Tez and Australian Postal Corporation
[2005] AATA 48
•18 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 48
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N02/1964; N03/1654; N03/1706
Re: GULAY TEZ
Applicant
And:AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
Date: 18 January 2005
Place: Sydney
Decision: The tribunal:
-sets aside the reviewable decision made on 10 October 2003 in relation to the purported cessation of liability under s.14 only, and in all other respects the decision is affirmed (N2003/1654).
-affirms the reviewable decision made on 16 October 2003. (N2003/1706).
-affirms the reviewable decision made on 27 November 2002. (N2002/1964).
Ms Tez has been partially successful with her applications and is entitled to some costs under s.67 of the Safety, Rehabilitation and Compensation Act 1988 in accordance with the general practice direction.
Note: It is considered reasonable that the respondent be liable for 20 per cent of the applicant’s total costs and disbursements.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member
© Commonwealth of Australia (2005)
CATCHWORDS
COMPENSATION – liability accepted for injury to lower back – claim for permanent impairment in respect of lower back - purported decision to cease liability – determination in this respect set aside – disease not work related – permanent impairment decision affirmed – claim for compensation for injury affecting left arm, shoulder and neck – condition not result of employment – decision affirmed – claim that unfit to participate in return to work program rejected – participation in work program decision affirmed – claim for compensation for incapacity for absence from work rejected
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 19, 24 37
March v E & MH Stramare Pty Ltd 99 ALR 423
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Rosillo v Telstra Corporation Limited (2003) 77 ALD 396
Re Liu and Comcare (2004) 79 ALD 119
Power v Comcare (1998) 89 FCR 514
Treloar v Australian Telecommunications Commission (1990) 87 ALR 321,
REASONS FOR DECISION
P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member
1. Ms Gulay Tez (the applicant) has applied to the tribunal for review of the following decisions made by the Australian Postal Corporation (the respondent):
·A reviewable decision made on 10 October 2003 that Ms Tez is not entitled to compensation for her lower back condition. The reconsideration officer further found that Ms Tez is no longer suffering from the effects of a compensable lower back condition that would attract a payment of any benefit under the Safety, Rehabilitation and Compensation Act 1988 (the Act). A reviewable decision made on 10 October 2003 that Ms Tez is not entitled to compensation for absence from work on 30 May 2003 (N2003/1654).
·A reviewable decision made on 16 October 2003 that Ms Tez is not entitled to compensation for an injury affecting her left arm, shoulder and neck (N2003/1706).
·A reviewable decision made on 27 November 2002 that Ms Tez is fit to participate in the return to work program (N2002/1964).
2. At the hearing Mr Grey of counsel appeared for Ms Tez and Mr Kelly of counsel appeared for the respondent. The tribunal heard evidence given by the applicant, Mr L Hang, Ms P Smith, and a number of medical experts. The tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered during the hearing.
background
3. Ms Tez was born on 1 August 1952 in Turkey and immigrated to Australia in 1979. She commenced her employment with Australia Post on 4 February 1994 as a cleaner. In 1998 she started working as a Mail Sorter and Mail Loader, which involved lifting, moving and sorting bags of large letters and parcels.
Lower Back Condition
4. In 1994 Ms Tez sustained severe muscle pain left side and abdomen and right side (T5 of the T documents lodged for the matter N2002/1964; Set 1). In 1997 Ms Tez had a contused back for a day or two and an episode of pain at the beginning of 2002.
5. On 28 June 2002 the applicant experienced a pain in her lower back occurring in the course of her employment with Australia Post. At the time, her duties involved loading and sorting heavy bins of parcels in the Express Post Section. The applicant reported this to the respondent on the 29 June 2002 (T8 Ms Tez visited her local medical practitioner, Dr A Morgan, and was provided with a medical certificate noting she was unfit for work to 6 July 2002 due to lower back pain. (T9 set 1) She returned to work on a graduated rehabilitation program of light duties for five weeks on a part time basis before commencing light duties on a full time basis.
6. On 16 July 2002 the applicant lodged a Claim for Rehabilitation and Compensation for the injury sustained to her lower back (T10 set 1). On 18 July 2002 the respondent accepted liability for the lower back condition (T12 set 1).
7. On 12 June 2003, the Respondent made a determination denying liability for time off work that Ms Tez had taken on 30 May 2003 (T26 of the T Documents lodged in the matters N2003/1654 & N2003/1706 “set 2”)
8. On 21 August 2003, Ms Tez made a claim for permanent injury in respect of the lower back (T45 set 2)
9. On 26 August 2003, the respondent made a determination denying the claim for permanent impairment in respect of the lower back and also determined that the liability in respect of the lower back condition resulting from the incident on 28 June 2002 had ceased on and from 26 August 2002 (T47 set 2)
10. On 10 October 2003, the respondent made a reviewable decision affirming the determination dated 12 June 2003 denying liability for lost earnings on 30 May 2003. It was noted that the certificate certifying her unfitness for work on 30 May 2003, due to flare up of back pain and stress second to chronic pain, was dated 4 June 2003. As the doctor had not examined Ms Tez until four days after the alleged flare up and there was no accepted claim for stress related illness, it was found that there was no clinical evidence to establish Ms Tez was totally unfit to perform even light duties on 30 May 2003.
11. In addition, on 10 October 2003 the respondent made a reviewable decision affirming the determination of 26 August 2003 ceasing liability for the lower back condition resulting from the incident on 28 June 2002 on and from 26 August 2003 (T60 set 2). It was concluded, after review of the available medical evidence, that “the weight of evidence suggests that any minor restrictions in movement are a reflection of her underlying degenerative changes”. As Ms Tez was no longer suffering the effects of the straining injury suffered on 28 June 2002, she was no longer suffering the effects of a compensable injury that would attract payment of any benefit under the Act, including medical expenses, incapacity and permanent impairment.
Left arm, shoulder and neck
12. Ms Tez had a history of bilateral upper limb pain in 2001 requiring 3 weeks of light duties before resuming normal duties. On 8 July 2003, she whilst working in the express area, sorting parcels, Ms Tezhit her arm on a sign on a sorting bin and felt pain on her left elbow (T28 set 2). On 20 July 2003, she made a claim for compensation in respect of the arm injury. She claimed injury to her arm and shoulder as a result of her arm hitting a sign. On 22 July 2003, she provided a statement (T35) in relation to the incident of 8 July 2003 in which she said “… Whilst sorting in this area, I banged my arm hard on a sign on a sorting bin causing injury to my arm near the left elbow. On examination from my doctor It was discovered that I also had a strain injury to my neck shoulder and upper arm which was the reason for the pain and tingling I had been feeling before the accident. I asked for a new P 400 form to explain this on August 3rd 2003 but was denied this by shift manager. … ”.
