Felix Taranto and John Holland Pty Ltd
[2014] AATA 848
•12 November 2014
[2014] AATA 848
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/5308, 2013/5669, 2013/5716, 2013/5732 and 2013/6514
Re
Felix Taranto
APPLICANT
And
John Holland Pty Ltd
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 12 November 2014 Place Sydney The decisions under review are affirmed.
........................[sgd]................................................
Ms G Ettinger, Senior Member
CATCHWORDS
WORKERS COMPENSATION – Whether condition is an injury – Prior injuries and conditions - Injuries not disclosed on pre-employment form - Whether wilful and false representation – Whether proposed surgery in relation to injury – Whether surgery was reasonable to obtain in the circumstances – Omission on pre-employment form does not constitute wilful and false representation – Decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 7(7), 14, 16 and 19
CASES
Brown v Australian Postal Corporation [2014] AATA 261
Comcare v Mooi (1996) 69 FCR 439
Comcare v Porter (1996) 70 FCR 139
Commonwealth v Smith (1989) 18 ALD 224
Havnen v Comcare [2010] AATA 535
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
Makin and Comcare [2010] AATA 432Sheather-Smith and Australian Postal Corporation [2005] AATA 1001
REASONS FOR DECISION
Ms G Ettinger, Senior Member
12 November 2014
SUMMARY
Mr Felix Taranto, who is 49 years old, commenced fulltime employment with the John Holland Pty Ltd (John Holland), as a labourer on 12 March 2012. He had worked as a subcontractor for the Company since 2007. In his pre-employment medical history questionnaire completed in February 2012, he disclosed that he had been involved in a motor vehicle accident some months previously, in which he sustained no injuries, and had no time off work. He also disclosed a hernia two years prior, and an ankle injury
15 years prior. He indicated that he had never experienced a back injury or back problem. Unfortunately he did not disclose all the events which have impacted on his health either to his employer or to his doctors. I have detailed those events in the paragraphs below. They impact upon Mr Taranto’s credit, and the opinions of the doctors who examined him.
On 12 April 2012, Mr Taranto injured his back at work in the process of removing pegs from a silt fence. The forms he signed for the employer reporting the injury, which he says were filled in by his employer, indicated that the incident had occurred on
16 April 2012. Mr Taranto said that he signed the forms with the incorrect date because he was afraid he might lose his job if he objected. John Holland, the Respondent in these proceedings, accepted liability for aggravation of multilevel degenerative changes in the lumbar spine sustained on 16 April 2012, pursuant to section 14(1) of the
Safety Rehabilitation and Compensation Act 1988(the Act).
In matter 2013/5716, the Respondent, in a decision of 25 October 2013, ceased section 16 and section 19 entitlements for back injury as at 1 October 2013. In that reviewable decision, the Respondent held that as at 1 October 2013, Mr Taranto no longer suffered the effects of his accepted back injury, administratively described in this determination by the Respondent as strained lumbar spine with referred pain to RS1 nerve root sustained on 16 April 2012. The Applicant claims that his accepted 16 April 2012 back injury continues to date, and that he suffers pain which results in a need for reasonable medical treatment, and also results in incapacity for work.
In matter 2013/5669, Mr Taranto’s claim for back surgery, for L5-S1 Decompression and Fusion with Instrumentation as proposed by Dr Brian Hsu (Adult and Paediatric Spine Surgeon), pursuant to section 16 of the Act was refused on 24 October 2013.
In matter 2012/5308, the Applicant made a claim for fractured left patella incurred on
26 August 2012 which was refused by the Respondent on 8 November 2012. He says it was causally connected to his accepted 16 April 2012 back injury.
In matter 2013/5732, a decision made on 28 October 2013 in regard to medical treatment of a left knee injury pursuant to section 16 of the Act, was refused. The Respondent held that the Applicant did not have a compensable left knee injury for the purposes of the Act.
In matter 2013/6514 the Applicant claimed pursuant to section 14, that he has suffered, and continues to suffer, a psychiatric injury, adjustment disorder/major depressive disorder which has resulted as a sequela to his ongoing accepted 16 April 2012 back injury. In the decision under review dated 6 December 2013, the Respondent refused his claim.
I have affirmed the decisions of the Respondent in each of the matters. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
There are a number of questions with respect to each application which require resolution by the Tribunal. They are summarised as follows:
Application 2013/5716
This application relates to the Applicant’s back injury. The issue for the Tribunal’s determination is whether this condition satisfies the meaning of injury as defined by
section 5A of the Act and, if so, whether the effects of that injury had ceased as at 1 October 2013.The Respondent also raised the question of whether the Applicant’s non-disclosure of prior conditions to his employer amounts to a wilful and false representation within the terms of section 7(7) of the Act.
Application 2013/5669
This application concerns proposed back surgery. If the Applicant’s back injury is accepted as falling within the prescribed definition of an injury, then the Tribunal is required to consider, pursuant to section 16(1) of the Act, whether the proposed back surgery was in relation to the injury, and whether it is reasonable…. to obtain in the circumstances.
Application 2012/5308
This application was made with respect to a left knee injury sustained by the Applicant on 26 August 2012. The Tribunal must determine whether the damage to the knee constitutes an injury for the purposes of section 14(1) of the Act.
Application 2013/5732
If application 2012/5308, concerning the left knee injury, is accepted by the Tribunal, the Tribunal must then consider whether surgery contemplated with respect to that injury was, pursuant to section 16(1) of the Act, in relation to the injury, and whether it is reasonable…. to obtain in the circumstances.
Application 2013/6514
This application relates to a psychiatric injury, specifically an adjustment disorder or a major depressive disorder, and requires the Tribunal to determine whether it is compensable within the terms of section 14(1) of the Act.
