Cakmakkaya and TNT Australia Pty Ltd (Compensation)
[2017] AATA 695
•18 May 2017
Cakmakkaya and TNT Australia Pty Ltd (Compensation) [2017] AATA 695 (18 May 2017)
Division:GENERAL DIVISION
File Number: 2015/3376
Re:Erol Cakmakkaya
APPLICANT
TNT Australia Pty LtdAnd
RESPONDENT
DECISION
Tribunal:Senior Member J F Toohey
Date:18 May 2017
Place:Sydney
The Tribunal affirms the decision under review
...............................[sgd].........................................
Senior Member J F Toohey
CATCHWORDS
Compensation – lower back injury – liability accepted – multiple injuries – degenerative condition – whether effects of injury ceased – whether respondent presently liable to compensate applicant – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988, ss 16, 19, 62, 64
CASES
Abrahams v Comcare [2006] FCA 1829
Szabo and Comcare [2011] AATA 114
Szabo v Comcare [2012] FCA 28
REASONS FOR DECISION
Senior Member J F Toohey
18 May 2017
Mr Erol Cakmakkaya was working for the respondent on 7 March 2014 when he sustained an injury to his lower back while pushing a 60 kilogram pallet. He lodged a claim for compensation for “lower back strain/sprain”. On 24 March 2015, the respondent accepted liability under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) to compensate him for his injury.
On 11 May 2015, the respondent determined that it had no present liability to compensate Mr Cakmakkaya under ss 16 or 19 of the SRC Act. On 6 July 2015, the respondent affirmed that determination.
Mr Cakmakkaya seeks review of the respondent’s determination. He maintains that the effects of his injury have continued.
Preliminary question
On 26 July 2016, the Tribunal heard argument as to whether it had jurisdiction to consider a “nature and conditions claim” as well as one for a “frank injury”. For reasons given orally, the Tribunal determined it had jurisdiction to consider both. For completeness, written reasons reflecting those given orally follow.
The “cease effects” determination
On 11 May 2015, the respondent determined it had no present liability to compensate Mr Cakmakkaya under ss 16 or 19 of the SRC Act. The respondent relied on a report of Professor Fredrick Ehrlich dated 7 May 2015 in which he said:
This man’s present back problems should not be attributed to injury. He has had back pain for many years and whilst there have been injuries they were essentially of the trivial nature, representing little more than a strain.
Mr Cakmakkaya’s condition should not be attributed to injury. It is of constitutional origin and would produce symptoms regardless of his employment.
Whatever strain may have occurred in the past can reasonably be assumed to have resolved within a few weeks.
Up to this point, the claim had been expressed in terms consistent with a “frank injury”. It had been accepted on that basis, and the “cease effects” determination and the medical report on which it was based were in respect of a “frank injury”. Nothing up to this point suggested a “nature and conditions” claim.
Request for reconsideration
By letter dated 3 June 2015, Mr Cakmakkaya, through his solicitor, requested reconsideration of the determination dated 11 May 2015. The letter disputed Professor Ehrlich’s opinion. It stated that Mr Cakmakkaya had suffered injuries to his back at work “in approximately 2006 and then again 2008 and then again in 2011, 2013 and ultimately on 7 March 2014”. It continued:
It is submitted that Erol has suffered an injury over an extended period of time that the injury is one of a “nature and conditions” injury.
This is supported by the fact that Erol has been working in physically demanding employment which included the requirement to lift and move freight over many years.
Errol has had a number of instances of back pain and problems at work over the years which have been documented.
Ultimately, that repetitive injury which occurred over many years reached its endpoint with the injury which occurred on 7 March 2014.
…
It is submitted that in this matter Erol has suffered from the nature and conditions injury over many years, with the damage to Errol’s back being done progressively over time, with that time commencing in 2005 and finishing on 7 March 2014.
…
… In the alternative to the injury being caused by the nature and conditions of employment, it is submitted that Erol’s condition is one in which the degenerative disease in Erol’s back has been rendered symptomatic by his employment and aggravated by employment.
As such Erol’s injury is alternatively an aggravation of an ailment being a disease pursuant to Section 5B of the Act.
There can be no doubt that the request for consideration put the claim in the alternative: primarily that it was a “nature and conditions” claim but, in the alternative, that it was an aggravation of a pre-existing condition. On a fair reading, it “amplified”, or better explained and justified, Mr Cakmakkaya’s claim.
