Waghorne and Australian Postal Corporation
[2008] AATA 1133
•18 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1133
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2005/0534
GENERAL ADMINISTRATIVE DIVISION ) 2008/3814 Re TRACY WAGHORNE Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr C Campbell, MemberDate 18 December 2008
PlaceSydney
Decision The decisions under review are affirmed ..............................................
Ms N Bell, Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – Whether lower back pain, neck and other pain caused, or aggravated by work incident - Decision under Review is affirmed.
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
18 December 2008 Ms N Bell, Senior Member
Dr J Campbell, Member1. Ms Tracy Waghorne began work with Australia Post in 1997 as a Cleaner at the Wentworthville Delivery Centre and then as a Postal Sorting Officer (Night sorter) at the Girraween Delivery Centre. She complains of back, neck and other pain caused by her employment, and which she says incapacitates her for work. She also complains of a psychiatric condition that she says is a sequella of her back pain. The application concerning a psychiatric condition will stand or fall on the success of her application in relation to her claimed physical condition.
2. Ms Waghorne maintains that two main incidents gave rise to her back, neck and other pain:
i) an incident in November 1999 in which she was directed by her supervisor to move two steel cage containers known as Unit Loading Devices (ULDs) full of mail, stacked one on top of the other on a weighing platform, by using a floor jack with malfunctioning brakes;
ii) an incident in October 2000 in which she lifted a tray of letters and magazines.
3. The truth of Ms Waghorne’s versions of these events is disputed by Australia Post. That dispute involves the evidence of Ms Waghorne’s supervisors and the evidence of her then treating general practitioner, Dr Julia Kusuma, whose contemporaneous clinical notes contradict her versions of events.
4. Ms Waghorne describes a wide range of symptoms in her back, neck, shoulders, arms and elsewhere that she says are the direct result of the incidents and, to a lesser extent, of the nature and conditions of her work. Australia Post disputes the veracity of Ms Waghorne’s reporting of her symptoms and also disputes that any symptoms she experiences are the result of her work. That dispute involves the reports and oral evidence of a range of medical practitioners.
5. As to Ms Waghorne’s claimed psychiatric condition, Australia Post disputes that she suffers from any condition at all.
6. The issues we must consider are:
i) whether the incidents as alleged by Ms Waghorne took place;
ii) whether physical symptoms experienced by Ms Waghorne are due to her employment with Australia Post; and
iii) if we find that Ms Waghorne has a compensable physical condition, whether she suffers from a psychiatric condition that is a sequella of her physical condition.
did the alleged incidents take place?
7. Ms Waghorne said that in October 1999 she was directed by her supervisor to push a floor jack loaded with two full ULDs off a weighing machine platform. She said she suffered a jarring injury to her lower back and pointed to the mid line, lower thoracic, upper lumbar area. She maintained her supervisor told her she could not claim compensation for the injury because she had not been wearing appropriate footwear and was not supposed to be using the floor jack in that way. Consequently, she said, she did not give notice of her injury. She said she could hardly walk and was driven home. She described herself as being in “severe agony”.
8. Ms Waghorne said she saw Dr Kusuma on the next day, who, she said, prescribed Valium and Panadeine Forte and gave her a certificate for two weeks off work. Ms Waghorne said the pain continued throughout the following months.
9. Ms Waghorne then described an occasion in October 2000 when, after a heavy night at work, she went home “crying in pain”. She said she saw Dr Kusuma again and asked her not to record the matter as a work-related injury. She said that, although Dr Kusuma was reluctant, the doctor suggested that she describe the injury as arising from Ms Waghorne lifting a pram. Ms Waghorne said she agreed with the doctor doing this.
10. Ms Waghorne said that she returned to work a few days later at the insistence of her supervisor, Pam. She said she was lifting a box of magazines and books and screamed because it “ripped right across” her shoulder blades. She said the pain went “straight down (her) back and into (her) arms”. She also said she lost control of her bladder. She pointed to the lower-thoracic, upper lumbar region of her back. She said Pam asked her to finish the tub she had been working on and when she tried to do so the pain went down her arms and neck and she was unable to continue. She was driven home by a colleague.
11. She said she saw Dr Kusuma the next day. She said this time there was no talk about whether or not to make a claim for compensation. She simply told the doctor what had happened and Dr Kusuma wrote that down. She told Dr Kusuma she could not move her neck or her arms.
