Celik and Thales Australia Limited (Compensation)

Celik and Thales Australia Limited (Compensation) [2018] AATA 2444 (28 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2038
Re:Raif Celik
APPLICANT

AndThales Australia Limited
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:28 June 2018
Date of written reasons: 24 July 2018
Place:Sydney

For the reasons given orally on 28 June 2018, after the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Mrs J C Kelly, Senior Member
CATCHWORDS
WORKERS COMPENSATION – section 16 claim – section 19 claim - claim for right trochanteric bursitis – claim for right total hip arthroplasty surgery – osteoarthritis not a result of work injury – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth)
WRITTEN REASONS FOR ORAL DECISION
Mrs J C Kelly, Senior Member
24 July 2018

The issues to be determined are whether an incident at work at about 4pm on Friday, 4 December 2015:
(a)caused Mr Celik's (the Applicant) osteoarthritis of the right hip to become symptomatic;
(b)whether consequently he requires a right hip replacement; and
(c)is it reasonable for him to have a hip replacement now?
The Tribunal accepts the Respondent's submission that Mr Celik's evidence is not reliable. It does not accept the submission made by Mr Grey, counsel for Mr Celik, that his evidence is unreliable in limited respects such as in relation to dates. In addition to evidence relevant to the matter the subject of this decision other aspects of his evidence reinforce the Tribunal in finding that he is an unreliable historian. For example, he denied having treatment for a right shoulder problem in 2016, of which medical records were before the Tribunal, and had no recollection of a car accident in 1986 when he was the driver, but sued his father. In making those findings the Tribunal has taken into account Mr Grey's submissions about that evidence but does not accept them.
The Tribunal considers that the records made around the time of the incident are the best evidence of what happened on 4 December 2015. It does not accept that the contemporaneous evidence is inaccurate or incomplete. The Tribunal is not criticising Mr Celik; the incident occurred more than two and a half years ago and he has been fighting this case since November 2016 when his employer advised him that it appeared that he may not have a present entitlement to workers' compensation benefits for medical expenses and incapacity payments. A primary determination to that effect was made on 16 December 2016. He has attended several doctors on a number of occasions. The Tribunal accepts that he has been very frustrated by the process.
Mr Celik told the Tribunal that he had attended work on 7 December 2015 and had been taken to see a general practitioner (GP). The Tribunal does not accept that is correct.
On 7 December 2015, Mr Celik filled out an incident form with a Health and Safety representative. He told the Tribunal that his writing was the light pen. There was also a dark pen, which had been used by the Health and Safety representative.
The Tribunal finds that Mr Celik provided the following information:
(a)the affected location on his body was the right hand side of his hip;
(b)in response to a question about whether the injured person required medical treatment he answered "No";
(c)in relation to the impact on the hip, he wrote was “while moving heavy equipment a sudden movement hitting my hip side to metal bench corner”;
(d)his treatment was taking Panadol.
Mr Celik signed the document. The Tribunal does not accept that he would have signed it if it was inaccurate.
There is no record of his seeking any medical attention until Monday, 14 December when he attended Mount Druitt Hospital. That is consistent with the incident form entry, that he did not require medical treatment as of 7 December 2014. Mr Celik was adamant that he went to the hospital on Sunday. That is not correct.
The WorkCover certificate issued on 14 December 2015 by the doctor at the hospital recorded his diagnosis as “muscular ligamentous injury right loin (or arm)”. Mr Grey said the word was loin. Counsel for the Respondent said it was arm. The injury was recorded as being related to work by "Lifting and twisting". With respect to Mr Celik's capacity the doctor wrote in relation to lifting carrying capacity, “light duties, no heavy lifting”. In relation to pushing/pulling ability, and bending/twisting/squatting ability, he wrote “light duties”. The treatment indicated was “analgesia”. The comment was made, “see GP within the next two days”. The Tribunal finds that Mr Celik did not see his general practitioner within the next two days. In fact, he did not see a general practitioner until 5 January 2016 when he saw Dr Sivarangan, the facility's doctor. Mr Celik claimed that he attended a medical practitioner in Melbourne while on holidays around Christmas. There is no corroborative evidence that he did so. As the Tribunal has found his evidence unreliable, it does not accept that he did.
