Gloria Cakany and Australian Postal Corporation
[2014] AATA 714
•1 October 2014
[2014] AATA 714
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5456
Re
Gloria Cakany
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member Date 1 October 2014 Place Sydney The Tribunal affirms the decision under review.
.................[sgd].........................................
Ms G Ettinger, Senior Member
CATCHWORDS
COMPENSATION – employee of licensed corporation – injury suffered in 2012 – liability previously accepted for musculoskeletal strain of the lumbar spine – review of determination that applicant has no present entitlement to compensation pursuant to sections 16 and 19 of the SRC Act – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 16, 19
CASES
Watts v Rake (1960) 108 CLR 158
REASONS FOR DECISION
Ms G Ettinger, Senior Member
1 October 2014
SUMMARY
Mrs Gloria Cakany, who is 56 years old, has worked at Australia Post continuously since 1990. She has carried out a number of duties over the years including dealing with oversized parcels, normal mail, and small letter trays. On 28 September 2012, Mrs Cakany was working at a mail opening station at her designated mail centre, scanning mail labels, cutting string to open mail bags, and tipping the bags into a hopper. Instead of the usual one bag at a time, four large bags of mail came down from the overhead conveyer to her opening station at once, and one became wedged in before it reached the opening table. In attempting to dislodge it, Mrs Cakany hurt her lower back.
She reported the incident at work, attended at her general practitioner, Dr B Chugh, a few days later, on 2 October 2012, and made a compensation claim. Australia Post accepted liability for musculoskeletal strain of the lumbar spine pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 16 September 2013, Australia Post informed Mrs Cakany that upon reconsideration it had affirmed its determination of 3 June 2013 that she had, from 3 June 2013, no present entitlement to compensation pursuant to sections 16 and 19 for the injury based on the report of Professor N McGill, the rheumatologist who had examined her on behalf of the employer.
Mrs Cakany has engaged in a graduated return to work, and is working full hours on restricted duties which restrict repetitive bending, twisting, and with lifting not to exceed 10 kg.
Mrs Cakany exercised her right to seek review of the decision by this Tribunal. I had the reports of Professor McGill, as well as reports of Drs J Bodel and V Maniam (both orthopaedic surgeons), before me, and heard oral evidence from them.
I have decided on the basis of the evidence to affirm the decision of the Respondent that Mrs Cakany has, from 3 June 2013, no present entitlement to compensation pursuant to sections 16 and 19 of the Act for an injury suffered on 28 September 2012.
The medical evidence and my reasons follow.
ISSUES BEFORE THE TRIBUNAL
The Tribunal has to decide whether the Respondent continues on and from 3 June 2013 to be liable to pay compensation to the Applicant for the condition of musculoskeletal strain of the lumbar spine on the basis that she has reasonably required medical treatment in relation to her condition, such as to entitle her to compensation pursuant to section 16 of the SRC Act, and whether the Applicant has been incapacitated for work as a result of her condition, such as to entitle her to compensation pursuant to section 19 of the Act.
RELEVANT LEGISLATION
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988, in particular sections 16 and 19.
Section 16 provides for the payment of reasonable medical treatment of an employee, and section 19 deals with payment of compensation for incapacity.
THE EVIDENCE
Mrs Cakany gave oral evidence before the Tribunal. Dr V Maniam, her treating orthopaedic surgeon whose reports were before the Tribunal, gave evidence by telephone. Dr Bodel and Professor McGill gave concurrent evidence in person. I also had before me as Exhibit R4, a copy of the clinical notes dated March 2002 to February 2014 of Dr Chugh, the Applicant’s general practitioner. Mrs Cakany was represented by Mr J Dodd of counsel and Australia Post, by Mr M Gollan of counsel.
Mrs Cakany’s evidence
Mrs Cakany’s statement dated 13 March 2014 was Exhibit A1. In her oral evidence Mrs Cakany told me that on 28 September 2012, she felt a sharp pain in her lower back after she attempted to pull and dislodge a large mail bag which had become stuck in the overhead conveyor carrying mail to her opening station. She reported the incident to her supervisor immediately after it occurred, and was directed to work doing face-up sorting (which is light work) for the rest of the shift. She reported the incident appropriately by filling in an incident report, and making a claim for compensation.
