doing at the time of the hearing.
17. From 1999 Mrs Tadros was seen by various doctors including Doctors McGill and Browne, whose evidence will be discussed in detail later in this decision.
Mrs Tadros’s evidence
18. Mrs Tadros gave evidence about her work and accident history as summarised above. She described how for 18 months before her 1996 injury she had a painful neck and right arm and headache and that her arm was very painful at the end of the day. This was during the period she was on light duites working full hours. She said that after she went back she could not walk much and put her foot up at home. She said she also could not cope in terms of her shoulder and neck. Dr Bentivoglio said she could work 3 hours and Australia Post was saying 4 hours. She had an operation by Dr Horsley, which refers to the arthroscopy, to reduce the swelling in ankle but she said that did not help as her ankle was still painful and swollen. Her neck and shoulders were not good. She did have initial improvement from physiotherapy after the ankle operation.
19. Mrs Tadros said that in March 1999 when she had ultrasounds of both shoulders and right ankle she had pain in both shoulders, although there was more pain in the right shoulder, neck and arm. She said when she returned to work in June 1999 she was using her right hand more because of the mail repair work she was doing. She also had pain in her neck, shoulder back and suffered from headaches. Her ankle was swollen and she sometimes felt “cracking” in it. It was alright after it “warmed up”. She was mostly sitting when working.
20. After Turella closed she drove to Clyde Mail Centre which took 40 minutes, compared to the 10 minutes from Earlwood at Turella. She felt sharp pain in her ankle and her neck was painful when she twisted it. She cannot drive very much any more.
21. In 2000 she went to Dr Stuckey who said she could work 3 hours because Australia Post was training her as a Mail Officer and she was trying to sort fast but she could not do it because of her arms. Dr Stuckey was seen for medico-legal purposes. He reported to Mrs Tadros’s solicitors. She was given another job for 4 hours placing cards in some fashion. She could not do that because of her arm, neck and shoulder and her ankle was painful. She was then transferred to Strathfield.
22. Her work when she moved to Strathfield and currently involves repairing damaged mail, placing valuables she might find into pigeon holes on her desk, and taking things to other parts of the floor where she works. Dr Gliksman (an occupational health physician) put her on to three hours. She could not do more she said because she had pain in her neck and shoulders, suffered headaches, and her ankle was swollen.
23. In relation to the program in 2002 to increase her work to full-time, Mrs Tadros said that she could not do it because of pain in her neck, shoulder and ankle. She says that position is unchanged. She said that at the end of 2002 she was working 3 hours a day. She had to walk to pick up damaged mail from machines, return and set up her table. She said there was a lot of walking. Her work was increased to 4 hours a day at the end of 2002. She said that occurred when she was told that she had to increase her work. She tried five hours for two weeks but the doctor reduced it to 4 hours.
24. She said that she has to walk perhaps 40 minutes a day doing her work. She said that walking a long distance and standing for hours makes her right ankle painful. She suffers a shooting pain under her foot when getting up from sitting now and again. She suffers right neck and shoulder problems day to day when bending down to do her work, mainly on the right side. The pain extends from the outside of the shoulder to her elbow. She cannot turn her head very much because she gets a headache. She cannot do mail sorting because she cannot raise her right arm high repetitively because she has pain in her neck and shoulder.
25. Her present job involves bending down to get mail which causes pain in her neck and shoulder.
26. She has difficulty getting up on the morning, getting dressed and going to work.
27. Both the gradients at home and work are level. She does not walk up hills or steps very much. She used escalators at work and not stairs because doing so hurts. Walking on uneven ground hurts her ankle, as does walking up ramps.
28. She takes tramal, sometimes every day, and sometimes switches to Panadol, and takes panadeine for headaches. She uses voltaren cream for her shoulder and neck, as well as heated bags. She uses an arthritis gel for her ankle and shoulder.
29. After her 4 hours working she sometimes feels pain in her ankle, her neck, shoulder arm and gets a headache. She drives home. At home she puts up her foot for a while and then does some home duties. Her daughter does shopping. She cannot scrub the shower or vacuum the house, which her daughter does. Sometimes she finds it difficult to brush her hair.