LEGISLATIVE ENVIRONMENT
The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 (Cth), in particular sections 4, 7(7), 14, 16, and 19. They follow as relevant:
Section 4 of the Act provides that the definition of an ‘injury’ is to be obtained through reference to section 5A of the Act, which states:
(1) In this Act: "injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
Section 14 of the Act outlines the circumstances in which an employer will be liable for an injury satisfying the definition of section 5A, and states:
Compensation for injuries
(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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
The other relevant provisions for the purposes of the present applications are sections
16 and 19 of the Act. Section 16 provides for reasonable medical treatment for a compensable injury. Section 19 provides for payments for incapacity resulting from a compensable injury. Each of these provisions is considered in greater detail below.
APPLICATION 2013/5716 – BACK INJURY
As already noted above, Mr Taranto injured his back on Thursday 12 April 2012 when he was at work removing pegs from a silt fence. Mr Taranto’s evidence at the Tribunal was that several of the pegs were very tight, and that when he pulled out the penultimate peg, he felt pain in his back radiating down his leg, down to the right testicle, and he injured his back.
He told Dr J Bodel, an orthopaedic surgeon who examined him, and who gave evidence at the Tribunal, that the peg on which he injured his back was loose. Not much turns on that particular detail. However, I noted several other instances to which I shall refer, which demonstrate that Mr Taranto’s evidence was unreliable. He also told Dr Bodel that he had not previously experienced leg or back pain, (which was significant), and which he admitted in cross-examination, was incorrect.
Mr Taranto’s evidence was that he reported the incident of 12 April 2012 to his supervisors when it happened, and that they said: Come in tomorrow. See how you go. He said that accordingly he worked the following two days, had Sunday off, and then consulted his general practitioner. It was not until Monday 17 April, that he consulted Dr Lieng, the company doctor, and told him that the accident had happened the day before, on 16 April 2012.
When asked why he signed forms stating that the incident had taken place on 16 April 2012, (rather than on 12 April 2012), Mr Taranto said that the forms were filled in for him with that date on them, so he signed them as he was afraid of requesting any changes lest he lose his job.
Liability was accepted by the employer for aggravation of multilevel degenerative changes in the lumbar spine. The decision to accept liability was reviewed by the Respondent, and the decision under review is dated 25 October 2013. That reviewable decision affirmed a determination dated 2 October 2013 which found that as at
1 October 2013 the Applicant no longer suffered the effects of his accepted injury, administratively described in this determination by the Respondent as strained lumbar spine with referred pain to RS1 nerve root sustained on 16 April 2012. The determination decided that as at 1 October 2013 the Applicant was not entitled to compensation under section 16 of the Act on the basis that he did not reasonably require medical treatment in relation to his accepted back injury, and that he was not entitled to compensation under section 19 of the Act on the basis that he did not suffer an incapacity for work as a result of his accepted back injury.Mr Taranto’s evidence is that following the incident in April 2012, he continues to suffer back pain. He said: It feels like a corkscrew being twisted into my back – my lower back. He said that the pain is always present, but that on some days it does not feel too bad, whereas on others, it radiates to the right testicle, and he gets a shock sensation in his thigh region. He told me that the accident impacted on his life because he is a proud and very motivated person who cannot now do the things he once could. He says that he is dependent on his wife and children to do things for him.
Mr Taranto also told me that following the incident in 2012, he worked on light duties doing traffic monitoring for two to three months, and was then was directed to work from home. He described it as follows: They approached me and said ‘That’s it. Enough’s enough. We want you off site’. They ordered me off site, to stay home and get better. He said that that proved very unsatisfactory, as he was at home for three months, and not provided with home-based work.
Mr Taranto said that before he was due to return to work, he suffered the flu. What happened next was that he reported a fall at home, on 26 August 2012, in which he claims he fractured his (left knee) patella.
Mr Taranto’s accidents incurred prior to 12 April 2012
Before I deal further with medical evidence, I shall discuss accidents which Mr Taranto suffered, being the motor vehicle and motor cycle accidents which have impacted on his back, his health, and the reporting of which have impacted upon his credit at the Tribunal. This failure to report has also impacted the opinions of the doctors who examined him, to whom he did not disclose these accidents.
At the Tribunal Mr Taranto was reluctant to accept that he had deliberately omitted informing the Respondent about previous accidents in his pre-employment form in February 2012. He tried to explain it away by saying that he did not think it was relevant to disclose them to his future employer. He disclosed only that he had been involved in a motor vehicle accident some seven months prior to February 2012, but stated that he sustained no injuries, and had no time off work. He also disclosed having suffered a hernia two years earlier, and an ankle injury 15 years previously. He did not disclose that the ankle injury required serious medical intervention and hospitalisation, and that it occurred as part of a motorbike accident. On the pre-employment form, Mr Taranto also indicated that he had never before experienced a back injury, back pain or back problems; neither that he had ever suffered from a joint injury, pain or swelling (as indicated in his doctor’s clinical notes).
Mr Taranto told me that he did not inform the doctors who examined him about those accidents because they did not ask him. I noted however from Dr Harvey’s report, that Mr Taranto had recalled certain accidents which occurred before he was employed by the Respondent, and told Dr Harvey about them. Mr Taranto said that regardless of the accidents, he was always able to do full-time labouring jobs, and it was only after the April 2012 incident, that he has suffered continuous back pain, and what he has claimed are the sequelae.
Mr Taranto’s injuries incurred prior to his permanent employment with the Respondent can be summarised as follows:
·January 1998 – persistent lower back pain resulting from a single car motor vehicle accident, where the Applicant drove into a tree. Mr Taranto gave evidence that he had sought treatment from Dr Azmir, in the form of three or four hydrotherapy treatments. In his evidence, Mr Taranto noted that, ‘I took a couple of days off because I had some (sic) sore back…. I think I did about a week’s worth of light duties and then after that I went back to normal duties… I think I stayed with the company for about another three months and then I left’. During cross-examination, in response to questions as to why he failed to disclose this prior accident with his treating doctors, he stated that he was never asked if he had any previous injuries and that his back injury had never stopped him.
