Mehdizadeh and Australian Postal Corporation [2009] AATA 149 (10 March 2009)

Last Updated: 11 March 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/3437

GENERAL ADMINISTRATIVE DIVISION		)
	Re		PEGGY MEHDIZADEH

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Ms Regina Perton, Member

Date 10 March 2009

Place Melbourne

Decision

The Tribunal sets aside the decision under review and substitutes a decision that from 12 September 2006 to the present date Ms Mehdizadeh suffered, and that at the present date she continues to suffer, from incapacity and impairment as a result of an injury arising out of or in the course of her employment. The Tribunal orders that Ms Mehdizadeh’s costs be paid in accordance with s 67 of the Safety, Rehabilitation and Compensation Act 1988.

(sgd) Regina Perton
Member

COMPENSATION – whether injury compensable – whether injury arose in the course of employment – whether effect of injury ongoing - decision set aside

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19

Comcare v Amorebieta (1996) 66 FCR 83

Commonwealth of Australia v Beattie (1981) 35 ALR 369

Tippett v Australian Postal Corporation (1998) 27 AAR 40

REASONS FOR DECISION

10 March 2009

Ms Regina Perton, Member

1. Peggy Mehdizadeh has been an employee of the Australian Postal Corporation (Australia Post) since 1999. Between 1999 and November 2003 she worked for Australia Post in a temporary capacity. Since November 2003 she has been a permanent employee. On 15 September 2006, Ms Mehdizadeh lodged a claim for compensation for an injury to her left thumb. On 25 September 2006, Australia Post denied liability for the injury. However, on 27 November 2006, after receiving additional medical reports, Australia Post revoked its earlier determination and accepted liability for strain of (left) thumb – C-MC joint (the injury).
2. On 16 April 2007, Australia Post determined that it no longer had liability for compensation for the injury. Australia Post determined that Ms Mehdizadeh’s ongoing problems with her left thumb were due to the natural progression of a pre-existing condition. That decision was affirmed on internal review on 15 June 2007. Ms Mehdizadeh lodged an application for review of the decision with the Tribunal on 25 July 2007.

ISSUE

3. The issue before the Tribunal is whether Ms Mehdizadeh’s employment with Australia Post contributed in a material degree to the onset or aggravation of her injury and whether the effects of the injury continue and are therefore compensable.

BACKGROUND

4. Ms Mehdizadeh was working as a postal service officer at Richmond Post Office on 12 September 2006 when she was injured. The injury occurred shortly before closing time when she was moving a box of wine from shelving onto a trolley (the wine box incident). At the request of her supervisor, she filled out an incident report before she left the office that day. In that report, she described the incident as follows:

When picking up the...carded item which happen [sic] to be a...heavy box full of wine I hurt my finger.

5. Ms Mehdizadeh lodged a claim for compensation on 15 September 2006. By that time, she had sought medical treatment including at the Box Hill Hospital on the night of the injury. Ms Mehdizadeh described the injury as one to her left thumb. In the portion of the form to be completed by the acting manager, Ms Carol Violato, recommended that Ms Mehdizadeh’s claim not be accepted. Ms Violato did not explain why the claim should not be accepted.
6. On 25 September 2006, Australia Post’s delegate refused compensation. The delegate relied substantially on an investigation of, and statement by, an Australia Post employee, Doug Cunningham, summarising its content as:

a) Your incident was not witnessed by any staff member.
b) You indicated that you could not lift the weight. However, Mr Cunningham stated that you did not advise your Manager about any weight restrictions and there is [sic] no medical restrictions in place
c) Mr Cunningham indicated that the manner in which you described how you sustained your injury is difficult to comprehend as it would be very difficult to slide the parcel to the lower shelf of the trolley.

7. Ms Mehdizadeh sought legal assistance. Her lawyers sought a reconsideration of the delegate’s decision on 19 October 2006, stating:

...
You’ve made the determination without putting sufficient emphasis on the evidence which is supportive of our client, namely:
(1) Our client reported the incident within minutes of it occurring to a co-worker and to her Manager. Why have you not obtained statements from them confirming a connection between work and the injury?
(2) The many medical certificates provided which all link our client’s injury to her work which includes:-
Certificate from Box Hill Hospital dated 12 September, 2006 - “weight falling onto left hand”.
Dr King dated 15 September, 2006 – “injury to left hand from falling box”.
19 September, 2006 certificate of Dr. King – as above.
26 September, 2006 certificate from Dr. Vanderzeil – “left hand pain – injury from falling box”.

