Younes and Comcare
[2004] AATA 1008
•27 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1008
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2003/243
)No. N2003/1777
)No. N2004/237
GENERAL ADMINISTRATIVE DIVISION ) Re MARIA YOUNES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member, Dr Lynch, Member Date27 September 2004
PlaceSydney
Decision In each of proceedings No. N2003/243, N2003/1777 and N2004/237, the decision under review is affirmed.
[sgd] Mrs Josephine Kelly, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – 3 separate applications - claims for compensation under s14, 16 and 24 for work related injuries to back, feet, neck and arms – back injury – over 7 years between alleged injury at work and claim for compensation – little evidence of treatment in intervening years – any injury not related to incident at work – Respondent not liable – feet impairment – no contemporaneous documentary evidence of feet problems when working with Department – over 4 years between cessation of employment and first medical evidence of complaint – problem constitutional on medical evidence – injury not work related – Respondent not liable – neck and arm injuries – Department accepted liability for RSI in 1994 – no complaint/treatment from 1995 until cessation of employment with Respondent in 1996 – no further medical evidence of injury until 1998 – no pathology on medical evidence – injury not work related – Respondent not liable – decisions affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 14, 16, 24
REASONS FOR DECISION
27 September 2004 Summary
1. There are three proceedings before the Tribunal. In proceedings N2003/243, the Applicant, Maria Younes, seeks a review of a decision made on 4 November 2002 (T52 in Exhibit TA) affirming a determination made on 20 June 2002 denying liability in respect of permanent impairment pursuant to s24 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), the cost of podiatry treatment pursuant to s16 and weekly incapacity payments from August 1996. The permanent impairment and incapacity claims related to both arms, the neck, back and both legs.
2. In proceedings N2003/1777 Mrs Younes seeks the review of a decision made on 3 October 2003 (T35 in Exhibit TB) affirming a determination made on 25 July 2003 to deny liability under s 14 of the Act for “pain in neck, back arms and legs”.
3. Proceedings N2004/237 concern a decision dated 1 March 2004 (T18 in Exhibit TC) affirming a determination made on 25 February 2004 denying liability for permanent impairment pursuant to s 24 of the Act in respect of Mrs Younes’s neck, back, arms, legs and right upper limb.
4. In each proceeding, the Tribunal affirms the reviewable decision.
Background
5. Mrs Younes was born in 1969 and commenced working in 1987. She began full-time work at Big W in March and after three months worked there part-time, on Thursday nights and Saturday mornings. She also began working for the predecessor of the Department of Education Training and Youth Affairs (“the Department”) in June 1987 as a trainee. She ceased working for Big W in 1991.
6. In early 1994, Mrs Younes suffered from what was described as a “repetitive strain injury” (“RSI”) and liability was accepted by Comcare.
7. The second injury alleged by Mrs Younes was to her lower back which occurred when she fell at work on 14 June 1995. No report of the injury or claim was made until 18 March 2003 (Exhibit TB, PT9).
8. Mrs Younes began maternity leave on 14 August 1995, returning to the Department in January 1996. She continued with the Department until she took voluntary redundancy in August 1996.
9. Following her voluntary redundancy, Mrs Younes was not employed until the middle of 1997. She rejoined Big-W on a part-time basis, five days a week, 8.30 am – 1.30 pm. She injured her left little finger at work in 4 November 1998. She left Big-W in April 1999 when she again took maternity leave. Mrs Younes has not been employed since.
10. Mrs Younes’s complaints include pain in her lower back, both legs, neck, both arms, shoulders and feet.
The Evidence
Mrs Younes
11. For the first 18 months after Mrs Younes joined the Department, her duties included filing, putting letters into envelopes and delivering applications to assessors. She was rotated between different areas such as Abstudy and Austudy. After one year she was promoted. Her duties then included answering correspondence, doing computer entry and writing, including assessing applications. She said that the busiest time for assessing applications was January to May. The supervisor gave a certain number of applications to do and if they were not finished on the day given, they would be finished the next day, which she said put her under pressure. Mrs Younes carried out such work until she left the Department in 1996.
12. Mrs Younes said she always had problems with her feet from 1991 onwards which made it hard to stand and walk. Her work at Big-W from 1987 to 1991 also involved standing up. Her work at the Department required both a lot of sitting and a lot of walking around. As long as she was not on her feet, they were alright. Sometimes she had to stand all day doing counter work. Sometimes she spent a week standing all the time. Her work involved one week on the counter, one week on telephone work and one week doing computer work.
13. When she was working for the Department, a podiatrist would always have to shave calluses from her feet with a razor. She said she had seen a doctor about the problem.
14. Mrs Younes said that in 1994 her right arm started to hurt, aching under the elbow and wrist. She said now she feels pain up her arm and into her neck. She said the cause was computer work and writing. She said she reported the injury and had two weeks off work. After that, she had another week or two off work and a day off here and there.
