Izewska and Australian Postal Corporation

[2006] AATA 987

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 987

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/228-229

GENERAL ADMINISTRATIVE DIVISION		)
Re		Krystyna IZEWSKA

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member M.D. Allen
Senior Member P Taylor, SC
Dr M.E.C. Thorpe, Member

Date21 November 2006

PlaceSydney

Decision The decisions under review are affirmed

(Sgd) M.D. ALLEN
  ..............................................
  Presiding Member

CATCHWORDS

WORKERS COMPENSATION – loss of income, medical expenses and incapacity claims for a work-related lower back injury sustained in June 2005 – inconsistent medical history of back, neck and leg pain – medical evidence supports pre-existing degenerative changes to the Applicant’s lumbar spine prior to the injury – incident of June 2005 caused a temporary exacerbation of symptoms only – decisions under review affirmed.

Safety, Rehabilitation and Compensation Act 1988: ss 16, 19

REASONS FOR DECISION

Senior Member M.D. Allen
Senior Member P Taylor SC
Dr M.E.C. Thorpe, Member

1.      By application made 1 March 2006, the Applicant sought review of a reviewable decision which determined:

(a)that the Respondent was not liable post-15 December 2005 to pay to the Applicant benefits under the Safety, Rehabilitation and Compensation Act 1988 for medical treatment and loss of income; and

(b)that the Respondent was not liable to pay to the Applicant pursuant to s 19 SRC Act benefits for total incapacity for the periods 13-21 October 2005 and 7-8 November 2005.

2.      In her Statement of Facts and Contentions lodged with the Tribunal, the Applicant also raised the question of whether she had unreasonably refused to participate in a rehabilitation program pursuant to s 37 SRC Act but that matter was not raised before the Tribunal.  Likewise, the Respondent did not seek to argue that any unreasonable refusal to undertake a rehabilitation program operated as a bar to these proceedings.

3.      There was no issue between the parties that the Applicant did sustain an injury to her back in the course of her employment on 16 June 2005.

4.      The Applicant’s evidence to the Tribunal was that she was lifting telephone books from a pallet which she thinks was on her right side, when she experienced a sharp, shooting pain in her back and could not straighten.  The pain was in the middle of her back and radiated to the left and right hips.  She informed her supervisor, who gave her light duties for the rest of the day.  That night she had pain radiating down her right leg, and after two weeks she also started to experience pain in her left leg.

5.      During evidence in chief, the Applicant stated that she was lifting 12 telephone books at the time of her injury.  On 23 January 2006, she told Dr Kwong she was lifting eight books.  On 22 July 2005, she told a rehabilitation provider she was lifting eight to 10 books and had felt pain “after some time”.

6.      A difficulty in assessing this matter is that the Applicant is a poor historian.  When Drs Kwong, McGill and Maxwell asked the Applicant for a history, she denied any previous episodes of back pain before 16 June 2005.  Likewise, in the medical questionnaire completed by her on 14 August 2002, with regard to permanent employment with the Respondent, she ticked boxes indicating she had not previously had back pain, neck pain, pains in the legs or feet, or an anxiety or stress reaction.  Exhibit R5 is the clinical notes of the Applicant’s usual general practitioner, Dr Bartos, and those notes clearly reveal that the Applicant prior to 16 June 2005 and 14 August 2002 had had back and neck pain, and prior to 14 August 2002 had been prescribed Zoloft, which is a tranquilliser.

7.      The Applicant’s prior relevant medical history is set out in the report of Dr McGill dated 29 June 2006, which report was prepared after consulting the general practitioner’s clinical notes.  It reads inter alia:

…

On both occasions that I saw her she specifically stated and confirmed when I checked, that she had never previously experienced problems with her back prior to 15 June 2005.

I note the handwritten note provided by Green Valley Medical Practice covering the period 1992 until 2005.  The initial entry in 1992 recorded back pain after lifting, L sciatica …

In May 1994 there was reference to neck pain.

On 4 February 1996 there was reference to lower back pain right sided.

In June 1996 there was further reference to neck pain and headaches.

In 1997 she was noted to be tired, stressed, depressed.  At that stage she was receiving anti-depressant medication (Zoloft).

In June 1997 she was recorded to have right loin pain.

In October 2002 she had R pectoralis muscles and the conclusion was muscular.  The same entry referred to TMJ dysfunction, R sided neck pain, and spondylosis.

In May 2003 an x-ray of the lumbosacral spine was reported and it stated that there was narrowing of the L4/5 and L5/S1 disc spaces, consistent with disc degeneratioin.  There are osteoarthritic changes of the apophyseal joints of the lower lumbar spine.  Degenerative osteophytic lipping is noted of the anterior and lateral vertebral margins.

…

In December 2003 there was reference to her legs and I think it stated painful legs.

