Weekes and Australian Postal Corporation
[2008] AATA 1155
•23 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1155
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0286
GENERAL ADMINISTRATIVE DIVISION ) Re LESLEY WEEKES Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal
Ms G Ettinger, Senior Member
Dr J Campbell, Member
Date 23 December 2008
PlaceSydney
Decision The Tribunal affirms the decision under review.
Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 no costs may be awarded.
.................[sgd].............................
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – whether jurisdiction to hear 2003/4 injury or aggravation – whether injury notified – whether claim made – section 53 issue regarding 2003/4 injury claim made in 2007 – constellation of symptoms in arms, thumbs, fingers and wrists – decision affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 53
Lees v Comcare (1999) 56 ALD 84
Abrahams v Comcare (2006) 93 ALD 147
Comcare v Luck (1999) 29 AAR 403
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Pacific Manning Company Pty Ltd v Barton (2003) 74 ALD 1
Australian Postal Corp v Sellick and Anor (2008) 101 ALD 245
Comcare v Sahu-Khan (2007) 156 FCR 536
REASONS FOR DECISION
23 December 2008 Ms G Ettinger, Senior Member
Dr J Campbell, Member
Background
1. Ms Lesley Weekes is currently a Senior Postal Delivery Officer. She joined Australia Post in 1993 at Bateman’s Bay and has worked there ever since, becoming a permanent employee in 1995/6. It is a small post office, has had the same manager for the whole period she has been there, and a staff of approximately ten people. Ms Weekes whose job has mainly entailed sorting mail, says that she developed pain in both arms, thumbs, and wrists which became worse in the period May – July 2007 when the post office was short staffed, and she did an extra hour of sorting a day. She also says that she injured herself or aggravated an underlying condition in 2003/4, and sought medical assistance at that time. Ms Weekes says she told people at work about it, but did not report the condition formally, or make a claim until 2007.
2. In a determination dated 3 September 2007, Australia Post did not accept liability for compensation for injury claimed by Ms Weekes to have occurred sometime in 2003 in respect of the left and right hands, fingers and wrists. This was affirmed in the reviewable decision of 12 December 2007. In the reviewable decision, the Reconsideration Officer denied the claim on the basis of section 53 of the Safety Rehabilitation and Compensation Act 1988 (the Act), and on the basis that Ms Weekes had submitted insufficient medical evidence to establish that she suffered from any work related condition in respect of her hands, fingers and wrists.
3. We had to decide jurisdictional issues in regard to the claim, and assess the medical evidence. We found pursuant to section 53 of the Act that Ms Weekes had not notified the 2003/4 injury, and found that the medical evidence did not, in any case, support the claim she lodged in 2007. Accordingly we affirmed the decision under review. Our reasons follow.
Issues to be Decided
4. The issues before the Tribunal were:
· The application of section 53 of the Safety Rehabilitation and Compensation Act 1988; whether the notification of injury was made;
· Whether the medical evidence supports Ms Weekes’ claim that the pain she suffers in her left and right hands, wrists, thumbs and fingers is compensable pursuant to section 14 of the Act, that is did the Applicant’s employment contribute to a material degree to it.
Relevant Legislative Context
5. The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14 and 53. Section 14 follows as relevant.
“s14 (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.”
Ms Weekes’ Duties and Her Reports of Pain
6. We have noted from Ms Weekes’ oral evidence and her statement at Exhibit A1, that for the past eight or nine years she commenced work at 5:45 am, collected mail, which included parcels, and sorted it to post office boxes for approximately one and a half to two hours a day five days a week, with a shorter period on Tuesdays, being 45 – 60 minutes. The weight of the mail and bags varied, with a lighter load on Tuesdays. It was, however, repetitive work she said. She also did some computer work. Later in the day her duties included emptying mail bags which had been delivered, doing further sorting for Sydney and interstate delivery, and dragging full mail bags to the dispatch area. Ms Weekes told us that between 1993 and 2003/4 the work was harder than before. She said that at that time she was required to sort into more post office boxes than previously, and that this made the job harder.
7. Ms Weekes said that originally she held the mail in her left hand and sorted with her right hand, but in around 2000, the configuration of the post office boxes changed, which meant she needed to use both hands to do the job. Ms Weekes told us that in 2007, due to the absence of a staff member, she did extra sorting, with resulting new and increased pain. She acknowledged that there was some relief staff who assisted, but said that July was the busiest month because of the tax returns.
