Dharmendra Nair and Australian Postal Corporation

[2012] AATA 546

[2012] AATA  546

Division

GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/4779

2012/1933

Re

Dharmendra Nair

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal	M D Allen, Senior Member Dr M Couch, Member
Date	23 August 2012
Place	Sydney

The decisions under review are affirmed.

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

M D Allen, Senior Member

CATCHWORDS

WORKERS COMPENSATION:  Claim for neck and back injuries arising out of conditions of employment and specific incidences causing injury.  No objective evidence to support claims of ongoing pain.  Decisions under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 14, 16, 19.

REASONS FOR DECISION

M D Allen, Senior Member
Dr M Couch, Member

23 August 2012

1. In these proceedings the Applicant sought review of two “reviewable decisions” made by the Respondent pursuant to the Safety Rehabilitation and Compensation Act 1988 (SRC Act), namely:

   (i)2011/4779:  A reviewable decision dated 22 June 2011 affirming a prior determination, pursuant to s 16 and 19 SRC Act, the Applicant was no longer entitled to compensation for the injury described as “left cervical spine strain with trapezius and levator scapular muscle strain”.

   (ii)2012/1933:  A reviewable decision dated 8 May 2012 affirming a prior determination that the Respondent was not liable to the Applicant, pursuant to s 14 SRC Act, to pay compensation for the injuries described as “neck injury, left shoulder injury, left carpel tunnel syndrome, left knee injury and lower back injury” caused by the nature and conditions of the Applicant’s employment.

2. The Applicant has been employed by the Respondent since August 1990.  Originally he was employed as a Parcel Post Officer at the Respondent’s Villawood depot.  His duties consisted of storing and bagging parcels and driving fork lifts.  This was very physical work involving lifting bags of parcels into containers (referred to as UDLs) or onto conveyer belts, bending to obtain parcels out of UDLs and driving a fork lift while standing with his left foot depressing a pedal.

3. In March 1997 the Applicant had an accident involving a ride on a forklift.  He was operating the fork lift which required him to stand, and attempting to load two metal cages into a truck.  The rear wheel of the ride of the forklift caught and the Applicant was flung from the machine hurting his left knee, right thigh and back.

4. The above work accident was the subject of an incident report but the Applicant made no claim for compensation at that time.

5. On 25 May 2003 the Applicant, who by this time had been promoted to a supervisory position, went to open a glass door when he felt a sharp pain down the left side of his neck into the left shoulder. 

6. Any pain from this incident resolved by the end of the next day and, according to the Applicant’s evidence, did not return until an incident in 2009.

7. On 5 August 2003 a claim was made by the Applicant regarding an injury to his left knee on 26 July 2003.  The Applicant claimed that his left knee started to ache because he had had to operate a forklift all morning, and this required him to use his left foot to depress the foot pedal on the forklift.

8. The Applicant consulted his general practitioner (GP) Dr Shah who referred him to orthopaedic surgeon Dr Dave.  Unfortunately for the Applicant, the responses of those medical practitioners to requests for information by the Respondent were inadequate and the Applicant’s claim for compensation was refused.

9. On 5 February 2004 the Applicant injured his left foot alighting from a forklift.  He took sick leave for one day then continued his normal duties.

10. At some time in 2003, the Applicant was transferred from the Respondent’s Villawood depot to the depot at Chullora.  This meant an effective downgrading of the Applicant’s position.  At Villawood he had been a Parcel Post Controller, effectively controlling the depot and able to vary his duties from time to time.  At the Chullora depot his title was that of a Parcel Post Process Leader.  Chullora is a larger depot than Villawood and there are other employees of Australia Post at that depot who are also designated as Parcel Post Process Leaders.  In cross-examination he described less autonomy at Chullora, and being unable to “pick and choose” his duties.

11. In the year 2006 the Applicant began to experience more severe pain in his lower back.  As we understand his evidence he had experience back pain ever since the incident of 1997, albeit that he did not report any back injury but, in 2006, 80 to 90 per cent of his duties involved driving a forklift over a bumpy floor whilst sitting on the forklift with his head twisted backwards for much of the time.  In cross-examination he stated that the Chullora depot was fairly new, with generally smooth concrete floors, but with depressed expansion joints.  He described the (Toyota) forklifts which he had used as having a harder ride than a different model introduced since then.

