David Zoric and Australian Postal Corporation

[2015] AATA 372

[2015] AATA 372  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3116
Re	David Zoric
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Mr Egon Fice, Senior Member
Date	28 May 2015
Place	Melbourne

The decision under review is affirmed.

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

Mr Egon Fice, Senior Member

Catchwords

WORKERS’ COMPENSATION – Entitlement to compensation – Employment related injury or disability – Causal relation between injury and incapacity – Applicant sustained right elbow injury – Ongoing symptoms not causally related to workplace injury – Decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19

REASONS FOR DECISION

Mr Egon Fice, Senior Member

28 May 2015

1. Mr David Zoric, an employee of Australian Postal Corporation (Australia Post), injured his right arm while at work on 25 May 2012.  The report made by the person who provided first aid to Mr Zoric reported the nature of injury as: right elbow hitting the side of ULD.  Causing bruising.

2. On 1 June 2012 Mr Zoric completed a claim form for rehabilitation and compensation which was lodged with his supervisor on 4 June 2012.  On that form, Mr Zoric described his injury as: right elbow pain/discomfort.

3. On 22 June 2012 Australia Post (Compensation Section) notified Dr Dale Julien that Mr Zoric’s claim for compensation had been accepted.  The accepted condition was described as: right elbow strain.

4. Following a number of medical examinations and an MRI done on 29 January 2013, Australia Post notified Mr Zoric on 6 February 2013 that it considered there was no longer an ongoing work related injury in relation to his right elbow. Accordingly, Australia Post said it had no present liability for medical costs or incapacity benefits under the provisions of s. 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

5. In a letter dated 5 March 2013 Mr Zoric explained to Mr Dean White, Compensation Claims Manager, that Dr Barton, who had provided a report which led to Australia Post finding it had no present liability for medical costs or incapacity, did not have the benefit of the MRI report of 29 January 2013.  He said he needed his current work restrictions and benefits to continue until his right elbow injury completely resolved.  Following that letter, Dr Barton provided to Mr White a further brief report dated 14 March 2013 in which he said he did not believe the radiological findings were those which would be caused by work and nor would they account for Mr Zoric’s symptoms, particularly in view of the functional features identified and detailed.

6. On 18 March 2013 Mr White wrote to Mr Zoric stating there was no indication that he presently suffered from a work related right elbow injury.  Accordingly, Mr White made the following findings:

   ·As at 18 March 2013 there was no present entitlement to compensation benefits under the provisions of Section 16 of the SRC Act in respect of medical costs for Right Elbow Strain.

   ·As at 18 March 2013 there was no present entitlement to compensation benefits under the provisions of Section 19 of the SRC Act in respect of incapacity payments for Right Elbow Strain.

7. On 26 March 2013 Mr Zoric wrote to Ms Mary Costello, Reconsideration Officer, seeking reconsideration of Australia Post’s decision.

8. Ms Costello responded to Mr Zoric’s request by letter dated 28 March 2013 granting him an extension of one month in which to provide further reasons and/or medical evidence in support of his claim.  Following a further request for an extension of time, Ms Costello agreed to a further extension until 18 May 2013.

9. On 6 May 2013 Ms Costello notified Mr Zoric that she was satisfied that the determination finding that he had no present entitlement to compensation under s. 16 and 19 of the SRC Act was correct. She affirmed the determination dated 18 March 2013.

10. Mr Zoric lodged an application with the Tribunal on 1 July 2013 seeking review of Australia Post’s decision made on 6 May 2013.  In addition, Mr Zoric also lodged an application requesting a stay of the operation or implementation of that decision until such time as the matter was determined by the Tribunal.  On 19 July 2013 the Tribunal (Senior Member Friedman) refused Mr Zoric’s stay application.

11. The only issue I am required to determine is whether the effects of Mr Zoric’s injury suffered on 25 May 2012 continued beyond 18 March 2013.

    THE MECHANISM OF INJURY

12. Despite there being a number of descriptions in documents made at or very close to the time when the injury was sustained by Mr Zoric, in his subsequent evidence, Mr Zoric criticised the descriptions reported by others.  He gave a somewhat different account.  I should also mention at this point that Mr Zoric was intent on airing all of the complaints he had about his employment with Australia Post.  In some obscure way, Mr Zoric was attempting to link the way in which he had been previously dealt with in his employment with the way in which this matter was dealt with by representatives of Australia Post.

13. While I made many attempts to restrict Mr Zoric to the relevant issues, I can frankly say I was spectacularly unsuccessful.  That resulted in a hearing which perhaps should have been concluded in a single day going on for four hearing days.  Much of the material produced to the Tribunal and presented on the hearing of this matter was simply not relevant to the issues which I was required to determine.  As will become apparent presently, this matter will be determined by an accurate account of the mechanism of the injury and the medical evidence regarding the injury and its continuing effects, if there are any.

14. Prior to Mr Zoric going into evidence in chief, he said this:

    The whole process from the time I had the accident relied on everybody agreeing that an accident occurred, the day that it occurred.  They wrote all kinds of reports, so now I’m led to believe that none of it – none of it is relevant, and yet they accepted liability for 10 months based on what, irrelevance?

15. That will help the reader understand the problems encountered in the course of obtaining an accurate account of the incident which led to the injury.

16. The Incident Form completed by Mr Zoric on the day of the accident provides the following detailed description of what happened:

    I was removing a powered pallet jack off the charger and activated it.  Due to lack of room and the positioning of my body it made it difficult for me to remove the powered pallet jack off the charger correctly.  End result was I was trapped between the powered Jack + ULD.

17. The Incident Form also requires details of the injury to be entered.  These details were not entered by Mr Zoric but rather by Ms Candy Viney, who gave Mr Zoric first aid following the accident.  She wrote:

    Graze to right arm, pain to right rib area.