13. On 6 August 2003, the respondent made a determination denying liability under s.14 of the Act for arm and shoulder injury on 8 July 2003 citing the different complaints diagnosed following her injury.
14. On 22 August 2003, a compensation claim was made in respect of soft tissue injury to the left arm and repetitive strain injury to Ms Tez’s neck and left arm and shoulder arising from repetitive work duties and injury on 8 July 2003. On 22 September 2003, the Respondent made a determination denying liability for any injury or medical condition affecting the Applicant’s left arm, shoulder or neck.
15. On 16 October 2003, there was a reconsideration decision affirming the determination of 22 September 2003 denying liability for left arm, shoulder or neck
Medical evidence
16. On 1 July 2002 Ms Tez’s general practitioner, Dr Morgan, certified Ms Tez unfit to work from 1 to 6 July 2002 due to “lower back pain ? muscular” explaining the way the injury occurred as “sudden onset, progressive lower back pain in the course of lifting and sorting” on 28 June 2002. (T9 set 1)
17. On 4 July 2002, Ms Tez was examined by Dr Papatheodorakis at the request of the respondent who diagnosed a lower back injury, with Ms Tez fit for work with restrictions from 5 July 2002. (T9 set 1)
18. On 5 July 2002 Dr Morgan provided a certificate for restricted hours and duties from 8 July 2002. (T9 set 1)
19. Ms Tez continued to consult Dr Morgan regarding her lower back. Incapacity certificates were provided to the respondent on a continuous basis from July 2002. On 8 July 2003, Dr A Morgan, general practitioner, in a medical certificate provided a diagnosis of “soft tissue injury left elbow & elbow”. Dr Morgan in an undated letter to the respondent referring to the determination dated 6 August 2003 provided a history that on 8 July 2003 Ms Tez presented with trauma to left arm and soft tissue injury was diagnosed. Then on 11 July 2003 Ms Tez presented with persistent pain and progressive numb feeling along her arm up to her shoulder and down to her elbow.
Dr M McGee-Collett, Neurosurgeon
20. On 18 October 2002 Dr McGee-Collett examined Ms Tez at the request of Dr Morgan and reported on 23 October 2002 that Ms Tez complained of ongoing lower back pain and bilateral lower limb pain, since she hurt her back at work. (T30 set 1). He considered her pattern of pain not suggestive of radiculopathy or neurologenic claudication. He found no abnormal neurological signs and review of the plain Xrays and CT scan were inconclusive and he recommended a MRI. He noted she was obese and in his opinion, Ms Tez was not a good surgical prospect. After review of the MRI and re-examining Ms Tez on 13 May 2003, he diagnosed degeneration in the lumbar spine, with some possible narrowing at L4/5, a small disc herniation at L4 on the right and possible slight compression bilaterally (T19 set 2). Although his opinion did not change, he did generalise that he considered Ms Tez to be genuine and predicted it would be unlikely that she would become fit to perform physically demanding work. The tribunal notes that this report is a treating specialist’s report and does not focus on the issue of causation. It is helpful in that it records the MRI findings show a small L4/5 lumbar disc herniation and predicts Ms Tez is not likely to be able to continue to engage in physically demanding work.
Dr D Maxwell, orthopaedic and spinal surgeon
21. At the request of the respondent, Ms Tez was examined by Dr D Maxwell on 24 October 2002 and 22 May 2003. In a report dated 24 October 2002 Dr Maxwell notes he was given a history of no previous back problems or back pain. (T31 set 1). He found there was no specific incident at the time of the claimed injury. At the time of his first report Ms Tez was being upgraded in to Stage 5 of a rehabilitation program and reported persistent and consistent back pain equal in both lower limbs. This was not in the distribution of spinal nerve and therefore was not indicative of radiculopathy. In oral evidence he considered the pain was referred pain from her back. He reported Ms Tez to be over weight at 100 kilograms, found no signs of weakness or sensation loss or diminished reflex, and reported spinal extension, normal flexion (for her excessive weight) but initially reported decreased lateral flexion (mid thigh) but this effectively had changed by the second assessment. Straight leg raising was 75 degrees in both legs and he found no wasting of her calf muscles.
22. Initially Dr Maxwell considered Ms Tez may have a suggestion of spinal stenosis on a poor quality CT Scan. He did not consider her main symptoms were due to nerve irritation. The subsequent MRI showed no evidence of disc protrusion and “despite her complaints of left leg pain there is no hard evidence of radiculopathy”. Dr Maxwell considered Ms Tez ‘s pain was from mechanical overload due to her obesity and possibly of the spinal facet joints. He recommended she exercise and lose of 20 kilograms. Dr Maxwell considered the applicant fit to perform the restricted duties outlined in the rehabilitation program and that she should be able to gradually upgrade her duties.
23. In his report dated 23 May 2003 (T21 set 2) Dr Maxwell had the benefit of an MRI scan performed on 30 April 2003. He stated that MRI did not support the contention that Ms Tez had suffered a permanent work related injury. There was no evidence of disc protrusion and he recorded “despite her complaints of left leg pain there is no hard evidence of radiculopathy”. He did not consider that she had suffered an aggravation or a deterioration of a pre existing condition. He considered that it was possible she was suffering from some mechanical backache but she was fit to return to her normal duties without restrictions.
24. In his report dated 22 May 2003 (T22 set 2) Dr Maxwell assessed Ms Tez incapacity according to the Comcare Tables as being 0% whole person impairment under Table 9.5 ‘Limb Function – Lower Limb’ and 5% whole person impairment under Table 9.6 ‘Spine’, as she had minor restrictions of movement which he considered to be constitutional and not due to any work related injury. In cross-examination Dr Maxwell justified his 0% assessment on the basis that Table 9.5 states assessment under this table is for use when there is neurological damage and this was not present in Ms Tez. The 5% assessment under Table 9.6 was on the basis of near normal range of movement of the lumbar spine. He qualified this assessment stating that her impairment was not related to her work but due to her constitutional degeneration of her lumbar spine.
