CARDONA and ASCIANO SERVICES PTY LIMITED

[2011] AATA 552

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 552

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5340

GENERAL ADMINISTRATIVE DIVISION		)
Re		GEORGE CARDONA

Applicant

And ASCIANO SERVICES PTY LIMITED

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date11 August 2011

PlaceSydney

Decision The decision under review is affirmed.  

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

Ms N Bell, Senior Member  

CATCHWORDS – Workers Compensation – ceasing of effects of the injury - lumbar back strain - evidence of radiculopathy or pathological lesion – aggravation of previous injury or underlying condition – termination from employment on medical grounds

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Ms N Bell, Senior Member

1.George Cardona was employed as a terminal operator for Asciano Services Pty Limited. Mr Cardona made claims for injuries to his back in 2003 and 2005. Liability was accepted for the first of these and the second was ultimately the subject of terms of settlement and a decision by this Tribunal in 2006 that the then respondent, Australia Post, is liable.  This was followed in 2007 by a claim by Mr Cardona for permanent impairment of his lumbar spine which was ultimately settled. From 2005, Mr Cardona had been on light duties.

2.In August 2010, Mr Cardona tripped on an electrical cord as he was leaving work. He fell onto his left side. He made a claim for lumbar back strain. Liability was accepted for this injury, but only on the basis that the effects of the injury ceased on 3 September 2010, the same date on which Mr Cardona was medically terminated from his employment. It is this decision that Mr Cardona seeks to have reviewed by the Tribunal. He continues to receive incapacity compensation payments in respect of his 2005 injury.

3.Mr Cardona contends that his pain, an effect of his fall in August 2010, continued after 3 September 2010. Asciano contends that Mr Cardona sustained no more than a strain as a result of the August 2010 fall and that it resolved within four to six weeks of the fall. Asciano relies on the opinion of Dr Maxwell in this respect.

4.The only issue for me to consider is whether the effects of Mr Cardona’s fall in August 2010 were resolved by 3 September 2010.

5.Mr Cardona said that when he fell he felt immediate pain to his lower back. He described the onset of pain in his abdomen and left testicle and numbness down his whole leg to his ankle. He said that after one month the pain eased but the numbness remained until about the second week in November 2010. He had begun to use a walking stick after the fall but discarded it in early November.

6.Mr Cardona said he had no new or different treatment for his back after the fall and did not see his specialist Dr McKechnie. However, he intended to do so but Asciano refused to meet the cost of this and a further scan.

7.

Mr Cardona’s general practitioner, Dr Pillai, reported on 4 April 2011 that

Mr Cardona had suffered pain in his lower back and numbness radiating down his left leg after the fall. On examination Dr Pillai found marked restriction in the range of lower back movements on flexion, extension and lateral bending. Dr Pillai’s certificates throughout the relevant period describe Mr Cardona’s injury as a lumbar back sprain.

8.

Dr Maxwell, orthopaedic and spinal surgeon, had previously examined

Mr Cardona on three occasions in relation to his 2005 injury. On 3 September 2010, Dr Maxwell found no evidence of radiculopathy. When I raised with Dr Maxwell the numbness Mr Cardona reports affecting the whole of his left leg, Dr Maxwell said the pattern of the reported numbness made no sense, being so widespread, and could not be radiculopathy. He also noted there was no dermal sensation abnormality.

9.Dr Maxwell also noted that when Mr Cardona had his 2005 accident he complained of pain in his right leg and appeared to be confused about this at the examination. Mr Cardona later accepted that it had been his right leg in which he felt pain after the 2005 injury.

10.Dr Maxwell concluded that Mr Cardona suffered a back sprain but no significant pathological lesion and no evidence of radiculopathy. He found there was no aggravation of previous injury or underlying condition. He said he expected that the effects of the fall would have ceased after 4 to 6 weeks. He said Mr Cardona was fit for his restricted duties at the date of his examination on 3 September 2010.

11.I am conscious that Mr Cardona was not examined by his treating neurologist after his fall, in spite of a referral made for that purpose by his general practitioner, and that there was no evidence from Dr McKechnie in relation to this injury. I must therefore balance the observations of Mr Cardona’s general practitioner, against the opinion of Dr Maxwell.

12.

On balance, I prefer the opinion of Dr Maxwell, a specialist medical practitioner. I am particularly persuaded that there was no evidence of radiculopathy, given the inexplicable pattern of numbness over the entire left leg. Mr Cardona’s confusion about whether it was his right or left leg that troubled him previously does not assist in the sheeting home of his symptoms in the relevant period to his

August 2010 fall.

13.

While I do not doubt that Mr Cardona experienced symptoms as he described, there is no evidence on which I can reach a conclusion that his injury was anything other than a sprain or that the symptoms due to that sprain continued beyond

2 September 2010.

decision

14.The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: .............[sgd].................................................................
  Associate

Date of Hearing  13 July 2011 
Date of Decision  11 August 2011
Representative for the Applicant     Unrepresented
Counsel for the Respondent           Mr B Kelly
Solicitor for the Respondent            Mr N Hepple, Dibbs Barker