·June 1998 – an injury arising from a motorcycle accident where the brake lever went through Mr Taranto’s ankle, resulting in a fracture of his right foot and ankle. He stated that he spent three or four weeks in hospital, and a further three or four months at home undergoing rehabilitation. His ankle symptoms persisted till June 2003.
·April 1999 – stress and anxiety. The clinical notes of Dr Michael Azmir recorded: ‘complaints of being under stress, short tempered, not under control for six weeks, difficulty sleeping, gets tense and anxious, depressed at times’. Mr Taranto denied that he had told Dr Azmir he was anxious and had problems with sleep.
·July 2011 – Mr Taranto was involved in a motor vehicle accident which resulted in lower back pain and a 1-2 day absence from work. The Applicant disclosed this accident in the Pre-employment questionnaire, but did not disclose the nature of the injury and the period of time taken off work.
·October 2011 – sore left knee; knee swollen.
·Osgood-Schlatter’s disease, being an inflammation of the patellar ligament, in both of his knees. Mr Taranto has had this condition since childhood.
In summary, Mr Taranto had medical treatment for his lower back, left knee, right knee, a hernia, and anxiety/stress before March 2012 when he commenced fulltime employment with John Holland. He did not disclose all of those conditions and the treatment he received in his pre-employment form in February 2012. In the paragraphs which follow, I deal with the medical evidence.
Medical evidence
Dr Tom Lieng, a general practitioner, saw Mr Taranto after his back and leg injuries on the 24 April and 4 and 9 May 2012. Following a review by Dr Machart, who recommended that a right L5 nerve root block was not a good idea because Mr Taranto’s pain was not typically radicular, Dr Lieng referred him to Professor James van Gelder (neurosurgery and spine surgery) for an opinion and management suggestions. Dr Lieng dealt with the Respondent in regard to rehabilitation.
Dr Azmir, who has been Mr Taranto’s general practitioner for 20 years, gave oral evidence at the Tribunal. He told me that he had been treating Mr Taranto for chronic ongoing lower back pain, and pain in his testes. He also mentioned Mr Taranto’s left knee problem for which he had surgery in 2013, and his ongoing depression.
Professor James van Gelder whose specialities are neurosurgery and spine surgery, reported on examining Mr Taranto on 25 July 2012. He noted that Mr Taranto had by then reported three months of continuous severe back pain. Professor van Gelder remarked that he did not obtain a clear history of sciatica, and did not identify any neurological signs in the legs. He noted further that symptoms and signs appeared severe and disproportionate to changes shown on the radiological studies and bone scan. He recommended Mr Taranto be treated with reassurance about the investigations, a trial of hydrotherapy, and a trial of alternative medication such as a short period on Diazepam.
Dr Brian Hsu
, a spine surgeon, provided a report dated 9 October 2012. In it, he opined that Mr Taranto demonstrated back and leg pain which could be related to lumbar disc pathology. He remarked however that the symptoms around his right groin and symptoms of giving way did not clearly fit with the radiographic findings. On
9 October 2012, and again in December 2012, he recommended a trial of diagnostic injections in the lower lumbar spine as both a diagnostic and therapeutic intervention.
A report of Dr Hsu dated 13 February 2013 to Dr Lieng reported on his review of Mr Taranto following his L5/S1 right sided foraminal injection. He stated that the injection gave Mr Taranto a significant degree of relief and this has lasted him approximately two months. In a later report dated 5 March 2013, Dr Hsu stated that the injection gave
Mr Taranto excellent relief for a short period. He recommended L5/S1 decompression or decompression and fusion surgery. However, I note that Mr Taranto told Dr Harvey that the effects of the injection provided short term relief only, perhaps 24 hours. In cross-examination he agreed he had told doctors that the beneficial effects of the injection were of short duration.
Dr Hsu also made a further report dated 22 July 2013, (Exhibit A2), but was unavailable to give evidence at the Tribunal. Importantly, he was the only doctor who recommended that Mr Taranto have back surgery. Dr Bodel and Dr Harvey both strongly opposed surgery, with Dr Harvey being particularly emphatic about his view.
Dr Frank Machart, an orthopaedic surgeon, provided a report dated 19 December 2012. Even though he did not know of Mr Taranto’s previous injuries until July 2013, his diagnosis was that Mr Taranto suffered from an aggravation of a pre-existing three level degenerative change, which was also age-related. He recommended Mr Taranto not do heavy work.
Dr Machart also provided a report dated 9 July 2013. He stated that he had not been provided with information regarding accidents prior to the incident of 12 April 2012 which Mr Taranto had experienced. He commented upon the medical reports sent to him, as well as:
·the motor vehicle accident Mr Taranto incurred on 16 January 1998 (symptoms still not resolved by 31 January 1998);
·the motor vehicle accident of 17 July 2011; x-ray of the lumbar spine showing moderately severe degenerative changes at L3/4 and L4/5; and
·the motor vehicle accident of 27 July 2011 which resulted in neck pain.
Dr Machart opined that the incident of April 2012 resulted in trauma to the lumbar spine, and that the multilevel degenerative disc disease was aggravated on the day of the incident. As others suggested, he too suggested that Mr Taranto should only do light duties, core strength building, and take anti-inflammatories. Dr Machart opined that he could not identify radiculopathy, and did not recommend surgical intervention.
Concurrent evidence
Dr J Bodel and Dr F Harvey both orthopaedic surgeons gave concurrent evidence. Before the doctors commenced their evidence, I provided a summary of Mr Taranto’s evidence at the Tribunal which included his admissions regarding the non-reporting of motor vehicle and motor bike accidents in his pre-employment form. I noted that Dr Bodel had recorded in his report of 24 May 2013, under ‘Past Medical History’, that Mr Taranto reported he had no previous leg or back pain, or left knee pain. In his discussion with
Dr Harvey, as noted in the report of 3 July 2013, Mr Taranto had disclosed a motor vehicle and motor bike accident in 1998, a further motor vehicle accident in 2011, a hernia and gout diagnosed in 2010.
