Dhillon and Australian Postal Corporation
[2006] AATA 237
•14 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 237
ADMINISTRATIVE APPEALS TRIBUNAL ) N2003/1622
) N2005/1380
| GENERAL ADMINISTRATIVE DIVISION | ) N2005/1484 | ||
| Re | TAJINDER PALSINGH DHILLON | ||
Applicant
| And | AUSTRALIAN POSTAL CORPORATION |
Respondent
DECISION
| Tribunal | Ms G Ettinger - Senior Member |
Date 14 March 2006
PlaceSydney
DecisionThe Tribunal affirms the decisions under review in Matters N2003/1622, N2005/1380 and N2005/1484.
Costs may not be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – lumbar spine – liability accepted for injury at work – compensation ceased - three applications – degenerative lumbar spine dating back to pre-employment with Respondent - not disclosed in pre-employment application or to examining doctors – temporary aggravations at work – compensation not payable – decisions under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27
Casarotto v Australian Postal Commission (1989/90) 17 ALD 321
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
| 14 March 2006 | Ms G Ettinger - Senior Member |
BACKGROUND
Mr Dhillon was born in India on 19 May 1956, and completed tertiary studies in agricultural economics there. He said that he first did a Bachelor of Science degree followed by a Masters in Agricultural Economics, and then taught science. Mr Dhillon married in 1992, and has two children aged ten and eleven. The family migrated to Australia in 1996.
In August 1999 Mr Dhillon commenced working at Australia Post through an employment agency, Manpower, and was sorting letters. He joined Australia Post as an employee in April 2000, and was sorting Large Letters, parcels, Express Post and doing other general duties associated with sorting and dispatching mail. Mrs Dhillon also works at Australia Post.
Mr Dhillon claims that his back injury arose due to an incident at work when he was unloading Large Letters on 16 September 2002, but stated when he made his claim for compensation, that he was referring to an incident on 24 October 2002. He denied he had previously suffered any back injury. However the medical records of Dr Chugh indicated that Mr Dhillon had suffered back pain and pain in his calf in 1999, and had been referred for an X-ray at that time.
Liability was accepted for the 2002 injury, but compensation payment was ceased on 23 April 2003, and no compensation was paid for an injury claimed to have been incurred on 11 February 2003. A nature and conditions claim for the period 16 September 2002 to 3 April 2003 was refused. Those were the decisions Mr Dhillon was appealing before me.
Mr Dhillon ceased work at Australia Post in June 2004; however since August 2005, he has commenced a part-time return to work program carrying out light duties, partly clerical, at the Rockdale Delivery Centre. He told me that he continues to have stiffness in his back, and pain in his right leg and becomes easily tired, partly because he now has a sleep disorder.
I found Mr Dhillon to be very discursive, refusing to answer questions, and a difficult witness throughout the hearing. Because I was concerned that Mr Dhillon’s non-responses to questions asked of him may have had their origin in his understanding of English, (which I understand is not his first language, but in which I found him to be competent), an interpreter in the Punjabi language was provided after the first day, and every word of the cross-examination was interpreted. The difficulties continued, and are illustrated in this statement by the interpreter at page 123 of the transcript of 23 November 2005, at the resumed hearing, where the interpreter said:
“I think he is not listening. There is no point repeating it, he is not listening. He say yes, he is not listening to me so how can he answer – not listening.”
I was mindful also of the cross-examination regarding whether Mr Dhillon had ever done fruit picking either in India or in Australia, and his initial denial of such activity. It was only after Mr Kumar, a supervisor’s name was mentioned that the Applicant admitted he may have done fruit picking. Although the inference from the Respondent was that that the fruit picking may have impacted upon Mr Dhillon’s back problems in some way, I did not have sufficient evidence before me to draw any such conclusion. I did however consider his evidence in regard to fruit picking unsatisfactory, and the early non-disclosure when asked about it, untruthful.
Ms Sibley conceded in her closing address that the Applicant gave “some unsatisfactory evidence in respect of two aspects. One, the events in 1999 and one in respect of his application for employment.” At various times during the hearing I was not able to accept Mr Dhillon’s evidence as truthful, and I indicated that to him.
In this Decision, and Reasons for Decision, I had to decide the following in regard to the three reviewable decisions before me.
REVIEWABLE DECISIONS AND ISSUES BEFORE THE TRIBUNAL
In Matter N2003/1622 liability was accepted for Mr Dhillon’s soft tissue injury to his lower back incurred on 16 September 2002 and/or 24 October 2002. The reviewable decision dated 11 August 2003 ceased payment of compensation for all forms of back injury on 23 April 2003.
I had to decide whether the Applicant is entitled to further compensation after 23 April 2003, pursuant to sections 4, 14, 16, 19, 24, 27 of the Act for soft tissue injury of the lower back incurred when “unloading large letters” in 2002.
In doing so, I had to consider whether Mr Dhillon had a degenerative lumbar condition before the commencement of his employment at Australia Post which he had not disclosed.
I also had to consider whether Mr Dhillon is entitled to compensation for permanent impairment.
In Matter N2005/1380 liability for a claim by Mr Dhillon for his low back condition arising as a result of the nature and conditions of his employment from 16 September 2002 to 3 April 2003 was refused by the Respondent on 26 October 2005.
