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Giacomantonio and Australian Postal Corporation [2003] AATA 40 (16 January 2003)

Last Updated: 1 October 2009



Administrative

Appeals

Tribunal


DECISION AND REASONS FOR DECISION [2003] AATA 40

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q2000/815

GENERAL ADMINISTRATI VE DIVISION
) Q2002/15

Re
MARILYN JOY GIACOMANTONIO

Applicant
And
AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal
Deputy President Don Muller
Dr K P Kennedy OBE, Member

Date 16 January 2003

Place Brisbane

Decision
The Tribunal affirms the decisions under review.

.............(Signed).................................
D.W. MULLER

DEPUTY PRESIDENT


CATCHWORDS

WORKERS COMPENSATION – permanent impairment – natural degeneration


REASONS FOR DECISION
Deputy President Don Muller
Dr K P Kennedy OBE, Member

  1. The applicant, Marilyn Joy Giacomantonio, seeks review of the following two decisions:
  2. The applicant was represented by Mr. McGrath of counsel and the respondent was represented by Ms. Downes of counsel.
  3. Ms. Downes conceded that the Tribunal has the jurisdiction to review Q2000/815, the claim for permanent impairment, but submitted that the Tribunal does not have jurisdiction to review the decisions to refuse the claim for ongoing weekly payments and medical expenses, Q2002/15.
  4. As a preliminary point the Tribunal decided that the refusal of the Claims Manager to deal with the applicant’s claim for ongoing weekly compensation and medical expenses amounted to a refusal of the claim, and the refusal of the Reconsiderations Delegate to reconsider that decision amounted to a reviewable decision to refuse the applicant’s claim for ongoing weekly compensation. Consequently, the Tribunal decided that it had jurisdiction to review both matters, and that they should be heard together.
  5. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and a number of medical reports. The applicant gave oral evidence. Some medical evidence was given orally and other medical evidence by telephone.
  6. Ms. Giacomantonio gave evidence in chief to the following effect:
  7. During cross-examination of the applicant by Ms. Downes, the following points were made:
“No significant discomfort in the right elbow. Full range of movement in the right shoulder. No localised tenderness in the right shoulder (T8 February 1998).
Ms. Giacomantonio reported that her right shoulder and elbow were settling. She had some mild thoracic discomfort. Ms. Giacomantonio was able to continue with her normal duties at work and there was a full range of movement of the right shoulder and so on. (T10 11 March 1998)”