15. She had treatment by Cumberland Health and Research Centre (CHRC) after being sent by the Department.That treatment included physiotherapy and exercises. After a about a year, work reorganised her computer desk but there was no improvement in her arm.
16. In about early 1995 the pain started to travel up her arm. At first just the right arm was affected. She was then using her left arm to do things and after a year or two she had pain in her left arm. She now feels pain in that arm as well as the right.
17. The documentary material tendered in evidence shows that Mrs Younes first reported pain in her right arm on 8 March 1994 (Ex R1). Exhibit R2 was filled out by Mrs Younes on 6 April 1994. It shows that the injury happened “-/2/94”, the first medical treatment was on 15 March 1994 and the first time taken off work was four and a half days, also in March. The injury was caused by writing and using a keyboard, the pain “would come and go”, “I would get a feeling of numbness, also a feeling that I want to stretch my arm and shake it. The pain is very minor now I hardly feel anything”. The pain was in the right arm and wrist. When asked in re-examination about that comment, she said at times the pain was “OK, so at the time asked, it was OK”.
18. By 30 May 1994, the symptoms included occasional dull ache above the inner elbow and frequent aching in the inner forearm and into the wrist. There were also complaints of tightness/heaviness in the back of the neck (right and left) and a dull ache in the shoulder (Exhibit R3).
19. A work site assessment report was carried out on 27 May 1994 (Exhibit R4). Changes were then made to Mrs Younes’s work station. The report states that Mrs Younes was working as an assessor and said her work involved 50% of her time writing, including telephone work, and 50% using a computer.
20. When evidence of leave taken in relation to the RSI injury and other sick leave was put to Mrs Younes in cross-examination, she agreed that she had had very little time off work because of her RSI. From 30 May until 28 July 1994 she had 23 hours 47 minutes (Ex TA, pp 6 to 12). Mrs Younes explained she was going to CHRC. From 28 July 1994 to January 1995 she had no time off work. She was off work on 18-20 January 1995, the CHRC Progress Record stating she was “really bad yesterday, couldn’t pick up stapler” (Exhibit R20). Her leave records (Exhibit R16) show that she had time off work on 18 to 20 January 1995 for carpal tunnel syndrome, and had physiotherapy on 25 January and 16 February.
21. Mrs Younes did not dispute that from 16 February 1995 until she left on maternity leave in August of that year, she took no time off work as a result of the arm problem and continued on full duties, which included telephone, counter, and processing work, but said that “they got a special headset” and that she had proper equipment including an armless chair and a special rubber piece to put on her pen.
22. The Progress Record of CHRC (Exhibit R20) shows that she had received the headset in August 1994 and as of 2 September that year was “managing well” with “occasional discomfort but can cope with it. No problems. Headset is great – made a huge difference. Happy with case closure”.
23. Mrs Younes said that her fall in June 1995 occurred when she went downstairs from the foyer at work to get a coffee. She fell on her left side, on her left buttock. She had had no previous problems with her back. She went upstairs and told personnel about her fall. She was told to go to her doctor. She was seven months pregnant at the time. The doctor examined the baby’s heartbeat. She was given a day or two off work and no treatment. She felt aching and bruising in her lower left back.
24. At the conclusion of her evidence she said that she had notified work that she had hurt her back in the fall and filled out an incident report. Further, the surface of the steps was uneven. She had to hold the railing walking up and down the stairs and was slow.
25. On 14 June 1995, Mrs Younes completed an “Incident Report” (Exhibit R5). In that report she described how she was walking down stairs in the foyer at work, “as I reached the bottom I fell straight on my side supporting myself with my right hand and hurting my left ankle… My stomach was a bit sore”. She also described the injury: “I slipped and hurt my left ankle and my right hand. I also landed on the side of my tummy. Note I’m seven months pregnant”. There was no reference to her back.
26. Her Rehabilitation Case Manager wrote to her on the same date. He advised: “Although this incident may be minor and require no further action, I strongly urge you to consult your treating doctor given your existing back condition and advanced pregnancy” (Exhibit R6). Mrs Younes took leave for the rest of that day (Exhibit R7).
27. A Medical Certificate was issued on the same day by Dr Prasad, Mrs Younes’s general practitioner (Ex TB document T3). In Part A of that document, signed by Mrs Younes, the nature of the injury is described as “abdomen and chest wall”. Later in the document, the injury is specified as “abdomen & L chest”. The certificate certified that she was unfit for duties on 14 June 1995.
28. In cross-examination Mrs Younes gave her explanation of why there was no reference to her back in the Incident Report (Exhibit R5), saying “I was more concerned about the baby at the time”. She agreed that she made no claim for compensation for her back injury until 2001, that she was aware she had workers compensation rights, and knew how to make a claim. She was not absent from the country during the period 1995 to 2001. She said that when she fell she soon went on maternity leave and was very busy and did not think to put in a claim. When it was put to her that she had no time off work because of her back and no treatment, she said “I was pregnant, there was not much I could do”.