25. During cross-examination Dr Maxwell agreed there was a possibility that Ms Tez had suffered a temporary aggravation that lasted for some 8 weeks. The aggravation may have resulted from musculoligamentous strain. The pain may have caused a decrease in her usual spinal movement and exercise, thus producing a decrease in muscle tone, which can lead to an increase in pain from the already degenerated facet joint, which may then persist. Additionally, he stated when diagnosing radiculopathy he considered Nerve Conduction studies, particularly when referring to recruitment patterns, are extremely unreliable.
Dr Pierides, Occupational Physician
26. Ms Tez was examined by Dr L Pierides on 26 March 2003 at the request of the respondent. He reported a history and examination similar to that of Dr Maxwell (T10 in set 2). Additional information contained in the report was an explanation that because Ms Tez was “ a fairly large lady”, she caused considerable ‘scatter’- rendering the CT scan to be of poor quality. He also reported a description by Ms Tez of her pain having a burning or aching quality across the lumbar or belt area and radiating into her lower limbs when she had been standing for long periods or at the end of a working day. Ms Tez also told him she was taking no medication and that she was performing home exercises and walking but provided no significant detail. He observed that Ms Tez considered the respondent had been unfair to her and considered this could restrict her rehabilitation program if not addressed.
27. He considered that, as Ms Tez was 51 years of age, overweight and with significant low back degenerative changes, the only reasonable diagnosis he could make was “aggravation of pre-existing degenerative change”. He was reluctant to approve a return to full duties until the MRI report was available.
28. Dr Peirides reviewed Ms Tez’s MRI report on 3 June 2003. He thought it showed minimal disc disease and no definite nerve root compromise (T24 set 2). He also considered the degree of the spinal degeneration was commensurate with her age and this could, in the future, prevent her from continuing in this work. He also considered the degeneration was constitutional and not related to an injury at her work.
Dr R Wallace, Orthopaedic Surgeon
29. Dr Wallace assessed Ms Tez on 17 April 2003 and on 28 April 2004 at the request of the applicant. He provided reports of the same dates and gave telephone evidence before the tribunal. In his first report (T14 set 2) the very brief history indicates little detail other than she experienced lumbar pain at work sorting bins of heavy parcels on the 28 June 2002. She reported the injury but was able to complete the shift. Also she rested over the weekend and reported to her Local Medical Officer, had an x-ray and had 10 physiotherapy sessions without benefit. He found her current complaints were dull, low back pain radiating globally into both legs with numbness. Her pain was worse when walking up stairs, pushing and pulling and was relieved by rest. He reported current work and home activities which were consistent with the general findings, except that he reported Ms Tez noted no changes in her leisure activities. His examination stated she was mildly overweight and showed 50% reduction in lumbar forward and lateral flexion. He measured 2 centimetres less circumference of the left thigh, 1 centimetre less in left calf. This was not reported by any other medical practitioner nor was it incorporated in his diagnosis. He reviewed the imaging films and gave a diagnosis of musculo-ligamentous strain of the lumbar spine with disc protrusion at the L4/5 and exacerbation of pre-existing lumbar spondylosis. He assessed Ms Tez as having whole person impairment of 15% for her lumbar spine injury (table 9.6) and 10% for left leg (Table 9.5) This amounted to total whole person incapacity of 24%.
30. In his second report dated 28 April 2004 Dr Wallace found no change had occurred in Ms Tez’s lumbar spine and reported on her neck and arm pain. The report history was very brief and noted she hit her elbow at work in July 2003 and the next day developed global pain in her left arm. He obtained no history of symptoms prior to her hitting her elbow. At examination he reported Ms Tez complained of pain in her neck radiating to her left breast and globally into her arm to the level of her wrist associated with numbness and was aggravated by movement. He found diminished range of movement in the neck with flexion 30 degrees, extension 20 degrees and rotation 60 degrees. He found Ms Tez to be neurologically intact and assessed her incapacity under Table 9.6, at 5% for her cervical spine and 10% for her left arm, which he considered to be caused by referred pain from her neck.
31. Dr Wallace found a full range of movement in her left shoulder. Dr Wallace found her elbow injury had resolved and found no signs of epicondylitis and a full range of movement of her left elbow. He diagnosed ongoing lumbar disability (unchanged) and recent onset of chronic musculoligamentous strain exacerbating pre-existing cervical spondylosis which had been caused by the nature and condition of her work.
32. In oral evidence, Dr Wallace stated the epicondylitis had healed yet he could not explain how this was consistent with her symptom of difficulty putting on her bra. In general, his opinion that pain in the neck radiating into the arms was related to the nature and conditions of her work was not convincingly justified. When questioned about the presence of any radiculopathy, Dr Wallace introduced the term ‘non-verifiable radiculopathy’, which he explained was a term to explain pain which was generalised but likely to be caused by cervical spine pathology. He further postulated that this might be caused by irritation of spinal nerves rather than focal compression.
33. Dr Wallace assessed Ms Tez had a total whole person permanent disability of 35%.
Dr N McGill, Rheumatologist
34. Dr McGill examined Ms Tez on 17 June 2003 at the request of the respondent regarding her lumbar pain (3 weeks before 8 July) and again on 16 September 2003 regarding both her lumbar and cervical pain. He supplied reports for both examinations. He also reported on an MRI Scan on the 18 May 2004. In his first report, Dr McGill covered her pre-injury medical history of ovarian cyst in later part of 2001, her hand and arm symptoms in 2001, for which she had 3 weeks of light duties and her obesity of many years. He recorded no specific incident or subsequent events consistent with the general evidence outlined above. He obtained a history of deterioration of her back and global bilateral leg during the first few months, but there being no change in her symptoms in the previous 6 months. He elicited some history of recent upper limb pains but when he explored this, the history became vague and referred to the transient self limiting episode in 2001. He considered Ms Tez a vague historian.
35. Dr McGill’s examination found Ms Tez was obese at 97 Kilograms and only 156 centimetres tall. He found Ms Tez had a full range of movement of her arms legs and lumbar spine, but the lumbar spine flexion where she reached her toes was achieved only slowly and with some discomfort, which he assessed at a 5% disability level. The review of her X-rays, CT Scans and MRI showed degeneration of the facet joints particularly at L4/5 and L5/S1 and some minor disc degeneration. Dr McGill considered her severe obesity and degenerative facet joints and ligamentum flavum hypertrophy were significant and her lumbar discs were well preserved for a 50 year old lady, indicating she had no disc injury. Her work increased her lower back discomfort and considered she should avoid repetitive bending as it would increase her back pain.