(vii) Ms. Downes put to the applicant that subsequent to March 1998 she had seen Dr. Goode on a number of occasions about her back but that she had made no further reference to her wrists or shoulders. In addition, there had been no mention of discomfort in her left shoulder since mid 1996. In relation to the left shoulder, the applicant agreed with Ms. Downes. In relation to the wrists and right arm and shoulder, the applicant agreed that she would have told Dr. Goode if she had been experiencing symptoms in her shoulder, elbows or wrists. Her only explanation was that the symptoms had possibly abated for some time.
  1. The first medical witness was Dr. Jim Ryan of the Wishart Medical Centre who gave evidence by telephone. Dr. Ryan is a general medical practitioner and either he or Dr. Chan had reviewed the applicant at the Medical Centre over the period February 1996 to July 2001. Dr. Ryan's evidence was to the following effect.
  2. The next medical witness was Dr. Steven Goode, a specialist in occupation medicine. Dr. Goode is also a Consultant to Australia Post. Dr. Goode gave oral evidence. He told Ms. Downes that he had seen the applicant on 18 occasions. Medical reports prepared at the time of those consultations were included in the T documents. Dr. Goode had seen the applicant over the period 29 February 1996 to 4 August 1998. Dr. Goode’s evidence was to the following effect:
  3. The next medical witness was an orthopaedic surgeon, Dr. Mark Robinson. Dr. Robinson had provided two written reports and he also gave evidence by telephone. In his written report of 17 March 2000, Dr. Robinson referred to the two episodes of back pain. He stated that the applicant told him that at that stage the back symptoms had completely settled although she did have intermittent problems and referred to one episode of back pain in January 2000 on waking one morning. She could recall no specific injury preceding that incident. On that occasion the symptoms settled over two to three weeks. Dr. Robinson’s other evidence was to the following effect:
  4. Dr. David White, orthopaedic surgeon, examined the applicant on one occasion on 7 August 2001. He prepared a written report, dated 20 August 2001. He gave oral evidence to the Tribunal. The main points arising out of Dr. White’s statement and evidence were:
  5. A written report prepared by Dr. John Pentis, an orthopaedic surgeon was included as Exhibit 8. Dr. Pentis was not required to give oral evidence. That report of Dr. Pentis was dated 12 November 1998 and related only to his examination on that date. Dr. Pentis noted that the x-rays showed degeneration in the facet joints and in the lumbosacral region. He commented that the applicant appeared to have injured her spine in the stated incident on 19 July 1998. At that time he recorded that the incident was causing continuing problems but that it was then too early to give a prognosis. Dr. Pentis made no reference to any shoulder, arm, wrist or elbow problems.
  6. Dr. Tony Blue, another orthopaedic surgeon, also gave evidence by telephone. Dr. Blue saw the applicant on 27 August 1998. The main points arising from Dr. Blue’s statement and evidence were:
  7. Dr. Peter Boys, also an orthopaedic surgeon, had examined the applicant on 13 March 2001 and he had prepared a written report. He also gave evidence by telephone. The main points arising from his evidence were:
  8. The last medical witness was Dr. Edwin Castrisos. Dr. Castrisos is a qualified medical practitioner and is Medical Advisor to Australia Post. He also has a Diploma in Aviation Medicine and a Certificate in Occupational Medicine. During his evidence in chief Dr. Castrisos confirmed that he had received a request from the applicant to provide a reference in February 1999. At the time he thought that she was applying for a position with the Australian Taxation Office. In the accompanying personal details (Exhibit 14) she had stated her health to be excellent. Also included as part of the same exhibit was a letter which she had written to the Manager of Australia Post. In that letter she said that she had come to terms with the fact that she could no longer perform the duties for which she was employed at Australia Post and that Dr. Castrisos had explained in a very precise way what was the best avenue for her to take. His advice as to what was best for her as a career path and arranging her training for future employment had taken the burden off her which she believe would assist in her future well being.
  9. Dr. Castrisos, during cross-examination, told Mr. McGrath that he had seen the applicant for an initial assessment on 5 October 1998. He was concerned about her suitability for continued employment with Australia Post as a mail officer and referred her to an occupational therapist and a rheumatologist for their opinions. Both those specialists indicated that she was unsuited to the work that she was doing and that a more sedentary type of job would be more suitable.
  10. Dr. Castrisos said that he did not feel that any of her conditions had been made worse by her work at Australia Post. The applicant had widespread degenerative conditions. She had osteoarthritis of both shoulders, she had a degenerative cervical spine and degenerative lower lumbar spine. None of the duties which she was doing would in his opinion have changed the natural course of those conditions. Dr. Castrisos disputed that the work of a mail officer was highly repetitive. He said that the former repetitive work had been transformed by machines and that there had been no major change in practices during the time of the applicant’s employment. He said that the applicant was incorrect if she had stated that the work was highly repetitive. He said that the Underwood Mail Centre, where the applicant had worked, had on a consistent basis won the National Australia Post Occupational Health and Safety Excellence Award for being the safest mail centre in Australia.
