Bakreski and Australian Postal Corporation
[2001] AATA 521
•13 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 521
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos N2000/836
)N2000/1584
GENERAL ADMINISTRATIVE DIVISION ) N2000/1823
Re DIMITRI BAKRESKI
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P D Lynch, Member
Date13 June 2001
PlaceSydney
Decision The decisions under review are affirmed.
(Sgd) M D ALLEN
..............................................
Presiding Member
CATCHWORDS
WORKERS COMPENSATION - Whether Applicant totally incapacitated for work when suitable duties provided by employer. Permanent impairment claim but percentage loss less than 5%. Whether a course of physiotherapy was required. Tribunal's powers do not extend to ruling on potential claims after the date of its determination.
Safety, Rehabilitation and Compensation Act 1988 - ss19, 24, 28
Re Devine and Commonwealth of Australia 5 ALD N28
REASONS FOR DECISION
13 June 2001 Senior Member M D Allen
Dr P D Lynch, Member
on 9 and 11 May 2001 this Tribunal heard evidence relating to three reviewable decisions of the Respondent which were disputed by the Applicant.
Those decisions were:
(i)Matter No N2000/836 seeking review of a reviewable decision which affirmed a prior decision dated 20 March 2000 which read:
" … Australia Post is no longer liable to make ongoing payments for total incapacity."
(ii)Matter No N2000/1584 seeking review of a reviewable decision affirming a prior decision of 17 August 2000 that denied payment for any physiotherapy undergone by the Applicant after the 31st day of July 2000.
(iii)Matter No N2000/1823 seeking review of a reviewable decision which affirmed a prior decision of 10 July 2000 denying the Applicant's claim pursuant to s24 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for compensation for permanent impairment.
Subsection 24(7) of the SRC Act provides that compensation for permanent impairment is not payable if the degree of impairment is less than 10% on the approved Guide to the Assessment of Permanent Impairment.
The Applicant has suffered two accidents for which the Respondent had a prospective liability under the SRC Act. The first of these events was a motor vehicle accident on 18 September 1996 when the Applicant was returning home from work.
No claim was made against the Respondent in regard to this motor vehicle accident, instead the Applicant elected to take Common Law proceedings against the driver of the other vehicle involved.
In the Statement of Particulars (R3) filed on the Applicant's behalf in the New South Wales District Court in those proceedings the Applicant alleged that on 18 September 1996 he suffered an injury to the neck, shoulders, shock, disc protrusion at C3/4 and C5/6 and an injury to the back. The Applicant listed his disabilities as neck pain radiating from the right side of the neck into the right arm, pain radiating to the right hand, headaches, difficulty carrying out recreational activities, difficulty carrying out work duties, pain on extension of the neck, weakness in the arms, pain and restricted movement to the back and sleep disturbance. The Applicant further claimed a loss of earning capacity from the date of the accident and continuing physiotherapy treatment on this neck to an amount of $3,600.00 and ongoing medical treatment at an estimated cost of $500.00 a year.
The District Court proceedings were settled by the parties on terms not to be disclosed, although the actual terms of settlement became Exhibit R5 in these proceedings. That exhibit was marked as a confidential exhibit pursuant to s35 of the Administrative Appeals Tribunal Act 1975.
In evidence to the Tribunal the Applicant stated that initially after the motor vehicle accident he had three to four days off work but his neck pain settled and he was then able to return to work. Some five to six months after the motor vehicle accident his neck pain returned spontaneously. He then continued to get neck pain on and off up until his second work accident in 1998.
As a result of an exacerbation of neck pain which occurred at work in March 1998, the Applicant was referred by his general practitioner to orthopaedic surgeon, Dr Vote. In a report dated 18 March 1998, Dr Vote stated (T12 of N2000/836):
"… I note he had a road traffic accident 18 months ago and had a significant soft tissue injury to his cervical spine. He appears to have had periodic stiffness since but not to the point where it inconveniences him in terms of work or leisure.
Examination reveals no abnormality.
His x-rays show mild old disc bulging at C3/4 and C5/6. I think these changes are related to his road traffic accident rather than his recent minor episode."