The reviewable decision
In the reviewable decision dated 6 July 2015, the delegate set out the history of Mr Cakmakkaya’s claim, including his earlier injuries, and reproduced, almost entirely, the letter from his representative seeking reconsideration. The delegate stated that she had “reviewed the totality of the available evidence, together with the reconsideration submission”. Affirming the original determination, she stated:
22In support of the reconsideration request the claimant’s legal representatives put forth reasons which I note:
a.There is no evidence put forth that supports the contention that the determination made on 11 May 2015 was incorrect.
b. [Accepting the opinion of Professor Ehrlich]
c.There is no evidence to support that the claimant’s condition was caused by his work with TNT. The evidence does support that the claimant’s disc degeneration and spondylotic disease have been temporarily aggravated by incidents at work however these could reasonably be assumed to have resolved within a short period of time.
The meaning of the statement at 22(c) that “There is no evidence to support that the claimant’s condition was caused by his work with TNT” is not immediately clear. It could be read to deny any relationship between a “frank injury” and Mr Cakmakkaya’s employment. Read in context, however, I understand it to mean there is no evidence to support a “nature and conditions” claim. Read with the sentence that follows, in which it is accepted that his disease was “temporary aggravated by incidents at work”, I am satisfied that the delegate was rejecting a “nature and conditions” claim.
By s 64 of the SRC Act, the Tribunal has the power to review a reviewable decision made under s 62. I am satisfied that the Tribunal has that power in this case. This case may be distinguished from Szabo and Comcare [2011] AATA 114 (and see Szabo v Comcare [2012] FCA 28) in which Mr Szabo’s claims “may have appeared” to be worded as “nature and conditions” claims but “there was no appropriate determination by Comcare, and no reviewable decision relating to nature and conditions of work against which Mr Szabo could appeal to this Tribunal”.
The purpose of giving notice is relevant. The Full Court in Szabo observed at [33] that those purposes:
… include enabling [the respondent] to determine whether the claim should be met. In construing a notice of injury or notice of claim, consideration of the purpose of giving notice of injury and of enabling the decision maker to have a fair opportunity to investigate the claim properly are paramount (see Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [18]).
I do not think the respondent in this case can fairly argue that it had no notice of a nature and conditions claim. It was clearly stated in the request for reconsideration. Indeed, as the supplementary report of Dr Rhys Gray, consultant orthopaedic surgeon, dated 26 April 2012 shows, the respondent specifically asked Dr Gray whether “the ‘heavy physical work activities’ Mr Cakmakkaya has engaged in during his employment at TNT have an effect on his current condition and symptoms”, to which Dr Gray replied “Probably yes”.
Conclusion
I am satisfied that the Tribunal has jurisdiction to consider Mr Cakmakkaya’s “nature and conditions” claim.
The history of Mr Cakmakkaya’s injuries
Mr Cakmakkaya is 44 years old. He obtained a truck driver’s licence in about 2000. He worked for a time as a casual truck driver for other employers before commencing employment with the respondent as a “pick-up and delivery driver” in about July 2005. He became a permanent employee in about October 2005.
Mr Cakmakkaya’s duties involved a mix of: pick-up and delivery work, handling parcels weighing up to 25 kilograms that he loaded onto and off the truck and delivered to up to 30 locations around the city; deliveries involving “pallet on pallet off” work loading and unloading goods by means of forklift, with occasional manual handling of pallets; and “bulk work” that did not involve handling but did involve lifting gates weighing 10 to 20 kilograms at the back to a tautliner truck to secure the load.
Mr Cakmakkaya suffered a number of injuries to his lower back while employed by the respondent. He had suffered minor injuries in motor vehicle accidents in about 1983 and 1990 but says that, before commencing with the respondent, he only had a “minor back pain thing” that would quickly resolve.
2006 injury
On 5 June 2006, Mr Cakmakkaya hurt his back lifting heavy boxes. He lodged a claim for compensation. It appears, from the information before the Tribunal, that the respondent accepted liability for his injury.
Dr Tony Antoun, general practitioner, certified Mr Cakmakkaya fit for suitable duties from 7 June 2006 with a gradual increase in weight-lifting, and fit for pre-injury duties from 9 August 2006.
