Kruljac and Australian Postal Corporation (Compensation)
[2018] AATA 171
•9 February 2018
Kruljac and Australian Postal Corporation (Compensation) [2018] AATA 171 (9 February 2018)
Division:GENERAL DIVISION
File Numbers: 2014/1907, 2014/1908, 2014/3460,
2014/6142-6144, 2015/5571
Re:Robert Kruljac
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:9 February 2018
Place:Melbourne
The Tribunal sets aside the decision in application 2014/3460 that suspended Mr Kruljac’s rights to compensation and remits the matter to the respondent for reconsideration.
The Tribunal sets aside the decision in application 2014/6144 relating to s 14 liability for stress/anxiety and remits the matter for reconsideration given the failure to consider other contributory health disorders which may be relevant.
The remaining five decisions (2014/1907, 2014/1908, 2014/6142, 2014/6143 and 2015/5571) are affirmed.
[sgd]........................................................................
Miss E A Shanahan, Member
WORKERS’ COMPENSATION – multiple claims over 20 years – multiple injuries sustained in the course of work – past acceptance of liability in relation to shoulder and cervical spine dysfunction – current claims relate to left shoulder, aggravation of cervical spondylosis, secondary psychological state and s 16 claims relating to treatment and medication – failure to undertake rehabilitation return to work program – suspension of rights under s 37(7) of the SRC Act – later remitted for reconsideration.
Legislation
Safety, Rehabilitation and Compensation Act 1989 (SRC Act)
Cases
Department of Defence v Jodette Margaret Fox [1997] FCA 3
Comcare and Mooi [1996] FCA 1587
Sollazzo and Comcare [2000] AATA 65
McGuiness and Comcare [2007] 99 ALD 57
Karhani and Linfox Pty Ltd (2011) 129 ALD 275
Tracy Skinn and Australian Postal Corporation [2012] AATA 121Australian Postal Corporation v Nunez [2014] FCA 1095
REASONS FOR DECISION
Miss E A Shanahan, Member
9 February 2018
Mr Robert Kruljac has worked for the Australian Postal Corporation (Australia Post) since 1995, initially as a Postal Delivery Officer (PDO) working in Perth and generally in Victoria, the latter being his home state. In the course of his work he suffered several falls while riding a motorbike to deliver mail. There have been numerous compensation claims arising from these injuries. Since mid-2009, Mr Kruljac has worked reduced hours of five days per week, performing administrative tasks mainly redirecting mail.
There are three major applications before the Tribunal. The first of these is application 2014/1907, wherein Mr Kruljac sought review of the decision of 13 March 2014 but only in regard to the aggravation of his cervical spondylosis. This decision affirmed the determination of 24 February 2014 that Mr Kruljac was capable of undertaking a rehabilitation/return to work program of five hours per day, five days per week performing restricted duties. This was to commence on 25 February 2014.
The second application major application is 2014/1908. The authorised review officer (ARO) determined that incapacity benefits on and from 25 February 2014 to 25 May 2014 for the hours that were not worked were not subject to liability and therefore payment by Australia Post.
The third application, 2014/3460, for which Mr Kruljac sought review, was the decision of 16 May 2014 suspending all his rights to compensation pursuant to s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) on and from 28 March 2014 and until such time as he undertook a rehabilitation program.
The above are the major matters before the Tribunal. In addition the Tribunal is required to consider Mr Kruljac’s applications for review of decisions made in October 2014 (2014/6141, 2014/6142, 2014/6143 and 2014/6144) affirming earlier determinations of 18 August 2014. These relate to a s 16 claim under the SRC Act for the costs of proposed left shoulder surgery; the determination that Australia Post had no liability to pay compensation pursuant to s 16 and s 19 for the left shoulder injury; that Australia Post was not liable under s 16 to pay for the medication Lyrica and that Australia Post was not liable under s 14 of the SRC Act to pay compensation for the condition of stress and anxiety arising from aggravation of cervical spondylosis. Application 2014/6141, relating to the claimed left shoulder condition, was withdrawn in the midst of the hearing, following the evidence of Dr Thomas.
The hearing of the matter was listed to commence on 7 November 2016. Ms K Brady of counsel instructed by Maurice Blackburn Lawyers was to appear for Mr Kruljac. Mr Joe Ferwerda of counsel instructed by Clarke Legal was to appear for Australia Post. Before the commencement of the hearing Ms Brady withdrew as counsel for Mr Kruljac on the basis of conflict. The hearing was adjourned in order for Mr Kruljac to obtain the services of new counsel. The hearing recommenced on 10 November 2016 with Mr Ray Ternes of counsel appearing for Mr Kruljac. Australia Post provided the Tribunal Documents (T‑Documents, Exhibit R1) and both parties tendered further documentation, a list of which is appended to this decision.
On the two days of hearing, namely the 10th and 11th November 2016, Mr Robert Kruljac and his treating general practitioner Dr Nicholas Nassios gave evidence in person. The hearing was then adjourned for a period and resumed on 24 July 2017 and concluded on 27 July 2017. At the resumed hearing Mr Michael Khan orthopaedic surgeon, Dr Michael Epstein psychiatrist, Dr Byron Rigby psychiatrist, Dr Michael Bloom occupational health physician, Mr Graeme Brazenor neurosurgeon and Associate Professor George Mendelson psychiatrist gave evidence in person.
BACKGROUND TO THE APPLICATION
Mr Kruljac commenced work with Australia Post in 1995 as a PDO. He suffered his first motorbike accident in March 1998 when he fell from his Honda bike and sustained what was described as a minor head and neck injury. In 2000 he was again injured when the tyre on his bike suffered a blow-out. He fell to the ground injuring his left shoulder and neck. In 2007 while riding the bike he clipped a tree branch resulting in the development of neck pain. On this occasion he did not fall off the bike. Liability under s14 was accepted by Australia Post.
Mr Kruljac commenced work with Australia Post while residing in Victoria. He shifted to live in Perth and married. In the year 2000 he separated from his wife and they divorced in 2002 or 2003. Following the separation/divorce he required psychiatric treatment for what appears to be depression. He returned to Melbourne in approximately 2003 and initially lived with his parents. Mr Kruljac purchased a house in South Morang in 2004. He married for a second time in September 2007 but shortly thereafter conflict developed between him and his wife. He again required psychiatric treatment.
In December 2008 Mr Kruljac awoke with neck pain and numbness on the left side of his neck, left shoulder and left arm. He was referred by his general practitioner to Mr Craig Timms a neurosurgeon. Mr Timms assessed Mr Kruljac and advised that surgery was not indicated and recommended physiotherapy. Mr Kruljac resumed working four hours per day, five days per week in June 2009. His duties were documenting registered mail and obtaining the signatures of PDO’s who were delivering such mail.
In 2010 he was referred to Mr A Bonomo, an orthopaedic surgeon, regarding his left shoulder symptoms. At approximately the same time he was shifted to the Port Melbourne hub where he was employed for the same hours undertaking data entries into a computer.
In 2012 Mr Bonomo recommended arthroscopy of the left shoulder based on Mr Kruljac’s complaint that his left shoulder popped on movement and while this was not considered to be a dislocation it may represent a subluxation. The request for payment for the arthroscopy procedure was denied by Australia Post. Mr Kruljac had, as an alternative treatment, intra-articular steroid injections. These were of short lived benefit.
Mr Kruljac was referred to Dr Clayton Thomas in May of 2013. Dr Thomas suggested a nerve block for the neck pain. Mr Kruljac, on the advice of his general practitioner, declined this treatment.
Mr Kruljac lodged a permanent impairment claim for his shoulder condition in 2013 and was then referred to several specialists. Mr Iain Kelman, orthopaedic surgeon, and Dr Michael Bloom, occupational health physician, were consulted.
Mr Kruljac has attended his general practitioner Dr Nassios since 2001. At the time of his assessment in 2013 he was taking the anti-inflammatory drug Celebrex, Valium for his anxiety state, Oxycontin twice daily for pain, Panadeine Forte six to eight tablets daily and Somac for symptoms of gastro-oesophageal reflux.
In February 2014, Mr Kruljac was assessed for a rehabilitation program by an occupational therapist. As a result of this assessment his work hours were to be increased to five hours per day. Dr Nassios rejected this increase as Mr Kruljac had continuing neck pain, was not coping psychologically and was frequently drowsy due to side effects of his medications.
At the time of the hearing Mr Kruljac had increased his work hours to five per day, five days per week in an administrative position. He has been working those hours since November 2015. He said some days he struggled and had to lie down on a yoga mat and on occasion fell asleep. His work hours are from 6.00am to 11.00am. To get to work by 6.00am he wakes at 4.00am.
In his evidence before the Tribunal, Mr Kruljac described his neck pain as being on the left side. When asked to indicate the site of the pain he outlined the trapezius muscle. He said the pain extended to his left shoulder and shoulder blade. He also described a stiff or rodlike feeling in the right side and a burning sensation between his shoulder blades. Currently he is taking Lyrica, 75mgm twice daily, Panadeine Forte six to eight tablets daily, Reboxetine, an anti-depressant, twice daily. He has ceased taking Oxycontin.
Mr Kruljac sees his general practitioner every four weeks to obtain a Comcare incapacity certificate. He sees his psychiatrist Dr Rigby and a psychologist every three weeks and these consultations are bulk-billed to Medicare. Mr Kruljac remained keen to undergo surgery to his left shoulder. He said Dr Nassios has arranged that his name be placed on a waiting list to see an orthopaedic surgeon at Northern Hospital. He was aware that the wait would be up to 12 months.
At the hearing it was confirmed that between April 2012 and February 2014, Mr Kruljac missed a total of 14 days’ work due either to pain or resulting from him sleeping through his alarm clock ring. Mr Kruljac expressed the hope that he would be able to increase his hours of work in the near future.
Over the past 20 years Mr Kruljac has undergone considerable investigation to elucidate the cause of his neck and shoulder symptoms. In July 2016 he underwent an MRI (magnetic resonance imaging) of his left shoulder which showed some tendon thinning, regarded as being age related, but no other pathology and certainly no findings which would explain the sensation he experiences that may be suggestive of subluxation. These investigations were performed by Mr Eden Raleigh, treating orthopaedic surgeon, who concluded that there is no indication for surgical intervention.
Mr Craig Timms, the treating neurosurgeon, recently investigated Mr Kruljac in relation to his cervical spondylosis. An MRI of Mr Kruljac’s entire spine was performed. Mr Timms concluded that Mr Kruljac has cervical spondylosis of mild degree with some possible foraminal stenosis on the left at the C5/6 level. The MRI of June 2016 showed only minor disc bulges at C3/4 and C5/6 and no evidence of nerve root compression.
The treating psychiatrist Dr Byron Rigby has diagnosed Mr Kruljac as suffering from a major depressive disorder but said he would accept a diagnosis of an adjustment disorder secondary to Mr Kruljac’s physical complaints.