Dr Bodel noted that an MRI taken of Mr Taranto’s lumbar spine on 9 May 2012 showed a central disc prolapse at the L4/5 level and a right sided and central disc prolapse at the L5/S1 level. He also noted that there was not definite nerve root compromise at any level. He opined that Mr Taranto has mechanical backache as a consequence of the original injury which aggravated his pre-existing degenerative condition at the lumbosacral junction. I noted that there was no available MRI taken prior to the incident of 12 April 2012.
Dr Bodel opined that in the April 2012 incident, Mr Taranto injured the L4/5 area of an already degenerative back. Both doctors agreed that Mr Taranto has a degenerative spine, and that there were no neurological signs in his lower limbs (even though he reported pain); further that the symptoms he reported did not match up with findings on the MRI. Dr Harvey did not agree with Dr Bodel that some disc damage could have occurred in the incident on 12 April 2012. He considered any changes in the spine were due to degenerative changes.
In his report, Dr Harvey had reviewed a large number of radiological tests, and commented that in the injury of 12 April 2012 Mr Taranto may have suffered soft tissue injury to the lower back, opining also that there were features on his presentation which would indicate a very large non-organic component to his symptoms. He opined that, often, low back pain cannot be seen on imaging.
Dr Harvey recorded that Mr Taranto had no history of anxiety or depression in the past.
Both Drs Bodel and Harvey disagreed with Dr Hsu, (a spinal surgeon), that surgery should be undertaken. Dr Harvey commented that there is not a surgical solution to every pain problem.
Drs Harvey and Machart recommended that Mr Taranto be assisted with a self-directed exercise program, noting that he would not be fit for heavy work involving lifting or bending. However, in his report, Dr Harvey opined that Mr Taranto would be able to do full time work of a suitable kind, with reassurance and encouragement to improve his state of physical fitness and return to normal activities.
The Tribunal’s conclusions regarding the incident of 12 April 2012
In coming to a decision regarding whether to affirm, vary or set aside the decision of the Respondent dated 25 October 2013, which held that as at 1 October 2013 the Applicant no longer suffered the effects of his accepted injury incurred on April 2012, I have taken into account Mr Taranto’s evidence and that of the doctors who have treated and examined him. The determination decided that as at 1 October 2013 the Applicant was not entitled to compensation under section 16 of the Act on the basis that he did not reasonably require medical treatment in relation to his accepted back injury, and that he was not entitled to compensation under section 19 of the Act on the basis that he did not suffer an incapacity for work as a result of his accepted back injury.
I am mindful of the Applicant’s evidence that he continues to suffer back pain. I am also mindful that the majority of the medical opinion (Drs Azmir, Lieng, Machart, Bodel Harvey), is in agreement that what occurred on 12 April 2012 when Mr Taranto was working on removing a silt fence, and pulling out a peg was that he aggravated his degenerative spine.
Dr Bodel noted that an MRI taken of Mr Taranto’s lumbar spine on 9 May 2012 showed a central disc prolapse at the L4/5 level and a right sided and central disc prolapse at the L5/S1 level. He noted also that there was no definite nerve root compromise at any level, as agreed by Dr Harvey.
Dr Bodel’s opinion was that Mr Taranto suffers mechanical back pain, whilst
Dr Harvey’s opinion was he could have suffered a soft tissue injury on 12 April 2012, and that was that there is a very large non-organic component to his complaint.
Drs Machart and Harvey opined that there may be non-organic factors contributing to the expression of the severity and discomfort Mr Taranto expressed. I have accepted that.The Respondent considered the effects of the injury were temporary and had resolved by 1 October 2013. I agree that this is supported by the fact that second to the MRI and the medical opinion, Mr Taranto did not suffer any specific injury to any of his lumbar discs which would have resulted in radicular symptoms in the lower limbs. The fact that the benefits of Dr Hsu’s injections in December 2012 were very transient, lasting only
24 hours according to Mr Taranto, supports the opinion that Mr Taranto did not suffer specific injury to any of his lumbar discs in the incident of 12 April 2012.I am mindful that because of industrial and rehabilitation issues Mr Taranto’s return to work after the April 2012 incident did not proceed smoothly, and that when he was to return to work he suffered the flu, followed by the fall on 26 August 2012 which involved his left knee. His back had improved and he was ready to return by then.
I am satisfied from the medical evidence that the effects of the aggravation of Mr Taranto’s degenerative spine or his soft tissue injury incurred on 12 April 2012 had resolved by 1 October 2013, and that there was no present entitlement from that date to compensation under section 16 of the Act on the basis that he did not reasonably require medical treatment in relation to his back injury. I also find that he was not entitled to compensation under section 19 of the Act, on the basis that he did not suffer an incapacity for work as a result of his accepted back injury.
Section 7(7) of the Act
The Respondent put in issue whether Mr Taranto’s back injury in April 2012, for which liability had been accepted, is a statutory injury because of the operation of section 7(7) of the Act. Section 7(7) provides that:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purpose of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered from that disease.
Mr Dube submitted that Mr Taranto had admitted in cross-examination to making false declarations on his pre-employment medical questionnaire, and that the declarations were wilful because he knew they were false, and he did not want to disclose the information to the Respondent.
In that regard, I noted parts of the exchange in cross-examination as follows:
Mr Dube: So, Mr Taranto, would you agree with me that prior to commencing employment with John Holland in March 2012 you’d had a motor car accident in 1998, you’d had a motor bike accident in 1998 and you’d had a motor car accident again in July 2011?
Mr Taranto: Yes
Mr Dube: … prior to commencing employment with John Holland in March 2012 you had sought and obtained medical treatment in respect of complaints about pain in your lower back, your left knee, your right knee, a hernia problem and some symptoms of stress and anxiety?
Mr Taranto: Yes, I guess so.