Dr Sivarangan recorded the following in the WorkCover certificate she completed on 5 January 2016:
Diagnosis of work related injury disease - soft tissue ligament injury around right hip area on 4 December 2015.
How is the injury disease related to work? – When he was carrying heavy machine, hit R/hip accidentally with edge of table.
Treatment/medication type and duration – analgesia, CT scan.
Lifting/carrying capacity – up to 5kg
Sitting tolerance – can sit continuously for one hour
Standing tolerance – can stand continuously for 10 minutes
Pushing/pulling ability – no
Bending/twisting/squatting ability – no
Driving ability – continuously for one hour.
The next review date was 2 February 2016. The patient health summary from Dr Sivarangan's practice showed that she had prescribed Panadeine Forte on 5 January 2016 and that Mr Celik had said that he had gone to hospital, was still in pain, “more stiffness, pain, still pain, moving to leg, sensation normal”.
Mr Celik completed a workers' compensation claim form on the same day he saw Dr Sivarangan for the first time. Mr Celik wrote that the diagnosed condition was “ligament/muscular injury” and the parts of the body affected were the right hip and left arm, with slight muscular pain indicated in relation to the left arm.
In response to what started the chain of events that led to the injury he wrote:
Didn’t see the corner of the bench when moving equipment.
In relation to what action, exposure or event happened to cause your injury or illness he wrote:
Impact on hip when carrying equipment and hitting hip on metal bench.
The corner of the metal bench injured him. The supervisor recorded that Mr Celik had returned to work on 16 December 2015. The Tribunal finds that Mr Celik did not attend work on 14 and 15 December 2015 after attending Mount Druitt Hospital.
A CT scan of the right hip was done on 6 January 2016. The reporting doctor was suspicious that Mr Celik was suffering trochanteric bursitis after the injury and sent him for an ultrasound, which was done on 11 January 2016. The ultrasound confirmed greater trochanteric bursitis.
On 15 January 2016 a CT guided right hip greater trochanteric bursal injection was performed.
Dr Breit, Orthopaedic surgeon, saw Mr Celik on 2 February 2016. Mr Celik told Dr Breit that on 4 December 2015 he was carrying an awkward piece of equipment weighing about 15 kilograms and caught his right hip on the corner causing him to become unbalanced and stumble taking most of the weight on his left arm. At that time, Mr Celik complained of some anterior left elbow pain, which was relatively minor, and did not seek treatment for it. The Tribunal notes that Mr Celik told Dr Breit that he had seen the company doctor prior to Christmas. That was not correct. Mr Celik told Dr Breit that he had almost complete pain relief for a week following the right trochanteric bursal injection. On that occasion Dr Breit diagnosed right trochanteric bursitis, which was “evident on his ultrasound and is confirmed by the hip injection”, which was caused by the 4 December 2015 incident. Dr Breit considered that it should settle in three months. Dr Breit said that Mr Celik was able to undertake normal hours but in a relatively sedentary capacity.
On 10 February 2016 the Respondent accepted liability for the right trochanteric bursitis but not for the left arm (slight muscular pain).
Mr Celik underwent a further CT guided right trochanteric bursal injection on 26 February 2016. The report noted that Mr Celik described pre-procedure pain as 8/10 and post procedure pain as 5/10.
Mr Celik's usual general practitioner, Dr Peter Stobo, referred him for a further cortisone injection in the right trochanteric bursa, which was performed on 11 April 2016. A further injection into the right trochanteric bursa was performed on 1 July 2016.
Dr Simon Coffey, Orthopaedic surgeon specialising in hip and knee surgery, first saw Mr Celik on 28 July 2016 on referral from Dr Sivarangan. Dr Coffey recorded that:
… [In] December 2015 … [Mr Celik] was lifting a heavy weight when he felt a sudden onset of pain over the lateral aspect of the right leg radiating into the thigh.
At that time, Mr Celik complained of constant pain over the lateral and buttock region of the right hip, and groin pain radiating into the thigh. Dr Coffey suspected that most of his symptoms “are coming from the sudden exacerbation of osteoarthritis of the right hip rather than tendinopathy”. He suggested an MRI and pain imaging of the right hip and thigh before recommending treatment.
On 5 August 2016, Mr Celik underwent an X-ray of the pelvis, right hip and femur and an MRI of the right hip.
On 19 August 2016, Dr Coffey prepared a second report, having reviewed the imaging. He recommended an injection into the Mr Celik's right hip because “his hip remains irritable” in an effort “to relieve the pain and synovitis”.