ORAL EVIDENCE BEFORE THE TRIBUNAL
Mr Kruljac
Mr Kruljac’s evidence has been summarised under the ‘Background to the Application’ section of these reasons.
Mr Ferwerda cross-examined Mr Kruljac at length. Unfortunately Mr Kruljac could not accurately recall his exact physical status in the years prior to 2009 but did not reject the documentary evidence provided by his medical records.
Mr Kruljac confirmed that he has recently qualified for a carer’s pension in relation to his parents, particularly his father who has been diagnosed with carcinoma. Mr Kruljac drives his father to appointments at various hospitals and when necessary administers subcutaneous injections of Heparin required by his father on an ongoing basis.
Mr Kruljac described his major contribution to the running of the household as doing the cooking despite his mother’s endeavours to do so. He was able to mow the lawns around the house, do his own shopping and once a week he cleaned the house. His parents were able to perform the activities of daily living and did their own shopping. His parents contributed financially to the household costs including his mortgage repayments as he was experiencing financial difficulties following the cessation of his worker’s compensation payments in March 2014.
In terms of his physical limitations, Mr Kruljac does not believe that he has improved since the original accidents of 1998, 2000 and 2007. All three incidents had contributed to his neck and shoulder pain. His general health and in particular his work related injuries had led to secondary depression but this he agreed was also contributed to by his two failed marriages and disputes with the builder of his house in South Morang.
Mr Kruljac described the pain as occurring every day at both sites, extending from his cervical spine to his left shoulder and down his left arm, his forearm and on occasion to three fingers of his left hand and more recently to all of his left hand. He had been diagnosed with left ulnar nerve entrapment and underwent surgery in 2014. While surgery has improved the pain in his forearm and hand, it has not alleviated the numbness.
Mr Kruljac described an unusual popping sensation in his left shoulder. This he believes represents episodes of dislocation of his shoulder despite having been told by experts that this is not the case. He agreed with Mr Ferwerda’s description, as related by Associate Professor Brazenor, of experiencing discomfort and numbness in the left upper quadrant of his chest starting at the lower rib margin and extending to above his clavicle. He also confirmed that the back pain referred to was predominantly at the mid-thoracic level and situated between his shoulder blades.
Mr Kruljac was of the opinion that the Lyrica and Panadeine Forte that he was now taking improved the level of his discomfort and pain but did not ablate it. While he is no longer taking Oxycontin, his tiredness has not significantly improved. He believes the pain and its constancy result in ongoing depression.
Mr Ferwerda took Mr Kruljac to selected reports of specialists who have assessed him over the years. While he could not recall many of these he had good recall of those of his treating doctors, in particular, his general practitioner, his psychiatrist and his more recent appointments with Mr Timms and Mr Raleigh. Mr Raleigh had recently re‑assessed Mr Kruljac who, with a view to arthroscopy, had obtained an MRI of Mr Kruljac’s left shoulder. This showed what was described as minimal changes and judged not to warrant surgical intervention. The Tribunal eventually obtained a copy of this MRI report and will refer to it later in these reasons.
Mr Kruljac agreed that he had been diagnosed with sleep apnoea in 2012. It was brought to his attention that he had seen Dr Haque, a sleep specialist, initially in 2006 when the diagnosis was made. Mr Kruljac said his sleep apnoea had been attributed to his weight gain of 27kgs resulting from his medication for depression and chronic pain. He had in the last three months obtained a continuous positive airways pressure (CPAP) machine, the use of which had been beneficial.
Prior to the 1998 accident Mr Kruljac had enjoyed riding a pushbike, fishing both in rivers and the sea, on land and on boat, hiking and exercising at the gym. Since becoming symptomatic he had only gone fishing on a few occasions, had rarely ridden a bicycle and only occasionally exercised at the gym, working on upper body strengthening. While he was able to mow his lawns using a motor-mower he did not do any other gardening.
Mr Ferwerda cross-examined Mr Kruljac in great detail in relation to his work activities and his coping with such activities. Mr Kruljac maintained that he wanted to increase his hours but could not cope with the workload, both at the four hour level and now at five hours per day, five days per week. He said these hours increased his pain if he performed repetitive activities with his arms, his persisting emotional and psychological state led to startled responses to any sudden noise and his general lethargy impacted on his performance. The latter caused him to occasionally lie down at work and even fall asleep. His rest periods and the option to lie down are approved by Australia Post.
When working at Preston he had few duties but he feels that he has improved since his transfer to Port Melbourne where he has designated and occasionally demanding duties. While he had informed Dr Nassios of the rehabilitation plan, Dr Nassios has continued to certify him as being fit for only four hours work per day based on his level of pain, lethargy and lack of concentration.
Mr Kruljac had made enquiries relating to accessing his superannuation funds on hardship grounds but did not qualify, possibly because he was still working.
Mr Kruljac has recently developed what he called tightness on the right side of his neck. This has been present for the past two to three months.
Mr Ferwerda addressed the medical certificates supplied by Dr Nassios and in particular the issuing of these certificates days after the sick leave was taken. It was brought to Mr Kruljac’s attention that the actual wording of the certificates had not changed between April 2012 and the current certificate. Mr Kruljac considered that the date anomaly was a typographical error. It was suggested that these questions should be put to Dr Nassios.
Dr Nicholas Nassios - treating general practitioner
Dr Nassios has been Mr Kruljac’s general practitioner since February 2002. He provided eight written reports between 2009 and 2014. Mr Kruljac’s entire medical record was provided on CD. The Tribunal was unable to download these records as they were encrypted and keyword protected. In the course of Dr Nassios’ evidence the records from October 2014 to the present day were provided.
Dr Nassios identified Mr Kruljac’s physical problems as degenerative changes in the cervical spine at C3/4, C4/5 and C5/6 giving rise to pain in his neck, shoulder girdle and arm and a left shoulder rotator cuff injury. These he attributed to Mr Kruljac’s employment with Australia Post.
Dr Nassios had received a copy of the report of the left shoulder MRI ordered by Mr Raleigh in July 2016. This stated there was minor acromio-clavicular joint degenerative changes, minor sub-deltoid bursitis, tendinosis of supraspinatus but no evidence of a full thickness tear, some atrophy of the tendon and the acromion was described as being a Type 1 acromion. On the basis of this MRI Mr Raleigh concluded operative intervention was not indicated.
Dr Nassios disagreed that the changes in the left shoulder were minor and stated so orthopaedic surgeons love surgery and it wasn’t for surgery so he said it’s normal. Dr Nassios considered Mr Kruljac’s anxiety and depression to be secondary to his physical injuries.
Dr Nassios had discussed Mr Kruljac’s capacity for work with him on numerous occasions between 2009 and 2013 and believed Mr Kruljac would struggle with four hours of work a day let alone increased hours. He concluded that for both mental and physical reasons Mr Kruljac could not increase his hours. Mr Kruljac’s drowsiness was said to result from the multiple medications prescribed for pain control, his poor sleep and his anxiety. Dr Nassios agreed that sleep apnoea was a contributory factor. He was unaware that Mr Kruljac was now using a CPAP machine.
Dr Nassios could not recall who had commenced Mr Kruljac’s various medications but thought it would have been done in consultation with the experts who had seen him. While he believed Mr Kruljac would benefit from working more hours per day, he considered him unable to do so because of constant tightness in the muscles, a sore neck and associated drowsiness. However, he acknowledged that Mr Kruljac was now working five hours per day. This he attributed to an improvement in Mr Kruljac’s mental state rather than his physical conditions. Dr Nassios was of the opinion that at all times Mr Kruljac had worked hours with which he could cope, these being dictated by his symptoms.
Dr Nassios had not been involved in completing Mr Kruljac’s application for a carer’s pension or allowance.
Mr Ferwerda took Dr Nassios to the recent MRI reports which described the changes in Mr Kruljac’s cervical spine as mild and commensurate with his age. Dr Nassios disagreed with this conclusion as he believed the changes were significant. Dr Nassios was taken to his records which do not at any time record any findings of a physical examination. Despite this he assured the Tribunal that Mr Kruljac had normal power and sensation in both upper limbs. Dr Nassios said it was his practice to perform a full physical examination on Mr Kruljac whenever he was asked to provide a medical report to third parties or in a letter of referral to a specialist but he did not enter these findings in Mr Kruljac’s clinical records. When asked directly he recalled finding muscle spasm in Mr Kruljac’s trapezius muscles on occasions but had never recorded this in his notes.
Dr Nassios was taken to the reports of the three rheumatologists to whom he had referred Mr Kruljac. He could not recall the opinions provided. When told of Dr Schachna’s opinion that Mr Kruljac may have fibromyalgia or a chronic pain syndrome as opposed to cervical radiculopathy, Dr Nassios agreed that these were possible diagnoses.
It was pointed out by Mr Ferwerda that all three rheumatologists had found Mr Kruljac’s symptoms and signs to be inconsistent with his imaging, had found near normal ranges of movement of both Mr Kruljac’s neck and shoulders and had concluded that his symptomatology was not work related. Dr Nassios disagreed with these conclusions.
Dr Nassios was taken to the recent reports of Mr Raleigh, who had examined Mr Kruljac on 13 July 2016 and again on 27 July 2017 (Exhibit R3 and R4) and on both occasions had found a normal range of movement of the left shoulder and no abnormality in the MRI beyond age related thinning of the left supraspinatus tendon. Dr Nassios was not convinced that the thinning was not due at least in part to a past injury and disagreed with Mr Raleigh’s opinion that Mr Kruljac had no work incapacity attributable to his left shoulder.
Dr Nassios was asked if there were any non-work related conditions that may have contributed to Mr Kruljac’s stress/anxiety condition and in particular the diagnosis of Peyronie’s Disease. While Dr Nassios could not recall the detail of discussions he had had with Mr Kruljac regarding this condition he said ... I would imagine that would have some effect also on his anxiety (transcript page 127, line 1).
Several entries from Mr Kruljac’s medical records of 2005 were read to Dr Nassios following which the doctor recollected that he had referred Mr Kruljac to Dr Haque for sleep apnoea studies in late 2005. He agreed that the sleep apnoea contributed to Mr Kruljac’s daytime tiredness and was relevant to the 14 days or so that he had off work having slept through his alarm, although he had attributed these episodes primarily to the use of analgesics and Lyrica.
While Dr Nassios had not considered the possible contribution by sleep apnoea or mentioned it in the numerous compensation certificates he had provided he could not deny that sleep apnoea was a factor (transcript page 132, line 9).