It is not in dispute that Mrs Cakany attended at her general practitioner a few days later, on 2 October 2012. He recorded in his notes on that day: when pulling the bag felt back pain – L1-2 tenderness (my emphasis). That clearly did not relate to the lumbar area.
However, Dr Chugh diagnosed back injury - lumbar spine musculoskeletal strain, and certified Mrs Cakany fit for light and restricted duties for two weeks from the following day, 3 October 2012. The evidence before me is that following a graduated return to work, Mrs Cakany has continued to work full-time on duties which restrict repetitive bending and twisting, and with the lifting of weights restricted from 3 kg at first, to 10 kg presently. She says she has not tried to lift heavier weights, and is afraid of injuring herself further if she does.
Mrs Cakany described the work she does, and it seems that she has been able to adhere to her doctor’s recommendations regarding the weights she can lift, and take into account the restrictions ordered for her. I note, however, that most of her work does not include lifting as the conveyers land bags of mail onto the table at which Mrs Cakany and others work, which means she may have to use a pulling motion, but not lifting. She says that notwithstanding, she is exhausted at night after work.
Mrs Cakany says that a few weeks after the incident of 28 September 2012, she started to feel numbness in her right foot. She said that she felt pain on the whole outside of the right leg, the thigh, shooting pain down her right leg, with numbness occurring in three of her toes on the right side from time to time. Mrs Cakany told me that pain in her left leg commenced a week or so after the pain in her right leg started. She said that she did not have pain in her legs or toes before the incident of 28 September 2012.
Mrs Cakany says that the pain in her legs is always there, and the level of it varies depending on whether she can sit down. She says that it becomes worse when she is standing.
Mrs Cakany told me that she had a shoulder injury and upper back pain prior to September 2012, (recorded by her doctor as being in 2003/2004), but that since the incident of 28 September 2012, it has been lower back pain which is worrying her.
Evidence regarding the two MRI scans of Mrs Cakany’s lumbar spine
There are two MRI reports before the Tribunal, dated 18 January 2013 and 5 February 2014, that is, taken approximately a year apart, which were the subject of evidence before the Tribunal. The focal points are L4/5 and L5/S1. They are important in considerations leading to the correct or preferable decision.
In the 2013 MRI, the radiologist wrote relevantly regarding L4/5, as follows:
L4/5: There is mild disc desiccation. There is a broad based left foraminal disc bulge extending extraforaminally which measures up to 4mm in anteroposterior extent. The exiting L4 nerve comes close to but does not contact the disc. No canal stenosis or right foraminal narrowing is seen.
In the 2014 MRI, the radiologist wrote relevantly regarding L4/5, as follows:
At the L4/L5 level, there is a small left lateral disc protrusion into the left neural exit foramen, without encroachment on neural structures.
In the 2013 MRI, the radiologist wrote relevantly regarding L5/S1, as follows:
There is early disc desiccation. The disc contour is near normal with a very tiny circumferential disc bulge present. No foraminal or canal stenosis is present. Early bilateral facet joint arthropathy is seen.
In the 2014 MRI, the radiologist wrote relevantly regarding L5/S1, as follows:
At the L5/S1 level, minor circumferential bulging of the disc annulus is noted without neural encroachment. Osteo-arthritic change are present in these aphophyseal joints.
The conclusion drawn by the radiologist in 2013 was: Minor L4/5 and L5/S1 disc changes without evidence of neural compromise.
The conclusion drawn by the radiologist in 2014 was: The remaining discs are intact. The remaining neural structures are normal in appearance and the conus medullaris is in normal position. There is no evidence of canal stenosis.
Evidence of Dr Maniam
Dr Maniam is Mrs Cakany’s treating orthopaedic surgeon. His reports of 8 July 2013 (T69), 9 August 2013 (T70) and 25 June 2014 (Exhibit A4) were in evidence.
I noted that Mrs Cakany did not give Dr Maniam a history of upper back pain, migraine, or neck pain she had been suffering prior to the incident of 28 September 2012. Dr Maniam said that as a treating doctor, he treated patients, but did not interrogate them. He considered that in any case, those complaints were not relevant to the lumbar problems he was treating. I noted further that he made comments regarding lifting (of which Mrs Cakany does little), and provided weight restrictions in her work, to which she adheres.
