John Papaioannou and Australian Postal Corporation
[2015] AATA 370
•28 May 2015
[2015] AATA 370
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3222
2013/3226
2013/32272013/6649
Re
John Papaioannou
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal John Handley, Senior Member
Date 28 May 2015 Place Melbourne The decisions under review are set aside and in substitution it is decided that:
1. in application 2013/3222, the applicant did not have a capacity to earn between 1 December 2012 and 1 February 2013;
2. in application 2013/3226, the respondent is liable on and from 27 March 2013 pursuant to ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act) for compensation in respect of aggravation of pre-existing cervical and lumbar disease;
3. in application 2013/3227, the respondent is liable pursuant to s 14 of the Act for a tear of the supraspinatus tendon of the left shoulder; and
4. in application 2013/6649, the respondent is liable, pursuant to s 14 for the secondary psychiatric illness which is properly diagnosed as an adjustment disorder with mixed anxiety and depressed mood.
.........[sgd]...............................................................
John Handley, Senior Member
WORKERS’ COMPENSATION – applicant suffered back and neck injuries in motorcycle accidents travelling to and in the course of his work as a postal delivery officer – subsequent aggravation of lumbar and cervical disease by work activities – contributed to a significant degree by the employment – frank and traumatic tear of the left supraspinatus tendon – the injury arose out of or in the course of employment – tendon tear was not a disease and applicant did not make a wilful and false representation – also suffered adjustment disorder with mixed anxiety and depressed mood secondary to chronic pain –– decisions set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 sections 14, 16 and 19
REASONS FOR DECISION
John Handley, Senior Member
28 May 2015
The applicant commenced employment with the respondent on a permanent part-time basis in 2003 as a postal delivery officer. He was initially engaged on a walking round in central Melbourne working 25 hours per week at five hours per day. Overtime was regularly available and was undertaken by him.
This review is a challenge to four reviewable decisions made by the respondent affecting his entitlements to compensation, as a consequence of back, neck, left shoulder and psychological injuries. Those decisions and the applicable file references will be identified later.
The applicant contended that he suffered injuries on three occasions in traumatic circumstances. Additionally, the duties undertaken by him in the course of his employment were responsible for an aggravation or an exacerbation of his injuries.
The episodes of traumatic injury were as follows:
(i)On 26 March 2006 whilst travelling from work and when riding his motorcycle he was struck by a motor vehicle at the intersection of Swanston and Latrobe Streets in Melbourne. He was thrown from his motorcycle and experienced immediate neck and back pain;
(ii)On 27 May 2010 and when in the course of his work as a postal delivery officer, he was struck from behind by a motor vehicle whilst seated on a motorcycle at traffic lights in Kings Way, Melbourne. The applicant experienced pain in the back of his neck and the lower right side of his back;
(iii)On 27 November 2012 when lifting a depot (mail) bag he suffered a left shoulder tendon tear.
The Applicant
The applicant relied upon two statements completed by him which were received as Exhibits A1 and A2. Reference was made to the contents of them during his evidence.
Immediately following the accident on 26 March 2006, the applicant attended his workplace and reported the incident. He was sent by his manager to a doctor at the Bridge Street industrial Clinic in Port Melbourne who arranged an x-ray and referred him to a physiotherapist, to whom the applicant attended on four occasions. The respondent paid the costs of that treatment. Light duties were thereafter undertaken for one to two months comprising work within the mail depot only and some deliveries of mail on a shorter round. The back and neck pain improved and the applicant recalled that his back pain was worse than his neck pain. A claim for compensation was not made. The pain recurred from time to time, especially affecting the applicant’s back (refer applicant’s statement – Exhibit A1, paragraph 8).
In about November 2007 the applicant suffered severe low back pain which he described in his statement as stabbing and burning in nature which radiated into his left buttock and left thigh. An incident report was completed and the applicant was referred back to the doctor in Port Melbourne who arranged further physiotherapy and prescribed anti-inflammatory medication.
In July 2009 the applicant experienced the onset of severe lower back pain when bending to place a mail bag into a tub at work. He experienced a cramping sensation in his lower back, he was immobilised and was unable to walk properly. He again suffered a burning type sensation radiating into his left buttock and left leg. He was referred by his manager to a doctor in Bourke Street, Melbourne who recommended physiotherapy, prescribed anti-inflammatory medication and certified the applicant as fit only to undertake lighter duties.
For about 12 months before 27 May 2010, the applicant had been delivering mail on a motorcycle in St Kilda Road. Although he experienced pain in his neck and the lower right side of his back on that day, the pain became severe and extended to the lower left side of his back in following days. The incident was reported and a claim for compensation was made (and accepted). The applicant consulted his local practitioner, Doctor Chan, for treatment.
The applicant was absent from work for a short period and then returned on a plan of reduced hours over three days per week undertaking sorting duties only. However the applicant continued to suffer pain in his lower back and neck. Dr Chan recommended to the respondent that the applicant needed further treatment which was undertaken and the respondent accepted liability for the cost of it.
In November 2011, the applicant, having resumed work as a delivery officer on a walking round, suffered an increase in back and neck pain and was referred by Dr Chan to a physiotherapist. The pain persisted and he was unable on some occasions to complete a full shift and on other occasions had time away from work.
On 27 November 2012, having completed sorting duties, the applicant was loading mail bags into a trolley. When lifting one of the bags which he estimated to weigh between three and four kilograms, he heard a click and suffered a sharp, excruciating pain in his left shoulder. He dropped the bag. His manager asked him to immediately attend a doctor because of a suspicion that the shoulder pain may have had its origin in neck pain that the applicant had previously been experiencing. The applicant had an ultrasound of his left shoulder a few days later which demonstrated a left tendon tear.
The applicant has subsequently been referred to Mr Moaveni, an orthopaedic surgeon who suggested surgery. That has not been undertaken. Presently the applicant is unable to lift his left arm above his head or undertake lifting with his left arm extended. He experiences increased pain in his left shoulder after three or four minutes of sorting.
In cross-examination the applicant said he had not ever suffered a left shoulder injury before 27 November 2012. A number of clinical entries in the records of doctors who had treated him from 1995, which suggested complaints of prior left shoulder pain, were brought to his attention. The applicant said he had no recollection of attending doctors with complaints of left shoulder pain or being diagnosed with an injury to his left shoulder. He said he suffered severe sharp pain and loss of movement on 27 November 2012 and he heard a click in his shoulder. He said he had never experienced symptoms of that type previously.
The applicant was also asked to consider in cross-examination that a number of entries in the clinical records of Doctor Chan make no reference to back or neck pain. The applicant said that pain is always present but he may not have complained of it on every occasion he attended his doctor. (The entries in the clinical records of the applicant’s doctors over which he was cross-examined will be summarised and discussed later in these reasons).
In early 2013 the applicant developed symptoms of anxiety and depression and was referred to Dr Terry Chong, a psychiatrist, who continues to treat him. The applicant consumes prescribed painkilling medication and continues to have physiotherapy for his back and neck pain.