30. Mrs Tadros said her pain was always getting worse. On some days she was alright and on other days she was not. She has pain in her right shoulder which runs down the anterior of her right arm to above her elbow, and also up into her neck. This also causes headaches. Her right ankle is painful when she first gets up. She cannot walk or stand for more than two or three hours, for example when she goes shopping.
31. Mrs Tadros gave the following evidence in cross-examination. She could not remember telling Dr Browne in 2002 that she could only walk or stand for 10 minutes. When questioned about telling him she could walk 15 to 20 minutes without pain in October 2003 compared to having told the Tribunal that she could walk for 2 to 3 hours, Mrs Tadros sought to qualify that statement by saying that she was talking about long distances and that she does not walk for that length of time. She said also that the condition of her ankle depends on the day. Sometimes she walks and has no pain and sometimes she is in pain. It also depends on whether she has taken pain-killers. She sometimes has a limp depending on how her ankle is. She said that most of the time she has pain in her neck, shoulder and ankle at the end of 4 hours work. She attends an RSL club and plays the poker machines. She drives to go shopping after work to Earlwood, Campsie or Marrickville. She sometimes does the shopping for the family. She cooks the evening meal for herself and her two children and makes her bed. She puts clothes in the washing machine and her daughter hangs it out.
32. The 40 minutes walking during her 4 hours at work is the total period of walking done at different times during the day. She collects mail, later goes to “Large letters” and when she is finished takes the mail and keys, wallets, cheques and the like to other people. Those things are not very heavy.
33. She has stairs in her house and her room is downstairs. There are also stairs at the front of the house and sometimes she has to put her hand out to support herself. There is a low wall on the right side. She said that during the last two years she has more pain in her neck and shoulders while doing her duties. She complained the table height at work was not correct and that a chair with arms was taken away. She cannot raise her right hand above her head. She had asked for a stool to place her ankle on but was refused. Her shoulder and neck are worst at the end of her working hours and her ankle at the end of the day. She said that she used to get a lot of pain on her right side and used a heated bag. She then said that the pain is not better and she still gets pain.
34. She said that she has prescriptions for tramal, celebrex and mobic. She buys Panadol at the supermarket and Panadeine at the chemist. During the last three days before the hearing she had taken tramal at least twice a day. She takes Panadol or Panadeine for headaches two or three times a week.
35. Mrs Tadros said when asked by Dr Campbell that she had used crutches for more than 8 weeks following her ankle fracture in 1996 and again after Dr Horsley had operated on her.
Mr Daniel Smith
36. Mr Daniel Smith, a mail officer gave evidence. He described two kinds of sorting devices. Relevantly, Mrs Tadros uses a vertical sorting device (“VSD”). It has pigeon holes into which postal items are placed according to area. He described Mrs Tadros’s job as doing re-wraps of damaged postal articles. She deals with burnt, soiled or wet mail, and sorts’ items which have become separated from the envelope in which they were posted. She patched damaged articles with tape and places them in rewrap bags. She is also required to sort through miscellaneous items which included keys, jewellery, lollies and chocolates. Valuable items are passed on to a supervisor. The postal items are delivered to her on a trolley. Mrs Tadros uses the pigeon holes in the VSD for some items. He gave evidence that he had suffered neck pain when doing the re-wrapping job. He had a pre-existing neck condition. While that may have been Mr Smith’s experience, we did not find that evidence of assistance in assessing Mrs Tadros’s condition and the impact of the work on her.
Medical evidence
37. There was a considerable amount of medical evidence tendered, including that relevant to the 1999 claim for permanent impairment of the right shoulder. Given Mrs Tadros’s medical history and the matters the subject of these proceedings, it is helpful to consider the medical evidence in some detail from 1999 onwards.
38. In April 1999 Dr Kuo saw Mrs Tadros and reviewed her shoulder pain. In his report dated 6 April 1999 he noted that she had mild cervical spondylosis and diagnosed bilateral rotator cuff impingment (sic) syndrome (Exhibit T1 document T104). Mrs Tadros told Dr Kuo that she had injured both shoulders in 1988. He reported her pain as being very severe On 27 April Dr Kuo again saw Mrs Tadros and reported apparently following receipt of a report or reports of imaging investigations (Exhibit T1 document T110). Dr Kuo advised decompression surgery on shoulders, although suggesting that the right be done first as it “is the more symptomatic”. He did not give an opinion as to the cause of the conditions. Mrs Tadros has not had any surgery.