18. The initial treatment provided by Ms Viney was the application of an ice pack.

19. Although Mr Zoric gave oral evidence and was cross-examined at the hearing, because of his tendency to ramble rather than to answer questions, it was extraordinarily difficult to arrive at a concise view about how his injury occurred.  In fact, at the outset, Mr Zoric expressed surprise that he was required to give evidence.  Although Mr Zoric was represented by a non-legally qualified friend, Mr R Aldons, this is not the first occasion on which he has had a matter before the Tribunal.  Given that Mr Zoric had a number of complaints about those who had completed forms at or about the time of the accident, quite plainly, I wanted to hear from him how the accident occurred.  Furthermore, in fairness to Australia Post, it should also be given the opportunity to ask Mr Zoric questions about what occurred and what he told various people.  Such a process is the very essence of procedural fairness which is central to hearings before this Tribunal.

20. Obtaining a description of the accident from Mr Zoric was a very extended and convoluted process.  When asked a simple question such as, what happened, Mr Zoric proceeded to go into a long history about what others were doing at the time and what he was asked to do to re-enact the accident.  The following is the essence I have extracted from about two hours of examination and cross-examination. 

21. Many of the questions put to Mr Zoric were about two photographs which I had in evidence.  Mr Zoric provided those photographs although he insisted that they did not accurately depict where he or the equipment was situated when the accident occurred.  The first photograph shows Mr Zoric standing to one side but slightly in front of a powered pallet jack (EL 20) with his right hand resting face down on the left side of the two handlebar grips.  The control mechanism (bar and handles) of the EL 20 is in the upright position and is close to a wall where the unit has been plugged in for charging.  The second photograph shows Mr Zoric standing with his right foot on the left hand fork (tine) leaning over the front of the EL 20 body towards the control handlebars with his right hand below the handlebar grip.  In that picture, on the left-hand side of the EL 20 is a steel mesh cage (ULD) with a number of steel mesh components (probably the sides of other ULDs) stored within it.

22. At the commencement of his oral evidence-in-chief, Mr Zoric complained about those photographs stating that he was asked to do a re-enactment of the accident and someone took pictures of him while he was conducting that re-enactment.  Mr Zoric then said he did not realise somebody was taking pictures.  He said a number of his bosses were critical of him because he was told he should not have been standing on one of the tines and he ought to have known better.  However, Mr Zoric then said that was not what in fact happened.  He said he was not standing on one of the tines when the accident occurred.  That of course begs the question as to why, when asked to do a re-enactment of what led to the accident, Mr Zoric stood on the left hand tine of the EL 20.

23. Because the EL 20 was backed up against the wall, and Mr Zoric could not position himself on the operating side of the machine due to lack of space, he decided to move it by unplugging the power connection by standing on one of the tines and reaching across from in front of the machine to do so.  He then stepped off the tine placing his right hand on the throttle and operated it intending to cause the EL 20 to move forward passing him on his left side.  What happened next is best described by using Mr Zoric’s own words:

    My right hand is on the throttle, so because I’ve used this equipment for years, I thought I knew exactly what’s going to happen when I turned the throttle this way, that the forks should move past me and then I can get behind it, and in a safe manner.  But instead, instead, as soon as I turned the throttle it spun around and I couldn’t control it, so for an instant I can’t tell you exactly, one or two seconds, whatever it took, it spun around.  My elbow smashed into the cage, which was next to the power jack, and the cage – and the bulk of the EL 20, which I was trying to move away from the wall, pushed into me, like lifted me and just carried me and the whole thing, with my arm still holding on, because I just held on for dear life.  I was like, I thought I was a goner, smashed into the ULD next to me, moved the ULD out of the way, so it sort of like spun like clockwise and the forks spun that way, and I ended up being in sort of just an area that was nothing – like I just held on for another few seconds because I was like…

24. In cross-examination by Mr M Snell, counsel for Australia Post, Mr Zoric was asked whether the inside of his elbow was pressed against the ULD.  From the photographs and the description given by Mr Zoric, it is difficult to understand how or whether the inside of Mr Zoric’s elbow struck either the ULD or the EL 20.  Mr Zoric said:

    It was either me, like, my torso, because I was squashed between.  It was like in a sandwich.  Or it was a combination of my torso and then the handle, because at some point it was just doing whatever and I was in between it, and I – you know, it’s hard to describe it instant by instant.

25. Despite that description, Mr Zoric said he never let go of the handle with his right hand which was on the throttle.  He put it this way:

    I am holding on to it and I never let go between the moment it started up and – started moving and the moment it came to a complete stop.  I never let go.

26. If that in fact is an accurate description of what happened, it is difficult for me to understand how the inside of his elbow could have impacted either the ULD or the       EL 20.  I accept it could have struck his torso or lower ribs.  

27. Mr Zoric said that following the incident, he was in pain and discomfort and eventually bruising and swelling appeared some days later.  Mr Zoric described the pain as being inside the elbow joint and on the outside, and on the skin.  He then said that within a number of days, stiffness developed inside his elbow joint to such an extent that he could not move his arm properly.  He could not extend it or bring it towards him even if he tried to move it very slowly.

28. Mr Zoric also described experiencing pain on the right side of his ribs.  He said it felt like he was hit by something solid.  He said he did not know what he struck but he assumed it was the ULD.  He agreed that immediately following the incident an icepack was applied, possibly by a first aid officer.

    MEDICAL EXAMINATIONS

29. In cross-examination, Mr Zoric agreed that he went to see Dr Dale Julien on 28 May 2012.  Dr Julien recorded that Mr Zoric described the accident this way:

    jammed right arm last week against a wall, as moving/operating recharging electric lifter with outstretched right arm, last Friday, hand stuck on “on” button (left-handed)...  No prior related musculoskeletal injuries.

30. However when that description was put to Mr Zoric, he said he did not recall saying that.  In fact he said he was 100% certain that he did not tell Dr Julien that.  He said it was impossible to jam his arm against the wall.  However Mr Zoric agreed he could not recollect what he may have told Dr Julien and simply referred to the expressions used as his [Dr Julien’s] words.

