David Gardner and Australian Postal Corporation
[2013] AATA 451
[2013] AATA 451
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3181
Re
David Gardner
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Mr P W Taylor, SC, Senior Member and Dr W Isles, Member
Date 2 July 2013 Place Sydney The decision under review is set aside and in substitution the Tribunal finds that Mr Gardner’s injury claim relates to an injury he suffered at work on 4 November 2011.
...................[sgd].....................................................
Mr P W Taylor, SC, Senior Member
CATCHWORDS
COMPENSATION – whether injury was the result of a work-related incident – delay in notifying employer of injury – no workplace corroboration of incident – inconsistent and mistaken evidence of lay witnesses – decision set aside
REASONS FOR DECISION
Mr P W Taylor, SC, Senior Member and Dr W Isles, Member
2 July 2013
Mr Gardner claims he injured his right elbow at work on 4 November 2011. He says the injury happened when he pulled his parked motorbike sideways, to make room for another worker who had parked his motorbike in the adjoining parking space. Mr Gardner saw his general practitioner after work on the following Monday, 7 November 2011. An ultrasound examination carried out on Thursday 10 November 2011 revealed a partial tear of Mr Gardner’s distal biceps tendon. On the evening of 14 November 2011 Mr Gardner reported the injury to his supervisor. On 17 November 2011 he made his formal claim for compensation.
On 12 December 2011 Australia Post refused the claim. It considered there was insufficient evidence to establish that Mr Gardner had injured his elbow at work. In April 2012 Mr Gardner’s solicitors requested reconsideration of his claim. After making further enquiries, on 28 June 2012, Australia Post re-affirmed its decision to reject the claim. That rejection is the decision under review in the present proceedings.
WHEN AND WHERE DID MR GARDNER TEAR HIS BICEPS TENDON
There is no doubt that Mr Gardner presented to his general practitioner, Dr Miller, on the afternoon of 7 November 2011, and complained about an injury to his right elbow. It was Dr Miller who referred Mr Gardner for the ultrasound examination. On 14 November 2011 Dr Miller completed a Workcover certificate attesting to the partial biceps tendon tear. In that certificate Dr Miller reported that the injury had occurred on 4 November 2011, and stated his opinion that Mr Gardner’s employment was a substantial contributing factor to the injury. At the same time Dr Miller arranged for Mr Gardner to see an orthopaedic surgeon, Dr Smith, on 16 November 2011.
Dr Smith’s subsequent report of 16 November 2011 contained a diagnosis of “probable partial right distal biceps avulsion”. He recommended an MRI scan and review. That MRI scan was conducted on 18 November 2011. It, and Dr Smith’s report of 23 November 2011, confirmed a recent avulsion of 80% of Mr Gardner’s distal biceps. On 9 December 2011 Dr Cass, an orthopaedic surgeon specialising in shoulder and elbow injuries, operated on Mr Gardner to secure the tendon. Dr Cass reviewed Mr Gardner’s progress post operatively, in December 2011, February, May and August 2012, and again in May 2013.
The principal point of contention in the present matter was whether Mr Gardner tore his biceps tendon at work, on the afternoon of 4 November 2011, in the manner in which he asserts. The reasons to doubt Mr Gardner’s claim are that:
(a)Mr Gardner continued to work, without any recorded complaint, until 14 November 2011;
(b)Mr Gardner did not report the incident until Monday 14, November 2011;
(c)he cannot say who the other worker was who parked his motorbike in the adjacent space, and no such person has been identified;
(d)he does not claim to have made any complaint to the other worker;
(e)it appears unlikely that he told Dr Miller, at the first consultation with him on 7 November 2011, that he had injured his arm at work;
(f)it appears more likely that Mr Gardner told Dr Miller, at that first consultation on 7 November 2011, that he had strained, or had been straining, his arm “at [the] weekend”;
(g)Mr Gardner and his wife gave surprisingly inconsistent evidence about the events on the evening of 4 November 2011;
(h)Mr Gardner, his wife and his sister gave surprisingly consistent mistaken evidence about the theatre performance they saw on the evening of 4 November 2011.
OBJECTIVE EVIDENCE OF THE RIGHT BICEPS INJURY
There is no reason to doubt that Mr Gardner reported a right biceps injury to Dr Miller on the afternoon of 7 November 2011, the matter to be determined is whether Mr Gardner sustained his biceps tear injury in the manner that he alleged. The circumstances he describes, his prompt complaints to his wife, and his relatively contemporaneous presentation to Dr Miller, are consistent with a workplace injury. But there is at least the possibility that his elbow injury occurred, or manifested itself, as a result of some other event, and perhaps one that occurred after he left work on the afternoon of 4 November 2011, and during the course of the following weekend. Mr Gardner’s claim that he suffered the injury at work, as a result of moving his motorbike, might be simply unreliable, mistaken or dishonest.