I had to decide whether the Respondent should compensate Mr Dhillon for injury to his lower back arising as a result of the nature and conditions of employment between 16 September 2002 and 3 April 2003.
In Matter N2005/1484 liability for a claim by Mr Dhillon for his low back condition arising out of an incident on 11 February 2003 was refused.
I had to decide whether the Respondent should compensate Mr Dhillon for a low back condition as a result of an incident on 11 February 2003.
LEGISLATIVE FRAMEWORK AND CASE LAW
The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the Act”), in particular sections 4, 14, 16, 19, 24 and 27.
For the Applicant to be eligible for compensation, which he was granted after the injury of 16 September 2002 and 24 October 2002 until 23 April 2003, he had to satisfy the definition of injury, which includes aggravation of a physical or mental injury pursuant to section 4 of the Act, and the injuries must have been found to have resulted in incapacity for work (section 14 of the Act). What flowed from that of course was also the provision of reasonable medical expenses pursuant to section 16 of the Act, and possible payments calculated pursuant to section 19 of the Act.
Section 4 of the Act defines “disease” and “injury” as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
...”
Sections 14(1) and 16 of the Act provide that:
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…”
Section 19 of the Act is concerned with financial compensation for injuries compensable under the Act which have resulted in incapacity for work.
There is of course well established authority both State and Federal, which deals with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases. There is Casarotto v Australian Postal Commission (1989/90) 17 ALD 321 which deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, it was held that a de minimus contribution of the workplace suffices, and it is irrelevant that other non-work related factors may have also contributed to the injury or disease.
WHETHER THE APPLICANT IS ENTITLED TO FURTHER COMPENSATION AFTER 23 APRIL 2003 FOR SOFT TISSUE INJURY OF THE LOWER BACK
In Matter N2003/1622 liability was accepted for Mr Dhillon’s soft tissue injury to his lower back incurred on 16 September 2002 and/or 24 October 2002. The reviewable decision dated 11 August 2003 ceased payment of compensation for all forms of back injury on 23 April 2003. I had to decide whether the Applicant is entitled to further compensation after 23 April 2003, pursuant to sections 4, 14, 16, 19, 24, 27 of the Act for soft tissue injury of the lower back incurred when “unloading large letters” on 16 September 2002 or 24 October 2002. In doing so, I have had to consider all the evidence before me, and have the advantage of being able to consider whether Mr Dhillon had a previous degenerative lumbar condition and its possible impact, which he had not disclosed to Australia Post when he commenced his employment in April 2000, and which he had not disclosed to the decision maker when he lodged an appeal against a decision to cease his compensation. My consideration of those issues follows.
WHETHER MR DHILLON HAD A DEGENERATIVE LUMBAR CONDITION BEFORE THE COMMENCEMENT OF HIS EMPLOYMENT AT AUSTRALIA POST
In that regard, I had before me the medical records (Exhibit R6) of Dr B Chugh, who had been Mr Dhillon’s general practitioner in 1999, and for some years before that date. Dr Chugh recorded amongst other complaints, “2 days tired, backache” on 29 June 1999, and “acute lumbago with pain in calf” on 24 September 1999, and “pain, back” on 28 September 1999. Mr Dhillon was referred by Dr Chugh for an X-ray of the lumbosacral spine in September 1999.
When cross-examined about the doctor’s medical notes in connection with those consultations, Mr Dhillon avoided answering the question regarding whether he had in fact reported back pain to Dr Chugh as recorded. I found Mr Dhillon to be extremely discursive, and a witness who avoided answering questions.
Eventually, after extensive questioning by Mr Johnson, Mr Dhillon told me that in 1999 he consulted Dr Chugh because his back was stiff, and his whole body was tired, and attributed that to being on night shift. He also admitted that he had told Dr Chugh he had some back pain. I reproduce the following exchange as recorded at page 83 of the transcript of 23 November 2005, mindful that during cross-examination every word was interpreted into Punjabi, Mr Dhillon’s mother tongue, so that there could be no question of him misunderstanding.
Interpreter for Mr Dhillon: “Yes, I told him that I had pain all over my body. I don’t know how he [the doctor] recorded that.”
Mr Johnson: “.. you specifically complained to him, didn’t you, of pain in your lumbosacral area?”
Interpreter: “I told him that I have some back pain. I don’t know … that I had pain in my lumbar spine. I don’t know this term.”
After Mr Johnson had questioned Mr Dhillon for some time, I made the following statement.
Senior Member: “I am sorry, you know we can ask for the next three hours … I think what I am hearing is that Mr Dhillon is either unable or unwilling to remember. …
You have said several times you just told the doctor you were tired all over. You have tried to incorporate that pain into that and I just think I find the evidence quite unreliable.”
Interpreter: “I told him that I was feeling discomfort in my back, so I don’t know what he wrote.”
Mr Johnson continued as follows:
“… to make clear … I put to you that in seeking to bury the complaint about your lumbar sacral pain, and indeed the complaint about pain in your calf, in this idea of pain in the whole body, you are simply seeking to minimise, untruthfully to minimise what was said to the doctor on that occasion. That is right, isn’t it?”
Interpreter: “Yes, I told you what I told the doctor. I never had any pain in my leg before. Not even in 2002 I had any leg pain. … Now I have a pain in my leg at present.”
Mr Johnson: “Sir, you have had pain in your leg from time to time at least since 1999, that is right isn’t it?”