31. Dr Julien’s clinical notes record the following on examination:

    tender to deep palpation at site of injury, C. extensor O.

    No visible graze/bruising & puffiness

    good R.O.M.  [Range of movement]

    normal sensation to pinwheel right = left

    decreased grip strength right = 3 left = 5/5

    Phalen’s Sign – normal

    Tinel’s Sign – normal

    Finkelstein’s Test – normal

32. Dr Julien prescribed Panadeine Forte & Voltaren Tabs & Gel.

33. Mr Zoric consulted Dr Julien on 1 June 2012 when he recorded:

    saw [sic] bruising now resolved; still sore at times handling ULDs…

    hates corrupt labour AusPost unions

34. Dr Julien again saw Mr Zoric on 6 June 2012.  The reason for the visit was said to be his right elbow injury.  Dr Julien recorded that Mr Zoric said he felt bullied by management because the photos of the re-enactment of his accident were not accurate.  The purpose of this visit seemed to be to obtain a further prescription and a referral to Dr Henryk Kranz.  It appears that on 30 September 2012 Australia Post requested a full report from Dr Julien.

35. In his report dated 21 January 2013, Dr Julien recorded the reason for Mr Zoric’s initial visit on 28 May 2012.  According to Dr Julien, on that first visit Mr Zoric reported that his sleep was a bit affected and that he woke up with some arm stiffness.  Dr Julien also said that on the day of attendance, Mr Zoric had no difficulty driving his car.  As for his progress, Dr Julien noted:

    David indicated that he was not interested in having any time off work at first.  A week later at the first review appointment, I decided he had increased weight-handling capacity, & extend [sic] these restrictions for another week.… 

    David had a good long-term prognosis for complete resolution of his symptoms with an unrestricted return to work.

    I did not formally examine his mental state or his motivations behind his current claim.…

    My impression was that his physical condition was actually largely resolved but his work circumstances were not.

    I suspect he had feelings of being bullied at work by the management and this mind set clouded his progress to full recovery.

36. The final observation made by Dr Julien has proved to be entirely accurate.  Most of the four days in hearing this matter was taken up by Mr Zoric complaining about the way he had been dealt with by management at Australia Post.

37. Australia Post also sought and obtained a medical report from Dr David Barton, an Occupational Physician.  His report is dated 23 January 2013.

38. Under the heading History of Injury/Accident Dr Barton described what was told to him by Mr Zoric regarding the accident.  He recorded the following:

    He said that he was getting a powered lifter from a cramped area when he activated it after unplugging it and it suddenly swung back towards him.  The worker describes the circumstance of this such that it appeared that his right elbow was hit or “smashed” against a steel cage that was nearby.…

    He said that he attended first aid and by this stage had generalised and severe pain around the right elbow area.  He said that he was treated with ice and subsequently taken to the facility nominated doctor.  He was treated with pain relieving and anti-inflammatory tablets.

    The worker said that he returned to work the same day and was initially undertaking restricted duties.

39. Dr Barton said Mr Zoric told him he had about 17 physiotherapy treatments, including ultrasound treatment and the use of suction cups.  He had an ultrasound investigation performed and was diagnosed with a variety of problems around the elbow including an apparent tear of the extensor origin.  Mr Zoric also reported that while he was working full-time hours, he was doing restricted duties, not lifting weights of more than six kilograms and avoiding any repetitive tasks involving the right arm.

40. Dr Barton recorded Mr Zoric describing his symptoms as follows:

    He described pain generally around the right elbow that is widespread.  He generally pointed to the posterior aspect of the right elbow with pain around both the medial and lateral side of the joints.  He said that his symptoms are generally worsened with physical activity and movement.  He described some numbness of the ulnar side of the ring finger and the whole of the little finger.

41. On examination, Dr Barton said:

    He appeared strongly symptom focused throughout the consultation and there was some evidence of some underlying anger.

    Careful measurement of arm circumference showed the right and left arms to be of equal muscle bulk when measured both above and below the elbows.  There was no wasting in the small muscles in either hand.  His hands showed some generalised calluses and roughening, consistent with his current level of physical work.  These changes were equally present on both sides.

    Specific examination of the right elbow showed some mild and non-specific tenderness throughout the elbow joint area.  There was a minor limitation of extension and flexion that was limited to 90 degrees.  (These limitations of movement seemed contrived with the worker being hesitant to move beyond the range.)  Pronation and supination were over a full range.  Provocation testing for lateral epicondylitis was negative.  There was no ulnar tenderness or problems as the ulnar nerve passed the medial side of the left elbow.

    Reflexes were normal in the upper limbs.  Muscle power throughout the right arm was reduced in a pattern that was clearly inconsistent with his muscular physique.  Sensation to light touch was reduced around the right little finger and ulnar half of the ring finger.

42. Dr Barton summarised that Mr Zoric described eight months of persisting symptoms following what appeared to be a crush type injury for a blow received to part of the elbow.  He said it was difficult to sort out exactly what the mechanism of injury was.  He expressed concern that during the assessment there was gross weakness on testing muscle power in the right arm which appeared inconsistent with Mr Zoric’s muscle bulk in that arm and any particular musculoskeletal explanation.  He also said that the lack of any clear objective evidence of any particular problem in the right arm was of note.

1. Dr Barton also offered the following opinion:

   In this case I believe the ultrasound finding is of little clinical relevance.  A blow or a crush type injury would not be expected to cause a tear as described on the ultrasound report.  I have no doubt that his MRI scan will not be “normal” although whether the findings have any relevance to his symptoms or the episode that occurred at work is clearly a more contentious point.

2. The ultrasound referred to by Dr Barton was done on 1 August 2012 and reported by Dr Patrick Page.  He said:

   No joint effusion is demonstrated.  The common extensor tendon demonstrates moderately severe change of tendinopathy.  A 7 x 4 x 4 mm partial tear is present within the tendon.  It is not tender.  The common flexor tendon is normal.

   The ulna [sic] nerve is normal.