OPINIONS ABOUT THE CAUSAL SUFFICIENCY OF THE CONTENTIOUS INCIDENT
Mr Gardner said he had been out with his “mentor” (a Mr Jones) learning his delivery round and delivering some items. He said that Mr Jones sent him back to the Australia Post depot some time shortly before three o’clock in the afternoon. When he returned to the depot he parked his motorbike, dismounted and pulled the motorbike onto its centre stand. In that position it was laterally stable, with its front wheel, and the two legs of the centre stand, resting on the concrete parking area surface. Whilst Mr Gardner was standing on the left hand side of his motorbike, another worker parked in the adjacent bay on the other side of Mr Gardner’s motorbike. Mr Gardner took hold of the seat of his motorbike and, with it still on its stand, dragged the rear of the motorbike towards himself. He says he did this to make room for his fellow worker to walk between the two parked motorbikes. It was when he carried out this pulling and dragging movement that Mr Gardner says he felt a sharp pain in his elbow.
All the medical opinion evidence accepted that the incident described by Mr Gardner, which involved using his partly flexed right arm to pull on the seat of his parked motorbike, was capable of causing a biceps tendon tear of the kind that was diagnosed in the relatively contemporaneous medical reports. The medical evidence also confirmed that the injury would be immediately painful and would significantly restrict at least some movements of Mr Gardner’s right arm.
NO WORKPLACE CORROBORATION
The evidence suggests that the injury Mr Gardner describes, and his complaint of feeling a sharp pain at the time, would have been immediately and noticeably painful. It is surprising, therefore, that he does not claim to have voiced any spontaneous complaint. It is also surprising that there is no evidence from the other worker. That surprise requires careful assessment of Mr Gardner’s evidence.
Australia Post’s internal email records reveal brief details of the enquiries it made after receiving Mr Gardner’s claim. The response to one of those enquiries suggests that it identified the other worker who parked his motorbike next to Mr Gardner. But that person apparently had no recall of any such incident.
Mr Gardner could not give the name of the other worker. The name of the person Australia Post had identified was not suggested to him in cross examination. The records do not disclose the basis of the information on which Australia Post identified the other worker. In the absence of specific information about the identity of the other worker, or his reported lack of recollection, we do not regard the lack of corroboration as providing any positive direct contradiction of Mr Gardner’s version of events. We do, however, regard that lack of recollection as requiring careful assessment of Mr Gardner’s evidence.
THE 7 NOVEMBER 2011 CONSULTATION WITH DR MILLER
Another surprising aspect of Mr Gardner’s evidence concerns his initial contact with his general practitioner, Dr Miller. Dr Miller had been Mr Gardner’s general practitioner for about six years prior to November 2011. Dr Miller’s experience of Mr Gardner over that period was that he was a very stoic sort of person.
Dr Miller said he remembered his first consultation with Mr Gardner about his elbow injury. This was because the biceps tear injury was unusual. He had only ever seen one other similar injury in over 30 years of medical practice. Dr Miller’s original notes of the consultation were dated 7 November 2011. Dr Miller’s other office billing records established that the consultation took place just before 5:00 pm.
The two most immediately significant aspects of Dr Miller’s 7 November 2011 notes are that (i) they make no reference to Mr Gardner having injured himself at work, and (ii) they do record a history that Mr Gardner felt pain in his right arm whilst “straining at weekend”. Although the notes are obviously just a summary of the history Mr Gardner likely gave Dr Miller at the time, Dr Miller was quite certain that Mr Gardner did not tell him he had suffered his injury at work. Dr Miller was certain about this because, if he had been given that information he would have noted it. He would have noted it because it was potentially relevant to the likelihood that he would have to provide some kind of workplace injury assessment, and because it would be relevant, or potentially relevant, to his billing procedures.
Dr Miller’s notes of his later consultation with Mr Gardner on Friday 11 November 2011 do record a history that Mr Gardner had injured himself at work, whilst moving his parked motorbike. Dr Miller thought it was likely that this was the first occasion when he was told that it was a work related injury. Of course, by this time the ultrasound examination report (dated 10 November 2011) was available, and indicated the likely real extent, and seriousness, of Mr Gardner’s injury. Appreciation of the seriousness of the injury likely made it more important, from Dr Miller’s perspective, to obtain a precise history of the injury. From Mr Gardner’s perspective, his appreciation of the seriousness of the injury overcame his initial reluctance to report the injury as workplace related. He had only been working at Australia Post for a few days. He said that because he was such a new worker, and because he initially thought it would quickly resolve, he was initially reluctant to report the injury.
