Kallimanis and Linfox Australia Pty Ltd (Compensation)
[2020] AATA 1796
•11 June 2020
Kallimanis and Linfox Australia Pty Ltd (Compensation) [2020] AATA 1796 (11 June 2020)
Division:GENERAL DIVISION
File Number(s): 2018/2681
2019/2338
Re:Eftimios Kallimanis
APPLICANT
AndLinfox Australia Pty Ltd
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Dr L Bygrave, MemberDate:11 June 2020
Place:Sydney
APPLICATION 2018/2681
The reviewable decision, made by Linfox Australia Pty Ltd on 8 May 2018, that Mr Kallimanis had no present entitlement to payment of compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 respectively of the Safety, Rehabilitation and Compensation Act 1988 (Cth) arising from an accepted left elbow condition, is affirmed.
APPLICATION 2019/2338
The reviewable decision, made by Linfox Australia Pty Ltd on 12 April 2019, denying liability to compensate Mr Kallimanis pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) for claimed conditions of left ulnar neuritis, left axillary nerve lesion and left lateral epicondylitis, is affirmed.
...........................[SGD]...........................................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – application for review of decision affirming determination that Applicant not presently entitled to payments for incapacity benefits and medical expenses in respect of accepted left elbow condition – where Tribunal satisfied Applicant has not been incapacitated for work as a result of the accepted injury since the decision that the Applicant had no present entitlement – decision affirmed
WORKERS’ COMPENSATION – application for review of decision denying liability for claimed conditions – left ulnar neuritis – left axillary nerve lesion – left lateral epicondylitis – where Tribunal not satisfied on the balance of probabilities that the conditions were contributed to, to a significant degree, by the Applicant’s employment – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16, 19
CASES
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
REASONS FOR DECISION
Deputy President J W Constance
Dr L Bygrave, Member11 June 2020
Part 1 A. Introduction [1] B. Background [10] C. The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) [27] Part 2: Application 2018/2681 A. Issues for determination [35] B. Evidence of medical professionals [36] C. Discussion [47] Issue 1: Is Linfox liable to compensate Mr Kallimanis in respect of the cost of any medical treatment obtained by him in relation to the compensable injury on or since 26 March 2018? [49] Issue 2: Has Mr Kallimanis been incapacitated for work as a result of the compensable injury on, or at any time since, 26 March 2018? [55] Part 3: Application 2019/2338 A. Issues for determination [63] B. Evidence of Mr Kallimanis [69] C. Discussion [79] Issue 1: Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “ulnar neuritis at left arm”? [79] Issue 2: Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “lateral epicondylitis at left elbow”? [110] Issue 3: Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “axillary nerve lesion at left arm”? [136] Part 4 Application 2018/2681 [175] Application 2019/2338 [176] PART 1
INTRODUCTION, BACKGROUND AND LEGISLATION
A. INTRODUCTION
In 2017 Mr Kallimanis was an employee of Linfox Australia Pty Limited (Linfox). On 12 January 2017 he was injured in the course of his employment as a Storeperson.
Mr Kallimanis has made two separate applications to the Tribunal arising from the incident in which he was injured. Both applications are before us.
Application 2018/2681
On 13 January 2017 Mr Kallimanis lodged a claim for workers’ compensation with Linfox.[1] He claimed that on 12 January 2017 he suffered a “Bicep tear at elbow level” and that the part of his body affected was the “upper left arm from elbow”.[2] Linfox accepted that it was liable to compensate Mr Kallimanis in respect of the injury being an “acute rupture left distal biceps tendon”[3] (the compensable injury) in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
[1] Exhibit R1, 94.
[2] Exhibit R1, 97.
[3] Exhibit R1, 89; Report of Dr Yeoh dated 13 January 2017.
From the time of the incident until 26 March 2018 Linfox paid compensation to Mr Kallimanis in accordance with the Act in respect of his treatment expenses (section 16) and his incapacity for work (section 19).
On 26 March 2018 Linfox determined that Mr Kallimanis had no present entitlement to compensation for medical treatment and/or incapacity payments[4] and ceased making such payments. On 8 May 2018 Linfox decided to affirm the determination of 26 March 2018 (the first reviewable decision).[5]
[4] Exhibit R1, 268.
[5] Exhibit R1, 278ff.
On 14 May 2018 Mr Kallimanis applied to the Tribunal to review this decision.[6]
[6] Exhibit R1, 7.
Application 2019/1338
On 9 January 2019 Mr Kallimanis lodged another claim for workers’ compensation with Linfox.[7] He claimed that on 12 January 2017 (in the same incident as referred to in application 2018/2681) he suffered:
·rupture of biceps tendon at left arm;
·ulnar neuritis at left arm;
·axillary nerve lesion at left arm;
·lateral epicondylitis at left elbow.
[7] Exhibit R2, 317.
On 17 January 2019 Linfox denied liability to compensate Mr Kallimanis for the above conditions.[8] On 12 April 2019 Linfox decided to affirm the determination of 17 January 2019 (the second reviewable decision).[9]
[8] Exhibit R2 p.322.
[9] Exhibit R2, 348.
On 30 April 2019 Mr Kallimanis applied to the Tribunal to review this decision.[10]
[10] Exhibit R2, 3.
B. BACKGROUND
Unless stated otherwise the findings of fact in these reasons are based on the evidence of Mr Kallimanis. We are satisfied of the facts found on the balance of probabilities.
Mr Kallimanis provided a statement dated 22 July 2019[11] and gave evidence at the hearing.
[11] Exhibit A1.
Mr Kallimanis is 57 years old. He commenced employment with Linfox in 2011.
In his statement Mr Kallimanis described the circumstances of his being injured as follows:
… I was moving a crate so that it would sit on a pallet correctly. I did not realise how heavy the crate was. It did not have a “heavy item” sticker on it. When I went to lift and slide the crate, I felt sudden severe pain in my left elbow.[12]
[12] Exhibit A1, [19].
He provided more detail when he gave evidence:
Mr Kallimanis: I had proceeded to lift it up a little bit and then, slide it over as well because the pallet had its legs were inside the actual pallet groove. It was unsafe. So, I lift and slide it. It wasn’t more than so much, just to get enough room over. … Just a couple of centimetres, just to get it away – out of the groove, because it was pinned in the groove.
…
Counsel for the Respondent: When you say “sliding”, was the weight of whatever it was still partially supported by the pallet itself?
Mr Kallimanis: Yes. It was – yes, but, it was hanging over.
Counsel for the Respondent: And you were seeking to realign it?
Mr Kallimanis: Realign it to make it more safe.[13]
[13] Transcript, 5 November 2019, 37.
The injury was diagnosed as a rupture of a tendon in the left bicep.[14] On 19 January 2017 the rupture was surgically repaired by Dr Yeoh.[15]
[14] Exhibit R1, 49.
[15] Exhibit R1, 122.
Linfox accepted liability to compensate Mr Kallimanis in respect of the injury. He was paid compensation for medical expenses and loss of earnings.
Mr Kallimanis was off work for about three months following the injury. During this time he received physiotherapy as prescribed by his doctors. He returned to work on light duties and restricted hours. He gradually progressed to full-time hours but remained on restricted duties as the injury to his bicep prevented heavy lifting. Linfox continued to compensate Mr Kallimanis in respect of the injury.