…
Mr Dube: So in filling out this form you knew that you’d seen your GP for problems with your back. You knew you’d seen your GP for problems with your knee, but in your mind, because at the time you filled out the form you didn’t think you had any difficulties, you decided it wasn’t relevant to tell John Holland
Mr Taranto: That’s correct – Yes
Mr Dube: So you knew the answers you were giving were false and you deliberately gave false answers because you didn’t think it was relevant for John Holland to know?
Mr Taranto: I didn’t think it was relevant at the time, no.
The cross-examination regarding the state of mind of Mr Taranto, and what he disclosed to John Holland in his pre-employment form, was extensive. Mr Dube submitted that, as indicated by Mr Black, in order for section 7(7) to operate, there needs to be a disease or an aggravation in the terms of the legislation, and the employee needs to have, at any time, in connection with their employment, made a wilful and a false representation that they don’t suffer from the disease.
Mr Dube submitted pursuant to Comcare v Porter (1996) 70 FCR 139 and in reliance on Dr Azmir’s clinical notes, and noting Mr Taranto’s evidence regarding his false declarations made to his employer, establishes that Mr Taranto’s withholding of the information from his employer, regarding his back and knee, (as discussed above), constituted the making of wilful and false representations contemplated in section 7(7) of the Act.
Mr Dube also submitted that further, in consideration of Mr Black’s submissions regarding the Applicant having been aware of his pre-existing diagnosis, Makin and Comcare [2010] AATA 432 and Sheather-Smith and Australian Postal Corporation [2005] AATA 1001 give guidance in regard to pre-existing diagnosis. He submitted that the Applicant did not need to know the diagnosis of the particular condition, but was required to understand that he had been suffering from difficulties arising in respect of particular areas of his body. He indicated that in Ms Makin's case, she had been diagnosed with schizophrenia, but did not, at the time, know that it was schizophrenia as she had also suffered from depression and anxiety. She had disclosed that she had suffered symptoms of depression and anxiety, but she had not revealed the fact that she had schizophrenia.
Mr Dube noted that the Tribunal in Makin accepted that she had identified she had had this constellation of symptoms, but that was insufficient for section 7(7) to be satisfied. The Tribunal went on to say, in respect of a further form that Ms Makin filled out for the purposes of superannuation, because she had not disclosed the treatment that she had received in respect of those particular conditions that it was a false and wilful representation which was caught by subsection 7(7).
Mr Dube submitted that it was clear Mr Taranto knew that he had back and knee problems which he wilfully withheld from the Respondent. He submitted it was not necessary for him to have been aware that they were called degenerative conditions of the lumbar spine with facet joint deterioration.
Mr Black argued that the argument for the application of section 7(7) of the Act could not be sustained because Mr Taranto had suffered and claimed for a frank injury which occurred in April 2012. That had been accepted as an aggravation of multilevel degenerative changes in the lumbar spine. Mr Black submitted that a frank injury sustained over an underlying disease, (the degenerative back), was still an injury. (see: Health Insurance Commission v Van Reesch (1996) 45 ALD 302).
In addressing the Applicant’s frank injury argument, Mr Dube submitted that Mr Taranto was relying on having suffered a disc prolapse in the incident of 12 April 2012. He acknowledged that Dr Bodel had referred to a possible internal disc disruption in the already abnormal disc, but noted that Dr Bodel’s more emphatic conclusion was that it was an aggravation of the pre-existing degenerative condition. Mr Dube submitted that therefore, Mr Taranto suffered an aggravation of a disease which he had wilfully not disclosed to the employer prior to commencing his employment, and was accordingly caught by section 7(7). He made similar submissions with regard to Mr Taranto’s knee for which investigations were carried out in 2011, revealing a bi-partite patella.
Mr Black submitted further, that in order for the making of a wilful and false representation regarding Mr Taranto suffering a degenerative disease to be made out, he was required to have a precise understanding of the nature of his condition. Mr Black submitted that the evidence did not establish that he did. He noted Mr Taranto had conceded before the Tribunal that he had not replied correctly to questions on the pre-employment forms. However, his belief was that he suffered acute short term pain as a result of motor vehicle accidents in 1998 and 2011.
In coming to a decision regarding the application of section 7(7) of the Act, I have taken into account Mr Taranto’s oral evidence acknowledging that he had completed pre-employment forms in which he had withheld information about his previous medical problems. His credit is challenged because he did not inform his employer as to the prior accidents. However, as I am not satisfied from the evidence he gave, or the medical notes of his general practitioner, that Mr Taranto was aware he was suffering from a disease, being a degenerative spine, when he deliberately failed in his pre-employment form in February 2012, to disclose that between 1998 and 2011, he had knee problems, and problems arising out of two motor vehicle accidents, and a motorbike accident reported only as an ankle injury.
I have considered whether the non-disclosure of prior conditions to Mr Taranto’s employer was a wilful and false representation within the terms of section 7(7). I have considered the cases referred to me, in particular Comcare v Porter. Whilst Mr Taranto has admitted, rather belatedly, that the non-disclosure was deliberate, I am not satisfied that at the time he understood the gravity of the accidents he had suffered, and I am not satisfied that he made wilful and false representations in the terms of section 7(7).
I have also considered the argument of both parties in relation to whether Mr Taranto’s degenerative back was a disease which he should have disclosed in his pre-employment form. I am satisfied from the medical evidence, including that of Dr Bodel, that
Mr Taranto suffered an aggravation of his degenerative spine on 12 April 2012, for which liability was accepted by the Respondent. I accept the argument of the Applicant in that regard.
Accordingly the Respondent’s submissions regarding the application of section 7(7) of the Act to Mr Taranto’s case do not succeed.