39. Dr Joan Chen consultant physician in occupational medicine re-examined Mrs Tadros on 15 March 1999 and reported that day (Exhibit T1 document T100). She had assessed Mrs Tadros on “numerous occasions previously” from 1994. The examination was to “ascertain her fitness for full Mail Officer duties”. Dr Chen diagnosed degenerative right and left rotator cuff disease with a “possible partial tear of the right supraspinatus tendon” which “is essentially a constitutional degenerative condition”. She also found mid-cervical spondylosis “essentially a constitutional condition”, “chronic right ankle synovitis and early degenerative joint disease as a consequence of fracture dislocation” in 1996, and “painful right heel from calcaneal spur (constitutional condition)”. She found Mrs Tadros was not fit for full Mail officer duties. She recommended the following work restrictions:
1. No sustained and repetitive overhead work.
2. No prolonged standing and walking (standing and walking should be restricted to 50% of her full shift or 4 hours maximum).
3. No repetitive heavy manual handling – maximum lifting restriction 7kg.
4. No prolonged and repetitive neck flexion and extension.
40. Dr Chen also stated that
“The above recommended restrictions should apply on a long term / permanent basis, as the conditions listed above (with the exception of the painful right heel) are progressive degenerative conditions which are unlikely to resolve spontaneously”.
41. Dr Robert Cameron, consultant surgeon, saw Mrs Tadros and prepared a report on 31 May 1999. He was requested by Australia Post to provide an assessment of her right shoulder and neck condition, including permanent impairment (Exhibit T1 document T116). He noted her right ankle injury history. Mrs Tadros told him that the Turella canteen had closed in April and she was unsure of her future employment. She also said that she had been getting pain in the left shoulder since late 1998. She said that she had ceased work in February 1999 because of continuing shoulder pain as well as pain in the ankle. The doctor reviewed various X-rays and of her shoulders and cervical spine. He said that material showed minor degenerative changes in the neck and constitutional degenerative changes in the acromion process of each shoulder of a type often associated with impingement symptoms. Physical examination showed only minor restriction of right shoulder movement consistent with minimal impingement and no abnormality in the neck. Dr Cameron assessed zero percent whole person impairment of the neck and 5% whole person impairment of the right shoulder “which is largely of constitutional origin (but which may in part result from the injury)”. He considered that impairment may be reduced by surgery if symptoms warranted it, which could “reasonably be expected to reduce” impairment to zero. He also concluded that “it is not likely that impairment will deteriorate significantly”.
42. Dr Michael Gliksman, occupational physician, saw Mrs Tadros on 28 April 1999 and prepared two reports (Exhibit T1 document T111 and T114). He also saw her on 18 May 2000 and prepared a report on the same day (Exhibit A2). In the later report, the doctor said that Mrs Tadros had told him that her cervical and paracervical pains had deteriorated since he had last seen her and that she had occasional left shoulder pain, although the right shoulder pain was most dominant. Her secondary problem relating to her right ankle had deteriorated in the same period. She experienced significant pain and swelling in the right ankle, even when seated for a prolonged period of time. Walking on hard or uneven surfaces or stairs is particularly provocative. She took Panadeine and Tryptanol 25 mg per day for pain relief and had ceased non-steroidal anti-inflammatory medication because of gastrointestinal side effects. She took Lovan daily for relief of symptoms of depression. Mrs Tadros had increased her work from three to four hours per day “but has not been able to progress beyond that, due primarily to her right lower limb problems”. He noted that she walked with a mild limp favouring her right lower limb. She was of depressed affect.
43. Dr Gliksman’s conclusions were that Mrs Tadros will not be able to return to her pre-injury duties, that the current restrictions remain in place and recommended a reduction in her working hours from four to three per day, and that she would not be able to increase her hours as required by the workplace assessment report or as suggested in the previous reports.