…

8.      The reference above to “painful legs” can be compared to the referral letter prepared by Dr Kulisiewicz dated 20 June 2005, when she referred the Applicant to Orthopaedic Surgeon Dr Giblin.  The Applicant first consulted Dr Kulisiewicz on 16 June 2005 and the Applicant stated that she had consulted Dr Kulisiewicz as she was also a Polish speaker and had spoken to her in Polish.  We regard this fact as significant, as there can be less grounds for misunderstanding if the Applicant is addressing the medical practitioner directly in their common native language.

9.      In her referral letter, Dr Kulisiewicz stated as the history of complaint, “work related back pain for about two years radiating right leg” and referred to a CT scan showing degenerative spondylosis.

10.     Dr Giblin, in his report of 27 June 2005 to Dr Kulisiewicz, recorded a history of the Applicant doing a lot of lifting of bundles of books at work and developing pain in her right leg about two months ago, which over a period of time deteriorated so that the Applicant was now getting low back discomfort as well.

11.     Neither Dr Kulisiewicz nor Dr Giblin refer to any traumatic event on or about 16 June 2005.

12.     In a further report dated 4 July 2005, Dr Giblin referred to an MRI scan carried out following his initial consultation with the Applicant and noted that that MRI confirmed disc desiccation at L4/5 and L5/S1.

13.     Both Dr Maxwell, Orthopaedic Surgeon and Dr McGill, Rheumatologist, who examined the Applicant on behalf of the Respondent, opined that the radiology confirmed pre-existing degenerative change in the Applicant’s back prior to 16 June 2005, and that the incident on that date caused no more than a temporary exacerbation of symptoms.

14.     In reviewing the radiology, Dr Maxwell stated that the Applicant did have underlying degenerative changes in her back but there was no obvious nerve root impingement.  On his viewing of the CT scan taken on 16 June 2005, he opined that it showed a calcified disc bulge, the calcification evidencing that the disc bulge was long-standing.

15.     Dr McGill also viewed the CT scan and the MRI scan and agreed with the radiologist’s report.  In the opinion of Dr McGill, the x-ray findings of May 2003 confirm that the Applicant suffered degenerative changes in her low back and that the incident on 16 June 2005 caused a temporary exacerbation of symptoms without any change in the underlying pathology.

16.     As pointed out above, Dr Kwong who examined the Applicant at the request of her solicitors, was not given any history of prior back pain.  In his report he states “there was no previous history of back or leg pain”.

17.     In evidence in chief, Dr Kwong stated that the Applicant’s presentation was consistent with a disc prolapse on 16 June 2005, or aggravation of an existing prolapse.  Cross-examined, he conceded that the radiology was consistent with prior degeneration.

18.     To our mind, apart from the fact that Dr Kwong was not given the history of prior back pain, his opinion was also influenced by the fact that the Applicant was working at the time of the incident of 16 June 2005.  He conceded that the MRI report of 27 June 2005 referred to disc desiccation, which was indicative of degenerative change, but sought to contrast that to the fact that the Applicant was working.  We do not see any such inconsistency, and given the concession by Dr Kwong as to the Applicant’s presentation, and the radiology being consistent with an aggravation of a prior condition, we find that his opinions are not opposed to those of Drs Maxwell and McGill.

19.     Although there are several reports from Dr Giblin before us, those reports were addressed to the Applicant’s general practitioner and were for treatment purposes.  There is no report from Dr Giblin in which he specifically addresses the medico-legal aspects of the Applicant’s claim.

20.     Given the inability of the Applicant to give a consistent history, the objective evidence obtained by radiological examination, the prior clinical notes and physical examination assume critical relevance in this matter.  We are satisfied that this material clearly evidences that the Applicant had pre-existing degenerative changes in her lumbar spine and that the incident of 16 June 2005 caused a temporary exacerbation of symptoms.

21.     Dr McGill opined that at a maximum that exacerbation would last for six months.  Dr Maxwell’s opinion was that the symptoms should have resolved in a shorter period, but the Respondent has been content to act on Dr McGill’s opinion, and we are of the opinion that the maximum period of exacerbation was no more than six months.

22.     An issue before us was a payment for total incapacity for the periods 13-21 October and 7-8 November 2005.  The Applicant gave no evidence in chief regarding these periods.  In cross examination she was challenged with the proposition that there was no good reason for her to have taken these periods off work.  Her response was not entirely clear but she appeared to say that there was either no work for her or that she was asked to do “heavy work” that she felt beyond her physical ability.  The only other evidence that bore on the matter was Dr Bartos’ short report of 14 November 2005, reporting back pain and right sciatica.  But we do not consider that Dr Bartos’ report either alone, or read with the Applicant’s evidence, justifies a conclusion that she was totally incapacitated during the two closed periods.  For that reason we affirm the decisions under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M.D. Allen, Senior Member P Taylor SC, and Dr M.E.C. Thorpe, Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  24 October 2006
Date of Decision  21 November 2006
Counsel for the Applicant         Mr C Jackson
Solicitor for the Applicant          PK Simpson & Co
Counsel for the Respondent     Mr G Johnson
Solicitor for the Respondent     Graham Jones Solicitors