Tarabay and Chubb Security Services Limited

[2010] AATA 1044

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1044

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/0899

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELISABETH TARABAY

Applicant

And CHUBB SECURITY SERVICES LIMITED

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe and Dr G J Maynard, Member

Date 22 December 2010

Place Brisbane

Decision  The Tribunal affirms the decision under review.

...............[Sgd]...............................

Senior Member

CATCHWORDS

COMPENSATION – left shoulder and elbow conditions – whether conditions have now resolved – whether ongoing symptoms are attributable to the applicant’s work – little medical evidence to support a link – condition unexplained – decision affirmed.

Safety Rehabilitation and Compensation Act 1988, s 16

REASONS FOR DECISION

22 December 2010 Senior Member Bernard J McCabe and Dr G J Maynard, Member.                 

1.      Ms Elizabeth Tarabay was previously employed by Chubb Security Services Ltd (“Chubb”), the respondent. She processed cash, coin and other papers in a cash room located in a secure building. Chubb accepts Ms Tarabay developed left shoulder and elbow conditions as a result of the repetitive work but it says those conditions have now resolved. Ms Tarabay says the conditions are still present and she still experiences symptoms. She has asked the Tribunal to reconsider Chubb’s determination that it is no longer liable to pay compensation under s 16 of the Safety Rehabilitation and Compensation Act 1988 for whatever it is that ails Ms Tarabay.

The applicant’s work

2.      Ms Tarabay talked about her work at some length in her oral evidence, and in her statement. We also heard from Mr Geoff Smith, the cash room manager at Chubb who was familiar with Ms Tarabay’s work. There was some difference in the details of the evidence but the accounts were broadly similar, and we do not think much turns on the inconsistencies. We are satisfied the evidence establishes that Ms Tarabay undertook repetitive work which occasionally required her to pull, drag or lift heavier loads.

The medical evidence

3.      The medical evidence supports a finding that work of the kind undertaken by the applicant can lead to shoulder and elbow problems. The bulk of the medical evidence before us suggests the applicant experienced problems with her left shoulder and elbow at some stage and that the problems were connected with her work. Chubb certainly accepted liability on that basis. The real issue for determination in these proceedings is whether those conditions have persisted. Chubb says they have resolved. Chubb argues that any ongoing symptoms the applicant experiences are attributable to something else apart from the work she was doing. In those circumstances, we were told, Chubb is no longer liable.

4.      Ms Tarabay relied on the evidence of Dr Wallace, a consultant orthopaedic surgeon. Dr Wallace said the applicant suffers from medial and lateral epicondylitis in both elbows (although we note the applicant has not made any claim in respect of her right elbow) and rotator cuff tendonitis in the left shoulder: exhibit one at p 80.

5.      Dr Wallace discussed the mechanism of injury in the course of his oral evidence. He said the applicant’s repetitive work caused micro-trauma that brings about tiny tears in the tendons. Those tears cause inflammation and pain. Dr Wallace says the tears have not healed and the inflammation persists even though the applicant has ceased work. He said the applicant did not suffer from an underlying condition. He acknowledged the applicant might have a predisposition towards injury, but he insisted there was no evidence of a “constitutional” condition that would explain her current symptoms. He said Ms Tarabay would not be in her current state but for her work-related injuries to her shoulder.

6.      The evidence of Dr Wallace on the existence of an underlying condition finds some support in the evidence of Dr Douglas, who was called by Chubb. Dr Douglas agreed in his report of 18 September 2008 that Ms Tarabay did not have an underlying condition that was aggravated or accelerated by the applicant’s work. He said the applicant suffered from tendonitis of the left biceps insertion and a low grade tendonitis around the left elbow and a mild left rotator cuff syndrome. He agreed those conditions were caused by the applicant’s work. But he disagrees with Dr Wallace in other respects. At the hearing, he said the condition should have resolved after the applicant took time off work. (Dr Douglas actually recommended that course and Ms Tarabay duly took leave but Ms Tarabay said her condition did not improve.) Dr Douglas did not accept that the work-related injuries persisted. He wondered whether the applicant’s apparent failure to recover was attributable to her physical frailty and poor health.

