Bakreski and Australian Postal Corporation - [2002] AATA 450

DECISION AND REASONS FOR DECISION [2002] AATA 450

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1404

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DIMITRI BAKRESKI
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M D Allen, Senior Member Dr P Lynch, Member Mr M Griffin, Member

Date14 June 2002
PlaceSydney

Decision The decision under review is affirmed

(Sgd) M D Allen
Presiding Member
CATCHWORDS
WORKERS' COMPENSATION: Claim that pre-existing degenerative condition had been aggravated by work injury. Whether work injury caused permanent aggravation of underlying condition or temporary aggravation of symptoms.
Safety, Rehabilitation and Compensation Act 1988 - s14

REASONS FOR DECISION

Mr M D Allen, Senior Member Dr P Lynch, Member Mr M Griffin, Member

On 13 June 2001 the Tribunal affirmed three reviewable decisions made by the Respondent concerning the Applicant. Those decision were:
(i) That Australia Post was no longer liable to make ongoing payments for total incapacity in respect of trapezius muscle tenderness and haemotoma sustained on 19 July 1998.
(ii) A decision rejecting a claim for physiotherapy treatments undergone by the Applicant post 31 July 2000.
(iii) A decision denying a claim for permanent impairment in respect of the condition described as "trapezius muscle tenderness haemotoma sustained on 19 July 1998".
At that hearing evidence was given by and reports received from medical specialists, in particular Dr Vote orthopaedic surgeon who appeared for the Applicant and Dr McGill, rheumatologist for the Respondent.
In addition a video film showing various activities engaged in by the Applicant was tendered and Drs Vote and McGill viewed that film. The Exhibits in the earlier Tribunal hearing were tendered in these proceedings.
Subsequent to the decision of the Tribunal the Respondent obtained a further report from Dr McGill. As a result of that report and reports from Dr Bowers Consultant Rehabilitation Physician and Dr Pierides (specialist in occupational medicine) the Respondent on 17 July 2001 issued a determination ceasing its liability to pay to the Applicant compensation for the condition described as "neck/shoulder injury sustained on 19 July 1998". That determination was affirmed by the Respondent in a "reviewable decision" dated 31 August 2001.
By application made the 19 September 2001 the Applicant sought review of the reviewable decision 31 August 2001 and the hearing of the said application for review took place before this Tribunal on 8 May 2002.
The medical report by Dr McGill upon which the Respondent based its determination of 17 July 2001 became document T187 in the bundle of documents prepared for this Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. That report reads inter alia:
"…in my report of 20 October 2000 I opined that the radiological abnormalities in his cervical spine (disk degeneration, small protrusions at multiple levels, and osteophyte formation) were likely to have been constitutional in aetiology. On the basis of the history he provided, I concluded at that time that his cervical disk disease was probably aggravated by the motor vehicle accident in 1996 and ULD incident in 1998. In that report I accepted the history he provided as valid. I subsequently examined the video which showed Mr Bakreski performing a series of actions in excess of those which he performed during my clinical examination and in excess of what one would expect in light of the symptoms he reported to me.
In light of the video evidence, considered in the setting of the clinical findings and MRI and other imaging studies, I think that it is probable that the aggravation of his cervical spine disease (accepting that an aggravation did occur) as a result of the incident on 19 July 1998 had ceased at least by the time the video was obtained in October 2000. I think that it was more likely than not that the aggravation had ceased within 12 months of the July 1998 incident."
In a letter to the Applicant dated 25 June 2001 a delegate of the Respondent made reference to reports of Drs Bowers and Pierides but not the dates of those reports (see T188). We take it that the reports referred to are those by Dr Bowers dated 7 December 2000 (T159 in these proceedings) and by Dr Pierides dated 30 May 2001 (T182).
Dr Bowers in his report of 7 December 2000 after viewing the video film showing the Applicant states:
"The new evidence supplied, in particular the video, does alter my opinion from my report of 9/6/00. Based on the video, Mr Bakreski is fit to return to all of his pre-injury duties on a full time basis.
Mr Bakreski does have pre-existing degenerative disk disease in the neck and as such he would be best advised to avoid heavy physical work in the long-term future, eg working as a builder's labourer. There are no duties within Australia Post that he is not fit to return to work to.
In light of the new evidence, Mr Bakreski has no per cent permanent impairment of the whole person associated with the cervical spine."
At the time of his 9 June 2000 report Dr Bowers had examined the Applicant and read reports by Dr Di Paola of Health Services Australia, Dr Vote orthopaedic surgeon, Dr Hodgkinson and neurosurgeon Dr Vonau. Drs Bowers opined:
"His History is consistent with him exacerbating pre-existing neck and shoulder problems in subject accident. His history of on going pain at this time can be consistent with this type of medical problem.
The physical examination suggests no major problem with the bones or nerves of the neck.
There were some signs suggesting a possible non-organic contribution to his complaints.
The investigations confirm disk degeneration throughout the neck. All of this is unlikely to have been caused by the work-based accident of July 1998."

and attributed one half of the Applicant's then complaints to the work based accident of July 1998 and half to pre-existing injuries to the neck.