29. Mrs Younes said that she had had no problems in her back before the fall in 1995. When asked by counsel for the Department about absences from work on 27 February to 2 March 1989 and 27 April 1992 because of back pain as reflected in Exhibit R16, Mrs Younes said she was pregnant in 1992 and may be it was pressure from the baby. She had no recollection of the 1989 absence and no recollection of having a back problem before 1995.
30. It was put to Mrs Younes that whereas she had told the Tribunal she had fallen on her left side, she had told Dr Ellis in 2001 that she had fallen predominantly on her right side. She said she would not dispute that that was what she told him, but that you cannot remember events that occurred 10 years ago.
31. In June to August 1995, before going on maternity leave, she said she felt tired and sore in her lower back and arms. After September 1995 when her baby was born she had lots of aches and pains in her back and her arms were “no good”. As a result she could breast feed for only about a month. She had no treatment, she was just taking pills. Mrs Younes complained of “electric shocks” down both her legs after the birth of her child. She described nearly falling over and dropping to the floor a few times.
32. By January 1996 Mrs Younes said she was not too bad. Her mother-in-law had come to help her a week after the birth of her child. She mopped the house and did the washing. Her mother was also there. Mrs Younes had only to look after her child.
33. On 31 January 1996 Mrs Younes returned to the same work at the Department, assessing applications, telephone work and counter work. It was the busiest time of the year. The closing date for applications was 31 March but applications kept coming in until May. She said that she was very sore, that it was very hectic and that she did not have the desk that CH&RC had recommended then or thereafter.
34. She said she took a lot of time off work, a couple of days here and there because of her back and her arms. Her mother-in-law had left in January. Her mother was still always there to help to wash, mop and cook. At the end of the working day she was “terrible”. The leave records (Exhibit R16) do not support her evidence of taking such leave.
35. She agreed to the suggestion that she had also told Dr Kassar in 2001 that when she returned to work she was able to continue work but that her back flared up three times a month and therefore the problem was significant. However, when it was suggested that she would have sought treatment, Mrs Younes replied to the effect that nothing could have been done. When asked if she asked why nothing could be done, she said she did not know why and just took tablets and put up with the pain.
36. In July 1996 Dr Prasad issued three medical certificates relating to Mrs Younes’ back pain (Exhibit R8). On the 11 July certificate, Dr Prasad cited “lower back strain” and stated that Mrs Younes was unfit for work from 11 July 1996 to 12 July 1996. On 15 July 1996 the doctor issued a second medical certificate citing “back pain for evaluation” and stated that Mrs Younes was unfit for her occupation from 15 July 1996 to 17 July 1996 inclusive. On 25 July 1996 Dr Prasad issued a third medical certificate for “lower back strain”, again stating she was unfit for her occupation for two days. These certificates were not workcover certificates and made no reference to a relationship between the back strain and Mrs Younes’s employment. When it was put to Mrs Younes in relation to the 15 July certificate that there was no mention of such a relationship, she said “I can’t remember”. She took a voluntary redundancy on 19 August 1996.
37. In July 1996 Dr Prasad ordered an X-ray of her back because, she said, she wanted to see what was causing all the pain. That report (Exhibit A2) included investigations of the abdomen and upper abdomen as well as of the lumbo-sacral spine. The only abnormality in the latter was “minor L5/S1 disc space narrowing”.
38. When asked in re-examination why she had medical certificates for back strain in July 1996 (Exhibit R8), Mrs Younes said that she did not know that she had to get workers compensation certificates. She also said she could not remember how the pain was in 1996 compared with 1994 but as the days go by it is getting worse. While agreeing that she had little treatment for her back in 1996 to 1998, Mrs Younes said that while you are working you get certificates, but when you are not it is pointless. There was nothing “they” could do for her, only give her anti-inflammatory tablets.
39. Mrs Younes said the back pain now runs down her legs. She is not sure when that first occurred, perhaps a year after the fall, probably when she got the referral for the X-ray in 1996.
40. In February-March 1996 she had unsuccessfully applied for a job at Campsie. She did not want to travel on public transport. She accepted voluntary redundancy in August 1996 because she thought that she was only 26 or 27 years old and could not do the sort of work she had been doing any more. Sitting down did not help her back and arms.
41. She was off work until the middle of 1997. Her parents had moved next door to her. Her mother was there to help her. Mrs Younes was feeling a lot better than when she was working. She still had pain in three areas. Her back was the worst, with pain coming and going. She used pain killers only. She had a prescription for anti-inflammatory tablets. The pain would also come and go in her arms. Her feet were alright as long as she got them done at the podiatrist a couple of times a year.
42. Having had the year off, and her parents living next door, she decided to try part-time work at Big-W. She worked 5 days a week from 8.30 am to 1.30 pm. For the first six months she was in the baby-ware department where she did price checks, unpacked boxes, put up new stock and dealt with returned stock. She then moved to the cosmetics counter where she remained until she left in 1999. She presented cosmetics, unpacked boxes and put goods away. She was on her feet all day and it was tiring. The work was repetitive and involved bending and stooping. Boxes were up to 20 kg in weight.