Dr Maniam’s diagnosis was:
·chronic musculo ligamentous strain of the lumbar spine;
·broad based left foraminal disc bulge extending into the neural exit foramen but without any impingement of the L4 nerve root.
Dr Maniam commented that Mrs Cakany had been asymptomatic prior to the incident of 28 September 2012, and has since suffered recurring back pain. He opined that the incident in 2012 was the cause of the disc bulge (shown on the 2013 MRI), developing into the disc protrusion shown on the 2014 MRI. When asked whether the changes may have occurred spontaneously, Dr Maniam replied that Mrs Cakany was small in stature, and that given her age of 56 years, it was a contentious question. He agreed the changes in the MRI may also have occurred had the incident of 28 September 2012 not taken place.
Dr Maniam’s interpretation of the results was that the MRIs indicated changes had taken place in the interval between the 2013 and 2014 MRI. He stated that he saw progression in the disc lesion at L4/5 in the 2014 MRI, whereas there was no bulging seen at L5/S1 in the 2013 MRI.
Dr Maniam indicated that Mrs Cakany first complained about leg pain to him in August 2013. He recorded that she had described it as tightness in the right leg and thigh, and that she had mentioned it to him again on 3 March 2014. He opined that the consistent pain Mrs Cakany reported, and the pain she reported from prolonged standing, related to the disc injury.
Dr Maniam noted in his report of 25 June 2014, that Mrs Cakany’s problems had been characterised as musculo ligamentous strain of the lumbar spine. He stated:
I indicated that although this may be co-existent there is also a significant protrusion at L4/5 into the left neural exit foramen and this lesion has been demonstrated in the serial MRI scans that were obtained on 8/1/2013 and 5/2/2014.
Dr Bodel and Professor McGill – Concurrent Evidence
Dr Bodel’s reports were dated 19 December 2013 (Exhibit A5) and 5 May 2104 (Exhibit A7). Professor McGill’s reports were dated 24 April 2013 (T57), 4 September 2013 (T72) and 6 June 2014 (Exhibit R3). The doctors gave concurrent evidence.
Dr Bodel referred to the incident of 28 September 2012, opining that it caused internal disc disruption. He opined however, that there was little difference in the findings of the 2013 and 2014 MRI reports. He opined that there appeared to be more impact from the incident of 2012 in the form of a bulge on the left side as shown in the MRIs, yet, inconsistently with that, Mrs Cakany complained more of symptoms on the right side.
Professor McGill agreed that the incident of 28 September 2012 caused some changes to Mrs Cakany’s lumbar spine. He noted she complained of left sided pain to Dr Maniam and her general practitioner, but emphasised pain on the right side to the Tribunal.
Both Dr Bodel and Professor McGill agreed that in considering the MRIs of 2013 and 2014, that the pathology remained virtually the same between 2013 and 2014. Dr Bodel described it as mechanical backache associated with disc pathology at the lumbosacral junction. The lifting incident appears to have caused a probable internal disc disruption at an already abnormal disc at the L4/5 level.
Both Dr Bodel and Professor McGill agreed that the clinical findings of the MRIs would be indicative of the general population over 55 years, but that there were some changes which could be attributed to the incident of 28 September 2012, and that it could have been more than a mere musculo ligamentous injury. Dr Bodel added that as the symptoms had persisted, this affirmed his view.
Professor McGill stated in his report at Exhibit R3:
The lack of any significant change between the two MRI examinations and the mild nature of the degenerative disc changes at the lower two lumbar levels support the conclusion I reached that her MRI demonstrated mild constitutional degenerative disease.
I noted that Dr Maniam had recommended an epidural injection into L4/5 but that both Dr Bodel and Professor McGill agreed that neither the injection nor surgery were indicated. Dr Bodel opined at Exhibit A5:
In my view this lady at the moment has non-verifiable radicular complaints, and therefore the need for the “periradicular block injection” is an equivocal circumstance. If the associated facet joints were to be injected then there is more clinical indication for that at this time as this lady has no objective sign of radiculopathy in the legs.