Dr Nassios agreed that Mr Kruljac had suffered from anxiety in 1998 and while he was unable to recall the details he was aware that there were several stressful events unrelated to work. He considered Mr Kruljac to be pain focused and unlikely to ever resume full time work. Dr Nassios was unaware of Mr Kruljac’s own weighting of the contribution to his tiredness by sleep apnoea at 10 per cent, pain by 60 per cent and the effects of medication at 30 per cent. This weighting had been recorded by Mr Kruljac’s psychiatrist Dr Rigby. Dr Nassios was unwilling to consider the physical and mental aspects of Mr Kruljac’s overall health status separately. He conceded that the shoulder pathology alone, in another individual, would not prevent full time employment.
Dr Nassios was questioned on earlier entries in Mr Kruljac’s records in 2003 that were worded in general terms as tiredness and couldn’t go to work and also frequent entries recording Mr Kruljac’s poor motivation. Dr Nassios attributed the poor motivation to depression which he said was caused by both non-work (domestic) and work factors.
Dr Nassios confirmed that in February 2014 he had been opposed to Dr Bloom’s recommendation that Mr Kruljac increase his work duties to five hours per day as part of a rehabilitation program. Both Dr Nassios and Mr Kruljac believed he could not cope with a further hour of work each day. Since then Mr Kruljac’s mental state had improved and he was coping well with the five hours. Dr Nassios confirmed that Mr Kruljac had suggested increasing to five hours after his compensation payments were ceased as he was experiencing financial pressure. Dr Nassios certified Mr Kruljac fit for five hours per day in November 2015.
Numerous workers’ compensation certificates have been provided, particularly since 2012 and the entries are almost identical. The notes frequently only said unwell. Dr Nassios said he used a computer stored template for Mr Kruljac’s Comcare certificates and did not necessarily change all or any of the pre-existing comments unless there was a change in the overall clinical situation. He believed that on some certificates he had neglected to change the date of issue (Transcript page 175, Line 3). The certificates of 15, 21 and 25 November 2015, that of 5 December 2013 and those of the 7 and 6 February 2014 are exactly the same, despite the clinical notes in Mr Kruljac’s records varying in content.
In re-examination Mr Ternes sought to clarify the dates of issue. Dr Nassios agreed this arose from an oversight on his part. Notes in some entries did identify symptoms or complaints with an entry such as Workcare or Medicare differentiating between the two types of certificates that might have been issued.
Given that several other reporting doctors had suggested that Mr Kruljac suffered from a chronic pain syndrome, Dr Nassios was asked if this was the correct diagnosis and was it related to the three motorbike accidents incurred while working with Australia Post. In reply Dr Nassios said:
... whether we label it chronic pain syndrome or regional pain or fibromyalgia or depression its complex, but I do believe they are all connected, and they are all related to the physical injury initially anyway. ...
Mr Michael Khan - orthopaedic surgeon
Mr Khan gave evidence on 24 July 2017. He provided two reports dated 17 June 2011 and 30 April 2015 (Exhibit A3).
In his first report Mr Khan detailed Mr Kruljac’s employment history as being essentially in administrative areas for the 12 to 13 years before he joined Australia Post in September 1995 as a PDO. Three motorbike accidents - two in Western Australia and one in Victoria - were described to the Tribunal as were the resulting symptoms. Mr Khan had access to the MRI of Mr Kruljac’s left shoulder performed in May 2010 which showed mild tendinosis and acromio-clavicular joint degenerative changes. On physical examination Mr Khan recorded minor restriction of movement of the cervical spine, the thoracolumbar spine range of movement being within normal limits and movement of the left shoulder causing pain on flexion and abduction.
Mr Khan made a diagnosis of facet joint osteoarthrosis of the cervical spine involving predominantly C3/4, C4/5 and to a lesser degree C5/6. Mr Khan was of the opinion that the left C4 nerve root was compromised by foraminal stenosis resulting in referred pain to the left shoulder. He did not detect any evidence of radiculopathy and did not believe surgery was indicated for either the cervical spine or the left shoulder conditions. Mr Khan assessed Mr Kruljac’s whole person impairment in relation to his cervical spine as 8 per cent and that of his left shoulder and left elbow at 10 per cent. This gave a whole person impairment rating of 18 per cent.
In the second report of April 2015, Mr Khan commented on the persistence of the cervical spine and left shoulder pain, headaches and left upper quadrant of chest wall pain which Mr Kruljac said radiated upwards to his neck. The left ulnar nerve compression due to epicondylitis had been operated on by Mr Craig Timms and a nerve release performed with benefit. Physical examination in 2015 was essentially the same as that of 2011. The 2015 findings were of mild limitation of flexion of the lumbar spine with normal straight leg raising. There was no change in the findings on examination of the left shoulder. No impingement was detected.
Mr Khan concluded in this report that Mr Kruljac’s prognosis and physical findings were essentially unaltered and had been contributed to significantly by his employment with Australia Post. He advised that a repeat MRI of the left shoulder should be performed before any operative intervention was contemplated.
In re-examination Mr Khan made it clear that he had not detected any signs of impingement in the left shoulder or radiculopathy arising from the cervical spine. The changes that had been demonstrated were, in his opinion, not unusual at the age of 45. He said he had no anatomical explanation for the left upper limb numbness or the left anterior chest wall symptoms, both of which he thought were probably non-organic in origin.
Mr Khan opined that Mr Kruljac could work for eight hours per day, provided the neck and shoulder pain were not exacerbated by such hours. In light of the progress in Mr Kruljac’s physical conditions over the intervening four years, Mr Khan believed that Neurontin and Lyrica should not be prescribed and that simple analgesics should be substituted.
Dr Michael Epstein
Dr Epstein saw Mr Kruljac on 21 January 2015. He made a diagnosis of a chronic adjustment disorder secondary to Mr Kruljac’s physical injuries. In Dr Epstein’s opinion the psychiatric symptoms were not sufficiently severe to meet the criteria for the diagnosis of a major depressive disorder. Dr Epstein obtained the history relating to the three accidents at work but relevantly obtained a considerable past history from Mr Kruljac. Mr Kruljac had completed secondary education to year 12 level in 1983 and commenced a course at the Royal Melbourne Institute of Technology but discontinued after 12 months. He worked for the Myer Emporium for four years as a storeman and then in sales and administrative duties.
Mr Kruljac then spent 18 months working for another company performing administrative tasks and at this time was a heavy drinker, smoked up to one gram of cannabis daily and intermittently used ecstasy and speed. He commenced work in the finance department of the City of Melbourne in 1988, lost his licence due to drink driving in 1990 and had a major motor vehicle accident in mid-1993. He suffered a right ankle injury for which he was prescribed physiotherapy and said he was off work for one or two weeks. In 1994 he accepted a redundancy payment from the City of Melbourne and then took 12 months off.
In 1995 he was baptised into the Jehovah Witnesses fold. He married a social worker from Western Australia in 1997. She too was a Jehovah’s Witness. This marriage was short lived. Mr Kruljac was seen by a psychiatrist and psychologist in Perth in 1998. The psychiatrist Dr Hopwood first saw him in May 2002 and obtained a lengthy history of a panic disorder dating from Mr Kruljac’s teens. This will be considered under the documentary evidence section. Dr Hopwood treated Mr Kruljac for anxiety and depression secondary to his marital breakdown. In 2002 Dr Hopwood referred Mr Kruljac for investigation for possible sleep apnoea and this was confirmed. Apparently Mr Kruljac was disfellowshipped from the Jehovah Witness’s church on 20 April 2004.
Dr Epstein listed all the symptoms previously reported, these being tiredness, sleep deprivation, ongoing pain in the left neck and shoulder and numbness in the left arm. Dr Epstein recorded that Mr Kruljac’s second marriage ended in divorce on 28 February 2013.
Dr Epstein noted that Mr Kruljac had been found to have low testosterone levels in 2012 and had been trialled with replacement testosterone which had slightly improved his lethargy. According to Mr Kruljac the low testosterone levels had been attributed to his prescribed use of opioids.
Dr Epstein estimated Mr Kruljac’s psychiatric impairment to be 15 per cent in accordance with the Comcare Guide to the Assessment of Degree of Permanent Impairment (Second Edition) and secondary to his chronic pain arising from work injuries. The contribution of the latter was considered to be significant. Dr Epstein regarded Mr Kruljac’s prognosis for improvement as poor although treatment might prevent further deterioration.
In his evidence before the Tribunal, Dr Epstein confirmed the content of his report. In cross examination he said that Mr Kruljac’s memory and concentration were retained, that the sleep apnoea did not contribute greatly to his symptomatology nor did the Peyronie’s Disease cause him any distress. Dr Epstein said he had not discussed the Peyronie’s Disease with Mr Kruljac.
Dr Epstein took into consideration other issues such as the two divorces and the motor vehicle accident of 1993 but was of the opinion that the work related injuries were the major factor. Dr Epstein concluded that Mr Kruljac could, from a psychiatric view-point, certainly work longer hours and perhaps full time. This was subject to the proviso that the work he was offered was meaningful. While Dr Epstein felt Mr Kruljac could return to full time work, he believed Mr Kruljac had a firmly entrenched idea that he was incapable of such employment.
In re-examination Dr Epstein agreed that Mr Kruljac lacked motivation this being a manifestation of his psychiatric condition.
Dr Byron Rigby, treating psychiatrist
Dr Rigby has been treating Mr Kruljac since February 2014. He provided two reports dated 14 February 2016 (Exhibit A5) and 30 September 2016 (Exhibit A6). Dr Rigby diagnosed a major depressive disorder but agreed with Dr Epstein that the diagnoses of an adjustment disorder and a major depressive disorder were very similar and depended purely on the intensity of the symptoms. In both his report of September 2016 and his evidence, Dr Rigby expressed the opinion that while Mr Kruljac’s symptoms fluctuated according to his level of pain, there had been only slight improvement despite the trialling of several anti-depressant medications, the most of recent of which was Reboxetine. The dosage of this medication had been gradually increased up to the maximum of 24 mg before a positive response was noted.
Dr Rigby confirmed that he had asked Mr Kruljac to provide a weighting of the factors contributing to his psychiatric symptoms. This had resulted in the figures previously quoted by Dr Nassios.
In contrast to Dr Epstein, Dr Rigby did not believe that Mr Kruljac could work eight hours per day because of his poor energy level, his pain and the fact that his pain increased after four hours’ work.
Dr Rigby did not believe the Peyronie’s Disease was a contributing factor but did consider that the ongoing litigation with Australia Post and the resentment that had developed were aggravating factors. With respect to the shoulder condition Dr Rigby believed Mr Kruljac did not fully understand what the problem was and/or his responses were in terms of his symptoms. The concept of having symptoms without underlying pathology was difficult for Mr Kruljac to understand or accept.
Dr Rigby did not consider Mr Kruljac’s challenging of the opinions of the Respondent’s independent medical experts was an unusual response, merely that Mr Kruljac was more tenacious than most individuals. While Dr Rigby had advised against Mr Kruljac increasing his daily hours to five, he had not observed any adverse effect since these hours commenced in November/December 2015.