Interpreter: “No, it is not true.”
Mr Johnson then referred to evidence at pages 73/74 of the transcript of 13 July 2005, and the answers Mr Dhillon gave on that previous occasion when he was examined at the Tribunal.
Mr Johnson: “… I am going to ask you whether the answers that you gave then were correct. I would like you to assume that you were asked the following. If the doctor’s notes …that you then complained not just of backache, but also of pains down the back of your lower leg, that is between your knee and your ankle … You answered ‘yes, I understand now’.”
Interpreter: “That was the last time?”
Mr Johnson: “That is right. When you gave evidence the last time. … Then you would agree, wouldn’t you, that you probably did complain of pains going down below your knee to that doctor in September 1999?
And you answered ‘yes’. And that was a correct answer wasn’t it?
Interpreter: “I don’t know what I was asked.”
Mr Johnson: “What you were asked was just translated to you by the interpreter, together with your response wasn’t it?”
Interpreter: “I already gave evidence this morning that I was feeling uncomfortable. That is the reason I went to the doctor. And then I told him what was wrong with my whole body, and I was feeling tired, and he gave me that tablets…”
Mr Johnson: “That is not an answer to the question that I asked you, is it?”
Interpreter: “For what are you asking me that?”
Mr Johnson: “You are deliberately avoiding answering my question which was that the question and the answer you gave on the last occasion were just read to you, translated to the by the interpreter….”
…
Interpreter: “I am not avoiding your questions.
…”
After that exchange, I cautioned Mr Dhillon as follows:
“Mr Dhillon, you really need to listen to the question, listen to Mr Sani interpreting it, and answer as well as you can because it will just help the Tribunal to come to a better decision. I have to make the correct or preferable decision and … it will help everybody if you just answer please, as well as you can.”
I was satisfied from the evidence that Mr Dhillon suffered lumbar back pain and pain in the calf as recorded by Dr Chugh in 1999, and find in the paragraphs that follow that he did not disclose that back and leg pain to his doctors after his injury on 16 September 2002 or 24 October 2002.
I noted the medical evidence regarding the pre-existing lumbar condition. In a supplementary report, Professor Sambrook stated after he had been informed of Dr Chugh’s 1999 medical notes, that:
“I still consider that Mr Dhillon suffers from disc degeneration at L5/S1 with disc prolapse impinging upon the right S1 nerve root. The new information clearly indicates there was some constitutional degeneration prior to the first recorded episode with Australia Post in 2002. However Mr Dhillon did not develop leg pain until February 2003. So the history would seem to indicate that around this time he suffered a frank disc prolapse on a background of mild degenerative disc disease at L5/S1”
Unfortunately Professor Sambrook was wrong about the leg pain firsts developing in February 2003 as the medical evidence indicates otherwise (Dr Chugh in 1999 and Dr Gilhotra 2002).
Dr Carr said that:
“His diagnosis is degenerative lumbosacral, that’s L5/S1 disc disease, that was present on X-rays in 1999 and right sciatica associated with a degenerative disc protrusion as L5/S1 .
…
Well, the X-rays of 28 September 1999 showed considerable degenerative changes in the lumbosacral disc at that time and I believe it was in place in 1999 in view of his symptoms of back pain and pain in his calf.
Dr Maxwell stated that after he had viewed the 1999 X-rays, he was satisfied Mr Dhillon had a degenerative condition in 1999, and based on Dr Chugh’s medical notes, opined it was likely the Applicant was suffering some sciatica due to nerve root irritation. He commented on osteophytes protruding from the vertebral body of L5 and from the sacrum which he opined do not form acutely, hence indicating a chronic degenerative condition of the lumbar spine.
I was mindful that Dr Wallace did not believe Mr Dhillon’s current disabilities were related to his episode of lumbar spinal pain in September 1999. He concluded the 1999 incident was minor because the Applicant did not require time off work nor report problems to his workplace in the intervening years to September 2002.
I was satisfied from the medical evidence of Professor Sambrook and Drs Carr and Maxwell that Mr Dhillon suffered a degenerative lumbar condition before the commencement of his employment with Australia Post.
I noted that Mr Dhillon was also referred to Exhibit R11, his Australia Post “Pre-Placement Assessment” dated 31 January 2000. Notwithstanding consultations with Dr Chugh in June and September 1999 with regard to his back and leg pain, and X-rays of his lumbar spine some four months previously, he had completed the form replying “No” to questions regarding whether he currently had, or had ever suffered back pain or disc problems, sciatica or leg pain, whether he had had treatment for his back or neck, and whether he had had scans or X-rays of his neck or back. The examination of Mr Dhillon’s posture, gait, neck, cervical spine, thoraco-lumbar spine reflexes, whether he could walk on his heels and toes, his knees and whether he could fully squat were all ticked as being “normal” by the examining doctor.
When asked why he had filled in the form answering as he had, Mr Dhillon said that he just filled out the form, particularly page six, (which had the answers to questions about his back and legs) in that way, because he thought it was just a formality, and the questionnaire was “too thick”. He also said that he had just come off night duty, that he was tired, and that he had not read the questions before filling the form in. Mr Dhillon also said that he did not think his back problem was serious at the time. At page 85 of the transcript of 13 July 2005, Mr Dhillon said in regard to filling out the form, “I had no back pain, no problems, … just discomfort and stiffness I feel and after that I went for X-ray and doctor told everything was clear, no back problem you have.” Mr Dhillon said that he had no back problems between October 1999 and September 2002, and had not taken leave in connection with such problems.