8. On 27 November 2006 Australia Post reconsidered its earlier determination and accepted liability for the injury, namely strain of (L) thumb – C-MC joint. Ms Mehdizadeh was subsequently placed on restricted duties and a rehabilitation program put in place. On 27 March 2007 the rehabilitation provider reported that she had spoken to Ms Mehdizadeh’s then manager, who had reported that Ms Mehdizadeh was working to the rehabilitation plan.
9. On 29 March 2007 Dr Kenneth Muirden, rheumatologist, examined Ms Mehdizadeh at Australia Post’s request and provided a report. Dr Muirden commented that a soft tissue injury such as that suffered by Ms Mehdizadeh would usually resolve within about six to eight weeks and attributed her current symptoms to underlying osteoarthritis. He stated that the osteoarthritis in her non-dominant left hand appeared to have been asymptomatic at the time of the wine box incident.
10. On 30 March 2007 Australia Post wrote to Ms Mehdizadeh advising her of the content of Dr Muirden’s report and giving her 14 days to comment. On 16 April 2007 Australia Post determined that there was no present liability for compensation benefits pursuant to s 16 or to incapacity payments under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
11. On 22 May 2007 Ms Mehdizadeh sought a reconsideration of Australia Post’s decision. On 15 June 2007 a review officer determined that the delegate’s original decision was correct. On 10 July 2007 Australia Post informed Ms Mehdizadeh that her rehabilitation file had been closed. On 25 July 2007 solicitors representing Ms Mehdizadeh lodged an application for review with the Tribunal.

RELEVANT LEGISLATION

12. Section 14(1) of the Act provides:

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.

13. Section 4 of the Act, as it was at the relevant date, provides:
    • (1) In this Act, unless the contrary intention appears:

...
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
...
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment
...
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

...

Section 16 of the Act provides for the payment of compensation in respect of reasonable medical expenses incurred in relation to an injury, and s 19 of that Act provides for the payment of compensation for incapacity for work resulting from an injury.

WAS THERE AN INJURY ON 12 SEPTEMBER 2006?

14. At the hearing Ms Mehdizadeh described the circumstances in which the injury occurred in detail. As indicated earlier, Mr Cunningham, who was not present when the injury occurred, queried whether Ms Mehdizadeh could have injured herself in the way she described in his report to Australia Post. Ms Mehdizadeh was examined and cross-examined in detail about what happened. The Tribunal is satisfied that Ms Mehdizadeh did indeed sustain an injury on 12 September 2006. The Tribunal must now consider the nature of the injury, its severity, whether the injury impacted on an underlying condition and whether its impact continued beyond 16 April 2007.

