Aravas and Australian Postal Corporation

[2004] AATA 339

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2003/661

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL ARAVAS

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr J D Campbell, Member

Date1 April 2004

PlaceSydney

Decision The decision under review is affirmed.

(Sgd)  M D Allen
  ..............................................

Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION - Applicant injured in 1975 and has not worked since - Whether current degenerative back condition related to work injury in 1975 - Was Applicant consciously exaggerating symptoms - Did Applicant suffer a psychiatric illness as opposed to anger and upset as the result of termination of payments - Even if clinically depressed, not compensable if caused by cessation of compensation payments.

Safety, Rehabilitation and Compensation Act 1988 – s.14

Comcare v Mooi (1996) 69 FCR 439

Australian Telecommunications Commission v Tzakas (1985) 5 AAR 173

REASONS FOR DECISION

1 April 2004   Senior Member M D Allen;
  Dr J D Campbell, Member

1.      On the night of the 22^nd August 1975, the Applicant, whilst working as a cleaner at the Sydney GPO slipped on an apple peel and injured his back.  He was granted workers’ compensation and has not worked since that time.

2.      On 6 March 1977, he returned to his native Greece.  He returned to Australia in December 1977 and commenced common law proceedings against his former employer.  These proceedings terminated on 14 November 1983 with a verdict for the Defendant being entered at the direction of the Trial Judge.

3. During 1978, the Applicant was under the care of Dr Bannister, Orthopaedic Surgeon, but also saw other medical specialists in relation to his common law claim. On 29 September 1984, the Applicant returned to Greece and has resided there until May 1994 when he returned to Australia. On 13 September 1993, a reviewable decision pursuant to s62 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) had affirmed a prior determination that the Respondent was no longer liable to pay compensation to the Applicant. That decision was on 24 February 1995, set aside by the Administrative Appeals Tribunal.

4. The Applicant returned to Greece in December 1994 and remained in Greece until 2 December 2002. On 5 January 2000, pursuant to s134 SRC Act, a delegate of the Respondent determined that the Applicant’s weekly rate of payment of compensation would be reduced from $482.54 per week to $193.30 per week from the date the Applicant turned 65, namely 13 February 2000.

5.      The Applicant returned to Australia on 2 December 2002.  In a letter to the Respondent dated 16 December 2002, the Applicant stated:

“I wish to advise that I have returned temporarily to Australia in order to receive the difference in payments from Centrelink as the fortnightly payment of $288.60 from Australia Post is not enough to live on.”

6.      The Respondent then arranged to have the Applicant examined by Dr Maxwell, Orthopaedic Surgeon and on 27 February 2003, a delegate of the Respondent determined that the Respondent was no longer liable to pay compensation to the Applicant for the condition described as “back injury”.  That determination was affirmed in a reviewable decision dated 27 March 2003.  On 23 April 2003, an application for review was lodged with the Administrative Appeals Tribunal.

7. At the outset, we state that we placed very little weight upon the medical reports contained in the documents prepared for the Tribunal pursuant to s37 Administrative Appeals Tribunal Act 1975 from Greek medical practitioners.  No doubt some of these reports have suffered in translation and others use terms not generally recognised in Australian medical practice.  Others clearly are erroneously translated, for example at document T112 p247, it is stated that the Applicant has “pain in the cervix”.

8.      There is no doubt that the Applicant did injure his spine on 22 August 1975.  The real question is whether that injury is still playing a part in symptoms the Applicant says he is experiencing and the degenerative changes to his spine shown on radiology, or whether the effect of any acceleration to or aggravation of the degenerative changes have now ceased.

9.      The Applicant also claimed to be suffering from psychiatric illness as a result of his injuries.  There are questions as to whether he is in fact suffering a psychiatric illness or is simply reacting to negative events such as the decision to reduce and then to cease his workers’ compensation payments.  As pointed out in Comcare v Mooi (1996) 69 FCR 439, it is incumbent upon an Applicant who seeks compensation for an alleged psychiatric illness to show that he or she is in a condition outside the normal boundaries of normal mental functioning and behaviour.

10.     In his report of 23 January 2003, Dr Maxwell stated:

“PRESENT SYMPTOMS;

He states as he gets older his problem is getting worse. He experiences a burning pain on the top of his head, particularly when travelling in a car. It becomes so bad that he has to stop and get out of the cab.  He experiences back pain which he states radiates down both legs.   He states his pain is worse in the cold weather.  He is able to walk approximately 200 metres.  He does not sleep well at night.  He says he tosses and turns.”