36. In the report dated 16 September 2003 Dr McGill reviewed his previous history and confirmed the 2001 occurrence of bilateral upper limb pain requiring 3 weeks of light duties before resuming normal duties. Dr McGill weighed Ms Tez and found she had lost 1 kilogram during the last few months and weighed 96 kilograms. He suggested Ms Tez was taking little of her prescribed medication but this was consistent with her oral evidence that she was disliked taking tablets but was taking Panadol regularly.
37. Ms Tez’s history of the second injury was brief but so was the oral evidence relating to this complaint of injury. She had been working for 1 hour on the OCR machine and had developed aching left arm and shoulder. She hit her elbow on a yellow bin while sorting Express Post. This produced a red mark above her elbow to which ice was applied and she continued sorting. The next day she developed global pain mainly in her left arm, which has since continued.
38. On examination Dr McGill reported obesity at the upper range of the scale. Her upper limbs were found to be symmetrical but could not be measured to assess the underlying muscles with any accuracy. Hence they were not measured. Fingers, wrists, elbows and shoulders had full range of movement. The formal assessment of neck movement was restricted to 75% but Dr McGill observed a full range of movement when Ms Tez was distracted. This, together with her reporting light touch depression globally on one side of her body, led him to suspect falsification and/or embellishment. This opinion was reinforced during his testing of muscle power. He observed that Ms Tez gave way during testing of her muscle power, a sign of not making a genuine attempt. This behaviour was not present at the first examination in June 2003 and Dr McGill was of the opinion that there was no genuine weakness.
39. After reviewing the plain X-rays, Dr McGill diagnosed Ms Tez as having constitutional cervical spondylosis of moderate severity. He considered the bump on her arm was minor and unrelated to her on-going symptoms. He considered that these symptoms were not related to any work place injury.
40. Dr McGill considered Ms Tez was fit for full time work although her physical condition was poor and she was overweight. While he considered her current work level appropriate, he thought this could be upgraded with a graduated program avoiding repetitive bending, which could increase her degenerative back disease and increase her pain, particularly while she remains obese. He considered there was a substantial discrepancy between her real capacity to continue work and her perception of her work capacity. Finally he considered the MRI and the extensive neurophysiological testing were not indicated as they would not advance the understanding of her condition because the symptomatology could not be explained on the basis of cervical nerve irritation or dysfunction.
41. Dr McGill also gave telephone evidence to the tribunal. He gave convincing reasons that there was no firm evidence of history of a specific injury or symptoms and signs or any imaging evidence indicating there had been an injury sustained at work by Ms Tez. He quoted the literature of controlled studies that demonstrated no statistical difference between incidence of degenerative spine disease in occupations with significant physical activity and those with very sedentary type activities. The studies showed that inherited factors were significant in the causation of spinal degenerative disease.
42. Under vigorous cross-examination he explained the factors that would convince him there was a work related cause for spinal injury, in general, and specifically for Ms Tez. These were, in general, a history of a specific injury, which was associated with appropriate radicular type symptoms and signs, and supported by appropriate imaging evidence. Specifically to Ms Tez, he stated she would have given a history of lifting particularly heavy mail bag, which caused associated onset of described radicular symptoms and signs in appropriate spinal nerve segments with supportive imaging evidence of narrowing of the related spinal nerve. He also explained that variations of this ideal, total clinical picture would cause him to diagnose likely, unlikely, very unlikely or very likely, connections between to work and injuries occurring while at work.
43. Dr McGill explained his reasons for stating he suspected Ms Tez of falsification and/or embellishment. Her symptoms he considered were vague and non organic and he explained how he could not define whether or not Ms Tez believed what she was saying was true.
Dr M Guirgis, Orthopaedic Surgeon
44. On 14 March 2004, a report was provided by the applicant’s treating Orthopaedic Surgeon, Dr Guirgis, at the request of her solicitors (Exhibit A2). His report presents a very brief and superficial history, and added little detail beyond producing another variation to the history given by Ms Tez about events on the evening of 28 June 2002. Dr Guirgis reported a specific incident of lifting a 19 kilogram parcel which, in all probability, misled him into believing there was a specific work injury. He recorded that her injury had forced her off work for 10 days.
45. His physical examination found ongoing epicondylitis. However, this is at odds with other expert opinions, which were given around this time. The justification of the relationship of Ms Tez’s work and her symptoms are stated as the nature and condition of work. Yet this opinion was also without any justification or consideration and therefore is not of much assistance to the tribunal in deciding the causation of Ms Tez’s alleged injuries.He assessed Ms Tez as having disability according to the Comcare Tables in the following way:
Cervical Spine (Table 9.6) at 5%
Upper Limb Function (Table 9.4) at 10%
Thoraco-Lumbar Spine (Table 9.6) at 10%
Total Whole Person Impairment combined was 23%.
Dr John F Davis, Injury Management Consultant (Occupational Medicine)
46. On 5 April 2004, a report was provided by Dr Davis, at the request of the applicant’s solicitors (Ex A 3). He examined Ms Tez on that date.
47. While the general history recorded by Dr Davis was correct but brief, it missed significant details, such as the pre compensation injury symptoms of lumbar spine and cervical pain, and led him to accept the quoted 19 kg bag as a specific incident. He recorded the incident as repetitively lifting of up to 19 Kg parcels and then twisting to her right to bend and place them on the floor. His physical examination was comparable with the other medico legal expert witnesses regarding range of movement and straight leg raising. His physical examination recorded more subtle variations such as reduced sensation over the ulnar border of left forearm but this did not correlate to her symptoms of global pain and numbness in the arm. He noted there was also evidence of mild epicondylitis (but did not record carrying out any common provocative tests to ascertain the presence of this complaint) and left ulna nerve impingement at cubital tunnel. It is noted that when challenged with the neurophysiological evidence that showed that the ulnar nerve conduction was normal, he stated this evidence would not alter his opinion.