WHAT HAPPENED AFTER THE INJURY

15. Ms Mehdizadeh said that she felt acute pain when the box struck her. She said that after she went home, she took some painkillers and then some hours later, her husband took her to the nearest hospital, which was Box Hill Hospital. Medical staff conducted tests and took x-rays at the hospital. Ms Mehdizadeh said that the hospital doctor offered to issue a certificate of incapacity for a few days but she declined the offer on the basis that she was right-handed and, given a staff shortage at that time, she might be able to work using only her right hand. She returned to work the following day. Ms Mehdizadeh’s manager arranged for her to see an Australia Post nominated doctor. Ms Mehdizadeh recalled that the doctor had said that her hand was very bruised and that she should rest and see him again three days later. She returned to work using only her right hand. Ms Mehdizadeh said that when she told her manager that the Australia Post nominated doctor wanted to see her again in three days, the manager cancelled the appointment and advised Ms Mehdizadeh to see her own general practitioner.
16. Ms Mehdizadeh attended her usual medical clinic. Her usual doctor, Dr Vanderzeil, was not available so she saw his colleague, Dr King. She said that Dr King arranged for x-rays, gave her some medication and suggested that she attend the clinic again in two or three days time. She was subsequently treated by Dr Vanderzeil on an ongoing basis, about every two to three weeks.
17. At the hearing Ms Mehdizadeh was wearing a splint on her left hand. Asked by her counsel to remove the splint and show where she felt pain, Ms Mehdizadeh did so. She stated that the site of the pain changed some three to four months after the injury. She also coloured a diagram of a hand showing the initial location of the pain and its later location. Ms Mehdizadeh said that on early doctor’s visits, she had been experiencing pain in different parts of her thumb. She said the area of the pain depended on what she was doing in that week or month. The pain was constant but its impact was not always in the same place.
18. Ms Mehdizadeh said that when she returned to work after the injury, her manager tried to modify her duties. Ms Mehdizadeh said that she was asked to remain on counter duties but not to handle parcels. Ms Mehdizadeh said that it was difficult during the busy lunchtime period to keep a customer waiting for one of the other staff. She said that she tried to modify how she did things, such as bill payments and counting money, but found it difficult not to use her left hand on counter duties.
19. Ms Mehdizadeh acknowledged that there had been discussions between her rehabilitation manager, her manager and herself about the types of duties she would undertake. She said she had expressed concern about her ability to handle counter duties but when pressed to try, she did so. She said that she was in agony when doing so. Ms Mehdizadeh said that following the rehabilitation plan agreed to in March 2007 left her with a painful hand and she was upset about it. Ms Mehdizadeh said that she went to her doctor, who issued a certificate prohibiting counter duties but allowing her to undertake restricted back office duties. Ms Mehdizadeh agreed that a sign had been placed in front of her place at the front counter indicating that she did not take parcels. Ms Mehdizadeh said that sometimes she still handled parcels when everyone else was busy and she had no one to ask, particularly when she was in the back office where parcels were received and despatched. Ms Mehdizadeh agreed that she was taken off carding tasks, which involved people coming to collect parcels of which they had been advised by a card in their letter box, after experiencing difficulties with the duties.
20. Ms Mehdizadeh said that under a revised rehabilitation program, her work included dealing with passport applications, answering the telephone, taking orders and the like. She said that she was coping with that. However, another colleague suffered a non-work related condition that prevented her from doing counter duties. When there were two of them in the back office, there was insufficient work for both of them. Ms Mehdizadeh said that in April 2007, Mr Cunningham from head office said that things were not working out with the restricted duties. Ms Mehdizadeh said that she was told that she should go home and use up her sick leave. She was told to return when she could do her normal duties at the counter. Ms Mehdizadeh said she has not worked for Australia Post since that day. Her doctor has continued to issue certificates to the effect that she should wear a splint at all times; that she should not do repetitive work for more than 30 minutes at a time and that she should undertake light duties with no lifting.
21. Asked about any changes in her symptoms since April 2007, Ms Mehdizadeh said that she had very bad days and all right days. She said that she no longer does much housework as she can only use her right hand. Ms Mehdizadeh said that the pain has eased somewhat in her upper left thumb but at the base of the thumb and nearby on her hand, she continues to feel pain. Ms Mehdizadeh said that prior to the injury she did not have any pain in her left thumb.
22. Under cross-examination, Ms Mehdizadeh said that her thumb was painful to the touch on the day of the hearing. However, wearing a splint modified the pain. She said that when driving, she is unable to slip the seat belt on with her left hand and does so with her right hand. Asked how often she saw Mr Cavallo, her treating surgeon, Ms Mehdizadeh said that she first saw him about a month after the injury and had seen him several times since; although she had not seen him regularly for the previous year except when asked to do so by her solicitor. In response to a question whether Mr Cavallo had tried to wean her off wearing a splint, Ms Mehdizadeh said that he had not said that she should not wear one but suggested she not wear it as often. She said that if she takes off the splint, she wears a band aid around her thumb because it appears to ease the pain.
23. Ms Mehdizadeh said that she could not recall her right thumb being x-rayed in the 1990s nor having a problem with it. She agreed that she had seen her doctor about some recurrent bruising of her fingers in 2004 which she believed was due to carrying bags. She said that she had just mentioned the problem when seeing her doctor about other matters. She said that she bruised easily and expressed difficulty in estimating how long the bruising took to clear. Ms Mehdizadeh agreed that she had experienced a range of health problems with her neck and back in the past. She agreed that she had a head problem which arose after a ladder fell on her head at the nearby shopping centre in October 2004.
24. Ms Mehdizadeh was referred to an Australia Post pre-employment questionnaire that she completed in November 2003, in which she responded to prompt questions stating that she had not had any previous injuries of, or treatment to, her neck and back. She said that she had misunderstood the questions in the form. Reminded of a back injury she suffered in 1991, for which she lodged a claim at the primary school after school care program, that she did not disclose in the questionnaire, she said that she had said no because she no longer had any problems with her back.