43. There was only a small section where she could sit down, and the work did not help her back and arms at all, which were getting worse. When she stopped work in April 1999 to go on maternity leave she thought she would get better if she stopped work. She did not return to work after the maternity leave because “she could not do it anymore”. The pain was still in her arms and her back was getting worse. Some days were “OK”. She had no treatment.
44. She agreed in cross-examination that the work at Big-W may have increased the severity of her lower back pain, although she said that ever since she fell she had always had back pain.
45. Following the injury to her left little finger on 4 November 1998 when she lifted two boxes, she saw Dr Prasad and then Dr Kapila on a couple of occasions. She was declared fit apart from her finger and had no time off for that injury and continued in her job until she took maternity leave in 1999.
46. Dr Prasad practised at the Campsie Medical Centre. Mrs Younes’s records before 13 July 1998 held at that practice had been destroyed (see file note Ex TB p 39). Mrs Younes agreed in cross-examination that she had little by way of treatment to her back, arms, neck, and legs, from August 1996 until July 1998 and that “he [Dr Prasad] couldn’t do anything for me”.
47. The first complaint relating to Mrs Younes’s arm in the available records from the Campsie Medical Centre (Exhibit R17) was on 2 October 1998. It was “tenosynovitis R elbow”.
48. When it was suggested to Mrs Younes that in the Campsie Medical Centre records the first complaint about her back after 13 July 1998 was on 6 September 2001, she said she could not remember but “I would have complained in 1996”. She said she was told that there was nothing that could be done.
Current condition
49. Mrs Younes has not worked since 1999. She has pain in her back, arms and legs. She is getting worse. She has had physiotherapy for her back, arms, shoulders and neck. She has shoulder and neck pain and lots of headaches. She first noticed the shoulder and neck pain in 1995 and says it is caused by the pain in her back and arms. She has had physiotherapy treatment twice a week “last year to this year”.
50. She continues to have podiatry care every four weeks and her feet are “OK”. She is not on them like she was. In 2000 to 2001 she had podiatry care once or twice a year.
51. Mrs Younes said her back troubles her all the time. She has pain down the back of her legs but later she said it went down the front and back of her legs and into her groin area. It comes and goes fairly often. Sometimes she is “OK” for a whole day and sometimes she cannot move. She cannot move for at least one week a month. During the other three weeks she has some good days and some bad days. During a bad week she described the worst pain as being 10 out of 10 (on a scale where 10 was the worst pain and 0 was no pain). She cries with the pain. She spends minutes thinking about getting up out of a chair. In a bad week, she described the lowest level of pain she gets is 6 on the scale. In good week there is hardly any pain, but she is pain free only about 7% of the time. She always has pain, if not in her back, in her legs. The average level of pain is 4. She always has pain down both legs, although the left is worse.
52. Mrs Younes says the pain in her arms and shoulders comes and goes, two to three times a month. It occurs in the posterior and dorsal aspects of her forearm and more in her right arm than in her left, although in the same areas. She suffers a lot of aching. She described the pain as being 5 out of 10. She takes anti-inflammatory tablets all the time, sometimes everyday for a week. She takes panadeine forte about once a week. She has a prescription and uses a packet every 2 months. She takes Panadol once a day or once every 2 days.
Her activities
53. Mrs Younes cannot mop the floor or bathe her children. Her children are 12, 8 and 5. Her mother has to bathe the five year old. Looking after the children requires lots of bending and getting up. Hanging out washing affects her back and arms. She walks to the shops to get a few things, however her mother is always with her. She used to walk a lot but cannot now. She finds difficulty wearing high heeled shoes and is better off walking in flat shoes. She can drive but uses the mirrors a lot, although she can move her head to the right and left. Her husband helps her with various things including cutting up her meat and drying her hair.
54. She said she has no capacity to return to work. She denied she was capable of doing the work she had done with the Department prior to July 1996. She explained in re-examination that clerical work is too much for her arms and back. She cannot do the work she did at Big-W because of having to stand on her feet, using the register and the hand-gun used for pricing.
55. Mrs Younes could not remember discussing running a newsagency with Ms Margo Doctor, a vocational consultant, in 2001. However she agreed she possibly discussed working in cosmetics but she said she could not do that because of her arms and back, and standing.
Medical Evidence
56. Following the injury to her little finger on 4 November 1998, Mrs Younes saw Dr Kapila, a general, hand and micro-surgeon, on a number of occasions during 1999, the first being on 13 April (see Exhibit A1). On 23 January 2001 Dr Kapila reported to Dr Prasad on Mrs Younes’s little finger and remarked relevantly to these proceedings:
“She stopped working in April, 1999. According to her, she was diagnosed having RSI in the right arm”. … “On examination she has a good range of movements in the neck and shoulder, but there was slight pain”. (Exhibit R13)
57. There were three reports from South-West Rehabilitation “SWR” to Dr Kapila. The first report of 6 April 2001 (Exhibit R14) stated that ultrasound, heat and massage treatment was being given as well as shoulder exercises. Mrs Younes reported that the shoulder exercises “are beneficial” and she “experiences radiating pain in her arm, and occasional pain in her fingers”. It is not clear which shoulder/arm was referred to.