12. When it was put to Ms Waghorne that Dr Kusuma’s notes on 1 November 1999 record that Ms Waghorne was lifting three trays containing letters, weighing 15 to 16 kilograms when she experienced “right lower back pain across lumbar area” Ms Waghorne denied having told the doctor this.
13. In cross examination Ms Waghorne conceded that after November 1999 and up to October 2000 she had only a few days off work for back pain. She said, however, that was probably because she had not wanted to make any claim for compensation and she didn’t want Australia Post to know anything about her back. She said she wore “Deep Heat” and used hot water bottles and took tablets to cope with the pain.
14. When asked in cross examination why it would be that Dr Kusuma’s notes of her attendance on 3 October 2000 say that she suffered lower back pain when she lifted a pram, Ms Waghorne said it was because Dr Kusuma asked “what will I write? Do you want me to write about your back?” and either Ms Waghorne’s daughter, who was present, or the doctor suggested writing that she had lifted the pram. Ms Waghorne agreed that she was suggesting that Dr Kusuma had written a false history.
15. Ms Waghorne agreed in cross examination that she returned to see Dr Kusuma on 24 October 2000 and told the doctor her pain was because of a heavy time at work. She said that, by this time, she no longer cared about keeping her back condition a secret.
16. Lyn Waghorne is Ms Waghorne’s daughter. Her evidence was that at the end of 1999 her mother told her about the incident in October 1999 concerning moving the two ULDs with a floor jack. She said her mother told her that Pam had directed her to move two fully laden ULDs off the weighing platform with a floor jack and that the brakes on the floor jack had jammed and she was thrown forward and felt the lower part of her back “rip”.
17. Lyn Waghorne said she was a supervisor at Australia Post during the day shift and was trained to unload the delivery trucks and that involved unloading and moving ULDs. She described the danger of having two ULDs stacked on top of each other when weighing them on the scale. She said she often found ULDs stacked on top of each other when she went into work in the morning. She said she knew it was Pam who did this on the night shift and had a word to her about it.
18. She said that when the situation didn’t improve she went to her supervisor, Peter Loveridge, and told him she had spoken to Pam about it and asked him to speak to her.
19. Lyn Waghorne also said she had found that one of the floor jacks had faulty brakes that jammed. She said she told Peter Loveridge about it, but it was never fixed.
20. Lyn Waghorne lived with her mother and said she would often see her mother of a morning when her mother was coming off night shift and she was going onto day shift. She said she attended almost every doctor’s appointment with her mother. She said she could not remember the incident with the ULD coming up when she was with her mother at a doctor’s appointment. However, she did recall an appointment with Dr Kusuma in which her mother told the doctor she had hurt herself at work, the doctor asked whether it was a compensation claim and her mother said “No, definitely not”. The reason her mother gave was that she would lose her job and so would her boss, Pam. Lyn Waghorne said Dr Kusuma said “Well, I’ve got to write something. If you don’t want me to write that you’ve injured yourself, what can I write?” She said her mother then told Dr Kusuma to write that she lifted the pram. She said the doctor agreed and wrote that down, indicating that she was not happy about doing so.
21. This evidence of the appointment with Dr Kusuma was given in great detail, quoting each person directly. Ms Waghorne’s recall was surprisingly detailed in contrast to the vagueness of her recollection in many other respects.
22. In cross examination, Lyn Waghorne contradicted her earlier evidence and said that, with the exception of one occasion, when she came to work and found ULDs on the weighing platform they would be empty. She also said that, notwithstanding she had already complained about the stacking of the ULDs to Pam and to Peter Loveridge, she did not express her anger about her mother being hurt because of that to Peter Loveridge.
23. Also in cross examination she said she did not become aware of the floor jack incident until she completed a compensation claim form for her mother in late 2000.
24. Dr Kusuma’s evidence was that she qualified as a medical practitioner in 1981 and commenced practice in Australia in 1992. She referred to her clinical notes on Ms Waghorne. She had been seeing Ms Waghorne for a number of conditions including a sore breast and a problem with her nostril. Dr Kusuma said she saw Ms Waghorne on 1 November 1999. Ms Waghorne told her she had injured herself at work when she had lifted three trays of letters instead of the usual two trays, thought the trays weighed 15 to 16 kilograms and immediately felt pain in her right lower back across the lumbar area. She also noted Ms Waghorn said she had had lower back pain on and off for years but not so intense as the pain she complained of on that day. Dr Kusama explained her examination and findings.
