Cakany and Australian Postal Corporation (Compensation)

[2016] AATA 314

Cakany and Australian Postal Corporation (Compensation) [2016] AATA 314 (16 May 2016)

Division	GENERAL DIVISION
File Number	2013/5456
Re	Gloria Cakany
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey Dr S Toh
Date	16 May 2016
Place	Sydney

The Tribunal sets aside the reviewable decision and decides instead that the applicant continues to suffers the effects of the injury sustained on 28 September 2012.

..........................[sgd]..............................................

Senior Member J F Toohey

CATCHWORDS

COMPENSATION – musculoskeletal strain lumbar spine – liability accepted – lumbar disc bulge – incapacity – medical treatment – whether respondent has present liability – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975

Safety Rehabilitation and Compensation Act 1988

CASES

Cakany and Australian Postal Corporation [2014] AATA 714

REASONS FOR DECISION

Senior Member J F Toohey
Dr S Toh

16 May 2016

1. Gloria Cakany has been a full-time employee of Australia Post (the respondent) since May 1990.  She is aged 57.  On 28 September 2012, she sustained an injury to her lower back when trying to dislodge a large mailbag which had become stuck in an overhead conveyor.  The respondent accepted liability under the Safety Rehabilitation and Compensation Act 1988 (the Act) to compensate her for “musculoskeletal strain of the lumbar spine”.

2. In the months following her injury, Ms Cakany made a graduated return to work.  By 1 May 2013, she had resumed her pre-injury duties and hours, the only restriction being that she not lift more than 10 kilograms.

3. On 24 April 2013, Associate Professor Neil McGill, consultant rheumatologist, saw Ms Cakany for assessment.  He considered she was fit to return to her pre-injury duties immediately but recommended that she increase the weight she could lift gradually over four weeks to the normal Australia Post limit of 16 kilograms.  At that point, Dr McGill said Ms Cakany should be back to performing her full pre-injury duties.

4. On 3 June 2013, the respondent determined that it had no present liability under s 16 or s 19 of the Act to compensate Ms Cakany for medical treatment or incapacity.  By a reviewable decision on 16 September 2013, the respondent affirmed that determination.  Following a hearing on 22 and 23 July 2014, the Tribunal, differently constituted, affirmed the respondent’s decision. 

5. Ms Cakany sought review of the Tribunal’s decision by the Federal Court.  By consent orders on 9 June 2015, the Court set aside the Tribunal’s decision and remitted the matter for redetermination.

6. The matter came before the Tribunal again on 17 February 2016. At the second hearing, the Tribunal had before it the transcript of the previous hearing and the exhibits, and the documents provided by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975.  Parties agreed, and we were satisfied, that it was not necessary to hear from the applicant or the witnesses again and that the matter could be dealt with by way of submissions.

   THE ISSUE

7. We have to determine whether, by 3 June 2013, the effects of Ms Cakany’s injury ceased such that, from that date, the respondent continued to be liable to compensate her for incapacity for work or medical treatment in relation to her condition.

8. Ms Cakany’s incapacity is said to consist of her ongoing restriction in bending and twisting, and not lifting more than 10 kilograms.  Her need for medical treatment is said to consist of her ongoing need to see her doctors from time to time and her need for medication.  Her treating orthopaedic surgeon, Dr Vijay Maniam, suggests that an epidural injection into her spine might be helpful, although that opinion is not shared by Dr James Bodel or Associate Professor McGill.  In the end, that is a matter for Ms Cakany’s doctors.

   MS CAKANY’S EVIDENCE

9. Ms Cakany provided a written outline, and gave oral evidence, at the previous hearing on 22 July 2014.  Her evidence is set out in the decision of the Tribunal: Gloria Cakany and Australian Postal Corporation [2014] AATA 714 at paragraphs [11] to [17]. It is not necessary to repeat it in detail here.

10. The doctors who saw her for treatment and assessment agreed that she was co-operative and gave a clear history of her injury.  The respondent does not dispute that she was a truthful witness.

11. It is not in dispute that Ms Cakany has worked full-time at Australia Post since May 1990, without any injury or any difficulty performing her duties as a mail officer.  On 28 September 2012, she was performing her usual duties when a large mailbag became wedged in an overhead conveyor.  As she attempted to dislodge it, she felt a sudden pain in her lower back. 

12. Ms Cakany reported the incident at work and saw her general practitioner, Dr Baljit Chugh, on 2 October 2012.  His notes show: “whenpuling (sic) the bag felt backpain (sic) …L1-2 tenderness”. 