   Conclusion: Common extensor tendinosis with a moderately large partial thickness tear.  Otherwise unremarkable ultrasound of the right elbow.

3. Mr Zoric also consulted Dr Bruce Fountain on 18 June 2012.  Dr Fountain was Mr Zoric’s General Practitioner.  He also provided a medical report requested by Australia Post.  In that report, dated 15 October 2012, Dr Fountain referred to the ultrasound done on 1 August 2012.  His diagnosis was:

   Right lateral epicondylitis (Tennis Elbow),

   Right medial epicondylitis (Golfers Elbow)

4. Dr Fountain also regarded Mr Zoric’s injury as temporary which he said should resolve by the end of 2012.

5. Mr James Ryan, a physiotherapist, treated Mr Zoric on a number of occasions.  In response to a questionnaire provided by Australia Post which appears to have been completed on 1 November 2012, when asked about Mr Zoric’s prognosis, he said:

   David’s prognosis is poor as indicated by his Orebro score of 149.  I do not believe David has a significant local pathology.  I believe he is experiencing pain magnification leading to a chronic pain state.…

6. When asked about the barriers affecting Mr Zoric from returning to his pre-injury duties, Mr Ryan said:

   David has fear avoidance and high anxiety.  He also has an unhappy work environment involving tension with managers (reportedly).  His work environment is the largest non-physical factor.

7. After Mr Zoric had an MRI done on 29 January 2013, Dr Barton provided a further brief opinion in a letter dated 14 March 2013.  After noting that a long-standing series of problems with Mr Zoric’s right elbow existed and that the blow Mr Zoric received to his elbow did not cause the long-term degenerative changes, Dr Barton said:

   Accordingly and having had the opportunity to review this further information I still hold to the opinions already expressed.  I do not believe the radiological findings are those that would be caused by work and nor would they account for his symptoms, particularly in view of the functional features identified and detailed.

8. Dr Fountain subsequently referred Mr Zoric to another physiotherapist, Mr Paul Kron.  In a brief hand written report dated 25 March 2013, Mr Kron said he believed Mr Zoric suffered an aggravation of an underlying degenerative problem.  He also said that the severity of his injury at the time in May 2012 was sufficient to cause the aggravation.  Despite that, in his report Mr Kron did not give an account of his understanding of the mechanism of injury.

9. Mr Ryan provided a brief further letter dated 27 March 2013, presumably following examination of the MRI.  Mr Ryan noted that the MRI scan which he had reviewed on that day indicated lateral epicondyle fragmenting and loose fragments.  He said:

   In my opinion it is conceivable this was caused by the accident at work.

10. Dr Fountain provided a brief report dated 10 April 2013.  On examination, Dr Fountain recorded that there was tenderness to pressure over the medial and lateral epicondyles.  There was no evidence of muscle wasting in the right upper limb and Mr Zoric could not fully extend and flex his elbow.  He noted pronation and supination were normal.  His diagnosis was initially and, he said, remained, epicondylitis (Golfers & Tennis Elbow).

11. Dr Fountain referred to the MRI and concluded:

    I believe these are long standing degenerative arthritic changes, which would have been present prior to the injury 25/5/2012 and would not be an unusual finding in a worker that has been performing manual work for many years.  However, the injury Mr Zoric sustained on the 25/5/2012 has precipitated his right elbow problems and it would, I think be reasonable to state that if the injury had not occurred Mr Zoric’s right elbow problems would remain undetected.

12. Mr Kron referred Mr Zoric to Dr John Lange, an occupational physician, who provided a brief report dated 16 April 2013.  Dr Lange was provided with a copy of the MRI scan.  He conducted a physical examination and made the following assessment:

    I understand he has arthritis in the joint, but I believe his current symptoms are most likely due to loose tiny intra-articular loose fragments in the elbow joint causing ongoing symptoms seen on MRI.…

    Mr Zoric was keen that I provide my opinion on the legitimacy of his current WorkCover claim.  In my opinion Mr Zoric [sic] ongoing problems in the right elbow that commenced as a result of a work injury.  He claims no pain prior to the injury and his underlying osteoarthritis in the elbow joint was asymptomatic.  As outlined above it is my opinion his current status is a result of loose intra-articular bodies that have become symptomatic or where [sic] caused by his work related trauma.

    He also has evidence of mild symptoms of an ulnar nerve lesion that commenced after his work injury.

13. Dr Eugene Ek, who described himself as a Hand and Upper Limb Surgeon, provided a report dated 1 March 2014 which was taken into evidence.  Dr Ek also gave oral evidence and was cross-examined by telephone in the course of the hearing.

14. According to Dr Ek, Mr Zoric told him that on 25 May 2012 his right elbow was smashed against a steel cage and subsequently pulled.  Dr Ek described his main problem as being generalised pain and stiffness in his elbow.  He said that an examination of the elbow demonstrated a reduced range of motion from 20° to 100° with 90° of pronation and 90° of supination.  There was tenderness and pain at the end ranges of motion.  He also recorded Mr Zoric as having a very irritable ulnar nerve at the level of the elbow with a positive Tinel’s sign. 

15. In answer to a question whether he believed that the accident aggravated an existing arthritis in Mr Zoric’s right elbow, Dr Ek responded:

    It is my impression that, while the degenerative changes in his elbow are likely to be long standing, it is not possible to comment on whether the arthritis has been aggravated by the accident, as not [sic] prior symptoms were present, and no previous imaging was performed.

16. Despite the answer given above [57], in his evidence-in-chief, when Dr Ek was asked whether he thought the blow to Mr Zoric’s elbow in the accident of 25 May 2012 may have caused previously asymptomatic underlying advanced arthritis to be aggravated or exacerbated and become symptomatic following the trauma, Dr Ek answered: Yes.  Yes, I do.  Then, when asked in cross-examination if, rather than a smashing event as he had recorded, the initial report reflected there having been a graze to Mr Zoric’s elbow as opposed to something of the violence of the contact that he assumed, would that make it less likely that these events had the causal significance which he had attributed to them, Dr Ek replied: Yes.

