Carlos Lopez-Avila and K & S Freighters Pty Ltd

[2015] AATA 197

[2015] AATA 197 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4670
Re	Carlos Lopez-Avila
APPLICANT
And	K & S Freighters Pty Ltd
RESPONDENT

DECISION

Tribunal	John Handley, Senior Member
Date	31 March 2015
Place	Melbourne

The Tribunal affirms the decision under review.

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

John Handley, Senior Member

WORKERS’ COMPENSATION – applicant suffered left-wrist injury in March 2008 – pre-existing asymptomatic osteoarthritis aggravated – short period of incapacity and return to work on full duties in November 2008 – applicant met with manager in August 2012 concerning work performance  which was found to be unsatisfactory – proposal that performance improvement plan be devised – applicant left workplace with belief his employment had been terminated – has not returned to work – incapacity by depression and anxiety subsequently certified by doctors – not work-related – no incapacity from August 2012 by wrist injury – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 sections 5A and 14

REASONS FOR DECISION

John Handley, Senior Member

31 March 2015

1. The applicant lodged two applications with the Tribunal seeking a review of decisions made by the respondent.

2. The first application, 2013/1443, was a review of a decision to deny compensation (T37, pages 129-136) for a psychiatric injury which was alleged to be the consequence of abuse and discrimination in the workplace. The applicant gave evidence about a number of adverse comments made about him by supervisors, largely related to his poor command of the English language (the applicant was born in El Salvador), however the focus during the hearing was on an event (giving rise to the psychiatric disease) that took place in the workplace on 24 August 2012.

3. On that day the applicant, who was employed as a truck mechanic, was called into a meeting with Mr Paul Whiteway, the operations manager of the respondent’s premises at Laverton. The meeting was called because a complaint had been made about the quality of the applicant’s workmanship and the time taken by him to complete some mechanical work. On the day prior to the meeting, a road test of a truck over which the applicant had completed mechanical work found it to have defective steering. An inspection of the truck revealed that a piece of timber, which had been used to support a gearbox whilst it was being replaced had not been removed and it was jammed adjacent to the steering axle.

4. During the meeting with Mr Whiteway, the applicant was given a letter (T35, page 125) which recorded that his work performance had been found to be unsatisfactory, it was expected to improve immediately, but if it did not, disciplinary action, including termination of employment may occur.

5. The applicant’s union representative, who was present with him during the meeting advised him to sign the letter which had been requested by Mr Whiteway.

6. Toward the end of the meeting (at about 3 pm on a Friday afternoon) the applicant became upset. Mr Whiteway, who observed he was upset, suggested that he should go home and speak with his family about the contents of the letter and return to work on Monday to discuss, with him, the terms of a performance improvement plan.

7. The applicant did not return to work on the following Monday or at all. The applicant attended Dr Attalla, a general practitioner at the Coburg Family Medical Centre (the Coburg clinic) on Monday 27 August 2012. During the following week he commenced treatment at the Sunshine City Medical Centre (Sunshine clinic).

8. The applicant lodged a claim for compensation dated 4 September 2012 claiming anxiety, depression and post-traumatic stress disorder (PTSD) as a consequence of the meeting on 24 August 2012.

9. In his evidence, the applicant said he did not return to work after 24 August 2012 because he felt stressed and nervous during the meeting. He was upset about the way he was treated, he had been asked to go home without explanation and he believed he had been sacked because the letter that he signed dismissed him from employment.

10. The applicant contended that the meeting and the conduct of it on 24 August 2012 constituted administrative action which was not reasonable nor was it taken in a reasonable manner (s 5A(1) and (2) of the Safety, Rehabilitation and Compensation Act 1988 (the Act)) and he was not disqualified from an entitlement to compensation.

11. I indicated to Mr Hangay, applicant’s counsel, at the conclusion of the applicant’s cross-examination, whilst indicating that I had not reached a concluded view, that on the basis of the evidence from the applicant and by regard to s 5A(2) of Act that it appeared that the employer’s representative, Mr Whiteway, had exercised administrative action which was reasonable and had been undertaking it in a reasonable manner.