In a report dated 17 October 2016 Dr Coffey recorded that:
Mr Celik underwent a right hip joint injection in early September. This relieved his symptoms significantly for approximately three weeks however, his symptoms have returned and are just as painful.
Dr Coffey said that he had reviewed the previous imaging, which confirmed osteoarthritis of the right hip. He recommended right total hip arthroplasty “despite his age”. On that date he also provided a quote for the surgery totalling $6,768. He told the Tribunal that the total cost would be in the order of $30,000.
That report led to the Respondent seeking a second opinion from Associate Professor Paul Miniter, Orthopaedic surgeon, who saw Mr Celik on 24 October 2016 and prepared a report on the same day. Associate Professor Miniter recorded the history of the December 2015 incident as:
[Mr Celik] described this equipment as weighting between 15kg and 20kg...
[Mr Celik] was walking around a bench. He had difficulty opening the door as he went through the door, carrying the equipment in question, he bumped the front of his right hip region.
He told me that he fell to the ground as a result of this but only to his knee. He got up and continued with his shift…
That is the first time Mr Celik reported falling to the ground to his knee. Dr Miniter said:
The symptom complex is classically that of hip osteoarthritic disease with perhaps some superadded involvement of the trochanteric region.
He reported that Mr Celik had some relief from the injections into the trochanteric region.
His symptom complex is a mixture of trochanteric pain and stiffness and pain arising from hip joint proper and, as mentioned earlier in this report, he finds it very difficult to distinguish between the benefit afforded by the trochanteric injection and that given by the hip joint injection. Therefore, whilst one would normally unreservedly recommend total hip replacement when his symptoms complex becomes troublesome enough, I would be reluctant at this stage to recommend any surgical treatment. I would especially say this in view of the fact that he takes 1 or 2 tablets of analgesia every second or third day, which in my opinion, is not sufficient to justify joint replacement surgery. Joint replacement surgery is not without risk.
The doctor did not believe that the Respondent was responsible for the ongoing management of the case. The pathology was without doubt longstanding.
The prognosis is guarded. Whilst one would expect him to require total hip replacement and have a very good functional outcome from this, I am not certain that one can be completely confident of this. Joint replacement in the worker’s compensation population is often associated with substandard outcomes.
Associate Professor Miniter did not consider that the respondent was responsible for right hip replacement when it was undertaken.
The Respondent wrote to Mr Celik on 21 November 2016 advising him that Associate Professor Miniter's report indicated that he had no present entitlement to workers' compensation benefits and giving him an opportunity to provide further evidence before a decision was made.
On 1 December 2016 Dr Coffey wrote a report to Dr Sivarangan having seen Mr Celik who came to see him with concerns about his right hip and the situation with his workers' compensation coverage for the management of his condition. Dr Coffey had reviewed the reports of Dr Breit and Dr Miniter. He suggested that Dr Breit’s opinion was incomplete, repeated his diagnosis of osteoarthritis of the right hip, plus symptoms of trochanteric bursitis. He expressed concerns about Dr Miniter's preconceptions about the effectiveness of the trochanteric and hip joint injections. In summary, he said that Mr Celik was asymptomatic prior to the injury sustained in his work. He said:
There has been considerable delay in coming to an adequate diagnosis let alone definitive treatment. It is my opinion it is reasonable to suggest that the acute deterioration in right hip function occurred as a result of the injury and thus his working requirement for further treatment is as a result of the workplace injury.
The primary decision was made on 16 December 2016. The decision was that the Respondent was not presently liable to pay compensation pursuant to section 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) in respect to the injury in the form of right trochanteric bursitis sustained on 4 December 2015 and was not liable to pay the costs of the right total hip arthroplasty surgery as requested by Dr Simon Coffey pursuant to section 16 of the SRC Act.
The primary decision was affirmed on internal review on 28 March 2017 and Mr Celik applied to the Tribunal for review of the decision.