13. Ms Cakany gave evidence that, a few weeks after her injury, she started to feel numbness in her right foot and then a shooting pain down her right leg.  About a week later, she started to feel pain in her left leg.  On 19 November 2012, Dr Chugh noted: “c/o LBP [lower back pain] with L [left] leg pain”.

14. The respondent contends that Dr Chugh’s record for 2 October 2012 is significant because it goes to the nature of the injury sustained by Ms Cakany on 28 September 2012 and, therefore, to its effects.  It is submitted that pain at L1/2 cannot relate to the disc bulge at L4/5 seen on subsequent MRI scans.  The transcript shows that, giving evidence before the Tribunal, Ms Cakany agreed that she had a good relationship with Dr Chugh and that she was careful to show him where she was feeling pain.  Against that, Associate Professor Neil McGill, whose evidence is considered below, recorded that she indicated pain at the L4 level.

15. It is not in dispute that Ms Cakany has had symptoms in her lower back since the time of her injury.

    THE MEDICAL EVIDENCE

16. The Tribunal has before it reports from Dr Maniam, and from Dr James Bodel, orthopaedic surgeon, and Associate Professor McGill, who saw her for assessment.  The doctors provided written reports and gave oral evidence before the Tribunal.

17. Also before the Tribunal are Dr Chugh’s clinical notes and reports of MRIs of Ms Cakany’s lumbar spine performed on 18 January 2013 and 5 February 2014.

    Dr Maniam’s evidence

18. Dr Chugh referred Ms Cakany to Dr Maniam who saw her on 3 June 2013 and 8 July 2013.  Dr Maniam noted “vague tenderness between L4 and S1”.  He diagnosed “[c]hronic musculo ligamentous strain of the lumbar spine” and “[b]road based left foraminal disc bulge extending into the neural exit foramina but without any impingement of the L4 nerve root”.

19. The respondent submits, and we accept that, that Dr Maniam’s evidence is of limited assistance for the reasons below.

20. Significantly, the respondent says, Dr Maniam proceeded on the basis that Ms Cakany suffered an injury as a result of the “nature and conditions” of her employment over many years.  The transcript shows that Dr Maniam agreed that “the main issue was the inherent duties” that Ms Cakany had to perform in her job which “came to a head in the incident that occurred”.  He confirmed that her current complaints were due to “the nature and conditions of her employment”.

21. The respondent submits, correctly, that Dr Maniam’s view that there may have been some nerve impingement was not supported by either Dr Bodel or Associate Professor McGill.  Further, he understood that Ms Cakany’s leg pain remained in her left leg, whereas her evidence was that it moved to the right.  His opinion that disc bulging indicated a “trauma induced lesion” and that degenerative changes in the lumbar spine are not seen “to any great extent” was not support by Dr Bodel or Associate Professor McGill, both of whom gave evidence that disc bulging is commonly seen in asymptomatic people of Ms Cakany’s age.  When pressed, Dr Maniam agreed that the changes seen on the MRIs could have occurred regardless of any injury on 28 September 2012.

22. In our view, Dr Maniam’s evidence is of limited assistance and we rely instead on the evidence of Dr Bodel and Associate Professor McGill.

    Evidence of Dr Bodel and Associate Professor McGill

23. There was a good deal of common ground between Dr Bodel and Associate Professor McGill. They agreed that “something” happened to Ms Cakany’s lower back on 28 September 2012 that could have been more than a mere musculo ligamentous strain.  They agreed that the MRI on 18 January 2013 showed pathology in her lumbar spine and that it is common for people of her age to have such pathology without any symptoms.  They also agreed that, if what Ms Cakany experienced on 26 September 2012 was a musculo ligamentous strain, it would have resolved by 3 June 2012.  (Dr Maniam agreed with them on this point).

24. The MRI of Ms Cakany’s lumbar spine in January 2013 showed, relevantly, at L4/5 “a broad based left foraminal disc bulge extending extra foraminally…”.  The MRI in February 2014 showed a similar “small left lateral disc protrusion into the left neural exit foramen” at L4/5 level and “minor circumferential bulging of the disc annulus” at L5/S1.  Neither scan showed anything of significance at L1/2 level.

25. Giving evidence, Dr Bodel and Associate Professor McGill agreed that there was no difference of any significance between the two scans.  They agreed that, if Ms Cakany suffered trauma to her back on 28 September 2012, they would have expected a worsening of her condition to be seen in the latest scan. 

26. Dr Bodel and Associate Professor McGill agreed that L1/2 was “a long way” from L4/5 and L5/S1.  They also agreed that, whereas a patient may complain of pain at a lower level, that, on investigation, turns out to be caused by a problem at a higher level, one never sees a complaint at a higher level (for example, at L1/2) that turns out to be due to pathology at a lower level (for example, at L4/5).  They also agreed there were no radicular symptoms by which they could relate Ms Cakany’s leg pain to her back problem.