8. Mr N Kelley who is Ms Weekes’ manager, corroborated her evidence that between May and July 2007, a staff member was away due to an accident, but told us that relief staff were employed, and that he himself assisted with sorting standard letters, large letters, parcels, express mail and general duties. Mr Kelley said that he did not see Ms Weekes sort additional mail in that period, but that she might have worked additional hours on Thursdays and Fridays. Mr Richards who appeared for Ms Weekes, urged us to accept her evidence regarding her extra sorting duties during 2007. He submitted Mr Kelley could not have done all the sorting as claimed, as he had his own job to do.
9. Ms Weekes told us in approximately 2003, she experienced pain in both hands and her fingers and wrists, and suffered an injury as a result of her work at Australia Post. We noted that Ms Weekes did not have time off from work in connection with her claimed injury in 2003 or 2004. She consulted her general practitioner, Dr L Brown who referred her to Dr A Beard, a hand surgery specialist in 2004. His reports are dated 13 February 2004 (T10) and 22 October 2004 (T11). Ms Weekes was also referred for nerve conduction studies. Dr Beard wrote in February 2004 that Ms Weekes had been experiencing weakness and discomfort in the wrist and volar aspects of the forearm for a year before she consulted him. He noted that the left hand pain was more severe, and added that: “She particularly noticed problems when lifting heavy objects and pinching between the thumb and her fingers with the forearm in full pronation.” He added that he thought the most likely diagnosis was tendonitis and noted that Ms Weekes’ symptoms significantly improve when she is not working, and that they appeared to be related to her relatively repetitive work. In October 2004 when he saw Ms Weekes again, Dr Beard reported that the nerve conduction studies for which he had referred Ms Weekes were normal, and that she still suffered episodes of pain in the hands associated with paraesthesia and numbness, adding “the pain is variable, changing both in site and intensity.” He opined that Ms Weekes had mild atypical carpal tunnel type symptoms combined with a double crush phenomenon.
10. Ms Weekes said that currently she has a burning sensation in her left thumb, her left wrist aches, and that the pain moves around, and comes and goes. She said that her left hand was so sore she could not twist it to open a door. Ms Weekes described her right hand as burning on the volar aspect of the wrist at the base of the hand towards the ball of the thumb. She said that the first time she had a burning sensation in her left and right hand was before she was referred to Dr Beard in 2003. She said that apart from general aches in her hands, her left hand feels “dead”, that the sensation came on gradually, and that in 2003 her left hand felt like a “lump of wood”. She told us that she shakes her hands to relieve them. Ms Weekes said she had been undertaking a course in skin care, and could not continue because of the sensations in her hands.
11. Ms Weekes said that it was distressing to her to have both hands in pain as there was pressure from the other staff if she did not pull her weight at the job. She said that after consulting Dr Beard, she modified her sorting and slowed down. She said that back in 2003 her left hand was the major issue, but we noted that as nerve conduction studies were done on both hands, both must have been in issue. Ms Weekes said that after sorting for 20 minutes with both hands, they were “significantly uncomfortable”. She said that the pain varied between shifts depending on the amount of sorting, and whether she was able to change to do something else, and then come back to sorting.
12. Ms Weekes told us that over the years since 2003, her left hand has become worse, with not just “woody” feelings. She said that the pain has radiated down the hand to the thumb and wrist, down the lateral aspect of the wrist to the palm of the hand and the fingers. Ms Weekes told us that sometimes the pain goes right up her arm, approximately 10 cms past the wrist, and on the volar aspect of the wrist.
13. Ms Weekes told us that between 2004 and the present, both hands were painful on and off. We noted that the description of the pain was in the volar aspect of the wrist, and her right thumb, right wrist, and anterior aspect of the metacarpophalangeal joint. Ms Weekes told us that in 2004 she bought wrist splints for her right and left wrists, and in 2007 for her wrist and thumb. She said that she bought splints on the recommendation of her chiropractor, but said that they felt uncomfortable to wear, and she only wore them intermittently.