Mr Kallimanis said that:
·for months after the biceps repair surgery he continued to suffer pain and restriction of movement in his left elbow and tingling in the fingers of his left hand;
·about mid-2017 he began to experience pain in his left shoulder such that he felt that his left arm was becoming useless; he had not experienced this pain previously;
·he continues to take Panadeine Forte for pain in his left bicep, elbow and shoulder.[16]
[16] Exhibit A1.
There is disagreement between the parties as to when Mr Kallimanis began to experience pain in his left shoulder. We will refer to this evidence in more detail in Part 3 of these reasons.
In January 2018 Mr Kallimanis had an ultrasound guided injection into his left cubital tunnel (part of the elbow) on the recommendation of Dr Yeoh.
On 26 March 2018 Linfox determined that Mr Kallimanis had no present entitlement to compensation for medical treatment and/or incapacity payments[17] and ceased making such payments. On 8 May 2018 Linfox made the first reviewable decision (referred to in paragraph 5 of these reasons) which affirmed the determination of 26 March 2018.
[17] Exhibit R1, 268.
In August 2018 Mr Kallimanis underwent a left cubital tunnel release by Dr Yeoh and subsequent physiotherapy. He paid $1,900 for the procedure and also paid for the physiotherapy. Following this treatment, the tingling he felt in his left fingers improved for some time but has now returned.
In late 2018 and early 2019 Mr Kallimanis attended a series of meetings at the request of Linfox. He was told that he needed to provide full medical clearance from his doctors so that he could return to his pre-accident duties. Mr Kallimanis was unable to provide this by reason of continuing problems with his left elbow and left shoulder.
On 12 March 2019 Linfox terminated Mr Kallimanis’ employment. Until that time Linfox had been able to allocate him restricted duties which did not involve heavy lifting.
Since his employment was terminated, Mr Kallimanis has attempted to find alternative paid employment without success. We will refer to his evidence in this regard later.
On 9 January 2019 Mr Kallimanis applied for compensation for other injuries to his left arm and shoulder. On 12 April 2019 Linfox made the second reviewable decision (referred to in paragraph 8 of these reasons) refusing liability to compensate Mr Kallimanis in respect of the claimed injuries.
C. THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 5A(1) provides:
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Disease is defined in section 5B:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Subsection 4(1) defines ailment as:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Subsection 16(1) provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
32.Subsection 19(1) relevantly provides:
This section applies to an employee who is incapacitated for work as a result of an injury …
The injury referred to is an injury in respect of which compensation is payable under section 14.
The remaining subsections of section 19 provide the method of calculation of the amount of compensation payable when the employee has been “unable to work or unable to work at the level at which the employee worked before the injury.”[18]
PART 2
APPLICATION 2018/2681
DECISION TO DENY LIABILITY FOR CONTINUING PAYMENTS UNDER SECTIONS 16 & 19
[18] Subsection 19(2A).
A. ISSUES FOR DETERMINATION
The following issues arise for determination in this application.
(1)Is Linfox liable to compensate Mr Kallimanis in respect of the cost of any medical treatment obtained by him in relation to the compensable injury on or since 26 March 2018?
(2)Has Mr Kallimanis been incapacitated for work as a result of the compensable injury on, or at any time since, 26 March 2018?
B. EVIDENCE OF MEDICAL PROFESSIONALS
Report of Dr Yeoh of 21 July 2017
Dr Yeoh provided several other reports[19] to which we shall refer later in these reasons. He did not give oral evidence.
[19] Exhibit A2.
Mr Kallimanis consulted Dr Yeoh on 21 July 2017, six months post-surgery. In a report of the same date Dr Yeoh recorded Mr Kallimanis as suffering “ongoing but subsiding left distal biceps tendon irritation” and “left lateral epicondylitis.”[20]
[20] Exhibit R1, 161.
Reports of Dr Annett, Sports Physician
Mr Kallimanis was referred to Dr Annett by Dr Yeoh.
Dr Annett provided the following reports:
·5 September 2017;[21]
·17 October 2017;[22]
·28 November 2017.[23]
[21] Exhibit R1, 182.
[22] Exhibit R1, 185.
[23] Exhibit R1, 224.
Dr Annett did not give evidence at the hearing.
On 17 October 2017 Dr Annett reported that Mr Kallimanis “still has grumbling non-specific elbow pain post-surgery, most likely is a combination of stiffness and muscle weakness.”[24]
[24] Exhibit R1, 185.
Evidence of Dr Steadman, Consultant Orthopaedic Surgeon
Dr Steadman assessed Mr Kallimanis at the request of the Solicitors for Linfox on 12 July 2017 and 31 January 2018. He provided reports dated 28 July 2017,[25] 18 August 2017,[26] 23 February 2018,[27] 17 September 2018[28] and 7 November 2018[29] and gave evidence at the hearing.
[25] Exhibit R1, 164.
[26] Exhibit R1, 173.
[27] Exhibit R1, 255.
[28] Exhibit R2, 294.
[29] Exhibit R2, 311.
In his report of 23 February 2018 Dr Steadman expressed the opinion that Mr Kallimanis no longer suffered from any restriction arising from the injury to his bicep. In his view, Mr Kallimanis was “in a position to resume normal work activities and work judiciously with any lifting.”[30] On 17 September 2018 Dr Steadman confirmed that no further treatment was required for the bicep tendon injury.[31]
[30] Exhibit R1, 260.
[31] Exhibit R1, 299.
Evidence of Dr Pillemer, Orthopaedic Surgeon
Dr Pillemer assessed Mr Kallimanis at the request of his Solicitors on 16 August 2018 and 16 May 2019. Dr Pillemer provided reports dated 16 August 2018,[32] 26 November 2018,[33] 16 May 2019[34] and 26 September 2019.[35] He gave evidence at the hearing.
[32] Exhibit R2, 286.
[33] Exhibit R2, 314.
[34] Exhibit A6.
[35] Exhibit A7.
Following his assessment of Mr Kallimanis on 16 August 2018, Dr Pillemer reported that:
·Mr Kallimanis was aware of slight stiffness in his left elbow;
·he had a full range of extension, pronation and supination in the elbow;
·flexion of the elbow was restricted to 120 degrees.
Following his assessment of Mr Kallimanis in May 2019, Dr Pillemer noted that Mr Kallimanis’ “main injury was the rupture of the distal insertion of his biceps tendon, which has been repaired satisfactorily but with slight breakdown of the repair as noted. He has however regained an almost full range of elbow movements.”[36]
[36] Exhibit A6, 3.
C. DISCUSSION
Although applications such as the one before us are commonly referred to as applications to review “cease effects” decisions, it is not necessary that we be satisfied that the compensable injury no longer has any effect at all on Mr Kallimanis. There is undisputed evidence that there has been a slight breakdown in the repair of the tendon and that this has caused “bunching” of the tendon towards the shoulder. However, Dr Pillemer and Dr Steadman gave evidence concurrently and agreed that the actual rupture of the tendon had been repaired with a “satisfactory” result.[37]
[37] Transcript, 6 November 2019. 116.