The Applicant was at this time referred by the Respondent to orthopaedic surgeon Dr Wilding. In his report of 5 May 1998 to the Respondent, Dr Wilding recorded the following history, namely (T18 p84 in matter N2000/836):
"It was difficult to obtain a history from him but he stated that his neck 'ceased to be annoying but occasionally was stiff'. He said that he continued working without problems apart from occasional neck stiffness and soreness and because of this he required an occasional day off work."
And opined (p85):
"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 discs.
Whilst at work on 3/3/98 he aggravated this pre-existing soft tissue injury. In my opinion the effects of this aggravation have now ceased and he is fit to continue working on full duties."
In a later report Dr Di Paola, a Government Medical Officer, recommended that the Applicant be placed on modified duties until his current neck symptoms resolved. Those restrictions included a restriction on lifting weights greater than 5kgs, the avoidance of extreme and frequent neck movements and no driving of large vehicles, for example a fork-lift.
In cross-examination the Applicant conceded that he had been able to carry out his normal duties until this time and he also stated, in examination in chief, that he had played golf up until his second work accident.
It is difficult to reconcile the details of impairment, as set out in the Applicant's District Court claim, with the details he gave in evidence to the Tribunal. It would appear that prior to March 1998 he was on full duties, did play golf regularly and only had pain "on and off". On 5 August 1999 Dr Marsh, Occupational Physician, had reported to the Applicant's solicitor regarding the motor vehicle accident (T9 p31 in matter N2000/1823):
"He said that the pain never went away completely. He said however that some days it was not too bad and was manageable, but at other times the pain was quite severe."
No doubt the defendant's insurer made its own investigations and it must have been sufficiently satisfied of a degree of injury to the Applicant to justify the settlement of the District Court proceedings.
The second of the Applicant's workplace accidents occurred on 19 July 1998. The Applicant was operating a fork-lift and moving empty metal containers, termed ULDs, when one of these containers fell from the forks of the fork-lift in such a way as to envelop the fork-lift and pin the Applicant by his right arm and shoulder to the fork-lift.
During the hearing some time was taken up in exploring the actual mechanics of the accident but we are satisfied that the account given by the Applicant is generally correct and that no doubt he was saved from more severe injury by the small roof of the fork-lift. However, given the evidence of Dr Vote that if the ULD had fallen from some four metres there would have been significant kinetic energy and that if the container had struck the Applicant's neck there would have been a high likelihood of bony damage, we are satisfied that the container did not strike the Applicant's cervical spine.
Immediately following this accident, the Applicant was taken to a medical centre and then attended at Bankstown Hospital. At that hospital an x-ray was taken of the Applicant's shoulder and a diagnosis made of bruising to the trapezius muscle.
We are satisfied that the force of the blow from the ULD and the twisting motion of the Applicant's body would have been sufficient to cause at least a temporary exacerbation of the Applicant's neck pain.
On 11 August 1998 the Applicant's general practitioner diagnosed a soft tissue injury to the right shoulder.
Following the second accident the Applicant was prescribed physiotherapy, heat treatment, acupuncture and massage, together with corsitone injections. On 3 September 1998, Occupational Physician Dr Pierides reported to the Respondent that (T35 p121 in matter N2000/836):
"Mr Bakreski suffers from a right sided neck strain. I am of the opinion that the changes on the CT scan with regards to his discs are not significant. This right sided neck strain was initially present after a motor vehicle accident in September 1996 but has been significantly aggravated by an incident in July 1998 when the ULD fell on him."
And opined (pp122-123):
"In summary, Mr Bakreski had an incident in September 1996 leaving him with some residual symptoms in the right side of his neck. These had not fully recovered and he had dealt with his job in some discomfort at times. In July 1998 a ULD fell on him aggravating his pre-existing condition. I am of the opinion that it is most likely to be a soft tissue injury but discogenic or other types of injuries need to be excluded by an MRI scan of his neck. Once this has occurred then he should be upgraded in his physiotherapy activities to hydrotherapy and gym and also be upgraded in his activities at work. I am of the opinion that the long term outcome is not as black as has been painted by a previous doctor who wrote a report, but there is some caution about him returning to full normal activities."
The Applicant again consulted Dr Vote on 13 November 1998. Dr Vote, in a report to the Applicant's general practitioner, stated (T46 in matter N2000/836):
"Clinically he holds his neck in a protracted and flexed position. Extension is virtually zero whereas forward flexion and rotation or (sic) three quarters of normal. His shoulders exhibit a full range of movement though there is some right trapezial pain in full abduction."