7.      Chubb relied in particular on the evidence of Dr Steadman. Dr Steadman is a well-credentialed orthopaedic surgeon. He is a member of the faculty of medicine at the University of Queensland. He examined the applicant on 6 July 2009 and delivered a report dated 21 July 2009. He noted the applicant’s symptoms, including her pain, in the course of his examination. But he said his clinical examination did not reveal signs that were consistent with the applicant’s symptoms. He commissioned an MRI of Ms Tarabay’s cervical spine, left elbow and left shoulder. There was some degenerative change evident in the MRI study of the neck but that does not concern us here. He said the MRI did not detect any abnormality in the elbow, and only minor accumulations of fluid and changes consistent with mild tendonitis in the left shoulder. He concluded the results of the MRI and the clinical examination suggested the applicant did not continue to suffer from left shoulder and left elbow conditions. He said the evidence of change in the left shoulder might indicate the applicant had experienced an injury in the past but he insisted none of his findings squared with the applicant’s account of her symptoms.

8.      Dr Steadman emphasised that he would expect an MRI to show evidence of change if the applicant continued to have shoulder and elbow conditions. He conceded that an MRI was not always accurate but he said it was the best diagnostic tool available.

9.      Ms Anderson, for the applicant, criticised Dr Steadman’s evidence in a number of respects. She pointed to problems with the history that Dr Steadman had taken from the applicant. She also noted Dr Steadman made comments in the course of his oral evidence which suggested he was inclined to disbelieve the applicant because he was generally sceptical of individuals who brought workers’ compensation claims. Mr Clark, for Chubb, did not concede any of these criticisms but said they made no difference in any event given Dr Steadman’s conclusions were based on objective findings, most obviously the results of the MRI.

10.     Dr Wallace was provided with a copy of the MRI and asked for his comments in a supplementary report dated 7 March 2010. He said:

I note that the MRI scan of the left elbow was reportedly normal however on clinical basis, [the applicant] does indeed suffer from epicondylitis of the medial and lateral epicondyles. The clinical basis for this diagnosis is based on history and examination localising tenderness to these areas. There are no other independent indications of the diagnosis.

11.     We accept there were some shortcomings in the history taken by Dr Steadman, and his overt scepticism of claims brought by applicants in compensation proceedings might raise eyebrows. But we are satisfied after hearing his evidence that he formed his opinion after conducting a careful clinical examination and obtaining objective evidence in the form of MRI studies. Dr Wallace also conducted an examination but the passage we have set out from his report of 7 March 2010 acknowledges there are few independent indications of the diagnosis he prefers. He appeared to rely heavily on the applicant’s account of her symptoms as the basis for his view.

12.     We do not disbelieve the applicant’s account of her symptoms. Mr Clark called her credit into question but we are satisfied she gave her evidence truthfully. We accept she does experience ongoing pain. But we must ultimately be persuaded that the pain arises out of a condition that is causally connected to her workplace. The evidence of Dr Steadman says there is little if any objective evidence to support a finding that the applicant continues to experience a work-related condition. Her pain is, for now, unexplained.

Conclusion

13.     We have indicated a preference for the evidence of Dr Steadman because his view appears to be squarely based on objective observations confirmed by the best diagnostic tool available. Given that finding, we must affirm the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G J Maynard, Member.

Signed: ..............................[Sgd].............................................
  Patrick MacDonald

Dates of Hearing  30 November – 2 December 2010 
Date of Decision  22 December 2010
Counsel for the Applicant              Ms S Anderson
Solicitor for the Applicant                Mr A McKenzie, Maurice Blackburn Lawyers

Counsel for the Respondent          Mr C Clark
Solicitor for the Respondent           Mr P Crethary, Dibbs Barker