The issues before us are whether Mr Kallimanis has required medical treatment for the injury and whether he has been incapacitated for work as a result of the injury at any time since Linfox decided it was no longer liable to compensate him in respect of any claims in this regard.
Issue 1: Is Linfox liable to compensate Mr Kallimanis in respect of the cost of any medical treatment obtained by him in relation to the compensable injury on or since 26 March 2018?
Section 16 of the Act requires Linfox to compensate Mr Kallimanis “in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)”.
We are satisfied that since 26 March 2018 and at the date of these reasons, there was no medical treatment obtained by Mr Kallimanis in relation to the injury that it was reasonable for him to obtain.
Reasoning
Our reasoning for this conclusion is set out in the following three paragraphs.
On the basis of the evidence of the medical professionals to which we have referred, we are satisfied that by 28 March 2016 the injury to Mr Kallimanis’ biceps tendon had been satisfactorily repaired.
Mr Kallimanis gave evidence that in August 2018 he underwent a left cubital tunnel release and subsequent physiotherapy, being treatment for which he paid. For the reasons stated in relation to application 2019/2338 (see Part 3 of these reasons), we are not satisfied that these costs were for medical expenses obtained in relation to the left biceps tendon injury.
Dr Steadman assessed Mr Kallimanis in September 2018. At that time Dr Steadman expressed the opinion that “no additional treatment would be required for the work-related injury.”[38] This evidence was not contradicted and we accept it.
Issue 2: Has Mr Kallimanis been incapacitated for work as a result of the compensable injury on, or at any time since, 26 March 2018?
[38] Exhibit R2, 299.
It is not in dispute that Mr Kallimanis was incapacitated for work for three months after he was injured. He then began a graduated return to full-time work on restricted duties.
Further evidence of Mr Kallimanis
Before and since Mr Kallimanis’ employment was terminated, he has applied for many positions. These include jobs in administration, warehouse administration and supervision and security services. He is continuing to seek employment.
During 2019, on average once per month, Mr Kallimanis assisted a friend who operates a security business. This assistance included setting up spreadsheets, advice on rostering and attending interviews. He was not paid for the assistance he provided.
Mr Kallimanis agreed that he could work in an administrative capacity in a security business and as a static security guard.[39]
[39] Transcript, 5 November 2019, 22.
Further evidence of Dr Steadman
Having assessed Mr Kallimanis on 17 September 2018, Dr Steadman was of the view that Mr Kallimanis’ incapacity “continues due to the degenerative conditions, not due to the initial work-related condition.”[40]
[40] Exhibit R2, 299.
Reasoning
We have concluded that Mr Kallimanis has not been incapacitated for work as a result of the injury to his left biceps tendon on, or at any time since, 26 March 2018. Our reasons are set out in the following two paragraphs.
On the basis of the evidence of Mr Kallimanis we are satisfied that at all times since 26 March 2018 he has had the capacity to work full-time in an administrative role in the security industry. He has demonstrated a capacity to undertake this work on an unpaid basis and Mr Kallimanis agreed that he could undertake such work on a full-time basis.
For the reasons stated in the following Part we are satisfied that the ongoing conditions of his left arm suffered by Mr Kallimanis are not related to his employment by Linfox. Any loss of earnings arising from incapacity suffered as a result of these conditions is not compensable.
PART 3
APPLICATION 2019/2338
DECISION TO DENY LIABILITY TO COMPENSATE FOR OTHER CLAIMED INJURIES UNDER SECTION 14
A. ISSUES FOR DETERMINATION
The following issues arise for determination in this application.
(1)Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “ulnar neuritis at left arm”?
(2)Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “lateral epicondylitis at left elbow”?
(3)Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “axillary nerve lesion at left arm”?
We have not referred to the claim for the rupture of the left biceps tendon as Linfox accepted liability to compensate Mr Kallimanis in respect of this injury on 16 January 2017. This aspect of the second claim was not pressed on behalf of Mr Kallimanis at the hearing.
The judgement of the High Court of Australia in Canute v Comcare[41]
[41] [2006] HCA 47; (2006) 226 CLR 535.
In considering the concept of “an injury” within the meaning of the Act, the High Court said:
At this juncture, three things may be observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than one “injury”. The use in s 24(1) of the indefinite article in the expression “an injury” reinforces that conclusion.[42]
The judgement of the High Court of Australia in Military Rehabilitation and Compensation Commission v May[43]
[42] [2006] HCA 47; (2006) 226 CLR 535 at 540 [10].
[43] [2016] HCA 19; (2016) 257 CLR 468.
In Military Rehabilitation and Compensation Commission v May, the High Court considered the definition of “injury” prior to the insertion of section 5A. The relevant wording of section 5A is the same as that considered by the Court.
As to the meaning of “injury” under the Act, the majority said:
The set of conditions answering the definition of “injury” in the Act relevantly comprises two sub-sets, “disease” and “injury (other than a disease)”, the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.
…
“Injury” in para (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word” (emphasis added).
That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an “injury” in the primary sense.
However, as the Full Court correctly held, “suddenness” is not necessary for there to be an “injury” in the primary sense. A physiological change might be “sudden and ascertainable”. A physiological change might be “dramatic”. The employee’s condition might be a “disturbance of the normal physiological state”. That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant. As the Full Court said, “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.[44]
(Footnotes omitted.)
[44] [2016] HCA 19; (2016) 257 CLR 468, 479-481 [42], [45]-[47].
The High Court provided guidance as to the manner of determining whether an employee has suffered an injury within the meaning of the Act. The precise evidence must be considered “on a fact by fact basis”.[45] The decision-maker must then consider whether the employee has suffered a “disease”. If the answer is “no”, it is necessary to consider whether the employee has suffered “an injury (other than a disease)”.
[45] [2016] HCA 19; (2016) 257 CLR 468 at 481 [49].
B. EVIDENCE OF MR KALLIMANIS
The evidence Mr Kallimanis gave in his statement of 22 July 2019[46] concerning the development of pain in his left arm and shoulder, is set out in paragraph 18 of these reasons. He goes on to describe ongoing pain and restricted movement in his left elbow and left shoulder and a “burning pain” from his left shoulder to his elbow.[47] He wears a brace on his left elbow to protect it. His left arm becomes very fatigued.
[46] Exhibit A1.
[47] Exhibit A1, [55].
In his claim form dated 9 January 2019[48] Mr Kallimanis stated he first noticed the claimed injuries on 12 January 2017 when he was shifting the crate.
[48] Exhibit R2, 317.
When he gave oral evidence, Mr Kallimanis confirmed that he felt pain in his left shoulder at the time he was injured and that he informed Dr Han, his General Practitioner, of this on the same day. He believes he also informed Dr Yeoh.[49]
[49] Transcript, 5 November 2019, 39.
During the latter half of 2017 Mr Kallimanis was taking Panadeine Forte to relieve the pain in his left bicep, elbow and shoulder. By the end of 2017 his shoulder and elbow were equally troublesome.[50] He continues to take medication for pain.[51]
[50] Transcript, 5 November 2019, 60-61.
[51] Transcript, 5 November 2019, 47.