Dr Coffey has provided further reports dated 22 August 2017, 12 September 2017 and 5 June 2018. Dr Breit provided additional reports dated 2 August 2017, 9 October 2017 and 13 April 2018. Dr Miniter provided further reports dated 4 August 2017, 6 October 2017, and 11 April 2018. Dr Bodell, Orthopaedic surgeon, provided reports dated 7 December 2017 and 24 May 2018. Dr McGill, Rheumatologist, provided reports dated 30 October 2017, 29 November 2017 and 27 April 2018. All the doctors gave oral evidence.
The Tribunal finds that the medical evidence is clear that by July 2016 when Dr Coffey saw Mr Celik for the first time, Mr Celik was suffering symptoms of osteoarthritis in the right hip. It is not in dispute that he had been asymptomatic prior to the 4 December 2015 incident.
Mr Grey relied on a version of the incident in which Mr Celik became unbalanced and fell to his left knee, such that something happened to his right leg, by way of twisting or tortion or rotation, which was productive of symptoms in the right hip.
Mr Grey emphasised the temporal connection between the incident in which the right hip was affected, and the onset of symptoms, after a lengthy history of being asymptomatic. He emphasised that a person's recollection of exactly what happens is never precise. He argued that the Tribunal does not have to come to a view as to the precise mechanism of injury but that there was a mechanism capable of happening and probably did happen. He argued that the pain from the osteoarthritis as opposed to the pain from the trochanteric bursitis, began from the time of the incident, with fluctuations.
The Tribunal has to decide whether or not the incident of 4 December 2015 caused Mr Celik's osteoarthritis of the right hip to become symptomatic.
In his report of 5 June 2018 Dr Coffey wrote that, “the osteoarthritis was minimally symptomatic prior to the injury of 2015”, therefore in his opinion the injury described in November 2015 is a “substantial contributor to the onset of [osteoarthritis] symptoms”.
In his report of 22 August 2017, Dr Coffey suggested that:
The degree of focal bone oedema in an area of osteochondral injury to the acetabulum is some evidence of an acute injury.
That was refuted by Drs Miniter, Briet and McGrill. The Tribunal prefers their opinions to that of Dr Coffey.
Dr Breit during oral evidence said he thought that there was a subchondral fracture on the investigation, which could have been caused by the stumble he recorded when he first saw Mr Celik. He was the only practitioner to suggest that was what the investigation showed. The Tribunal does not accept that evidence.
The Tribunal finds that the weight of medical evidence is that there was no change in Mr Celik's pathology as a consequence of the injury on 4 December 2015.
The Respondent accepted that pain brought on by working without pathological change may be an aggravation of a pre-existing condition.
Having reviewed the reports of Drs Miniter, Coffey, Breit and McGill in his report dated 24 May 2018, Dr Bodell said that:
Causation now does appear to be quite a difficult issue. I am still of the view that the force of the impact could have caused some material aggravation to the underlying previously relatively asymptomatic degenerative change and the additional information does not cause me to alter the opinion.
A version of the incident Dr Bodell relied on was where Mr Celik struck his right hip on a bench with an extremely hard impact, fell down to the left hand side, landing on his knee and felt an immediate onset of pain. The Tribunal understands that Dr Bodell is referring to onset of pain in the right hip. Further, Dr Bodell's opinion was the incident “could” have caused some material aggravation not that it probably did.
Similarly, Dr Coffey's explanation at the hearing of how the incident resulted in symptomology of osteoarthritis depended on Mr Celik falling during the incident and somehow twisting or rotating or otherwise impacting on the right hip. Dr Coffey's evidence was otherwise unpersuasive. As set out above, he gave an opinion that the aggravation of the osteoarthritis arose from the incident without giving any reasoning, apart from asserting that the symptomology occurred at the time of the incident. The Tribunal notes that the initial history Mr Celik gave to Dr Coffey set out above, was different from that discussed at the hearing and also different from the contemporaneous reports of the incident.
The Tribunal finds that Mr Celik's history of the incident evolved over time. It does not accept that the contemporaneous records of the event reflect that he fell. Rather, they refer to lifting and striking the right hip on the bench which caused pain, understandably.
The Tribunal does not accept Dr Breit’s report in February of 2016 that Mr Celik stumbled when he struck his hip on the bench, is a report that he fell. It does not accept Mr Grey's submission that Dr Breit failed to ask the question of Mr Celik whether he fell. Dr Breit said that he did. He also checked that history with Mr Celik when he saw him again.