48. Dr Davis assessed her according to the Comcare Guides with 5% whole person impairment for the cervical spine (Table 9.6), 10% whole person impairment for left upper limb (Table 9.4) and 10% whole person impairment for thoraco lumbar spine (Table 9.6). In his report, Dr Davis considered Ms Tez had suffered aggravation of pre-existing degenerative changes which were quiescent prior to her incident of 28 June 2002 and now overtly symptomatic and required restrictions of work place activities. He also considered her to be suffering with cervical disc injuries and chronic strain to the cervical region, which he described as occupational overuse injury, which is consistent with the nature and conditions of her employment with Australia Post for the last 10 years. He maintained her work frequently dictated static loading in both shoulders whilst sorting. Her injury has resulted from cumulative trauma by way of repetitive activities as well as static loading, which would have been contributed to by the totality of employment at Australia Post. Work was therefore deemed to be a substantial contributing factor.
49. Dr Davis’ discussion of causation and explanation of the symptoms was not convincing. He rejected regional pain syndrome, which was appropriate but the alternative of repetitive over use was not justified. In evidence he confirmed that he had not taken any history regarding prior symptoms and development of pain. In cross examination his recommended work place restrictions were shown not to be particularly relevant to Ms Tez’s work situation. This showed the lack of detailed knowledge of the work place and duties that Ms Tez actually performed. This caused the tribunal concern regarding his suggestion that the causation of the injury was due to the nature and condition of her work.
Background -Return to work program
50. On 25 July 2002, a Workplace Assessment report specified a proposed upgrading program, pending medical approval, setting out six stages of duties (T14 set 1). On 30 July 2002 the respondent made a determination that Ms Tez should continue to participate in a rehabilitation program commencing on 30 July 2002 for 6 hours per day, 5 days per week for the duties and restrictions set out in the Workplace Assessment report dated 25 July 2002 (T17 set 2).
51. On 16 August 2002 Dr Morgan provided a medical certificate that Ms Tez was fit for suitable duties (Stage 2 / 3) from 19 to 31 August 2002 (T9 set 2). On 2 September 2002, the respondent made a determination which required Ms Tez to continue to participate in a rehabilitation program commencing on 2 September 2002 for normal hours for the duties and restrictions set out in Stage 4 of the Workplace Assessment report dated 25 July 2002 to upgrade to Stage 5 on 9 September 2002 (T23 set 2). On 27 September 2002 Dr Morgan provided a medical certificate that Ms Tez was fit for suitable duties (Stage 4 / 5) from 30 September to 15 October 2002 (T9 set 2).
52. When Dr Maxwell examined Ms Tez on 24 October 2002, he had been given a case history for Ms Tez as set out in the respondent’s letter to him dated 8 October 2002 (T27 set 1). The case history recorded the injury, initial diagnosis and that the history of Ms Tez’s upgrade program. He was advised that on review on 27 September 2002 Dr Morgan had certified Ms Tez fit for restricted duties, namely stage 4 & 5 of the workplace assessment.
53. In Dr Maxwell’s report dated 24 October 2002 (T31 set 1), in answer to the question: “In your opinion is Ms Tez fit to perform restricted duties as outlined in the attached workplace assessment of 23 July 2002. Please comment over what time frame you would expect Ms Tez to resume pre-injury duties?” he answered: “I consider she is fit to perform restricted duties as outlined in the workplace assessment on 23 July 2002. I consider that she should be able to gradually upgrade her duties. I consider she is fit to perform normal hours including overtime plus adhering to the restrictions.”
54. On 24 October 2002 the respondent made a determination pursuant to s.37(1) of the Act requiring Ms Tez to continue to participate in a rehabilitation program from 24 October 2002 for normal hours performing the duties and restrictions set out in the Workplace Assessment report dated 25 July 2002 and noting that Ms Tez was currently participating in Stage 5 of the proposed upgrading program. The material taken into account in making the determination was the medical certificate dated 15 October 2002 issued by Dr Morgan that Ms Tez is fit for stage 5 of the proposed upgrading program. (T32 set 1).
55. Stage 4 of the Workplace Assessment report dated 25 July 2002 was for 1 week and relevantly included the restriction, relating to express sorting duty: ”No lifting > 12 kgs”.
56. Stage 5 of the Workplace Assessment report dated 25 July 2002 was for 1 week duration and relevantly included the restriction, relating to both express sorting duty and dock duties: ”No lifting > 14 kgs”.
57. On 30 October 2002 Dr Morgan provided a medical certificate that Ms Tez was fit for suitable duties from 30 October 2002 to 16 November 2002 noting that Ms Tez had capabilities for lifting up to a maximum of 10 kilograms (T9 set 2).
58. On 6 November 2002 MsTez requested a reconsideration of the determination dated 24 October 2002 (T35 set 1). Ms Tez asserted it was Dr Morgan’s intent on 15 October 2002 that she try lifting weights heavier than 8 kilograms, though only graduating to heavier weights when it could be maintained without discomfort. She did not consider that it was appropriate for her to be lifting 14 kilograms as she was still experiencing pain whilst lifting trays between 8 –10 kilograms at work. She further asserted that the weight limit for mailbags on the dock was 16 kilograms and that there was no indication of the weight of the bags before lifting them. She therefore contended that it was not a safe place for her, in her condition, to work. Ms Tez provided a medical certificate from Dr Morgan dated 30 October 2002 specifying a lifting limit of 10 kilograms.
59. On 18 November 2002 Dr Morgan provided a medical certificate that Ms Tez was fit for suitable duties from 18 to 30 November 2002 with capabilities noted as being as before, which would be the lifting limit of 10 kilograms.
60. In a reviewable decision dated 27 November 2002 the respondent affirmed the determination of 24 October 2002 under s.37(1) of the Act that the applicant was required to participate in Stage 5 of the upgrade program.
61. On 30 November 2002 Dr Morgan provided a medical certificate that Ms Tez was fit for suitable duties from 1 December to 21 December 2002 with the notation “trial Stage 5”. The next certificates up till 2 May 2003 provided “stage 5, no pushing or pulling”.