14. Ms Weekes claims that since 2007, she has been experiencing a new and significant pain, particularly in her right wrist and thumb. She said that her post office has been a staff member short, and the staff had been doing his sorting for 11 weeks, which included an extra 375 post boxes. She said that the Manager might assist with express mail, but did not do the general sorting of mail, and relief staff were rarely available. Ms Weekes said that since that time, she has the new pain in the palm of her left hand, and that that affected her getting dressed.
15. The Applicant consulted Dr G Kariotis on 16 July 2007, who noted that the problems were repetitive work involving her hands, conflict with co-workers, anxiety, tendonitis of the left and right hands and thoracic spine dysfunction, dated back to 2004. He certified Ms Weekes unfit for work from 16 - 31 July 2007.
16. On 24 July 2007 Ms Weekes consulted Dr P Allin of Australia Post, who gave her a medical certificate restricting her duties. Since July 2007, she has been sorting for only half an hour a day, and in December 2008 applied for another position in the customer contact centre where she would not have to sort mail, but would be working fulltime and doing some computer work.
Section 53 of the Safety Rehabilitation and Compensation Act 1988
17. Ms Weekes made a claim for compensation for injury to her right and left hands, fingers and wrists in a document dated 8 August 2007 with regard to an injury she said she first noticed in approximately 2003.
18. She answered the question in the claim form regarding reporting of her injury by stating that she had reported it to her manager Mr J. Kelley, Ms L-A Ottway, the area manager, and various other co-workers (un-named), in approximately 2004. Mr Kelley wrote both in the documentation accompanying the claim form, and told us in his oral evidence that he did not know about any of Ms Weekes’ hand, wrist or finger problems until he received her WorkCover certificates in July 2007. In her oral evidence, Ms Weekes agreed she had not told Mr Kelley about her hand, wrist and finger problems in 2004.
19. The first step in our consideration of whether Ms Weekes’ claim can be met is to consider the application of section 53 of the Act, which specifies that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant Authority as soon as practicable after the employee becomes aware of the injury. Section 53 follows as relevant.
“(1) This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority;
(a)as soon as practicable after the employee becomes aware of the injury; or …”
20. There is no question that in order for the Tribunal to have jurisdiction, any claim made would have to be made validly, in writing, first determined, then reconsidered, and for a reviewable decision to be made, (Lees v Comcare (1999) 56 ALD 84).
21. Mr Richards submitted that regardless of formal reporting, the management would have been aware of Ms Weekes’ problems in 2004, because T10 and T11, the medical reports of Dr Beard would have been in her personnel file, and that they constituted deemed notice of the injury. Ms Henderson rebutted the claim, submitting that medical reports are directed to the Human Resources Department, and are not available to the manager. We noted that Mr Kelley, Ms Weekes’ manager corroborated this, as he stated that he had no knowledge of the visits to Dr Beard until Ms Weekes made her compensation claim in 2007.
22. Ms Weekes told us that she did not make a claim in 2003/4 because she hoped her pain would get better, and later in her evidence, that making a claim was not suggested to her, so she did not know how. We were not satisfied with this argument, in particular as Ms Weekes had had at least one experience of making a claim, for an injury to her left ankle in 2000. Ms Weekes said that she told the area manager about her problems, and to reduce the strain on her hands, she was applying for a position on the counter.
23. Mr Richards submitted that applying Lees v Comcare, Ms Weekes could be held to have suffered an injury in 2004 (with visits to a specialist Dr Beard), with an aggravation of the injury in 2007, the incapacity being accounted for by the medical certificate certifying Ms Weekes as unfit between 16 July and 31 July 2007.
24. Ms Henderson who represented the Respondent submitted that as there had been no notification of any injury in 2004 pursuant to section 53 of the Act, and no decision made regarding any 2004 injury or aggravation, only the 2007 claim could be before the Tribunal, (Abrahams v Comcare (2006) 93 ALD 147).
25. Mr Richards submitted that on one view of things, the 2007 claim was an aggravation of the 2004 injury, referring us to section 7(4) of the Act, and submitting that the claim form in fact referred to both the 2004 injury and the 2007 aggravation. We noted that section 7(4) of the Act follows as relevant:
“s 7(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
…..”