  11. The evidence revealed that during the period that the applicant had worked at Australia Post that she had reported numerous symptoms related to her musculoskeletal system. These symptoms had usually come to the attention of Dr. Goode at Australia Post but some symptoms had been reported only to her general practitioner. The areas of involvement at various times had included the left shoulder, the left elbow, the left knee, both feet, both wrists, the right shoulder, the right elbow, the neck, the thorax, the lumbosacral region of the back and the left sacroiliac joint. The applicant claims that she has suffered a permanent impairment as a result of repetitive duties over a five year period at Australia Post and she has also claimed weekly payments for total and partial incapacity. In her claim dated 16 July 2001 (Q2002/15) the applicant stated the injuries sustained to be “injury to both arms and shoulders and back injury”. In the claim dated 21 June 1999 (Q2000/815) she stated injuries to be “lower back, right shoulder, elbow, wrist, arm tendonitis, pain, numbness etc, left shoulder/arm”.
  12. In the view of the Tribunal the applicant was not an entirely reliable witness. There were a number of discrepancies between the history given by the applicant at the time of the hearing and contemporary notes recorded by medical practitioners. During the course of her evidence the applicant acknowledged that she had difficulty recalling details of some events and she did not dispute the accuracy of notes made by medical practitioners at the time. There is no documentation to confirm that she had any continuing symptoms referable to her musculoskeletal system at the time when she finished at Australia Post. In addition, in her application for a position in the following February she described her health as excellent.
  13. In 1996 she had completed a claim for compensation for pain in the left shoulder. In that form she stated that the left shoulder pain had come on as she was picking up small parcels to place on a belt on 16 January of that year. Later she agreed that the pain in the left shoulder had appeared slowly over the previous six weeks both at work and at home but she felt that it had come on first at work. She could not relate the onset of the pain to any specific event. She also said that she experienced pain in both the shoulder and elbow at the time but medical records indicate that the left elbow pain had come on one month after the shoulder pain. This occurred when the applicant was on restricted duties because of the left shoulder pain. Although she is now seeking compensation for left shoulder and arm pain, the records indicate that after she returned to full duties in July 1996 she did not again complain to Dr. Goode of any symptoms referable to her left shoulder during the remainder of her time at Australia Post.
  14. In relation to the 1998 onset of pain in the right shoulder, the applicant said that the pain had not improved and had become worse and persisted up until the time that she left Australia Post. The report of Dr. Goode in March 1998 however reported that her right shoulder and elbow were settling, that she had continued her normal duties at work and that there was a full range of movement at the right shoulder. During subsequent reviews by Dr. Goode in 1998 in relation to her back, the applicant made no further reference to her wrists or shoulders. The applicant agreed during cross-examination that she would have told Dr. Goode if she had been experiencing symptoms in her shoulders, elbows or wrists. It is also perhaps relevant to note that when seen by Dr. Blue in August 1998 and Dr. Pentis in November 1998, no record of symptoms referable to her shoulders, elbows or wrists was included in their reports.
  15. The applicant told Dr. Robinson in March 2000 that her wrists had been swollen since the lid incident in 1997 but that was not consistent with clinical examinations by Dr. Goode subsequent to 1997. Again neither Dr. Blue nor Dr. Pentis had noted any such swelling in 1998 and Dr. Robinson did not record that he had observed any swelling of wrists. In March 2001, Dr. Boys had specifically noted the only abnormality of the wrists to be slight tenderness on the volar surface of the right wrist. In August 2001 Dr. White noted swelling proximal to the wrist crease but he had also noted in his history that the wrist symptoms were aggravated by computer work that she was undertaking in 2001. The evidence of Dr. Boys would suggest that the tenosynovitis diagnosed by both Dr. White and Dr. Robinson may well have been precipitated by activities subsequent to her work at Australia Post.
  16. As far as the medical evidence was concerned, there was uniform agreement that the applicant does have degenerative bone disease. Dr. Ryan agreed that the applicant was someone who was concerned about her health and who would attend the surgery if she experienced pain. He could find only one reference to her attending for back pain between November 1998 and September 2002 and that was for a referral to an orthopaedic surgeon. In her own evidence the applicant could not be certain that she had back symptoms when she ceased work with Australia Post.
  17. Dr. Goode said that while much of the work at the Mail Centre is of a repetitive nature, the centre does take care to get good ergonomic assessment and that staff are rotated between tasks. He would not concede that the applicant had developed symptoms due to injuries arising from her work. He accepted that if one has underlying degenerative disease then the work could unmask symptoms relating to that condition.