Dr Pierides in his report of 30 May 2001 after viewing video film of the Applicant stated inter alia:
"Having viewed the video, I am now of the opinion that Mr Bakreski is not incapacitated in any way with regards to work. His presentation to me appears not to be a true representation of his abilities. Mr Bakreski does have some underlying degenerative change in his neck but clearly this is not inconveniencing him. I am of the opinion that he could undertake all work at Australia Post without restriction."
The transcript of the Applicant's evidence to the Tribunal on 9 May 2001 was tendered in these proceedings being Exhibit R2. That exhibit also contained the evidence to the Tribunal on that occasion by Dr Vote.
On 8 May 2002 the Applicant in evidence in chief stated that he was involved in a motor vehicle accident in 1996 sustaining a minor whiplash type injury to his neck. He remained off work for a weekend and five to six working days thereafter and then returned to work on normal duties.
Prior to the work accident on 19 July 1998 his place of work was at the State Transit Centre which was part of the Respondent's parcel centre. His duties consisted primarily of driving a fork-lift. Prior to 19 July 1998 the Applicant had had occasional problems with his neck resulting in total to a couple of weeks absence from work because of neck pain.
The Applicant stated that the accident of 19 July 1998 made his neck "a lot worse" and "destroyed" his right shoulder. Since then his neck has not improved or got worse, what it was a couple of months after the injury is what it is now. He has more bad days than good days.
Currently the Applicant is not performing any work although still employed by the Respondent. On 13 August 2001 he was required to take sick leave unless he could provide medical evidence that he was likely to be able to perform the inherent requirements of his actual position, which involved fork lift driving.
In passing we would state that the Applicant had been advised to seek other clerical positions within Australia Post but had not been successful.
The Applicant stated to the Tribunal that his condition has remained the same since he ceased work, although he did state that currently he is taking no medication for his neck pain.
Cross-examined he stated that since seeing his General Practitioner in August 2001 regarding the direction to take sick leave he has not seen any medical practitioner regarding his right shoulder or his neck apart from a medico legal report from Dr Vote. Re-examined he stated that he did not need treatment while he was sitting at home doing nothing.
Central to the Respondent's case is the actual injury occasioned to the Applicant on 19 July 1998. In evidence in the previous proceeding in this Tribunal between the Applicant and the Respondent the Applicant stated that a metal storage bin (termed a ULD) fell and struck the right side of his neck and shoulder pinning him to the fork-lift.
Cross-examined the Applicant resiled from an absolute statement that the bin had hit him on the neck. At Transcript P67 he said:
"Well unless you were there, you can't say otherwise, can you, I don't know, I didn't see it. As I just said, it hit me and knocked me – knocked me flat to the fork-lift, pinned me to it, I wasn't able to move and I needed help to be pulled away from the fork-lift and then I felt pain on my right side neck and shoulder region and basically that was it."
Apparently an incident report was completed after the Applicant's accident on 19 July 1998 and that report reads in part:
"Mr Bakreski was trapped inside the upturned ULD while in the fork-lift. His right shoulder was pinned by the ULD."
Later in cross-examination the following passage occurred.
Q.Well do you seriously say that a 90-kilogram article fell on your neck from 4 metres, is that what you are suggesting?
A.Approximately yes.
Although in this and previous proceedings the Applicant has attempted to down play the effects of his 1996 motor vehicle accident, we note that in the statement of particulars lodged in support of his damages claim in the district court (see R3 in Exhibit R2 in these proceedings) the Applicant claimed:
"that the motor vehicle accident resulted in disk protrusions C3-4 and C5-6 and that such injury caused the Applicant to suffer neck pain radiating from the right side of the neck into the right arm, pain radiating into the right hand, headaches, difficulty in carrying out recreational activities and work duties, pain on extension of the neck, weakness in the arm, pain and restricted movement to the back and sleep disturbance."

The Applicant further claimed that thereafter he was restricted to light duties.