58. The next SWR report was dated 14 June 2001 (Exhibit R12). It refers to Mrs Younes attending “on a regular basis for hand therapy” and having failed to attend on 22 May 2001. An extract from the report reads as follows:
“At this stage, she phoned to say she had been involved in a motor vehicle accident and I have not head from her since.
I have written to her and asked her to contact me.
She reported that her left arm felt the same, however, she was having problems with her right hand with pins and needles. Both her shoulders had decreased range of motion.
Mrs Younes reported that therapy gave her some limited relief for a few hours but the benefit was not sustained”.
59. The final SWR report is dated 19 July 2001 (Exhibit R12). Relevantly the report states:
“I have not seen Mrs Younes since 15 May 2001.
She phoned to say that she was feeling the same and had decided to cease therapy and to continue heat and massage at home.
These were the two modalities she found most helpful.
At this stage, I plan to have no further contact unless Mrs Younes contacts me.”
60. Early in 2001 she was referred by Dr Prasad to Dr Manohar, a medical specialist in musculo-skeletal and rehabilitation medicine and Dr Crimmins, a medical educator.
61. Dr Anand prepared a report on 30 January 2001 of an electrodiagnostic examination (Exhibit R10). The results appear to relate principally to the right lower arm wrist and fingers. The conclusion was “Above results are within normal limits”.
62. Dr Crimmins saw Mrs Younes on 22 January 2001 (Exhibit A1). His report is concerned with her left little finger injury. However he makes two relevant observations: “Past history Tenosynovitis right hand since 1999. Present History No significant medical history.” He also relates “Due to the tenosynovitis in the right arm Maria must use her non-dominant left arm more often”. The treatment suggested related only to the left forearm and wrist. An impairment assessment of the left upper extremity was provided.
63. Dr Manohar saw her on 12 February 2001 when her complaints were of pain in the neck extending down both arms with paraesthesia in the thumb and fingers. He reported that “the symptoms are gradually worsening and are felt in the right elbow extending down the forearm and up into the shoulder girdle”. (Ex A1 p 66). Dr Manohar’s advice was “to undertake a formal physical capability assessment, to find out her current physical capacity”. There was no reference to a back injury.
64. Dr Manohar also reported on 24 January 2003 to Mrs Younes’s solicitors (Ex A1). That report reveals that Dr Manohar had also seen Mrs Younes on 5 March 2001 and 24 January 2003. The doctor refers to Mrs Younes relating a fall at work “on the 14 September 1995” when she “felt low back and bilateral leg pain and was off work for a few days”. Her complaints on 24 January 2003 were of neck pain, low back pain, bilateral leg and foot pain, bilateral arm pain and hand pain. The diagnosis was “chronic pain syndrome, strain of the paracervical muscles, musculo-ligamentous strain of the forearms, L5/S1 annular tear, Deformity and osteoarthritic changes in the left little finger”. The doctor also provided an assessment of permanent impairments and attribution to work at Big W and the Department. In reports of 9 May 2003 and 6 June 2003 (Exhibit A1), Dr Manohar provided whole person impairment assessments but in the latter report advised that he found it difficult to separate the Big W and Department components of the impairments.
65. Mrs Younes was psychologically assessed by Ms Rita Cobanov on 12 February 2001 for the purpose of a workers compensation claim (Exhibit A1). In a report of the same date, the medical history given includes RSI in Mrs Younes’s left and right arms affecting both her wrists, elbows, shoulder and neck. There is no reference to back pain or a back injury.
66. On 12 February 2001 Mrs Younes also saw Ms Margo Doctor for a vocational assessment report for the purposes of a workers compensation claim (Exhibit A1). The report focuses on the injury to the left little finger. The pre-injury medical history refers to RSI of the right hand in 1994, a fall down stairs at work in 1995 and painful corns under the feet “due to standing long hours at work”.
65. Mrs Younes saw Ms Doctor again on 16 October 2001 for the purposes of workers compensation in relation to her fall on 14 June 1995 (Ex TA, document T37). She told Ms Doctor that at the time of the fall she had experienced lower back pain, mainly on the right, which was radiating to the calves, and paraesthesia. She also reported experiencing “lightening (sic) or electric shocks” when walking in the house after she returned home from hospital following the birth of her baby (in 1995) and that she fell every second or third day. She also reported daily lower back pain when she returned to work, sitting and standing were difficult. Standing up was painful and she had poor sitting tolerance at the computer.
66. Her complaints at the time included lower back pain radiating through the legs to the feet and the calves and pins and needles in her feet. She suffered headaches, had neck pain, pain the arms and shoulders and aching in the left 5th finger which also involved her left hand and wrist and sometimes the left index finger.