The applicant last worked in November 2014, on the advice of Dr Chong, predominantly because of constant lower back pain which was extending through his left leg to his foot and toes. He had been working for three hours per day on each of Monday, Wednesday and Friday. His work sorting mail varied between standing or sitting, each for periods of between 30 and 60 minutes, by reason of his back and neck pain. The applicant also experienced pain walking from his house to catch a train to work in the morning and walking from the train to his workplace, each a distance of about one kilometre. His back pain increased by jolting when he was riding a motorcycle over uneven surfaces. Delivering mail in the Melbourne CBD pushing a buggy was unsuccessful because of persisting pain.
The applicant said he has not worked other than with the respondent, since he commenced in 2003 except on three occasions, in the period June/July 2010, when he drove a small tip truck, as a relieving driver, delivering firewood. On each occasion the truck was loaded by a front end loader (operated by another person). On each occasion the applicant was paid $120 per day.
The applicant has practised the discipline of ju-jitsu from about the 1990s. A few years ago he commenced his own club in Clifton Hill. The applicant said he understood the respondent was of the opinion that if he is capable of practising ju-jitsu he is fit to work his full hours and alternatively, capable of earning income from instructing ju-jitsu.
In his statement he recorded that he conducts his club two nights per week, each for one of a half hours. Each student, predominantly children, pay five dollars per class which is used to meet the cost of rental of the premises and equipment. The applicant recorded his style of ju-jitsu is not competitive, but is a discipline. He is assisted by his daughter and a friend and some of his experienced senior students who conduct warm up exercises. He recorded that he has not suffered any injuries whilst participating in ju-jitsu.
The applicant recorded that following the injuries he suffered at work, he took care not to aggravate them, he ceased personal training and doing stick weapon work at the higher levels and confined himself to instruction only, including the use of wrist and arm locks. He said none of the work that he demonstrates or instructs involves any significant force. Whilst he does demonstrate movement positions for throwing and falling, actual throwing and falling is undertaken by his daughter and other instructors.
In cross-examination the applicant said his classes practice traditional Japanese ju-jitsu which he described as a parent style of discipline. He said ju-jitsu is a martial art which absorbs the attack of an opponent and uses momentum against the attacker by putting that person off balance using kicks and throws but without force. He described the process as redirection. The applicant also demonstrated blocking of punches by raising an arm or a hand to deflect (a punch). He said hands are not forcefully used when blocking. Weapons are not used and a stick is only used by students who have a black belt qualification or higher. When not demonstrating or instructing, the applicant said he would walk around amongst the students and on occasions he would sit down and observe them.
In cross-examination, it was apparent that the applicant had been investigated because he was asked to comment on being observed delivering newspapers in streets near his home. It emerged that his 15-year-old son had a casual job with a suburban newspaper proprietor and on occasions the applicant delivered some of the newspapers whilst walking and pushing a trolley containing them. He said the deliveries were confined to two or three blocks from his home, in a precinct near a local railway station (where his son felt uncomfortable walking) and it was undertaken upon the recommendation of his physiotherapist. He would deliver about 100 newspapers in total, he did not receive remuneration for doing it and the deliveries were completed within 15 to 20 minutes.
The applicant was examined about the contents of a document completed by personnel of the respondent, which, it would appear, by regard to the contents, to have been completed a few days after 27 November 2012 when the applicant tore the tendon in his left shoulder. The document records that the applicant had lifted a depot bag to place in a trolley and felt a sharp pain and heard a click. It also records that the applicant could not raise his arm. The injury is described as being PAIN IN L NECK (T88, pages 153 – 160).
The applicant said he explained to Mr Freeman, one of the authors of the document, the circumstances of the left shoulder injury. He was adamant that he did not tell Mr Freeman that he suffered an injury to his neck but said that it was Mr Freeman who had recommended that he attend a doctor immediately after the incident occurred because he (Mr Freeman) was concerned that the pain he then experienced may have had its origin in his previous neck injury. The respondent did not call Mr Freeman to give evidence.
Medical evidence
Doctor Swee Onn Chan
Dr Chan, a general practitioner, has been the applicant’s doctor since 1995. He wrote a number of reports which are found within the T-documents.
His first report dated 28 June 2011 (T36, pages 68-69) records the applicant had intermittent back and neck pain following a motorcycle accident on 27 May 2010. He saw him subsequently reporting complaints predominantly of back pain. On 29 December 2010 he again consulted the applicant who complained of back and neck pain. (The clinical notes record the applicant presented with back and neck pain, joint stiffness, restricted movement and pain radiating into the right buttock. A certificate of incapacity was issued until 27 January 2011). The applicant presented with similar symptoms on 2 June 2011 and a history was obtained that although some relief had been obtained by physiotherapy, there was a relapse in pain when completing delivery rounds. Certificates of incapacity were issued on 2 June and again on 24 June 2011. Dr Chan reported that the back and neck pain commenced on 27 May 2010. He was aware the applicant suffered back and neck pain following a motorcycle accident in March 2006. The pain from that event had largely resolved but did recur intermittently.
A report written by Dr Chan on 6 January 2013 (T89, pages 161-162) responded to questions asked of him by an officer of the respondent. He recorded that the applicant had suffered an exacerbation of pain in his back and neck on 22 and 23 November 2012. He also made a diagnosis of back and neck pain and stress on 6 December 2012, the latter condition he associated with a history that he obtained from the applicant perceiving that he was not meeting the expectations of his employer and his fear that meeting those expectations would exacerbate his back and neck injuries. He reported that the applicant believed that his injuries were trivialised by management. The shoulder injury of 27 November 2012 magnified (page 161) his stress. Dr Chan certified the applicant as incapacitated from 21 December 2012 until 18 January 2013 by a combination of left shoulder and neck pain with restrictions of movement. He confirmed that an ultrasound and x-ray of 30 November 2012 demonstrated the presence of a full thickness rotator cuff tear of the supraspinatus tendon with bursal inflammation and impingement. He referred the applicant to an orthopaedic surgeon for further management. In response to a question asking him to identify the injury responsible for incapacity, Dr Chan reported: Particularly his shoulder injury but also taking into consideration his back and neck pain exacerbations and the impact this has on his mental health.
In a report of 11 March 2013 (T101, pages 199 – 200) Dr Chan reported that he first saw the applicant complaining of left shoulder injury on 30 November 2012. He obtained a history of the applicant, having sorted mail, had lifted a bag of about three to four kilograms and heard a click followed by pain in his left shoulder. On examination he was tender over the shoulder with restricted movement and an ultrasound was arranged. The applicant was in great discomfort (page 199). He reported that the applicant had complained of left shoulder pain on two occasions, 3 July 2007 and 14 July 2009. On those occasions the applicant had full range of movement and pain was only experienced on palpation. The pain settled after a few days without treatment. Although he requested the applicant undertake an ultrasound scan after the consultation on 14 July 2009, the applicant did not attend for it and Dr Chan assumed that the pain had settled and the scan was not needed.