11.     Dr Maxwell’s report continued:

“ON EXAMINATION;

He is a large thick set man weighing 108 kgs and is 177cms tall.  On occasions he appears to move reasonably freely but on other occasions he appears to be severely disabled.  He tends to walk with his body flexed forward at the hips.  He points to the area of the lower lumbar spine as the area of his maximum discomfort.  He also states that the pain radiates down both legs.

Range of movement of his thoracolumbar spine - he is able to flex to his knees but at the extreme of his movement he gave a sudden jerking movement and flexed a little further. He did a similar thing when thoracolumbar extension was being examined.  He suddenly jerked himself backwards at the extreme of movement.   Similar behaviour was seen when he was flexing his thoracolumbar spine to the left and right.  He reached to the upper knee level and then suddenly jerked further.   These jerking movements in someone with an alleged painful back is extremely unusual.  Normally someone with chronic back pain avoids severe sudden movement.

He had hyperreflexic knee and ankle jerks suggestive of anxiety.  Muscle strength in his foot was impossible to test because he appeared to not co-operate on formal testing and said that it caused extreme pain in his back when he attempted to dorsiflex his left great toe. He was able to walk on his heels and toes.

…

He claimed he had decreased sensation in a stocking distribution in both legs.  The numbness did not fit any dermological pattern.

DIAGNOSIS AND OPINION;

Mr Michael Aravas had a fall at work in 1975 when he was 39 years old.  He has not worked subsequently and states he has been disabled by chronic backache.  He brought no investigations with him today.  On examination there was no hard evidence of nerve root irritation.  There are a large number of inconsistencies on examination suggesting non-organic overlay.

I consider that on the balance of probabilities that he is not suffering from any effects of the work related incident of 1975.  It is possible that he suffers from some degeneration of the lower lumbar spine.

…

I consider that the effects of any compensable condition have now ceased.”

12.     Dr Maxwell’s opinion was consistent with the opinion of Dr Schutz, Consultant Surgeon, who examined the Applicant in Greece on 14 May 1993.  In his report dated 16 June 1993, Dr Schutz said:

“The 1981 discogram films were available. There were also 14.5.1992 X-rays of the lumbar and thoracic spine and a number chest X-rays - the only anomalies were degenerative narrowing of the lower lumbar discs and some residual myelogram contrast and extensive degeneration of both the lumbar and thoracic spine regions. …

The underlying problem is degenerative with no suggestion of any traumatic problem in any of the investigations.  It is very likely that the effects of the 1975 incident were simply an aggravation of a pre-existing problem and that the then present acute symptoms recovered leaving the longer term problem related to age and constitution related degeneration.  It is likely that any acute or other incident related effect would have recovered within 6 - 12 months, or 1 -2 years at the very outside.

Based on the current presentation and also on earlier reports the evidence is that at least a large amount of the problem has always been non organic and the likelihood is that a possible acute problem has resolved leaving the non organic problem.”

In particular, Dr Schutz noted that he observed that the Applicant, once the examination was completed, moved practically normally.

13.     Prior to his injury at the Sydney GPO, the Applicant had injured his back in 1964 whilst working for the Sydney Water Board.  A discharge summary from the Prince of Wales Hospital dated 9 December 1967 stated inter alia:

“Since August 1964 this 32 year old man has suffered lumbar back pain radiating down both legs following a lifting strain at work… A myelogram was performed on the 8.12.67 but showed no abnormality.”

14.     The Applicant was again examined at Prince Henry Hospital in February 1980.  A discharge summary dated 20 February 1980 reads inter alia:

“A lumbar myelogram was performed on the 8.2.80.  The control film showed 6 lumbar type vertebrae with partial sacralization (sic) of L6 … There is minor posterior disc bulging at L4/5 and 5/6 and 6/T1. (It is agreed that that is a typographical error and should read 6/S1). 

No other abnormality has been demonstrated.  In particular, there is no evidence of a prolapsed disc.

As the myelogram results showed only minimal change, Mr Aravas was discharged to by (sic) followed up by his L. M. O.”