12. I indicated that the applicant had a union representative present with him during the meeting (who recommended he sign the letter), he was not dismissed from employment, when he appeared distressed he was invited to go home (which he did) and he was asked to return to work on the following Monday to discuss terms of a performance review.

13. When the hearing resumed on the second day, Mr Hangay indicated that the applicant withdrew the first application claiming compensation for a psychiatric injury.

14. The review proceeded only in relation to the second application, 2013/4670.

15. The genesis of that application was a left wrist injury which occurred on 19 March 2008. Liability for it was accepted by the respondent. On 19 December 2012, the respondent decided that the applicant was not entitled to be paid compensation pursuant to s 14 of the Act in respect of that injury. On 6 August 2013 the respondent of its own motion set aside the determination made on 19 December 2012 finding it was incorrect, and in substitution decided that the respondent had no present liability to pay compensation to the applicant.

16. The decision of 6 August 2013 is the subject of this review.

17. On 19 March 2008, the applicant was replacing a truck differential. Another employee, who was working with the applicant, intended to tighten some nuts onto bolts using either a pneumatic or an impact drill. Apparently unknown to that person, the device was set in reverse and when it was activated, either the nut or the socket attached to the device became free and was projected at force towards the applicant striking his outer left wrist.

18. The applicant worked the rest of that day. He attended Dr Kanapathapillai, a general practitioner at the Coburg clinic, the following day and was given anti-inflammatory medication. The clinical notes record the applicant presented with pain and swelling of the L/back of the hand no fracture... (Exhibit A5). He returned to work in the presence of wrist pain and loss of strength in his left hand.

19. On 1 April 2008, Dr Ong, a local practitioner to whom the applicant was referred by the respondent, issued a certificate for modified work until 4 April 2008. In the interim, he arranged for a CT scan of the applicant’s left wrist. On 4 April 2008 Dr Ong reported that the CT scan demonstrated a likely lunate fracture (healing) but also old injuries to carpus with gross deformity and O.A. (Exhibit A7). On 4 April 2008, the applicant also returned and saw Dr Hilli at the Coburg clinic who, having obtained a history of the work injury and being aware of the certificates from Dr Ong, referred the applicant to an orthopaedic surgeon, Mr Goldwasser, for an assessment on 30 April 2008.

20. The applicant was off work until 10 June 2008 and returned wearing a wrist splint with a metal sleeve as prescribed by Mr Goldwasser who also certified him as restricted to lighter duties. The applicant continued to work, the restrictions on his duties were gradually reduced, rehabilitation was arranged by the employer and by 24 November 2008 the applicant was working full-time without restrictions.

21. However, the applicant said that he worked in the presence of pain and was taking Panadol Osteo daily. He had ceased using the wrist splint and on occasions when he suffered an exacerbation of pain he bandaged his wrist. On occasions he needed assistance from another employee when required to perform heavy lifting. He also noticed a reduction in the range of movement of his left wrist.

22. On Friday 24 August 2012, he was engaged on a full-time basis, with minimal restrictions. It was on this day he left the workplace, believing his employment had been terminated. He has not returned to work.

23. On Monday, 27 August 2012 the applicant consulted with a doctor at the Coburg clinic. The clinical notes record:

    feels depressed; alleged to be harassed at workplace; find difficult to sleep; headache; fear; could not go to work cz he is afraid; he feels like he cannot go back; been like this for one year; he is under Mr. Andres Perez as a councellor and he is gonna give him psychotherapy; will be reviewed after 3 days for symptoms revision.

24. Between 4 April 2008 and 27 August 2012, the applicant attended doctors at the Coburg clinic on 17 occasions. The clinical notes record that he did not attend on any occasion with respect to his left wrist or hand injury.

25. Between 27 August 2012 and 4 September 2012, there is no record of the applicant attending any medical practitioner. On the latter date, he attended Dr Conejera at the Sunshine clinic. The applicant said he consulted with her because she spoke Spanish which was his first language. Her notes record a history of the applicant being discriminated at work, that he had recently suffered a panic attack and he cannot return to work. She referred the applicant to a psychologist, Dr Ventureira, because he has been subject to bulling and discrimination on his workplace, and he got panic attacks for all the above reasons (sic). She also provided a medical certificate on 4 September 2012 and certified incapacity between 31 August 2012 and 13 November 2012 because of major depression, anxiety and panic.