25. Ms Mehdizadeh agreed that she had told Mr Cavallo at her last consultation with him in May 2007 that she had experienced significant improvements in her symptoms after hand therapy but qualified it by stating that the improvement did not last long. She said that regardless of what is written in reports, she has experienced pain since the accident which was on and off, little bit better, little bit worse, and it has been here....
26. Ms Mehdizadeh described in detail the nature of her duties at the counter and the back office and the extent to which they involved the use of her left hand. She said that there was a range of activities which it was impossible to do with one hand. She disagreed that she preferred the back room duties because they were more responsible. She also agreed that she had been asked to undertake duties such as cleaning shelves which she stopped doing because she was sensitive to the dust that was raised.
27. After the first two days of the hearing, Australia Post obtained statements from persons who had been employed at Richmond Post Office at the time of the wine box incident.
28. Caroline Violato, in a statement dated 20 August 2008, indicated that she has been employed by Australia Post for approximately 18 years. Ms Violato stated that she first met Ms Mehdizadeh when she supervised her at Greensborough Post Office for a short time in 1999-2000. She became Ms Mehdizadeh’s manager at Richmond Post Office from July 2006. Ms Violato described Ms Mehdizadeh as an unreliable worker. She suggested that Ms Mehdizadeh did not like working at the counter and preferred other duties. Ms Violato stated that Ms Mehdizadeh was working full-time at the time of the injury as she and other part-time staff were sometimes asked to do. Ms Violato stated that Ms Mehdizadeh was placed on light duties after the injury and was returned to part-time hours as Ms Violato needed someone who could perform all duties as a full timer. Ms Violato stated that prior to the wine box injury she had not seen Ms Mehdizadeh lift any parcels that were moderately heavy and that Ms Mehdizadeh had asked other staff to lift the parcels for her on numerous occasions. Ms Violato stated that she had not encountered any other staff requiring as much assistance as Ms Mehdizadeh with parcels, unless they had an injury.
29. Ms Violato stated that late on 12 September 2006, she heard Ms Mehdizadeh moaning behind me and that Ms Mehdizadeh had told her that she had been injured. She said that she insisted that Ms Mehdizadeh complete an injury form before she went home so it could be lodged within 24 hours of the incident. Ms Violato stated that on the following day, Ms Mehdizadeh handed her Workcover forms and she then directed she attend one of Australia Post’s doctors for an assessment. She stated that she directed Ms Mehdizadeh not to lift any parcels and put a sign on Ms Mehdizadeh’s counter indicating that customers with parcels should not go to her.
30. Ms Violato stated that she worked near Ms Mehdizadeh at the counter in the months following the wine box injury. She stated that she and other staff lifted parcels for her. She observed that Ms Mehdizadeh appeared to struggle when holding pieces of paper in her left hand. Ms Violato stated that Ms Mehdizadeh had told her that bill payments and carding were difficult tasks because of the state of her left thumb and hand. She stated that there were a limited number of duties which she could assign to Ms Mehdizadeh. Ms Violato described various tasks which she thought that Ms Mehdizadeh had not handled properly. She stated that on many occasions, she saw Ms Mehdizadeh reading a newspaper or magazine in the back office when she should have been working.
31. In her oral evidence, Ms Violato described several aspects of Ms Mehdizadeh’s work performance both before and after the injury that she believed was poor. She conceded that she had only managed Ms Mehdizadeh for about four weeks before the injury as Ms Mehdizadeh had been on annual leave. Ms Violato mentioned Ms Mehdizadeh’s request for an electronic stapler rather than a plier type stapler prior to her injury as well as errors made by Ms Mehdizadeh. A number of other work-related issues were canvassed which indicated a deteriorating workplace relationship between Ms Mehdizadeh and Ms Violato.
32. Margaret Attwood worked full-time at Richmond Post Office for more than twenty five years. She first met Ms Mehdizadeh in November 2003. In a written statement dated 21 August 2008 Ms Attwood indicated that she had had numerous opportunities to observe Ms Mehdizadeh’s counter work. Ms Attwood stated that it was her impression that Ms Mehdizadeh had been reluctant to handle parcels prior to the wine box injury. She criticised Ms Mehdizadeh’s motivation to work, suggesting she was not punctual and was reluctant to start serving customers when it might mean she was delayed beyond 5.00 pm. She then stated that she had observed Ms Mehdizadeh lift parcels from the counter on many occasions but that when the parcels were large or heavy, she was more likely than other staff members to ask for assistance. Ms Attwood set out her opinion of Ms Mehdizadeh, suggesting she complained a lot when asked to do extra tasks; had made errors on specified occasions; was slower than others; did not seek other tasks when she had completed her own work and other criticisms.
33. In her oral evidence, Ms Attwood said that she had complained about Ms Mehdizadeh to her supervisor but that very little happened as a result. Ms Attwood conceded that when Mr Chan was the manager, he encouraged staff to seek assistance with heavy and awkward parcels and agreed that this was in accord with good occupational health and safety practice. She stated that Ms Mehdizadeh had told her that her hands were painful and initially believed that it was before the injury. However, in cross-examination, she conceded that she could not be positive that this was before the injury. She recalled Ms Mehdizadeh mentioning problems with her hand before the injury but could not state that it was her left hand rather than her right hand.
34. Ms Mehdizadeh responded to Ms Violato’s and Ms Attwood’s statements with her own written statement. She was given the opportunity to give further oral evidence in light of those statements being prepared after her earlier evidence. In her written statement prepared in October 2008, Ms Mehdizadeh stated that before engaged as a permanent employee at Richmond Post Office, she had relieved in 23 post offices. She had worked under the direction of the managers of those post offices. Ms Mehdizadeh addressed issues including her version of the discussions she had with Ms Violato. She stated that she did not agree with the comments of Ms Violato or Ms Attwood concerning work performance, motivation or cooperation. Ms Mehdizadeh provided a personal reference dated 13 June 2003 from a previous manager of Richmond Post Office, Mr David Chan. He described Ms Mehdizadeh as:

...a very pleasant and hard working employee. She is always cheerful and upholds an excellent customer service. She is honest and trustworthy in the duties assigned to her. She is helpful and willing to learn new things.

35. Ms Mehdizadeh said that she had not been counselled or warned about her work performance by Ms Violato prior to the wine box injury. Ms Mehdizadeh said that she had always received the yearly salary increments to which she was entitled. Ms Mehdizadeh said that prior to her injury, she usually dealt with heavy parcels by using a trolley. Her previous manager, Mr Chan, had told all the staff to ask him for help with heavier parcels. Asked what happened when Ms Violato took over from Mr Chan, Ms Mehdizadeh said that she had only worked at Richmond Post Office with Ms Violato for about four weeks before the wine box injury as she (Ms Mehdizadeh) had been on leave for some of the time between July 2006, when Ms Violato started at Richmond, and the injury in September 2006. Ms Mehdizadeh described the components of tasks like carding and why she had found them difficult after her injury. Ms Mehdizadeh said that she tried to adjust the way she undertook a number of routine tasks after she injured her thumb despite experiencing pain doing so. Ms Mehdizadeh disagreed with many of Ms Violato’s specific comments in her (Ms Violato’s) statement about how often she asked for assistance before the wine box injury. She also disputed Ms Attwood’s comments on her work performance before and after the injury.
36. Beryl Lizama, who worked with Ms Mehdizadeh and Ms Violato at the Greensborough Post Office, provided a statement dated October 2008 and gave oral evidence. She said that Ms Mehdizadeh, who relieved at that post office on several occasions was very capable and pleasant to staff and customers. She stated that Ms Mehdizadeh did not refuse to do any tasks.

MEDICAL EVIDENCE ABOUT THE EFFECTS OF THE INJURY

37. The opinions of the medical practitioners and other health professionals provided to the Tribunal vary as to whether Ms Mehdizadeh has ongoing effects from the injury on 12 September 2006.
38. Dr T R Vanderzeil has been Ms Mehdizadeh’s general practitioner since November 2001. He provided reports dated 12 April 2007 and 6 December 2007. His clinical notes were also provided to the Tribunal. In his later report, Dr Vanderzeil outlined the consultations with his patient and described her condition at that time. Dr Vanderzeil saw Ms Mehdizadeh approximately once a month. In response to questions asked of him by Ms Mehdizadeh’s solicitors, he stated:

...
(b) This lady has an injury to the radial collateral ligament of her I MCP joint. Osteoarthritis of her I CMC joint was seen on X-ray, and she also developed pain at this joint. I feel that her injury caused a flare-up of symptoms in that joint as she had not had any pain related to that joint prior to her injury.
....
(e) I feel the injury this lady suffered at work was a material contributing factor to an aggravation in her I CMC joint. This arthritis was visible on the first X-ray taken, but again she had not had any pain referable to that joint prior to her injury.
(f) I feel the effects of her work injury are continuing to affect her clinical presentation, as she has had symptoms from the date of injury, which are ongoing. She may have developed symptoms from the osteoarthritis of her I CMC joint at some time in the future, but definitely had no symptoms prior to her injury.
(g) I feel the prognosis is uncertain. She has been compliant with all suggested treatment, but has ongoing symptoms. If no improvement was to occur, it is possible that surgical intervention may be suggested at some time in the future.
(h) Mrs Mehdizadeh is currently able to work in a position that would involve little use of her left hand. She is not able to lift any weight with her left hand and is not able to do any repetitive movements with it. At the present point in time I see no prospect of her condition improving.