17. Furthermore, when asked whether the ongoing symptoms described by Mr Zoric could reasonably have been caused by or contributed to an aggravation of or a worsening of the injury he described in the accident on 25 May 2012, Dr Ek responded:

    It is my impression that the ongoing symptoms that Mr. Zoric has been experiencing since the 25/05/2012 could have been caused from the accident that he sustained on the 25/05/2012.  It is also possible that his injury at work has exacerbated his pre-existing arthritis and has led to his current ongoing symptoms.

18. Dr David Barton appeared in person and gave evidence and was cross-examined at the hearing.  In examination-in-chief, Dr Barton was asked whether he obtained a history from Mr Zoric of having a force applied in a longitudinal way, such as to extend the arm with force so as to potentially cause some shearing at the elbow joint.  Dr Barton said his understanding of what he was told by Mr Zoric was that it was a blow to the elbow where the battery-operated power lifter swung back and pushed the arm backwards where it went on to hit the cage (ULD).  As I understood that evidence, Dr Barton was saying there was no longitudinal pulling of the arm causing a shearing force at the elbow joint.  In fact, the force was in the opposite direction or from the side in the nature of a blow.

19. As to the pain Mr Zoric said he experienced, Dr Barton said that the tenderness was generally around the elbow and not localised to any one of three structures, those structures being the outer side of the joint or the lateral aspect; the medial aspect on the inside of the elbow joint; and problems around the olecranon which he described as the pointy bit at the back of the elbow.

20. Dr Barton explained that palpating the ulnar nerve may elicit tenderness or recreate symptoms including numbness or tingling in the distribution of the hand.  He said there was no tenderness in Mr Zoric’s ulnar nerve and he didn’t find any problems as the nerve passed by the elbow.  Dr Barton tested both arms for muscle bulk and found that there was no wasting.  On testing for muscle weakness he noted that all muscle groups were weak and he described that condition as something that doesn’t occur anatomically or physically.  Dr Barton explained that there should be no weakness in the muscles supplied by nerves other than the ulnar nerve, only the ones affected by the specific nerve of concern, the ulnar nerve, should display weakness.  The conclusion he drew from that was:

    Well, with equal muscle bulk, no clear evidence of any thickened pathology.  I felt that if there was a soft tissue injury as a result of the blow then it should really have recovered in the timeframe between when the injury occurred and when I saw Mr Zoric.

21. Dr Barton was also asked in his evidence-in-chief why in his written statement he said he believed the ultrasound findings were of little clinical relevance.  Dr Barton said that a direct blow to the elbow in the form it occurred as described by Mr Zoric would not necessarily cause a tear.  He said that the fact that an ultrasound showed a tear did not imply that the tear was caused by the blow and he would not expect a tear to follow a blow.

22. Dr Barton was referred to the evidence given by Dr Ek regarding the mechanism by which a lateral blow may cause pressure to be transferred towards the medial side and implicate the ulnar nerve.  He said:

    I still don’t see how the force would be transferred all the way across to the other side of the joint, and even if the force was transferred, how that would necessarily cause an ulnar nerve problem.  In an extreme case, if you bent the elbow around such that you dislocated it, to the extent that you hit here and this arm kept going, and so as a result this area opened up, you may put the nerve under some stretching.  But that would be a significant leverage of the arm to cause some stretching on there.  The elbow is a very powerful joint, and it rarely dislocates and when it does it’s usually pretty obvious and pretty significant.

23. Dr Barton also said there was no incident like that which Mr Zoric described that might dislocate an elbow.  He indicated that dislocation of the elbow is not something which is managed by a person administering first aid with some ice.

24. When asked whether the accident described by Mr Zoric may have aggravated an existing arthritic condition so as to generate enduring symptoms, Dr Barton responded that it was not really what you would expect to happen.  He said the forces on the joint from the blow would not be that significant and not something that would necessarily cause the long-standing changes to progress more rapidly or become more apparent.  He did not accept that proposition.

25. Mr Snell also directed Dr Barton’s attention to the loose bone fragments identified on the MRI.  When asked if such a finding might be consistent with the traumatic event described by Mr Zoric he responded:

    I wouldn’t see it.  I mean again, loose bodies like that, that develop in the joints, occur over many, many years.  They don’t occur suddenly.  It’s not like an acute bruise or an acute tear.  These are things that develop over many, many years, so their presence in investigations done eight months after the event, it would not have been caused by that.  They take way too long to develop.  As to their relevance to symptoms [it] is again very questionable.  I mean many people have loose bodies in their joints and don’t even know about it.

26. Cross-examination of Dr Barton by Mr Aldons was, in the main, unproductive.  For example, it was put to Mr Barton that he should take into account the weight of the ULD against which Mr Zoric’s elbow was smashed.  Plainly, the descriptors used by the various persons who first attended Mr Zoric following the accident were simply their descriptions of what they saw at the time.  Except for perhaps the person who provided Mr Zoric with first aid, they were not medically trained.  These were issues which were irrelevant from Dr Barton’s viewpoint.  There was some discussion about whether the correct descriptor was a graze or a bruise.  Again, there was no means by which Dr Barton could determine which was a more accurate description and, as he properly indicated, the blow as described by Mr Zoric could have produced either or both.

27. Mr Aldons put to Dr Barton whether the impact described by Mr Zoric could have caused the damage to the tendon displayed on the ultrasound.  Dr Barton said he did not think so because the ultrasound showed a tear which he said was usually a chronic long-term thing where the fine structures of the tendon separated over time and become torn, whereas a direct blow leads to a contusion/bruising rather than a tear.

28. In his written report, Dr Barton said he believed Mr Zoric may have had a soft tissue injury in the elbow area which was complicated by a strong illness belief and features of illness behaviour.  When asked in cross-examination what he meant by illness behaviour, Dr Barton said:

    I go back to my clinical findings of global sensory loss – global muscle weakness, the lack of any objective evidence of the use of the limb, the equal changes in use of the hands with the sort of signing and irrupting [sic] in the hands to indicate that these were findings that were inconsistent with the alleged underlying problem that supposedly prevented activity.