25. When asked whether she had been told by Ms Waghorne about the ULDs and the floor jack, she said she had not. She appeared puzzled. When asked if she had been requested to falsify her notes, she was quite perplexed and said she had not been asked by Ms Waghorne to do that. She said she had not written anything untrue in her notes.
26. Ms Waghorne returned to see Dr Kusuma a few days later on 4 November 1999 to review the CT scan she had undertaken. Dr Kusuma said the scan was normal and Ms Waghorne’s symptoms had improved.
27. Dr Kusuma said Ms Waghorne next saw her on 29 September 2000 for a gynaecological problem and made no mention of a back problem. She again saw her on 3 October 2000 when she told Dr Kusuma she had bent over to lift a pram and felt lower back pain radiating to the right and left legs and to the calf.
28. Again, when asked whether Ms Waghorne had told her she had injured herself at work but requested that not be recorded, Dr Kusuma appeared puzzled and denied that had happened.
29. Dr Kusuma’s next entry said that on 24 October 2000 Ms Waghorne had reported she returned to work on 9 October 2000 and had a flare up of lower back pain when she lifted some books but had managed to work until 16 October 2000 and went to see another general practitioner in the area, a Dr Chan, and received a medical certificate until 22 October 2000. Dr Kusuma said Ms Waghorne made no mention to her on 24 October 2000 that she did not want the injury recorded as a work injury.
30. Dr Kusuma said Ms Waghorne had never complained to her about her thoracic area or her shoulders or neck previous to 24 October 2000 when she was complaining of pain in these sites, as well as in her lumbar area.
31. The next entry concerning her back is on 11 January 2001 when Ms Waghone told the doctor that in October 1999 she had been pushing a floor jack loaded with ULDs and that the brake jammed. Dr Kusuma gave Ms Waghorne a Workcover certificate.
32. Finally, Dr Kusuma questioned why a medical practitioner would falsify records. She also had no recollection of Ms Waghorne’s daughter being at an appointment with her.
33. Pam Louttit, Ms Waghorne’s former supervisor, gave evidence explaining the work methods in the delivery centre. She said the trucks would reverse into the dock, carrying wire cage devices called ULDs filled with letters and parcels. She said the ULDs would be lifted off the truck with a forklift or “walkie stacker” and lowered to the floor. They would then be moved into the delivery centre to be weighed. She said the pallet jack or floor jack was used to move the ULDs around inside the centre because the forklift was not allowed to be used inside. She described the forklift as a large device - too large to be used in the confines of the delivery centre. The floor jack was too short to remove the ULDs from the truck or to be used to separate ULDs stacked on top of each other.
34. Ms Louttit explained that there would be no point in having two ULDs stacked on top of each other on the weighing platform because they each had to be separately weighed and their weights recorded separately in a computer. She said the ULDs are weighed in order to estimate the time it will take a postal delivery officer to deliver the mail contained in them. For this reason, no more than one ULD is placed on the weighing platform at any time.
35. Ms Louttit said she did not recall an incident when Ms Waghorne hurt herself moving two ULDs with a floor jack. Nor did she recall ever telling Ms Waghorne not to claim compensation. She said she would have given her a form to complete and had her see the facility doctor if she had hurt herself at work. She also said she never saw Ms Waghorne cry at work, never heard her complain about her back and never saw her wearing any kind of brace.
36. Mr Peter Loveridge was the Postal Delivery Co-ordinator at Girraween Delivery Centre and worked with both Ms Louttit and Ms Waghorne. He said he did not recall Lyn Waghorne ever speaking to him about ULDs being stacked on top of each other. He confirmed the procedures explained by Ms Louttit and also said he had no recollection of a floor jack jamming. He also said he had no recollection of seeing ULDs stacked on top of each other on the weighing platform or of seeing two full ULDs moved with a floor jack.
37. Mr Loveridge said that night staff would always finish sorting ULDs and would continue working until that was done. He also said that it would be impossible to safely get to the mail in the top ULD if it was stacked on top of another. One would have to climb up to reach it and he had never seen that done. For that reason, he saw no purpose in moving two full ULDs on a floor jack.