APPLICATION 2013/5669 – CLAIM FOR SURGERY, BACK INJURY
The Applicant claimed for surgery pursuant to section 16 of the Act for his accepted aggravation of multilevel degenerative changes in the lumbar spine. The decision under review is dated 24 October 2013. That reviewable decision affirmed a determination dated 7 October 2013, which denied liability under section 16 of the Act for
L5-S1 Decompression and Fusion with Instrumentation as proposed by Dr Brian Hsu (Adult and Paediatric Spine Surgeon) on 19 June 2013.Mr Taranto seeks review of the decision to deny payment for his back surgery.
Mr Taranto consulted Dr Hsu on a number of occasions. His reports are in the
T-documents and at Exhibit A2. On 9 October 2012, and again on December 2012,
Dr Hsu recommended a trial of diagnostic injections in the lower lumbar spine as both a diagnostic and therapeutic intervention.
On 13 February 2013, Dr Hsu writing to Dr Lieng, reported on his review of Mr Taranto following his L5/S1 right side foraminal injection. He stated that the injection gave
Mr Taranto a significant degree of relief and this has lasted him approximately two months. In a later report dated 5 March 2013, Dr Hsu stated that the injection gave Mr Taranto excellent relief for a short period. However, it was the evidence of Mr Taranto that the beneficial effects were of only approximately 24 hours duration.
Dr Machart’s opinion, expressed in his report of 29 June 2012, was that cortisone injections around nerves would not work for a person without radiculopathy (like
Mr Taranto), as the predominant symptoms. Dr Machart opined that he could not identify radiculopathy, and did not recommend surgical intervention. Drs Machart and Harvey also mentioned Mr Taranto should do light duties (not involving lifting or bending), core strength building, and take anti-inflammatories. Professor van Gelder recommended
Mr Taranto be treated with reassurance about the investigations, a trial of hydrotherapy, and a trial of alternative medication such as a short period on Diazepam.
Dr Hsu (who I note is a specialist spinal surgeon) recommended L5/S1 decompression or decompression and fusion surgery as a last resort. Both Drs Bodel and Harvey disagreed with Dr Hsu that surgery should be undertaken, with Dr Harvey commenting that there is not a surgical solution to every pain problem.
The Respondent relied upon the radiological investigations referred to in the reviewable decision, which revealed that Mr Taranto has no evidence of right sided lumbar nerve root compression, but exhibits degenerative changes in his lumbar spine. The Respondent also relied on Dr Harvey’s opinion which was that there were no objective clinical signs of any neurological abnormality in the right lower limb. I note that neither Professor van Gelder nor Dr Bodel could identify any neurological signs in the legs, and noted that
Mr Taranto’s symptoms and signs appeared severe and disproportionate to changes shown on radiological studies and bone scans.
I also note that Drs Bodel, Machart and Harvey were strongly opposed to surgery, and that even Dr Hsu, who recommended it, warned that there was a small chance
Mr Taranto might not obtain any significant benefit.
On that basis, and on the basis that the effects of the April 2012 back injury had resolved by 1 October 2013, the Respondent decided that the surgery proposed by Dr Hsu was not reasonably necessary treatment under the circumstances, and that it not be provided pursuant to section 16 of the Act.
In coming to a decision whether Mr Taranto should be provided with back surgery pursuant to section 16 of the Act, I have taken into account the radiological evidence and the opinions of the doctors noted above, who have stated that there were no objective clinical signs of any neurological abnormality in the right lower limb. Accordingly I prefer the opinions of the Drs Bodel and Harvey, who recommended that surgery not be undertaken, over the recommendations of Dr Hsu.
Accordingly I affirm the decision of the Respondent to refuse back surgery pursuant to section 16 of the Act.
APPLICATION 2012/5308 – LEFT KNEE INJURY
The decision under review is dated 8 November 2012, and affirms a determination dated 19 September 2012 T35 which denied liability under section 14 of the Act for a fractured left patella injury. The Applicant claimed for a left knee injury sustained in a fall at home on 26 August 2012. The Applicant claims that the left knee injury occurred as a sequela of, and is causally connected to, his accepted back injury on 16 April 2012. Mr Taranto’s evidence was that his right leg was weak as a result of his accepted back condition, and that his leg collapsed on him, causing him to fall and fracture his left patella. He gave evidence that he had stepped forward with his right foot onto a sleeper, and his right leg then turned to jelly, causing him to fall on his left leg and fracture his left patella. The Respondent had not paid for the surgery as the condition had not been accepted as arising out of Mr Taranto’s employment.
Dr Lieng diagnosed Mr Taranto with a fractured left patella, arising due to his weak muscle in his right leg. This opinion was confirmed by Dr Azmir, who wrote to the Respondent indicating that Mr Taranto’s employment was a contributing factor to the injury.
In denying the claim, the Respondent noted that Mr Taranto had not disclosed any weakness in his lower limbs, and that his lower back symptoms appeared to have been improving with physiotherapy and hydrotherapy. He was also at the time of the fall on
26 August 2012, actively participating in a return to work program.I am mindful that Mr Taranto has a constitutional condition of bi-partite patella identified by X-rays obtained in October 2011, following a referral by Dr Azmir. Mr Taranto had attended at the doctor, seeking assistance for a swollen and sore left knee. His evidence was that he did not know about the bi-partite patella. He was aware, also as disclosed in his evidence, that he has suffered Osgood-Schlatter’s disease in both knees since childhood.
I have considered the medical opinions upon which the reviewable decision regarding
Mr Taranto’s fall on 26 August 2012 is based. Drs Bodel, Machart and Harvey stated that the weakness Mr Taranto reported in his right leg, and the fall further injuring his constitutional bi-partite patella did not arise out of his degenerative back condition.
I have accepted that.
I am mindful Mr Taranto has undergone surgery for his left knee for which he has paid. I am not able to make the requisite connection that the need for the surgery arose out of a compensable injury. Accordingly the decision under review is affirmed.