62. Ms Tez was extensively cross examined regarding her duties before her back injury. She described the duties she carried out on the sorting machines and the types of items handled and their weight. She agreed that all duties were rotated hourly. Generally all lifting was at waist height and little bending was required, although she maintained the need to push and pull. The weight lifting level was 16 kilograms and there were mechanical aids available to assist with greater weights. She also acknowledged that in some areas there were other staff members available to help with lifting bags over 16 kilograms and she could ask a workmate to help her. She could also leave heavy bags. She agreed that she was able to estimate the weight of bags by looking at them. She maintained that sometimes she had to lift heavy bags if everyone else was on light duties, because she could not just leave them. The weight of some bundles of mail handled in her duties was no more than 7–8 kg. Some duties did not involve lifting. She agreed that she had been working on terminating express post parcels in the previous 2 weeks to the back injury and she agreed those duties would require minimal back bending.
63. Ms Tez described her back injury as lower back pain coming on gradually over several days before becoming severe on 28 June 2002, while lifting express mail (parcels) into a ULD. She could not recall any particular incident other than there were many overweight parcel and bags that evening. The pain became severe after the mid shift meal, around 2.30 am, about two thirds of the way through the normal Friday evening shift. She finished the shift and went home and rested over the weekend. The pain became worse and spread to both her legs. She reported to her GP, Dr Morgan on Monday 1 July and was given a medical certificate that she was unfit for work for one week because of “progressive low back pain - ? muscular”.
64. After the injury she told her supervisor that she had been lifting a particularly heavy bag when she felt the pain. She said there was a lot of bending required in loading the ULD because she would have to put a full tray in the ULD and to do that, she had to twist, push and pull. In cross-examination she said that there was bending required in that she had to bend to put the parcel in the ULD because she could not throw it in and break customer’s parcels. She disagreed that because the floor of the ULD was at waist level, that there was no bending required, but said that she had to bend to put her hand in the ULD to put the parcel in there. Regarding her medical examination by Dr Guirgis, she said she told him that she lifted more than 16 kilograms in weight and not just one bag. She could not explain why he recorded her lifting one parcel of 19 kilograms in weight. Her evidence explaining what she had told the doctor and whether she recalled lifting a particularly heavy bag that evening was confused and unclear.
65. Following the injury, Ms Tez did not adopt the usual procedure of phoning the Mail Centre to inform them she had a medical certificate declaring her unfit for work, then delivering the certificate when she returned to work. Instead, she had her husband drive her to work at the time of her normal shift commencement and delivered the certificate by hand. The tribunal accepts that the medical certificate was handed in on the 1 July 2002 and considers this caused inconvenience to the mail centre, as they would not have been able to organise a replacement for the shift. Her appearing at work confused her supervisor, Mr Lap Hang, who seems to have presumed she could work and so directed her to do restricted duties. She complied, not only that night, but the next as well. She maintained that she was told that she had to work notwithstanding her certificate. Mr Lap Hang and Ms Pat Smith, an administration officer, both gave evidence that they understood Ms Tez had thought her medical certificate was for light duties.
66. Australia Post management claimed they did not become aware of the non- compliance with the Medical Certificate until the Wednesday morning. Ms Smith then took appropriate action by instructing Ms Tez not to attend work that evening and arrangements were made for Ms Tez to be examined by respondent’s nominated Medical Officer, Dr Papatheodorakis, on 4 July 2002. He subsequently declared her fit for restricted light duties for 6 hours per day for 5 days per week to commence, not that evening, but the shift at 10 pm on 5 July 2002. Ms Tez consulted Dr Morgan, who agreed with Dr Papatheodorakis’s return to work plan of duties but insisted Ms Tez not resume work until the Monday evening of 8 July 2002.
67. The tribunal notes Mr Grey’s comment “I know this issue has probably assumed far more importance than it deserves ” and finds this incident demonstrates a failure of communication and confusion at that time. It does not indicate any sinister management problems and as such is of little importance other than showing Ms Tez had limited understanding of processing of medical certificates.
68. The fact that Ms Tez did attend and perform light duties on the Monday and Tuesday evening shifts does indicate she was capable of such duties. In general the tribunal placed little weight on the administrative confusion.
69. Ms Tez did return to work on 8 July 2002 at stage 1 (8 - 30 July) of a rehabilitation plan and gradually upgraded her duties under the plan until she injured her left elbow on 8 July 2003.
70. Ms Tez gave evidence that during a shift on 8 July 2003, her supervisor had sent her to the OCR machine. There were full trays for loading. She had been working for one hour when she felt some pain in her left shoulder and her back when operating that machine. She told her supervisor and left that duty and commenced working in express post sorting. She hit her elbow on a metal bin. She kept working but she felt pain and two hours later she complained to her supervisor. They lifted her sleeve and saw a red mark, which they iced. This injury caused her pain down the left lateral side of her arm and a red mark above her elbow. Ms Tez claimed she always had trouble with the OCR machine, which caused her shoulders to ache and she had reported it twice before. She acknowledged she rarely worked on the OCR machine. But on 8 July 2002 she had used the OCR and her left shoulder pain was present before she hit her left elbow on the bin. (She did not report this to Dr Wallace, Dr Davis or Dr Guirgis,) She thought she had told Dr Wallace, Dr Davis and Dr Guirgis about the pain she felt on the OCR and not from just hitting her elbow later that night. She also thought she had told Dr Morgan on 8 July 2002 about the shoulder pain. She said it was not an error that on 11 July 2002 Dr Morgan recorded that she was suffering persistent muscular pain in right shoulder arm and elbow. It was the same problem, because if she was sorting quickly, she suffered pain in the right side as well. She submitted a further claim for compensation on 20 July 2002 to explain the earlier claim. She felt that the respondent had not properly understood the nature of her claim. She disagreed that she put in the further “explanatory” claim because of what Dr Morgan had told her was shown by the scan she had had 3 days after the injury.
71. The tribunal considers the reporting of symptoms by Ms Tez was at this time confusing and not clarified much by Dr Morgan’s medical certificates for initially 3 days and then another week after the cervical X-rays showed degenerative changes in the cervical region.
72. Ms Tez then resumed duties doing small letter sorting and occasional express post. Despite a new rehabilitation plan, Ms Tez’s level of duties has not increased to full duties as planned and has not changed significantly since her onset of overt cervical pain. It appears that this compromise was reached because of her complaint that full 14 to 16 kilogram packages caused her to cease work because of pain.