CONTINUING TO WORK IN THE WEEK AFTER THE ALLEGED INCIDENT
Mr Gardner’s stoicism in not promptly reporting the incident, and in continuing to work during the week of 7 to 11 November 2011, is arguably consistent with Dr Miller’s assessment of Mr Gardner. But Australia Post submitted that it was unlikely Mr Gardner would have continued to work, without reporting the contentious incident, during the whole of the following week after the contentious incident.
There is some force in Australia Post’s submission. But it is diminished by the objective facts that (i) Mr Gardner presented to Dr Miller, complaining of pain in the area of his lower biceps, on the evening of 7 November 2011, (ii) that pain was likely associated with the biceps tear subsequently revealed in the 10 November 2011 ultrasound examination, and (iii) Mr Gardner did continue to work during the week of 7 November 2011. Because of these objectively established facts, we do not regard Mr Gardner’s failure to report the incident until 14 November 2011, or his continuing to work during the week of 7 November 2011, as providing meaningfully probative evidence about the likely cause of Mr Gardner’s injury. Although the lack of prompt report is surprising it is not meaningfully inconsistent with Mr Gardner’s evidence about the circumstances in which his injury occurred.
PARTIAL CORROBORATION, INCONSISTENCIES AND SIMILARITIES IN FLAWED EVIDENCE
Mr Gardner, his wife and his sister were the only people who gave evidence about when the contentious incident occurred. We have summarised Mr Gardner’s account earlier in these reasons. His evidence was that the incident occurred on 4 November 2011. That is consistent with what he had told Dr Miller, and with what Dr Miller recorded in his notes on 11 November 2011.
Mr Gardner, his wife and his sister all gave other evidence that attempted to fix 4 November 2011 as the day when the incident had happened, and to establish that it had occurred at work. Mr Gardner said he recalled the day because later that evening he had gone with his wife and sister to a theatrical performance in the city. He nominated a performance called “Hairspray”. He said he had told his wife that he had injured himself at work.
Mr Gardner’s wife and sister both gave similar evidence - namely that Mr Gardner had complained about injuring himself at work. They too, at least initially, said that all three of them had gone to a “Hairspray” performance on the evening of Friday 4 November 2011. They recalled Mr Gardner being in pain during the evening, and saying that he had hurt his elbow at work.
Mr Gardner, his wife and his sister were not at all reliable in some aspects of their evidence. Although they all gave evidence, at least initially, of having attended a performance of “Hairspray” on the evening of 4 November 2011, Mrs Gardner contradicted that proposition in the course of her cross examination. She conceded that, according to an internet search she conducted using her mobile phone, “Hairspray” had not even been performed on the evening of 4 November 2011. She did, however, produce tickets confirming that the three of them had in fact attended the theatre together on the evening of 4 November 2011.
There were other aspects of Mr Gardner’s evidence, and that of his wife and sister, about the events of the evening of 4 November 2011 that cast doubt on the reliability of their respective recollections. Mr Gardner thought he had met his wife at home and had driven her to the theatre. He had also driven home. The Respondent contended that Mr Gardner was unlikely to have driven to and from the theatre if he had injured his arm in the manner he complained about.
Mrs Gardner’s evidence was that she had gone to the theatre direct from work, and that all three of them had gone home in her car. Mrs Garner could not remember who had driven home, but she did remember that Mr Gardner had caught the train to the theatre. The Respondent contended that Mr Gardner’s contrary account of having driven to the theatre was a further consideration that made their evidence unreliable.
Mr Gardner’s sister was quite firm in her recollection that she recalled the events of that evening as involving attendance at a performance of “Hairspray”. Other evidence established that the three Gardners could not have attended any “Hairspray” performance at any time relevantly close to November 2011.
We fully acknowledge the divergences between, and the mistakes in, the evidence given by Mr Gardner, Mrs Gardner and Mr Gardner’s sister, about the events of the evening when they attended the theatre together, and when Mr Gardner complained about his arm injury. But we do not think that their initially similar, but clearly flawed, recollections about which performance they attended, meaningfully detract from the significance of their common recollection of Mr Gardner’s discomfort and his reference to having suffered an injury at work. Mrs Gardner’s evidence sufficiently establishes the probability that they did in fact attend the theatre together on the evening of 4 November 2011. That fact seems to us rather more significant than the accuracy of their recollection about the performance they actually saw that night. The probabilities also are that, on that evening, they all became aware of Mr Gardner experiencing pain in his elbow, and of his attribution of it to a work related incident. The probabilities are also that the context of their recollections was that the injury was a recent occurrence, and one in which Mr Gardner complained without providing any specific information about diagnosis, prognosis or treatment. That context is consistent with the facts that (i) Mr Gardner did not in fact consult Dr Miller until the evening of 7 November 2011, and (ii) on 7 November 2011 Mr Gardner reported a painful injury to his right biceps.