In January 2018 Dr Yeoh injected cortisone into Mr Kallimanis’ left shoulder.[52] Dr Yeoh reported this as a left shoulder subacromial injection.[53]
[52] Transcript, 5 November 2019, 42.
[53] Exhibit R2, 229.
In February 2018 nerve conduction studies were performed on the ulnar and median nerves of Mr Kallimanis’ left arm.[54]
[54] Transcript, 5 November 2019, 56.
In August 2018 Dr Yeoh performed a left cubital tunnel release on Mr Kallimanis’ left elbow.
In May 2019 Mr Kallimanis was experiencing numbness and tingling in his left ring and little fingers which was slightly improving. He continued to suffer pain in and around his left elbow and pain in his left shoulder.[55]
[55] Transcript, 5 November 2019, 48.
When he gave evidence in November 2019 Mr Kallimanis described the sites of the pain/numbness he was then suffering as follows:
·numbness from the inside to the outside of his left elbow;
·pain and a “pinched nerve feeling” from just below his left elbow to a point about 15cm down the inside of his forearm, also described as the middle of the forearm;
·numbness and tingling all the way down the left forearm to the middle, ring and little fingers;
·pain from the inside of the left elbow up the outside of the upper arm to the back of the left shoulder,[56] described as a “pull pain”.[57]
[56] Transcript, 5 November 2019, 50-53.
[57] Transcript, 5 November 2019, 54.
He said these pains are present all the time and that his left hand becomes fatigued.[58] The same symptoms were present from the time of the incident. Mr Kallimanis said that he informed his treating doctors of these symptoms.[59]
C. DISCUSSION
Issue 1: Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “ulnar neuritis at left arm”?
[58] Transcript, 5 November 2019, 53.
[59] Transcript, 5 November 2019, 55-56.
1.1 Evidence of Dr Han, General Practitioner
When he gave evidence at the hearing, Dr Han was questioned in detail as to the contents of his notes of consultations with Mr Kallimanis. Having said that he would make a note of all parts of the body in respect of which a patient complained of pain, particularly when there was the possibility of a workers compensation claim.[60] Dr Han agreed that at the time of his consultation on 12 January 2017 he was unaware of Mr Kallimanis complaining of pain relating to his ulnar nerve and remained unaware of this “for many months thereafter”.[61]
[60] Transcript, 6 November 2019, 103.
[61] Transcript, 6 November 2019, 105-106.
1.2 Report of Dr Yeoh of 30 May 2017
On 30 May 2017 Dr Yeoh examined Mr Kallimanis and reported that:
Some of this [pain] is suggestive of cubital tunnel syndrome/ulnar nerve irritation, with shooting pain down towards the ulnar side of the wrist. However, this is not reproduced on clinical examination and the examination findings are more suggestive of a general overuse problem.[62]
[62] Exhibit R2, 142.
1.3 Evidence of Dr Pillemer
Having taken a history from Mr Kallimanis in August 2018, Dr Pillemer diagnosed him as having “significant symptoms of ulnar neuritis on the left side …”.[63] In the opinion of Dr Pillemer these symptoms were due to the injury on 12 January 2017.[64] He reported, in part:
As far as the ulnar nerve is concerned, this came on post-operatively and noting his period of immobilization and the surgery carried out in the area, in my opinion it is quite easy to visualize pressure being placed on his ulnar nerve during his 12 weeks of immobilization.[65]
[63] Exhibit R2, 289.
[64] Exhibit R2, 289; Report of Dr Pillemer dated 16 August 2018.
[65] Exhibit R2, 289.
In the same report Dr Pillemer records that Mr Kallimanis informed him that the sensitivity in his left elbow associated with pins and needles radiating to the fourth and fifth fingers of the left hand began immediately after his surgery.[66] When he gave oral evidence Dr Pillemer said:
He had no ulnar nerve symptoms before the operation, so something must have happened from the time of the operation until he wakes up the next day with pins and needles to have caused some damage to the ulnar nerve.[67]
[66] Exhibit R2, 287.
[67] Transcript, 6 November 2019, 120.
Dr Pillemer re-examined Mr Kallimanis on 16 May 2019. He affirmed his opinion that Mr Kallimanis’ ongoing symptoms (including those of ulnar neuritis) were due to his original injury on 12 January 2017. He said that “this can be justified on the basis that he was asymptomatic prior to his injury and that all his symptoms have occurred since then.”[68]
[68] Exhibit A6, 4.
When he gave oral evidence, Dr Pillemer said that the injury to the ulnar nerve could have been caused as Mr Kallimanis was being moved during the operation, the application of the operating cast or by a compression bandage applied immediately after surgery.[69]
[69] Transcript, 6 November 2019, 120-121.
1.4 Evidence of Dr Steadman
Following his examination of Mr Kallimanis on 12 July 2017, Dr Steadman reported, in part:
The condition [torn left biceps tendon and ulnar nerve irritation] is a result of the left elbow injury sustained on 12.01.2017. I am not aware of any pre-existing factors or non-employment factors that have contributed to this.[70]
[70] Exhibit R1,169.
Dr Steadman re-examined Mr Kallimanis on 31 January 2018. After considering the results of nerve conduction studies of Mr Kallimanis’ left arm, he was of the opinion that the condition of his ulnar nerve was not likely to be work-related. His reason for this conclusion was that the nerve conduction studies showed that the ulnar nerve had some entrapment proximal to the cubital tunnel and this was not likely to be work-related.[71] This area was not subject to surgical intervention; the condition was a result of progressive constitutional problems.[72]
[71] Exhibit R1, 260.
[72] Exhibit R1, 260-261; Report of Dr Steadman dated 23 February 2018.
In his report of 17 September 2018[73] Dr Steadman expressed the opinion that the force involved in the mechanism of the injury to the bicep (predominately resisted elbow flexion) would not cause the entrapment of the ulnar nerve in the cubital tunnel. When he gave evidence at the hearing, he said that the ulnar nerve is largely preserved away from the traction.[74]
1.5 Reasoning
[73] Exhibit R2, 294; Report of Dr Steadman dated 17 September 2018.
[74] Transcript, 6 November 2019, 123.
1.5.1 The nature of the claimed injury
The evidence as to when Mr Kallimanis first experienced the pain radiating from his elbow to his hand (described by both Dr Pillemer and Dr Steadman as symptomatic of an ulnar nerve lesion) varies.
Mr Kallimanis told us that he experienced this pain immediately after he was injured on 12 January 2017 and that he informed his treating doctors of this at the time. However Dr Pillemer said that Mr Kallimanis told him that the pain began after the surgery to repair the damaged tendon.
As the surgery was performed only seven days after the initial injury and as a result of the effluxion of time, it may be that Mr Kallimanis’ recollection of the onset of the pain is faulty. We do not accept his evidence in this regard. Based on the evidence of Dr Pillemer and the absence of any record of a complaint of such pain by either Dr Han or Dr Yeoh until some months after the initial injury, we are satisfied that Mr Kallimanis did not suffer the pain radiating down his left forearm until some time between the surgery on his ruptured bicep tendon and his examination by Dr Yeoh on 30 May 2017. On the evidence before us we cannot be more specific.