26. He consulted Dr Conejera again on 10 and 14 September 2012 and gave a history of continuing anxiety and panic, feeling discriminated and depression secondary to harassment and bullying at work. On 18 September Dr Conejera took a history of the applicant presenting with left hand cellulitis and an old fracture of his left wrist. She referred the applicant for x-ray.

27. The applicant said he found it difficult to arrange an appointment with Dr Conejera and from 22 September 2012 his treatment has been with Dr McCarthy at the same clinic, who gave evidence in this review.

28. Dr McCarthy was satisfied that the applicant did not have cellulitis. She obtained a history of the applicant suffering pain and swelling for four years in his left hand which had gradually worsened. X-rays revealed the presence of severe osteoarthritis. She prescribed anti-inflammatory medication. She did not record the applicant complaining of weakness, reduced grip or of movement in his left wrist. In evidence she said she could not recall whether that history was obtained but said that it should not be assumed that history was not given.

29. She learnt during later consultations that the applicant had suffered an injury to his left hand and wrist during his employment as a truck mechanic and he had been in receipt of compensation. When she was provided, later, with reports from some medico-legal specialists, Dr McCarthy learnt that the left wrist injury occurred about four years previously, that but for a short period of time the applicant had worked on a full-time basis until 24 August 2012 which was the last day that he worked.

30. The applicant consulted with Dr McCarthy or seven occasions between 22 September 2012 and 5 November 2012. On the latter occasion, the clinical notes record that Dr McCarthy prepared a medical certificate. She noted that the applicant was worried about his financial situation and apparently discussed with him completing some forms that he intended to submit to an insurer in respect of a policy that he held for income protection. She also noted an apparent increase in his symptoms because she recorded everything requires 2 hands; can only hold a weight of a phone and after a while this hurts; cannot draw in hand fully to grip anything.

31. In a report to the applicant’s solicitors on 2 November 2012, Dr McCarthy recorded that the applicant had arthritis and tenosynovitis of his left hand and wrist and post traumatic arthritis subsequent to an injury at work on 19 March 2008. She recorded that the applicant was unable to perform lifting or repetitive duties with his left hand. In another report, of the same date, again to the applicant’s solicitors, Dr McCarthy completed a similar report but added the applicant was unable to hold more than 100 g currently with his left hand. In a report to the applicant’s solicitors on 8 February 2014 (Exhibit A3) Dr McCarthy reported that the applicant had consulted occupational therapist, Dr Sushil Sharma on five occasions in 2013, funded by Medicare. He had also been referred to St Vincent’s hospital for hand therapy but has been placed on a waiting list. She regarded his prognosis as poor, his wrist had deteriorated over the last four years, he had been inadequately treated and was awaiting a specialist opinion. She reported that the applicant needed psychological support and treatment and while she regarded him as being unable to perform the work of a mechanic, his mental state prevented him looking for alternative employment.

32. In addition to managing the treatment of his left wrist she also treated a complaint of left elbow pain which was relieved by injections. She also treated the applicant for anxiety and depression. At 10 January 2014 she regarded that illness as fluctuating between moderate to severe. It was her opinion that the applicant was incapacitated for employment as a consequence of his anxiety and depression. At the  last consultation with the applicant on 15 December 2014 she obtained a history of him complaining of left hand pain, low mood and palpitations.

    Medico – legal opinions

33. Associate Professor John Hart, an orthopaedic surgeon, assessed the applicant at the request of the respondent on 3 February 2009 and 16 June 2014. In his first report (T33, pages 112 – 118) he reported that the applicant was asymptomatic, a lunate fracture had healed and his left wrist had reverted to its pre-injury state which he found to have been arthritic. In his second report (Exhibit R7), he noted that the applicant did not dispute the history previously recorded but explained that he feared if he had disclosed his symptoms during the previous consultation that his job would be at risk. Nonetheless, Professor Hart reaffirmed his opinion that the applicant did suffer pre-existing arthritis in his left wrist and radiology of the right wrist showed similar findings. At the date of his second assessment Professor Hart recorded that he found it difficult to diagnose the applicant’s injury but concluded that he probably had a constitutional inflammatory arthritis. Although he noted that the arthritic changes in the left wrist were more marked than in his right wrist, he concluded that work subsequent to March 2008 has played a more significant role, in the development of the arthritis, than repetitive work because he is right-handed.