When cross-examined, Dr Chan was referred to some treatment notes commencing in 1995 (located within his clinical file, received as Exhibit R2).
On 5 May 1995 the notes (hand-written treatment cards) of Dr Chan recorded left rotator cuff pain –U/S (ultrasound). Pain in L thumb some pain in ASB (anatomical snuff box). Dr Chan said the applicant did not attend for an ultrasound because he improved. He prescribed an anti-inflammatory drug. He did not record the cause of the onset of pain and had no recollection of the consultation. On reviewing his notes he was satisfied the applicant then suffered temporary muscular pain. He could not recall whether there was any connection between the shoulder and left thumb pain.
On 16 July 2002 Dr Chan recorded fell with left outstretched hand – tender to [illegible] /shoulder/wrist. Dr Chan had no recollection of that consultation or the circumstances of the fall. The next recorded consultation with the applicant after that date was in October for an unrelated cause.
An entry on 14 May 2004 records (the writing is difficult to interpret) that the applicant attended with a concern for his right shoulder. A history is not recorded and Dr Chan had no recollection of the consultation.
On 3 July 2007, the applicant consulted a colleague of Dr Chan, Dr Wu who recorded that the applicant was complaining of an ache in his left elbow and left shoulder of four days duration which was disturbing his sleep. On examination there was slight tenderness over the left rotator cuff, a full range of movement and some pain at 100° abduction. There was slight tenderness over the left lateral epicondyle without diminution of power or movement. Dr Wu diagnosed rotator cuff tendonitis of the left shoulder and lateral epicondylitis of the left elbow.
Six days later on 9 July 2007 Dr Wu recorded the applicant presented with a recurrence of low back pain of one day duration which occurred after the applicant had lifted his son. There was slight tenderness over the paravertebral muscles to the right of L5 and a strain of the lumbar spine was diagnosed. Tramal medication was prescribed.
Two months later on 12 September 2007 the applicant consulted Dr Chan who recorded the applicant presented with back pain and numbness in his hands. He queried the presence of carpal tunnel injury. A report of Dr Les Roberts of the Department of Clinical Neurophysiology at St Vincent’s Hospital dated 12 December 2007 recorded the results of an EMG study of the same date demonstrating the applicant had borderline carpal tunnel syndrome bilaterally. No other abnormality was demonstrated and there was normal ulnar nerve conduction, also bilaterally. Dr Roberts reported that the applicant had presented with bilateral numbness in his hands when hitting a mat with his hands. Dr Chan said he did not have any history of that event.
Three weeks later on 1 October 2007 the applicant attended again with a complaint of back pain with referred pain to his right leg. He arranged for the applicant to undergo a CT scan. Dr Chan agreed that his notes did not recall any event provoking the complaints of back pain on 12 September (the previous consultation) or 1 October.
The applicant consulted with Dr Chan on 14 July 2009 with a complaint of pain in his left shoulder, left arm and anterior chest wall. A history was not recorded and Dr Chan had no recollection of the consultation. The clinical notes record a referral for an ultrasound scan of the left shoulder, which the applicant had not attended due to the pain subsiding over the following days.
From 28 May 2010, the day after the applicant was struck whilst riding his motorcycle in Kings Way, Melbourne, the applicant consulted Dr Chan on a number of occasions for neck and lower back pain. On those occasions – 28 May, 2 June, 7 June, 18 June and 2 July 2010 – the applicant presented with back and neck pain and was issued with certificates either for total incapacity or restricted duties. He was also referred for physiotherapy. The applicant also consulted Dr Chan 29 December 2010 and was found on examination to have back and neck pain, joint stiffness, restricted movement and pain radiating to his right buttock. Dr Chan did not record nor could he recall whether he was given or asked for a history of those complaints, on that occasion.
The applicant consulted Dr Chan on 30 November 2012 having injured his left shoulder two days previously. His clinical notes record a history of pain commencing after picking up a bag in his left hand. Dr Chan said he thought the applicant was putting the bag somewhere. He said he could not remember whether he was told the applicant experienced a click in his shoulder nor whether he was told by the applicant that he had dropped the bag. He said the applicant’s presentation on this day was of left shoulder pain more acute than transient muscle ache that he had previously suffered. Dr Chan agreed with an opinion expressed by Mr Khan (see below) that the applicant probably had pre-existing degeneration in his left shoulder however on previous occasions the applicant’s left shoulder pain had resolved quickly. Dr Chan was satisfied that the applicant did suffer the tendon tear on 27 November 2012.
Dr Chan was advised that the applicant’s treating psychiatrist, Dr Chong had given evidence that the anxiety suffered by the applicant resulted in part from his litigation with the respondent. Dr Chan, by reference to his file, said the first symptoms reported to him of anxiety by the applicant were on 24 June 2011 when he recorded: He has been stressed as he has been having trouble with the Australia Post management as they are not doing much about his claim. He said there had been some transient circumstances earlier of anxiety which he had associated with ordinary life events, including the death of the applicant’s father. (He had referred the applicant to Dr McIntosh, a psychiatrist in January 2008, because he had presented with anxiety concerning health and other issues. Dr McIntosh reported on 10 and 23 January 2008 that the applicant had suffered mild panic attacks, chest muscle tension and a racing heart. The applicant was prescribed Diazepam which the applicant took as half of a two milligram tablet for a few days only and which was described by Dr McIntosh as almost placebo dose. He discharged the applicant back to the care of Dr Chan. The reports of Dr McIntosh are within the clinical file of Dr Chan.)
Dr Chan said he did not have any history from the applicant that he had suffered a breakdown, in February 2013, when he learnt of the contents of a medical report completed by Mr Haig, a medico-legal specialist engaged by the respondent. (There is a reference in the clinical notes of Dr Chan dated 25 February 2013 to the applicant’s reaction to consulting with the medical assessor from Workcover).
Dr Chan was satisfied that the injuries suffered by applicant were in remission and he was able to work with restrictions. It was his opinion that the pain experienced by the applicant in his neck, back and shoulder and his stress were relevant factors in determining the applicant’s capacity to work.
Dr Chan was asked to comment on an opinion expressed by Mr Khan that the applicant could work if he was able to sit and stand in half hour rotations and throw off mail with his right hand. He said he would agree with that opinion but only if work of that type did not cause pain. He said there had been previous occasions where the applicant had returned to work under different managers who were not sympathetic to the pain he was experiencing and which had the effect of increasing his stress.
Dr Chan was aware that the applicant was involved in ju-jitsu but only as a supervisor. He did not have any history of the applicant’s involvement in that discipline and he did not know whether the applicant supervised whilst sitting or standing.
In re-examination Dr Chan said the notes made by Dr Wu on 9 July 2007 made no reference to left rotator cuff tendonitis (which he had been diagnosed six days earlier on 3 July) and it could therefore be inferred that there had not been any continuity of that problem. It was noted that the applicant had complained of pain in his left shoulder at consultation on 14 July 2009 and despite an ultrasound being requested the applicant did not attend for it. He noted that he did not find on examination the presence of a left shoulder rotator cuff injury, unlike the diagnostic outcome of an ultrasound of the applicant’s right shoulder on 20 March 2009.