While Dr Rigby did not disagree with Dr Epstein that the two unsuccessful marriages, difficulties with the builder and other external factors had played a part, he said he had not pursued these potentially contributing factors at length. He believed that sleep apnoea would cause tiredness, a decrease in energy, sadness and poor concentration and the marriage and building disputes would result in sadness and anger, but not depression. However, he was of the opinion that rumination over ongoing litigation and health problems, if intense, could impact on concentration and result in high levels of anger and anxiety.
Dr Rigby was of the opinion that Mr Kruljac would never be capable of full time employment.
Dr Clayton Thomas - occupational and pain physician
Dr Thomas has been seeing Mr Kruljac since August 2010 and provided reports to his general practitioner in the early stages of treatment (Exhibit A8) and a separate report for the purposes of this hearing (Exhibit A7).
Initially Dr Thomas made a diagnosis of a complex pain problem with vocational and psychological sequelae. He believed a pain management program was required. In the interim appropriate imaging was requested. Dr Thomas reviewed Mr Kruljac in October 2010 having been provided with two MRI scans, a CT scan of Mr Kruljac’s cervical spine and an ultrasound of his left shoulder. Dr Thomas interpreted the cervical spine imaging as being pretty unremarkable and there was no evidence of nerve root compression. He also viewed the ultrasounds of the left shoulder performed in 2009, one of which suggested a supraspinatus lesion and the second no lesion whatsoever. Following review of the imaging Dr Thomas changed his diagnosis to one of a centralised pain syndrome.
The latest report reiterates the history. Following the initial assessment in March 2011, Dr Thomas referred Mr Kruljac to Dr Muir for consideration of spinal median nerve branch radiofrequency ablation treatment. To Dr Thomas’ knowledge this did not take place. At review in April 2015 Dr Thomas found Mr Kruljac’s symptoms unchanged from 2010, noted the intervening treatment and the current treatment with analgesia in the form of Panadeine Forte and Lyrica 75 mg twice a day. No abnormality of the shoulder or spine was detected on examination.
Dr Thomas addressed the question of non-compliance with the planned rehabilitation and return to work program. He confirmed that Mr Kruljac’s physical tolerances were limited and any work he performed would be subject to restrictions. Dr Thomas considered the dosage and type of medication was such that it might impact on concentration. It was concluded that Mr Kruljac was not able to upgrade his hours of work. Dr Thomas regarded Mr Kruljac’s prognosis as poor, his symptoms more likely to worsen but that with his current duties his left shoulder symptoms were unlikely to deteriorate.
In his evidence before the Tribunal, Dr Thomas explained what was meant by a centralised pain syndrome. From what the Tribunal could discern this is a new concept extrapolated from experimental work in mice following induced spinal cord damage. The changes in the brain and spinal cord are recorded by functional MRI. It is postulated that there is a change in the threshold of pain awareness at both the central cerebral and peripheral spinal levels. Clearly similar studies have not been performed in humans. Dr Thomas was of the opinion that Mr Kruljac’s left shoulder symptoms and his neck pain interact and that any muscle imbalance in the rotator cuff, given the fall in the threshold of pain awareness, is interpreted as being painful. He disagreed with the suggestion that Mr Kruljac may have fibromyalgia as he did not have the number of tender points required for such a diagnosis.
In cross-examination Dr Thomas was asked to comment on Mr Kruljac’s current medication. This he thought was excessive, particularly the Panadeine Forte dose which he had recorded as being up to 10 per day. Dr Thomas said he would not prescribe Lyrica because of the side effects of weight gain and cognitive impairment. Dr Thomas had prescribed Lyrica extensively in the past but has ceased doing so for some years. The current restrictions on lifting of weights and elevation of shoulders were considered to be appropriate. In terms of Mr Kruljac’s future work capacity Dr Thomas was of the opinion that it might be possible to increase his hours of work slowly despite the disease process now being chronic. He would limit it to a 20 per cent increase at any time and further increases should be undertaken slowly.
In relation to the numbness in the left upper limb, Dr Thomas advised that this was not uncommon in centralised pain syndrome although it was not a diagnostic feature of the condition. On examining Mr Kruljac Dr Thomas had always found that the power and sensation in his left arm was normal.
Following Dr Thomas’ evidence Mr Kruljac formally withdrew his application for payment for left shoulder surgery (2014/6141).
Dr Michael Bloom, occupational and environmental physician
Dr Bloom has been seeing Mr Kruljac since February 2010 and has done so at the request of Australia Post. He provided five progress reports between 2010 and February 2014 and a further all-encompassing report in 2015 (Exhibit R7). Dr Bloom performed two worksite assessments in relation to Mr Kruljac’s duties. When seen in 2015 Mr Kruljac told him that his condition had deteriorated over the intervening two years, his pain becoming constant and increased in severity. Mr Kruljac admitted to being depressed and anxious and to experiencing panic attacks.
When seen in 2015 Mr Kruljac was still working four hours per day, five days per week undertaking data entry. Mr Kruljac was no longer having physiotherapy but was attending a gym twice a week. He exercised on a treadmill and performed upper body building using light weights. Physical examination of his neck was described as normal except for some mild restriction in the active range of movement. There was no evidence of radiculopathy. No abnormality was identified on examination of the left shoulder or either upper limb. Dr Bloom had been provided with imaging up to February 2010.
Dr Bloom made the diagnosis of a chronic pain syndrome of multifactorial origin which most likely included a work component as well as personal and constitutional factors compounded by workplace dissatisfaction and adverse personal psychosocial factors. He concluded Mr Kruljac would never resume his pre-injury type duties but did have the capacity for sedentary or semi-sedentary work with restrictions. He outlined the restrictions. Dr Bloom concluded that from a purely physical perspective he believed that if Mr Kruljac:
... where adequately motivated he would be able to safely sustain an increase in hours on suitable duties to full time. However because of the enormous barriers that result from adverse psychosocial factors, I do not think it at all likely that he will progress in a reasonable manner.
Dr Bloom made two visits to the worksite, the first in 2010 and second in 2013. On the last occasion he had the impression that Mr Kruljac was erecting barriers to his participation in the mail redirecting and computer data entering work that he was then doing. Dr Bloom gave the example of him having his keyboard in a position that interfered with his access. Dr Bloom was fully aware of the restrictions that were in place regarding Mr Kruljac’s work but had never seen the certificates provided by Dr Nassios.
In relation to the return to work plan constructed in February 2014 and the request that Mr Kruljac increase his working hours to five per day, Dr Bloom considered this to be an appropriate recommendation. Australia Post had shown its willingness to assist Mr Kruljac and provided a high degree of latitude in terms of the physical demands placed on him.
Mr Ferwerda asked Dr Bloom what he meant by the term psychosocial factors referred to in his report of 2015. Dr Bloom explained that he used what is called a biosocial model that flags various aspects according to their contribution. He had found Mr Kruljac to be pain focused and subject to both friction in the workplace and his personal life. Dr Bloom regarded motivation as being the major factor in successful rehabilitation.
When informed that Mr Kruljac had increased his hours of work to five per day since November 2015 and his attendance record had improved, Dr Bloom was not at all surprised as he believed healthy work was much more beneficial than being off work.
In cross-examination Mr Ternes queried why Dr Bloom had not suggested in 2010 or 2013 that Mr Kruljac be referred to a psychiatrist. Dr Bloom said he was aware on both occasions that Mr Kruljac was seeing a psychiatrist regularly. He was also questioned about the aetiology of the chronic pain syndrome. Dr Bloom described the major feature of the syndrome as being a perceived level of pain out of kilter with the physical condition. Dr Bloom regarded the three motorbike accidents as having played a role in Mr Kruljac’s physical and mental conditions but both had been contributed to by the earlier motor vehicle accident and non-work related factors such as his failed marriages.
Dr Bloom was asked why he recommended a slow increase in rehabilitation program hours of work and in Mr Kruljac’s case an increase to six hours after a period of three to six months at a five hour level and thereafter a gradual build up until reaching full time hours. This recommendation had been in contrast to that devised by Dr David Elder who suggested an increase to full-time hours over 13 weeks. Dr Bloom advised that in his experience the success rate was greatly increased by a slower increase in hours of work in individuals with a poor prognosis. In his analysis of Mr Kruljac, Dr Bloom believed that the 13 week timeframe would not be successful.
Dr Bloom had assessed the meaningfulness of the tasks being performed by Mr Kruljac, these being essentially redirection of mail and data entries in a computer and had found them to be meaningful.
Associate Professor Graham Brazenor - neurosurgeon
Mr Brazenor provided two reports in 2011 and a further report in 2015. The first report of 2011 was his opinion based purely on the documentary evidence as at 2011. He concluded that Mr Kruljac was accident prone and unemployable. He opined that liability for soft tissue injuries to the neck and left shoulder should be accepted.
Professor Brazenor subsequently saw Mr Kruljac and provided the second report. He said that the medication being taken by Mr Kruljac would not result in significant drowsiness.
Mr Kruljac’s description of his neck pain as radiating to the top of his head and his left eye was said by Professor Brazenor to be inexplicable. Physical examination revealed only 50 degrees of neck movement in all directions whereas Professor Brazenor had noted that Mr Kruljac’s neck movement was full and unrestricted during the course of the interview. Neurological examination was normal as was passive movement. The range of movement of Mr Kruljac’s left shoulder was normal on passive measures with slightly reduced flexion and abduction on active movement.
The MRI of Mr Kruljac’s cervical spine was interpreted by Professor Brazenor as showing only an osteophyte in the lateral recess at C3/4. This was considered to be within normal limits for someone aged 45.
Professor Brazenor concluded that the left shoulder was very mildly impaired and this did not prevent Mr Kruljac from performing full time work. The cervical spine findings were regarded as normal for his age, with the C3/4 osteophyte at the most producing mild discomfort in the region of the left trapezius muscle. Professor Brazenor concluded that given his accident history, Mr Kruljac was not competent to ride a motorbike and should cease such activities. He was fit for full time work, the only proviso being that he did not perform any heavy movement, such as the operation of a mechanical lever with his left upper limb. There was no indication for surgical intervention identified.
In the report of 27 November 2015 (Exhibit R8) Professor Brazenor considered Mr Kruljac’s symptomatology, as reported, to have deteriorated. On this occasion Mr Kruljac had described numbness of the left upper quadrant of his anterior chest wall, with this numbness radiating to his left arm and hand. On examination, Mr Kruljac developed a marked tremor in his left arm while endeavouring to abduct at the shoulder level. Professor Brazenor described this as being completely feigned. Examination of the shoulder joint was said to be normal and the range of movement of the neck had improved compared to that recorded in 2010, in that flexion was 50 degrees, extension 20 degrees and lateral flexion 20 degrees. Once more the neurological examination was normal.