26. We noted that section 7(4) of the Act indicates that an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when the employee first sought medical treatment for the disease or aggravation. Mr Richards submitted that Ms Weekes first sought medical treatment for the injury as indicated on the claim form in 2007, when she consulted her general practitioner who referred her to Dr Beard in 2004. We needed however to decide whether Ms Weekes had notified any injury.
27. Mr Richards also submitted that pursuant to section 53(3), and Comcare v Luck (1999) 29 AAR 403, a claim form can act as notification. He submitted it was a matter of construction.
28. Referring to section 53(3)(c) of the Act, Mr Richards submitted that there was no prejudice to the Respondent in the making of Ms Weekes’ claim, that none had been raised, and that witnesses such as Mr Kelley were still available. In support of his claim he cited Comcare v Luck, Abrahams v Comcare, Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 and Pacific Manning Company Pty Ltd v Barton (2003) 74 ALD 1.
29. We were mindful from Luck at [59], and [60], that the Tribunal there found as a matter of fact that Comcare was not prejudiced by Mr Luck’s failure to give notice of his condition of 9 September 1992 as soon as practicable after he had become aware of it. Moreover it held that Comcare would not be prejudiced if the notice given by way of the claim for compensation lodged on 28 January 1995 were treated as sufficient notice for the purposes of section 53 of the Act.
30. We noted that at [60], French J stated:
“Counsel submitted that the Act distinguishes between a notice of injury referred to in s53 and a claim for compensation referred to in s54. This submission was not advanced with any great fervour and rightly so given the Tribunal’s findings as to want of prejudice and indeed the evidence of Mr Ontong in that connection. The question really then reduces to one of construction, namely whether the claim made under s54 of the Act can also be characterised a ‘a notice purporting to be a notice referred to in [s53]’ for the purposes of s53(3). In my opinion no narrow or technical construction should be adopted.
And at [61]
In this case the claim itself is headed up with the words ‘Incorporating Accident and Disease Report’. … In my opinion however given the findings by the Tribunal of want of prejudice, the claim form itself could stand as notice of the injury and indeed purported to give notice of injury.”
31. Ms Henderson acknowledged that Madgwick J in Abrahams indicated a broad interpretation was appropriate, but submitted that Ms Weekes had made a compensation claim in 2007, but that the notice of injury pursuant to section 53 had not been given back in 2003/4 when the injury was claimed to have occurred. She submitted notice and a claim were two different things. She submitted that Ms Weekes’ telling Ms Ottway about wanting a job on the counter could not amount to notice of an injury under the Act, and in fact maintained that no notice of any injury had been given in 2004. Ms Henderson submitted that the 2007 claim form, which is the only claim Ms Weekes has submitted, did not mention aggravation of injury, and if Mr Richards now submitted that the claim was for two injuries, or for aggravation, then Ms Weekes had to claim separately for each. (Australian Postal Corp v Sellick and Anor (2008) 101 ALD 245).
32. We were also mindful of the argument in Sellick, and noted Bennett J’s findings at [57] and [60]:
“No accident report or claim was specifically made for the additional conditions as is required by ss 53 and 54 of the SRC Act. If the additional conditions had not been the subject of a notice of injury under s 53, a claim for compensation under s 54, a determination under s 60, a reviewable decision under s 62, and an application to the tribunal under s 64 of the SRC Act, the tribunal had no power or jurisdiction to make the decision that it did. Australia Post accepts that, as the Tribunal noted, the medical certificates provided in support of the shoulder claim referred to complaints referable to the upper back and not related to the shoulder. …
[60] There is no explanation given by the tribunal for the conclusion that the injury of October 2002, described as pain in the right shoulder, caused the additional conditions….”
33. Ms Henderson submitted that there was no notice of injury or aggravation given by Ms Weekes. She submitted that no acceptable explanation had been given of notification following injury, and that the Respondent relied on the time lapse as being prejudicial to it, submitting that Mr Kelley had already demonstrated before the Tribunal that he had trouble recalling detail going back to 2003/4. He urged the Tribunal not to exercise the section 53 discretion, and submitted that Ms Weekes’ excuse for not reporting any injury because she thought it might get better was not acceptable.
34. We are satisfied from her evidence that Ms Weekes may, in approximately 2004, have mentioned in passing that she suffered pain in her hands and wrists to the area manager and co-workers (unnamed), but a priori such comment does not satisfy the requirement of notification in section 53, in that she did not notify the injury in writing to the relevant Authority as required. In coming to a decision regarding the application of section 53 of the Act, we were mindful of the requirement for an employee of the Commonwealth to notify an injury in writing as soon as practicable after the person becomes aware of the injury.