Dr Chan was asked to interpret his clinical notes of 28 May 2010, the day after the applicant suffered injuries when struck whilst stationary on his motorcycle in Kings Way, Melbourne. His notes record he was hit by a car whilst working and he had whiplash from that. He did not fall of his bicycle. He has pain in his neck and lower back. This occurred yesterday in Kingsway. He is worsened today. Dr Chan said his use of the word whiplash indicated that the applicant experienced a hard knock, was jolted backwards and forwards.
In relation to the event of 27 November 2012, Dr Chan was satisfied that the onset of pain then experienced by the applicant occurred whilst the mail bag was being lifted and it was that event which caused the tendon tear.
Doctor Terry Chong
Dr Chong is a psychiatrist to whom the applicant was referred by Dr Chan. In a letter to the respondent dated 4 April 2013 (T107, page 214) he recorded that the applicant was referred to him for management of work-related anxiety/depressive disorder/stress which he reported was due to work-related neck and lower back injuries and stressors at work and with the Workcover process.
In a report to Dr Chan of 4 April 2013 (Exhibit A7) Dr Chong diagnosed the applicant as having an adjustment disorder with mixed anxiety and depressed mood. (In a report to the applicant’s solicitors of 19 February 2015 (Exhibit A6) Dr Chong reported that the diagnosed illnesses were in partial remission). In evidence he said there has been an improvement in the applicant’s psychiatric health as a consequence of prescribed medication.
In the report to the applicant’s solicitors, Dr Chong recorded that there was a significant contribution to the psychiatric and physical injuries by the employment. He specifically referred to ongoing pain suffered by the applicant affecting his neck, lower back and left shoulder (which he acknowledged had been incorrectly recorded in the report as his right shoulder). Additionally, he reported that the applicant suffered from the consequences of the pain from his physical injuries and stressors associated with his dispute with the respondent.
In evidence Dr Chong said that the psychiatric illness suffered by the applicant was secondary to the physical pain that he suffered and which in his opinion appeared to be worsening. In consultation with the applicant, Dr Chong said the pain suffered and described by the applicant appeared to be acute and chronic. He thought the applicant’s psychiatric condition was improving. An enduring symptom was of anxiety however he thought the applicant could cope into the future. He thought it likely the applicant would continue to suffer pain and the focus of his treatment has been on developing strategies with the applicant to help him cope with it.
In cross-examination Dr Chong acknowledged the applicant was very distressed when he learnt of opinions expressed by Mr Haig. He recalled the applicant, in consultation, was crying, angry, depressed and anxious and he complained of poor sleep and concentration. He was worried about his capacity to work into the future and the diminution of his income.
Dr Chong was satisfied the applicant did continue to have neck, back and left shoulder pain which was acute and which was contributing to his depression. He thought the applicant, psychologically, was fit to return to work subject to the physical nature of it and the hours he was expected to undertake it. Despite the applicant’s ongoing concern about his relationship with and how he was perceived by the employer, he thought the applicant would benefit psychologically by remaining in employment because he should be as functional as possible.
Michael Khan
Mr Khan is an orthopaedic surgeon who examined the applicant at the request of his solicitors on 5 December 2013. He completed a report dated 20 March 2014 which was received as Exhibit A3. Mr Khan reported that the applicant had suffered exacerbations of pain from his back and neck injuries and an injury to his left shoulder during his employment with the respondent.
Mr Khan was aware that the applicant had experienced pain in his left shoulder before 27 November 2012 together with some limitation in range of movement. However on the history that he obtained, the applicant had not suffered any ongoing left shoulder problem or continuation of pain prior to 27 November 2012.
Mr Khan obtained a history of the applicant experiencing severe and sudden pain in his left shoulder on 27 November 2012 whilst lifting a mail bag which he understood to weigh between three and four kilograms (his report records five kilograms). From the description of the episode given to him, he was satisfied the applicant did suffer a tendon tear. His examination of ultrasound and x-ray reports of the left shoulder dated 30 November 2012, three days after the episode at work, (T89, page 163) satisfied him that the applicant did suffer a full-thickness rotator cuff tear of the supraspinatus tendon, which he regarded as an acute injury.
The history taken by Mr Khan of the incident on March 2006 satisfied him that the applicant did suffer back and neck pain but which eventually settled although there has been intervening episodes of exacerbation.
He was satisfied that the applicant has suffered continuous back pain after the incident on 27 May 2010 which he regarded as the main event (in relation to his back and neck injuries). He noted that the applicant reduced his working hours and confined his ju-jitsu responsibilities to instruction only. He also noted that the applicant ceased riding a motorcycle.
Mr Khan was not satisfied that the effects of the incident of 27 May 2010 had ceased. He was of the opinion that the applicant was continuing to suffer pain and discomfort in his lumbar spine. In addition to the history that he obtained that the applicant’s back pain did not settle following that event, he noted that an MRI report of 12 January 2012 (T52, page 92) demonstrated the presence of a L4/5 disc prolapse, which he said was minor and not acute. He noted from the report that the applicant also appears to have degenerative spondylosis and a minor degree of stenosis between L4/5 and L5/S1.
Mr Khan said he was not sure whether continuing physiotherapy would assist relieving the applicant’s symptoms. He thought it more appropriate that the applicant learn appropriate exercises which he could undertake himself. He thought physiotherapy would be appropriate only if his joints locked. When he learnt that the applicant had been assisting his son delivering local newspapers by walking three or four blocks near his home, he said that he supported the advice that had apparently been given by the applicant’s physiotherapist that he should exercise by walking. He said prescribing to and consumption by the applicant of Panadol Osteo, Panadeine Forte, Brufen and Celebrex were appropriate analgesic and anti- inflammatory medication.
In cross-examination, Mr Khan reaffirmed his opinion that the episode in May 2010 was a major event. He said the mechanism of injury occurred by the applicant’s spine being jarred (in his report he described the incident as a whiplash injury to the neck and lower back) which was significant in a person of his age with pre-existing degeneration. He acknowledged that the MRI in January 2012 was undertaken more than 18 months after the incident, however he was satisfied that there had been an aggravation of the pre-existing degeneration in the applicant’s spine which was responsible for the ongoing symptoms.
Mr Khan acknowledged the applicant did not consult Dr Chan between 2 July and 29 December 2010 with complaints of back or neck pain. In those circumstances he was asked to consider whether the applicant suffered a recurrence of symptoms in December 2010 by the presence only of the pre-existing degenerative changes. Mr Khan said he would need to know whether the applicant, when attending his doctor, complained of pain and whether he had ceased taking medication.