15.     Subsequent to his work injury, the Applicant has seen numerous medical practitioners.  Some have accepted the symptoms he described whilst others have commented on a marked functional overlay.  In a joint report dated 20 October 1981, Drs Stening (Neurosurgeon), Vote (Orthopaedic Surgeon) and Macauley (Rheumatologist) opined:

“1. The patient has an obvious functional overlay but that this is superimposed on possible genuine organic problems.

2. There were no hard clinical signs of a disc lesion but the possibility of spinal canal stenosis was definitely present at the L5/S1 and possibly L4/5 level on the myelogram.

…

5. If at exploration spinal canal stenosis was found and decompression were carried out, then the patient’s organic component of his complaints should be overcome.”

16.     In a report to the Commonwealth Crown Solicitor dated 24 May 1983, Dr Barry, Surgeon stated inter alia:

“The whole picture is overshadowed by his mental state and present attitude.  There is such a gross exaggeration of his symptoms at present that it is quite impossible to make any useful assessment of the extent of any underlying organic disability.  In view of the disc degeneration in the lower lumbar spine one would regard him as unfit for work which involved much bending or lifting but it is obvious that the patient has no intention of ever working again.”

17.     Prior to the Tribunal’s decision in 1995, much reliance had been placed by some examining medical specialists on the results of a discogram carried out on 21 April 1981.  Regarding the value of discograms, Dr Maxwell in his report of 3 December 2003 said:

“With regard to discograms generally, the pain provocative test is now regarded as unreliable and the reason is that individuals with degenerative discs on MRI scans, who do not suffer from low back pain, also complain of back and leg pain when subject to provocation discography.”

And concluded:

“I also consider that the early spinal canal stenosis evident on the x-rays is secondary to degeneration caused by hypertrophy of the facet joints.  I do not consider this hypertrophy of the facet joints is secondary to a traumatic disc lesion and is, in fact, part of the normal aging process.”

18.     In evidence, after having observed the video films taken of the Applicant, Dr Maxwell stated that the latest CT scans of the Applicant’s back had shown no spinal canal stenosis.  Indeed, the video films were consistent with a 68 to 69-year old man with no incapacity.

19.     Dr Maxwell also stated in cross-examination that radiology is interpretive and more important was clinical history and examination.  Earlier, he had stated that his impression was that the Applicant had no spinal canal stenosis.  That evidence was consistent with the opinion in the report of Dr Maxwell in the report of 5 February 2004.  In that report, after viewing the video films, he stated inter alia:

“It was clear from the video report that not only does Mr. Aravas have a full range of flexion of his thoraco lumbar spine he is also able to walk long distances carrying objects in his hands.

The video demonstrates that Mr. Aravas is in fact fabricating his signs. Judging by the distance he was walking on the video he does not have clinical spinal stenosis despite the CT scan appearance.  This confirms my clinical impression.  He certainly has no nerve root irritation.

…

This video confirms my impression that Mr. Aravas suffers no particular physical disability or incapacity.  He is not suffering from the effects of any work related injury.  He does have some degenerative changes in his lumbar spine but these changes are not causing clinical spinal stenosis and in my opinion he is not experiencing nerve root claudication.”

20.     Dr Evans first saw the Applicant in 1994.  In his report of 14 July 2003, he refers to the Applicant’s “substantial non-organic overlay”.  Dr Evans also stated in evidence that the video films of the Applicant are a better example of his range of movement than what he shows in the surgery.

21.     Where the opinions of Dr Evans conflict with those of Dr Maxwell, we prefer the opinions of Dr Maxwell.  Dr Evans is a physician whose area of expertise is in endocrinology specialising in bone disease.  Dr Maxwell on the other hand is an orthopaedic surgeon and the more appropriate medical speciality to comment upon any injury to the spinal column.

22.     During his cross-examination, Dr Evans expressed his admiration for Dr Bentivoglio, Orthopaedic Surgeon as a spinal surgeon.  The Applicant had been referred to Dr Bentivoglio for treatment by his General Practitioner and Dr Bentivoglio reported on 7 April 2003 to the Applicant’s General Practitioner (Exhibit A18).  We consider this report as particularly relevant as it was made for treatment as opposed to medico legal purposes.