In making that finding the Tribunal has taken into account the highlighted definitions of “stumble” from the Shorter Oxford Dictionary and the Macquarie Dictionary that Mr Grey provided after the hearing:
Lurch forward or have a partial fall as a result of missing one's footing. Catching one's foot on an obstacle etc.
To strike the foot against something in walking, running et cetera, so as to stagger or fall, trip.
Those definitions do not cause the Tribunal to alter its assessment of the evidence.
As set out above, Mr Celik first reported falling to Dr Miniter in October 2016, 11 months after the incident. It was in a context where Mr Celik was wanting to persuade the doctor that his symptoms had arisen from the work incident. He provided three different histories to Dr McGill and said that he could not be sure what happened. He gave a different history to Dr Coffey the first time he saw him. The best evidence of what happened is the contemporaneous documentary evidence.
The Tribunal may not have to come to a view as to the precise mechanism of injury as Mr Grey argued, but he did accept that it would have to find that there was a mechanism of injury capable of happening and which probably did happen, which made Mr Celik's osteoarthritis symptomatic. The Tribunal is not so satisfied.
DECISION
The Tribunal accepts that Mr Celik did suffer from trochanteric bursitis as a result of the incident on 4 December 2015. The clear weight of the medical evidence is that he no longer suffers from that condition. It does not accept that the symptoms he complained of at the time of the incident are the same as the symptoms of osteoarthritis he complained of when he saw Dr Coffey for the first time in July 2016.
The Tribunal does accept that Mr Celik has continued to work fulltime since the incident and never resumed his pre-injury duties.
For the above reasons, the Tribunal does not accept that Mr Celik's asymptomatic osteoarthritis became symptomatic as a result of the incident at work on 4 December 2015. It is therefore unnecessary to consider the other issues that were argued in the case.
For the above reasons the Tribunal affirms the reviewable decision dated 28 March 2017 that affirmed the decision dated 16 December 2016 that :
Thales Australia Limited is not presently liable to pay compensation pursuant to section 16 and 19 of the SRC Act in respect of an injury in the form of “right trochanteric bursitis” sustained on 4 December 2015.
Thales Australia Limited is not liable to pay the costs of the “right total hip arthroplasty” surgery as requested by Dr Simon Coffey pursuant to section 16 of the SRC Act.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate
Dated: 24 July 2018

Date(s) of hearing: 25, 26, 27 and 28 June 2018

Counsel for the Applicant: Mr L Grey

Solicitors for the Applicant: Turner Freeman Laywers

Counsel for the Respondent: Mr B Kelly

Solicitors for the Respondent: Clarke Legal

[2018] AATA 2444

28 June 2018

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Remedies

Statutory Construction

Date(s) of hearing:	25, 26, 27 and 28 June 2018
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Turner Freeman Laywers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Clarke Legal