Although Mr Khan reported (page 4) that he obtained a history from the applicant that he had not previously suffered a left shoulder problem or injury, he was asked to consider that the clinical history recorded a number of entries of left shoulder pain between 1995 and 2009 including referrals for ultrasound. In those circumstances he was asked to consider whether the applicant had suffered an aggravation of pre-existing left shoulder degenerative disease when he lifted the mail bag in November 2012. He said the radiology pointed to the applicant having a full thickness tear which he was satisfied was caused in the circumstances described. He said the description of pain was consistent with the tendon tearing and he said the evidence of the applicant having heard a click was consistent also with a tear then having occurred. He did not expect to see symptomatic recovery after November 2012 and pointed to the applicant being referred to Mr Moaveni, a surgeon described by Mr Khan as being a shoulder specialist, for management. Mr Khan was satisfied that the applicant does need to have surgery to repair the tendon.
Presently, Mr Khan thought the applicant had a capacity to work rotating between sitting and standing and lifting with his right arm only but not exceeding five kilograms. He thought the applicant was capable of holding a bundle of mail in his left hand and throwing off (mail, when sorting) with his right hand.
Mr Khan was asked to consider the clinical information made available to Mr Haig and the opinions he subsequently expressed. In his report of 20 December 2013 (Exhibit R5) Mr Haig recorded that it was his opinion that the episode on 27 November 2012 was probably causative, or at the very least, aggravated a previously asymptomatic tear of the supraspinatus tendon. On 26 September 2014, Mr Haig was asked to reconsider that opinion and he was provided with some extracts from the clinical file of Dr Chan and one extract from the file of the Bridge Street Industrial Clinic. In a report of 17 November 2014 (Exhibit R7), Mr Haig recorded (page 2) that having regard to the information made available to him …I do not regard that event as having been causative. I would suggest that at most it was an aggravation of a long-standing left shoulder complaint due to a supraspinatus tear. At page 3 of his report he recorded …We now know that that shoulder and the supraspinatus tear were not previously asymptomatic.
The dates of the entries, the corresponding clinical notes and the response of Mr Khan to them are recorded as follows:
·16 July 2002 – applicant fell onto his outstretched left hand; he had pain with movement and palpation; his left shoulder, left wrist and left elbow joints were affected; joint stiffness; on examination his left shoulder and left wrist were tender, not hot; restriction was present and restricted range of movement. The diagnosis recorded was muscular damage? A prescription for Vioxx medication was issued and a referral for an x-ray of the left scaphoid and left shoulder was arranged. Mr Khan said those entries sounds minor.
·20 February 2003 – (this is the clinical entry from the Bridge Street Industrial Clinic – Dr Gross) Two days history of left shoulder pain after lifting a plastic bucket overhead. On examination painful arc left shoulder. Tender posteriorally left shoulder. Review physio. Dr Gross made diagnosis of strained left shoulder and prescribed Voltaren gel. Mr Khan said that a painful arc would be due to inflammation of the shoulder which he noted was not present four days after the initial presentation. (Mr Haig was not advised that Dr Gross consulted with the applicant on 24 February and recorded the strained left shoulder was much improved, on examination less tender posteriorally left shoulder and no painful arc).
·28 July 2006 – Neck pain. Joint stiffness. Affected joints: left shoulder, right shoulder. Mr Khan said nothing from those notes pointed to any problem with the applicant’s rotator cuff.
·20 March 2009 – His US (ultra sound) shows that he has a supraspinatus tear. (The applicant had presented to Dr Chan on 16 March. The right shoulder was found to be tender with restricted range of movement. Dr Chan queried whether the applicant had rotator cuff tendinitis. He referred the applicant for an ultrasound). Mr Khan noted the supraspinatus tear reported on 20 March 2009 was in the applicant’s right shoulder.
·15 May 2009 - He has muscle aches and pains on his shoulders and scapular on left. Mr Khan said that entry does not point to any problem with the applicant’s left rotator cuff.
·14 July 2009 - He has been a bit tired. He has pain in his left shoulder and also anterior chest wall. He wsa stressed and he had pain in his left arm – outer aspect (sic). Mr Khan again said that entry does not point to the applicant having a problem with his left rotator cuff.
·3 September 2009 - He has left shoulder tip pain. Left shoulder: scapula tender, not hot, not swollen, not red, no restriction, full ROM. Again, Mr Khan said that entry did not indicate the applicant having any problem with his left rotator cuff.
In concluding his evidence, Mr Khan said the findings following a nerve conduction study conducted by Dr Roberts had nothing to do with the rotator cuff. He reaffirmed his opinion that the incident of 27 November 2012 was significant and responsible for the tendon tear in the applicant’s left shoulder.
Ronald Haig
Mr Haig is a consultant orthopaedic surgeon who examined the applicant on 7 February 2013 and 14 November 2013. He completed five reports – 11 February 2013 (T93, page 172-181), 27 March 2013 (T105, page 208- 209), two reports both dated 20 December 2013 (Exhibits R5 and R6) and 17 November 2014 (Exhibit R7).
Mr Haig said it was his opinion that the applicant suffered some back and neck pain after he was struck by a car while riding his motorcycle in 2006. The symptoms diminished after a few weeks and about eight months later he complained of intermittent back and neck pain. He understood the applicant was again injured when he was struck by a car when he was stationary on his motorcycle in May 2010. He said the applicant was shunted forward, had complained of severe back and neck pain, was treated by Dr Chan and returned to work six weeks later on 3 July 2010. He noted the next complaint of back and/or neck pain was on 29 December 2010.
He concluded that the incidents in 2006 and 2010 were minor, there had been subsequent improvement, the applicant had returned to work and the effects of those injuries would not now be present. He said any symptoms now present would be a consequence of underlying pre-existing degeneration.
Mr Haig said that he obtained a history from the applicant that he had not suffered left shoulder symptoms prior to the incident in November 2012 (in his report of 11 February 2013 at page 174 he reported …When questioned about earlier left shoulder complaints or injuries Mr Papaioannou did not volunteer any. He referred to the “odd pain possibly from the neck”). Mr Haig said he was unable to interpret from the ultrasound conducted a few days after the incident on 27 November 2012 whether the findings then reported were of recent occurrence or long-standing. He said in the absence of any prior radiology of the left shoulder it was impossible to give that opinion.
Mr Haig was aware that the applicant had engaged in ju-jitsu and was of the opinion that it was more likely to be injurious to the applicant’s left shoulder than lifting a three or four kilograms bag of mail.
Mr Haig dismissed any association between the applicant’s complaints of back and neck pain which he had associated with walking from his home to a local train station and from the train station to his workplace. He said walking is a beneficial exercise and has no detrimental effect on a person’s back or neck. When he was appraised of the opinions of Dr Chan and Mr Khan in relation to the applicant’s capacity for work, Mr Haig said that the applicant was not totally incapacitated.
In cross-examination Mr Haig was asked to consider that the applicant had symptoms of back and neck pain since the motorcycle accident in May 2010 and in those circumstances that event should be regarded as significant.