34. Dr Ross Whittaker, a consultant rheumatologist, examined the applicant at the request of the respondent on 10 December 2012. In his report (T50, pages 192 – 204), he noted on examination that the applicant had restricted range of movement in his left wrist.  He reported that x-rays taken shortly after the accident in March 2008 indicated extensive and severe osteoarthritis throughout the left wrist, with an inflammatory component, which suggested to him that those pathologies had been present prior to the accident.

35. In Dr Whittaker’s opinion, the applicant suffered inflammatory arthritis with secondary osteoarthritic changes. Although the cause of those pathologies was unclear, he concluded that neither the accident on 19 March 2008 nor the work subsequently contributed to his findings. He was satisfied the applicant was not capable of working as a truck mechanic and his incapacity was permanent, but not work-related.

36. The applicant was initially treated by Mr Goldwasser who re-examined the applicant and reported on 20 June 2014 (Exhibit A8) at the request of his solicitors. The solicitors also arranged medico-legal examinations with Mr Stephen Doig, also an orthopaedic surgeon, who reported on 13 June 2013 (Exhibit A9) and 22 January 2014 (Exhibit A10) and Dr Kevin Fraser, a rheumatologist who reported on 26 September 2013 (Exhibit A11), 24 January 2014 (Exhibit A12) and 2 April 2014 (Exhibit A13).

37. All of the above doctors were satisfied the applicant had degenerative changes present at 19 March 2008, that he was then asymptomatic, however the accident aggravated the pre-existing disease process. Mr Goldwasser reported that the work undertaken by the applicant, being repetitive in nature could have aggravated or accelerated the degeneration. Mr Doig and Dr Fraser reported the degenerative process was arthritic in nature. Dr Fraser noted widespread arthritic changes affecting both hands and the fingers and his right foot.  As a consequence of the aggravation, the applicant demonstrated symptoms of pain, restriction of movement and loss of strength. All of the doctors were guarded in their opinions about the capacity of the applicant to return to his previous employment and were unanimous that he would be fit only for work which did not expose him to heavy lifting or repetitive use of his left wrist and hand.

    Conclusion and reasons for decision

38. The circumstances which were endured by the applicant, as learnt by this review, were very unfortunate.

39. Prior to 19 March 2008, the applicant had enjoyed a relatively long period of employment with the respondent as a truck mechanic. There had been some prior breaches of safety protocols, for which he had received warnings, but it appears that he enjoyed a good relationship with Mr Whiteway.

40. It is not in dispute and I find as a fact that on 19 March 2008 the applicant suffered injury to his left wrist when he was struck either by a bolt or socket which was propelled at speed and by force. The applicant worked for about two weeks subsequently in pain, he then sought treatment, and for the next few months he progressed through a process initially of total incapacity and eventually a graduated return to work. By 24 November 2008 he was working full-time without restrictions.

41. It was not apparent from the documents lodged before the hearing that although the applicant continued to perform his pre-injury duties, he modified his work when heavy lifting by using his right hand and his left forearm. Nonetheless, it appears that he was not prohibited from undertaking any work but there were occasions when some jobs were undertaken with the assistance of another person.

42. The applicant worked until 24 August 2012. There were occasions when he worked in the presence of pain and there were occasions when his wrist was bandaged but he was not incapacitated. Although he took Panadol Osteo on occasions for relief of pain, he had not seen any doctors for treatment of his wrist between 10 June 2008 (Mr Goldwasser) and 18 September 2012 when he attended the Sunshine clinic.

43. On 24 August 2012 the applicant was called into a meeting as a result of a complaint made against him arising out of work that he had undertaken on the previous day over one of the respondent’s trucks. The applicant was asked to sign a document which recorded that it was a final warning and his future performance would be monitored.

44. Whether because the applicant did not understand the contents of the document or because Mr Whiteway suggested that he go home (when he became distressed) or a combination of both, the applicant believed that his employment had been terminated.