Counsel for Mr Kallimanis argued that:
On 12 January 2017 the Applicant suffered a trauma to his left bicep tendon so violent as to cause a serious rupture requiring urgent surgery. In May after months of immobilisation the Applicant was allowed to move his left arm again. Movement of the left arm provoked ulnar symptoms in his left arm. It is unlikely given that the same arm is involved, the severity of the initial trauma and the chronicity that this is all mere co-incidence. This is particularly so given the lack of ulnar symptoms in the left arm prior to the trauma.[75]
[75] Applicant’s Written Submissions dated 4 December 2019, [83].
It is not in dispute that the Applicant suffers ulnar neuritis being an inflammation of the ulnar nerve. It was argued that the condition suffered is an “injury other than a disease” within the meaning of section 5A of the Act. In the Applicant’s Submissions Counsel described the injury as an “ulnar nerve lesion”. We proceed on the basis that the injury being claimed is a lesion of the ulnar nerve manifesting itself in inflammation of that nerve.
1.5.2 Did the claimed condition arise out of, or in the course of, Mr Kallimanis’ employment?
Paragraph 5A(1)(b) of the Act requires that to be an injury for the purposes of section 14, the condition suffered must be one “arising out of, or in the course of the employee’s employment”.
On the question of the causation of the ulnar neuritis, we prefer the evidence of Dr Steadman to that of Dr Pillemer.
Dr Pillemer reasoned that as Mr Kallimanis did not suffer the symptoms of ulnar neuritis before the surgery but did so after, the condition was caused by the surgery which was necessary to repair the injury to his bicep tendon. He referred to the various incidents, which may have caused the condition during surgery, as “possibilities”.[76] His reasoning was based on the proposition that Mr Kallimanis did not suffer the symptoms until after the surgery and speculation as to the possible causes of this change in his condition.
[76] Transcript, 6 November 2019, 121.
When informed that Mr Kallimanis claimed that he suffered the symptoms of a nerve lesion immediately after moving the crate (which evidence we do not accept), Dr Pillemer relied on the same means of diagnosis – that if he had no symptoms before the incident and did so immediately afterwards, it appeared that he damaged the nerve at the same time as he damaged his bicep.[77] Dr Pillemer said the force required to move the crate may have caused some traction on the ulnar nerve.
[77] Transcript, 6 November 2019, 121.
When pressed, Dr Pillemer relied on the proposition that where there is no complaint before an incident and complaint thereafter, this points to the cause of the complaint being the intervening incident. He applied this reasoning to explain three possible causes of the ulnar lesion – the incident on 12 January 2017, the surgery on 19 January 2017 and the immobilisation of Mr Kallimanis’ left arm. We do not accept this reasoning as persuasive when it relates to the causation of a medical condition.
Dr Pillemer agreed that his reasoning could only lead to the conclusion that there “might be” a causal connection between the incident and the subsequent condition.[78] He agreed also that the longer the time between the incident and the onset of symptoms, the more tenuous is the causal connection between the two.[79]
[78] Transcript, 6 November 2019, 154-5.
[79] Transcript, 6 November 2019, 152.
In relation to the causal connection between Mr Kallimanis resuming use of his arm after immobilisation and the onset of ulnar nerve symptoms, Dr Pillemer said that it was “possible” but that he could not put it any stronger than that.[80]
[80] Transcript, 6 November 2019, 155.
On the other hand, Dr Steadman was far more precise in his explanation for his opinion that the ulnar neuritis was caused by degenerative changes in Mr Kallimanis’ elbow causing pressure on the ulnar nerve where it passes through the cubital tunnel.
Dr Steadman gave a clear description of the three types of lesion which may affect the ulnar nerve. He described the condition suffered by Mr Kallimanis as a “middle scope injury … where the nerve looks normal but the tubules inside are damaged for some reason…[81] He explained that the tubules are inside the nerve, some of which are sensory and some are motor.
[81] Transcript, 6 November 2019, 119.
Initially Dr Steadman formed the view that the ulnar neuritis was work-related, but he changed his opinion after he had the benefit of the nerve conduction studies carried out on 21 February 2018 at his request. The studies showed that the lesion in the nerve was located proximal to the cubital tunnel which was not within the site of the surgery to repair the torn biceps.
The report of the nerve conduction study stated, in part:
There was marginal slowing of left ulnar motor nerve conduction on inching studies in the segment just proximal to the medial epicondyle. Otherwise ulnar nerve conduction studies were within normal limits. These findings do not provide convincing evidence of left ulnar neuropathy at the elbow.[82]
[82] Exhibit R1, 254.
It was argued on behalf of Mr Kallimanis that the claimed condition of the ulnar nerve was a result of trauma and was therefore an injury other than a disease within the meaning of the Act. For the reasons stated we are not satisfied that either the ulnar lesion or the ulnar neuritis suffered by Mr Kallimanis is an injury within the meaning of the Act. We are not satisfied that either condition arose out of, or in the course of, his employment by Linfox.
1.5.3 A “disease” within the meaning of section 5B?
As Mr Kallimanis’ case was argued on the basis that the claimed condition was caused by trauma, we did not first consider the question of whether the condition was a “disease”.
On the basis of the evidence of Dr Steadman we are satisfied that the condition of ulnar neuritis suffered by Mr Kallimanis was an “ailment” as defined in section 4 of the Act. It is properly described as a “physical disorder”.
However, based on the further evidence of Dr Steadman, we are not satisfied that the condition was contributed to, to a significant degree, by Mr Kallimanis’ employment by Linfox. Our reasoning for preferring his evidence is the same as set out in the preceding paragraphs.
The claimed condition of ulnar neuritis does not meet the definition of “disease” within the meaning of section 5B of the Act.
Conclusion
Linfox is not liable to compensate Mr Kallimanis in respect of the claimed injury of ulnar neuritis or the condition of an ulnar nerve lesion.
Issue 2: Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “lateral epicondylitis at left elbow”?
2.1 Evidence of Mr Kallimanis
Mr Kallimanis’ evidence as to this condition is set out in paragraph 18 of these reasons. He said that he continues to suffer numbness from the inside to the outside of his left elbow and that he suffered pain in his elbow immediately after the incident on 12 January 2017.
2.2 X-ray of Mr Kallimanis’ left elbow performed 12 January 2017
The report stated, in part:
There is a small amount of spurring present over the coronoid process as well as the dorsal aspect of the oleoranon and on both medial and lateral humeral epicondyles. This likely represents underlying flexor and extensor tendonosis.[83]
[83] Exhibit R1, 92.
2.3 Reports of Dr Yeoh
On 13 July 2017 Dr Yeoh reported, in part:
… he has noted some increasing lateral elbow pain and he is tender over the lateral epicondyle, consistent with lateral epicondylitis or tennis elbow. This is probably related to him not using the elbow properly mechanically because of the injury.[84]
[84] Exhibit A2.
On 21 July 2017 Dr Yeoh reported that an MRI scan “confirmed features of lateral epicondylitis, explaining the pain on the lateral side of his elbow.”[85] Dr Yeoh referred Mr Kallimanis to Dr Annett to supervise a program to deal with the epicondylitis.
[85] Exhibit A2.