CONCLUSION ON THE INJURY CAUSE
The Respondent emphasised that Mr Gardner’s evidence had to provide a sufficient basis for the Tribunal to be affirmatively satisfied that he had suffered a workplace injury. The Respondent cautioned against that satisfaction being derived from the absence of any specific evidence identifying a particular cause of Mr Gardner’s undoubted injury, other than his contentious and uncorroborated claim that it resulted from the workplace incident he described. The Respondent, stopping short of an affirmative suggestion that Mr Gardner’s claim and evidence was dishonest, contended that his account was too uncorroborated, and too unreliable, to permit the Tribunal to reach a conclusion that he had suffered his injury as a result of the workplace injury he described.
We agree that the absence of specific evidence of any other cause of Mr Gardner’s injury is not itself probative of the workplace incident he described. We acknowledge also both that Mr Gardner’s claim ultimately depends on the reliability of his recollection, and that his recollection was, in relation to some aspects of the events of 4 November 2011, quite unreliable. However we are satisfied that, on the balance of probabilities, he did injure his arm on 4 November 2011, that he promptly complained about it that evening to his wife and sister, and that he attributed the injury to a workplace incident. That attribution is consistent with his evidence in the present proceedings.
Ultimately, the question to be decided is the reliability of Mr Gardner’s evidence in the context of (i) his undoubted injury, (ii) his contemporaneous complaint (to his wife and sister), (iii) his tardy reporting of the incident to the Respondent, and (iv) the lack of corroboration from the other worker involved in the incident. Mr Gardner’s typical presentation to Dr Miller was one of stoicism. We interpret that assessment as indicating that Mr Gardner was, typically, a person who tended not to exaggerate, and to attempt to tolerate illness or injury, rather than to complain about it. Such an assessment is consistent with Mr Gardner’s evidence in these proceedings in explanation of his failure to report promptly the 4 November 2011 incident. He said he initially did not think the injury was all that serious and hoped it would get better. Also, as a very new employee, and one who was unsure of the extent of an injury that he hoped would resolve without complications, he did not want to appear to be complaining. That explanation is consistent with the impression we gained of Mr Gardner in the course of his evidence in these proceedings. We thought he was an honest witness, who did the best he could to give his best recollection of the circumstances in which his injury occurred. Whilst some aspects of his recollection about the events later in the evening of 4 November 2011 were apparently flawed, we do accept that, on the balance of probabilities he suffered his right biceps injury as a result of the workplace incident he described, and that the incident occurred on 4 November 2011.
THE EXTENT OF THE INJURY
We note that, in the light of the uncontroversial medical evidence about the nature and extent of Mr Gardner’s right biceps injury, the Respondent did not pursue any contention that it had been prejudiced by Mr Gardner’s tardy notification of the injury. That restraint was, in our assessment, appropriate.
However, a question that was agitated in the course of the hearing was whether or not Mr Gardner had also suffered either a shoulder tendon tear, or aggravated a previously asymptomatic degenerative shoulder pathology, as a result of the contentious incident on 4 November 2011. The evidence about this issue was somewhat contentious. And its ultimate practical significance was obscured by (i) the possible confounding effect of adhesive capsulitis that was uncontentiously attributable to Mr Gardner’s period of post-operative immobility, and (ii) differing views about the likely prognosis for Mr Gardner’s contentious shoulder condition. We consider that it is not appropriate for the Tribunal to attempt to resolve those matters in the present proceedings. The decision under review was simply the Respondent’s refusal of the claim on the basis that Mr Gardner had failed to establish that he had suffered a workplace injury. The appropriate course for the Tribunal is to address that decision, and only that decision.
DECISION
The decision under review is set aside and in substitution the Tribunal finds that Mr Gardner’s injury claim relates to an injury he suffered at work on 4 November 2011.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor, SC, Senior Member, and Dr W Isles, Member ...........[sgd].............................................................
Associate
Dated 2 July 2013
Dates of hearing 11 and 12 June 2013 Counsel for the Applicant Ms K Oldfield Solicitors for the Applicant Rickards Whiteley Lawyers Counsel for the Respondent Mr M Snell Solicitors for the Respondent Sparke Helmore
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