73. Ms Tez also claimed she was incapable of doing her normal domestic tasks and was heavily reliant on her husband and sons to help with these tasks. Her evidence gave little clear insight into the degree of her incapacity, as she failed to give details and spoke in generalities, such as she “always takes panadol”, and “always have pain”. These type of comments gave little insight into what was happening. Her evidence was supported by the statements of her husband and son but these added little detailed, quantitative evidence relevant to the degree of her incapacity and disability. Her oral evidence regarding the details of her swimming and walking exercise was confusing. Little detail could be elicited except that she appears to have previously swam or walked no more than a few times a week. Since the accident she tries to walk because she needs the exercise but she swims much less. She is still able to walk for half an hour, 15 minutes to the shops and back.
74. Generally the tribunal found Ms Tez’s recollection of specific events to be general and lacked clear detail.
consideration and findings
75. For the applicant, Mr Grey submitted that Ms Tez had peformed her work with no difficulties, other than one or two prior episodes of brief duration, when in the course of heavy work she suffered the onset of pain in her back which continues. Following the injury on 28 June 2002, Ms Tez returned to work because she believed her medical certificate had not been accepted.
76. We note the applicant’s submission that the question of causation was to be resolved by application of common sense. He maintains the correct test for causation is that if something is medically possible and there is a temporal connection, then the probability is that there is a causal connection unless there is some reason to say otherwise. He cited March v E & MH Stramare Pty Ltd and anor 99 ALR 423 as authority for common sense basis to the question of causation.
77. Mr Grey submitted that there is an absence of evidence of discontinuity showing when the aggravation from Ms Tez’s injury was completely replaced by something else. There is therefore no basis for ceasing liability for the back injury. He noted Dr Maxwell’s evidence that Ms Tez may have experienced an aggravation of her degenerative spine for 6 to 8 weeks, but in becoming deconditioned by lack of exercise, extra loading has been placed on the facet joints and she has had pain continuing from that source. He submited that it followed that once the condition is symptomatic there is no basis for saying that the source of the symptomatology caused by the aggravation ever resolves. He submitted that her upper spine problems have been contributed to by the nature and conditions of her work and hitting her elbow. Her complaints are ongoing and there is no discernable end date where that aggravation has been replaced by something else.
78. In relation to stage 5 of the rehabilitation program Mr Gray submitted that the evidence of Drs Davis, Wallace and Maxwell was that a weight limit of 14 kilograms was too high. Suggesting pain relief to enable her to lift such weights was unacceptable.
79. For the respondent, Mr Kelly submitted that the medical evidence available at the time of the determination for the rehabilitation program stage 5 duties was that she was fit for those duties. He submitted that it is quite clear that the pathology demonstrated on investigation is degenerative in nature and the injury, if there was one, was by aggravation only.
80. It is clear from the combined decisions of the Federal Court in Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Rosillo v Telstra Corporation Limited (2003) 77 ALD 396, and the tribunal in Re Liu and Comcare (2004) 79 ALD 119, and notwithstanding the earlier decision in Power v Comcare (1998) 89 FCR 514, that it would be contrary to the Act to cease liability for the injury, the subject of a prior determination.
81. A determination under s.14 will include findings; amongst other matters that the employee has suffered an injury pursuant to s.4(1) and that the injury has resulted in death, incapacity for work or impairment. The time at which the respondent’s liability will give rise to a present obligation to make payments is determined by other sections of the Act. Therefore the decision made 10 October 2003, affirming the determination made 26 August 2002 in so far as it related to ceasing liability for compensation for Ms Tez’s lower back condition, is set aside.
82. The medico-legal witnesses’ clinical histories, together with the documentary evidence, has greatly assisted the tribunal especially considering Ms Tez’s evidence at times lacked specific detail. Both Counsel made submissions regarding Ms Tez’s credit. The tribunal considers Ms Tez is not a reliable historian. We come to that conclusion based on our observance of the evidence she gave, but more importantly taking account in the discrepancies in her evidence compared with the histories taken and evidence given by the expert witnesses.
83. The tribunal prefers the expert evidence of Dr McGill, which was supported by Drs Maxwell and Pierides. These specialists all considered the radiological imaging did not show significant disc pathology whereas Drs Wallace, Davis and Guirgis considered the radiology did show disc pathology, inconsistent with the absence of radicular symptoms and signs. Therefore the opinions of Drs Wallace, Davis and Guiridis regarding causation are regarded as less persuasive.
84. The tribunal has also considered the reliance on controlled studies by Drs McGill and Maxwell brought scientific analysis and logic to the decision regarding the differentiating between work related injury and non work related, progressive naturally occurring, degenerative spinal disease. In particular, Dr McGill’s oral evidence was clear, was tested by cross examination and was found to be the best explanation.
85. Dr McGill outlined the factors that would convince him there was a work related cause for spinal injury in general and specifically for Ms Tez. These were in general, a history of a specific injury, which was associated with appropriate radicular type symptoms and signs supported by appropriate imaging evidence. Specifically to Ms Tez, he said she would have given a history of lifting a particularly heavy mail bag, which caused an associated onset of described radicular symptoms and signs in appropriate spinal nerve segments supported by imaging evidence of supportive of narrowing of the related spinal nerve. He also explained that variations of this ideal, total clinical picture would cause him to diagnose variations in the degree of connection between work and injuries occurring while at work.
86. Considering all the medical evidence the tribunal makes the following findings regarding Ms Tez’s back and left arm, shoulder and neck condition.
·There was no clear incident of injury in 2002 except possibly for the lifting of the “19 kilogram bag”. This was not a specific incident of a measured weight but one of a series of suspected heavy mail bags on one particular evening, which was preceded by several nights when less severe pain was experienced.
·In 2003 there was a specific incident, but it was a minor, self limiting contusion above the elbow which is not related to the gradual onset of degenerative cervical spondylosis, which was the cause of the on-going referred pain from the neck.
·The symptoms and signs reported by the medico-legal expert witnesses could not be interpreted as indicating a specific spinal nerve irritation. This was because there was no evidence of any relationship to radicular pain as the pain description was of global pain in the limbs, which is typical of non-organic pain. This applied to both the lumbar and cervical pains described by Ms Tez.
·The cervical and lumbar imaging evidence, as interpreted, showed no hard evidence of any specific spinal nerve compression or irritation of the cervical and lumbar spine.
87. The reviewable decision made 10 October 2003 also affirmed a determination made 26 August 2002 denying liability for Ms Tez for permanent impairment in relation to her back injury. The Act makes provision for liability as follows:
Section 24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
…
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved guide.
88. The Act contains the following relevant definitions in s.4 of the Act:
aggravation
includes acceleration or recurrence.
ailmentmeans any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
`(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; ...