On 18 march 1998 (ie before the work accident the subject of these proceedings) Dr Vote reported to the Applicant's solicitors (T12):
"His x-rays show mild old disk bulging at C3/4 and C5/6. I think these changes are related to his road traffic accident rather than his recent minor episode."
On 5 May 1998 Dr Wilding orthopaedic surgeon reported (T18):
"Mr Bakreski was involved in a motor vehicle accident in September 1996. As a consequence of this he sustained a significant soft tissue injury to his cervical spine and since then he has experienced intermittent soreness and stiffness in his neck. His CT Scan showed mild bulging of the C3/4 and C5/6 disks."
Cross examined in the previous proceedings Dr Vote stated that the history that he obtained was that of symptoms as a result of the Motor vehicle accident continuing to the time he first saw the Applicant namely in March 1998.
Examined in these proceedings Dr Vote stated that he considered that changes in the Applicant's cervical spine as demonstrated by imaging were not caused by degenerative changes. This opinion was based on the fact that whereas there were changes affecting the spinal disks, the facet joints were not also affected as would be the case in degenerative change.
Dr Vote confirmed that the history given to him by the Applicant when he saw him on 17 December 2001 was that overall his neck symptoms were significantly better since leaving work. This statement must be compared to the Applicant's evidence to this Tribunal that what his neck was a couple of months after the19th July 1998 accident is what it is now and that he has more bad days than good days.
Cross examined Dr Vote stated that it is not possible to compare the findings on the CT Scan performed in March 1998 to the findings on the MRI scan performed in October 1998. It was possible that some of the findings on the MRI scan could have been present in March 1998 but not revealed by the CT Scan.
More importantly Dr Vote was cross-examined regarding the Applicant's description of the mechanism of the injury he received on 19 July 1998 and the observable signs of any injury when examined at hospital following that incident. The following passages of transcript are instructive:
Q.You were also asked on the last occasion about the mechanics of the particular incident in July 1998, this is the incident involving the cage. And it was put to you on that occasion that if a steel cage had landed from about 4 metres that was of a weight of 90 kilograms, it would have significant kinetic energy and you would expect broken bones in the neck, lacerations if it were sharp, and bruising and swelling. Do you recall that evidence?
A. Yes, I do.
Q.None of those things were observed?
A.Not when I saw him.
Q.And indeed none of the contemporaneous notes of treating Drs at the time report such matters do they?
A.Yes (the reply 'Yes" is obviously meant to signify agreement with the proposition put, not that the notes did refer to lacerations etc).
Q.You were also shown material from Bankstown Hospital and the treating Dr, Dr Kingsley at the time were referred to in those materials… it was put to you at the time that had there been a frank injury to the neck in those matters that would have been documented by the Drs at that time and I think that you agreed with that proposition in general terms on the last occasion to, is that right.
A.Yes, one would expect soft tissue changes, bruising and abrasion perhaps. At the least yes.
Cross-examined regarding the Applicant's right shoulder Dr Vote stated that he had not found any abnormality in the Applicant's shoulder. In evidence the Applicant stated that the incident of 19 July 1998 had "destroyed" his right shoulder.
Dr Vote agreed that the Applicant's injury on 19 July 1998 could be categorised as a soft tissue injury and that it is usual for people to recover from such injuries after a period of time. Radiographically there is nothing to show that the Applicant's neck condition was worse after the July 1998 incident than before so that to find is a continuing injury depends upon an acceptance of the Applicant's subjective history.
Given the concessions made by Dr Vote in cross-examination we find that his opinion is not diametrically opposed to the opinion of Dr McGill. The difference is that Dr Vote accepts the Applicant's history. Dr McGill gives reasons why he does not.
We find that the evidence the Applicant gave to the Tribunal suggested a greater degree of severity of injury than the history he gave to Dr Vote; for example, the Applicant stated to the Tribunal that his condition had stayed much the same since leaving work (September 2001) yet Dr Vote took a history that his symptoms had improved since then. The Applicant complained to the Tribunal that the incident of July 1998 had "destroyed" his shoulder. Dr Vote did not even take a history of shoulder problems.
More telling however is Dr Votes confirming his prior evidence that if the steel cage had, as suggested by the Applicant, fallen some 4 metres there would have been significant injury which injury was not noted when the Applicant was taken to Bankstown Hospital. (see also T29 a report by the Applicant's then General Practitioner Dr Kingsley dated 11 August 1998, which refers to a soft tissue injury right shoulder).
For these reasons we reject the Applicant's evidence as to his symptoms and given that his complaints of a permanent aggravation (that is his condition is now worse than it otherwise would have been) to his pre-existing degeneration are unable to be supported by Radiological evidence we prefer the report of Dr McGill which is supported in its turn by the reports of Drs Bowers and Pierides to the effect that any aggravation had ceased within 12 months of the July 1998 incident. The decision under review is therefore affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member, Dr P Lynch, Member, Mr M Griffin, Member
Signed:         .....................................................................................
  Associate
Date of Hearing:  8 May 2002
Date of Decision  14 June 2002
Counsel for the Applicant        Mr J Grahme
Solicitor for the Applicant         Peter Erman Solicitor
Counsel for the Respondent    Mr G Elliot
Solicitor for the Respondent    Forners