Mr Johnson suggested to Mr Dhillon that he had filled in the form to indicate he did not have problems so as not to jeopardise his chances of employment with Australia Post, which Mr Dhillon denied. After hearing the evidence, I told Mr Dhillon that I did not accept the reasons he gave for the way he completed the form.
Ms Sibley admitted in her closing submissions that the radiological evidence suggested Mr Dhillon had degenerative changes in his spine in 1999, but added that his evidence that he had worked without pain in his back or right leg from then until September 2002 was uncontroverted. She also submitted that the incident of 16 September 2002 had been relatively minor.
I was not satisfied with the excuses given on behalf of Mr Dhillon or the excuses he made for not disclosing the fact that he had suffered back and leg pain in 1999 on his Australia Post application form.
I also had before me a letter signed by Mr Dhillon dated 14 July 2003 at T36 (Exhibit R1), with a two page chronology of the Applicant’s injuries and medical treatment headed “Sequence of Events” submitted in connection with an application for review of a decision not to pay him compensation. When cross-examined about the chronology, Mr Dhillon stated that a friend had prepared it for him, but agreed the friend had written what he, Mr Dhillon, had told him to write. Most noteworthy was again the fact that Mr Dhillon did not disclose the back or leg pain he suffered in 1999, and for which he sought treatment from Dr Chugh at the Punchbowl Family Medical Centre. The document at T36 recorded “16/9/02 - First time I felt pain in my back at work when I was lifting large letter trolleys to put on Red sorting trolley.” Mr Dhillon argued that the pain in 1999 was like “a stiff back”, and repeated that he had consulted the doctor because he felt tired. His excuses varied from stating that he did not remember pain, to stating that the pain lasted only three to five days, and then stating that the pain he had was not to his back but a pain throughout his body. I noted that the Punchbowl Family Medical Centre records indicated attendances by Mr Dhillon in June 1999, and on 24 and 28 September 1999, not for pain throughout his body, but for back and leg pain, for which Dr Chugh referred him for X-ray of the lumbar spine.
I was satisfied to conclude from Mr Dhillon’s evidence, and the documentary evidence before me that Mr Dhillon had, in June and September 1999, suffered acute back pain described as lumbago by Dr Chugh, and pain in the calf. I also noted from the records that he had not had time off work for his back condition in 1999, and not until sometime after he reported his first incident at work on 16 September 2002.
As to sciatic pain; Ms Sibley submitted the 2002 injuries were relatively minor, and that the first record of sciatic pain was in the medical notes of Dr Papatheodorakis on 11 February 2003, that being the first significant injury. I was mindful however that Dr Chugh recorded pain in Mr Dhillon’s calf in 1999, and that on 21 June 2002 Dr Gilhotra prescribed “Tofranil, … painful legs – support stockings” (Exhibit R7). However, Mr Dhillon did not disclose the back and leg pain he suffered in 1999 to Australia Post as he should have when he was first employed, and indeed not even in in July 2003 when he prepared a chronology of his injuries for Australia Post (T36, Exhibit R1).
Neither did he disclose it to examining doctors, Carr, Maxwell Sambrook, Gliksman or Wallace when he was being examined by those doctors during 2003 and 2004.
As can be seen from my comments above, and in the paragraphs which follow, I had difficulties with the consistency of Mr Dhillon’s evidence, and its veracity. Notwithstanding the assistance of a very competent interpreter in his native language, Punjabi, I found Mr Dhillon to be discursive and evasive when replying to questions at the Tribunal.
DEFINITION OF LUMBAGO
The entry by Dr Chugh of “lumbago” in regard to Mr Dhillon’s back complaint in 1999, raised some discussion, and three dictionary definitions were consulted. The relevant pages are at Exhibit R15. I was satisfied from these, and from Dr Carr’s evidence that lumbago signifies severe lumbar pain with associated leg pain. Dr Carr opined:
“Acute lumbago usually means very bad back pain. It’s more severe than just backache, and often there’s a tilt in the lumbar spine associated with it, … And the referred pain in the calf usually means that something is pressing on a nerve, and that usual something is a disc prolapse.”
I have included the definitions of lumbago for the sake of completeness.
Gould Medical Dictionary 4th Edition: “Lumbago: … from lumbus, loin; backache in the lumbar or lumbosacral region …”
Black’s Medical Dictionary 40th Edition: “Lumbago: Pain in the lower (lumbar) region of the back. It may be muscular, skeletal or neurological in origin. A severe form associated with SCIATICA may be due to a prolapsed INTERVERTEBRAL DISC. Less severe forms may be caused by OSTEOARTHRITIS of the spine, a trapped nerve, inflammation of connective tissue or may follow up an old injury. …”
Oxford English Dictionary (online version): “Lumbago: A rheumatic affection in the lumbar region of the body …”
INCIDENTS OF 16 SEPTEMBER 2002 AND 24 OCTOBER 2002
Mr Dhillon described an incident on the night of 16 September 2002 about three or four hours into his shift, as “… I was standing and after that suddenly heavy boxes come and I lift one boxes (sic) and I put on the trolley and I felt pain just in my [lower] back …” . His evidence was that the boxes varied in size and weight and could weigh anything between 15 and 35 kgs. Mr Dhillon said that he reported the incident to his supervisor, and filled in an incident report, and did some light work whilst awaiting his wife’s shift to finish before they both proceeded home.