29. Subsequent to Dr Ek providing his report which was dated 1 March 2014, Dr Barton was asked for his response to that report.  Dr Barton provided that response under a letter dated 3 April 2014.  He stated that when he saw Mr Zoric he was not convinced that his clinical presentation was consistent with any particular physical problem.  As he had predicted in his earlier report, the MRI scan did show a range of problems however he was of the view that none of those were specifically caused by the work accident.  Dr Barton went on to say:

    Even his treating orthopaedic surgeon seems to acknowledge that by suggesting that the degenerative changes “are likely to be long-standing”.  He then goes on to say “it is not possible to comment on whether the arthritis has been aggravated by the accident”.

30. What Dr Barton said about Dr Ek’s report is accurate.   Dr Barton also said that it appeared Dr Ek was suggesting that Mr Zoric’s accident aggravated pre-existing problems and brought them to light.  Dr Barton pointed out that Dr Ek’s findings on examination regarding reduced range of motion were not dissimilar to his.  He again repeated he did not find any particular tenderness and certainly no evidence of irritability of the ulnar nerve.  For those reasons, Dr Barton did not accept that Mr Zoric’s condition had deteriorated since the accident.  He also added that normally, following an acute injury, some recovery would be expected rather than an apparent worsening of the problem. 

31. Dr Barton also said that the MRI scan findings were not consistent with Mr Zoric’s clinical presentation.  He said that if the investigations were done a week before the accident, when Mr Zoric had no elbow symptoms at all, it would have shown exactly the same findings which were seen after the accident.  Therefore, Dr Barton concluded that to have no symptoms with the radiological findings one week and then have a multitude of symptoms after the injury made no medical sense, based on the radiological findings.  Dr Barton was of the firm view that the work accident did not exacerbate Mr Zoric’s pre-existing osteoarthritic condition.

32. In addition to providing a report to which I have referred above, Dr Lange gave oral evidence by telephone at the hearing of this matter.  In examination-in-chief, Dr Lange confirmed the opinion he set out in his written report.  He was of the opinion that the trauma experienced by Mr Zoric to his right elbow caused his current condition either by exacerbating an underlying problem or accelerating an underlying problem.

33. In cross-examination, Dr Lange agreed that the bone fragments in Mr Zoric’s elbow were not themselves an indication of the existence of symptomatic pathology.  However he did not agree that they were findings one would encounter in the majority of asymptomatic individuals of Mr Zoric’s age.  He based that on the limited range of movement which Mr Zoric exhibited on examination.  When it was put to Dr Lange that an incomplete or non-compliant effort by a patient would result in the same finding as he made, Dr Lange responded rhetorically, why bother.  He said that if the patient had a full range of movement why would he go to the trouble of seeing a physiotherapist and other medical practitioners?  With respect to Dr Lange, he plainly did not have an account from Mr Zoric of his long-standing and bitter dispute with the management of Australia Post.

34. Dr Lange said that he did not think that he measured Mr Zoric’s muscle bulk in either arm.  When it was put to him that Dr Barton observed equal muscle bulk in both arms and asked whether that was consistent with the contention that there is a limitation on the right elbow joint limiting functionality and use, Dr Lange said:

    Well, what it indicates to me is that he doesn’t have a long-term problem, because if he has got equal muscle power in both or equal muscle ability then he hasn’t had a previous problem that’s long-term, chronic.  It would also indicate that he would still be using both arms, which I think he is, isn’t he?

35. When it was put to Dr Lange by Mr Snell that it might indicate that such effects as may have occurred in May 2012 might, by the time he had seen Mr Zoric, have abated, he responded:

    Well that’s what you’re saying. …  That’s right.  It’s a proposition.  In my opinion, when I saw him he was complaining of symptoms, he didn’t have a full range of movement.

36. Dr Lange further responded that it was sufficient for him.

37. Mr Snell then directed Dr Lange to a report from Dr Julien dated 22 January 2015 where Dr Julien responded to questions regarding Mr Zoric’s symptoms of tingling and numbness below his elbow suggesting involvement of his ulnar nerve.  Dr Julien noted:

    No suggestion in his History or Examination in November 2002 [sic – 2012];

    Nil in History or examination in May 2012;

    Nil in History or examination in June 2012.

38. Dr Lange agreed with Mr Snell that given there was no history of ulnar nerve symptoms in May or June 2012, that would be inconsistent with the conclusions he had drawn in relation to the significance of the injury in May 2012.

    ANALYSIS

39. It appears to me that the most critical aspect of Mr Zoric’s claim is a clear understanding of how his injury occurred.  That is because, putting aside for the moment any relevant radiological evidence, the medical practitioners who have examined Mr Zoric and written reports have done so based on the description or descriptions provided at various times by Mr Zoric of how the accident occurred.  This is also the aspect about which Mr Zoric was most concerned, particularly as the reports made of the accident and subsequent photos taken of the re-enactment of the accident were, according to him, prepared by management at Australia Post.  That seems to be why Mr Zoric appeared paranoid and intensely preoccupied with his relationship with persons in managerial positions at Australia Post.  It was this aspect of Mr Zoric’s claim which occupied much of the hearing time and Mr Zoric’s frequent interjections and rambling statements made in the course of the hearing.  Respectfully, and I mean no criticism of Mr Zoric, I simply point this out because his distraction with the way he perceived himself to be treated in the workplace significantly influenced what he had to say about the accident.

1. While of course I cannot discount the way in which Mr Zoric’s evidence was coloured by his relationship with his managers in the workplace, my role is to carefully and objectively analyse the evidence and arrive at findings of fact.