Mr Haig said he interpreted that incident as minor because he did not fall, he was shunted forward and his symptoms have subsequently improved. He said he based his opinions on the information that had been provided to him. He was aware the applicant recorded in his claim form that he had been nudged about one meter and certificates were provided for a short period which indicated to him that incapacity was temporary and suggested recovery.
Mr Haig did not resile from those opinions when he was informed of the clinical history given to Dr Chan that the applicant had suffered a whiplash, which suggested more than a nudge and the opinion of Mr Khan that the accident in 2010 was a significant jolt. Additionally Mr Haig said he had not consulted the applicant since November 2013 and could not give an opinion on the applicant’s present capacity for work.
In relation to the applicant’s left shoulder injury, Mr Haig was taken to his report of 17 November 2014 in response to the letter sent to him by the respondent’s solicitors. He said he assumed that all of the recorded clinical entries related to the applicant’s left shoulder and he assumed that all of those complaints were in relation to the applicant’s left rotator cuff.
When he was told in cross-examination that the entry of 20 March 2009 related to a right rotator cuff tear he said that statistically it was likely that he had a left rotator cuff tear. When he was told that the clinical entry provided to him of 15 May 2009 was incomplete because Dr Chan also recorded Shoulder: right, tender, not hot, not swollen, not red, restriction present, restricted ROM, Mr Haig agreed that it was a reference to the applicant’s right shoulder.
Mr Haig said that reported pain to the outer aspect of the applicant’s left arm on 14 July 2009 was typical of rotator cuff pathology and a report of full range of movement of the left shoulder on 3 September 2009 did not exclude that pathology. He said the clinical entries referable to the applicant’s left shoulder on 14 July 2009 and 3 September 2009 rings bells of rotator cuff problems. Although he acknowledged that the applicant had lifted mailbags until November 2012 without difficulty, Mr Haig said he was not suggesting that the applicant had a left rotator cuff tear in 2009 but had rotator cuff pathology. When he learnt that the applicant heard a click in his left shoulder when he lifted the mail bag on 27 November 2012, experienced immediate pain, was unable to lift his arm and an ultrasound subsequently demonstrated a full thickness tear, Mr Haig said the tear probably then occurred.
In re-examination Mr Haig was asked to consider an entry in the clinical file of the Bridge Street Industrial Clinic of 29 May 2007 which recorded …on 21/5/07 developed L sided neck and shoulder soreness when after lfiting tub of mail 5-7kg felt click L supper scapula. o/e neck erp on LR and flexion tender L para C234 (sic). He said that could demonstrate the earlier occurrence of a small left shoulder tear.
I allowed Mr Carey on behalf of the applicant to examine on the issue immediately above because it did not arise out of his cross-examination. He asked Mr Haig to consider an entry on 31 May 2007 – strained neck… much improved…o/e full ROM less tender L lower neck and an entry on 5 June 2007 – strained neck. Mr Haig agreed that the presentation on 29 May 2007 suggested a neck injury.
Michael Epstein and George Mendelson
Doctors Epstein and Mendelson are psychiatrists who assessed the applicant at the request of his solicitors and the respondent, respectively. Neither were called however their reports were received as exhibits (A4, A5 and R8).
Dr Epstein was satisfied the applicant continues to suffer from a mild chronic adjustment disorder with mixed anxiety and depressed mood which was caused or contributed to by his employment (Exhibit A4, page 14). He was not satisfied that his mental state contributes to any incapacity for work and his prognosis for improvement was dependent on the improvement of his physical injuries.
Dr Mendelson was not satisfied that the applicant had any mental disorder capable of diagnosis and he did not have any clinically significant depressive illness or anxiety disorder. He acknowledged that the applicant did suffer emotional symptoms which were an understandable psychological reaction to his physical complaints and his current situation. He also thought the applicant’s complaints were amplified and perpetuated by his resentment and sense of grievance towards Australia Post. In his opinion the applicant did not have any loss of work capacity by his psychiatric illness.
Conclusion and Reasons for Decision
There were two issues that emerged during the hearing which the respondent contended were relevant to the applicant’s capacity to work and whether he had suffered injuries elsewhere. Those issues were the applicant delivering newspapers and his involvement in ju-jitsu.
The respondent contended that the applicant was capable of working because it learnt, shortly prior to the hearing, that he was delivering suburban newspapers in his neighbourhood, an activity which involved walking, pushing a trolley and inserting the newspapers into letterboxes. On closer enquiry, that activity was unpaid, involved about 20 minutes of delivery on most weeks within three or four blocks of the applicant’s home and then in a precinct near a local railway station where the applicant’s son, who was engaged by the newspaper publisher, preferred not to frequent. The applicant’s physiotherapist also recommended that he pursue walking to retain some degree of mobility. I am not satisfied that this activity could be equated with the work previously undertaken by the applicant nor could it point to an inconsistency with the applicant’s assertion of incapacity to resume working his pre-injury routine at five hours per day.
The applicant acknowledged that he had been engaged in ju-jitsu for many years and the respondent sought to associate back and neck pain and aggravation of the degenerative spinal disease with that activity.
However there was no evidence of the applicant suffering any injury whilst participating in ju-jitsu. Significantly the only involvement in ju-jitsu after May 2010 involved some limited demonstration only but mainly instruction where he stood and walked without any other physical activity. He also observed the participants in his classes whilst seated and was assisted by his daughter who held a black belt and by other senior students. I am not satisfied on the evidence that there is any association between the applicant’s participation in ju-jitsu and the deterioration in his degenerative spinal disease.
This review heard evidence of a number of injuries (and the aggravation or exacerbation of them) suffered by the applicant, over many years of his employment with it. In addition to the evidence of the applicant, evidence was also heard by four doctors. A considerable volume of medical and other clinical information was received into evidence.
The respondent has issued four reviewable decisions which are challenged by the applicant. They are recorded below. The reasons for those decisions, as may be gleaned from them are also summarised because of the overlapping effect and content of some of them.
In application 2013/3222, the respondent made a determination on 22 March 2013 (T104, pages 206-207) which was affirmed by reviewable decision on 19 May 2013 (T115, pages 227-229). A combination of the reasons of the primary decision maker and the reconsideration delegate indicates that prior to 6 December 2012, Dr Chan had certified the applicant as fit to work three hours per day. The cause of that partial incapacity was recorded as a temporary exacerbation of neck and back injury. Compensation was being paid for two hours of each day because the applicant was engaged to work five hours each day. On 6 December 2012, Dr Chan issued two certificates, one in relation to the back and neck injuries and the other in relation to the left shoulder injury. Both certificates certified total incapacity between 6 December 2012 and 1 February 2013. The reconsideration delegate decided there was no evidence to support an exacerbation or aggravation of back and neck injuries immediately prior to 6 December 2012. Liability was denied for the left shoulder injury (by a determination on 17 April 2013 – a reconsideration delegate ultimately decided to affirm that decision on 24 May 2013). Compensation was therefore denied in respect of salary of three hours per day because it was found that the applicant did have an ability to earn in suitable employment within this period. The entitlement previously existing for payment of compensation in respect of two hours per day, which was being paid prior to 6 December 2012, was unaffected. The decision ultimately made was a finding that the applicant had an ability to earn part of his salary in suitable employment for the period in question (6 December 2012 – 1 February 2013) in respect of his claim for temporary exacerbation of neck and back injury (page 229).