39. In his oral evidence, Dr Vanderzeil described Ms Mehdizadeh’s symptoms and his observations. He said that it is possible to have a normal range of movement in a thumb joint but still experience pain. Dr Vanderzeil said that he has noted a fluctuation in Ms Mehdizadeh’s symptoms but no substantial change. He said that he thought it was reasonable for her to wear a splint if she experienced less pain as a result. Dr Vanderzeil stated that prior to September 2006, Mrs Mehdizadeh had not reported any symptoms in relation to the joint of her left thumb.
40. Under cross-examination, Dr Vanderzeil concurred that his clinical notes referred to bruising of Ms Mehdizadeh’s fingers in September 2004. He expressed the view that it was only the fingers not the left thumb. He agreed that Ms Mehdizadeh was suffering from moderate osteoarthritis of the CMC joint prior to the injury.
41. Mr Felix Behan, plastic, reconstructive and hand surgeon, prepared reports dated 18 March 2008 and 17 June 2008. He also provided photographs taken during his clinical examination of Ms Mehdizadeh on 18 March 2008. In his first report, Mr Behan stated that:

a) The history is of an injury to the (L) thumb. The patient has restrictions of function with ongoing pain. She is receiving ongoing hand therapy.
b) The diagnosis is of peri-articular arthropathy/arthritis following a traumatic injury to the (L) thumb (it could have been a rotational deformity).
c) The history of pain following a traumatic episode involving a heavy load (the box of wine) would be a reasonable indication of injury, and in all probability the patient sustained an injury to the peri-articular tissues of the (L) thumb involving both the interphalangeal and metacarpo-phalangeal joints. Such an injury would have aggravated an underlying peri-arthritic development.
d) I consider the circumstances of the injury, which occurred in the course of the patient’s employment while lifting a heavy load, would constitute a material contributing factor to the development of her problem.
e) Apart from the X-ray findings I am not aware of any pre-existing or underlying aetiological factors which have contributed to the patient’s condition, and this presents as a de novo event. However, if the events of injury aggravated some pre-existing condition, this would establish a causal link in my view....
...
i) In her present condition I do not consider the patient to have a work capacity....

42. In his second report, he clarified his comments above, stating that Ms Mehdizadeh does not have a capacity for her pre-accident duties but that protected duties may be an option. In oral evidence, Mr Behan maintained the views he had expressed in the reports. I In response to a question from Ms Mehdizadeh’s counsel (transcript page 10):

...
And can you comment, Mr Behan, on whether a degeneration in the joint can – that’s identified on radiology – can that remain – be asymptomatic for a period or indeed potentially forever?
He said
---I can only comment that a person with degenerative changes – and, dare I say it, we all have them – we might have a precipitating event which brings it to a head. It might be the rainy day; it might be falling down a step, or something like that. But something usually precipitates an underlying incipient aetiology or cause. And if she might have had the problem – if without the trauma she might have had no dysfunction problems in the slightest, but the initiating factor precipitated or brought to a head a thing that was stabilised there as an initial complaint. There are two factors in aetiology: initiating and precipitating. That was quite consistent with the clinical story in my opinion.
...

43. Mr Murray J Stapleton, plastic and hand surgeon, provided reports dated 27 August 2007, 10 September 2007 and 22 October 2007. Mr Stapleton’s written and oral opinion was that Ms Mehdizadeh’s problems with CMC arthritis are not related to the blow she suffered to her thumb when the box of wine fell on it. In his first report, he stated that:

...It may well be, if the lady is genuine and reported the injury accurately, that the blow on the thumb that she may have drawn attention to the CMC arthritis...
CMC arthritis for reasons unknown usually affects women of middle age and is often a bilateral problem. The reason for this joint being the one affected is not known but it is not at all uncommon for the underlying arthritis to be noted following even an inconsequential injury which would appear to be the case in this situation.
...
The pain is precisely the same now which is one year after the accident. That supports the view that this is not and never was by way of cause an injury. I am certain that the blow that she described aggravated her symptoms, but this is an ongoing problem and a condition of gradual progression and therefore long since has any aggravation disappeared.
To put it another way the evidence is quite strong and convincing that she would have the same problem for the same degree whether she had injured herself or whether she worked or did not. As it stands at present this lady, whom I believe reported her symptoms genuinely and without exaggeration, has a problem with gripping, turning taps on and off, turning screw top jars and door knobs.