2. Although Mr Zoric was highly critical of the re-enactment photographs and particularly that one of those photographs depicts him standing on one of the tines when he was adamant that he was not standing on a tine when the accident occurred, I have found those photographs very helpful in understanding how the accident occurred.  What I have found particularly helpful is the height of the body of the EL 20 measured against the height of Mr Zoric’s body.  It is substantially lower than the point of the throttle mechanism on the handle bar of the device where Mr Zoric’s right hand rested after having powered up the EL 20.  The body of the EL 20 is below Mr Zoric’s waist level and his outstretched right arm when on the throttle is almost horizontal.  The ULD, against which Mr Zoric’s elbow came into contact, is in fact some distance below the level of his outstretched right arm.

3. Accepting for the moment that the positioning of the EL 20 against the ULD may not be precisely accurate and, given that the handle bar mechanism was probably not square on to the body of the EL 20 but rather at an angle because of the way Mr Zoric said it moved when he opened the throttle, I can readily accept that when the device moved forward and at the same time rotated away from the ULD, the handle bar mechanism would have moved towards the ULD causing his arm to strike it.  However, and significantly, given the difference in height between the body of the EL 20 and the handle bar where Mr Zoric’s hand rested, there is no way that Mr Zoric’s right arm could have become trapped between the body of the EL 20 and the ULD.  That is so even though the EL 20 moved towards him and no doubt his elbow would have flexed as that occurred.  In fact, it is more likely than not that the EL 20 body struck his legs as it rotated and moved towards him.  That proposition is borne out by his description of the EL 20 pushing into him and lifting him while his arm was still holding on to the handle bar.  As the EL 20 moved forward while rotating, and Mr Zoric’s right elbow flexed, it would also have been driven towards his body and the ULD.  Therefore, logically, the outside of his elbow more likely than not struck the ULD while the inner and lower part of his elbow most likely struck his body.

4. If the accident occurred in the way I have described above, then one would expect Mr Zoric to have either a bruise or graze or possibly both on the outside or lateral side of his right elbow and possibly a bruise on his rib cage where the inner part of the elbow struck his body.  It could not have struck the body of the EL 20 because that was below his waist level.  Not surprisingly, the injuries described on the Incident Form refer to a graze to right arm, pain to right rib area.  Those injuries are consistent with what appears to be to be the mechanics of the injury.  In addition, the report prepared by the person who rendered first aid to Mr Zoric immediately following the accident recorded right elbow hitting the side of ULD causing bruising.  As to the first aid supplies used, the person recorded ice pack.  Again, that is consistent with the description given by that person of Mr Zoric’s right elbow hitting the ULD and him sustaining bruising, as well as with the mechanics of the injury in the way in which I have described above.

5. I have also observed that in the early medical reports, being those prior to April 2013, Mr Zoric has made no mention of his arm being pulled outwards from his shoulder.  In fact the first reference of this happening is found in a letter to the Reconsideration Officer of Australia Post dated 24 April 2013.  This was after Mr Zoric became aware of the findings on the ultrasound regarding a partial tear of the common extensor tendon.  In that letter, following a reference to Dr Barton’s report where he stated that a blow or crush type injury would not be expected to cause a tear as described in the ultrasound, Mr Zoric said:

   He has completely ignored, in error, the very considerable force and effort I expended in my right forearm and elbow in my attempts to restrain and steer away the power lifter from impacting my body and crushing me against the metal cage.  This was when the tear in the tendon must have occurred before my strength gave way and my elbow impacted against the metal cage and was dragged along it.

6. With respect to Mr Zoric, that statement is not only inconsistent with other statements he made about the accident, but it is also illogical.  In cross-examination, Mr Snell suggested to Mr Zoric that he was being pushed along the cage.  He responded:

   I was – at some point I was being pulled.  Like, my feet were being pulled under me because of the forks.…  And I was holding on.  I was holding on for dear life, because once it spun, but the time it stopped it was – like, it didn’t take long, but you know, whether it was the pulling forces or the pushing, I mean, I was being pushed – the feet, but I was being – my elbow was dragging along the – you know, along the ULD, and I was also holding on because I was panicking.

7. Mr Snell explained to Mr Zoric that the movement he was describing was the handle coming round towards him in a clockwise direction.  Mr Zoric agreed with that and said that it eventually spun and then stopped.  That statement is plainly inconsistent with Mr Zoric stating that he was being pulled by the handle or at least that his arm was being pulled.  It is also illogical because for his elbow to have struck the ULD, the clockwise rotation of the EL 20 must have brought the handle bar towards him and the ULD causing his arm to strike it.  He agreed that his arm scraped along and pressed against the ULD.

8. In his report of 1 March 2014 Dr Ek said Mr Zoric told him his right elbow was smashed against a still cage and subsequently pulled.  This formed part of the basis upon which Dr Ek believed that the circumstances Mr Zoric described as causing his injuries were consistent with those injuries.  He said:

   As stated above, Mr Zoric has told me that, while at work, his arm was pressed forcibly against a steel cage and subsequently pulled in an axial direction.  As such, it is possible that these circumstances could cause the ongoing symptoms that he is currently experiencing.

9. In cross-examination Mr Snell put to Dr Ek that if the blow was to the outside or lateral aspect of his elbow, it may not involve the ulnar nerve.  Dr Ek responded:

   No, that’s the inside of the elbow but as a result – if you have a blow on the outside, the elbow twists and stretches out the inside of your elbow.…

   Usually force, if direct from the lateral side, transfers to the medial side, and as a result you get a – you know, in an elbow you get a twisting type injury.  So commonly you get both – the whole elbow gets involved.

10. Mr Snell then followed up asking whether Mr Zoric gave a history of a twisting type of injury and Dr Ek said:

    I got a history of the elbow being pulled and being smashed.  That’s all I can comment on.

11. Dr Ek agreed that he did not get a history of twisting.  Given that, and given that the pulling of Mr Zoric’s arm in an axial direction appears to have been something added by Mr Zoric after he received the results of the ultrasound, it casts considerable doubt on Dr Ek’s opinion regarding damage to the ulnar nerve having been caused by the accident.  This is despite the fact that Dr Ek said Mr Zoric had a very irritable ulnar nerve at the level of the elbow with a positive Tinel’s sign. 