27. Dr Bodel came to the view that it was “probable” that Ms Cakany suffered an L4/5 disruption on 28 September 2012 rather than a musculo ligamentous strain.  The transcript shows that he acknowledged that he did not have enough “hard data” to say that she had suffered more than a musculo ligamentous strain, and he acknowledged that it was “problematic” for his opinion that, whereas Ms Cakany’s leg pain moved from her left leg to her right where it has predominantly remained, the disc bulge at L4/5 appeared to be on the left.  He acknowledged it was a “great flaw” in his argument that her symptoms were on the wrong side.  In the end, he could not put it a lot higher than that he was “prepared to accept” she suffered structural damage in September 2012.  He acknowledged that he could not correlate the scans with Ms Cakany’s complaints and that it was “starting to stretch it” to do so.

28. Associate Professor McGill saw Ms Cakany for assessment on 24 April 2013.  He reported that she told him she had “improved greatly” but “still experienced pain in the low back (she pointed to the L4 level)”.  While she did no generally experience symptoms while doing her work, including lifting 10 kilogram trays, her low back was sore by the end of the day, and she had back stiffness and soreness in the morning.  He concluded that:

    … as a result of the pulling activity at work on 28 September 2012 she experienced an aggravation of pre-existing minor lumbar disc degeneration. I think the nature of the exacerbation would have been to produce symptoms rather than to change the underlying structure of her spine. I think it is likely that the MRI findings reflected her mild pre-existing degenerative disc disease and they were not influenced by the work incident on 28 September 2012.

29. Associate Professor McGill said he “gained the impression that [Ms Cakany] became concerned about the state of her back as a result of the episode of pain”.  He thought the physical effects of the aggravation had ceased but “it may continue to be having an influence with respect to her level of concern”.  He did not think she was “voluntarily exaggerating” her symptoms, and there was no inconsistency in the history or his examination.  However, she “may have perceived her back problem as more of a threat than is true”.  

30. Giving evidence, Associate Professor McGill said he did not suggest that Ms Cakany did not feel the pain she complained of; rather, that she was by nature guarded and cautious in what she does, and naturally “risk averse”.  He attributed this in part to her personality and in part to her experience in having undergone tests in about 2011 for a possible cancer.

31. Ms Cakany acknowledged that she did not push herself to lift weights to the Australia Post maximum limit of 16 kilograms.  She said she was following medical advice and did not wish to injure herself further.  The respondent does not suggest that she was malingering; rather that she did not return to her full pre–injury duties because of her natural caution rather than the continuing effects of her injury.  Against this, it is submitted for Ms Cakany that all the evidence indicates that she had always worked to her maximum capacity and resumed her duties as soon as possible after her injury.  It is submitted that we should find that her capacity continued to be restricted by reason of the effects of her injury.

32. For the respondent, it is submitted that Dr Bodel accepted the possibility of structural damage only because he had no other explanation for Ms Cakany’s ongoing symptoms.  On the other hand, it is submitted that Associate Professor McGill provided an explanation in that Ms Cakany’s ongoing symptoms were due to her personality and “risk averse” nature.

    CONSIDERATION

33. The evidence in this matter is finely balanced for, and against, Ms Cakany.  There is very substantial agreement between the doctors but difficulties with their evidence for different reasons.  Dr Bodel generally supports her claim but acknowledges the difficulties with his view.  Associate Professor McGill attributes her ongoing symptoms to her personality rather than the injury in September 2012 but reported that was his “impression”; he acknowledges that she suffered an aggravation of her pre-existing disc degeneration and that she has suffered continuing symptoms since.  His report of 24 April 2013 also shows that Ms Cakany indicated she felt pain at the site of her disc bulge, rather than higher up as originally recorded by Dr Chugh.

34. We have come to the conclusion that, on balance, the information before us favours Ms Cakany.  We are satisfied that the effects of her injury had not ceased at 3 June 2013.

35. For these reasons we set aside the decision under review and decide instead that the effects of Ms Cakany’s injuries had not ceased as at 3 June 2013.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey, Dr S Toh

............................[sgd]............................................

Associate

Dated 16 May 2016

Date of hearing	17 February 2016
Counsel for the Applicant	Mr J Dodd
Solicitors for the Applicant	Slater & Gordon Lawyers
Counsel for the Respondent	Mr M Gollan
Solicitors for the Respondent	Graham Jones Lawyers