Ceric and Prosegur Australia Pty Ltd (Compensation)
[2015] AATA 590
•14 August 2015
Ceric and Prosegur Australia Pty Ltd (Compensation) [2015] AATA 590 (14 August 2015)
Division
GENERAL DIVISION
File Number(s)
2013/2063
Re
Amir Ceric
APPLICANT
And
Prosegur Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 14 August 2015 Place Sydney The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Ms N Isenberg, Senior Member
CATCHWORDS
COMPENSATION – neck and lower back injury – whether applicant continues to suffer the effects of the injury – entitlement to incapacity payments and medical expenses – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
REASONS FOR DECISION
Ms N Isenberg, Senior Member
14 August 2015
Amir Ceric (“the applicant”) was employed by Chubb Security Services Limited, (now known as Prosegur Australia Pty Ltd) (“the respondent”) as a security guard. His role mainly involved attending to the safe custody of cash in transit and servicing banks and ATMs.
On 14 June 2012, the applicant submitted a claim for compensation which alleged that he had suffered a "neck and lower back" injury on 24 May 2012. He claimed:
Truck was parked on angle, very wet weather and I slipped and fell down the stairs.
Missed stair and land on my feet with all my weight and twisting back.
On 7 March 2013 the respondent, by its insurer QBE Insurance Group Limited, issued a decision in relation to the applicant’s claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) in relation to the applicant’s neck and lower back injuries sustained on 24 May 2012. The decision was a reconsideration which was issued following a request that the original decision dated 27 September 2012 be reviewed. The reconsideration affirmed the original decision. The applicant seeks review by this Tribunal.
ISSUES
Contrary to the applicant’s submission, the respondent did not seek to put in issue that the applicant suffered a "musculo/ligamentous back strain". The issue in dispute is whether the incident on 24 May 2012 was of such severity that the applicant continues to suffer symptoms emanating from that event and hence is entitled to incapacity payments and medical expenses pursuant to sections 16 and 19 of the SRC Act.
CONSIDERATION
The applicant’s evidence
The applicant provided two statements and gave evidence. Essentially, he claimed he was in a cash delivery truck which had pulled up on the curb such that it was on an angle. He claimed he descended the internal stairs of the truck and slipped from the top step whilst placing his foot onto the next step which was wet, due to inclement weather that day. He remained upright, despite slipping, because he was holding onto the door handle which swung open because of the angle at which the truck was parked. He immediately felt “something jar” and sharp pain in the lower part of his back, and also heard something click in his neck and felt a strong blunt pain. He said he complained to co-workers on the day of the accident.
In both his statements, the applicant asserted that his condition immediately after the incident was so severe that a colleague felt enquired as to whether an ambulance should be called.
The following day he consulted with his general practitioner, Dr Gaing, who prescribed analgesic medication and referred him for an X-ray. He complained to management the day after the accident.
He put in a claim form, referring to neck and low back pain due to the slip injury. He acknowledged a previous low back injury in in 2006 and a motor vehicle accident on the way to work in 2008. In an incident notification form he referred to having twisted his back and neck. In cross-examination he said that he had suffered two injuries on the day of the accident, namely “twisting” his back that morning and while handling the money bags. He said he had not mentioned the earlier incident because he thought it was irrelevant.
In cross-examination he said he was holding his lower back and his pain was so severe the escort person asked if he was OK and asked if he wanted to call an ambulance. He declined an ambulance, as I understand his evidence, because he was carrying a weapon and that this would create security problems if taken to hospital. Instead he accepted a Panadol from the driver.
Neither the escort person nor the driver were called to give evidence.
As to whether he had had back trouble since his recovery from the 2006 incident he said he had had a bit of trouble after bullet-proof vests were brought in.
The applicant claims to have suffered from debilitating symptoms in his neck and back since the date of the accident such that he is no longer capable of performing employment duties which would otherwise be suitable to him.
CCTV evidence
The applicant was played CCTV footage showing him, very soon after the incident, emerging from the security van. The applicant did not appear to show obvious signs of discomfort or distress, and he went about his duties which involved carrying money bags weighing, he said, 10-15 kgs, quite freely. Neither did it show him being assisted by his work colleagues as he had claimed.