I noted that in the incident form at T3 (Exhibit R1), Mr Dhillon wrote “after finishing my large letters sorting, I was clearing the holes in the white boxes. I lifted some boxes to load on the trolley & I felt some pain on my back and after nearly 30 minutes it was ok.”
Mr Dhillon said that he returned to work the next day although his back was hurting, and his friend helped him with lifting. He said that he took Panadol and used a hot water bottle. Mr Dhillon did not tell Dr Maxwell that his pain had abated after half and hour, and could not explain why he had not done so.
He gave evidence that on 24 October 2002 whilst sorting mail, he felt pain in the same area in his lower back, and then could not sleep that night. He indicated stiffness around the whole lower back area and buttocks, and said that he still had that pain and stiffness across his whole lower back. Mr Dhillon reported the incident of 24 October 2002 to his supervisor, and filled in a form. He said that his back was hurting very badly, and he consulted Dr Gilhotra.
Dr G Papatheodorakis examined Mr Dhillon on 25 October 2002, and suggested certain exercises for Mr Dhillon. Mr Dhillon said that he returned to work to light duties that night. Mr Dhillon said that he was “struggling”, and felt “pain, continuous dull pain” in his back, and could not lift or bend.
Mr Dhillon said that between 24 October 2002 and 11 February 2003, the date of the next incident, which he reported, he suffered back pain and felt stiff. The Applicant also consulted Dr Papatheodorakis after the incident of 11 February 2003.
Mr Dhillon said that in April 2003, he was working on Express Post which involved very big boxes, and that this work involved time pressures.
The Applicant said that he had previously not taken time off work because he needed the job and the money, but that from 4 April 2003, he had time off work. He said that he consulted Dr Papatheodorakis on 3 and 4 April 2003 because his back was “very bad”. Mr Dhillon was working on restricted hours, sorting small letters in April 2003. He said that during April 2003 his back was “worsening”, and stated that he developed pain in his right leg too. The leg became numb he said.
Mr Dhillon was questioned about his ability to travel to India in October 2002, and November 2002, and during 2003, which he said were in connection with his father’s illness, and subsequent death. He agreed he had been able to undertake the journeys but said that they were necessary because they had been to see his father, but said that he had problems with his back, nevertheless. I noted that the first trip was in October 2002 shortly after the incident of 16 September 2002, and before the incident of 24 October 2002. The second trip was in November 2002, and not long after the incident of 24 October 2002.
Mr Dhillon said that he continued working until 4 June 2004 after compensation was discontinued on 23 April 2003. He said that on 4 June 2004, the manager changed his shift to an impossible time in the middle of the night (1 – 3 am), when he had no transport because his wife worked at a different time, and they had only one car. He said that at a meeting on 21 April 2005, he offered to work an hour or two a day if he could do so during the day, but that this was refused. Finally, in August 2005, he commenced a part-time return to work.
Mr Dhillon told me that his back has become “worse and worse” since 4 June 2004. He said that he has pain in his back, and right leg and numbness. He said that he can stand or sit for 10 to 20 minutes, and he can drive, and can walk for a similar short time, but has great difficulties with stairs, and with bending and lifting. Mr Dhillon said that he can shower and dress himself and assists with shopping but not carrying the shopping. The Applicant said that his social life consists of going to the temple because he can meditate there and feel a little relaxed.
Mr Dhillon said that he currently suffers back pain, and his back “becomes stiff”. “… And this pain is quite sharp sometimes. And I have got pain in my feet, tingling pain, and also the pain radiates towards my legs. …”
I turned then to consider the medical evidence in order to decide whether Mr Dhillon is entitled to further compensation after 23 April 2003 for soft tissue injury of the lower back. Initially Mr Dhillon did not tell Professor Sambrook and Drs Carr, Maxwell, Wallace and Gliksman about the 1999 incidents of back and leg pain so that their early reports were prepared on the basis of incorrect history, and are accordingly of limited value. Certain of the medical practitioners were subsequently given the information regarding the 1999 episode, and asked to give additional reports. Professor Sambrook, Drs Carr and Maxwell were the main medical witnesses in that regard.
MEDICAL EVIDENCE
Once Dr Chugh’s medical notes had been disclosed, Mr Dhillon tried to play down the effect of his pre-existing degenerative back condition. I noted however Dr Chugh had recorded that on 24 September 1999 Mr Dhillon had presented with acute lumbago, which is lumbar back pain, with pain in his calf. Dr Carr commented as follows regarding lumbago.
“Acute lumbago usually means very bad back pain. It’s more severe than just backache, and often there’s a tilt in the lumbar spine associated with it, … And the referred pain in the calf usually means that something is pressing on a nerve, and that usual something is a disc prolapse.”
I noted from the report of Dr Carr (Exhibit R4), that the X-ray report of Mr Dhillon taken on 28 September 1999 stated as follows:
“Posterior osteophytes involving inferior posterior endplate of L5, minor L5/s1 disc space narrowing. The posterior elements were normal, sacroiliac joints were normal.”