67. The report of the Dr Alan Sacks dated 17 May 2001 (Exhibit R11) is unhelpful. It is headed “Right Shoulder U/S” but refers to “examination of the left shoulder”. Whichever shoulder was investigated, the conclusion was “the tendons of the rotaor (sic) appear sonographically intact”.
68. Campsie Radiology Centre reported to Dr George Abouyanni on 3 September 2001 in relation to the “L/S Spine and S1 Joints” (Exhibit R15). There was no abnormality of any significance noted.
69. Mrs Younes saw Doctor Kassar on 3 October 2001 for an incapacity and disability evaluation report (Exhibit A1) in respect of her back injury on 14 June 1995. She described experiencing lower back pain with bilateral radiation of pain to her calves with paraesthesia at the time of the fall, and that she was currently suffering daily lower back pain with radiation to both legs. Dr Kassar concluded that “Mrs Younes clinical presentation indicates a lumbar disc lesion with a neurocompression effect. However the result of the MRI of her lumbar spine does not support this diagnosis”. The doctor had two investigation reports. The first from Sydney Imaging Group (17 July 1996) reported “Lumbo-sacral spine – Comment: no significant pathology was detected”. The second report was from Campsie Nuclear Medicine of 12 September 2001 which said “Whole Body Bone Scan – Comment: Today’s study demonstrates mild degenerative change in the lumbar spine, hips and shoulders, with no focal osteoblastic activity to suggest occult fracture of inflammation”.
70. Mrs Younes saw Dr Rosenberg, orthopaedic surgeon on 12 March 2002. His report was dated 13 March 2002 (Exhibit A1). The doctor concluded that her 1995 back injury caused her on-going problems. She reported that since the fall in 1995 “she has continued to suffer with low back pain with periodic exacerbations. It can occasionally radiate into her legs down the backs and into her calves but overall her back pain troubles her more than her leg pain.” The doctor had an MRI scan from 2001 that he said “shows a lumbosacral disc protrusion with an annular tear”. This was apparently the Health Care Radiology Group MRI dated 11 September 2001 (Exhibit A1) (“the first MRI”). Dr Rosenberg also had 1996 X-rays and a bone scan from 2001.
71. The first MRI reported: “The conus lies at L1. The L5/S1 disc is desiccated and demonstrates a postero-central annular tear. No nerve root compressive lesions in the lateral recesses or foraminae. The bone marrow signal is normal”.
72. Dr Robert Gertler, psychiatrist saw Mrs Younes on 21 October 2002 at the request of her solicitors. Mrs Younes’s “present complaints” relevantly included pain and numbness in both wrists and forearms, low back aches and pain radiating occasionally down both legs, shoulders aching this can radiate into the neck, calluses on her feet which “kill”. Mrs Younes related having developed pain in both arms and wrists in 1994 when working for the Department and also a fall down stairs in 1995 resulting in pain in her low back.
73. Reports from Doctor Rowe, orthopaedic surgeon (Exhibit R22), Dr Carr, rheumatologist (Exhibit R23) and Doctor Bornstein, orthopaedic surgeon (Exhibit R24) were also tendered in to evidence. These reports were apparently prepared for the compensation claim against Woolworths (Big W).
74. Dr Rowe found no evidence of any pathology in Mrs Younes’s neck and arms and said “Any such problem that may have existed originally has long since resolved as one would have expected”. In relation to her back, he found degenerative change at the lumbosacral level “consistent with age and constitutional factors. There is no evidence to relate this degeneration by way of cause or aggravation to either the nature and conditions of her employment nor to the subject fall” (in 1995).
75. Dr Carr considered that the “level of disc degeneration presently was sufficient to explain her back symptoms on an intrinsic basis” and “I would regard the event that occurred in 1995 when she fell down the stairs as non-contributory to her current back state”. He considered her neck and arm symptoms as non-specific.
76. Dr Bornstein found that Mrs Younes had metatarsal deformities. The resulting calluses and pain were unrelated to her employment. The doctor’s assessment of her arms and her back was limited to her work with Woolworths.
The Evidence Dr Ellis and Dr Maxwell
77. Dr Ellis and Dr Maxwell gave oral evidence. Dr Ellis saw Mrs Younes on two occasions, 14 September 2001 and 20 April 2004 at the request of Mrs Younes’s solicitors. Dr Ellis had prepared a number of reports. The first is dated 18 September 2001 (part of Exhibit A1). That report addressed the alleged injuries Mrs Younes suffered at both the Department of Education and Big W.
78. Dr Ellis found that Mrs Younes suffered continuing disability arising from repetitive strain injury, low back pain, her left little finger and the pain in the soles of both feet. He noted an MRI examination of the lumbar spine revealed the L5/S1 disc to be dessicated and a postero-central annular tear (the first MRI) which given her age, he found to be “the direct result of the lifting strains at work” rather than the result of the ageing process. He found that each of the repetitive strain injury, the back disability and feet problems were related equally (50% each) to her work with both her former employers.