Contained in the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975 are a large number of reports bespeaking as to the various treatments afforded the Applicant at the instigation of his employer. These treatments include psychological consultations and pain management strategies as well as graduated return to work programmes and physiotherapy.
It is fair to say that the Applicant's return to work was fraught with some difficulties. An attempt to provide him with clerical duties was unsuccessful due to the Applicant's performance, and restrictions on the amount of travel he could undertake made other placements a problem.
Notwithstanding difficulties, on 11 February 2000 the Applicant's general practitioner stated that whilst the Applicant remained unfit to drive a fork-lift, lift weights more than 5kgs or perform repetitive movements, the present duties he was performing were quite satisfactory and the Applicant was able to work normal shifts (Document T120 in matter N2000/836).
Dr Vote has the advantage of having seen the Applicant prior to the 19 july 1998 work accident and afterwards. The restrictions referred to by Dr Kingsley, the Applicant's general practitioner, on the Applicant's employment were put to Dr Vote and he stated that he thought that they would be within the Applicant's scope albeit that he would have good days and bad days.
On 23 August 2000, Dr Marsh reported to the Applicant's solicitors that the Applicant was coping with full hours but would require ongoing restrictions with regard to work. He further added (T10 p 37 in matter N2000/1823):
"I do not feel that he would benefit from further treatment, specialist opinion or investigations. He appears to be coping in his present work situation and therefore does not require rehabilitation assistance."
On 4 August 2000, Mr Canning, Physiotherapist, wrote to the Respondent requesting ongoing physiotherapy treatment be made available to the Applicant. A physiotherapy consultant to the Respondent determined that, on the basis of a report from a Dr Bowers, Consultant Rehabilitation Physician, the request for further physiotherapy treatment could not be justified.
The report of Dr Bowers referred to is dated 9 June 2000 and was forwarded to the Respondent after the Applicant had been referred to that medical practitioner by the Respondent's Work Environment Branch. After reviewing an MRI scan of the Applicant's neck dated 10 October 1998 and examining the Applicant, Dr Bowers opined (T5 p18 in matter N2000/1823):
"At the present time, Mr Bakreski is fit for sedentary work on a full-time basis and will remain fit for this type of work for the rest of his life.
Given the osteoarthritic changes in his neck, he would be best advised to avoid any type of light or heavy physical work in the long-term future."
When reviewing the decision that rejected the claim for physiotherapy treatment, a factor that must be kept in mind is that the Respondent has not denied liability for incapacity arising as a result of the Applicant's workplace accident on 19 July 1998. That is to say, the Respondent continues to be liable for ongoing medical and other treatments arising as a result of that workplace accident. The decision regarding which review is sought is the decision not to approve the course of physiotherapy treatment recommended by Mr Canning on 4 August 2000.
As to future treatments, as was pointed out by the Tribunal (Davies J presiding) in Re Devine and Commonwealth of Australia 5 ALD N28 at N29 – any direction by the Tribunal regarding events after the dates of its decision were invalid. Thus this Tribunal cannot direct the Respondent to accept subsequent claims which the Applicant may make upon it for further physiotherapy treatment.
That the Applicant may need such future treatment was referred to by Dr Vote. Although Dr Vote stated that physiotherapy should be kept as an adjunct treatment for future flare-ups, in his opinion physiotherapy would not really help the Applicant as it has no curative value.
We gathered from the tenor of Dr Vote's evidence to the Tribunal that the treatment requested by Mr Canning for the Applicant, being the subject of the decision of 17 August 2000 being matter No 2000/1584 before the Tribunal, does not have Dr Vote's support.
In a report to the Respondent dated 20 October 2000, Consultant Rheumatologist Dr McGill stated as to treatment (T11 p42 in matter N2000/1823):
"With respect to appropriate treatment, I think it is unlikely that any passive therapy will provide an improvement in his level of symptoms or capacity other than for a very brief period. He may obtain benefit from instruction in regard to posture and appropriate exercises. The Feldekrais approach is one reasonable alternative. The duration of therapy should be defined from the outset (twice weekly for twelve weeks would be reasonable). Massage and other forms of passive therapy are not appropriate. They increase dependence and that in turn retards long term recovery. There is no role for surgery."
