Tsembelis and Comcare

[2011] AATA 637

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 637

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5916

GENERAL ADMINISTRATIVE DIVISION		)
Re		ZOITSA TSEMBELIS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Air Vice-Marshal (Dr) T K Austin, Member

Date12 September 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.  

....................[sgd].....................

Ms N Bell
  Senior Member  

CATCHWORDS

WORKERS’ COMPENSATION – whether injury related to employment – whether injuries occurred as notified – whether aggravation of injury – medical evidence – decision under review affirmed.

Safety, Compensation and Rehabilitation Act 1988

REASONS FOR DECISION

12 September 2011 Ms N Bell, Senior Member
Air Vice-Marshal (Dr) T K Austin, Member

1.Zoitsa Tsembelis has worked in the Commonwealth Public Service for 28 years.  In 2006 and until recently she was a Team Leader in a Centrelink call centre.

2.On 17 February 2006 Ms Tsembelis completed a Notice of Injury to her “left shoulder blade/joint” sustained while standing and turning to the right at a whiteboard in a team meeting.  She claimed compensation for that injury in June 2009 and liability was accepted by Comcare for “aggravation of sprain of shoulder and upper arm (left)”.  However, Comcare was not satisfied that Ms Tsembelis required treatment for the injury beyond 1 March 2006.

3.In March 2008 Ms Tsembelis had made a claim in respect of the same incident on 17 February 2006 as well as an incident on 22 January 2008 when she used a pair of scissors to cut a piece of paper.  In this claim she said she had injured her “right side – neck/shoulder blade/right wrist”.  Comcare denied liability for these injuries.  This is the reviewable decision under consideration in this application.

4.The central issue is whether Ms Tsembelis was injured as claimed in the course of her work.  In particular, we must examine whether:

(i)On 17 February 2006 she injured her right shoulder and scapular and upper limb; and

(ii)On 22 January 2008 she injured or aggravated her right wrist.

5.Ms Tsembelis contended she had never injured her left shoulder and scapula in the February 2006 whiteboard incident and that it was always her right side that was injured.  Comcare pointed to the claim made by Ms Tsembelis in June 2009 and to correspondence and contemporaneous clinical notes from her treating physiotherapist.  As to her right wrist, Ms Tsembelis contended it had been affected by the injury to her right shoulder in 2006 and was aggravated by her use of scissors in January 2008.  Comcare contended that her physiotherapist’s clinical notes indicate another precipitator.  Comcare also relied on expert medical opinion to the effect that the contended mechanisms of injury do not explain Ms Tsembelis’ symptoms.

the february 2006 whiteboard incident

6.The Notice of Injury completed and lodged by Ms Tsembelis on 17 February 2006 describes the nature of her injury as “issue with left shoulder blade joint”.  When this document was shown to Ms Tsembelis she said “right and left gets mixed up”.

7.We appreciate that some people have difficulty in distinguishing right from left and that many people have that difficulty sometimes.  However, the anomaly is compounded by the 7 August 2008 report of Ms Tsembelis’ physiotherapist, Mr Marc Muir, who says:

“I treated Zoe on 3 occasions in early 2006 (20/2/06,23/2/06, 1/3/06) for a left cervico-thoracic injury.  Zoe reported suffering this injury whilst writing on a whiteboard at work and suddenly turning to the right.  The main symptoms at initial presentation included left neck and medial scapular pain/stiffness, plus some tingling in the medial scapular region.”

8.Ms Tsembelis simply said this was an error.  We note that Mr Muir’s report is confirmed by the clinical notes of the Illawarra Sports Medicine Clinic.

9.We also note that later in those clinical notes the first record of right side symptoms appears on 11 October 2006, noting right neck scapula pain for four or five days.  This is followed by a workstation assessment in November 2006 that notes difficulty with right shoulder after a change of desk.

10.In view of this evidence and the conflicts with the contention by Ms Tsembelis that she injured her right shoulder in the whiteboard incident and received treatment for that soon after, we cannot be satisfied that her right shoulder and arm was injured as she says.

11.We are confirmed in that view by the opinion of Dr Maxwell who considered that a sharp turn to the right does not explain an injury to the right shoulder.  He said he is unable to make any diagnosis and that the conflicting accounts of right versus left symptoms only add to the confusion.  Nor could he find any injury mechanism that would be responsible for the symptoms experienced by Ms Tsembelis, whether they be right side or left side injuries.

the january 2008 scissors incident

12.Ms Tsembelis said she had injured her right wrist on 22 January 2008 when she was attempting to cut a piece of paper with a pair of blunt scissors.  She said she felt sharp pain in her scapula and right wrist and tingling all down her arm.  She said she now experiences pain on both sides of her wrist.

13.The clinical notes of Illawarra Sports Medicine Clinic on an indecipherable date in February note that Ms Tsembelis had “twisted” her right wrist on the day after she received a massage.  There is immediately above this note another note dated 20 January 2008 by Ms Bout, physiotherapist, requesting a person in the clinic to administer a massage to Ms Tsembelis.  This leads us to the conclusion that Ms Tsembelis told her physiotherapist that she twisted her right wrist on 21 January 2008 – the day before the scissors incident.

14.When this was put to Ms Tsembelis she had no recollection of having twisted her wrist at this time and said the clinical note was wrong.

15.Dr Maxwell considered that he was unable to make a diagnosis of Ms Tsembelis’ right wrist symptoms.  In particular, he said he would not expect cutting with scissors to produce pain.  He said he did not know of any pathological diagnosis for pain on both sides of the wrist.  He considered there had been no injury mechanism.  He also said he saw no sign of radiculopathy.

16.In a report dated 1 April 2008, Brett Haig, a hand therapist said he had difficulty finding the exact location of Ms Tsembelis’ specific pain and problems or the exact “structure involved in causing her discomfort and weakness”.

17.Dr Peter Scougall, a hand surgeon, reported on 11 June 2008 that he could locate no surgically treatable lesion to explain Ms Tsembelis’ wrist symptoms and suggested that the discomfort might relate to hypermobility and posture.

18.Given the evidence and the medical opinions, we cannot be satisfied that Ms Tsembelis injured or aggravated her right wrist on 22 January 2008.

decision

19.The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of N Bell, Senior Member and Air Vice-Marshal (Dr) T K Austin, Member.

Signed:         ...............[sgd].................................................................
           C. Taylor, Associate

Date/s of Hearing  30 and 31 August 2011
Date of Decision  12 September 2011
Appearance for the Applicant   Self-represented
Counsel for the Respondent     David Richards
Solicitor for the Respondent     Vivian Haddad, Dibbs Barker