44. The decision the subject of proceedings N2002/867 was based on a report dated 22 May 2002 from Dr Robin Chase, Occupational Physician (Exhibit T2, document T72, pp 282-283). He had also provided reports previously, including 24 October 2000, 12 March 2001 and 30 January 2002. In the latter report he noted the “quite marked secondary osteoarthritis in the ankle” due to which she was partially unfit and recommended restrictions. In the May report, he confirmed that she was fit for her full eight hours per day within the constraints previously referred to. His other relevant diagnoses were of osteoarthritis of the cervical spine and shoulders. Interestingly, at that time he noted that Mrs Tadros’s had a significant improvement in her report of pain and physical examination in relation to her cervical spine and shoulders in comparison to when he had last seen her. He found that she had no significant impairment or work injury in her neck, back or shoulders “Any effects have ceased”.
45. Dr Tadros, who is not a relative of Mrs Tadros, has been her general practitioner since 1988. Various medical reports and medical certificates he has provided were in evidence including Exhibit A3. He also gave oral evidence.
46. The doctor had seen the videotapes (Exhibits R1 and R2) before he came to Court which showed Mrs Tadros undertaking various activities and was taken to various parts of them while giving evidence. Specifically, Dr Tadros was asked to comment about Mrs Tadros’s closing a garage door using her right arm, carrying shopping in her right arm, and her gait. He said that we should not place much weight on what was shown. He considered that day to day chores, such as carrying shopping and closing the garage door, which are done over many years, were learned behaviours which become unconscious. He said that the video showed that Mrs Tadros mostly used her left hand when carrying bags of shopping. He was asked about an instance where Mrs Tadros raised her arm to the level of her head to take a bag of meat handed over the top of a glass cabinet about 1.5 metres high and then carried it for some distance in her right hand. Dr Tadros said that was an unconscious behaviour.
47. Dr Tadros also identified instances on the video tapes where in his opinion Mrs Tadros was limping. This included for the first few steps when getting out of her car and when Mrs Tadros was walking carrying bags of shopping in both hands. He said her pelvis was tilting and she was leaning to one side and limping. Dr Tadros’s opinion in his report of 6 July 2004 was unchanged after having seen the video evidence.
48. In summary, as set out in that report, Dr Tadros’s opinion is that the work related injuries to Mrs Tadros’s neck, right shoulder and right ankle are such that increasing her work hours to full-time would “render her pains severe enough to prevent her from looking after her essential daily needs” (Exhibit A3, report of 6 July 2004 p 3). Attempts to increase her hours to 5 hours a day were unsuccessful because of deterioration in her pain and her condition had not changed.
49. In cross-examination, he explained that from October 2002 his medical certificate referred only to the right ankle as requiring Mrs Tadros to undertake light duties because Mrs Tadros “stopped” him from writing anything about her right shoulder. She said “they” were not going to pay her for her right shoulder. He denied that he was prepared to write inaccurate reports or to say what his patient told him to.
Doctors McGill and Browne
50. Dr McGill is a consultant rheumatologist. The Tribunal had the benefit of four reports from him dated 26 November 1999 (Document T8 in Exhibit T2), 28 August 2002 (two reports) and 16 February 2003 (Exhibit R3).
51. Dr Browne is also a rheumatologist and first saw Mrs Tadros in 1999. (Exhibit T2, document T17, T24, Exhibit T4, document T9.) The Tribunal had the benefit of other reports from him dated 30 October 2003, 23 March 2004, 29 July 2004 and 31 August 2004. Dr Browne’s diagnoses were right rotator cuff tendonitis/impingement pain disorder (of the shoulder) and post traumatic right ankle osteoarthritis.
52. The Tribunal had the benefit of oral evidence from both doctors.
53. Dr McGill also diagnosed post traumatic osteoarthritis of the right ankle resulting from the 1996 injury. He found non-work related cervical spondylosis and degenerative changes to both shoulders. He noted that Mrs Tadros had told him in August 2002 that she had an inability to increase her working hours because of her right ankle although the majority of her work was then performed seated.
54. In relation to her neck and shoulder symptoms, Mrs Tadros had reported to Dr McGill 28 August 2002 that they had improved although “she still sometimes experiences pain at the right side of her neck such as when bending her head forward to look at the mail she is repairing.” Her neck and shoulder symptoms are also more troublesome when the weather is bad. She also said that the she got pain “now and again” in the right shoulder as well as the neck.
