Potepa; Commonwealth of Australia and [1988] AATA 703 (28 October 1988)

Administrative Appeals Tribunal

[Index] [Search] [Download] [Help]

---

Potepa; Commonwealth of Australia and [1988] AATA 703 (28 October 1988)

Last Updated: 4 July 2008

ADMINISTRATIVE APPEALS TRIBUNAL

COMPENSATION - upper limb, shoulder and neck injuries claimed to result from 3 months' employment as cleaner in 1981 - whether injury occurred as claimed - whether ongoing symptomatology -role of prior work history and attitude.

Compensation (Commonwealth Government Employees) Act 1971 ss 20, 27, 29, 45, 46.

COMMONWEALTH OF AUSTRALIA

Applicant

STANISLAWA POTEPA

Respondent

No. N87/1231

AAT Decision No 4797
Dr R.A. Hayes, Senior Member

28 October 1988

Sydney

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N87/1231

GENERAL ADMINISTRATIVE DIVISION )

Re: COMMONWEALTH OF AUSTRALIA

Applicant

And: STANISLAWA POTEPA

Respondent

DECISION

Tribunal : Dr R.A. Hayes, Senior Member
Date : 28 October 1988
Place : Sydney

Decision : For reasons given orally at the conclusion of the hearing of this application:

1. The determination under review is set aside.
2. In substitution for that determination, the Tribunal, finding that he respondent suffered for a period from symptoms attributable to her employment with the applicant but being unable to determine the exact duration of that period, and bearing in mind section 20 of the Compensation (Commonwealth Government Employees) Act 1971, decides that the applicant is liable to pay compensation to the respondent for a period of twelve (12) months after the termination of her employment with the applicant.
3. The applicant is ordered to pay the respondent's costs in accordance with the appropriate scale in the Compensation Court of New South Wales as agreed; and in the absence of agreement such costs are to be taxed by a Registrar or a Deputy Registrar of the Administrative Appeals Tribunal.
4. Liberty to apply is reserved to both parties generally.

(Sgd) R.A. Hayes

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N87/1231
GENERAL ADMINISTRATIVE DIVISION )

Re: COMMONWEALTH OF AUSTRALIA

Applicant

And: STANISLAWA POTEPA

Respondent

REASONS FOR DECISION

Dr R. A. Hayes, Senior Member

At the conclusion of the hearing in this matter, I had formed a view of the evidence which enabled me to make a decision, which I then gave with brief oral reasons.

Following a request from the respondent pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975, I now provide written reasons for my decision.

The Review

This was an application for review of a determination made on 19 October 1987 that the respondent is entitled to compensation under sections 27 and 29 of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") in respect of "mild epicondylitis, a mild rotator cuff syndrome, and a mild stenosing tenosynovitis in both shoulders, elbows and wrists". The date of injury was deemed to be 20 August 1981.

The respondent's claim for compensation was dated 30 January 1985. The claim was for "tenosynovitis to the both hands". The activity claimed to be productive of the injury was stated to be "repetitive cleaning motions including the operating of a large industrial heavy floor polisher".

Documents provided under Section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") were in evidence before me. They included reports from Dr T. Nickelburg, General Practitioner, who had treated the respondent after her injury. In addition, there were reports from Dr J.R. Eisman, Consultant Rheumatologist and Physician (6 July 1988), Dr R. Mellick, Consultant Neurologist (18 July 1988), Dr P. Henke, Consultant in Rehabilitation Medicine (28 July 1988), Dr M.S. Garvan, Consultant Occupational Physician (2 May 1988), Dr C. Browne, Consultant Rheumatologist (26 May 1988), Dr D.G. Milder, Consultant Neurologist (31 March 1988), and Dr W.G. Taylor, Consultant Surgeon (16 July 1987 and 23 March 1988). There was also a report by Ms. J. Chrispijn, Occupational Therapist (8 April 1988). Finally, there was a report to the Supervisor of Domestic Services prepared by Mrs. J. Sinclair (19 May 1981). The respondent gave evidence, as did Mrs. Sinclair. Doctors Nickelburg, Eisman and Taylor also gave evidence.

The Evidence

Both counsel pressed upon me their own views as to the credibility of the respondent. The applicant's view of the evidence was that it showed the respondent to be engaged in a calculated attempt to gain what she could from the compensation system. Counsel for the respondent asked me to accept her as honest and open. My view was that, from her history as revealed in "the T documents" and the medical reports, and in light of my own assessment of her over the two days of the hearing, there is an underlying emotional problem which is manifested in a certain vagueness and disassociation. This perception was to a degree shared by some of those who have seen her, such as Dr Henke, and to an extent, Ms. Chrispijn. I did not form the view that she was evasive, but I could not regard her as a good historian.

I found, on the evidence before me, that the respondent's floor polishing activity while in the applicant's employ caused no organic injury. In this regard, I found that the respondent's use of a heavy industrial floor polisher in her work was not as extensive as she claimed, and that she seldom or never had to carry a floor polisher manually between floors. I preferred Mrs. Sinclair's assessment of the nature of the respondent's work to that of the respondent herself.

One can readily understand how heavy repetitive work, placing constant strain on the hands, wrists, and arms, can lead to organic injury for which there are few or no objective signs. However, the plausibility of the claim of ongoing injury without clear objective signs increases exponentially as the work in question becomes heavier, more repetitive, and more continuous. The respondent worked as a cleaner for only three months in 1981. And yet, her claim was for ongoing symptomatology from continuing pathology. She claimed that, after visiting the Hand Clinic at Royal Prince Alfred Hospital, she had attempted to work in a nursing home as a cleaner, but lasted only for one day. She said that the swelling recurred in the wrist area and the distal forearm.