35. We are mindful however that section 53 provides for a discretion to accept that notice has been given pursuant to the Act where notice of an injury has been delayed for a variety of reasons.
“s53 (3) Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.”
36. We have noted that Ms Weekes’ claim for compensation made in 2007 for her injury which occurred in 2003, and for which she sought medical assistance in 2004, is out of time because she did not notify any injury in writing as soon as practicable after she became aware of it. In further consideration of section 53(3), we are satisfied that there was no suggestion that death or absence from Australia were reasons for the non-notification. In considering “ignorance, a mistake or other reasonable cause”, we are mindful that although Ms Weekes appeared to argue that she did not know about making compensation claims, she had previously made one in 2000, so we did not accept that argument. We could not find that she was able to meet “reasonable cause”.
37. We are not satisfied that the Respondent would not be prejudiced if the claim were to be accepted, as with the effluxion of time documents and memories are hard to elicit. We heard Mr Kelley giving evidence in this matter, and noted that he had some difficulty recalling the exact events surrounding the absence of a staff member in 2007, and other details. We find that the Respondent would be prejudiced if we found the claim deemed to have been made under section 53(3) of the Act.
38. We were mindful of the statements of French J in Luck, and mindful that Ms Weekes’ case is quite different. In Luck, the Tribunal found as a matter of fact that Comcare was not prejudiced by Mr Luck’s failure to give notice of his condition of 9 September 1992 as soon as practicable after he had become aware of it. Moreover the Tribunal in Luck held that Comcare would not be prejudiced if the notice given by way of the claim for compensation lodged on 28 January 1995 were treated as sufficient notice for the purposes of section 53 of the Act. French J stated that in Luck the question was reduced to one of construction, namely whether the claim made under section 54 of the Act could also be characterised a “a notice purporting to be a notice referred to in [s53]” for the purposes of section 53(3). French J stated that in his opinion no narrow or technical construction should be adopted. His Honour also noted that in Luck, the claim itself was headed up with the words ‘Incorporating Accident and Disease Report’, and that given the findings by the Tribunal of want of prejudice, the claim form itself could stand as notice of the injury and indeed purported to give notice of injury.
39. Regretfully for Ms Weekes we did find prejudice would be caused to the Respondent if the claim were deemed to have been made, and whilst we acknowledge Madgwick J in Abrahams, who indicated a broad interpretation was appropriate, we were not satisfied that we could find Ms Weekes had made a deemed claim pursuant to section 53(3) of the Act. We could not find she had a reasonable cause for her delay in making the claim.
40. We noted also Mr Richards’ submissions that the 2007 claim could be construed as an aggravation of the 2003/4 injury. However, as we have found that no notification of injury had been made for the 2003/4 injury, and none accepted, we do not accept that there can be an aggravation.
Whether the Medical Evidence Supports Ms Weekes’ Claim that the Pain in her Left and Right Hands, Wrists, Thumbs & Fingers is compensable – Did the Employment Contribute to a Material Degree to it?
41. We have found in the paragraphs above that we do not accept Ms Weekes made a valid claim for compensation for injuries said to have been incurred in 2003, and we did not accept that she made a deemed claim under section 53 of the Act. We were also satisfied that if no liability has been accepted for an injury, then no claim for aggravation of such injury can be accepted.
42. However for the sake of completeness we proceeded to consider the medical evidence regarding Ms Weekes’ claim for compensation for her hands, wrists, and fingers.
43. Ms Weekes told us that she consulted her general practitioner and Dr Beard, and may have been treated with anti-inflammatories for her hand, wrist and finger pain in 2003/4, but that following that period, including in 2007, she received no further medical treatment for her pain. However, after reporting pain, she was off work from 16 – 31 July on the advice of Dr Kariotis, and was told to rest her hands, and perhaps take Panadol, but did not receive other treatment. She said that after resting her hands, they did not ache as much. We noted also that Ms Weekes obtained and sometimes wore splints in 2003/4, and obtained further splints on the advice of a chiropractor in 2007. Her evidence was that they were uncomfortable to wear so she did not wear them much.