55. After seeing the video evidence, both doctors prepared reports in which they changed their previous assessments of the impact on Mrs Tadros of her neck/shoulder pain and ankle pain.
56. Before seeing the videos Dr McGill in his report dated 28 August 2002 found Mrs Tadros’s impairment as 10% according to Table 9.2 (Lower extremity) (which is based on range of joint movement) and 20% in accordance with Table 9.5 (Limb Function – Lower Limb). He found no impairment in relation to her work duties under any other table but found a 5% impairment of her neck and no impairment in relation to her right shoulder (Exhibit R3).
57. In his report of 10 December 2002 Dr Browne had assessed Mrs Tadros whole person impairment as follows: 20% under Table 9.5 (Exhibit T4 document T9).
58. After seeing the videos both doctors assessed her whole person impairment in terms of her right ankle as 0% under Table 9.5 (Limb Function – Lower Limb) and 5% whole person impairment under Table 9.2 (Lower Extremity).
59. Dr Browne’s re-assessment was set out in his report dated 29 July 2004 (Exhibit A5.) In coming to those conclusions, Dr Browne noted the duration of Mrs Tadros’s ability to walk without the need to rest or demonstrating a marked limp or distress, and “she does not demonstrate any difficulty with grades or stairs”. He felt that Mrs Tadros could work normal hours provided that she did not have to stand for prolonged periods or walk for more than half an hour or carry out tasks that require repeated or sustained elevation of the right arm. He noted that while the evidence showed that she was capable of walking for 25-30 minutes at a shopping centre, the “objective radiological and clinical changes or her right ankle, which has significant osteo-arthritis, means that she is prepared to accept a certain degree of discomfort in order to continue with such activity”.
60. However, Dr Browne’s position altered again. He saw Mrs Tadros on 12 August 2004 and reassessed her as having a 10% whole person impairment under Table 9.5 and a 5% whole person impairment under Table 9.2 (report dated 31 August 2004, Exhibit A5). He could not assess impairment under Table 9.4 (function of the upper limb) but assessed for the cervical spine a whole person impairment of 5% under Table 9.6. The doctor watched Mrs Tadros walk along Macquarie Street and observed her gait “favouring the right leg and with stiffness of her right ankle”. He noted that when he viewed the video evidence, he felt Mrs Tadros did have a slight tendency to favour the right leg.
61. He described her work as including placing valuable items in pigeon holes up to shoulder height using her dominant right arm. Mrs Tadros described experiencing recurrent right neck and trapezius pain with headache in the course of her work. She stated that she had reasonable range of movement or her right shoulder and can go shopping. She experienced aching of her right ankle at night, particularly after being on her feet for long periods. She reported pain in her right ankle when walking which she can manage for ½ - 1 hour. Her medication included Tramal and Panadeine Forte.
62. Movements of the cervical spine were limited and she had tenderness. She had full range of movement of the right shoulder with pain at 120 degrees of abduction with some reduction of rotator cuff power. The right ankle was swollen and tender and range of movement reduced.
63. Dr Browne concluded that her duties are likely to aggravate her neck and shoulder disorder (cervical spondylosis and rotator cuff tendonitis of the right shoulder) and therefore she should continue working part-time 4 hours per day. She was similarly restricted to 4 hours per day because of ankle pain with sustained standing and walking. Her right ankle osteoarthritis was aggravated by the requirement to stand and walk for long periods. However, that is contrary to his statement in the report of 23 March 2004 that “she is not required to stand for long periods at work” (Exhibit A5) which we find is consistent with her duties.
64. We prefer the evidence of Dr McGill in this matter. Dr Browne’s assessment on 31 August 2004 depended upon Mrs Tadros’s demonstration in Macquarie Street and her complaints of restricted movements and activities. He has provided three different assessments of the ankle impairment and different assessments of limitations arising from both injuries. We find Mrs Tadros’s evidence exaggerated, inconsistent and unreliable. Her activities shown in the video evidence were not consistent with the pain and restrictions about which she gave evidence. We do not accept the submission made by Mr Foster who appeared for Mrs Tadros that the video was not that clear because it was taken at a distance and that we could not assess her ability to walk up stairs because her feet were obscured when she was doing so. Dr Browne’s assessment on the basis of the video evidence was consistent with Dr McGill’s. In the video we did not observe any limp or difficulty with stairs or difficulty using her right arm to carry purchases. We accept that she has osteoarthritis in her right ankle arising from the 1996 injury and degenerative conditions in her shoulders and cervical spine. The activities Mrs Tadros is required to carry out at work are not demanding on her right shoulder and neck or her ankle. She does not do strenuous work with her hands or arms and does not have to walk very far or often, to carry out her duties. We note Dr Browne’s finding in his report of 29 July 2004 based on the video evidence about her ability to work as set out above which is also consistent with Dr McGill’s opinion.