Professor Brazenor concluded that there was no evidence of any cervical spinal disability, no evidence of any left shoulder disability or abnormality, no treatment was required, no rehabilitation was warranted and there was no indication for provision of any prescription medicines.
In his oral evidence Professor Brazenor confirmed his written opinions and did so vigorously.
Mr Ternes took exception to the use of the word feigned by Professor Brazenor but was forced to admit that other reporting experts had used the term, over-reacted which Professor Brazenor considered to be of the same meaning. Professor Brazenor expressed the opinion that centralised pain experience was a feature reported by all workers’ compensation claimants.
Associate Professor George Mendelson - psychiatrist
In his report of 3 July 2014 Professor Mendelson emphasised the symptoms he recorded as being resentment and grievance by Mr Kruljac for Australia Post’s failure to accept his claim for a psychiatric disorder. Dr Mendelson obtained a detailed history of the workplace accidents, Mr Kruljac’s domestic problems including his divorces and the dispute with the builder and his past attendance on psychiatrists dating from 2002. On the history he was given there was minimal alcohol use and Mr Kruljac denied ever using recreational drugs. At the time of the assessment Mr Kruljac was taking Duloxetine, Panadeine Forte, occasional Valium and twice daily doses of Lyrica.
Having considered the history given, the numerous reports of other specialists Professor Mendelson concluded that there was no diagnosable mental disorder present.
In his evidence before the Tribunal, Professor Mendelson confirmed unequivocally his previous opinion and made general comments in relation to a depressive disorder and its frequently multifactorial cause including the contribution of work factors and personal factors extraneous to work. He agreed that sleep apnoea could contribute to an existing major depressive disorder but it was not his impression that this was a factor in Mr Kruljac.
In cross-examination by Mr Ternes, Professor Mendelson agreed that chronic pain could amplify an existing depressed state and the reverse was equally correct. He had concluded that Mr Kruljac’s psychiatric problems in 2002 when he attended Dr Hopwood had been caused by non-work related factors. Professor Mendelson conceded that had he seen Mr Kruljac four years earlier, he might have elicited some symptoms compatible with a psychiatric disorder.
Professor Mendelson acknowledged that Mr Kruljac’s symptoms had responded to anti-depressive medication but was of the opinion that this treatment had been aimed at symptom control not the treatment of a specific psychiatric disorder. While he did not believe that the Peyronie’s Disease had caused or contributed to any past depressive disorder Mr Kruljac may have suffered, Professor Mendelson advised that 50 per cent of males with this condition do develop depression.
DOCUMENTARY EVIDENCE
Mr Ronald Haig - orthopaedic surgeon
Mr Haig provided reports in 2013, 2014 and 2015 in relation to Mr Kruljac’s left shoulder and neck. These reports have been consistent in that Mr Haig believes that there is no injury or ailment present in the left shoulder his opinion having been confirmed by ultrasound and MRI examinations. Mr Haig diagnosed cervical spondylosis which had been contributed to or aggravated by the motorbike accidents suffered by Mr Kruljac.
Mr Haig opined that the pain experienced by Mr Kruljac in the region of his left shoulder was referred from his cervical spine. Mr Haig found no indication for surgical intervention in the left shoulder or the cervical spine. He was critical of the amount of analgesia Mr Kruljac was taking and considered that Lyrica was contraindicated given the absence of a radiculopathy for which it is sometimes beneficial. It was recommended that Mr Kruljac take anti-inflammatory drugs and simple analgesics. Mr Haig concluded that neither condition prevented Mr Kruljac from working full time hours and he could work as a postal delivery officer but for his history of frequent motorbike accidents.
Mr Haig considered that given his examination findings of 2013 and 2015 there had been an improvement in the range of movement of Mr Kruljac’s cervical spine to an appreciable degree.
Dr Malcolm Hopwood - psychiatrist
Dr Hopwood treated Mr Kruljac from 2002 until early 2013, for what was initially diagnosed as anxiety with some depressive symptoms relating to the breakdown of his first marriage. A detailed history dating back to Mr Kruljac’s teens was obtained and on each visit, usually at 6 weekly intervals, Dr Hopwood made comprehensive verbatim records of Mr Kruljac’s symptoms and his insight into his condition. The presenting symptom in 2002 had been episodes of acute shortness of breath diagnosed as panic attacks by Dr Hopwood. It was recorded that following a motor vehicle accident in 1993 Mr Kruljac had not worked for 12 months despite investigations at the time of the accident revealing only soft tissue injuries. Mr Kruljac’s alcohol intake and use of cannabis, Ecstasy and occasional Speed was recorded.
Mr Kruljac remained free of depressive symptoms after treatment until 2009 when he again complained of symptoms related to conflict with his then second wife, including an intervention order she had obtained that resulted in him having to leave the marital home for a short period. When first seen in 2002 Mr Kruljac did not meet the criteria for a major depressive disorder and Dr Hopwood suspected the presence of significant personality issues exacerbating his illness. Mr Kruljac was noted to have a somewhat controlling style and having perhaps consistent with that some difficulty in facing emotional distress.
Between 2010 and 2013 Dr Hopwood considered that the psychiatric symptoms had been further impacted by the chronic pain Mr Kruljac experienced as well as by the workers’ compensation process and the denial of some of his claims. Dr Hopwood anticipated improvement would occur with finalisation of the divorce from his second wife and the resolution of a long standing dispute with the builder of his home as both of which were considered to be contributing to the ongoing anxiety and depressive symptoms.
At his last visit with Dr Hopwood on 8 February 2013 Mr Kruljac had improved and Dr Hopwood considered his depressive disorder was now in remission but he still had a low grade general anxiety disorder. As Dr Hopwood had recently been appointed to a Professorial Chair he was discontinuing his private practice and was unable to see Mr Kruljac again. He recommended in his report to the treating general practitioner that further psychiatric treatment might be required but that continuing attendance on a psychologist and Dr Nassios may suffice.
Northern Hospital Records of treatment of Mr Kruljac
Mr Kruljac has attended Northern Hospital and its predecessor the Preston and Northcote Community Hospital (PANCH) since the age of 13. There are several entries which are relevant to the current claims. The first relates to a motor vehicle accident in June 1993, in which he sustained several soft tissue injuries, a laceration of his chin and loss of consciousness for an unknown period of time. On arrival at PANCH Mr Kruljac complained of pain in the right shoulder and clavicle, the right knee and his neck. Investigations in the form of plain X-rays did not reveal any abnormality. Mr Kruljac had elected to transfer to St Vincent’s Private Hospital for further treatment.
In 2014 he was seen in the Plastic Surgical Clinic for assessment of the Dupytren’s Contracture affecting both his hands and feet. The history obtained was that he was diagnosed with Peyronie’s Disease, a similar condition, in 2007 and had since attended a urologist as a private patient for follow-up and treatment of this disease. When seen in the Plastic Surgical Clinic in 2014 he gave a 10 year history of Dupytren’s nodules in his hands and feet. His father also suffered from these conditions.
In September 2009 Mr Kruljac was investigated for atypical chest pain. In order to exclude a cardiac cause he underwent quite extensive investigation, including a Sestamibi exercise test which revealed excellent cardiac function and no evidence of ischaemic heart disease.
In 2012 or earlier, Mr Kruljac was diagnosed with an endocrine condition relating to malfunction of his pituitary gland. The major symptom attributed to this condition was lethargy. He was treated with replacement hormone therapy from January 2013 but without benefit. He attends an endocrinologist at the Austin Men’s Health Clinic and sees the urologist in private practice. No reports have been received from these treating doctors.
Rheumatology Reports
Mr Kruljac was seen by two rheumatologists in the early stages of his symptomatology. The report of Dr Ebringer dated 12 December 2011, is representative of these reports. The cause of Mr Kruljac’s shoulder and neck pain was said to be unclear as the degenerative changes present radiologically were considered to be minor. Dr Ebringer concluded that these changes were not work related. In 1999 Dr Rosenthal, an occupational health physician, had diagnosed muscular strain and recommended a gymnastics program.
RELEVANT LEGISLATION
While the substantive issue before the Tribunal relates to s 37 of the SRC Act, s 14, s 16 and s 19 are also relevant. Section 14 states:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self inflicted, unless the injury results in death, or serious and permanent impairment.
Section 16 provides compensation in respect of medical expenses and states:
16 Compensation in respect of medical expenses etc.
(1)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. ...
Section 19 provides for compensation for injuries resulting in incapacity and states:
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings. ...
And s 37, the most relevant provision of the SRC Act in this matter, states:
37 Provision of rehabilitation programs
(1)A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
(2)If a rehabilitation authority makes a determination under subsection (1), the authority may:
...
(b)make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
...
(3)In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a)any written assessment given under subsection 36(8);
(b)any reduction in the future liability to pay compensation if the program is undertaken;
(c)the cost of the program;
(d)any improvement in the employee’s opportunity to be employed after completing the program;
(e)the likely psychological effect on the employee of not providing the program;
(f)the employee’s attitude to the program;
(g)the relative merits of any alternative and appropriate rehabilitation program; and
(h)any other relevant matter.
...
(5)Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
...
(b)if the employee is undertaking a part time program—compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full time program.
(7)Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
...
(8)Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
Section 38 provides for review of certain determinations by Comcare and states:
38 Review of certain determinations by Comcare
(1)As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:
(a)the terms of the determination;
(b)the reasons for the determination; and
(c)a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.
(2)An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination.
(3)A request shall:
(a)set out the reasons for the request; and
(b)be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows.
(4)On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit.
Section 40 relates to the duty to provide suitable employment which is relevant in this matter and states:
40 Duty to provide suitable employment
(1) Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment. ...
SUBMISSIONS
Mr Kruljac did not file a Statement of Facts, Issues and Contentions. He relied on the respondent’s Statement of Issues. It was not disputed that the accidents of 1998, 2000 and 2007 had occurred or that Mr Kruljac had injured his neck on each occasion and his left shoulder in 2000. After each motorbike accident, he had returned to work on full duties until 2009. Mr Ternes submitted that this was evidence of Mr Kruljac’s commitment to staying at work.
Based on the medical evidence Mr Ternes contended that Mr Kruljac’s cervical spondylosis, albeit a degenerative disease, had been aggravated by the three accidents and that the majority of the medical experts were of this view. In contrast, the cause and even existence of the left shoulder pathology was disputed although Dr Nassios, Dr Clayton Thomas and Mr Khan were of the opinion that there were some abnormal changes in the left shoulder. Reliance was placed on the evidence of Dr Thomas with whom Dr Bloom had agreed, that Mr Kruljac as a result of his physical injuries had developed a chronic pain syndrome or as described by Dr Thomas, a centralised pain disorder. It was submitted that all of these conditions had been relevant to the construction of Mr Kruljac’s return to work rehabilitation program and in particular his capacity to cope with the planned hours of work.
