Tsang and Australian Postal Corporation

[2008] AATA 1157

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1157

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No 2007/0173

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANET TSANG

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr J Campbell, Member

Date23 December 2008

PlaceSydney

Decision The decision under review is affirmed. 

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

Ms N Bell, Presiding Member 

CATCHWORDS

WORKERS’ COMPENSATION – claim for a work-related lower back injury sustained in November 2005 – whether applicant continued to suffer from the effects of the injury to her back sustained during the course of her employment with Australia Post – incident caused a temporary aggravation of a pre-existing degenerative back condition - Decision under Review is affirmed.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

23 December 2008 Ms N Bell, Senior Member
Dr J Campbell, Member     

1.      Ms Janet Tsang began work with Australia Post in 1998 as a Postal Delivery Officer (Night Sorter) at the St Leonards delivery facility.  She made a claim in respect of an incident on 28 November 2005 in which she said she hurt her lower back when she reached over some large letter trays in front of the bin into which she was required to place some letters.  Liability was denied and that original decision was affirmed.  Later, on 18 September 2006, on a reconsideration of own motion, Australia Post accepted liability in respect of “a temporary aggravation of a pre-existing degenerative back condition” and noted that as at that date Ms Tsang was no longer suffering effects of the aggravation and was fit for full hours and duties.

2.      Ms Tsang disputes this and maintains that the effects of the incident still continue.

3.      From this emerges the central issue in this application: did the effects of the incident on 28 November 2005 persist beyond 18 September 2006?

4.      The answer to this question involves a consideration of the nature of the injury suffered by Ms Tsang in November 2005 and the nature and severity of any pre-existing back condition suffered by her.  There were before us competing medical opinions based on differing histories.  The reliability of Ms Tsang’s evidence and the histories given by her of the incident, her previous back pain and her current symptoms are also relevant to our consideration.

ms tsang’s evidence

5.      Ms Tsang’s evidence to the Tribunal was that she was leaning over a row of small postal bins that had been placed in front of the larger postal bin into which she wished to place a letter or letters.  She said she was startled when someone threw a letter or magazine into one of the smaller bins in front of her and she fell.  She said that when she stood up she heard a noise emanating from her back and felt pain in her back.  She said she reported the incident to her supervisor and went to the sick bay, eventually returning to work that day but avoiding heavy lifting.

6.      Ms Tsang said she did not see a doctor about her back until 25 January 2006 because she wished to be assessed by an Australia Post nominated doctor and, although she requested this, it was not provided to her.  Her stated reason for wanting to see a doctor nominated by Australia Post was that such doctors have knowledge of the range of jobs available in Australia Post and would be able to identify jobs that are suitable for her.  She also said that Australia Post does not trust general practitioners – only their own nominated doctors.

7.      Ms Tsang said she has suffered constant pain in her back since the incident and advised her supervisor, Michael Fong, of this repeatedly.  She said she still suffers constant pain and cannot sit without a cushion or on a backless chair.  She said that whenever she lifts more than 10 kilograms her legs hurt.  She said that even before she saw her doctor, Dr Edwina Wong, general practitioner, on 25 January 2006 and the Australia Post nominated doctor, Dr Niranjan Merani, general practitioner, a few days later, she would not lift more than 10 kilograms.  It was not clear how or why she decided on that weight, although she said in cross examination that she had weighed some trays and found that small letter trays were generally no more than 10 kilograms.

8.      Ms Tsang also explained that she swims every day for 20 to 45 minutes in order to care for her back. She also does an exercise program at the gym and at home.  She has had three sessions of physiotherapy, took anti-inflammatory medication for a short time and had approximately 6 to 10 sessions with a Chinese herbal medicine practitioner.  She also tried acupuncture but found it to be of no assistance.