SUBMISSIONS
The Applicant’s submissions
Mr Dodd submitted that there had been no question that Mrs Cakany was a witness of truth. She had worked at Australia Post since 1990, had worked well for 22 years, and was injured in 2012. He pointed out Mrs Cakany had traversed a satisfactory return to work, and was working fulltime with medically indicated weight restrictions. He submitted that Dr Maniam had been in orthopaedic practice for some 35 years, and that his opinion should be preferred.
Mr Dodd submitted that Mrs Cakany suffered no lumbar back pain prior to the incident of 28 September 2012. His submission was that since then, she has not been pain-free, and has suffered lumbar back pain continuously. He noted that the right leg pain associated with the left bulge might not have made sense physiologically, but that the Applicant reported the pain in that way. He also submitted that the notation that Mrs Cakany had reported pain at L1/2 to her general practitioner on 2 October 2012, just days after the incident of 28 September 2012, did not take away from the fact she continues to suffer low back pain.
Mr Dodd drew attention to Dr Bodel’s evidence which was that the incident of 28 September 2012 caused a disc problem and was not simply a musculo ligamentous injury. He also submitted that the migraine and other medical conditions for which Mrs Cakany may have been treated were not relevant to the lower back claim.
Mr Dodd placed reliance on Watts v Rake (1960) 108 CLR 158, and submitted that Mrs Cakany may have suffered the lower back pain without having experienced the incident of 28 September 2012, but that since that date, she had suffered continuing lower back pain, and liability should continue to be accepted pursuant to sections 16 and 19 of the Act.
The Respondent’s submissions
Mr Gollan submitted that objectively, Mrs Cakany did not at June 2013 and thereafter, suffer lumbar back pain as a result of the incident of 28 September 2012. He submitted that there were no signs, no nerve irritation arising out of the incident of 28 September 2012, and that the pain reported by the Applicant, being more on the right side, did not fit anatomically with the bulge on the left.
Mr Gollan submitted that he raised the issue of the leg with Dr Bodel:
And I particularly have regard to the leg. And you recall I said on a number of occasions taking Dr Bodel through piece by piece each of the parts of the leg and the dermatomal distribution that one might expect in cases of a corrupted disc. And I said to him that it was inexplicable, that the complaint and the distribution was inexplicable on the basis of the disc as it presented on the scans.
And he agreed with all those propositions. And he also agreed that one might expect in circumstances where the trauma is properly identified at being at L1/L2, that you don’t have the L4/5 being productive with respect to complaints thereafter. (Transcript 23 July 2014, p. 16)
Mr Gollan emphasised that Dr Chugh had recorded pain at L1/2 on 2 October 2013 when Mrs Cakany first consulted him after the incident of 28 September 2012. Mr Gollan submitted that he asked Dr Bodel about the relationship between the different parts of the spine as follows:
And in fact when I put the example to Dr Bodel that, you know, how far can you stretch it. If she has a complaint in the thoracic spine and you find some pathology in the lumbar spine, would you move the site of injury? Not only did he say no, he then went on to give the example of circumstances where people think that it’s in the lower part of the spine but they find out at a later stage that there’s something happening up above. And that agreed with Dr McGill that it doesn’t generally happen the other way around. (Transcript 23 July 2014, p. 16)
Mr Gollan noted that both Dr Bodel and Professor McGill agreed that Mrs Cakany had suffered an aggravation of her degenerative lumbar spine, and should continue to work with restrictions on weights she can lift. He submitted that it was a common outcome that injured persons were afraid of further injuring themselves further, as Mrs Cakany had expressed, and as noted by Dr Bodel and Professor McGill who both opined that a strengthening of core stability and a progression to heavier weight limits over time would be appropriate. Mr Gollan noted that even Dr Maniam had agreed that heavier weight limits had not yet been tried.
Mr Gollan submitted also that it was Dr Maniam alone who recommended spinal injections. Dr Bodel and Professor McGill did not agree it was appropriate in this case, and recommended that conservative treatment without injections or surgery, was more appropriate.
CONSIDERATION
There are two issues for consideration:
(a)whether, in the period from 3 June 2013 to date, and presently, the Applicant has reasonably required medical treatment in relation to her condition, such as to entitle her to compensation pursuant to section 16 of the Act, and
(b)whether the Applicant has been incapacitated for work as a result of her condition, such as to entitle her to compensation pursuant to section 19 of the Act.