2.4 Reports of Dr Annett, Sports Physician
Mr Kallimanis first consulted Dr Annett on 5 September 2017. On the same day Dr Annett reported that “he has continued to complain of fairly generalised pain around the elbow”[86]. In his opinion these symptoms seemed to be more indicative of a post-injury pain syndrome.
[86] Exhibit R1, 182.
Having reviewed Mr Kallimanis on 17 October 2017, Dr Annett reported that he still had “grumbling non specific elbow pain post surgery, most likely is [sic] a combination of stiffness and muscle weakness.”[87]
[87] Exhibit R1, 185.
In his report of 28 November 2017[88] (following examination on that day), Dr Annett was of the view that Mr Kallimanis was suffering from a chronic pain syndrome relating to his elbow.
[88] Exhibit R1, 224.
2.5 Evidence of Dr Pillemer
When he gave evidence Dr Pillemer was asked if he had a view as to how the epicondylitis suffered by Mr Kallimanis arose. He said that he did not and that he could not explain how it occurred. However he did add that “it must have to do with the original injury simply because he didn’t have it before and he has got it.”[89] Dr Pillemer agreed that the condition can arise without any particular trauma[90] and is commonly a condition which just occurs over time.[91]
[89] Transcript, 6 November 2019, 139.
[90] Transcript, 6 November 2019, 141.
[91] Transcript, 6 November 2019, 144.
2.6 Evidence of Dr Steadman
When he gave evidence at the hearing, Dr Steadman was of the opinion that the plain x-ray done the day after the incident with the crate confirmed a radiological change that was consistent with a pre-existing disease process.[92] Subsequent findings on the MRI some months later confirmed this.
2.7 Reasoning
[92] Transcript, 6 November 2019, 143.
2.7.1 Has Mr Kallimanis suffered an “ailment” as defined in subsection 4(1) of the Act?
Although we do not accept the evidence of Mr Kallimanis as to the onset of the pain in his left elbow, we are satisfied that some months after 12 January 2017 he experienced that pain and has continued to suffer it since that time.
On the basis of the evidence of Mr Kallimanis, Dr Yeoh and the result of the MRI referred to by Dr Yeoh, we are satisfied that Mr Kallimanis has suffered a “physical disorder” of his left elbow and therefore an “ailment” as defined on subsection 4(1) of the Act.
2.7.2 Was the ailment “contributed to, to a significant degree,” by Mr Kallimanis’ employment by Linfox?
Evidence
In July 2017 Dr Yeoh was of the opinion that the epicondylitis suffered by Mr Kallimanis was probably related to him not using his elbow properly mechanically following his bicep injury.
In November 2017 Dr Annett considered that Mr Kallimanis was suffering a chronic pain syndrome.
Dr Pillemer said that he could not explain how the condition occurred. He considered that as Mr Kallimanis did not suffer from the condition before the incident when he moved the crate, it “must” be related to that incident. We do not accept this reasoning. Dr Pillemer did not explain why he rejected the proposition that the condition was suffered as a result of a degenerative condition which existed prior to the workplace incident.
Dr Steadman offered an alternative diagnosis that the ailment was caused by a pre-existing degenerative condition. His view is supported by the x-ray of Mr Kallimanis’ elbow taken on the day Mr Kallimanis injured his bicep.
2.7.3 Mr Kallimanis’ argument
It was argued on behalf of Mr Kallimanis that “[the] Tribunal simply needs to be satisfied that (a) he had lateral epicondylitis which is uncontroversial and that (b) it was caused or aggravated by his employment with the Respondent. The advent of the work accident on 12 January 2017 and the onset of complaints in the same arm (bearing also in mind the surgery and the period of immobilisation after surgery) and given the lack of records relating to any pre-existing lateral epicondylitis points to there being a relationship. A co-incidence seems unlikely.”[93]
[93] Applicant’s Written Submissions dated 4 December 2019, [72].
Although not clear, this appears to be an argument in support of the proposition that the epicondylitis is a disease within the meaning of section 5B of the Act
2.7.4 Consideration
Counsel for Mr Kallimanis put that the “obvious inference is that the Applicant has since recovered from this condition.”[94] We do not accept this proposition. Mr Kallimanis was adamant that he continues to suffer from numbness from the inside to the outside of his elbow, distinct from the pains felt down his left forearm and up to his shoulder.
[94] Applicant’s Written Submissions dated 4 December 2019, [68].
Taking into account that Dr Yeoh and Dr Annett differed as to the diagnosis of the condition and that neither gave evidence at the hearing, we cannot be satisfied that Mr Kallimanis’ employment contributed to the condition to a significant degree. In reaching this conclusion we note that “significant” means “substantially more than material”[95] and therefore imposes a higher threshold than had been required before the amendment to the Act in 2007.
[95] Subsection 5B(3).
We have also taken into account the evidence of Dr Steadman. He is a Consultant Orthopaedic Surgeon with a detailed knowledge of conditions relating to the elbow. Considering his evidence and the evidence of Dr Pillemer, who could not explain how the condition occurred, we cannot be satisfied on the balance of probabilities that Mr Kallimanis’ employment made the required contribution to his ailment.
2.7.5 Has Mr Kallimanis suffered an injury “other than a disease”?
There is insufficient evidence to justify a finding that the lateral epicondylitis is an injury other than a disease.
Although Mr Kallimanis gave evidence that he suffered a feeling of numbness in his elbow from the time of his moving the crate, this is unsupported by the medical evidence.
Dr Yeoh’s diagnosis was based on the probability that Mr Kallimanis did not use his elbow properly after his injury. There was no explanation as to why this may have been so. Dr Annett diagnosed a chronic pain syndrome.
Neither of the above diagnoses is consistent with the type of “physiological change” referred to by the High Court in Military Rehabilitation and Compensation Commission v May set out in paragraph 67 to 69 of these reasons.
Furthermore, even if we had been satisfied that it was appropriate to consider the condition under paragraph 5A(1)(b), taking into account the evidence of Dr Steadman, we would not have been satisfied, on the balance of probabilities, that the condition arose out of, or in the course of, Mr Kallimanis’ employment.
2.8 Conclusion
Linfox is not liable to compensate Mr Kallimanis in respect of the condition of lateral epicondylitis of the left elbow.
Issue 3: Is Linfox liable to compensate Mr Kallimanis in respect of the claimed injury described as “axillary nerve lesion at left arm”?
3.1 What is the axillary nerve?
Dr Pillemer and Dr Steadman agreed on the following description of the anatomy of the axillary nerve:
… it wraps around the … surgical neck of the humerus and it’s got several branches. There is a branch posteriorly that supplies the posterior head and the sensory branch and we in fact call it the “regimental badge” a bit like a soldier has on the sort of top of their arm and so a classic axillary nerve palsy will cause loss of sensation in that area and it’s true that we see it more commonly after dislocation or fracture around the surgical neck.[96]
[96] Transcript, 6 November 2019, 126.
Dr Pillemer later explained that the axillary nerve comes from behind the shoulder and splits into two branches, the anterior and posterior. The posterior branch supplies the feeling to the outer arm and the posterior deltoid.[97]
3.2 Reports of Dr Yeoh[98]
[97] Transcript, 6 November 2019, 131.