23.     Dr Bentivoglio’s report of 7 April 2003 states inter alia:

“I viewed a discogram performed in 1981.  It showed the L3/4 level was normal, minor leakage but no pain reproduction at the L4/5 level and leakage together with pain reproduction on injecting the L5/S1 level.  A CT scan taken of his lumbar spine region in March 2003 showed evidence of degenerative disc disease together with spinal canal stenosis particularly at the L4/5 level of his lumbar spine region but to a lesser degree at the L3/4 level.  This gentleman’s symptoms are now more suggestive of spinal canal stenosis rather than disc disease.  Interestingly enough the level which was most damaged in 1975 is the one which shows up as being least abnormal now.”

24.     Having regard to the report of Dr Bentivoglio, it seems clear that his opinion is that the Applicant now suffers from a spinal canal stenosis as opposed to disc disease.  Dr Guirgis also opined that the Applicant suffers spinal canal stenosis and that his current condition was aggravated by the 1975 fall.  Neither Dr Guirgis nor Dr Bentivoglio had access to the video films and we accept Dr Maxwell’s evidence that the range of movement exhibited by the Applicant in these films is inconsistent with the existence of spinal canal stenosis.

25.     In evidence to the Tribunal, the Applicant exaggerated the degree of limitation of movement suffered by him.  Most medical practitioners who have examined the Applicant also comment on his exaggerated presentation.  Given the report of Dr Bentivoglio rejecting disc disease, we are satisfied that the opinion of Dr Maxwell is correct and that the Applicant no longer suffers from any injury, disease or impairment as a result of the work accident in 1975. Any affects of that accident have now been overtaken by the normal ageing process.

26.     The Applicant also claimed to be suffering from depression. Dr Younan, Psychiatrist in a report dated 12 January 2004 to the Applicant’s solicitors opined:

“Mr Aravas manifested a picture consistent with Major Depressive Disorder.  This depression in my view was predominantly precipitated by the decision of the insurance company to stop his payments.”

27.     Exhibit A4 is a report of Dr Robertson, Psychiatrist dated 29 September 2003.  Dr Robertson opined that the Applicant had depression after his fall in 1975 but that it went into “remission” when he returned to Greece.  He notes that there has been a recurrence of depression since the Applicant returned to Australia but does not state why it reoccurred.

28.     Although presented with the report of Consulting Psychologist Dr Roldan, Dr Robertson confirmed his opinion that the Applicant was suffering depression and that any non-organic overlay was the result of cultural factors and the chronicity of symptoms.

29.     Dr Walden, Psychiatrist had the advantage of considering the results of the tests undertaken by Dr Roldan.  Although dismissed by Dr Robertson, we accept Dr Walden’s evidence that the tests are generally accepted as the best available.  Although Dr Roldan’s report has to be treated with some caution, whereas the Beck, Depression and Anxiety Index do show the Applicant to be depressed, the tests relating to cognitive ability clearly show the Applicant to be exaggerating his degree of incapacity.  This objective test result is supported by the video film compared to the statement of the Applicant as to his ability.

30.     After assessing the Applicant and with the advantage of having Dr Roldan’s report, Dr Walden was of the opinion that the Applicant was not suffering from any psychiatric disorder.  In particular, she stated that when his compensation payments were terminated, the Applicant became upset and angry but not clinically depressed.

31.     In particular, Dr Walden pointed out, as did Dr Robertson, that while in Greece, the Applicant did not report any symptoms of depression.  Dr Robertson refers to the depression as going into “remission”.  We take this as an opinion that the Applicant was not depressed.

32.     Given Dr Roldan’s objective testing, we prefer the opinion of Dr Walden that although angry and upset at the cancellation of workers’ compensation payments, the Applicant is not suffering any psychiatric illness.

33.     Even if we were wrong in this regard and Drs Younan and Robertson are correct, Dr Robertson does not say why the Applicant is depressed, whereas Dr Younan implicates the termination of compensation payments.  If this be so, than it is non-compensable: see Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195.

34.     The net result is that as we are satisfied that the Applicant suffers from no compensable injury or disease, the decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen;

Dr J D Campbell, Member

Signed:         (K. Wong)                .....................................................................................

  Associate

Date/s of Hearing  2, 3 and 4 March 2004
Date of Decision  1 April 2004
Counsel for the Applicant         Mr O’Rourke      
Solicitor for the Applicant          McClellands Solicitors
Counsel for the Respondent     Mr G.T. Johnson
Solicitor for the Respondent     Forners Solicitors