In his oral evidence, Dr Carr opined as follows:
“His diagnosis is degenerative lumbosacral, that’s L5/S1 disc disease, that was present on X-rays in 1999 and right sciatica associated with a degenerative disc protrusion as L5/S1 .
Dr Carr concluded that the episodes of back and sciatic pain Mr Dhillon reported in 2002 and 2003 at work were temporary aggravations of Mr Dhillon’s underlying condition which could be expected to last from two days to six to eight weeks.
Professor Sambrook did not change his view about the Applicant upon learning that Mr Dhillon had reported back pain to Dr Chugh in 1999. He considered that Mr Dhillon suffered a frank disc prolapse at work on a background of mild degenerative disease at L5/S1. I find that that is because Professor Sambrook relied on information that Mr Dhillon first developed leg pain in February 2003. He stated:
“I still consider that Mr Dhillon suffers from disc degeneration at L5/S1 with disc prolapse impinging upon the right S1 nerve root. The new information clearly indicates there was some constitutional degeneration prior to the first recorded episode with Australia Post in 2002. However Mr Dhillon did not develop leg pain until February 2003. So the history would seem to indicate that around this time he suffered a frank disc prolapse on a background of mild degenerative disc disease at L5/S1.”
Unfortunately it seems that Professor Sambrook either had no knowledge of the leg pain Mr Dhillon reported in 1999, or that he relied only on the report of Dr Papatheodorakis regarding the first reports of leg pain which Dr Papatheodorakis recorded in February 2003. Accordingly I was not able to accept Professor Sambrook’s opinion because I was mindful that Dr Chugh recorded pain in Mr Dhillon’s calf in September 1999, and that Dr Gilhotra prescribed Tofranil, a drug for depression and painful legs, and support stockings in June 2002, well before Dr Papatheodorakis recorded leg pain in February 2003.
I noted Dr Wallace also did not change his opinion after being informed about Mr Dhillon’s 1999 back and leg pain. He considered that the Applicant’s present spinal disability was not related to the 1999 lumbar back pain. Dr Wallace opined that the 1999 episode was minor because the Applicant did not have any time off work or further problems until 2002.
Dr Maxwell considered that the aggravations, (soft tissue injuries) which Mr Dhillon suffered to his degenerative spine were generally of a four week duration. Dr Carr estimated anything up to eight weeks.Dr Maxwell who described Mr Dhillon’s condition as having osteophytes protruding from the vertebral body of L5 and from the sacrum, disagreed with Dr Doust who, on the basis of the radiology, diagnosed a disc prolapse of the L5/S1 disc to the right of the midline.
I was satisfied from the reports of Drs Carr and Maxwell which I preferred over the report of Professor Sambrook which was made on incorrect facts regarding the commencement of leg pain, that Mr Dhillon suffered a degenerative lumbosacral condition, that is L5/S1 disc disease that was present on X-rays in 1999, and right sided sciatica associated with a degenerative disc protrusion as L5/S1.
I have taken into account Mr Dhillon’s reports of back and leg pain, and accept that he has suffered aggravations of his degenerative spine. I have noted that Dr Carr agreed that a “bad back” and sciatica, once rendered symptomatic, would respond to triggers such as lifting and twisting. He emphasised the fact that every person is different, and that three or four exacerbations a year could occur in a person with a back problem. I was satisfied from the evidence before me that any episodes of back pain which Mr Dhillon suffered in 2002 and 2003 were aggravations of his degenerative back condition which are generally of a four to six, or eight week duration (Drs Carr, Maxwell).
Accordingly, when Mr Dhillon’s compensation payments were stopped on 23 April 2003, any effects of aggravations suffered on 16 September 2002, 24 October 2002 or 11 February 2003 should have ceased. Clearly if Mr Dhillon has future aggravations, they will have to be dealt with on a case by case basis.
WHETHER MR DHILLON IS ENTITLED TO COMPENSATION FOR A LOW BACK CONDITION AS A RESULT OF AN INCIDENT ON 11 FEBRUARY 2003
In Matter N2005/1484 liability for a claim by Mr Dhillon for his low back condition arising out of an incident on 11 February 2003 was refused. I had to decide whether the Respondent should compensate Mr Dhillon for a low back condition as a result of an incident at work on 11 February 2003.
I was mindful that Mr Dhillon made an incident report on 11 February 2003 in which he wrote “While loading some large letter boxes on the first floor on the Colby after finishing the sorting at group one I felt severe pain in my back”. He consulted Dr Papatheodorakis on the same day, who certified him fit for work, with a review on 18 February 2003. On review, Dr Papatheodorakis certified Mr Dhillon fit for full duties with no restrictions. This was followed on 7 March 2003 with a CT scan of the thoracic and lumbosacral spine, the lumbosacral report stating: “There is a right posterior L5-S1 disc herniation which is impinging the right S1 nerve root…”
From the reports of the doctors commented upon above, I am mindful that the incident of 11 February 2003 is likely to have been an aggravation of Mr Dhillon’s degenerative condition which caused him pain for a short period, likely to have been between four and eight weeks. On 2 April 2003 Dr Papatheodorakis recommended that Mr Dhillon be given breaks from prolonged standing. In July 2003, he recommended restrictions on lifting.