Mr Kruljac’s major contention was that the return to work program and the upgrade of the hours to be worked as advised on 24 February 2014, was too rapid in its progression. Mr Kruljac was required to go from four to eight hours work per day in a period of 13 weeks. The actual duties he was to perform were accepted as being appropriate.
Mr Ternes considered s 37(3) of the SRC Act and the requirements first addressing the wording that the Rehabilitation Authority shall have regard to. He cited the Federal Court decision of O’Loughlin J in Department of Defence v Jodette Fox (1997) FCA 3 in relation to the meaning of the phrase shall have regard to. O’Loughlin J said:
.. In my opinion it follows that there would be a failure to "have regard" to nominated matters if the regard was not "adequate" or not "sufficient". The rehabilitation authority would not comply with its statutory obligation if it merely had "token" regard or "nominal" regard to those matters.
The particular subsections Mr Ternes addressed in relation to his contentions that Australia Post had failed to consider appropriately, adequately or sufficiently, were s 37(3)(b) regarding any reduction in the future liability to pay compensation if a program is undertaken, section (e) the likely psychological effect on the employee of not providing the program; section (g) the relative merits of any alternative and appropriate rehabilitation program; and section (h) any other relevant matter.
Mr Ternes relied on the evidence of Dr Bloom, who although he had approved the program of 24 February 2014, said in his evidence that it was too rapid in its progress and likely to be unsuccessful in someone with a poor prognosis. Dr Bloom had favoured the increase in hours of work to be spread over a period of three to six months.
In relation to the second point raised, that being the lack of regard to Mr Kruljac’s psychiatric condition, Mr Ternes contended that while Dr Bloom had in his first report said that a major depressive disorder was a likely diagnosis, neither he nor the rehabilitation authority (JRJ Rehabilitation) contacted the treating psychiatrist, but rather communicated with the general practitioner Dr Nassios. An appointment was made for Mr Kruljac to see Professor Mendelson (T60) but this was subsequently cancelled. Dr Hopwood’s report had been made available to Australia Post and the rehabilitation group JRJ Rehabilitation.
Mr Ternes contended these two points were equally applicable to the consideration under s 37(3)(h) - any other relevant matters.
It was submitted that Mr Kruljac had only increased his hours to five per day after his psychological status had improved in late 2015. Mr Kruljac had been certified by Dr Nassios as fit for four hours of work per day and this certification has continued throughout the period under consideration. Mr Ternes further submitted that the reviewable decision (Application 2014/3460) should be remitted for reconsideration as it was entirely reasonable for Mr Kruljac to stay on 20 hours per week of work in restricted duties up until November 2015.
The second decision addressed by Mr Ternes was application 2014/1908, wherein the reviewable decision of 8 April 2014 affirmed the earlier determination that Mr Kruljac was fit to work certain hours and he having refused to do so all compensation payments were suspended. Once more it was asserted that Mr Kruljac had been certified to work only four hours per day during this period. Dr Epstein had commented on his capacity for work at this time but it was not until 2016 that Mr Haig had declared Mr Kruljac fit to work full time. Once more it was submitted that the Tribunal should set aside this decision and remit the matter to the respondent for reconsideration and recalculation of all payments for incapacity under s 19 in the period 25 February 2014 until 25 May 2014 as the incapacity for work in this period was due to the accepted compensable conditions.
Application 2014/3460 sought AAT review of the decision of 16 May 2014 in relation to the neck and left shoulder injuries. The reviewable decision had suspended all Mr Kruljac’s rights to compensation pursuant to the SRC Act s 37(7) on and from 28 March 2014 until such time as he began to undertake the rehabilitation program dated 24 February 2014. This was identified by Mr Ternes as the major matter before the Tribunal impacting on all four applications made after the suspension date. The benefits were suspended on the basis that Mr Kruljac had refused to participate in the program without a reasonable excuse as required by s 37(7).
Mr Ternes relied on the decision in Australian Postal Corporation v Nunez (2014) FCA 1095 wherein Griffiths J addressed the question of the meaning of a reasonable excuse. Griffiths J considered the Federal Court decisions in Pascoe v Australian Postal Corporation, Comcare v Singh and Telstra Corporation v The Administrative Appeals Tribunal and determined that as observed by Kiefel J in Telstra Corporation the excuse must be personal to the employee and that as the Full Court held in Pascoe, the AAT’s task is to evaluate the reasonableness of any excuse presented. The latter was said to require an objective assessment of the excuses. The subjective state of mind of the individual seeking compensation was not sufficient to meet these requirements.
Mr Ternes contended that not only did Mr Kruljac sincerely believe that he could not cope with more than four hours of work five days a week but this was also the opinion of his treating general practitioner who continued to so certify him. On this basis Mr Ternes submitted that the Tribunal should set aside the decision and remit it for reconsideration by the respondent.
Mr Ternes addressed the four remaining applications. That relating to surgery to the left shoulder had been withdrawn during the hearing. All of these were lodged after the suspension of payments under s 37(7).
Mr Ternes submitted that the reviewable decision of 13 October 2014 (Application 2014/6142) affirming the earlier determination that Australia Post had no present liability to pay compensation in accordance with s 16 and s 19 of the SRC Act for the condition of left shoulder injury, should be set aside and remitted for reconsideration given the divergent medical opinions as to the presence of any left shoulder pathology. The opinions of Dr Thomas, Mr Khan and Mr Bonomo were cited as supporting the application with those of Mr Haig, Associate Professor Brazenor and Mr Raleigh excluding any work related pathological change.
Application number 2014/6143 related to payment for the medication Lyrica (s 16) for the cervical spondylosis for which liability had been accepted but for which aggravation of the condition had been denied. Mr Ternes contended that despite the evidence or the change in evidence in relation to the use of Lyrica in conditions such a chronic pain syndrome, it had been reasonable for Lyrica to be prescribed in 2013 at least for a period of time. That time span had been identified as being of the order of six months by Mr Khan and despite the evidence of Dr Thomas that he was now opposed to the prescribing of Lyrica. Given that these were the only experts who considered the role of Lyrica, Mr Ternes contended that the Tribunal should set aside the decision and find that the prescribing of Lyrica and the cost thereof was reasonable for a short period of time. The time equating to short was not nominated.
The reviewable decision of 13 October 2014 (application number 2014/6144) affirmed the earlier determination that Australia Post was not liable to pay compensation pursuant to s 14 of the SRC Act for the condition of stress anxiety, secondary to aggravation of cervical spondylosis. This denial of liability was based on the report of Professor Mendelson who found no evidence of a diagnosable psychiatric disorder.
Mr Ternes submitted that once more there was a divergence in expert and treating doctor opinions both as to the diagnosis and the severity and causation of any psychiatric disorder. In addition it was not clear that all doctors accepted a diagnosis of chronic pain syndrome or if such existed whether it was proportionate to the signs, symptoms and radiological findings. It was contended that the psychiatric condition whatever it be called contributed to any existing depression and magnified the depression which in turn had a cyclical effect on any chronic pain syndrome or depression of other aetiology. It was further contended that the secondary psychological conditions resulting from the physical injury, while making a significant contribution, did not have to be the dominant factor (s 5(b)(2)).
Mr Ternes identified the date of injury leading to the psychological disorder as 4 February 2010, that being the date that Dr Nassios re-referred Mr Kruljac to Dr Hopwood (R10).
The final reviewable decision was application 2015/5571 of 24 August 2015 relating to 14 days between April 2012 and February 2014, when Mr Kruljac did not attend work because he had slept in. He claimed that his drowsiness and failure to respond to his alarm clock was caused by his medication which then consisted of Neurontin, Oxycontin and intermittently Valium. While it had been stated by various experts that there was contribution by Mr Kruljac’s diagnosed sleep apnoea, this it was contended was mild to moderate until 2014.
Mr Ternes conceded that there were many inconsistencies between the compensation certificates issued by Dr Nassios and his clinical notes, but challenged any suggestion that there was a large gulf. It was contended that the Tribunal should set aside this decision and substitute its decision that the 14 days of absence from work as a result of lethargy, tiredness and oversleeping should be accepted and compensated in accordance with s 19 provisions.
Respondent’s submissions
Mr Ferwerda relied predominantly on the medical reports of the respondent’s expert witnesses and the recurring entries in all reports relating to Mr Kruljac’s lack of motivation. It was submitted that this lack of motivation was separate from any depression that Mr Kruljac might have and this was supported by the fact that Mr Kruljac had increased his hours of work to five daily in November 2015 in response to financial pressures. Similarly, based on the expert’s evidence, the respondent rejected that there had been any aggravation of the degenerative changes in Mr Kruljac’s cervical spine or that he had developed a chronic pain syndrome secondary to this pathology.
Mr Ferwerda addressed the rehabilitation plan in terms of the requirements of s 37(3). He submitted that the purpose of the sub-section and s 37 as a whole was to secure rehabilitation of the worker to the fullest extent possible. This served the interests of both parties. It was stressed that the applicant’s arguments in relation to s 37(3) had been raised for the first time at the hearing. The applicant had not filed a Statement of Facts, Issues and Contentions prior to the hearing.
Section 37(3)(a) requires that any written assessment given under s 36(8) must be considered. Dr Bloom has been involved in Mr Kruljac’s rehabilitation program since March 2010 and provided some eight or more lengthy reports and had assessed Mr Kruljac’s work site on two occasions. Dr Bloom’s recommended return to work program had advocated an increase in hours from four to eight per day over a period of six months. The actual program that was accepted, designed by Dr Elder and counter-signed by Dr Bloom indicating his approval, had been foreshortened to 13 weeks. During the work site assessments Mr Kruljac had not expressed any dissatisfaction with his then restricted work duties, although Dr Bloom made recommendations relating to the position of his computer. It was submitted that the slower rate would not make any difference to the ultimate result and would unfairly defeat the respondent’s attempts to achieve Mr Kruljac’s rehabilitation.
With respect to s 37(3)(b) and (c) it was contended that these two considerations, the first in relation to the liability to pay compensation and the second in relation to the cost of the program would defeat the purpose of s 37 to achieve rehabilitation and had not been given any weight in the consideration. It was noted that the applicant had not put any weight on factor (3)(c) nor had they raised any objection in relation to (3)(d) regarding any improvement to the employee’s opportunity to be employed after completing the program as at all times it was considered that Mr Kruljac would remain employed by Australia Post.
In relation to s 37(3)(e), the likely psychological effect on the employee of not providing the program, Mr Ferwerda submitted this had been considered by Australia Post. In particular Dr Bloom being fully aware of Mr Kruljac’s attendance on Dr Hopwood since 2002 until 2013 and thereafter with Dr Rigby had considered it unnecessary to obtain further psychiatric opinion but had checked Mr Kruljac’s psychological progress with the treating general practitioner.
Mr Kruljac’s attitude to the program (s 37(3)(f)) had been one of immediate refusal to comply and he had advised the rehabilitation provider that he would appeal the decision.