Mr Cakmakkaya had no further problems with his back until February 2008.
2008 injuries
On 19 February 2008, Mr Cakmakkaya suffered lower back pain when unloading boxes during deliveries. Dr Antoun diagnosed “lower back mechanical strain/muscle spasm”. He certified Mr Cakmakkaya fit for suitable duties two hours a day five days a week to 25 February 2008, and for suitable duties full-time from then. A certificate dated 11 March 2008 appears to show that Dr Antoun certified him fit for pre-injury duties from that date.
As he recalls, Mr Cakmakkaya had no back pain between 11 March 2008 and 18 June 2008 when he suffered a further injury.
On 13 June 2008, Mr Cakmakkaya felt pain in his back as he manoeuvred a recliner seat weighing about 80 kilograms through the door of a customer’s house. On 18 June 2018 he saw Dr Ijaz Khan who diagnosed right para-lumbar muscle strain secondary to heavy lifting. Dr Khan certified him fit for suitable duties to 25 June 2008 with weight restrictions and said he expected Mr Cakmakkaya would return to full duties “in approximately 2-3 weeks”.
Throughout August, September and early October 2008 Dr Azhar Khan and Dr Malcolm Webb (at the same practice as Dr Ijaz Khan) certified Mr Cakmakkaya fit for suitable duties with varying weight restrictions.
On 10 October 2008, Dr Webb recorded in a medical certificate that Mr Cakmakkaya felt sudden pain in his right lower back on 8 October 2008 while helping a fellow worker to load a long box weighing 16 kilograms into a truck. On 15 October 2008, Dr Azhar Khan certified him fit for suitable duties with weight restriction. On 29 October 2008, Dr Azhar Khan certified him fit for pre-injury duties.
Mr Cakmakkaya gave evidence that he could not recall any further back problems until April 2009.
2009 injury
On 17 April 2009, Mr Cakmakkaya felt back pain while picking up boxes to load them onto a truck. The respondent accepted liability for his injury. He was certified fit for suitable duties with restrictions until 1 June 2009 when Dr Ijaz Khan certified him fit for pre-injury duties.
Giving evidence, Mr Cakmakkaya recalled no further back symptoms until April 2011.
2011 injury
On 6 April 2011, Mr Cakmakkaya suffered pain on the right side of his lower back while lifting boxes onto a truck. Dr Philip Baigent certified him fit for suitable duties with weight restrictions. The respondent accepted liability for “mechanical lower left lumbar spine sprain”.
On 3 May 2011, Dr Karunaratne certified Mr Cakmakkaya fit for pre-injury duties. Giving evidence, Mr Cakmakkaya agreed that his back symptoms had completely resolved by that date.
Mr Cakmakkaya worked without restriction until November 2013.
2013 injury
Sometime in 2013, Mr Cakmakkaya started doing “bulk driving” which mostly involved “pallet on pallet off” work but two or three times a week it involved manual lifting. Some boxes weighed 50 or 60 kilograms in which case he would get someone to help him lift them. He gave evidence that, during this time, his back “was feeling all right” and he “didn’t have too much trouble with it”.
On about 25 November 2013, Mr Cakmakkaya claimed compensation for lower back strain. He stated on the claim form that the pain started on Wednesday, 13 November 2013 but he carried on working; it was aggravated when he “bent over at home”. He gave evidence, that he bent over to open the oven at home and his back “went into spasm”. He could not identify anything that triggered the pain during the week. He recalled being off work for two or three weeks.
On 18 November 2013, Mr Cakmakkaya saw his family doctor, Dr Liew, whose clinical notes show he diagnosed “Acute muscular strain lower back” and certified Mr Cakmakkaya unfit for two weeks. He recorded “Stained [sic] to R lower back yesterday after bending over to look at oven.”
Dr John Barlow saw Mr Cakmakkaya on 21 November 2013. In a report dated 27 November 2013, he confirmed that Mr Cakmakkaya told him his back was painful for most of the previous week but became worse on Sunday when he bent down to his oven at home. Dr Barlow believed the “work-related contribution [was] still in place and that the injury at home only aggravated this”.
On 29 November 2013, the respondent denied liability to compensate Mr Cakmakkaya on the basis that his injury did not arise out of or in the course of his employment but, rather, occurred at home. This determination was not challenged and it is not necessary to determine whether Mr Cakmakkaya injured his back at work or home or both.