[98] Exhibit A2.
Dr Yeoh assessed Mr Kallimanis on 11 January 2018. On the same day he reported, in part:
… in the left shoulder, he has symptoms and clinical signs on examination consistent with severe subacromial impingement and moderate bicipital tendinopathy in the biceps groove. In particular, the subacromial impingement and associated bursitis cause him significant pain.[99]
[99] Exhibit A2; Report dated 11 January 2018, 1.
On 8 February 2018 Dr Yeoh reported, in part:
Mr Kallimanis’s left shoulder has improved after the subacromial injection that I gave 4 weeks ago. He has no clinical evidence of subacromial impingement today, although he is still tender over the bursa itself on direct palpation.
…
Mr Kallimanis continues overall to have a difficult left upper limb problem. Whereas his problem started as a distal biceps tendon tear which was repaired, it has now progressed to as more generalised problem and these are difficult to treat.[100]
[100] Exhibit A2; Report dated 8 February 2018, 1.
However, on 16 May 2018 Dr Yeoh reported that Mr Kallimanis had ongoing pain in his left shoulder which continued to be consistent with subacromial impingement.[101]
[101] Exhibit A2; Report dated 16 May 2018, 1.
When Dr Yeoh examined Mr Kallimanis on 12 July 2018 he diagnosed his suffering “a possible supraspinatus tear” in addition to his other conditions.[102] On 13 February 2019 Dr Yeoh reported that the tear had increased in size.[103]
[102] Exhibit A2; Report dated 12 July 2018, 1.
[103] Exhibit A2; Report dated 13 February 2019, 1.
3.3 Evidence of Dr Pillemer
Dr Pillemer’s initial examination of Mr Kallimanis was on 16 August 2018. On that occasion Dr Pillemer recorded that Mr Kallimanis complained of significant discomfort in his left shoulder, particularly in the posterior aspect extending down to the biceps. Dr Pillemer went on to report, in part:
Importantly, Mr Kallimanis has hypoaesthesia to pinprick over the deltoid in the typical distribution of the axillary nerve. There is also localized tenderness to palpation in the posterior aspect of his left shoulder region over the path of the axillary nerve. In addition, there is slight wasting of his posterior deltoid on the left side. These are all features in keeping with a typical axillary nerve lesion.[104]
[104] Exhibit R2, 288.
Dr Pillemer diagnosed Mr Kallimanis as suffering from an axillary nerve lesion on the left side. To make that diagnosis it is necessary for there to be discomfort behind the shoulder and sensory change on the outside of the upper arm.[105] He attributed this condition to “a significant traction injury to his left upper extremity”[106] indicated by the rupture of his biceps tendon. In his opinion “this could quite easily have caused the damage to his axillary nerve. As noted he has had axillary nerve symptoms from the onset.”[107] When he gave oral evidence Dr Steadman said Mr Kallimanis would not have suffered shoulder pain while his shoulder was immobilized and at rest. It was only when he started to use his arm that he would have experienced symptoms.[108]
[105] Transcript, 6 November 2019, p.125.
[106] Exhibit R2, 289.
[107] Exhibit R2, 289.
[108] Transcript, 6 November 2019, 132.
In the opinion of Dr Pillemer the lesion to Mr Kallimanis’ axillary nerve occurred in the posterior branch, after the nerve divided, because the loss of feeling occurred in the outer arm and posterior deltoid. The middle and anterior deltoid are not affected. If there is a complete axillary nerve lesion before it splits in two, the whole deltoid is involved.[109]
[109] Transcript, 6 November 2019, 131.
Dr Pillemer re-examined Mr Kallimanis on 16 May 2019 and on the same day reported his findings and opinions.[110] His findings were the same as previously. It remained his opinion that the ongoing symptoms resulted from the incident on 12 January 2017. He noted that attempting to lift a crate as described by Mr Kallimanis “could certainly be the cause of an axillary nerve lesion”.[111]
[110] Exhibit A6.
[111] Exhibit A6, 4.
On 26 September 2019 Dr Pillemer reported that he has considered reports relating to other problems experienced by Mr Kallimanis in his left arm before the crate incident and that, in his opinion, they were not related to the axillary nerve lesion.[112]
[112] Exhibit A7.
3.4 Evidence of Dr Steadman
Dr Steadman examined Mr Kallimanis on 31 January 2018. On 23 February 2018 he reported, in part:
… the left shoulder MRI shows that there are tears in the rotator cuff, the AC joint shows degeneration. … Overall then in my opinion it is difficult to justify that the left shoulder … [is] in any way work-related.[113]
[113] Exhibit R1, 258-259.
The MRI was carried out on 12 February 2018 by Dr Brown. She reported the following conclusion:
1. High-grade bursal-sided partial tear of the anterior fibres of the supraspinatus tendon at the enthesis measures 1cm in the anterior-posterior diameter. Articular-sided fibres are frayed. No medial tendon retraction or muscle atrophy.
2. Prominent acromial bony spur.
3. Moderate degenerative change acromioclavicular joint.[114]
[114] Exhibit R1, 249.
Dr Steadman disagreed with the diagnosis made by Dr Pillemer and with his opinion as to the cause of Mr Kallimanis’ shoulder condition.
Dr Steadman said that the condition of posterior axillary nerve branch palsy (as described by Dr Pillemer) is neither written up nor peer reviewed and is not established as a recognized medical condition. He described evidence-based medicine as ranging from level 1, being subject to multi-centre studies and large trials, through to level 5 being anecdotal. In his opinion the evidence of the condition described by Dr Pillemer is anecdotal.[115]
[115] Transcript, 6 November 2019, 127.
On the question of causation of a possible axillary nerve lesion, Dr Steadman said that an injury to the axillary nerve is caused by traction when the whole arm is being dragged down. In his opinion, in Mr Kallimanis’ case, there would have been insufficient force to cause a subluxation of the shoulder and a lesion of the nerve. The rupture of the biceps tendon made it unlikely that the axillary nerve would have been injured.[116] He based this view on an elevation of the shoulder of two centimetres. This was the estimate made by Mr Kallimanis when he gave evidence.[117]
[116] Transcript, 6 November 2019, 127-128.
[117] Transcript, 5 November 2019, 37.
Further, on the question of causation, when Dr Steadman examined Mr Kallimanis in July 2017 (six months after the incident) he was unable to clinically identify an axillary nerve lesion despite having examined his neck and all the way down his arm. In particular, he was unable to find any numbness in the distribution of the axillary nerve.[118]
[118] Transcript, 6 November 2019, 168; Exhibit R1, 167.
Dr Steadman also relied upon an MRI of Mr Kallimanis’ shoulder carried out in February 2019. The MRI did not show any features of traditional nerve palsy as there was no muscle wasting and no apparent change in the muscles.[119]
3.5 Reasoning
[119] Transcript, 6 November 2019, 130.
3.5.1 Has Mr Kallimanis suffered a “disease” as defined in section 5B of the Act?
It has always been argued on behalf of Mr Kallimanis that he has suffered a lesion of his axillary nerve caused by the traction associated with his moving the crate on 12 January 2017. There is no evidence to support a finding that the condition diagnosed by Dr Pillemer was a “disease” as defined in the Act and as explained by the High Court in Military Rehabilitation and Compensation Commission v May.