79. In his report of 23 April 2004 (in Exhibit A1), Dr Ellis relevantly described Mrs Younes’s continuing disabilities:
“Symptoms of repetitive strain injury continue in both wrists with pain and restriction of movement; and the pain has increased. Pain is aggravated by using her hands and there is intermittent numbness and paraesthesiae in digits 2, 3 and 4 of both hands, sometimes involving the whole hand. The right hand is particularly involved and particularly at night.
Neck pain continues aggravated by sustained position and sudden movement.
Low back pain continues aggravated by sustained position and sudden movement.
Low back pain continues aggravated by bending, lifting, prolonged standing, sitting and walking. There is no longer radiation of pain to the lower limbs, no longer numbness and paraesthesiae in the right foot.
…
Pain continues in the soles of both feet aggravated by standing, and walking.”
Dr Ellis also said:
“She is unable to seek employment because of her back and feet. Standing aggravates both her back and feet, sitting aggravates her back, and her arms are weak.
It is unlikely that she would be able to in the future to achieve re-employment even in light work. She is permanently unfit for physically demanding work requiring forceful use of her arms, bending and lifting.”
80. Mrs Younes said she did not know why she told Dr Ellis in April 2004 that the pain no longer radiated in her legs and that she no longer had pins and needles in her right foot, but said she always had such pain but probably at the time did not.
81. In his report of 12 May 2004, Dr Ellis found the following whole person impairments assessed according to the Comcare tables: 20% in her right upper limb, 10% in the left upper limb, 10% in her back, 10% to her lower limb and 5% for her cervical spine, giving an overall whole person impairment of 45%. Again, Dr Ellis attributed that figure evenly to both the Department of Education and Big-W.
82. There was an alteration between the 2001 and 2004 reports. Doctor Ellis reported the June 1995 fall occurring on the right side in his 2001 report, but on the left side in his 2004 report. He said that when he reread to her details of the fall, Mrs Younes corrected him and he then made the correction.
83. In his report of 12 May 2004 (in Exhibit A1) Dr Ellis addressed Dr Maxwell’s opinions. He said Dr Maxwell did not recognise repetitive strain injury as a genuine clinical entity and cited various articles in support of his opinion that it is. He also criticised Dr Maxwell’s opinion that the first MRI scan was a common normal variant and referred to articles supporting his thesis that the dessication and annular tear in the first MRI indicated in this case that an injury had occurred. It was important to Dr Ellis’s finding that there had been a back injury.
84. In cross-examination, Dr Ellis agreed that movements on examination can be limited voluntarily by a patient and therefore are not entirely objective but emphasised that it was for the medical examiner to assess and when you have been in practice for 50 years, you can distinguish malingerers. He was unshaken in cross-examination on his view about RSI, the significance of the disc dessication and annular tear, and Mrs Younes’s disabilities and inability to work. He said that pain does not necessarily occur immediately following a back injury, but may come on days, weeks or months later.
85. The MRI scan of 8 June 2004 (“the second MRI”) (Exhibit A1) found a disc protrusion L4/L5. The first MRI scan referred to a different level of the spine, L5-S1. Dr Ellis said that radiologists frequently confuse the two locations. He did not agree that the difference reflected a further lifting strain after the 1995 injury.
86. In Dr Maxwell’s opinion Mrs Younes suffered no significant trauma to her back on 14 June 1995. She had just one day off work, took maternity leave and then returned to work. On examination he had found a full range of back movement and no radiculopathy and no reflex changes. He considered the first MRI scan findings to be common and referred to studies of annular tears which were asymptomatic (Exhibit R25). He said that they did not indicate traumatic injury. Dr Maxwell had looked at the second MRI scan himself and it was in fact of L5-S1, not L4-L5. He said that an extruded disc is usually associated with radiculopathy rather than back pain. The first MRI did not indicate an injury in 1995. Dr Maxwell disagreed with Dr Gale’s assessment in the second MRI scan that there had been a progression from 2001.
87. Dr Maxwell said that there was no pathology in Mrs Younes’s neck, arms or shoulders. He described RSI as a cause of injury which uses the aetiology of the condition to describe it. It is not based on a pathological condition. It is now called chronic pain syndrome. He disagreed with Dr Ellis’s opinion set out in the report of 12 May 2004 (Exhibit A1) that RSI is a variant of reflex sympathetic dystrophy and explained why.
88. He described Mrs Younes’s feet problem as being a constitutional condition of clawing of the toes. The toes do not take as much pressure as they should and there is more pressure on the metatarsal heads. Being on the feet may bring on symptoms but there is no pathology and it would not persist when activity was abandoned.
Consideration
89. In considering the evidence, the Tribunal had the assistance of very helpful submissions from Mr Batchelor and Mr Kelly.