On 12 December 2013, Dr Barlow certified Mr Cakmakkaya fit for pre-injury duties. Giving evidence, Mr Cakmakkaya confirmed he had no further back problems until March 2014.
2014 injury
On 7 March 2014, Mr Cakmakkaya suffered pain in his lower back while pushing a pallet weighing about 60 kilograms with both hands on the back of the truck. He was on full duties prior to this incident and was “okay to work”. He gave evidence that, in contrast to previous occasions, this time the symptoms did not get better and he had pain going down his back and into his legs on the right side.
On 24 March 2013, the respondent accepted liability for “lower back strain”.
On 7 March 2014, Dr Benjamin Lim certified Mr Cakmakkaya fit for selected duties for normal hours. From 12 March 2014, he increased Mr Cakmakkaya’s hours. Over the following months, he gradually increased the hours and duties. On 4 February 2015, Dr Antoun certified Mr Cakmakkaya fit to undertake a trial of his pre-injury duties. On 19 February 2015, Dr Antoun certified him fit for pre-injury duties.
2015 injury
In March 2015, Mr Cakmakkaya had a recurrence of back pain. There is a dispute about whether this injury occurred at work or at home.
In a claim lodged on 19 March 2015, Mr Cakmakkaya stated his injury occurred at 4.40pm on [Friday] 13 March 2015 when he felt a sharp pain in his lower back while picking up a carton. He stated that, on Monday [16 March 2015] he told his supervisor, Abdul Masri, he was not well but he could not come to work to report the injury until Thursday, 19 March 2015 “because of the injury”; he first sought medical attention on 19 March (incorrectly stated as 2013) when he saw Dr Tony Antoun.
Dr Antoun certified Mr Cakmakkaya unfit for work until 10 April 2015. On 13 April 2015, he returned on light duties. Over the following month he saw Dr Doumit Saad, who referred him to Dr Brian Hsu, spinal surgeon. He continued on light duties until 12 May 2015 when the respondent advised him no suitable duties were available and sent him home.
Mr Cakmakkaya gave evidence that he continued to suffer back pain “on and off” but “the problem was always there”; it was “just a bit more chronic” than the previous year. On 28 May 2015, Dr Bernadette Dulawan certified him unfit for work for one week. On 16 June 2015, she noted he “feels well enough to go to work now” and certified him fit for pre-injury duties. On 18 June 2015, she recorded that he could not go to work. On 17 July 2015, Dr Liew certified him unfit for one week. Dr Liew’s notes on 11 August 2015 show “Back pain resolved”. On 11 August 2015, Dr Saad certified Mr Cakmakkaya fit for pre-injury duties.
It was not correct that Mr Cakmakkaya first saw Dr Antoun about the recurrence of his back pain. On Monday, 16 March 2015, he saw Dr Guo whose notes show back pain “since [yesterday] trying to lift something”.
There is also a dispute about when Mr Cakmakkaya reported his injury to Mr Masri. The respondent agrees that he rang in on Monday, Tuesday and Wednesday morning and told Mr Masri he was unwell but says he did not mention back pain until Thursday 19 March 2015. Further, that he did not mention a work injury until 19 March 2015 when he saw Dr Antoun because it occurred at home, as recorded by Dr Guo.
Mr Masri gave written and oral evidence that it was not until Thursday 19 March 2015 that Mr Cakmakkaya said he had injured his back at work the previous Friday and that it was a recurrence of his previous injury, at which point he referred him to the worker’s compensation department as was his practice. Mr Masri’s Fleet Allocation Record for the period appears to support his claim. It shows Mr Cakmakkaya as “sick” for 16, 17 and 18 March 2015 and as “W/C” for Monday 23 March 2015. I am satisfied, had Mr Cakmakkaya mentioned a work injury, that Mr Masri would have recorded something to that effect on at least one of the days before 19 March 2015.
Considering in particular Dr Guo’s record on 16 March 2015, I am not satisfied that this injury occurred at work on 13 March 2015 as Mr Cakmakkaya claims. It is always possible that Dr Guo misunderstood what Mr Cakmakkaya told him but considered in light of Mr Masri’s evidence, I am not persuaded that would explain his note that the injury occurred “yesterday”.