It was submitted on behalf of the applicant that the CCTV footage is of little relevance as it merely shows the applicant walking into and out of a store in which an ATM was being serviced, carrying bags of cash.
Medical evidence
Dr Gaing, the applicant’s GP
Dr Gaing’s largely illegible clinical notes were in evidence and she was called to give evidence, largely to decipher them. The notes included complaints of pain to the right neck, right shoulder, right chest (May and August 2011), and low back pain for three days (October 2011). Significantly, in the weeks before the incident there were also the following entries:
·15 March 2012:Sore lower lumbar sore for 2 days with tenderness at L3/4.
·19 April 2012: sore back again, L2/3. Since five years ago if sit and walk too long then the pain coining. Sore neck twisted four weeks ago. Slipped disc. Medical certificate and referral to occupational physician. Since 2006 had back injury.
·11 May 2012: right knee gave way last week, no knee pain now. Back pain sometimes. History of small annular tear (CT 2006). Patient asked if related to MVA.
Dr Gaing’s notes, although largely illegible, suggest for the consultation on 25 May 2012 there were two alleged injuries the previous day. The applicant complained to her of having "twisted [his] back", and that “after that” he had slipped backwards in the truck. In her WorkCover medical certificate she recorded:
How the injury occurred : 24/5/12 – twisted his back when he load the bungle (sic) of coin (sic) to the truck at 7 am.. He also slipped when you (sic) exit (sic) the truck and fell backward because of (sic).
Despite having treated the applicant’s neck and back for some time, in her oral evidence she was quite adamant that, although there were some pre-existing back problems suffered by the applicant, the relevant symptoms (and thus the incapacity) complained of now are different from the symptoms suffered previously and are the result of the accident of 24 May 2012. Although the applicant was referred to an occupational physician for pain management, he did not attend.
Dr Searle, orthopaedic surgeon
Dr Searle prepared two reports, dated 13 December 2012 and 27 August 2013. In his first report the doctor, took a detailed history, which included the applicant’s previous back injury, which, he said, had produced no symptoms for 8-10 months after that injury, until the date of the accident.
The applicant complained of severe low back pain when he jarred his back. On prompting, he added that his neck had also jerked and there was a crack. It remained sore. The applicant had been treated with Endone and OxyContin and sleeping tablets but these only partly eased the pain. He had not had the physiotherapy.
On examination, Dr Searle’s findings included tenderness in the cervico-thoracic junction and at the base of the neck, together with tenderness in the low lumbar spine, aggravated by prolonged sitting or standing. These findings were supported by a number of objective investigations including CT scans and X-rays. The doctor opined that there was an aggravation of some pre-existing cervical and lumbar problems and, as a consequence of the accident, he is permanently unfit for all forms of gainful employment.
In his second report Dr Searle took a history as to medication which the applicant has taken namely Panadol Osteo, Indocid and Diclofenac. It was also noted that the applicant was no longer having physiotherapy and was on a waiting list. The extent of the pain is recorded as being at best 6-6.5 out of 10, however, this is only when the applicant lies down, when he rises the pain increases. The applicant reported his low back pain as “constant” and “severe”.
Dr Sheehan, occupational health, safety and rehabilitation consultant
Dr Sheehan provided a report dated 6 January 2015 and gave evidence. The applicant reportedly told him that during early May 2012, prior to the accident, he had experienced some lower back pain after his right knee gave way.
Dr Sheehan took a history that the applicant had been holding onto a very heavy door which had forcefully swung outwards; he lost his balance and while still holding onto the door’s handle, badly jarred his neck and lower back. Dr Sheehan thought the applicant may have said “stumble”. In the applicant’s evidence he said he could not explain why Dr Sheehan had not recorded a “slip”, because that was the history he gave him. He said though that the door did pull him “a bit”.
The applicant had told him that he no longer had pain radiating down his legs.
He said the radiography was consistent with injury, and not degeneration, which view he formed largely because of the applicant’s age. Having said that though, he only thought the disc protrusion and the annular tear may have been the result of trauma.
His opinion was that the applicant:
… is believed to have sustained a significant musculolrgamentous strain involving the cervical spine but more importantly a severe aggravation of pre-existing and until his accident asymptomatic degenerative changes to his neck.