The Back and Legs
90. The Tribunal does not accept that Mrs Younes injured her back when she fell in 1995. There is no contemporaneous record from the time of her fall at work until August 1996 when she took voluntary redundancy supporting her allegation of injury and symptoms. She was absent from work for back strain or back pain in July 1996 which was not related to her work. Mrs Younes was aware of her right to compensation for such an injury but no made no claim until18 March 2003 (Exhibit TB, PT9). She continued working after her fall, took maternity leave, returned to the same duties and then took a voluntary redundancy. After 12 months off work, in mid 1997 she began working for Big W in a position where the work was heavy and repetitive. She injured her little finger in November 1998 but continued working on unchanged duties until she took maternity leave in April 1999. She has never returned to work.
91. There is a gap in the medical records of her general practitioner’s practice until 1998, however, she conceded that she had little or no treatment during that period. Her explanation was that “nothing could be done”. However, after 1998, there is still no evidence of a complaint of a back injury or back symptoms until after Mrs Younes had retained solicitors in relation to a workers compensation claim, which had occurred by 30 November 2000 (Exhibit TA at T18) and which was apparently triggered by her injury to her little finger in November 1998.
92. Mrs Younes’s extensive and detailed evidence of serious symptoms since 1995, her resulting incapacity, and her reports to doctors about her back and legs from 2001 onwards are inconsistent with the facts outlined above. Further, there is little if any evidence of treatment even after 2000. Mrs Younes gave only a history of taking pain killers and anti-inflammatories.
93. The lack of corroborative evidence from 1995 until 2001 is decisive in the Tribunal’s opinion. It also follows that the Tribunal prefers Dr Maxwell’s opinion about Mrs Younes’s back. Dr Ellis’s opinion relies on Mrs Younes having injured her back in 1995 during the course of her work which we find did not happen.
94. The Respondent has no liability in respect of Mrs Younes’s back as there was no injury.
The Feet
95. There is no contemporaneous documentary evidence supporting a complaint that Mrs Younes suffered problems with her feet when she was working for the Department. The first complaint about that problem and any relationship with Mrs Younes’s work in the Department also appears after assessment for workers compensation purposes had begun in 2001. Further, her work with Big W from 1997 until 1999 involved more standing than did her duties with the Department. It seems inconsistent for Mrs Younes to have taken on such work and continue with it if she had had the trouble with her feet she described when working with the Department. The Tribunal does not accept Mrs Younes’s evidence on this issue.
96. The Tribunal accepts the evidence of Dr Maxwell, which is supported by the evidence of Dr Bornstein, that the condition of Mrs Younes’s feet is constitutional.
97. The Tribunal finds that Mrs Younes suffered no injury to her feet during her employment with the Department and accordingly there is no liability under the Act as alleged.
Neck and arms
98. Mrs Younes did suffer RSI while working at the Department for which liability was accepted. The last record of any complaint or treatment when she worked at the Department was in February 1995. The documented symptoms were confined to her right arm and wrist with one reference in May 1994 to tightness and heaviness in the back of the neck (right and left) and a dull ache in the shoulder. She was able to carry out her duties and returned to those same duties following maternity leave from August 1995 to January 1996, until she took a voluntary redundancy in 1996.
99. She worked at Big W undertaking heavy repetitive work from mid-1997 until April 1999 when she left on maternity leave. To take on such work and continue doing it during that period is inconsistent with her evidence of serious and incapacitating symptoms.
100. The first documented complaint after March 1995 is a reference to “Tenosynovitis R elbow” on 2 October 1998 in the Campsie Medical Centre notes (Exhibit R17). The next reference is on 23 January 2001, after Mrs Younes had retained solicitors in relation to a workers compensation claim. It said, to the extent that it can be deciphered: “W/C Re L little finger S/B Dr Kapila advised to wait & see” and underneath that “Painful neck / R forearm & R wrist”, some undecipherable notes and alongside “?RSI (previous injury)”. When Mrs Younes saw Dr Crimmins in January 2001 she gave a history of “tenosynovitis of the right hand since 1999”. There was no evidence that Mrs Younes took leave from her job with Big W because of any RSI / tenosynovitis problem.
101. The Tribunal does not accept Mrs Younes’s evidence that she has suffered symptoms in her arms, neck and shoulders and headaches throughout her employment with the Department and ever since and that those symptoms are getting worse. On the evidence, her condition had resolved by March 1995.
102. The Tribunal accepts the evidence of Dr Maxwell that there is no pathology in Mrs Younes’s neck, arms or shoulders and her range of movement in all these areas was near normal.
103. For these reasons, the Tribunal finds that Mrs Younes does not suffer incapacity or impairment resulting from pain in her neck or arms resulting from her employment with the Department as alleged. There is also no liability under s 14 of the Act.
Decision
104. In each of proceedings No. N2003/243, N2003/1777 and N2004/237, the decision under review is affirmed.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of THE ADMINISTRATIVE APPEALS TRIBUNAL
Signed: Guy Moloney .....................................................................................
Associate
Date/s of Hearing 21,22 July 2004
Date of Decision 27 September 2004
Counsel for the Applicant M Batchelor
Solicitor for the Applicant Cameron Gillingham Boyd
Counsel for the Respondent B Kelly
Solicitor for the Respondent Dibbs Barker Gosling
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