Termination of employment
On 12 August 2015, Mr Cakmakkaya attended a meeting at work to discuss his fitness to return, in particular the respondent’s concern that he might not be fit for all pre-injury duties and requirements of his role. By letter dated 13 August 2015, the respondent advised that he was required to undertake a “full functional assessment.” By letter dated 17 August 2015, the respondent notified Mr Cakmakkaya of the dates of the assessment. According to Mr Cakmakkaya, he did not attend because he was unwell. He gave evidence he did not have the doctor’s telephone number to call him direct, but he conceded he could have looked up the number.
Mr Cakmakkaya claims he telephoned the respondent to say he was unwell and could not attend the assessment. The respondent maintains he did not. Mr Cakmakkaya says his mobile telephone records only went back so far and he was unable to produce any records of his call.
By letter dated 22 September 2015, the respondent invited Mr Cakmakkaya to show cause why his employment should not be terminated for misconduct in failing to follow a reasonable and lawful direction to attend the assessments. A “show cause” meeting was arranged for 24 September 2015. Mr Cakmakkaya claims he did not get a chance to explain himself, and the decision had been taken already to terminate his employment.
By letter dated 6 October 2015, the respondent advised Mr Cakmakkaya that it considered he had wilfully failed to follow a reasonable and lawful direction and, further, that he was wilfully and deliberately dishonest at the “show cause” meeting in claiming he had called the respondent about his inability to attend the assessments. A further “show cause” meeting was arranged for 9 October 2015. After some further correspondence, on 30 October 2015 the respondent terminated Mr Cakmakkaya’s employment for his failure to follow the direction to attend the assessment.
The Tribunal heard evidence from Mr Bentley Guinane, Pick Up and Delivery Manager at the depot where Mr Cakmakkaya worked, about the circumstances surrounding the “show cause” meeting and the termination of Mr Cakmakkaya’s employment. Mr Guinane maintained he gave Mr Cakmakkaya every opportunity to explain himself. I am not persuaded that he did. It was clear from his evidence that he felt Mr Cakmakkaya had had too many injuries. He was not inclined to take any steps to verify whether a call had been received; in his view, that onus fell on Mr Cakmakkaya.
Whether or not Mr Cakmakkaya telephoned the respondent, it was a serious matter to terminate his employment in the circumstances. In the end, however, the circumstances of the termination of his employment goes to what he may have been able to earn in suitable employment had the effects of the injury in question continued. Because I am not satisfied that they did, it is not necessary to consider further the termination of his employment.
Subsequent employment
On 3 March 2016, Mr Cakmakkaya started work as a casual truck driver for another employer, 35 hours per week. He gave evidence there was very little physical handling of boxes; he found the driving “all right” but he would get “subtle back pain” if he sat or stood for long. He worked for that employer for three months until he was no longer required, then, for a couple of weeks for another company, but he found that work too heavy and it made his back worse. At the time of the hearing he was looking for work.
Mr Cakmakkaya says his back is sore each day. The pain is worse when standing or walking; it goes down his right leg and he feels a sensation of pins and needles down to his calf and into his right foot; he gets similar sensations in his left leg, but not as bad. He says putting a wallet in his back pocket causes pain in his right buttock, and wearing a belt aggravates his back pain. He is unable to do a lot of domestic tasks and his intimate relationship with his wife is affected. He cannot run around or play sports with his children like he used to.
The “cease effects” determination
On 11 May 2015, after receiving a report dated 7 May 2015 from Professor Frederick Ehrlich, orthopaedics and rehabilitation specialist, the respondent determined that the effects of the injury on 7 March 2014 had ceased and it had no present liability to compensate Mr Cakmakkaya for incapacity or medical expenses arising from that injury. On 6 July 2015, the respondent affirmed that determination.
Mr Cakmakkaya contends that, in contrast to earlier injuries from which he recovered and could resume pre-injury duties, he was not able to do so after the 7 March 2014 injury and he continues to suffer its effects.
The respondent contends that any symptoms Mr Cakmakkaya experienced as at, and since, 11 May 2015, are not related to the injury on 7 March 2014, but to the “significant pathology” in his lumbar spine which is constitutional in origin. The respondent contends that the effects of the work-caused exacerbation of his constitutional and degenerative conditions which occurred on 7 March 2014 were short-lived and had no lasting effect on his lumbar spine.