Mr Ferwerda did not address the requirements of having regard to the relative merits of any alternative and appropriate rehabilitation program and any other relevant matter (ss(3(g) and ss3(h)). Mr Ferwerda contended that Mr Kruljac had the fixed view that he could only work four hours per day and had made this decision well before he spoke with his general practitioner regarding certification that he could increase to five hours per day. This was supported by Dr Nassios’ evidence that he placed considerable weight on Mr Kruljac’s own assessment of his incapacity.
Mr Ferwerda addressed the other four applications before the Tribunal that are not related to the return to work rehabilitation program. He submitted that all four reviewable decisions and the three arising from the failure to undertake the rehabilitation program should be affirmed. It was contended that the relevant factors were that Mr Kruljac had been on light duties since 2009; he was focused on his pain and his perceived incapacity; he had exhibited grievance and resentment toward the employer and had set views with regard to the status of his physical and mental health, so set that he only withdrew the application for left shoulder surgery costs during this hearing.
Mr Ferwerda submitted that all of the medical evidence in relation to the left shoulder pathology was, with the exception of Dr Thomas, to the effect that there was no pathological process of any note in Mr Kruljac’s left shoulder and no treatment was required (Application 2014/6142). The shoulder symptoms while present for 17 years had been extensively investigated and conflicting reports and opinions had been received. In 2010 Dr Frazer said there was no left should injury. The recent investigation by Mr Raleigh in the form of an MRI had revealed minimal tendinosis in the rotator cuff and no labral or chondral abnormality. Degenerative changes in the acromioclavicular joint were described as minor. The respondent rejected Dr Thomas’ opinion linking muscular tension in the left shoulder to the development of a centralised pain disorder as the experimental evidence derived from studies in mice was considered to be speculative and not supported by the majority of the medical community.
It was argued that the application relating to payment for the medication Lyrica was not supported by any evidence. Dr Clayton Thomas had previously prescribed Lyrica for individuals suffering from neuropathic pain but had abandoned this practice because of the incidence of adverse side effects. Similarly, Mr Khan no longer supported the use of Lyrica for chronic pain syndromes or neuropathic pain. Mr Ferwerda noted there had been no recent diagnosis by any practitioner of Mr Kruljac having neuropathic pain.
Mr Ferwerda submitted that the respondent’s reviewable decision that Mr Kruljac’s stress anxiety, secondary to aggravation of the cervical spondylosis (Application 2014/6144) was not compensable as the respondent was not liable under s 14 of the SRC Act, should also be affirmed given the multifactorial causation of any psychiatric condition from which Mr Kruljac might suffer. It was agreed that the psychiatric evidence was in dispute and that all psychiatrists had acknowledged the contribution of non-work related factors. The Tribunal was invited to accept the opinion of Dr Mendelson in preference to those of Doctors Rigby and Epstein, particularly as Dr Rigby had acted as an advocate on Mr Kruljac’s behalf. It was further contended that Mr Kruljac’s psychological symptomatology was entangled with anger and resentment toward Australia Post and the workers’ compensation process.
Based on the evidence before the Tribunal relating to the accuracy of the dates of the various workers’ compensation certificates issued by Dr Nassios, the application for review (decision 2015/5571) for payment for 14 days when Mr Kruljac had slept through his alarm clock and failed to present for work it was submitted that the Tribunal should not accept these certificates as being accurate given the state of Dr Nassios’ records. Consideration of any contribution by Mr Kruljac’s sleep apnoea had not been made and his drowsiness had been attributed purely to the side-effects of his analgesic medication.
Both members of counsel made submissions as to costs depending on the Tribunal’s decision. Leave was granted for the hearing of further submissions on costs, depending on the Tribunal’s decision.
TRIBUNAL’S DELIBERATION AND DECISION
Mr Kruljac has made multiple claims for injuries sustained in the course of employment with Australia Post. Between 1998 and 2011 Australia Post has accepted liability for minor concussion (reference 1998/600078); for a bruised, grazed left elbow, bruised left knee, bruised left shoulder and strained neck (reference 2000/600061); for muscle tension, root of neck, (reference 2001/600027); for mild left supraspinatus tendonitis/left medial epicondylitis (reference 2003/4504); for soft tissue injury to the right shoulder, elbow, leg and back date of injury 26 July 2006, with the acceptance of liability being 2 August 2006; for cervical spine dysfunction (L) neck, back of head acceptance (reference 2007/303142) and for aggravation of cervical spondylosis of C3/4, C4/5 and C5/6 (reference 2009/00410).
By a consent decision before the Administrative Appeals Tribunal dated 22 December 2011 liability was accepted for a left shoulder injury, appearing on or about 22 March 2000 (reference 2010/306628).
The active matters before the Tribunal are application 2014/1907 in relation to aggravation of cervical spondylosis and the return to work program to commence at five hours per day as of 24 February 2014; application 2014/1908 relating to the hours that were not worked between 25 February 2014 and 25 May 2014 as a result of the aggravation of cervical spondylosis and application 2014/3460 relating to both the neck and left shoulder injuries wherein the applicant’s rights to compensation were suspended under s 37 of the SRC Act as of 28 March 2014 until such time as he began to undertake the rehabilitation program.
A further four reviewable decisions made after the suspension of all Mr Kruljac’s rights to compensation remain active and for consideration.
These are :
·Application 2014/6142 regarding cessation of liability to pay compensation under s 16 and s 19 of the SRC Act for the condition of left shoulder injury,
·Application 2014/6143 regarding a decision that Australia Post was not liable pursuant to s 16 of the SRC Act to pay for the medication Lyrica,
·Application 2014/6144 denying liability under s 14 of the SRC Act for the secondary condition of stress/anxiety secondary to the aggravation of the cervical spondylosis of C3/4, C4/5 and C5/6, and
·Application 2015/5571 denying the claim for payment under s 19 for 14 days over a period of several years wherein the applicant slept through his alarm clock and did not attend work due to effects of pain medication.
The application 2015/5571 which related to some 14 days when Mr Kruljac slept through his alarm and did not wake in time to go to work, was based on the provision of proforma workers’ compensation certificates by Dr Nassios. These certificates are replete with typographical errors in relation to dates and periods of incapacity. In his evidence before the Tribunal Dr Nassios accepted that his record keeping was poor and at face value inaccurate. Australia Post denied liability for payment of s 19 compensation for these particular days.
Following the event of 22 December 2008 when Mr Kruljac awoke with severe neck pain radiating to his left shoulder and arm he did not work for several weeks but in approximately June 2009, based on a return to work rehabilitation program constructed by Dr Bloom, he commenced working four hours per day, five days per week on restricted duties. The rehabilitation provider Active Rehabilitation Works had asked Dr Bloom to assess Mr Kruljac.
Mr Kruljac continued to work for four hours a day, five days per week receiving s 19 compensation payments to maintain his normal salary. Between approximately August 2010 and March 2011 Australia Post suspended these compensation payments under s 19(4). Mr Kruljac had informed Dr Hopwood of the suspension of payments on 12 August 2010 and their restoration on 29 March 2011 after he had lodged an application for review of this decision. The review had found in his favour based on the reports of Dr Nassios that Mr Kruljac was incapable of working more than four hours per day.
Mr Kruljac was subject to an Intervention Order at the request of his second wife. This was in force for 2 to 3 months late 2009 to early 2010. At the same time Mr Kruljac was involved in a dispute with the builder of his new home and was contemplating taking legal action.
The Medical Evidence
Throughout the 19 years during which Mr Kruljac has pursued compensation for various physical and secondary psychological injuries a large volume of medical reports and expert opinions have been amassed.
The physical injuries sustained in the motorbike accident on 22 March 2000, appear to have been accepted essentially on the basis of the clinical history provided and the limited investigation undertaken. The Tribunal notes, that an ultrasound of Mr Kruljac’s left shoulder performed on 4 April 2000 was entirely normal as was a plain x-ray of the cervical spine. The earlier non-work related motor vehicle accident (MVA) of 1993 was similarly limited in investigation and all plain x-rays again were reportedly normal. While Mr Kruljac has given evidence before the Tribunal that following the MVA he was off work for one week, his psychiatrist Dr Hopwood recorded that following this accident, Mr Kruljac did not work for a period of 15 months. Other reports indicate that Mr Kruljac had accepted a redundancy package from Melbourne City Council shortly after the MVA. The Tribunal notes that Mr Kruljac sustained trauma to his neck resulting in neck pain in the MVA of 1993 (Northern Hospital Record).
A repeat ultrasound of Mr Kruljac’s left shoulder performed in 2003 revealed mild left supraspinatus tendonitis. It would appear that this finding resulted in the acceptance of liability for the left shoulder condition.
Since Mr Kruljac experienced the sudden onset of severe neck, left shoulder and left arm pain on 22 December 2008 for which liability was accepted by Australia Post, he has not worked full time hours and as from June 2009 until November 2015 he worked at a maximum four hours per day, five hours per week. During the past nine years he has undergone a large number of reassessments and investigations. These include assessment by two neurosurgeons (Professor Brazenor and Mr Timms), four orthopaedic surgeons (Mr Haig, Mr Raleigh, Mr Khan and Mr Kelman) and four psychiatrists (Dr Hopwood, Dr Rigby, Dr Epstein and Associate Professor Mendelson). The orthopaedic surgeons have been primarily concerned with Mr Kruljac’s left shoulder pain and as a result of several MRIs, thorough physical examinations and the radiological evidence that Mr Kruljac has a Type 1 acromion, which means impingement is readily reproduced, the Tribunal is satisfied on the balance of probabilities that any left shoulder injury or pathology that may have been present has resolved as there is no objective evidence of a significant injury that could cause any incapacity for work.
In the course of the hearing and having heard the evidence in relation to the left shoulder, Mr Kruljac withdrew his application for payment for a left shoulder arthroscopy. Both the treating orthopaedic surgeon Mr Raleigh and Mr Haig have clearly stated that they now believe all shoulder symptoms experienced by Mr Kruljac were referred from his cervical spine. Mr Kelman had demonstrated impingement in 2010 when he saw Mr Kruljac but repeated examinations since that time have failed to reproduce this sign and Mr Kelman’s report carried the proviso that such a finding was more common in the anatomical variant of a Type 1 acromion.
The Tribunal affirms the decision in application 2014/6142, wherein Australia Post had decided that there was no ongoing s 16 or s 19 compensation payable for a left shoulder injury.
In relation to the cervical spondylosis the opinions of the experts are mixed. Mr Kruljac has undergone MRI studies of his cervical spine and these indicate the condition has remained stable over many years. The MRI of 14 January 2010 performed at Northern Hospital reportedly showed multilevel spondylosis and foraminal stenoses, most pronounced at the C3/4 level where it was said that the exiting left C4 nerve root was compressed.