I noted that Mr Dhillon made another incident report on 3 April 2003 in which he wrote: “While sorting express mail I felt pain in my back. Already I am on compensation due to my back pain & I am under treatment. My doctor asked me not to stand longer. Pain after more than 3 hours standing.”
I was mindful that Mr Dhillon may have multiple incident reports and claims before his employer. I was satisfied from the evidence that the claim of 11 February 2003 was related to an aggravation of Mr Dhillon degenerative spine which was likely to have been of a few weeks’ duration (Drs Carr and Maxwell). At the time of the claim regarding the incident on 11 February 2003, the Applicant was already on compensation for his 2002 injuries, and the compensation which ceased on 23 April 2003 covered that period. I was satisfied further compensation was not payable.
WHETHER THE RESPONDENT SHOULD COMPENSATE MR DHILLON FOR INJURY TO HIS LOWER BACK ARISING AS A RESULT OF THE NATURE AND CONDITIONS OF EMPLOYMENT BETWEEN 16 SEPTEMBER 2002 AND 3 APRIL 2003
In Matter N2005/1380 liability for a claim by Mr Dhillon for his low back condition arising as a result of the nature and conditions of his employment from 16 September 2002 to 3 April 2003 was refused by the Respondent on 26 October 2005. I had to decide whether the Respondent should compensate Mr Dhillon for injury to his lower back arising as a result of the nature and conditions of employment between 16 September 2002 and 3 April 2003.
In that connection I was mindful of Mr Dhillon’s evidence regarding his duties as a night mail sorter. He described the boxes or Eskies he lifted which he said could weigh up to 15 or 30 kgs each depending on the type of mail, (e.g. magazines), and amount of content in an Esky. The Esky to which he referred was tendered in evidence and is Exhibit R14. Mr Dhillon said that he could be lifting 20 to 30 boxes within one and a half hours or 150 boxes a shift.
I was also mindful of the evidence of Mr Rajesh Kumar, Acting Postal Delivery Controller who indicated that Eskies used in sorting mail generally weighed 10 – 12 kgs, and were not permitted to weigh more than 15 or 16 kgs. He said that there were scales provided for checking the weight. He said that he had worked with Eskies for seven or eight years, dating back to 1998, and had been a supervisor. He gave evidence that if occasionally an Esky had been loaded beyond that weight, it would arrive from another mail centre clearly marked for handling by two people. He added that in the eight years he had worked at Australia Post, he had only ever seen one container arrive from a mail centre so marked. Mr Kumar also said the weight of the Eskies was made lighter by unloading their contents into other Eskies.
Mr Kumar also said that the workers were rotated into various jobs during a shift, and that they might spend two hours a shift working on Eskies, handling some 20 – 25 in that time, but did not spend the whole shift lifting Eskies.
I then considered the effect of Mr Dhillon’s work duties on his degenerative lumbar spine, and in doing so reviewed the relevant medical evidence.
Dr Carr when questioned about the impact of Mr Dhillon’s work on his lumbar spine, opined that a “bad back” and sciatica, once rendered symptomatic, would respond to triggers such as lifting and twisting. He emphasised the fact that every person was different, and that three or four exacerbations a year could occur in a person with a back problem. Dr Carr concluded in his report of 13 July 2004, that at least part of Mr Dhillon’s ongoing back symptoms related to his work with Australia Post and the incidents of 16 September 2002, 24 October 2002, 11 February 2003, and 3 April 2003, superimposed upon degenerative disc disease (disc degeneration and disc prolapse).
Dr Maxwell who like Dr Carr had not been told by Mr Dhillon about the 1999 episodes of lumbar back and leg pain, concluded once he knew, that the Applicant suffered a chronic degenerative condition in 1999. Dr Maxwell opined that Mr Dhillon did not suffer a disc prolapse because the protrusion did not extend beyond the osteophytes. Dr Maxwell agreed that exacerbations could occur from time to time in a degenerate spine and further that bending and lifting heavy weights with twisting could cause an acute prolapse superimposed on a degenerative spine. I noted however that Mr Dhillon was not required to lift weights heavier than 15 or 16 kgs.
In his first report, Dr Wallace opined that Mr Dhillon had suffered a musculo ligamentous strain in his lumbar spine on 16 September 2002 followed by exacerbations at work on 24 October 2002 and 11 February 2003. He attributed Mr Dhillon’s “ongoing symptoms” which he described in his 2004 report, as “related to a musculoligamentous strain at his lumbar spine, right-sided disc protrusion at the L5/S1 level and a right-sided S1 radiculopathy. His injuries are consistent with the mechanism described of repetitive heavy lifting incidents in the course of his duties at work with Australia Post.”
Dr Wallace concluded in his July 2005 report that as a result of knowing about Mr Dhillon’s 1999 back pain and noting the results of the 1999 X-rays, he would not alter the opinions expressed in his 2004 report.
I noted Professor Sambrook opined that intervertebral disc degeneration and prolapse can occur as a consequence of age related degeneration and genetic factors as well as mechanical influences and trauma. He added that occupations which involve repetitive heavy lifting and twisting may be associated with disc degeneration and herniation.