As to the applicant’s back, he diagnosed a significant musculo-skeletal strain and aggravation of his pre-existing and previously symptomatic degenerative changes at the L4/5 level of his back.
Professor Ehrlich, orthopaedic surgeon
Professor Ehrlich prepared three reports dated 3 August 2012, 17 August 2012 and 18 November 2013 at the request of the respondent. The applicant reportedly told him he had made a good recovery from his 2006 injury and that he had not been troubled by his back since. The applicant explained his omitting to tell Professor Ehrlich about his 2011 and 2012 back and neck problems on the basis that he merely answered the questions he was asked.
On initial examination Professor Ehrlich found the applicant to have:
… some disc degenerative and spondylotic type changes in both cervical and lumbar spines.
The specific event which he describes as occurring in May 2012 most likely caused a degree of musculo/ligamentous strain. There is no evidence that he sustained any major structural disturbance of his spine and there was no major disc protrusion or nerve root involvement.
The severity of his pain is rather greater than one would expect from such an incident and it would have been reasonable to anticipate a fair degree of recovery in the three month period that has passed now.
Professor Ehrlich considered the applicant’s back condition to be consistent with his age, and did not consider anything in the scans to be suggestive of trauma.
In his second report Professor Ehrlich, after viewing the CCTV film, considered it unusual that if the applicant were so disabled that an ambulance was contemplated he should be able to go about his work as he appeared. He regarded that as inconsistent with ongoing incapacity for work.
CONCLUSION
I have taken into account that the applicant has a relative lack of sophistication and also note that English is not his first language. He did not require an interpreter and was able to give a clear account, it seemed to me, of his contentions about the incident and also about his complaints.
His evidence was clear: the incident of 24 May 2012 was of such severity that his appearance soon thereafter was such that it prompted a work colleague to ask if he required an ambulance. Nonetheless the CCTV footage, in my view, clearly showed him going about his duties without any apparent difficulties. In the applicant's submissions, the point was made that it is "trite medico legal jurisprudence to submit that symptoms do not reach their full extent immediately after the traumatic event” and the respondent conceded that this observation is generally correct. As such, the applicant submitted, little weight should be attached to the CCTV evidence. However, here, the applicant unequivocally asserted that his condition after the incident was so bad as to potentially warrant the calling of an ambulance. I accept the respondent’s submission that what is depicted on the CCTV footage readily shows that claim to be demonstrably false.
A further integral aspect of the applicant’s case is that in the period immediately preceding the subject incident, he had not suffered any meaningful neck or lower back symptoms. I accept that he had, however, disclosed in July 2012 that he was involved in an accident in 2006 which resulted in an injury to his back where he was diagnosed with having three torn discs and a pinched nerve, and that he also referred to the 2008 motor vehicle accident involving other injuries. However, in the weeks leading up to the incident he reported to his GP on three occasions with back pain. According to Dr Gaing’s evidence he was sufficiently afflicted by his symptoms that she provided him with a referral to a specialist in pain management.
Further, the medico-legal evidence proceeded on the basis of the history given by the applicant. He told Dr Searle that his 2006 back injury had produced no symptoms for 8-10 months after that injury, until the date of the accident. He told Dr Sheehan that during early May 2012, prior to the accident, he had experienced some low back pain after his right knee gave way. In fact he had had ongoing back pain since March and had attended his GP on 3 occasions in the weeks before the incident on account of back pain. The applicant also told Professor Ehrlich he had made a good recovery from his 2006 injury and that he had not been troubled by his back since. I reject the applicant’s explanation, in light of the history he gave to the other doctors, that his omission to tell Professor Ehrlich about his 2011 and 2012 back and neck problems was because he merely answered the questions he was asked.
I find that the respondent has no present liability to pay compensation under sections 16 and 19 of the SRC Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member .................................[sgd].......................................
Associate
Dated 14 August 2015
Date(s) of hearing 20 March 2015 Date final submissions received 20 April 2015 Counsel for the Applicant Mr L Robison Solicitors for the Applicant John Stonham & Co Lawyers Counsel for the Respondent Mr C Clark Solicitors for the Respondent MORAY & AGNEW LAWYERS
Key Legal Topics
Areas of Law
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Employment Law
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Negligence & Tort
Legal Concepts
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Causation
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Duty of Care
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Negligence
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Remedies
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Statutory Construction
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