The opinion of Dr Vote is supported by the report of Dr Memon, Orthopaedic Surgeon, dated 21 November 2000 to the Applicant's solicitors. In that report Dr Memon states that the Applicant will benefit from physiotherapy in the acute phases of pain (Tribunal's emphasis).
Having regard to the opinions of Drs Vote, McGill and Memon, we are satisfied that the decision to refuse the course of physiotherapy suggested by Mr Canning on 4 August 2000 was the correct and preferable decision, consequently the reviewable decision of 28 November 2000 will be affirmed.
Exhibit R10 in these proceedings is a video film of the Applicant. Whilst this film does not show any startling discrepancy between the Applicant's evidence as to what he can do and what is observed, the film does show a range of movement in the Applicant's neck much greater than the Applicant demonstrated to the Tribunal.
The film was shown to Dr Vote who was called by the Applicant. In his opinion the Applicant, on the film, exhibited a loss of less than one half of the normal range of movement in his cervical spine.
The film was also observed by Drs McGill and Bowers who opined (see Exhibits R12 and R13) that the Applicant had no permanent impairment of the whole person pursuant to Table 9.6 on the Comcare Guide.
Dr Bowers also commented on the Applicant's ability to work in the following terms, namely (Exhibit R13):
"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 disc 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 with Australia Post that he is not fit to return to work to."
Compare that with Dr McGill who stated (Exhibit R12):
"Over the 77 minutes of the video he demonstrated normal neck and upper limb function. His actions were clearly different from those which he performed during my examination of him on 20 October, 2000.
I think he is probably fit for all types of work. It remains possible however that he may not be fit for work involving prolonged or repetitive neck extension. The marked discrepancy between his actions on the video and those which he alleged he could not perform at the time of my examination of him I think indicates that he is an unreliable historian and I have no confidence that his alleged difficulties with certain actions are genuine."
Taking the Applicant's case at its highest and best, his own specialist Dr Vote considered that he had a loss of less than half normal range of movement in his cervical spine. Table 9.6 in the "Guide to the Assessment of Permanent Impairment", prepared pursuant to subs28(1) of the SRC Act, allocates an impairment factor of 10% to loss of half range of normal movement of the cervical spine. The percentage figure below this rating is 5% meaning that if the range of loss of movement is less than half normal range then the percentage loss on the Comcare Guide is 5% and subs24(7) of the SRC Act states that this degree of impairment is not compensable.
As previously referred to, Document T120 in matter N2000/836 is a letter from the Applicant's general practitioner, Dr Kingsley dated 11 February 2000. It reads inter alia:
"His present duties appear to be quite satisfactory and he is fit to work normal shifts at the present time."
The Applicant's evidence to the Tribunal was that he commenced his present duties with the Respondent at approximately the beginning of the year 2000. He is allowed what are termed "health breaks" and restrictions as suggested by his general practitioner have been placed on his work.
As the Applicant is working full-time in suitable employment, that is to say in employment which takes account of his restrictions, and no evidence was given of any loss of earnings, it cannot be said that the Applicant is entitled to any compensation pursuant to s19 of the SRC Act, nor are any payments liable for total incapacity.
As pointed out in Re Devine supra, what happens in the future is not a matter for this Tribunal. I would also refer to the opinion of Dr Vote, in his report of 30 September 2000 (Exhibit A4), namely:
"Overall, I would regard his condition as static. I believe he will continue to experience symptoms related to his cervical spine, of much the same degree as he currently does."
Further exacerbations, along with the requirement for physiotherapy to deal with such exacerbations, can only be the subject of further determinations as and when they occur. Similar remarks apply to any future claims for loss of earnings. As stated, however, at present the Applicant is not totally incapacitated, nor is he incapacitated to any degree for which he is entitled to receive compensation for loss of earnings pursuant to s19 of the SRC Act.
For the reasons outlined above the three decisions under review are affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
....................................................................................
Associate
Date/s of Hearing 9 & 11 May 2001
Date of Decision 13 June 2001
Counsel for the Applicant Mr J Fitzgerald
Solicitor for the Applicant Peter Erman Solicitors
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Forners
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