1. His employment was not terminated. Mr Whiteway, who I regarded as a witness of truth, observed the applicant had become upset and suggested that he should go home, talk with his family and return to work on the following Monday where he and the applicant would meet and jointly devise the respondent’s performance expectations of him.

2. The applicant did not return to work on Monday, 27 August 2012 nor subsequently.

3. The medical evidence, documented and from Dr McCarthy, point to the applicant suffering panic, distress, anxiety and depression. There are many references in the medical evidence to the applicant consulting a doctor on 27 August 2012 at the Coburg clinic and 4, 10 and 14 September 2012 at the Sunshine clinic having experienced distress, anxiety, panic and depression and relating his symptoms to a history of having been bullied and discriminated previously in the workplace.

4. The first complaint of left wrist pain subsequent to 27 August 2012 occurred on 18 September 2012, about three weeks after he last worked, when the applicant consulted Dr Conejera. The clinical notes indicate some of the distress suffered by the applicant within that period was related to the absence of income and his consequent inability to meet his mortgage repayments.

5. However I am not satisfied on the medical evidence that the applicant has been incapacitated since 24 August 2012 by reason of the left wrist injury.

6. The medical evidence is almost unanimous that prior to the accident on 19 March 2008 the applicant did have an asymptomatic degenerative arthritic disease affecting both wrists, especially his left wrist.

7. Professor Hart and Dr Whittaker were not satisfied that the restrictions and pain subsequently suffered by the applicant were a consequence of the workplace trauma but rather those symptoms were a manifestation of the disease process becoming symptomatic.

8. Mr Goldwasser, Mr Doig and Dr Fraser were satisfied that the trauma of 19 March 2008 caused an aggravation of the arthritic degeneration. Mr Goldwasser reported that the work itself subsequent to 19 March 2008 also aggravated the disease process.

9. However, at 24 August 2012, the applicant was working on a full-time basis and he had not attended doctors from many years for treatment of his left wrist.

10. I am satisfied that the evidence of the three specialists engaged by the applicant’s solicitors on a medico-legal basis is to be preferred in so far as they were of the opinion that the assault on the applicant’s wrist on 19 March 2008 did cause an aggravation of his pre-existing arthritic disease. But for the reasons expressed above, it did not precipitate incapacity.

11. Any work-related aggravation of the arthritic disease did not incapacitate him before 24 August 2012 after he returned to full-time unrestricted duties in November 2008. Additionally, there was no evidence, that the disease had progressed beyond 24 August 2012 to a point where it could be found on the probabilities that he was incapacitated subsequently as a result of the work-related aggravation of the disease process. But for the events on 24 August 2012, I am satisfied the applicant would have continued working.

12. The evidence of Dr McCarthy suggested a deterioration of the applicant’s left wrist after she first saw him in September 2012. There was no evidence that the deterioration, if at all, was a consequence of an aggravation by the previous employment or the anticipated progress of the disease which preceded the employment.

13. I am satisfied, having also observed the applicant, often in a state of distress whilst giving his evidence, that it was his emotional state variously described as panic, depression and anxiety subsequent to 24 August 2012 that was responsible for his incapacity. That is not an illness for which the employer is liable.

14. It is regrettable that he misunderstood the nature of the meeting with Mr Whiteway and did not seek or was unable to be reassured by other persons that his employment had in fact not being terminated. I am satisfied that his belief that he had been dismissed from the employment and his subsequent economic insecurity (it was learnt that his bank foreclosed by his default of his mortgage repayments) were responsible for his distress and the incapacity subsequent to 24 August 2012.

15. The applicant’s psychiatric disease has incapacitated him since 24 August 2012. It is not a disease to which the employment made a significant contribution (s 5B of the Act). The application to review the respondent’s liability for that disease was withdrawn (2013/1443).

16. The applicant worked between November 2008 and 24 August 2012. His left wrist did not incapacitate him in that period nor is it responsible for subsequent incapacity.

    Decision

17. The decision in application 2013/4670 is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member

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

Associate 

Dated 31 March 2015

Dates of hearing	2 to 4 February 2015
Counsel for the Applicant	Campbell Hangay
Solicitors for the Applicant	Shine Lawyers
Counsel for the Respondent	Michael Snell
Solicitors for the Respondent	Clarke Legal