65. Dr McGill and Dr Browne agreed that Mrs Tadros suffers from the degenerative condition cervical spondylosis which is not caused by her employment with Australia Post. They also agreed she has a 5% whole person impairment under Table 9.6 (Spine) because of that condition. We accept that evidence. However, again we prefer Dr McGill’s assessment that Mrs Tadros’s capacity to work is not affected by this condition.
66. There was some legal argument raised in relation to proceedings N2004/117. The details of the decision are set out at the beginning of this decision. In summary the reviewable decision dated 30 December 2003 varied the determination of 29 October 2003 which denied liability for payment for physiotherapy for the right shoulder and neck. The reviewable decision was that Australia Post’s liability for neck and right shoulder condition “has long since ceased” and therefore Australia Post ceased payment of compensation for that condition. Both parties appreciate that the wording that liability “has long since ceased” is not appropriate following Liu v Comcare (2004) 79 ALD 119. Liability does not “cease” so that a person can never be deprived of his entitlement to claim further compensation relating to an injury if it causes some incapacity in the future.
67. Ms Henderson appearing for Australia Post referred to Plumb v Comcare (1992) 39 FCR 236 and said that estoppel does not arise. I understood her concern to be that the earlier decisions may be thought to give rise to an estoppel, although that was not really relied upon by Mr Foster appearing for Mrs Tadros. We do not consider it necessary to consider this matter further for the following reasons. In the 1995 decision, the Tribunal made a finding that Mrs Tadros had suffered a soft tissue injury to her right shoulder and neck in 1988 which was exacerbated in 1994, and in respect of which she was entitled to weekly compensation for a closed period and for medical expenses. The 2000 decision finding 10% permanent impairment based on those “injuries” was made pursuant to s 42C(1)(a) of the AAT Act.
68. It is clear as described above that Mrs Tadros has degenerative conditions in the cervical spine and both shoulders. That is, a different condition from that the subject of the previous decisions. The matters the subject of Plumb therefore do not arise.
69. As we accept Dr McGill’s evidence, we find that Mrs Tadros’s work does not aggravate those conditions and accordingly Australia Post is not liable for the physiotherapy treatment claimed. This conclusion is reinforced by the s 37 documents in these proceedings, Exhibit T5. Document T3 in that exhibit comprises 11 medical certificates from Dr Tadros. The first 8 refer to diagnosis of “painful right ankle” and cover a period of 3 April 2003 to 21 October 2003. A further three refer to the painful right ankle but also include “painful right shoulder”. They do not refer to the “neck”. They are dated 19 December 2003, 28 January 2004 and 26 February 2004. That is, the medical certificates referred to the right shoulder pain only after the claim for physiotherapy for the right shoulder and neck was rejected on 23 October 2003. I note Dr Tadros’s explanation for not referring to Mrs Tadros’s right shoulder in earlier medical certificates. However, on the evidence we do not accept that Mrs Tadros’s shoulder and arm has prevented her from working in the selected duties as she has claimed.
Decision
70. Accordingly, we affirm the decisions under review in proceedings N2002/867, N2002/1648, N2003/549 and N2003/550. We vary the reviewable decision in Proceedings N2004/117, and substitute for that decision a decision that Australia Post is not liable for any medical treatment for the right shoulder and neck.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 4 August 2004, 5 August 2004, 25 November
2004
Date of Decision 5 May 2005
Counsel for the Applicant Mr G. Foster
Solicitor for the Applicant Cameron Gillingham Boyd
Counsel for the Respondent Miss R.M. Henderson
Solicitor for the Respondent Graham Jones Lawyers
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