38. The inconsistency between the accounts of Ms Waghorne and her daughter and the contemporaneous clinical notes of Dr Kusuma is striking. Ms Waghorne’s explanation of that inconsistency, i.e., that she asked Dr Kusuma to falsify her notes and the doctor agreed, is very difficult to accept. We cannot fathom what would motivate a medical practitioner to do this. Dr Kusuma’s reaction, when this allegation was put to her, was one of similar puzzlement. The doctor was convincingly, vehement and steadfast in her denial that she had falsified her records. On the other hand, Ms Waghorne’s motivation for contradicting and attempting to discredit Dr Kusuma’s clinical notes is obvious. The notes make no mention of an incident in 1999 with a ULD until Ms Waghorne told her of this in January 2001. The complaints of pain in November 2000 are noted, according to the history given to Kusuma by Ms Waghorne, as arising first out of lifting a pram and about one week later out of lifting some books at Australia Post. The notes directly contradict Ms Waghorne’s evidence and that of her daughter.
39. The allegation made by Ms Waghorne against Dr Kusuma is a very serious one. We are not satisfied that it has been substantiated and we accept Dr Kusuma’s notes as an accurate contemporaneous record of the history given to her by Ms Waghorne. The notes and Dr Kusuma’s evidence damage Ms Waghorne’s credibility significantly.
40. We are also mindful of the evidence of Ms Louttit and Mr Loveridge. Their evidence was persuasive because they were able to explain logically the almost complete lack of utility of stacking two full ULDs on top of each other on the weighing platform as alleged by both Ms Waghorne and her daughter. It simply makes no sense to do so, for the reasons given by Mr Loveridge and Ms Louttit.
41. In addition, given the damage done to Ms Waghorn’s credibility by her allegations against Dr Kusuma, we are inclined to accept Mr Loveridge’s and Ms Louttit’s evidence over that of Ms Waghorne and her daughter in other respects as well. We accept Ms Louttit’s evidence that she had no knowledge of an incident concerning ULDs or any other incident affecting Ms Waghorne. We also accept Mr Loveridge’s evidence that he had no recollection of a discussion with Lyn Waghorne about ULDs being stacked on top of each other.
42. We are also mindful that no incident reports were completed by Ms Waghorne until December 2000.
43. For these reasons we are not satisfied that the incidents as alleged by Ms Waghorne took place.
are any symptoms experienced by ms waghorne due to her employment?
44. One of the difficulties in assessing the medical evidence before the Tribunal is that most of the doctors who examined Ms Waghorne for the purposes of this application were not told by her of the 1980 car accident she was involved in. Ms Waghorne’s evidence was that the accident wrote off the car and she was taken to hospital. She said that by the night of the accident her lower back was hurting whenever she tried to walk. She said her back hurt her, with pain down her legs as well, for about two years after the accident. She described a “ripping, throbbing sensation, and the tingling with the pain down your legs …”. She said it improved after she was placed in traction for two weeks in 1981. She also said she had taken a lot of pain killing medication including Serapax and pain suppositories and finally gave them up by the time of the settlement of her compensation claim in 1985.
45. When asked why she had neglected to tell medico-legal doctors about the accident and her traction, she said, variously, that she had told a number of doctors or she had not been asked about it or that, if one doctor knew, they would all know and there was no need for her to mention it.
46. We also note that a response by Ms Waghorne’s solicitors to a request for further and better particulars by Australia Post made no mention of the car accident in 1980.
47. In addition, we note that the history Ms Waghorne gave to examining doctors included the two incidents discussed above. We are not satisfied that those incidents occurred.
48. Dr James Bodel, Orthopaedic Surgeon, in a report dated 31 August 2006, reported that Ms Waghorne “has definite disc pathology in the mid-thoracic region.” On the basis of the history given to him by Ms Waghorne, he considered that “the pathology here was caused by the accident at work” and that she is not fit for work. The disc pathology he refers to is a CT scan of the lumbosacral spine dated 3 November 2000 indicating minor disc pathology at the L4/5 level and a report of an MRI scan of the thoracolumbar spine which shows evidence of pathology at T7/8 and T8/9 together with degenerative change at L4/5 and L5/S1.
49. When advised (for the first time) during oral evidence of Ms Waghorne’s accident and treatment in 1980-85, Dr Bodel agreed it would no longer be possible for him to opine that her condition is the result of an accident at work. He also agreed that his diagnosis was based on her subjective complaints of tenderness on examination. He said there were no signs of wasting. He also said that his opinion that Ms Waghorne is not fit for work was also based in part on the fact that she takes 120 milligrams of morphine each day, Endep to sleep at night and Panadeine Forte and Tramadol for breakthrough pain.