Medical evidence
It is common ground that Mr Cakmakkaya has long-standing degenerative changes in his lumbar spine. An MRI on 4 April 2014 showed “multilevel focal spinal canal stenosis contributed to by disc bulging, congenitally short pedicles and prominent posterior epidural fat [and] evidence of ligamentum flavum hypertrophy”.
Dr Pierides
On 22 October 2014, Mr Cakmakkaya saw Dr Lew Pierides, occupational physician, for assessment. Dr Pierides reported that his back strain had “improved significantly” and he should continue with an upgraded return to work. He thought Mr Cakmakkaya would be capable of pre-injury duties “in 5 weeks’ time”. He did not think there was any aggravation of pre-existing condition.
Functional Capacity Assessment
On 11 December 2014, Mr Nicholas Karam, an exercise physiologist, undertook a Functional Capacity Evaluation. He reported that Mr Cakmakkaya had the “functional capacity to complete his pre-injury hours”, he could complete tasks within his pre-injury duties “up to the identified weights” and, to minimise the chance of further or aggravation, he should continue with a prescribed exercise program.
X-ray and MRI
An x-ray of Mr Cakmakkaya’s lumbo-sacral spine on 25 March 2015 showed “degenerative changes … with a scoliosis apex to the left at L3”. A multi-positional MRI on 26 March 2015 found “markedly congenitally narrowed canal +++” and “canal stenoses, being of up to tight severity at the level of L3/4 with diffuse disc osteophyte, further mild canal stenoses with multilevel osteophytes throughout”.
Dr Hsu
On 23 April 2015, Mr Cakmakkaya saw Dr Bryan Hsu, spine surgeon who noted the findings of the MRI. He took a history from Mr Cakmakkaya that he had been experiencing lower back pain for approximately 12 months after a work-related injury; his symptoms had been improving but he had experienced an exacerbation of symptoms approximately six weeks earlier. On 28 September 2015, Dr Hsu reported that he diagnosed discogenic back pain and disc herniation caused by the activity that he did at work. Dr Hsu was alone in making this diagnosis.
Physiotherapy
Around this time, Mr Cakmakkaya was having physiotherapy with Mr Aldrin Ocsing who wrote a report on 23 April 2015. Mr Ocsing reported that his pain had “reduced significantly” over the previous two weeks and was now “intermittent throughout the week”; he had a better range of lumbar flexion and could return to some light duties with the lifting restriction and regular breaks every 30 minutes; he should continue with physiotherapy and hydrotherapy which had relieved his pain “greatly”.
Professor Ehrlich
On 7 May 2015, Mr Cakmakkaya saw Professor Ehrlich for assessment.
Professor Ehrlich reported there were no clinical abnormalities and Mr Cakmakkaya had a good range of lumbar movement. He noted the MRI scans showed some spondolytic and disc degenerative changes. He concluded that Mr Cakmakkaya’s present back problem should not be attributed to injury; he had had back pain for many years and his injuries had been “essentially of a trivial nature representing little more than a strain.”
Professor Ehrlich thought the “considerable pathology” in Mr Cakmakkaya’s spine was constitutional in origin and would have produced symptoms regardless of his employment.
Dr Hsu disagreed with Professor Ehrlich. In a further report dated 28 September 2015, he diagnosed discogenic back pain and disc herniation caused by activity at work. He said that, considering Mr Cakmakkaya’s degenerative and spondolytic disease would have existed for a number of years, and that disc degeneration and spondolytic disease is usually asymptomatic, any pain he was currently experiencing was solely due to his work injury.
Dr Giblin
Dr Matthew Giblin, orthopaedic surgeon, saw Mr Cakmakkaya for assessment on 29 September 2015. He provided a report of the same date, a supplementary report on 23 November 2015, and gave oral evidence.
Dr Giblin reported on 29 September 2015 that Mr Cakmakkaya’s, recurrent episodes of pain were due to an aggravation of his underlying degenerative changes over multiple occasions. He noted that, on each occasion prior to 2014, Mr Cakmakkaya seemed to have recovered and returned to normal duties but, from 2014, the pain was more persistent. He thought Mr Cakmakkaya was fit for work that did not involve repetitive spending or heavy lifting.