Relying on general knowledge and experience gained from similar cases which have come before me, and in light of the whole of the medical evidence, which was conflicting, I had, at the end of the day, to agree with Dr Henke that:

"It is...unusual that a person would develop a tenosynovitis over such a relatively short period. Certainly, lifting tasks such as [the respondent] describes, when lifting the polisher, would not be of the type which would develop a tenosynovitis although they may give rise to a muscle strain. She does not, however, describe the symptoms of a muscle strain.

One would certainly expect that if she had a tenosynovitis or a muscle strain, that the symptoms of these would be relieved after a period of rest. It is difficult to see, how going to work as a nursing assistant where the work is not of a repetitive type, although there may be some heavy lifting, would again cause recurrence of symptoms, and some considerable doubt must be placed upon her reporting of this symptomatology."

There was an alternative explanation for the appearance of symptoms during the respondent's work as a cleaner to that proffered on her behalf during the course of the hearing. It was supported, directly or indirectly, by a substantial body of the medical opinion before me. It was most clearly expressed by Dr Henke. Dr Henke, after taking a detailed history, performing a physical examination involving a variety of tests, and reading the medical reports then available, said:

"My impression in seeing this woman, was that she has a perception that work is potentially harmful to her and it would seem to require some change in her perception for her to voluntarily accept a return to work. On a purely physical basis one would consider that she was fit for, probably, her premorbid duties. In general terms, one does not advise that a person moves from essentially light duties, such as clerical activities, to reasonably heavy physical work without some form of pre-training, and similarly if one was to attempt to return her to work at this time, one would advise that this should be done on a progressive basis....

It is quite reasonable to expect that a woman like this could have had some degree of discomfort when she was carrying out the work that she describes. This should not, however, be interpreted as being indicative of pathological change, and in effect represents little more than normal fatigue in a person who is not used to experiencing such fatigue symptoms. There must be some considerable doubt upon her description of her other symptoms in her other jobs, as to whether these have any significance also. It should be pointed out that after this first job with Repatriation General Hospital, she then had long periods when she was doing virtually nothing at home, by her own description, and therefore she would have been even more severely deconditioned and therefore less likely to cope with work, not by virtue of her disability, but by virtue of her immobility.

I would therefore consider that any restriction upon activity which may have arisen from her original employment, was of a short-term nature, and certainly does not appear to be a significant element in her ongoing complaints."

The evidence confirmed Dr Henke's assessment of the respondent's history, in particular, the fact that prior to her migration to Australia in 1980 from Poland, she had been employed in a clerical capacity for a number of years, following the completion of secretarial studies. Heavy cleaning work was an activity for which she was not conditioned. The evidence also confirmed that, she has remained substantially immobile since the date of her injury in May 1981. Dr Henke thought fear of pain, which in fact would arise from poor conditioning, was the cause of this, while the respondent put it down to actual pain from real pathology.

Support for Dr Henke's opinion was also to be found in the fact that, despite being largely unemployed and significantly immobile for more than seven years, the symptoms which were present at the time of the respondent's discharge from her employment have allegedly continued without improvement.

One was thus confronted by the competing medical opinions of:

stiffness in the neck and in both shoulders, epicondylitis in the right elbow and stiffness in the right wrist, and mild carpal tunnel syndrome (Dr Taylor)

on the one hand, and on the other hand, of:

fatigue symptoms and discomfort suffered by a person who has not been conditioned for heavy repetitive work (Dr Henke).

The lay person, using common sense and ordinary experience, would be inclined to accept the latter opinion, particularly when it was supported, directly or indirectly, by a significant body of other medical opinion (e.g. Dr Tomlinson, "T documents", page 28, Dr Eisman, and Dr Mellick).

The only doctor to have seen the respondent immediately after the onset of symptoms was Dr Nickelburg, who gave evidence before the Tribunal. But I found that the Doctor, like his patient, was a vague and unsatisfactory historian. I was not satisfied as to Dr Nickelburg's qualifications and experience for taking the kind of detailed history and performing the kind of clinical examination which could produce a reliable diagnosis of "bilateral tenosynovitis" ("T documents," pages 9 - 11).

Findings

In making my findings I cast an onus of proof on the applicant, which was seeking to overturn a determination favourable to an employee. I was satisfied on the balance of probabilities that no organic injury had flowed from work.

Nevertheless, I did find that fatigue symptoms had resulted from what for the respondent was unusual and heavy work for which she was inexperienced and ill-equipped. I found that these would, for a period, have deprived her of total employment capacity, even though the work was not productive of any pathology.

It was impossible for me precisely to determine the exact duration of this period of total incapacity, other than to say that, in light of Dr Henke's opinion, it would not be lengthy. Based on my own knowledge and experience, it would seem highly unlikely that any symptomatology flowing from what essentially was fatigue in an unconditioned person could last for anything longer than twelve months.
The determination under review found only that injury had occurred in the course of employment under Sections 27 and 29 of the Act. It did not determine entitlement to compensation under Sections 45 or 46 of the Act. Nor did it determine the period for which any compensation should be paid. The injuries found to have occurred were epicondylitis, rotator cuff syndrome, and stenosing tenosynovitis in both shoulders, elbows and wrists. I found that no such injuries occurred. Nevertheless, incapacitating symptomatology can be regarded as injury notwithstanding the absence of pathology. And on the evidence before me, it would have been open to the decision-maker to find that total incapacity would have continued for a period of time after employment with the applicant had ceased.
This was a case where the Commonwealth was seeking to overturn a determination favourable to an employee. I bore in mind the statutory direction to the Commissioner under Section 20 of the Act. For these reasons, any uncertainties should be resolved generously, and in favour of the respondent. I decided that compensation should be paid for total incapacity for a period of twelve months after the termination of the respondent's employment.