50. However, when told of a normal CT scan in November 1999, Dr Bodel considered that indicated that the 1980 accident had caused no significant structural abnormality.
51. Dr John O’Neill, Consultant Neurologist, stated in his report of 16 September 2006 that Ms Waghorne gave him a history of having first experienced spinal pain in 1997. She also told him she had injured her back in the incidents concerning the floor jack and ULDs in October 1999 and continued to suffer lower back pain up until October 2000 when she tried to lift some white tubs and experienced severe pain in her lower back. He said he knew nothing of an accident in 1980 and Ms Waghorne did not tell him about it. He described it as very relevant history.
52. After being told of the history recorded by Dr Kusuma, Dr O’Neill said he considered Ms Waghorne’s history to be unreliable. He said it shows the importance of obtaining contemporaneous medical records when making assessments in cases.
53. Dr O’Neill described Ms Waghorne’s reported symptoms as a “marked dramatisation” of any underlying symptoms that might exist. He said it was clear to him on examination that she was not trying to do as asked and that there is an “overwhelming psychosomatic component to the whole case”. He said that on the history now known to him it appears there was never a work related complaint of thoracic or cervical back or neck pain and complaints of low back pain may go back to the 1980 car accident. He noted that lesions in her thoracic spine would be of a longstanding degenerative nature. He said it is probable she has some low back pain, of a multifactorial nature, including the car accident, constitutional disease and possibly some transient but not permanent contributions to pain from trivial incidents at work.
54. Dr David Maxwell, Orthopaedic and Spinal Surgeon, had also not been told by Ms Waghorne about the 1980 car accident. He had also been given a history by Ms Waghorne of pushing a floor jack loaded with two full ULDs. He considered that her responses on examination were non organic and that CT scans and the MRI show normal degenerative changes.
55. Dr Neil McGill, Consultant Rheumatologist, said during his oral evidence that he was given no history by Ms Waghorne of a car accident injury to her back in 1980. He was given the same history as other examining doctors, including a history of having attempted to move two loaded ULDs on a floor jack and noted the discrepancy between that history and the history recorded in Dr Kusuma’s clinical notes. He said the widespread nature of Ms Waghorne’s symptoms was not explicable on the basis of structural abnormality of the spine. He found marked inconsistency between various findings on examination and no objective abnormality independent of her co-operation and, because of her gross lack of co-operation; he concluded that any assessment that depended on her co-operation was not valid. He described in detail the aspects of his examination of Ms Waghorne that illustrated this.
56. As to radiological evidence, he said the changes shown are degenerative in nature and there is no mechanism by which her work could account for the changes. He also considered he could not rely on the descriptions of events she gave him and in relation to her description of her symptoms he must interpret them in light of the false behaviour she demonstrated on examination. He considered her behaviour during his examination of her to be of a kind generally associated with secondary or primary gain and most often in medico-legal situations.
57. Dr McGill also explained that the differences between the results on the CT scan and the MRI are explained by the more sensitive properties of MRIs and that the abnormalities demonstrated on the MRI would have been present and predictable by the MRI at the time the CT scan was performed.
58. The weight of the expert evidence in this application is overwhelmingly against a conclusion that Ms Waghorne’s symptoms were caused by her employment. Any benefit of any doubt must be limited by Ms Waghorne’s unreliability as a witness, by the incorrect histories she gave doctors and by her exaggerated reports of symptoms on examination.
conclusion
59. We conclude that Ms Waghorne did not suffer an injury, within the meaning of the Safety, Rehabilitation and Compensation Act 1988, to her back, neck or other part of her body in the course of her employment. It follows that the claimed psychiatric sequella is similarly not an injury suffered in the course of her employment.
decision
60. The decisions under review are affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .......................................sgd..............................................
Associate: Felicia DanieleDate/s of Hearing 19 & 20 December 2006; 25, 26 & 27 June 2008; 25 & 26 September 2008.
Date of Decision 18 December 2008
Counsel for the Applicant Mr Paul Castley
Solicitor for the Applicant McDonnell Schrober Solicitors
Counsel for the Respondent Mr Paul Jones
Solicitor for the Respondent Graham Jones Lawyers
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