In application 2013/3226, a determination was made on 27 March 2013 (T106, pages 212-213) and affirmed by a reconsideration delegate on 9 May 2013 (T116, pages 230-232) denying liability, at 27 March 2013 pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of temporary aggravation of neck and back injuries. Both decision makers relied on the contents of a report from Mr Haig dated 11 February 2013.
In application 2013/3227, a determination was made on 17 April 2013 (T109, pages 217- 220) which was affirmed by a reconsideration delegate on 24 May 2013 (T118, pages 235-237) denying liability pursuant to section 14 of the Act for the injury described as incomplete large full thickness tear of tendon left shoulder.
For reasons which follow, I am satisfied that the three decisions immediately above should be set aside and a decision in each application be made in favour of the applicant.
The applicant suffered back and neck pain as a consequence of the motorcycle accident on 26 March 2006. He attended a facility doctor in Port Melbourne, was prescribed medication and referred for physiotherapy. The respondent provided light duties to the applicant for about 12 months and paid the costs of his medical and like treatment. His back and neck pain slowly improved but recurrences of pain, especially affecting the applicant’s back, were experienced thereafter.
In November 2007 the applicant experienced a severe episode of low back pain characterised by a burning and stabbing sensation extending to his left buttock and left thigh. The applicant said and his statement (Exhibit A1) recorded that he attended the facility doctor in Port Melbourne following this event. However the records of that clinic (Exhibit R1) did not have any entries of attendance in November 2007. There are entries recording a presentation on 6 December 2006 and five visits thereafter until 31 January 2007. The clinical notes record the applicant having attended with low back pain, inflammation and tenderness at L4/5. The applicant’s presentation with those symptoms had an association with his employment because there are references made by the doctors to a workers’ compensation claim, a report being prepared for the respondent and a reference to the compensation claim being rejected. The applicant confirmed that he did make a compensation claim, liability was denied and he did not challenge it.
The applicant experienced another episode of a severe onset of lower back pain at work in July 2009 when bending to place a mail bag in a tub. He suffered a cramping and burning sensation and immobility, with pain again extending into his left buttock and left leg. He was referred to a doctor in Bourke Street, Melbourne and medication was prescribed. The records of that doctor were not provided in evidence
I am satisfied therefore that immediately before 27 May 2010 the applicant had a history of neck but especially low back pain, reported to the respondent on three occasions each having an association with the work being undertaken. Between each reported event the applicant suffered recurrences of low back pain.
On 27 May 2010 the applicant was struck in Kings Way, Melbourne whilst riding his motorcycle. The applicant recorded in his claim form that he was nudged about one meter. Dr Chan recorded a history of the applicant experiencing a whiplash and Mr Khan described the applicant’s neck and spine being jarred. The applicant attended Dr Jennifer Andrews on the day of the accident. A certificate completed by her (T11, page 17) diagnosed whiplash type injury cervical spine and low back. She recorded car hit him from behind when on motorbike – pushed forward 1 m – jerk suddenly, not knocked off Pains++ left neck and low back. She prescribed medication and referred the applicant for physiotherapy. A combination of these medical entries points to the event being of some significance. The applicant said in the following days the pain in his lower back increased, especially on the left side.
Following this event the applicant was incapacitated for a short period, a compensation claim was made and eventually accepted. Dr Chan has continued to manage the applicant’s complaints of back pain which have occurred subsequently. The respondent apparently acknowledged the continuing pain to the extent that the applicant’s work duties were modified, it met the costs of medical treatment and paid compensation during periods of incapacity.
In November 2011 whilst delivering mail during a walking round, the applicant experienced another episode of increased back and neck pain. Subsequently, he received treatment by physiotherapy and was prescribed medication. The respondent reduced the hours worked by the applicant and paid compensation for time lost.
An examination of the evidence, especially from Dr Chan and by reference to his clinical notes indicates that there were continuing episodes of back pain, exacerbated by the work undertaken by the applicant. It would also appear that subsequent to the accident in May 2010, the applicant became vulnerable to the onset of exacerbations of back pain.
The respondent sought to minimise the effects of the accident in May 2010 by the description recorded by the applicant of being nudged and the evidence of Mr Haig who regarded the episode as minor because the applicant did not fall from his motorcycle, he was shunted forward, his symptoms improved and he returned to work. I do not think that Mr Haig was aware of the extent of the applicant symptomology subsequent to that accident.
I prefer the description of the event given by the applicant, the description recorded by Dr Andrews and the evidence of Dr Chan who has attended the applicant on a number of occasions. I especially prefer Dr Chan’s evidence to that of Mr Haig who examined the applicant on two occasions only and then for medico-legal purposes. I was impressed with Dr Chan who gave his evidence in a balanced manner and I regard him as a competent practitioner who has had the benefit of treating and observing the applicant for many years. The contemporaneous histories taken on presentations, together with the assessments and opinions of Dr Chan concerning the applicant’s diminished capacity to undertake work is also to be preferred.
I am satisfied that the motorcycle accident of May 2010 did contribute significantly to an aggravation of degenerative disease in the applicant’s spine which has subsequently increased the frequency and intensity of his symptoms. His work with the respondent subsequent to that accident, manifesting by an exacerbation of his symptoms have also contributed to the progress of the disease. I am satisfied the back and neck injuries, especially the back, were responsible for incapacity between 6 December 2012 and 1 February 2013 and have been responsible for incapacity, on the occasions when the applicant has been unable, in whole or part, to resume his pre-injury roster of 25 hours per week from 27 March 2013.
A few weeks prior to the commencement of the hearing, the respondent put the applicant’s solicitors and the Tribunal on notice that it would contend that the applicant should be prohibited from any entitlement to compensation in respect of his left shoulder injury, pursuant to s 7(7) of the Act because he had made a wilful and false representation. That application could only be considered and have relevance if the applicant suffered from a disease.
There were occasions from 1995 when the applicant attended Dr Chan (and on two occasions, his associate) with complaints of left shoulder pain. An interpretation of the clinical entries point to the presenting symptoms to be in the nature of muscular discomfort.
Dr Wu recorded the applicant presented with a rotator cuff tendinitis of his left shoulder on 3 July 2007. On 9 July 2007 the applicant returned and gave a history of low back pain. No reference was made by him to any complaint concerning the applicant’s left shoulder. Dr Chan said that it could reasonably be inferred that there was no continuing left shoulder pain or discomfort, by the absence of any reference in the clinical notes to the left shoulder during that consultation.
There were also occasions when Dr Chan referred the applicant for an ultrasound of his left shoulder but which the applicant did not pursue because the pain and discomfort had resolved.