44. In his later reports and oral evidence, Mr Stapleton maintained the view that Ms Mehdizadeh’s arthritic pain would have been the same whether the incident with the box of wine took place. He also said that any pain attributable to the injury would have ceased by the time of the hearing.
45. In his second report dated 23 October 2007 Mr Muirden accepted that Ms Mehdizadeh suffered an injury to her thumb on 12 September 2006. He thought it irrelevant that Ms Mehdizadeh had no pain in that region prior to the injury. He stated that frequently there can be significant changes to a joint shown up by x-ray which are not associated with any symptoms and that the severity of changes shown on x-ray does not necessarily mirror the level of symptoms.
46. Mr Andrew V Cavallo, plastic, reconstructive and hand surgeon, prepared a report dated 2 November 2007. He was not called to give oral evidence. He provided a history of Ms Mehdizadeh’s injury and treatment by various health professionals, as well as the treatment which he had provided since she was first referred to him on 12 October 2006. Mr Cavallo saw her again on 10 November 2006, 8 December 2006, 25 January 2007 and 4 May 2007. He stated that:

...
c. It is likely that the injury into the region of the metacarpophalangeal joint was sustained in the course of her employment.
d. It is unlikely, in my opinion, that the injury itself was a material contributing factor to the onset of her osteoarthritis of the trapeziometacarpal joint which was quite advanced on her presentation. It may however contribute to the onset of osteoarthritis in the metacarpophalangeal joint of the thumb.
e. It is certainly possible that the injury has contributed to an aggravation of her underlying osteoarthritis.
f. It is very difficult to know whether she would have developed symptoms in that left thumb at this stage if the box of wine had not fallen on her thumb.
...

IS MS MEHDIZADEH STILL AFFECTED BY THE INJURY?

47. All of the medical practitioners agree that Ms Mehdizadeh suffers from osteoarthritis of the left thumb. X-rays taken shortly after the injury and later indicate that the osteoarthritis was already present at the time of the injury. There is disagreement, however, on whether the injury resulted in Ms Mehdizadeh experiencing symptoms from the arthritis which she may not otherwise have experienced.
48. Australia Post employees who worked with Ms Mehdizadeh suggested that Ms Mehdizadeh already suffered pain as a result of osteoarthritis prior to the injury. However, when cross-examined, neither Ms Violato nor Ms Attwood was able to recall that Ms Mehdizadeh complained about such a condition prior to the injury. The Tribunal accepts that Ms Mehdizadeh sought help with heavier or awkward parcels prior to the injury. However, the Tribunal is also satisfied that the previous manager at the Richmond Post Office, Mr Chan, encouraged Ms Mehdizadeh to seek assistance with parcels should she feel it was required. There was also a suggestion that Ms Mehdizadeh’s request for an electronic stapler prior to the injury was further evidence that she was already experiencing difficulties due to her arthritis. The Tribunal does not accept that a request for a different type of relatively cheap piece of office equipment used at other post offices provides evidence of pre-existing symptoms of arthritis. There were also suggestions that she was exaggerating her difficulties with her thumb so that she would not have to undertake counter duties because she disliked those tasks or thought she should be doing more complex work. Ms Violato and Ms Attwood described errors made by Ms Mehdizadeh while undertaking back office duties. Ms Attwood also criticised the pace at which Ms Mehdizadeh worked. Ms Mehdizadeh may well have made some mistakes in her work. She may well have been slower at learning about changes to passport processing than her manager. She may well have been late from time to time. There may also have been some personal animosity as a result of perceptions by another employee that one of her colleagues was not as much of a team player or working as hard as she was. However, the Tribunal notes that Ms Mehdizadeh received her annual pay rises and had positive references from previous managers for whom she had worked. Therefore, the Tribunal is not satisfied that the perceptions about the standard of and attitudes toward the work undertaken by Ms Mehdizadeh are an indicator that she was using her thumb problems as an excuse for not undertaking certain tasks within the post office prior to being sent home in April 2007 or an indicator that she was exaggerating her symptoms. The Tribunal accepts that part of the reason for the lack of sufficient suitable duties was the difficulty of having enough for a full time employee, Ms Attwood, as well as a part-time employee, Ms Mehdizadeh.
49. Australia Post accepted that Ms Mehdizadeh had suffered a strain of the C-MC joint of her left thumb due to the wine box falling on her thumb. However, based on the opinion of Mr Muirden that the effects of the strain had ceased, Australia Post terminated the compensation payments on 16 April 2007.
50. Ms Mehdizadeh has given evidence that she has been in pain since the injury on 12 September 2006. The pain is not constant, being worse on some days than others, depending on what activities she had been doing. Her descriptions of the level and site of the pain has also varied, depending on which medical practitioner she saw and when. When asked about any changes in her symptoms since April 2007, she described herself as having very bad days and all right days.
51. Ms Mehdizadeh does not appear to be a particularly good historian. Her responses to the pre-employment questionnaire completed in November 2003 are less than candid. She failed to disclose some previous workplace injuries. Her explanation was that she had either forgotten about them or believed that she did not need to declare them because she was no longer suffering from them. Notwithstanding some inconsistencies in the information Ms Mehdizadeh has provided at various times, the Tribunal accepts her evidence that she has experienced pain and continues to be in pain and that she did not feel the pain in her C-MC joint until after the injury at Australia Post.
52. In Commonwealth of Australia v Beattie (1981) 35 ALR 369 Evatt and Sheppard JJ said at 378:

It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.

53. In Tippett v Australian Postal Corporation (1998) 27 AAR 40 Finkelstein J stated that if pain arising from an underlying condition is worsened or increased as a result of an employee’s employment, then the employee will have suffered a compensable injury.
54. Mr Behan, Mr Cavallo and Dr Vanderzeil have expressed the opinion that the injury on 16 September 2006 may well have led to Ms Mehdizadeh experiencing symptoms from her previously undiagnosed condition of osteoarthritis. Mr Stapleton was of the view that Ms Mehdizadeh’s arthritic pain would have been the same whether the wine box injury occurred. Mr Muirden did not accept a link between the osteoarthritis and the injury.
55. In this matter, we have a number of medical specialists qualified to give an opinion, with differing views. The Tribunal prefers the opinions of the treating doctors and those who agreed with their views. Dr Vanderzeil has had regular ongoing contact with his patient and has referred her to appropriate specialists, such as Mr Cavallo. While Mr Cavallo was not called to give oral evidence, his reports indicate that he accepts that the wine box injury may well have precipitated the symptoms of the underlying osteoarthritis. Mr Behan, who is a specialist hand surgeon, was satisfied that the injury aggravated the symptoms of arthritis. Mr Stapleton and Mr Muirden were inclined to the opinion that there was a temporary relationship, if any, between the injury and the osteoarthritis.
56. The Tribunal accepts that Ms Mehdizadeh suffered a strain of the CM-C joint and that the strain of that joint may well have ceased by the time of this decision. It also accepts the opinions of the majority of the medical practitioners that the wine box injury did not cause Ms Mehdizadeh to develop osteoarthritis in her left thumb. However, the Tribunal is satisfied that the wine box injury led to Ms Mehdizadeh suffering pain which she did not previously feel in her left thumb due to the underlying osteoarthritis. The Tribunal is satisfied that the wine box falling on Ms Mehdizadeh’s thumb therefore led to an aggravation of her underlying osteoarthritis.

57. On all the material before it the Tribunal finds that on 12 September 2006, there was an aggravation of an existing condition. That aggravation arose out of, or in the course of, Ms Mehdizadeh’s employment, which constitutes an injury as defined in the Act. That situation continued after 17 April 2007 and is ongoing.

DECISION

58. The Tribunal sets aside the decision under review and substitutes a decision that from 12 September 2006 to the present date Ms Mehdizadeh suffered, and that at the present date she continues to suffer, from incapacity and impairment as a result of an injury arising out of or in the course of her employment.

The Tribunal orders that Ms Mehdizadeh’s costs be paid in accordance with s 67 of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the fifty eight [58] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

Signed: (sgd) Cassie Renfrew

Clerk

Dates of hearing: 13 and 14 August 2008; 13 and 14 November 2008.

Date of decision: 10 March 2009

Counsel for the applicant: Ms J Bornstein

Solicitor for the applicant: Maurice Blackburn Lawyers

Counsel for the respondent: Mr J Ferwerda

Solicitor for the respondent: Frenkel Partners