12. Furthermore, Dr Julien’s report of 21 January 2013 followed his examination of Mr Zoric three days after the injury occurred.  He described Phalen’s and Tinel’s signs as being normal.  In a follow-up report dated 22 January 2015, Dr Julien confirmed there was no history or examination suggesting involvement of Mr Zoric’s ulnar nerve in May, June, or November 2012. 

13. In his report of 23 January 2013, Dr Barton said there was no ulnar tenderness or problems as the ulnar nerve passed the medial side of the left elbow.  However in his report dated 16 April 2013 Dr Lange said there was altered sensation over the fourth and fifth digits and that there was evidence of mild symptoms of an ulnar nerve lesion which commenced after Mr Zoric’s work injury.  In the course of cross-examination, when it was put to Dr Lange that there was no history of ulnar nerve injury or examination findings of ulnar nerve symptoms in May or June 2012 and that such a pattern would not be consistent with the conclusions he had drawn regarding that injury, Dr Lange agreed that his findings would be inconsistent.  Given the above evidence, and relying particularly on those doctors who examined Mr Zoric shortly after the accident, I find, on the balance of probabilities, that there was no ulnar nerve injury which resulted from his accident on 25 May 2012.

14. As Dr Barton predicted, the MRI of Mr Zoric’s right elbow was not normal.  It disclosed advanced osteoarthritis as well as intra articular loose bodies.  There was no controversy about the fact that Mr Zoric’s osteoarthritis was long-standing and probably idiopathic.  The only question which arose was whether the condition would have remained asymptomatic had the accident not occurred.

15. Dr Ek was of the view that the symptoms Mr Zoric experienced following the accident could have been caused by that accident.  He was of the view that it was possible that his injury had exacerbated pre-existing arthritis and led to his ongoing symptoms.  I should emphasise that Dr Ek’s opinion did not rise to the level of probability but rather merely a possibility.  Dr Fountain was of the view that it would be reasonable to state that if the injury had not occurred, the problems would have remained undetected.  With respect to Dr Fountain, he did not provide any substantive grounds for that view.  It appears to be speculative.  Mr Kron, the physiotherapist, was of the view that the severity of the injury described to him by Mr Zoric was sufficient to cause an aggravation of an existing condition.  However, it is not clear that Mr Kron was fully aware of the mechanism and extent of injury sustained by Mr Zoric on 25 May 2012.

16. Dr Lange was of the view that Mr Zoric’s current symptoms were most likely due to the intra articular loose fragments in the elbow joint.  Essentially, that was because Mr Zoric claimed he had no pain prior to his injury and that his underlying osteoarthritis in the elbow joint was asymptomatic.

17. In my opinion, the most compelling evidence was Dr Barton’s statement that a radiological examination taken prior to the accident would have been identical to that taken immediately after the accident and that it made no medical sense to conclude, based on the radiological findings, that the symptoms described by Mr Zoric following the accident could be attributed to the accident.  Furthermore, Dr Barton said that loose bodies develop in the joints over many years.  They do not occur suddenly.  Therefore, their presence in radiological investigations done eight months after the accident did not necessarily connect those bodies to the accident. 

18. In fact Dr Barton’s opinion was reinforced by what Dr Ek said about the degenerative changes in Mr Zoric’s elbow.  He said it was not possible to comment or conclude that the osteoarthritis had been aggravated by the accident where there were no prior symptoms and no previous imaging had been performed.  Although Dr Ek seemed to go back on that statement in the course of his evidence in chief, he did accept that if the level of violence of the contact which he had assumed was in fact less, then the causal significance would be less likely to be attributed.  Because I have found that the level of violence experienced by Mr Zoric when his arm struck the ULD was not as significant as he made it out to be, I accept the opinions of Dr Barton and Dr Ek regarding the effect that the accident had on Mr Zoric’s existing osteoarthritis.  I also accept Dr Barton’s opinion that the loose bodies identified on the MRI are of no significance as far as Mr Zoric’s symptoms are concerned.  There was no evidence contradicting Dr Barton’s opinion that loose bodies such as those identified on the MRI were long-standing.

    CONCLUSION

19. I have found that a careful analysis of the evidence regarding the mechanism of the injury suffered by Mr Zoric while at work with Australia Post on 25 May 2012 only discloses an injury to the lateral side of Mr Zoric’s forearm in the area of his elbow.  Furthermore, I have found that the injury was not as severe as claimed by Mr Zoric.

20. I have also found that the ongoing symptoms Mr Zoric subsequently complained of, including pain and difficulties with extension and flexion of his right arm were not the result of the accident.  The accident did not cause any ulnar nerve damage.  Mr Zoric has osteoarthritis in his right elbow joint.  That condition is idiopathic and has nothing to do with the accident.  Furthermore, I have found that the blow he received to the outside of his right forearm in the elbow region did not precipitate the symptoms now experienced by Mr Zoric.  I have also found, on the balance of probabilities, that the loose tiny intra articular fragments are not the result of his accident on 25 May 2012.  That is also a long-standing condition and is probably asymptomatic.

21. It necessarily follows that I agree with Australia Post’s contention that any effects from Mr Zoric’s accident on 25 May 2012 had ceased by 18 March 2013. Accordingly, as from 18 March 2013, I find that Australia Post had no present liability for medical costs or incapacity under s. 16 and 19 of the SRC Act. I affirm that decision.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice, Senior Member

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

Associate

Dated 28 May 2015

Date(s) of hearing	17 - 18 November 2014, 17 April 2015 and        20 April 2015
Date final submissions received	4 May 2015
Advocate for the Applicant	Mr R Aldons
Counsel for the Respondent	Mr M Snell
Advocate for the Respondent	Mr P Mentor
Solicitors for the Respondent	Clarke Legal