3.5.2 Has Mr Kallimanis suffered an injury “other than a disease”?
We do not accept the evidence of Mr Kallimanis that he suffered pain in his left shoulder at the time he moved the crate or immediately thereafter.
As with the complaint of pain radiating down his forearm, Mr Kallimanis says that he told Dr Han of his shoulder pain when he consulted him immediately after the incident. However Dr Han did not record any such complaint and did not become aware of Mr Kallimanis complaining of left shoulder pain until many months after the initial consultation in relation to the bicep injury.[120] We accept the evidence of Dr Han that he would have recorded a complaint of shoulder pain had it been made and that he would have been particularly careful to do so in regard to an injury suffered at work.[121] The first reference to a shoulder complaint in Dr Han’s clinical notes appears in January 2018.
[120] Transcript, 6 November 2019, 106.
[121] Transcript, 6 November 2019, 103.
The first reporting of a complaint of shoulder pain is in the report of Dr Annett following a consultation by Mr Kallimanis on 28 November 2017,[122] ten months after the incident at work. Mr Kallimanis consulted Dr Annett on 5 September 2017[123] and 17 October 2017.[124] On neither of these occasions did Dr Annett report a complaint of shoulder pain.
[122] Exhibit R2, 224.
[123] Exhibit R2, 182.
[124] Exhibit R2, 185.
On each of the two occasions Dr Steadman examined Mr Kallimanis (July 2017 and January 2018), Dr Steadman asked Mr Kallimanis to mark on diagrams of the human body where he was experiencing pain. In July 2017 Mr Kallimanis did not mark the area of the left shoulder.[125] In January 2018 he marked the front and back of the left shoulder and indicated that the pain extended up towards his neck and down towards his elbow.[126]
[125] Exhibit R3.
[126] Exhibit R4.
Based on the lack of recording of any such complaint by Dr Han, Dr Yeoh and Dr Annett when they were first consulted by Mr Kallimanis, we find that, on the balance of probabilities, Mr Kallimanis did not begin to suffer pain in his left shoulder following the incident involving the crate until some time between 17 October and 28 November 2017.
Dr Pillemer gave evidence that it was only when Mr Kallimanis started doing physiotherapy with Dr Annett that the damage to his axillary nerve became symptomatic.[127] He said that while Mr Kallimanis was resting the axillary nerve injury would be asymptomatic. However, in relation to the delay in the onset of symptoms Dr Pillemer said that he expected that Mr Kallimanis would have suffered symptoms “more proximal to the antagonising event”.[128] This caused him to have less confidence in his diagnosis of axillary nerve lesion being connected to the incident on 12 January 2017.
[127] Transcript, 6 November 2019, 158-159.
[128] Transcript, 6 November 2019, 159.
Dr Pillemer acknowledged that the condition he has diagnosed has been neither written-up nor peer-reviewed, although it has been discussed with colleagues and published on YouTube. We accept Dr Steadman’s evidence that he has not observed that type of injury in his practice as a surgeon.
Dr Pillemer was unable to explain why the force necessary to cause an injury to the posterior branch of the axillary nerve would not have caused an injury to the whole nerve.[129]
[129] Transcript, 6 November 2019, 165.
Also, Dr Pillemer was unable to explain why Mr Kallimanis would have suffered a traction injury to a particular branch of his axillary nerve after the point of division rather than to both branches as, for a traction injury to occur, the nerve has to become caught and pulled.[130] When this question was raised by Dr Steadman, Dr Pillemer replied that he too found the situation “confusing”.[131]
[130] Transcript, 6 November 2019, 167.
[131] Transcript, 6 November 2019, 168.
The evidence of Dr Steadman raised further doubts as to the diagnosis made by Dr Pillemer.
When Dr Steadman examined Mr Kallimanis in June 2017 he did not detect any features of axillary nerve palsy.[132]
[132] Transcript, 6 November 2019, 160.
In January 2018 Dr Steadman reported that an MRI showed that Mr Kallimanis has tears to his left rotator cuff and a degeneration of his left acromioclavicular joint. These conditions are likely to cause Mr Kallimanis to suffer pain in his shoulder.
Dr Steadman’s opinion is supported by the diagnosis of an increasing left rotator cuff tear. This diagnosis was made by Dr Yeoh and based on MRI’s performed in February 2018 and February 2019.[133]
[133] Exhibit A2.
The proposition that Mr Kallimanis suffered an injury to his axillary nerve rests largely on the evidence of Dr Pillemer and the diagnosis made by him. However, the diagnosis is novel and yet to be tested by the traditional means. In addition, Dr Pillemer was unable to explain why the traction necessary to damage the posterior branch of the nerve would not have damaged the complete nerve. He was also unable to explain satisfactorily the delay between the incident in January 2017 and the onset of the symptoms of damage to the shoulder.
In addition to the difficulties in Dr Pillemer’s diagnosis, Dr Steadman gave evidence of unrelated conditions of Mr Kallimanis’ shoulder which, in the opinion of Dr Steadman, explain the pain he has experienced.
We have considered the reports of Dr Yeoh who provides a third diagnosis of the cause of the problems Mr Kallimanis has experienced in his left shoulder. Initially he diagnosed subacromial impingement and bicipital tendinopathy in the biceps groove which he appears to attribute to the initial injury to the biceps tendon. However later he expressed the opinion that the supraspinatus tear was a factor contributing to the pain suffered by Mr Kallimanis.
We did not have the benefit of Dr Yeoh giving evidence to further explain his opinion that there was a causal link between the conditions he diagnosed and the incident on 12 January 2017. As he gave a more detailed explanation of his reasons for his diagnosis, we prefer the opinions of Dr Steadman.
We note that Mr Kallimanis did not make a claim for the conditions diagnosed by Dr Yeoh.
Having considered all of the evidence we are not satisfied on the balance of probabilities that Mr Kallimanis has suffered an injury to his left axillary nerve.
3.6 Conclusion
Linfox is not liable to compensate Mr Kallimanis in respect of the claimed condition of axillary nerve lesion at his left arm.
PART 4
APPLICATION 2018/2861
The reviewable decision, made by Linfox Australia Pty Ltd on 8 May 2018, that Mr Kallimanis had no present entitlement to payment of compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 respectively of the Act arising from an accepted left elbow condition, will be affirmed.
APPLICATION 2019/2338
The reviewable decision, made by Linfox Australia Pty Ltd on 12 April 2019, denying liability to compensate Mr Kallimanis pursuant to the Act for claimed conditions of left ulnar neuritis, left axillary nerve lesion and left lateral epicondylitis, will be affirmed.
I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance, Dr L Bygrave, Member
.............................[SGD]...........................................
Associate
Dated: 11 June 2020
Date(s) of hearing: 5 and 6 November 2019 Counsel for the Applicant: J Mrsic Solicitors for the Applicant: Grieve Watson Kelly Lawyers Counsel for the Respondent: M Gollan Solicitors for the Respondent: Moray & Agnew Lawyers
2
2
0