In considering the above questions, I have taken into account Mrs Cakany’s evidence, and that of the doctors who have examined her and the submissions of the parties.
In coming to a decision, I have noted Mr Dodd’s argument citing Watts v Rake, on the basis that Mrs Cakany may have suffered the lower back pain without having experienced the incident of 28 September 2012, but that since that date, she has suffered continuing lower back pain, and that the claim should be accepted on that basis. I accept Mr Dodd’s submissions that Mrs Cakany was a loyal employee who had served Australia Post for 22 years before the incident of 28 September 2012. I accept also that Watts v Rake is good law, but that its application in this case is questionable.
The comparison between the 2013 and 2014 MRI scans is an important issue in this case. The findings of the radiologists who reported on the MRI scans in 2013 and 2014 indicated there was little difference in Mrs Cakany’s lumbar spine during that period. This was confirmed by Dr Bodel and Professor McGill. Professor McGill stated in his report of 6 June 2014 (Exhibit R3):
The lack of any significant change between the two MRI examinations and the mild nature of the degenerative disc changes at the lower two lumbar levels support the conclusion I reached that her MRI demonstrated mild constitutional degenerative disease.
Dr Maniam on the other hand, and I reject his opinion on the basis of the radiologists’ findings and the opinions of Dr Bodel and Professor McGill, opined that the incident in 2012 was the cause of the disc bulge (shown on the 2013 MRI), developing into the disc protrusion shown on the 2014 MRI.
I noted that both Dr Bodel and Professor McGill agreed that the clinical findings of the MRIs would be indicative of the general population over 55 years, but that there were some changes which could be attributed to the incident of 28 September 2012, and that it could have been more than a mere musculo ligamentous injury. Dr Bodel added that as the symptoms had persisted, this affirmed his view. He opined that there appeared to be more impact from the incident of 2012 in the form of a bulge on the left side as shown in the MRIs, yet, inconsistently with that, Mrs Cakany complained more of symptoms on the right side.
I am accordingly satisfied that the clinical findings of the MRIs would be indicative of the general population over 55 years, and that the MRIs indicated little change had taken place in Mrs Cakany’s lumbar spine between 2013 and 2014.
I rely on the opinions of Dr Bodel and Professor McGill that Mrs Cakany’s reports of pain in her legs are based on non-verifiable radicular complaints. On that basis I also prefer the opinions of Dr Bodel and Professor McGill that as Mrs Cakany has non-verifiable radicular complaints, the injections proposed by Dr Maniam are contra indicated. I accept the medical view of the other doctors that her treatment should be conservative, and not consist of epidural injections into L4/5, or surgery. I note that Mrs Cakany is working full-time with restrictions as to weights she can lift, and agree with the universally expressed medical opinions that she should be encouraged to pursue increases in those limits.
I accepted Mr Gollan’s submission based on Professor McGill’s comment regarding taking a holistic view of the Applicant, and referral to another specialist. He submitted as follows with regard to Mrs Cakany’s reports of continuous pain:
It’s not to say someone’s being dishonest. But what it is to say is that on anatomical, physical grounds we can’t explain this and so it might have its root in another modality or another discipline within the medical sphere. (Transcript 23 July 2014, p. 17)
Ultimately, I am in agreement with the maker of the reviewable decision that in the period from 3 June 2013 to date, and presently, the Applicant has not reasonably required medical treatment in relation to her condition, such as to entitle her to compensation pursuant to section 16 of the Act. I am also satisfied from the evidence that the Applicant has not been incapacitated for work as a result of her condition, such as to entitle her to compensation pursuant to section 19 of the Act.
DECISION
The Tribunal affirms the decision under review.
As the decision was not favourable to the Applicant I make no order as to costs pursuant to section 67(8) of the Act.
I certify that the preceding 59 (fifty nine) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member ...........[sgd]...................................................
Associate
Dated 1 October 2014
Dates of hearing 22-23 July 2014 Counsel for the Applicant Mr J Dodd instructed by Ms S Toomey Westcott, Slater and Gordon Counsel for the Respondent Mr M Gollan instructed by Ms D Hatton, Australian Postal Corporation
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