89. We note the applicant’s submission on the correct test for causation but we prefer the view expressed in Treloar v Australian Telecommunications Commission (1990) 87 ALR 321, a case concerning the previous Commonwealth compensation legislation, the Federal Court said (at 328):
The causal connection must be established on the balance of probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
90. The tribunal finds that Ms Tez has moderately severe lumbar progressive degenerative disease which is a disorder or morbid condition and thus an ailment. It is aggravated by her obesity and makes her more susceptible to recurrent musculo-ligamentous injuries which cause temporary exacerbation of her symptoms at work and at home. Her degenerative disease is not caused by work and would have caused her recurrent painful episodes as time progressed, irrespective of the type of work she undertook. Thus the lumbar condition is not work caused or aggravated by work. Any impairment suffered by Ms Tez for her lumbar condition is not work related and is not compensable under the Act.
91. The tribunal affirms the reviewable decision made on 10 October 2003 that affirmed the determination dated 26 August 2003 denying the claim for permanent impairment in respect of Ms Tez’s lower back condition.
92.The Act makes general provision for liability:
Section 14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. …
93. The tribunal finds that Ms Tez has moderately severe cervical progressive degenerative disease which is a disorder or morbid condition and thus an ailment. It is aggravated by her obesity and makes her more susceptible to recurrent musculo-ligamentous injuries which cause temporary exacerbation of her symptoms at work and at home. Her degenerative disease is not caused by work and would have caused her recurrent painful episodes as time progressed. The work makes no relevant contribution to the disease’s progress.
94. Accordingly, the tribunal finds that the cervical condition is not caused by the nature and conditions of Ms Tez’s work or an injury to her elbow, nor was it aggravated by her employment.
95. The tribunal affirms the reviewable decision made 16 October 2003 that Ms Tez is not entitled to compensation for an injury affecting her left arm, shoulder and neck
96. The issue for consideration regarding Stage 5 Rehabilitation Program is whether in making the determination pursuant to s.37(1) of the Act, the respondent has had proper regard to the provisions of s.37(3).
97.The Act contains the following relevant provisions:
s.37(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
...
s.37(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
98. It is accepted that Dr Maxwell’s report dated 24 October 2004 did not specifically address whether Ms Tez was fit for stage 5 duties when he examined her. However, he was asked this question in evidence after being given a more detailed history, and he agreed that he considered that as at the date of the report, 24 October 2002, Ms Tez was fit for stage 5 duties. It is noted that he also said in evidence in the context of her current level of fitness for work and on the basis that an orthopaedic surgeon had recommended a permanent restriction of 5kg, that when he saw her in 2003 (23 May) he felt she could probably lift 10 kilograms and the need for this restriction was her weight and degenerative changes in her back.
99. Ms Tez had also objected to progressing to stage 5 because of the pain she experienced lifting lesser weights and that she could not easily determine which bags weighed more than 14 kg, when the weight limit of bags was 16kg. We note her evidence that she agreed that she was able to estimate the weight of a bag by sight and that she did not have to lift a bag she considered weighed more than 14 kg.
100. Dr Morgan had certified Ms Tez fit for stage 4 and 5 duties on 27 September 2002 and stage 5 duties on 15 October 2002. The basis for Ms Dr Morgan certifying Ms Tez fit to lift 10 kgsin November 2002 and then reverting to trial stage 5 duties in December 2002 is not clear. It is noted that Ms Tez claimed in her letter that Dr Morgan’s intention in the certificate of 15 October was for Ms Tez to increase the weights she was lifting above 8 kilograms and if she felt pain to stop, only graduating to heavier weights when it could be maintained with comfort. This does not seem consistent with the history of previous medical certificates, the stage in the program that she was at and the fact that certificates for “stage 5 duties” were issued for many months after December 2002. Ms Tez’s complaints of pain must be considered in light of Dr Morgan’s many certificates certifying the weight restriction to less than 14 kilograms.
101. We therefore consider that the respondent had proper regard of the matters referred to in s.37(3) in making the determination on 24 October 2002 and properly considered Ms Tez fit for stage 5 duties set out in the Workplace Assessment report dated 25 July 2002. The tribunal affirms the reviewable decision dated 27 November 2002.
102. In relation to incapacity, the Act makes the following provision:
s.19 (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
103. Ms Tez is claiming compensation for incapacity as a result of her injury to back for her absence from work on 30 May 2003.
104. There is a medical certificate dated 3 June 2003 that assesses Ms Tez unfit for work on 30 May 2003 yet fit with restrictions from 31 May 2003 to 7 June 2003 (T25 set 2). Ms Tez does not appear to have been examined by Dr Morgan on 30 May 2003. We do not accept that the certificate dated 3 June 2002 is evidence of Ms Tez’s condition 4 days before the examination on 3 June 2003.
105. Ms Tez could not explain why she did not attend work on 30 May 2003. The tribunal accepts the respondent’s submission there was no specialist medical appointment for that date apparent in the material and Dr Morgan’s notes show that Ms Tez was seen on 31 May 2003 suffering from an upper respiratory tract infection and mention is also made relating to the back injury. But a certificate for the previous day is not in the material before us.
106. The tribunal finds that is more likely than not, that Ms Tez did not attend work on 30 May 2003 for reasons unrelated to work and probably because she was suffering from an upper respiratory tract infection. The tribunal therefore affirms the reviewable decision made on 10 October 2003 that Ms Tez is not entitled to compensation for absence from work on 30 May 2003.
107. In conclusion, the tribunal sets aside the reviewable decision made on 10 October 2003 in relation to the purported cessation of liability under s.14 only, and in all other respects the decision is affirmed (N2003/1654). The tribunal affirms the reviewable decision made on 16 October 2003. (N2003/1706). The tribunal affirms the reviewable decision made on 27 November 2002. (N2002/1964).
108. Ms Tez has been partially successful with her applications and is entitled to some costs under s.67 of the Act in accordance with the general practice direction. We consider it reasonable that the respondent be liable for 20 per cent of her total costs and disbursements.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member and Dr P D Lynch, Member:
Signed: .....................................................................................
AssociateDates of Hearing 20, 21 May and 20 August 2004
Date of Decision 18 January 2005
Counsel for the applicant Mr L GreyCounsel for the respondent Mr B Kelly
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