12. As a result of experiencing more severe back pain, the Applicant consulted his GP who in June 2006 arranged for a CT scan to be taken of the Applicant’s lumbar spine.  That scan revealed minor spondylitic change at the L3/4, L4/5 and L5/S1 levels of the lumbar spine.  He did not report this to Australia Post or claim compensation in 2006.

13. In June 2008 the Applicant’s duties changed in that he was required to undertake supervisory tasks whilst being placed in an elevated position, referred to as “the tower”.  Some dispute exists as to what periods of time the Applicant was required to stand to carry out these duties and for what period he could sit.

14. The Applicant said that he spent 70 per cent of his time in the tower standing.  It was put to the Applicant in cross-examination that the proportion of sitting to standing was more like 40 to 50 per cent, but he maintained that he could sit for only 30 per cent of the time.  Being in the tower supervising also required him to walk some distance to the various loading docks.

15. After six weeks of duties in the tower, the Applicant complained of back pain to his GP who referred him to Dr Sanki for a CT scan of his lumbar spine and left knee.  Dr Sanki noted spondylitic change in the Applicant’s lumbar spine and mild osteoarthritic change in the Applicant’s left knee.

16. As a result of the Applicant’s GP recommending on 16 June 2008 that the Applicant undertake non-standing tasks for the next three months, the Applicant was on 24 June 2008 directed to take sick leave until he could provide medical evidence as to his fitness for duty.  He then lodged a claim for compensation, which was denied.

17. Dr A Sanki, a general surgeon, provided a report dated 8 August 2008 that expressed his opinion that the Applicant’s symptoms were attributable to an injury to the Applicant’s back in 1997.  Dr Sanki was not called in these proceedings and in his report does not descend into particularity as to the basis of his opinion.  We do not place any great weight on the report by Dr Sanki.

18. What the CT scans referred to by Dr Sanki show, is that as at 30 June 2008 the Applicant had mild spondylitic change throughout his lumbar spine, and some mild facet and sacroiliac joint osteoarthritis.

19. At the request of the Respondent, the Applicant was examined by occupational physician Dr Gliksman on 14 November 2008.  Dr Gliksman noted:  “Mr Nair states that all symptoms have resolved and he has been able to cease all medication”.

20. Dr Gliksman concluded his report by stating that the Applicant suffered from mild to moderate widespread degenerative change affecting the lumbar spine and the left knee.  In Dr Gliksman’s opinion the Applicant was fit for work but with restrictions.

21. The Applicant returned to work in December 2008 on restricted hours and driving a ride-on forklift.  He continued to work without incident until 10 September 2009 when he injured his left shoulder and neck attempting to shut the gate of a ULD.  A claim was made for “left cervical spine pain with trapezius and levator scapulae spasm”.  This claim was accepted for the period 14 September 2009 to 27 September 2009.  The Applicant was returned to work on a graduated Return To Work (RTW) program.

22. During the year 2010, the Applicant carried out the duties of a supervisor, but with no forklift driving (except for a period between October 2009 and early March 2010, when he did some restricted forklift duties).  He did have periods of absence from work.

23. A similar pattern occurred during 2011, until November 2011 when the Applicant took a combination of annual leave and long service leave.  Following the expiration of his leave periods the Applicant did not immediately return to work but remained off work until May 2012, when he commenced a work trial, working five hours a day, three days a week with the restrictions of no lifting above shoulder height and no forklift driving.

24. Effective 30 May 2012 the Applicant was directed to take sick leave as he could not fulfil the full duties of his position.  He has not worked since that time.

25. The Applicant said that as at 30 May 2012 he was coping with the reduced duties but as of that date and now he could not and cannot return to full duties because of pain in his left knee, lower back, cervical spine and left shoulder, and also pain in his left hand and wrist.

26. Following his claims for compensation, as a result of the pain experienced in his neck and left shoulder, on 10 September 2009 the Applicant was examined by rheumatologist Dr McGill on 8 March 2010.

27. In his report of 8 March 2010, Dr McGill noted the following history regarding the Applicant’s low back pain, namely:

    “In 1997 he experienced low back pain.  He related those symptoms to falling off a BT.  He did not have any time away from work at that stage.  I understood from his history that his back pain developed gradually some time after the incident.  He continues to intermittently experience minor back discomfort such as with repetitive bending.”