APPLICATION 2013/5732 – SURGERY FOR LEFT KNEE INJURY
The Applicant claims that the surgery for his left knee is medical treatment reasonably required in relation to a (presently non-compensable) left knee injury, which occurred as a sequela to his ongoing accepted 16 April 2012 back injury. The decision under review is dated 28 October 2013, which affirmed a determination dated 10 October 2013 denying liability under section 16 of the Act for the surgery.
I have found in the paragraphs above that the injury to Mr Taranto’s left knee is not compensable as the requisite causal connection with his accepted back injury cannot be made. Accordingly, liability for left knee surgery cannot be accepted. I am mindful that Mr Taranto had arthroscopy in November 2013 at his own cost. I affirm the decision under review.
APPLICATION 2013/6514 – PSYCHIATRIC INJURY
The Applicant claims that he has suffered, and continues to suffer, a psychiatric injury which has resulted as a sequela to his accepted April 2012 back injury, and his left knee injury which occurred on 26 August 2012. The decision under review is dated
6 December 2013, which affirmed a determination dated 11 October 2013 that Mr Taranto had not suffered a compensable psychiatric injury pursuant to sections 5A and/or 5B of the Act. Accordingly the Respondent held that he was not entitled to compensation under section 14 of the Act for nervous agitated anxious symptoms.In relation to
Mr Taranto’s psychological problems, I noted that Mr Taranto made a formal complaint about events which occurred between 27 August 2012 and
1 November 2012. They were in the nature of, but not exclusively, to do with interactions with management, not being provided with work to do at home when working from home had been arranged, Mr Taranto’s perception of management not replying to his questions, and other seemingly unpleasant interactions. An investigation was undertaken by management and in the meantime, Mr Taranto lodged a claim for compensation in which he stated that he incurred an injury on 16 April 2012 as a result of continued lies and harassment over the past several months.
Mr Taranto told me that following advice from his employer’s safety officer, he consulted a psychologist in late 2012, and had ten visits paid for by Medicare in early 2013. He said that following that period, he paid for treatment himself, but that recently, he had another ten sessions through Medicare.
Mr Taranto also gave evidence that he had seen Drs Inglis Synnott and Selwyn Smith, both psychiatrists, and other doctors.
Following an assessment by Dr Synnott in May 2013, the Respondent acknowledged the diagnosis, being adjustment disorder with anxiety and depressed mood, noting the doctor’s opinion that a diagnosis of major depressive disorder with anxiety was equally valid. In the decision of 11 October 2013, the Respondent noted that the complaints Mr Taranto made to Dr Synnott, and to what he attributed his psychiatric illness, were, according to Dr Synnott: … first developed significant psychological symptoms in August 2012 because of bullying and harassment by management specifically their attitude towards (you) after the physical injuries. Specifically you said that you felt under pressure by John Holland to get back to the work site and that John Holland did not understand or care about your physical injuries.
In the reviewable decision of 6 December 2013, the Respondent also relied upon the report of another psychiatrist, Dr Smith, dated 22 May 2013, which documented
Mr Taranto detailing that he had become increasingly depressed in response to chronic pain and the inability to engage productively at work. Dr Smith’s diagnosis was
Chronic Pain Disorder associated with both physical and psychological factors.
He opined that Mr Taranto also displayed the criteria for major depressive disorder.
The Respondent accepted, having regard to the medical evidence, that Mr Taranto suffered a condition outside the boundaries of normal mental functioning and behaviour: (see Comcare v Mooi (1996) 69 FCR 439). The Respondent noted however, that it had to consider whether Mr Taranto’s condition was contributed to in a significant degree by his employment. The Respondent noted that Mr Taranto was claiming that he continued to suffer from his related, accepted, back injury, and the left knee injury, which had not been accepted, and that Drs Synnott and Smith had identified that his psychiatric condition was attributed to his physical injuries. The Respondent noted that Dr Smith also identified issues regarding Mr Taranto’s left knee to be of particular concern.
The Respondent also based its refusal for compensation on the fact that notwithstanding Mr Taranto was consulting Dr Azmir frequently in relation to his back injury, the first time that Dr Azmir provided a medical certificate suggesting he was experiencing a psychological condition, was on 20 February 2013. In the medical certificate, Dr Azmir described the medication he had prescribed for Mr Taranto and noted it was for his current psychological state as a result of his work related injury.
I noted that Dr Azmir had recorded in his medical notes as follows, in April 1999:
being under stress, … short tempered … difficulty sleeping .. goes tenses (sic)and anxious… and depressed at times.
Mr Taranto denied he had told Dr Azmir that he was anxious and had problems with sleep at that time.
Mr Taranto’s claim for nervous agitated anxious systems was made on the basis of Dr Synnott accepting Mr Taranto’s evidence that he felt pressure to return to work following injury, an inability to engage in the work fully, a lack of support in the workplace, as well as bullying and harassment. I am mindful that the claim for bullying and harassment was not pursued at the Tribunal, but that Mr Taranto attributed his psychiatric condition as a sequela to his accepted back condition and his left knee injury.
As already stated above, Mr Taranto was examined by Dr Synnott, and Dr Smith.
Dr Smith saw Mr Taranto on three occasions, 21 May 2013, 10 September 2013 and
4 February 2014.
In his report of 22 May 2013, Dr Synnott opined that Mr Taranto presented with diagnostic criteria for a Chronic Pain Disorder in association with physical and psychological factors. He also diagnosed Major Depressive Disorder. In his report,
Dr Synnott noted that if Mr Taranto’s presentation at the consultation was indicative of his daily functioning, he was at that time, incapable of participating in employment. However he stated that he expected Mr Taranto would improve sufficiently to return to work, noting that his physical symptoms and the industrial situation with his employer had acted as a major obstacle to returning to work.
Dr Synnott stated in his report that Mr Taranto had told him that there would need to be a significant reduction in pain in his lower back and knee to assist his psychological symptoms. He indicated that chronic pain impacted on many facets of a person’s personal and work life, and concentration.