The respondent contended that it was probable that the applicant had long standing pre-existing rotator cuff disease that was intermittently symptomatic from 1995. I am not satisfied that the applicant suffered a disease or the aggravation of a disease in his left shoulder before 27 November 2012. There is no evidence, clinically or in any pathology of a pre-existing disease affecting the rotator cuff. The applicant did complain, on occasions of shoulder pain but the clinical history shows it was of limited duration. He may reasonably be excused of having no memory of a number of these presentations to his doctors, some occurring almost 20 years before the hearing. His credit should not have been attacked because he has a poor memory. I regard him as a truthful witness.
I am satisfied the applicant suffered a frank, traumatic injury when lifting a mail bag of between three and four kilograms. At that instance the applicant dropped the bag, heard a click in his shoulder and felt intense pain. The summary of events deemed relevant by the respondent and provided to Mr Haig to which he responded in his report of 17 November 2014 was incomplete and the assumptions he made, especially by the absence of any further enquiry by him were disappointing and incorrect. He acknowledged at the hearing, when he heard a more comprehensive and balanced summary of the medical evidence, that the applicant did suffer a tear of his left shoulder tendon during the episode at work on 27 November 2012. The opinion recorded in his report of 17 November 2014, that the applicant had suffered an aggravation of a long-standing left shoulder complaint due to a supraspinatus tear, is wrong. There is no evidence of any supraspinatus tear of the left shoulder pre-existing 27 November 2012.
A combination of the applicant’s back and neck pain and the left shoulder injury, which has largely remained untreated, because the respondent denied liability for surgery (which has been recommended), contributes in combination to the applicant’s incapacity.
Dr Chan, who thought the applicant’s symptoms were in remission, and Mr Khan, thought the applicant had a capacity for work but with restrictions. They both also agreed that the applicant was capable of throwing off mail with his right hand and holding bundles in his left hand. They were both concerned that any work, of suitable duties, should be undertaken without exposing the applicant to increased levels of pain, he should be able to sit and stand with regular rotations and his returning to work and the rehabilitative effect of it should be supported and encouraged by the respondent. Dr Chan continues to provide certificates, the most recent, proximate to the determination in application 2013/3226 (ending liability on 27 March 2013 pursuant to sections 16 and 19 of the Act), was issued on 1 May 2013 which certified incapacity until 29 May 2013 (T119, page 275). In the week previous, on 22 April 2013 Dr Chan issued two certificates of identical content (one in respect of back and neck pain and stress and the other in relation to the left shoulder) imposing restrictions of not lifting above two kilograms, no repetitive bending of the back, limiting range of movement of the left shoulder and administrative work confined to short periods and a maximum of four hours of work per day (T119, pages 273 at 274).
Since 27 March 2013 there have been periods of time when he has not worked because of certified incapacity consequent on increased pain then being experienced (Exhibit A1, paragraph 30). The applicant has not worked since November 2014.
For all of the above reasons, I am satisfied the respondent is liable, under the Act, in each of the three decisions above. I am satisfied the employment by the respondent has significantly contributed to the aggravation of pre-existing cervical and lumbar disease in the applicant’s neck and back, respectively. I am also satisfied that the applicant suffered a left shoulder injury in the course of his employment on 27 November 2012.
In application 2013/6649, a determination was made on 24 September 2013 (T125, pages 284-285) and affirmed by a reconsideration delegate on 1 November 2013 (T128, pages 290-292) denying liability, pursuant to s 14 of the Act, for a secondary psychological condition as a result of the applicant’s physical conditions.
In December 2008 the applicant presented with symptoms of panic and Dr Chan referred him to Dr McIntosh. At review on 17 January 2008, a few days after the first consultation with Dr McIntosh, Dr Chan recorded that the applicant’s anxiety had diminished and he was settled. The applicant had a second and final consultation with Dr McIntosh on 23 January 2008. He was then discharged and referred back to Dr Chan. Dr McIntosh noted that the prescribed medication, which apparently resolved the applicant’s symptoms, was a placebo dose.
Doctor Chan first diagnosed the applicant with anxiety type symptoms in June 2011. The history then obtained was of the applicant experiencing stress associated with management of his compensation claim.
In March 2013, the applicant was referred to Dr Chong, because he was experiencing anxiety and depressive symptoms associated with his back and neck injuries and for issues associated with the management of his compensation claim. Dr Chong reported (Exhibit A7) and said in evidence that the applicant suffered a mental breakdown which sent him over the edge when he learnt of the contents of a report of Mr Haig. The applicant then presented in a depressed and anxious state, had been crying, had difficulty sleeping and had poor concentration. The applicant had learnt shortly prior to the consultation that a claim for compensation had been rejected. The applicant expressed his concern that his diminished income would cause difficulty meeting mortgage payments.
In a report to the applicant’s solicitors on 19 February 2015 (Exhibit A6) and in his evidence, Dr Chong diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, in partial remission. He reported the applicant needed to continue with treatment described as Long term – 6+ months or years.
Dr Chong was satisfied that the psychiatric illness suffered by the applicant was secondary to pain arising from the aggravation of his back and neck injuries, to which there was a significant contribution by the employment, and left shoulder pain which arose in the course of his employment. He also acknowledged that the applicant did suffer stress associated with his dispute with the respondent. He was satisfied the psychiatric illness did not contribute to incapacity.
Dr Epstein made an identical diagnosis of the applicant to Dr Chong. Dr Mendelson reported the applicant did not have any illness capable of diagnosis but did acknowledge the applicant suffered emotional symptoms in reaction to his physical complaints in his current situation. Doctors Epstein and Mendelson were satisfied the applicant was not incapacitated by his psychiatric illness (or his emotional symptoms).
On balance, I am satisfied that notwithstanding a contribution to the applicant’s psychological condition by stressors associated with his employment and the management of his compensation claims, the overwhelming and significant contribution has been his reaction to chronic, long standing responses to acute pain from three physical conditions. I find the respondent liable pursuant to s 14 for the applicant’s secondary psychiatric illness.
Decision
For the reasons given above. I am satisfied the reviewable decision in each of the applications should be set aside and in substitution it is decided:
(a)In application 2013/3222, the applicant did not have a capacity to earn between 1 December 2012 and 1 February 2013;
(b)In application 2013/3226, the respondent is liable on and from 27 March 2013 pursuant to ss 16 and 19 of the Act for compensation in respect of aggravation of pre-existing cervical and lumbar disease;
(c)In application 2013/3227, the respondent is liable pursuant to s 14 of the Act for a tear of the supraspinatus tendon of the left shoulder; and
(d)In application 2013/6649, the respondent is liable, pursuant to s 14 for the secondary psychiatric illness which I am satisfied is properly diagnosed as an adjustment disorder with mixed anxiety and depressed mood.
I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member ......[sgd]..................................................................
Associate
Dated 28 May 2015
Date(s) of hearing 23 and 24 March 2015 Counsel for the Applicant Mark Carey Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Michael Snell Solicitors for the Respondent Clarke Legal
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