28. As to the Applicant’s neck and left shoulder pain, Dr McGill noted:  “He could not recall any neck or shoulder region symptom prior to 10 September 2009”.  After examining the Applicant and reviewing imaging, Dr McGill opined:

    “The diagnosis is not certain.  I think the most likely explanation is that he has experienced referred pain into the left trapezius because of an increase in symptoms related to degenerative change in the cervical spine.  The extent and persistence of those symptoms as reported have been substantially greater than one would expect in light of the history, clinical findings and imaging studies.  …

    On the basis of the information currently available, I think his work duties caused a temporary exacerbation of his pre-existing degenerative cervical spine disease.  I cannot find evidence of any injury that one would expect to cause ongoing symptoms.”

29. On 31 March 2010, following an ultrasound of the Applicant’s left trapezius region and an MRI of his cervical spine, Dr McGill opined:

    “The imaging studies provide support to my conclusion that his symptoms relate to pre-existing degenerative cervical spine disease.  I confirm that I think his work duties caused a temporary exacerbation of symptoms related to the degenerative changes in his cervical spine.  I do not think that his work duties have caused any change in the underlying pathology.  In light of the lack of any MRI evidence of neural compression at the C7/T1 level, I do not think that periradicular injection nor other invasive therapy is appropriate.”

    adding that the Applicant should be able to undertake a graduated return to his normal duties over a six week period.

30. Dr McGill again examined the Applicant on 23 April 2012 at the request of the Respondent’s solicitors.  He recorded the Applicant’s current symptoms as:

    “He experiences constant pain in the low back which fluctuates in severity.  It is generally worse with bending.  He finds that he can no longer mow his grass or do his lawn.  He has also had pain in the left lower limb at the knee and at the left heel.  Those symptoms are worse with prolonged standing.  He has constant discomfort in the left neck and trapezius region.

    He has soreness in the left hand.  He had not mentioned his hand symptoms previously and when I checked as to when they commenced he replied ‘always been there. I did not realise there was a pain there’.  It appeared from his replies that he believed that the pain had always been present but that he had been unaware of it previously.  …

    When I checked in regard to paraesthesia or numbness, he recalled that he occasionally experiences pins and needles in his left middle and ring fingers.”

    After examining the Applicant and reviewing imaging studies, Dr McGill concluded his report by stating:

    “His examination revealed restriction of cervical spine movement, full thoracolumbar movement, no neurological abnormality and no other significant musculoskeletal finding.

    He has had many investigations which have demonstrated widespread but relatively mild degenerative change in the cervical and lumbar spine and minimal degenerative changes in the left knee.

    With respect to the episode at work on approximately 10 September 2009 he may have experienced a left trapezius muscle strain but I think it is more likely that he experienced aggravation of pre-existing degenerative change in his cervical spine.  If he had a muscle strain then that would have recovered within several weeks to a few months at the most.  If the symptoms were due to an aggravation of pre-existing degenerative disease … I think the aggravation would have ceased probably within a few weeks and at the most within a few months.  I do not believe that the incident in September 2009 produced any structural changes in the cervical spine.  I think the minor degenerative changes evident on his imaging studies were pre-existing and not influenced by the September 2009 episode.

    Specifically with respect to your question as to whether the effect of the September 2009 episode had ceased as at 15 October 2010, the answer is yes.

    … I do not believe that he has suffered any injury to his neck, left shoulder, left knee or to his wrists (as may be relevant to carpal tunnel syndrome) as a result of the nature and conditions of his employment since 1990.  There is no evidence that his pattern of work, in the absence of specific injury, influences degenerative disease of the spine.  He does not have carpal tunnel syndrome.  He does not have any significant abnormality of the left knee or left shoulder.  The discrepancy between the normality of his physical examination and the near normality of his imaging studies on one hand in comparison with the level of symptoms reported on the other when considering the left knee and left shoulder regions is a reflection of his constitutional make up. 

    His current physical condition would have been the same regardless of his work with Australia Post.

    With respect to whether there was evidence on nonorganic factors, a discrepancy between the level of symptoms reported and the objective clinical and imaging findings was clear. ...”

31. Giving evidence in these proceedings, Dr McGill stated that the Applicant did not report the major symptoms of carpal tunnel syndrome.  He found no muscle wasting, weakness or sensory impairment.  Provocation tests, including Tinel’s and Phalens tests, were negative.  (He stated that it is his habitual practice to also perform the modified Phalen’s test).  With respect to the tests carried out by Dr Teychenne, those tests revealed median nerve conduction studies were normal.  Dr McGill also pointed out that interpretation of recruitment patterns on EMG depends on the patient’s effort.