Both Dr Synnott and Dr Smith, who was the treating psychiatrist, gave oral evidence at the Tribunal. They were in agreement that Mr Taranto suffers a psychiatric illness consequential upon his physical injury, his lumbar spine, and the difficulties reintegrating into the John Holland workforce.
In his oral evidence Dr Smith discussed Mr Taranto’s issues over a period from
May 2013 to February 2014. He noted feelings of distress, diagnosed Chronic Pain Disorder, depression, uncertainties regarding the litigation process, bullying and harassment in the workplace, and noted both physical and psychological factors which gradually worsened over the period. He opined that the Adjustment Disorder he initially diagnosed had developed into a Major Depressive Disorder by May 2013. He attributed the commencement of the psychiatric problems to the back injury of April 2012, and noted that they were exacerbated by the knee injury of August 2012, which he acknowledged had not occurred at work. He noted that Mr Taranto was frustrated that liability for the knee injury had not been accepted by the employer.
As noted above, both Drs Synnott and Smith made similar diagnoses, and the Respondent has accepted that Mr Taranto suffers a psychiatric condition. I accept similarly, but it is the required nexus to his work which is under consideration here.
In deciding whether Mr Taranto’s claim for compensation for a psychiatric condition can succeed, I have taken into account his evidence of chronic and continuing pain in his lumbar spine arising out of an incident on 12 April 2012. I have also noted his frustrations with his employer, and his disappointment that his left knee condition has not been accepted.
I am satisfied from the evidence of Drs Smith and Synnott that Mr Taranto suffers the psychiatric conditions they have diagnosed. Both psychiatrists were satisfied that the back injury and knee injury were significant in the development of Mr Taranto’s psychiatric illness. Dr Smith identified Mr Taranto’s feelings in relation to the knee injury as more significant.
I am mindful that the employer has also accepted that Mr Taranto has suffered a condition outside the boundaries of normal mental functioning and behaviour. I too accept that on the basis of the medical evidence and Mr Taranto’s evidence. The decision upon which reliance can be placed in that regard is Comcare v Mooi.
However, I must then consider whether Mr Taranto’s condition was contributed to in a significant degree by his employment with the Respondent. Mr Taranto has relied upon his lumbar spine injury of 12 April 2012 and his left knee injury of 26 August 2012 in order to establish that his psychiatric condition was a sequela of his physical injuries.
I noted that the workplace issues mentioned above also played a major role during 2012. Dr Synnott referred to Mr Taranto first developing significant psychological symptoms in August 2012, arising from his claims that he was bullied and harassed by management, and that they displayed a non-caring attitude towards the effects of his physical injuries.
I am satisfied, and accept the decision of the Respondent that at 1 October 2013, Mr Taranto’s back injury of 12 April 2012 had resolved, and that he has no rights to compensation pursuant to section 16 and 19 for his back at that date, or at present. I have also found in the paragraphs above, that Mr Taranto is not entitled to compensation for his left knee injury of 26 August 2012.
I have noted the submissions of the Applicant citing the following cases: Commonwealth v Smith (1989) 18 ALD 224, Brown v Australian Postal Corporation [2014] AATA 261 and Havnen v Comcare [2010] AATA 535.
Mr Black submitted in that in Commonwealth v Smith, von Doussa J noted that psychological symptoms could be precipitated by even minor physical injuries, and that if the precipitating injury was compensable, then even if the physical effects had resolved, the incapacity caused by the psychological symptoms was still the compensable result of the original injury. He submitted that this was analogous to Mr Taranto, whose psychological injury diagnosed during 2012 was a sequela of his back injury at a date before 1 October 2013 when the back injury had been held to have resolved. It was accordingly contributed to, to a significant degree, by his employment with the Respondent.
Mr Dube, on the other hand submitted that by August 2012, when Mr Taranto was due to return to work, there had been a gradual reduction of his back pain, and he had expressed his interest in returning to work. He had suffered some psychological issues which escalated into a significant depressive illness after the fall in which he injured his knee, and in connection with the rejection of liability for compensation for his knee. Mr Dube submitted that it was those issues, as distinct from the back injury, which were the significant cause of the development of Mr Taranto’s depressive condition. He indicated that the psychiatric evidence was Mr Taranto developed his depressive illness over a period from August 2012 to the end of 2012, noting that the first medical consultation with Dr Azmir, which could be taken to be the date of psychological injury, was
January 2013.
Mr Black also referred me to Brown v Australian Postal Corporation and Havnen v Comcare, submitting, that even if there were other significant causative factors, such as the non-compensable knee injury, then given that the back injury was a significant factor in the development of the psychiatric injury, liability for the psychiatric injury should still be accepted. I note in Brown at [53] that Senior Member Kenny stated:
Under s 5B of the Act, a condition will be a disease if it was contributed to a significant degree by an employees’ (sic) employment. That there may be more than one such contributing factor will not defeat the applicant’s claim as long as one is related, in the manner required by s 5B of the Act, to the applicant’s employment.
I am mindful that as was held in Brown v Australian Postal Corporation and Havnen v Comcare, the issue is whether under section 5B of the Act, Mr Taranto’s depressive illness is a disease, contributed to, to a significant degree by his employment. Further I note that there may be more than one contributing factor. However I am satisfied, and accept the submissions of the Respondent that Mr Taranto’s psychiatric illness, although contributed to, to a degree by his back injury, developed to a more serious level following the fall on 26 August 2012, and the non-acceptance of liability by the Respondent for that knee injury. I am satisfied that the knee in particular was a major contributor to his illness, and that all claims for the knee are non-compensable.
Accordingly his claim for psychiatric injury cannot succeed, and I affirm the decision of the Respondent in that regard.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding 119 (one-hundred-nineteen) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member ........................................................................
Associate
Dated 12 November 2014
Dates of hearing 6, 7 and 8 August 2014 Counsel for the Applicant Mr M Black Solicitors for the Applicant Maurice Blackburn Advocate for the Respondent Mr B Dube Solicitors for the Respondent Sparke Helmore
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