9.      In cross examination, Ms Tsang agreed she had told her general practitioner, Dr Wong, that when she had leaned forward to place letters in the large bin she had drawn back suddenly when someone had thrown something in the small letter bin in front.  She also agreed she had told a rehabilitation consultant at Australia Post that she had been startled by someone throwing a magazine into the smaller bin in front of her and had fallen forward and felt pain in her chest, then stood up and felt pain in her back.  She agreed she had said a similar thing to Dr David Maxwell, Orthopaedic and Spinal Surgeon and to Dr Alexander Woo, Orthopaedic Surgeon.

10.     Ms Tsang also agreed she continued on her normal duties after the incident and up until the Christmas break.  When asked why she delayed seeing her general practitioner until mid-January 2006, she said her doctor normally takes long leave after Christmas and would not have been available to her.  When asked why she did not see another doctor, she said she wanted to wait to see an Australia Post nominated doctor.

11.     Ms Tsang agreed that she had only had three days off work because of her back from the date of the incident to July 2006.  When it was put to her that Dr Merani had certified her on 14 August 2006 fit to lift up to 10 kilograms and to stand for up to three hours, she replied that he only did so because he had been “pushed” by a rehabilitation officer.  It was also put to her that on 6 October 2006 Dr Merani certified her fit to lift 12 kilograms and she replied that it hurt her legs to do so.

12.     When asked by the Tribunal to indicate where the pain in her back is located, she pointed to the right and left lumbar region and down her left leg, to above her knee.  When the clinical notes of Dr Liang, general practitioner, detailing complaints of back pain in February, June and September 1996 were brought to her attention, she said she had no recollection of this.

13.     We also note that in a letter dated 7 March 2006 to Australia Post requesting a reconsideration of the determination dated 16 February 2006, Ms Tsang said she hurt her back by leaning over trays to place letters in a bin behind them.  No mention was made of a fall, a startle, a drawing back or any impact to her chest.  She said she did not consult her general practitioner because she thought the pain she had was “normal” and she considered she could still do her duties.  She said, in her letter, that the Delivery Facility at St Leonards was closed from 23 to 27 December 2005 and from 29 December 2005 to 1 January 2006 and during these times she rested in bed.  She said that when she went back to work on 2 January 2006 the pain continued to increase and she continued to try to see the Australia Post nominated doctor.  She said the reason she preferred to see an Australia Post doctor rather than her own general practitioner was because of all the paperwork her doctor had been required to complete on an earlier occasion concerning an unrelated injury and the delays that ensued.

14.     The witness statement of Walter Stamatalaky, who worked with Ms Tsang, is to the effect that he saw Ms Tsang bend to reach a bin and observed her to be “a little bit out of balance” and next he saw her holding her back.  Tinh My To, another  colleague, in her statement, said that Ms Tsang told her, on 28 November 2005, that she had hurt her back when leaning over to place letters in trays.  We note that neither of the statements mention a fall, a startle, a drawing back or any impact to Ms Tsang’s chest.

15.     Ms Tsang’s descriptions of the incident were inconsistent.  Her explanation of why she failed, when in pain, to consult a doctor for a full month following the incident was curious.  It will be seen below that her histories given to examining doctors were also inconsistent and generally failed to mention her previous episodes of back pain.

ms tsang’s prior back pain

16.     The clinical notes of Dr Liang include notes on the following instances of back pain complained of by Ms Tsang:

● April 1993 – pulled weeds, low back pain, fell on ground on skating, sprained back;

● September 1996 – still recurrent back pain;

● December 1997 – lower back pain;

● July 1998 – low back pain.

17.     When these notes were put to Ms Tsang in cross examination, she had no recollection of the instances of pain recorded in them.

medical opinion

18.     The opinion of Dr John Bentivoglio, Orthopaedic Surgeon, was that Ms Tsang had  L5/S1 discal damage which showed up on a CT scan on 8 March 2006 and on an MRI scan on 11 September 2006 and was further supported by an absent right ankle jerk.  (We note Ms Tsang’s evidence of pain in her left leg)  He agreed, however, that there is no way to be certain when the disc protrusion occurred.  Dr Bentivoglio had been given no history by Ms Tsang of her previous back pain.  Nevertheless, he considered that the incident would be a contributor to her current pain, notwithstanding any previous episodes.