44. We were mindful of Dr Beard’s diagnosis in February 2004 which was tendonitis, and when he saw Ms Weekes again later in 2004, mild atypical carpal tunnel type symptoms combined with a double crush phenomenon. The nerve conduction studies her referred her for in 2004 and 2007 were both normal. Dr Andrews who conducted them, found some mild tenderness around the wrists, but opined that there was no obvious epicondylitis or swelling of the joints.
45. Ms Weekes was referred by her solicitors to Dr R Pillemer who is an orthopaedic surgeon in March 2008. His report was Exhibit A5 and he also gave oral evidence before the Tribunal. Dr Pillemer took a history, and stated in his report that he had “some difficulty in giving a firm diagnosis for Ms Weekes at this stage, noting that there are no signs or symptoms of any tendonitis or carpal tunnel syndrome at the moment, or any ulnar nerve problem.” He opined that she has some subluxation on the left side, which is a constitutional condition, and is very mild on the right, and associated with a non-painful click on the left side. Dr Pillemer opined that the instability of the wrist could account for on-going symptoms, and that the discomfort at the base of Ms Weekes’ right thumb suggested possibly early osteoarthritic changes in that region. However Dr Pillemer maintained that Ms Weekes’ main problem was in her wrist.
46. In his oral evidence Dr Pillemer agreed that repetitive work such as sorting mail can aggravate symptoms such as Ms Weekes reported. Dr Pillemer noted Dr McGill’s opinion about pain amplification syndrome, but said that he did not find Ms Weekes suffering such.
47. Dr Andrews thought that Ms Weekes suffered an overuse syndrome. When that was put to Dr Pillemer, he opined that that was not a diagnosis, but noted Ms Weekes’ reports that sorting work made her pain worse.
48. Dr N McGill is a rheumatologist to whom Ms Weekes was referred by the Respondent. He gave oral evidence before the Tribunal, and his report was Exhibit R2, dated 6 June 2008. He took a history and examined Ms Weekes.
49. Dr McGill concluded in his written report that Ms Weekes did not have any substantial physical disorder to account for her upper limb symptoms. He opined that she had mild thumb base osteoarthritis which is constitutional, and commented that he considered that Ms Weekes’ symptoms were best understood in terms of pain amplification syndrome, but did not find any suggestion of complex regional pain syndrome.
50. Dr McGill did not agree with Dr Pillemer that Ms Weekes had subluxation of her wrists. Dr McGill discussed hypermobility of joints and opined that Ms Weekes’ range and spread of symptoms was wide, and in his opinion did not support that she had laxity of the wrist joints or hypermobility. He commented that Ms Weekes’ report of seeking relief through shaking her hands was not related to hypermobility.
51. Dr McGill commented that Drs Andrews, Beard, Pillemer and he himself all had different opinions regarding what was wrong with Ms Weekes, but noted that none of the above mentioned suggested that her pattern of symptoms had any physical basis. Dr McGill also opined that in the absence of an underlying condition, there could be no aggravation as claimed.
52. Ms Weekes’ evidence was that her hands (both hands and both thumbs) now ache at various times and in different spots. She says the severity when not sorting mail is quite different from the pain she experienced when working. She said she could cook, open jars, sweep and use a hair dryer and drive short distances although it was painful to do so, and more painful than back in 2004.
The Tribunal’s Conclusions
53. In coming to a decision, regarding whether the medical evidence supports Ms Weekes’ claim that the pain in her left and right hands, wrists, thumbs and fingers is compensable, we considered her reports of pain, and all the medical evidence. This included the reports of Dr Beard in 2004, who had nerve conduction studies done, which were normal. We were mindful of Dr Beard’s first diagnosis being tendonitis, and when he saw Ms Weekes again later in 2004, mild atypical carpal tunnel type symptoms combined with a double crush phenomenon. None of the other doctors diagnosed those conditions, and Ms Weekes did not receive any follow-up treatment or surgery for those suggested diagnoses so it is unlikely they could be sustained.