32. Questioned regarding the Applicant’s complaints of having to walk as part of his work duties, Dr McGill stated that walking was good for maintaining muscle function and thus beneficial to the Applicant.  Likewise, in his opinion, operating a forklift would have made no difference to the pathology of the Applicant’s neck.

33. Dr McGill was cross-examined regarding images of the Applicant mowing a footpath and shopping, which images had been contained on a DVD played to the Tribunal.  Dr McGill had also viewed the DVD.  On being questioned, Dr McGill stated that the evidence from the objective findings available to him was that the Applicant had normal function and that the DVD had demonstrated normal function.

34. That the Applicant had normal function was also the opinion of Dr Maxwell, orthopaedic surgeon, who had provided a report to the Respondent’s solicitors.  Dr Maxwell did not give evidence in these proceedings.

35. At the request of his then solicitors, the Applicant was examined by general surgeon Dr Berry on 17 December 2010.

36. In the history taken by him, Dr Berry records that the Applicant apparently injured his back in 1997, but the back injury was not reported.  He then records that according to the Applicant his back never really settled entirely.

37. Dr Berry concludes his report by stating:

    “OPINION

    This patient reports a series of injuries from 1997 to 2009.  It would appear however that the most significant injuries were the back injury in 1997 and the neck and left shoulder injury in 2009.  The patient’s history is consistent with aggravated degenerative disease of the cervical spine with nonverifiable radicular complaints in the left arm.

    …In order to make a diagnosis of radiculopathy the patient needs two of the criteria.  He does have a loss or asymmetry of reflexes, particularly his triceps reflex.  There is no specific muscle weakness.  The impairment sensation does not fit with the appropriate spinal root distribution.  There is no nerve root tension sign, there is no muscle wasting.  From the findings on the imaging study are not consistent with a frank disc protrusion.  With regard to his lumbar spine he has had aggravation of degenerative changes by his initial injury in 1997 and subsequently as a result of the work he has done over the years.  He also complains of knee pain but there is no assessable impairment.  I would consider that his present condition is a direct consequence of his work injury.”

38. Dr Berry was not called in these proceedings.  Although he opines that the Applicant’s work injury is responsible for his present condition, this opinion was not able to be tested, nor is the basis for his opinion expanded beyond his mere statement of connection.  It is notable, however, that Dr Berry did not diagnose radiculopathy and found no muscle wasting commenting that the impairment sensation did not fit with the appropriate spinal distribution.

39. Dr David Champion, a rheumatologist specialising in pain management, examined the Applicant at the request of his solicitors on 21 February 2012.  In his report of 10 April 2012, Dr Champion opined that the Applicant had a multi-level cervical spinal pain syndrome, a left median neuropathy at the wrist/carpal tunnel syndrome and a persistent chronic pain state at his left shoulder.  He regarded the Applicant as unfit for his former employment or “for any work for which he might be deemed suitable”.

40. In evidence, Dr Champion stated that in his opinion the Applicant’s age-related degeneration was not a sufficient explanation for the pain he experienced, as the minor to moderate pathology the Applicant exhibited was not sufficient to cause ongoing pain.  In his opinion the Applicant’s pain was caused by peripheral or nerve root influence.

41. Dr Champion also described his 20 year interest in Pain Medicine and how medical understanding of chronic pain has developed.  He described the poor correlation which can exist between objectively-demonstrable pathology and perceived pain, in chronic as opposed to acute conditions.  He expanded on this theme during cross-examination.  The Tribunal does have some familiarity with these concepts.

42. Cross-examined, Dr Champion maintained his opinion that the Applicant was suffering from a chronic pain syndrome, and it was reasonable for the Applicant to be concerned that repetitive tasks would affect him. Questioned by the Tribunal member, Dr Couch, Dr Champion agreed that in assessing a patient, “classically” 70 per cent of the important information comes from the history.  He said that he had found limited but definite supporting physical signs.

1. During cross-examination, Dr Champion suggested that observations of unrestricted activities on surveillance might not indicate fitness for more sustained activities at work.

2. We find that it is the history in this matter that causes us to prefer the opinion of Dr McGill, supported by that of Dr Maxwell, to that of Dr Champion.

3. Also, when questioned by Dr Couch, Dr McGill confirmed that he did not find Mr Nair to present the typical picture of someone disabled by chronic pain.