19.     Dr Woo, noted a bulge at L5/S1 and said that it is one of the most common causes of back pain.  He agreed that it was possible that the disc lesion occurred some time before the incident in November 2005 and also agreed that there was no way of differentiating between the calcification shown on the MRI scan at L5/S1, which would likely have been present before the incident, and the disc protrusion.  He said,he believed Ms Tsang’s discal pathology would be related to the nature of her work and “maybe” the incident she reported.  However, he said that Ms Tsang’s basic injury is a strain to her back.  He agreed, in cross examination, that the natural history of a back strain following a minor trauma is for inflammation to occur and then resolve over four to six weeks.  He also agreed that he was dependent on the history given to him by Ms Tsang when diagnosing her condition.  He said she made no complaint to him of leg pain (but did complain of pain in the groin) and did not tell him about her previous back pain prior to the November 2005 incident.

20.     Dr Maxwell considered that the injury sustained by Ms Tsang was a minor irritation of the facet joints that would ordinarily settle with no treatment.  Dr Maxwell noted a calcified disc bulge at L5/S1 shown on an MRI scan and described it as a degenerative lesion almost universal in the 54 year old population.  He said Ms Tsang had given him no history of previous back pain except for one episode of spontaneous back pain many years ago.  He stated that he had not been given a history of current leg pain.

21.     Dr C Selby Brown, Consultant in Orthopaedic Surgery and Orthopaedic Rehabilitation, in his report dated 14 February 2007, said that, in the absence of contemporaneous clinical notes it was “not possible to definitely confirm that Mrs Tsang had an injury to her back at work on 28.11.05  ...” He noted that Ms Tsang had given no history of pain radiating from her back into either lower limb.

22.     The medical opinions in support of Ms Tsang’s contentions are not strong.  Dr Bentivoglio’s disposition towards disc protrusion caused simply by leaning forward, especially in the context of a history of previous back pain and the calcification of the affected area, is not convincing.  His reliance on the absence of a right ankle jerk is undermined by Ms Tsang’s evidence that her pain is in her left leg.

23.     We found Dr Woo’s opinion confusing.  He opined both that Ms Tsang has a back strain and a disc lesion both caused by the incident.  He also referred to the nature of her work as a possible cause of her pain without any exposition of what that entails.

24.     Both Dr Bentivoglio and Dr Woo allowed that it is possible that the disc lesion predates the incident.  They also both allowed that they must rely on the history provided by Ms Tsang in making their diagnoses.

25.     We find Dr Maxwell’s opinion more persuasive, given the apparently minor nature of the incident and his view, even before he was informed of additional previous episodes of back pain, that the lesion at L5/S1 is degenerative. We note that unlike other specialist opinion and in this case, his was given with knowledge of some previous back pain having been experienced by Ms Tsang.

conclusion

26.     The combination of Ms Tsang’s erratic and inconsistent histories and descriptions of the incident and her symptoms; her failure to seek medical attention for a full month following the incident; her return to work on normal duties immediately following the incident; her limited medical treatment since the incident and our preference for the opinion of Dr Maxwell prevent us from being satisfied that the symptoms she suffered as a result of the incident persisted beyond 18 September 2006.

decision

27.     The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate: Felicia Daniele

Date/s of Hearing  28 and 31 July 2008 and 18 November 2008

Date of Decision   23 December 2008
Counsel for the Applicant          Mr M Perry
Solicitor for the Applicant           Slater and Gordon Lawyers
Counsel for the Respondent     Mr B Kelly
Solicitor for the Respondent      Graham Jones Lawyers