  18. Dr. Mark Robinson, her treating orthopaedic surgeon, said that in March 2000 the applicant had told him that her back symptoms had completely settled although she did have intermittent problems. She told him of an episode of back pain in January 2000 which had come on without any specific precipitating factor and had subsequently settled over three weeks. Although Dr. Robinson stated at the conclusion of his evidence that he was of the opinion that 50% of her degenerative disease was due to her work at Australia Post, the Tribunal does not attach much weight to that opinion of Dr. Robinson because his evidence was inconsistent. He had earlier acknowledged that he had been given no detail of the duties of the applicant at Australia Post before arriving at his conclusions. In addition he had based his opinion on information provided by the applicant some of which has been shown to not be completely accurate. His opinion is also contrary to the weight of the other specialist opinion. Dr. Robinson acknowledged, that although he had made an assessment of the degree of disability, that assessment had been based on an examination in March 2000 and he was in no position to comment on the current level of disability. In spite of the earlier opinion, Dr. Robinson did agree during the cross-examination that the degenerative changes noted could be solely age related but he felt that the tenosynovitis of the right wrist was due to the lid incident in 1997.
  19. Dr. White had seen the applicant over 18 months after she had left Australia Post. The history given to Dr. White in relation to the right shoulder was also incorrect when regard is had to the contemporaneous medical notes. Dr. White in recording his examination of her right shoulder said that there was no wasting or deformity, there was no tenderness noted, abduction was only mildly reduced and there was a moderate lack of internal rotation. Yet he assessed the right shoulder has having only half the normal range of movement and an impairment rating of 10%. Dr. Boys on the other hand assessed the impairment rating of the right shoulder at 5% but said that impairment was not due to work related injury. Dr. White in his written report had stated that the injury to the lumbar spine appeared to have resulted in intradiscal disruption at L5/S1 but no other orthopaedic surgeon had expressed that view and Dr. Boys said that such a diagnosis did not correlate with the clinical features at the time. The Tribunal prefers the opinion of Dr. Boys in the circumstances.
  20. Dr. Blue had seen the applicant in August 1998. It is perhaps of significance that Dr. Blue made no reference to any shoulder or wrist symptoms at the time. Dr. Blue was in no doubt that the described work activities had merely produced temporary aggravation of long standing naturally occurring disc degeneration and lower facet degeneration. He believed that the radiological changes were of many years standing and would have antedated her work at Australia Post. He said that the work at Australia Post would not have caused the degenerative change.
  21. Dr. Boys had examined the applicant over two years after Dr. Blue. His history and examination were more comprehensive. He could find no evidence of any work related injury. He assessed a 5% impairment of the right shoulder and 5% impairment of the back and no impairment of wrists, elbows or left shoulder. In each case he attributed the impairment to age related degenerative disease.
  22. On the basis of the total evidence, the Tribunal accepts that the applicant has naturally occurring and generalised degenerative disease which had been temporarily aggravated by her duties at Australia Post. Many of the symptoms had come on without any specific precipitating factor, or in the case of her back, with relatively minor activities. The symptoms had subsequently settled in most cases while continuing at work either on restricted duties or at times on full duties. The evidence would indicate that the overall severity and duration of symptoms had been less than that detailed in the history given to some specialists in more recent years. Since leaving Australia Post the applicant has continued to have intermittent symptoms in the absence of precipitating factors, such a pattern being consistent with underlying degenerative disease. Nevertheless, after leaving Australia Post the applicant was able to successfully complete a Business Course at Martin College and to subsequently obtain part time work. No evidence was produced to indicate that she was not fit to undertake appropriate full-time work at any stage since leaving Australia Post and since 2001 she has in fact been working full-time at Virgin Airlines.
  23. The Tribunal accepts the opinion of Dr. Boys, Dr. Blue, Dr. Goode and Dr. Castrisos that the applicant has not sustained any permanent injury as the result of her work at Australia Post. For the reasons stated above, the Tribunal has placed little significance on the alternative opinions of Dr. Robinson and Dr. White. In addition, also for reasons stated above, the Tribunal finds that the applicant does not have any continuing disability for any type of work as a result of her earlier duties at Australia Post. The Tribunal finds that any continuing disability is due to naturally occurring degenerative disease.
  24. The Tribunal therefore affirms the two decisions under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller and Dr K P Kennedy OBE, Member.


Signed: .....................................................................................

C. O’Donovan, Associate


Date/s of Hearing 12, 13.9.02, 11, 12.11.02

Date of Decision 16 January 2003

Counsel for the Applicant Mr. C. McGrath

Solicitor for the Applicant Maurice Blackburn Cashman

Counsel for the Respondent Ms. K. Downes

Solicitor for the Respondent Clarke and Kann


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