Dr Giblin said he was aware of the MRI confirming canal stenosis but he thought Mr Cakmakkaya’s symptoms more consistent with an aggravation of underlying degenerative change rather than canal stenotic symptoms. He agreed with Professor Ehrlich that the “considerable pathology” in Mr Cakmakkaya’s lumbar spine was constitutional in origin but he thought the nature and conditions of his employment had persistently aggravated those constitutional changes, and had ceased on most occasions except after the 2014 injury. He thought Professor Ehrlich’s statement that Mr Cakmakkaya would have suffered symptoms regardless of his employment was “irrational” and said they would not have developed had it not been for the nature and conditions of his employment.
Giving evidence, Dr Giblin said the lifting and bending, and sitting for long periods, and rotation of Mr Cakmakkaya‘s spine hastened the underlying degenerative changes; it takes only a minor injury to “sort of tip something over” and the symptoms become permanent and more of a problem. He agreed that degenerative changes are not necessarily symptomatic and can becomes so with aggravations, however caused. Depending on the extent of the work done, there may be some acceleration or hastening of the degenerative process itself. He thought Mr Cakmakkaya’s relatively young age suggested the changes had been aggravated and the incident in 2014 was the “final straw that broke the camel’s back”.
In cross-examination, Dr Giblin agreed that a pattern of injury followed by no period of total incapacity but fitness for suitable duties with reduced hours and days for a period, steadily increasing on each occasion to fitness for pre-injury duties was consistent with a series of temporary aggravations which resolved on each occasion. He acknowledged that he had understood the history to be one of more or less continuous symptoms since 7 March 2014, and agreed that a return to pre-injury duties from 4 February 2015, without further complaint until 13 March 2015, was consistent with the 7 March 2014 injury or aggravation having resolved, rather than permanent aggravation continuing as at March 2015.
Dr Giblin also agreed that, regardless of how it was sustained, the history of the injury in March 2015 of a period of some four weeks fitness for work, followed by periods of varying fitness, being certified fit for pre-injury duties on 16 June 2015, then having a recurrence until being certified against fit for pre-injury duties on 11 August 2015, was consistent with the history of previous aggravations which resolved on each occasion. However, he thought the history following the March 2014 injury suggested it had created more long term problems than the earlier injuries. In his experience (which he had no studies to support) manual workers show significantly greater deterioration in their spinal condition.
Dr Davis
Dr John Davis, specialist in occupational medicine, saw Mr Cakmakkaya for assessment on 8 February 2016. He provided a written report and gave oral evidence.
Dr Davis reported that Mr Cakmakkaya had multi-level spondylosis and congenital canal stenosis in the lumbar spine, and had suffered an aggravation and exacerbation of the degenerative changes in his back on multiple occasions consistent with the nature and conditions of his employment. He did not think it possible to suggest that Mr Cakmakkaya would have suffered these symptoms in the absence of the type of work he performed for 10 years for the respondent. He thought it probable that the degenerative changes had been aggravated and accelerated by the nature and conditions of his employment.
Giving evidence before the Tribunal, Dr Davis agreed that it was reasonable to assume, from the history following each of the injuries from 2009 to March 2014, that the injury or aggravation had resolved after each, and that the history of being unfit for work after the 13 March 2015 injury indicated a more serious aggravation than previously. Dr Davis acknowledged he was not aware that Mr Cakmakkaya had a full range of movement on 11 August 2015 when he was certified fit for pre-injury duties, and he agreed the history was consistent with a series of discrete episodes of back pain, each related to a specific lifting incident, each of varying, but temporary, duration.
Dr Davis did not think driving itself was a factor in Mr Cakmakkaya’s back condition, and he did not take any history of back pain or symptoms other than in connection with the specific incidents complained of. He agreed that the degenerative change in Mr Cakmakkaya’s lumbar spine was no greater than in many individuals of his age, and that change can be asymptomatic.
However, Dr Davis disagreed with the proposition that there was no basis for saying his degenerative changes were accelerated by the nature and conditions of Mr Cakmakkaya’s work. He thought Mr Cakmakkaya suffered cumulative trauma from bending and lifting and there would be periods in between without much pain. He distinguished the underlying condition, which remains constant or worsens, from the pain which may vary from time to time.
Dr Gray
Dr Rhys Gray, consultant orthopaedic surgeon, saw Mr Cakmakkaya for assessment on 9 December 2015. He provided a written report and gave oral evidence.