4. At the outset, we do not accept the Applicant’s evidence that he had back pain since the incident in March 1997.  At that time a report was made of the incident but no report was made by the Applicant of any injury to his back.  The Applicant also conceded in cross-examination that in the period 1997 to 2003 he had no need to seek medical treatment for his back.

5. The Applicant did seek medical treatment for his back on 20 October 2003 from his GP.  At that time he did not mention any fall from a forklift in March 1997.

6. During 2006 and 2007, the Applicant was again investigated after complaining of pain in his low back and a CT scan was taken on 28 June 2006.  Cross-examined the Applicant conceded that prior to 2008 he had not informed his GP of any fall from a forklift.  He stated that in the period 2003 to 2007 he had not made a compensation claim and was only attending his GP to find out if there was a problem.

7. We reject this rationalisation by the Applicant.  If, as alleged, he was seeking to ascertain if there was a problem with his back, then it seems to us that he would have been concerned to give a full history, including that of any trauma, especially if, as the Applicant now claims, he had suffered ongoing pain since the incident.

8. The Applicant also conceded that in the period 2003 to 2008 he had not taken sick leave because of back pain.  The Applicant took sick leave in the period 5 June 2008 to 23 June 2008 because of back pain and returned to work with restrictions.  On 14 November 2008, Dr Gliksman took a history from the Applicant that:  “All symptoms have resolved and he has been able to cease all medication.”

9. As stated earlier in these reasons, Dr Gliksman also stated that the Applicant suffered widespread degenerative changes affecting the lumbar spine and left knee.

10. We reject the findings that the Applicant may suffer a left carpal tunnel syndrome.  Dr Teychenne in a report dated 9 August 2010 stated after testing that the Applicant may suffer mild bilateral carpal tunnel syndrome, symptomatic on the left side.  Dr Champion repeats this statement in his report.  Dr McGill specifically tested for carpal tunnel syndrome and the result was negative.  Dr McGill also pointed out that median nerve conduction studies were normal, a finding contrary to a diagnosis of carpal tunnel syndrome.

11. The Applicant has maintained that he cannot carry out his duties at Australia Post because of back and shoulder pain.  He stated to Dr McGill that he could no longer mow his grass or do his lawns.  In cross-examination he stated that bending is something he tries to avoid.

12. On 9 February 2012 the Applicant attended his GP complaining of pain in his left shoulder and low back.  He obtained a medical certificate stating he was unfit for work for the period 8 February 2012 to 10 February 2012.  Exhibit R3 in these proceedings includes a DVD showing the Applicant on 9 February 2012 mowing a footpath.

13. We accept, as pointed out by Dr Champion, that there is a difference in observing the Applicant perform a one-off series of actions as compared to performing the same action over again.  We also accept that we were not privy to any pain and consequent incapacity the Applicant suffered as a result of these actions.

14. Given the above qualifications, the DVD does show the Applicant performing a manual task with a fluidity of movement not normally associated with a person who complains of continuing back and shoulder pain.  We noted that the Applicant was seen to bend effortlessly and had no apparent difficulties starting the lawn mower by means of pulling a cord.  He was also able to manipulate the movements of the lawn mower apparently without effort.  His actions were in marked contrast to that of a person who could not attend work that day due to back and neck pain.

15. The opinions of Dr McGill are supported by objective findings.  Dr Maxwell in his report commented that the Applicant has degenerative lesions in his back and neck as described in the CT scans of those areas.  He stated that the CT scans show normal variants typical of somebody his age.  Dr Champion in evidence stated that the Applicant’s degenerative changes are within a broad average and described them as minor to moderate pathology insufficient to cause ongoing pain.  Dr McGill indicated that he was familiar with broader concepts of chronic pain, but did not consider the Mr Nair presented such a picture.

16. We find therefore that whereas the Applicant may believe he suffers back and neck pain, there is no organic cause for these symptoms.  Various events at Australia Post have caused pain from time to time but any incapacity caused by those incidents has now resolved.  We are satisfied that any symptoms the Applicant may suffer are not attributable to his employment by the Respondent. 

17. The decisions under review are therefore affirmed.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member, Dr M Couch, Member

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

Associate

Dated 23 August 2012

Date(s) of hearing	23 and 24 July 2012
Counsel for the Applicant	Mr L Grey
Solicitors for the Applicant	Ms M Emanuel, Emanuel Solicitors
Counsel for the Respondent	Mr M Schnell
Solicitors for the Respondent	Ms K Miller, Sparke Helmore