I noted that Dr Clark who is an orthopaedic surgeon, opined on 14 August 2003, (Exhibit A7), that Mr Dhillon appeared to have sustained a disc protrusion following the nature and conditions of his employment. He stated that: “In the past he denied any previous similar complaints”. It appears that Dr Clark was not informed of the 1999 lumbar back and leg pain, and the results of the 1999 X-rays. In his later report of 3 September 2003 (Exhibit A8), Dr Clark reported that he had advised Mr Dhillon about back care and physiotherapy, and opined that his condition should “settle along conservative lines” (rather than surgery). He also stated that the main problem appeared to be at work and recommended that Mr Dhillon avoid heavy lifting, bending or straining.
I noted that the evidence of Mr Dhillon and Mr Kumar regarding the weight of Eskies was at odds, and further, that Mr Dhillon gave divergent evidence regarding the weight of Eskies and his duties to various doctors. I did not accept Mr Dhillon’s evidence regarding the weight of the containers he had to lift. I was satisfied from the evidence that his job generally entailed lifting 10 - 12 kgs, and not more than 16 kgs. I was satisfied that Mr Dhillon was exaggerating the weights of the Eskies, and preferred the evidence of Mr Kumar with regard to the workplace.
I noted also that during the course of Mr Dhillon’s evidence in chief, Ms Sibley asked him in a leading way regarding whether there was twisting involved, to which he of course replied that his work involved twisting. I was not satisfied that Mr Dhillon had to twist to deal with Eskies.
The evidence provided by Dr Chugh’s notes was that Mr Dhillon suffered a degenerative lumbar spine back in 1999 with a protrusion which was causing nerve root irritation and right leg pain. In summary, the evidence of the abovenamed doctors was that the type of duties Mr Dhillon’s position entailed could cause aggravations. I was able to conclude from the medical evidence of Drs Carr and Maxwell that such aggravations upon Mr Dhillon’s spine would be expected to settle after four to eight weeks.
I was mindful also that Dr Papatheodorakis who saw Mr Dhillon over quite a period, diagnosed a soft tissue injury which he advised “despite the slow resolution of his symptoms, I would anticipate that there would be complete recovery over the next several months”. I was satisfied that a person with the degenerative spine of the Applicant could suffer aggravations from time to time.
I was also satisfied from the evidence which included Mr Dhillon’s history of back and leg pain in 1999, and the results of the 1999 X-rays, the evidence regarding weights he had to lift in the workplace, and the rotation of duties, that Mr Dhillon’s claim regarding injury as result of the nature and conditions of his work between 16 September 2002 and 3 April 2003 could not succeed.
THE ISSUE OF PERMANENT IMPAIRMENT
In Matter N2003/1622 liability was accepted for Mr Dhillon’s soft tissue injury to his lower back incurred on 16 September 2002 and/or 24 October 2002. The reviewable decision dated 11 August 2003 ceased payment of compensation for all forms of back injury, including permanent impairment, on 23 April 2003.
For permanent impairment to apply, Mr Dhillon has to satisfy conditions pursuant to sections 24 and 27 of the Act. As relevant those sections provide:
“Section 24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purposes of determining whether an impairment is permanent; Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
….
Section 27 Compensation for non-economic loss
(1)Where an injury to an employee results in permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
….”
The legislation requires that permanent impairment can only be assessed once an injury has become permanent. Professor Sambrook opined that although Mr Dhillon had been getting episodes of back pain since September 2002, the pain had been constant since the end of the first quarter of 2003, but continued by stating that it was not clear whether the condition would continue indefinitely, although without rehabilitation it was likely to continue into the forseeable future. I have noted Professor Sambrook’s view that it was not clear whether Mr Dhillon’s condition would continue indefinitely, and draw from that statement the conclusion that he was not satisfied the Applicant’s condition was permanent. In any case I could not fully rely on Dr Sambrook’s opinion because the history Mr Dhillon gave him was incorrect in that Mr Dhillon did not disclose his 1999 back and leg pain. Even after Professor Sambrook had been informed about the 1999 episodes of back pain, his report incorrectly indicated he thought leg pain was first recorded in February 2003.
Dr Wallace opined in his report of 2 February 2004, (Exhibit A3), that Mr Dhillon’s condition had stabilised, that all reasonable rehabilitative treatment (which he did not specify), had been undertaken, and that Mr Dhillon suffered a whole person impairment of the lumbar spine of 20 percent according to the Comcare Guides.
Dr Gliksman in his report of 9 November 2004 (Exhibit A5), referred to surgery for Mr Dhillon, and I could not therefore be satisfied that he considered the Applicant permanently impaired for purposes of the relevant legislation.
As the evidence of the doctors whom I have preferred, (Papatheodorakis, Maxwell and Carr) have opined that Mr Dhillon’s incidents at work were soft tissue aggravations of his degenerative lumbar spine (which I am mindful he has had at least since 1999), which resolve either within four – eight weeks, I am unable to find that Mr Dhillon has a permanent impairment which is compensable. Accordingly, regardless of the ratings given by various doctors, that claim must fail.
DECISION
The Tribunal affirms the decisions under review in Matters N2003/1622, N2005/1380 and N2005/1484.
Costs may not be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:
Associate
Dates of Hearing 13 & 14 July 2005, 24, 25 November 2005
Date ofDecision 14 March 2006
Solicitor for the ApplicantMr T Mannah, Carroll & O’Dea Lawyers
Counsel for the ApplicantMs K Sibley
Counsel for the Respondent Mr G JohnsonSolicitor for the Respondent Mr L Forner, Forners Solicitors & Consultants
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