Dr Gray reported that he reviewed all the medical reports and took a history that, at the time of consultation, Mr Cakmakkaya was “intermittently” experiencing pain in his low back on the right side which “comes and goes”. He disagreed with Dr Giblin that his symptoms reflected an aggravation of underlying degenerative change and said the specific pattern of low back pain radiating into the right leg with activity related to the “spinal stenotic picture” rather than an acute disc degenerative process, but could be a combination; the history of leg pain settling or resolving on sitting was typical of spinal stenosis. He thought the history taken by Dr Hsu seven months earlier was consistent with a combination of aggravation of degenerative changes in the context of spinal stenosis.
Dr Gray thought Mr Cakmakkaya would experience recurrent symptoms in his lumbar spine irrespective of his employment. He did not think it likely there was any material long-term aggravation of his degenerative condition over and above the natural progression. He thought Mr Cakmakkaya’s main problem was the underlying degenerative and long-standing spinal stenotic picture of a congenital nature with recurrent exacerbations from work and other activities. He thought the effect of the exacerbation on 7 March 2014 had resolved but he would be prone to further episodes of exacerbation, both work and non-work related.
In cross-examination, Dr Gray did not disagree that repeated activity may cause pain in a degenerative spine but said, alternatively, that repeated activity actually improves it. So it is not possible to be definitive. He agreed it is a matter of clinical judgment and opinion but he thought the worsening over time probably reflected natural degeneration rather than an activity level. He agreed there was potentialfor a long-term contribution to his condition from the activities Mr Cakmakkaya did from around 2008.
Had the effects of the injury on 7 March 2014 ceased by 11 May 2015?
There is no suggestion by any of the doctors that Mr Cakmakkaya has exaggerated his symptoms. Dr Gray thought he was “somewhat vague” about the timing of the sequence of problems with his lower back but said he was co-operative and straightforward, and gave his account without any obvious embellishment.
The doctors all agreed that Mr Cakmakkaya suffers from constitutional lumbar spinal canal stenosis, and lumbar spondylosis which is long-standing and degenerative. Their opinions differ as to whether Mr Cakmakkaya’s symptoms are due to aggravation of his lumbar spondylosis, the natural progression of that disease, or the lumbar spinal canal stenosis. However, even those who thought that his underlying condition was affected by the nature and conditions of his employment agreed that the pattern was of temporary aggravations which resolved each time.
Following the injury on 7 March 2014, Mr Cakmakkaya’s capacity for work was limited but he was not at any point certified unfit for work. He was fit for selected duties from the date of the injury until being certified fit for pre-injury duties in February 2015. The weight of the evidence supports the conclusion that, consistent with his recovery on each previous occasion, by 4 February 2015, the effects of his injury had ceased.
The respondent submits, and I accept that, insofar as any injury was more serious, it was not what occurred in March 2014 but, rather, the injury in March 2015 after which Mr Cakmakkaya was certified unfit for work for several periods over the following months.
As for the claim that Mr Cakmakkaya’s injury was due to the nature and conditions of his employment, the evidence is that, on each occasion, his symptoms were due to specific incidents. Dr Giblin thought the nature and conditions of his employment had persistently aggravated the underlying degenerative changes, and that whereas his symptoms had previously resolved, they did not after the March 2014 injury. However, he acknowledged that he obtained only limited details of his employment and only regarding the various specific incidents of injury.
In my view, the weight of the evidence supports the conclusion that that Mr Cakmakkaya suffers from constitutional lumbar spinal canal stenosis, and long-standing degenerative lumbar spondylosis. I am not satisfied that the progression of his underlying conditions was affected by any of the incidents of injury at work. I am satisfied that he suffered a series of temporary aggravations which resolved on each occasion including after the 7 March 2014 injury. I am satisfied that the effects of that injury ceased by 11 May 2015
Conclusion
For these reasons, I affirm the decision under review.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey
................................[sgd]........................................
Associate
Dated: 18 May 2017
Dates of hearing: 26 and 27 July 2016, 23 November 2016 Date final submissions received: 1 December 2016 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: Mr J Matthews, Brydens Law Pty Ltd Counsel for the Respondent: Mr B Kelly Solicitors for the Respondent: Ms S Leembruggen, Sparke Helmore
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