54. We noted that Dr Pillemer had some difficulty in giving a firm diagnosis when he examined Ms Weekes on behalf of her solicitors, and opined that there were no signs or symptoms of any tendonitis or carpal tunnel syndrome, or any ulnar nerve problem. He opined that she has some subluxation on the left side, which he considered a constitutional condition, and which was very mild on the right. Dr McGill on the other hand, did not agree with Dr Pillemer that Ms Weekes has subluxation of her wrists. Dr McGill considered hypermobility of the joints, and opined that Ms Weekes’ range and spread of symptoms was wide, and in his opinion did not support that she had laxity of the wrist joints or hypermobility. He commented that Ms Weekes reports of seeking relief through shaking her hands indicated it was not related to hypermobility.
55. Dr McGill’s opinion was that the Applicant’s mild thumb base osteoarthritis is constitutional, and commented that he considered that Ms Weekes’ symptoms were best understood in terms of pain amplification syndrome.
56. Dr McGill commented that Drs Andrews, Beard, Pillemer and he himself all had different opinions regarding what was wrong with Ms Weekes, but noted that none of the above mentioned suggested that her pattern of symptoms had any physical basis.
57. We accepted on the basis of the medical evidence that Ms Weekes did not have any substantial physical disorder to account for her upper limb symptoms and that any symptoms she reported did not occur in a pattern which indicated any particular physiological illness. Accordingly, there is no diagnosis or physical illness as such, and we were not satisfied that Ms Weekes has complex regional pain syndrome, so there cannot be an aggravation.
58. We noted Mr Richards’ submissions urging us to find for Ms Weekes on the basis of her pain being contributed to in a material degree by her work for Australia Post in the terms of the legislation and Comcare v Sahu-Khan (2007) 156 FCR 536. Mr Richards, relying on Sahu-Khan, submitted that Ms Weekes’ sorting duties at the post office contributed to a significant degree to the injury and aggravation of her wrists. He submitted that taking into account section 5(b)(2), the Tribunal should have regard to the fact Ms Weekes had worked doing the repetitive job of sorting mail for ten years, and that she had a constitutional predisposition to the injury. He submitted, referring to section 7(6) of the Act that but for sorting, she may not have developed the pain and injury, or that the extent of the symptoms may have been less.
59. In that regard we were also mindful of Ms Henderson’s submissions, who emphasised to us to consult the clinical notes at Exhibit R3 for the period 1 August 2002 to 14 March 2003. She submitted that these did not support Ms Weekes’ reports of increase in the pain in her hands and wrists, and urged us not to accept Ms Weekes’ evidence due to contradictions in it. We noted from Exhibit R3 that for the periods nominated by Ms Henderson, there were no complaints of escalating pain in Ms Weekes’ hands, wrists or fingers.
60. Ms Henderson submitted that there was no acceptable explanation given regarding what connection with work Ms Weekes’ reported pain had in 2003, and that it appeared to come on gradually. She asked us to accept that Ms Weekes’ work duties had not changed since 2003, and to accept Mr Kelley’s evidence so that any claimed aggravation in 2007 could not have come from doing any extra work. We have already dealt with the work situation and the evidence regarding changes to the amount of work in the paragraphs above. We accept that the pattern of sorting changed over the years, but preferred Mr Kelley’s evidence that additional staff were employed to assist with the absence of a staff member in 2007.
61. In conclusion we are satisfied that Ms Weekes did not meet the tests for notification of injury in section 53, nor did we accept that she made a deemed application for compensation. Our assessment of the medical evidence as indicated above, is that Ms Weekes does not have any substantial physical disorder or regional pain syndrome to account for her upper limb symptoms, and any symptoms she reports do not occur in a pattern which indicate any particular physiological illness. Accordingly, we find that there is no diagnosis which we accept, or condition as such, so that there cannot be an aggravation. We do not need therefore to decide whether her work has made any material contribution to her pain in terms of the legislation and Sahu-Khan. The Tribunal must therefore affirm the decision under review.
DECISION
62. The Tribunal affirms the decision under review.
I certify that the preceding 62 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member, and Dr J Campbell, Member.
Signed: …….....[sgd]................................................................
AssociateDate of Hearing 10 & 11 November 2008
Date of Decision 23 December 2008
Solicitor for the Applicant Mr K Foster, Slater & Gordon
Counsel for the Applicant Mr D Richards
Solicitor for the Respondent Ms C Tirado, Australian Postal Corporation
Counsel for the Respondent Miss R Henderson
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