The recent MRI of the cervical spine requested by Mr Timms and presumably undertaken at Epworth Hospital, shows disc bulging at C3/4 and C5/6 but this did not cause any major neural compression. Mr Timms was of the opinion that despite the lack of neural compression, the disc bulges may be causing some radicular symptoms in Mr Kruljac’s left arm. However, he stated that the degree of any neural compression was mild and may give rise to tingling and numbness in the neck and left arm but would not cause any instability or major pain in the shoulder. Conservative treatment in the form of Pilates, hydrotherapy, osteopathy and acupuncture were recommended.
Other opinions vary greatly from that of Associate Professor Brazenor who finds there is no organic lesion causing any symptoms, be they in the shoulder or the neck and in the instances where the orthopaedic surgeons have considered the cervical spine pathology their opinions have been divided. As no attempt has been made at any stage to compare the MRI studies of 2010 with that of 2016, the Tribunal is not prepared to rely on the differing interpretations of Mr Timms in 2016 and the radiologist Dr Saddik in 2010 although their reports suggest there has been an improvement between 2010 and 2016. As the respondent has accepted liability for aggravation of cervical spondylosis and in particular, at C3/4, C4/5 and C5/6 levels, there is insufficient evidence in either imaging or opinions to challenge this decision of 2009 and the psychological symptoms that flow from that diagnosis and the persistence of pain attributed to an aggravation of the cervical spondylosis.
Based on the opinions of Mr Khan and Dr Thomas the Tribunal affirms the decision rejecting payment for the medication Lyrica. It is unclear who prescribed Lyrica and initially the dose was non-therapeutic. The accepted indication for its use is neuropathic pain (Pharmaceutical Benefits Scheme). This is not a current diagnosis in Mr Kruljac’s case.
The diagnosis of Mr Kruljac’s psychiatric disorder is also subject to mixed opinions. It is clear from Dr Hopwood’s records that Mr Kruljac has suffered from panic attacks since his teens. This is substantiated by entries in the Northern Hospital record where he attended PANCH hospital at the age of 15 with an episode of dyspnoea and hyperventilation and was referred to a psychiatrist at that stage. Dr Hopwood attributed any depressive symptoms, which originally did not meet the requirements of a major depressive disorder, to Mr Kruljac’s marital and relationship problems.
Treatment of the depressive symptoms was provided in the form of counselling and medication and it was not until 2010 that Dr Hopwood, having been alerted by Dr Nassios to the physical conditions, considered that Mr Kruljac’s work related injuries were a factor in the persistence of these depressive symptoms although by 2013 Dr Hopwood considered the depression to be in partial remission although a mild general anxiety persisted.
Dr Rigby disagreed with this opinion. He states that Mr Kruljac suffers from a major depressive disorder attributable predominantly to his physical injuries although he agrees that other non-work related factors are relevant. Dr Epstein has diagnosed an adjustment disorder with depressed and anxious mood secondary to the physical condition and therefore resulting from his work related injuries. Doctors Rigby and Epstein are in agreement that the diagnosis of a major depressive disorder versus an adjustment disorder depends on the severity of the symptoms and these will be interpreted differently by different psychiatrists.
Associate Professor Mendelson when he first saw Mr Kruljac in July 2014, found no evidence of a diagnosable psychiatric disorder but agreed that his diagnosis might have been different had he seen Mr Kruljac at an earlier stage, such as 2010.
Whatever the diagnosis it is not necessary for the Tribunal to postulate what it might be, as Comcare and Mooi (1996) FCA 580 determined that it was only necessary for the employee to demonstrate that he or she is in a condition that is outside the boundaries of normal mental functioning and behaviour.
The Tribunal is perturbed by the varied or absent consideration given by the psychiatrists to other health issues, albeit these have rarely been volunteered by Mr Kruljac in the history he has given to these psychiatrists and other specialists. He has said that he underwent an MRI of his brain to visualise his pituitary gland but no MRI report has been provided nor has there been an opinion from his endocrinologist. The Northern Hospital notes record that the only symptom Mr Kruljac experiences that is attributable to the endocrine condition is severe lethargy. Dr Nassios’ records indicate that Mr Kruljac was diagnosed with Peyronie’s Disease in 2007, and he has attended an urologist in private practice since that time. He is also seen at an endocrine clinic at the Austin Hospital.
Reports relating to these two conditions have not been provided and were not considered by Dr Hopwood or Dr Epstein although the latter was aware of the diagnosis of Professor Mendelson who had not obtained any history from Mr Kruljac but had gleaned his knowledge of the condition from the reports of other treating doctors. Professor Mendelson did provide the Tribunal with an article on the incidence of emotional difficulties and depression associated with Peyronie’s Disease. This report published in the Journal of Sexual Medicine 2013 was authored by Christian Nelson and John Mulhall and involved a review of the medical literature relating to the psychosocial effects of Peyronie’s Disease. The meta-analysis several series revealed a rate of 80 per cent of emotional difficulties associated with the diagnosis with 48 per cent of patients developing a depressive disorder and 54 per cent of couples affected by this diagnosis experiencing relationship difficulties.
Dr Rigby, the current treating psychiatrist, did not think the presence of Peyronie’s Disease was a factor in Mr Kruljac’s development of a major depressive disorder. The Tribunal accepts that Mr Kruljac has a psychiatric disorder that has partially responded to anti-depressive medication and is causally related to multiple factors, some of which may be work related. However, given there has been no consideration of two other physical conditions which are possibly contributory, the Tribunal cannot determine on the reports provided whether or not the work related physical conditions contribution reaches the required threshold to be considered significant.
Dr Bloom and Dr Thomas are of the opinion that Mr Kruljac suffers from a chronic pain syndrome (Dr Bloom) or a centralised pain disorder (Dr Thomas) as a consequence of his physical injuries to the neck and shoulder despite the findings that these two conditions are in the case of the shoulder, resolved and in the case of the cervical spine, minor and devoid of evidence of radiculopathy. Mr Kruljac did not benefit from the pain management course provided by Dr Thomas. Both doctors consider his prognosis to be poor and his work capacity limited but that he has the potential to work longer hours than he currently does although he is unlikely to ever achieve full time employment.
The hypothetical basis for a centralised pain disorder as described by Dr Thomas is of great interest, but the Tribunal is not convinced that it is transferrable on experiments in mice to humans at this particular stage in the progress of the research. However, Mr Kruljac’s current symptomatology is best explained by the presence of a chronic pain syndrome, be it peripheral or centralised in origin.
Mr Kruljac’s work capacity has been addressed by his treating doctors Dr Nassios and Dr Rigby both of whom are firmly of the opinion that he will never be capable of working full time. His duties will always be restricted in terms of their physical requirements and his psychological status is such that his pain is accentuated or aggravated by working greater than four hours per day. In direct contrast Professor Brazenor believes that Mr Kruljac is capable of working full time in his current duties and was so capable at the time Mr Brazenor first assessed him in 2011.
Doctors Thomas, Bloom and Epstein are all of the opinion that Mr Kruljac does have the capacity to increase his hours of work but that this should be undertaken slowly with only 20 per cent increases in workload at any time, followed by reassessment before further increases. The latter advice appears to be supported by the acknowledgement of all medical practitioners that since increasing his hours of work from four to five per day in November 2015, Mr Kruljac has coped well and his work attendance and output have improved.
The suspension of Mr Kruljac’s rights to compensation (s 37(7))
The reviewable decision of 16 March 2014 suspending Mr Kruljac’s rights to compensation is the major issue before the Tribunal. The suspension was attracted by his failure to undertake the rehabilitation program as determined on 24 February 2014 (application No 2014/3460). Mr Kruljac had been advised by telephone on 24 February 2014 that he was to commence the return to work rehabilitation program the following day, working five hours per day, five days per week. He immediately informed the respondent that he would not be increasing his work hours and would appeal the decision.
While both parties have addressed the statutory interpretation of s 37(3) in detail, they are essentially in agreement that the requirements were satisfied by the respondent and s 37(3)(a) to (h) were considered, with submissions made on the sections. Mr Kruljac’s contentions were that in accordance with s 37(7) he had refused to follow the rehabilitation program on the advice of his psychiatrist Dr Rigby and his general practitioner Dr Nassios, both of whom had repeatedly stated that he was unable to work for more than four hours per day, five days per week. This was a reasonable excuse as enunciated by the Federal Court in Australian Postal Corporation v Nunez.
While the Tribunal has concerns and doubts as to the medical basis on which Doctors Rigby and Nassios arrived at their conclusion, both doctors have maintained their opinions for several years, have consistently advised Mr Kruljac and the respondent of these opinions and have given sworn evidence before the Tribunal that their opinions are unchanged. Both doctors have voiced their reliance to a certain extent on Mr Kruljac’s assessment of his work capacity but have denied that their opinions have been unduly influenced by his input. In accordance with the Federal Court decision in Nunez, the Tribunal accepts that Mr Kruljac’s incapacity to work more than four and now five hours per day amounts to a reasonable excuse as required by s 37(7). However, it is noted that his ability to cope with five hours work per day and the positive benefit it seems to have engendered suggests that a rehabilitation plan at a slowly progressive rate may succeed although it is unlikely that he will ever achieve full time employment.
DECISION
Based on the above deliberation the Tribunal sets aside the decision in application 2014/3460 which suspended Mr Kruljac’s compensation rights and remits the matter to the respondent for reconsideration.
Similarly, the decision in application 2014/6144 relating to s 14 liability for stress/anxiety is set aside and remitted for reconsideration given the failure to consider other contributory health disorders which may have contributed to this condition.
The remaining five decisions (applications 2014/1907, 2014/1908, 2014/6142, 2014/6143 and 2015/5571) are affirmed.
Costs of the proceedings before the Tribunal are to be in accordance with s 67 of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
[sgd]........................................................................
Associate
Dated: 9 February 2018
Date(s) of hearing: 11, 24, 25 & 27 July 2017, 10 -11 November 2017 Counsel for the Applicant: Mr Ray Ternes Solicitor for the Applicant: Ms Jessica May Solicitors for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: Mr Joe Ferwerda Solicitor for the Respondent: Mr Paul Mentor Solicitors for the Respondent: Clarke Legal APPENDIX
Applicant
A1Letter from Dr Nicholas Nassios dated 5 June 2012 regarding Applicant
A2Two page letter from Centrelink dated 6 May 2012 regarding payment of carer’s payment to Applicant
A3Report of Dr Michael Khan dated 30 April 2015
A4Report of Dr Michael Epstein dated 23 January 2015 with instructing letter from solicitors
A5Report of Dr Byron Rigby dated 14 February 2016 with attachments
A6Report of Dr Byron Rigby dated 30 September 2016
A7Report of Dr Clayton Thomas dated 30 April 2015
A8Records of Dr Clayton Thomas (summonsed documents)
A9Clinical notes of Dr Nicholas Nassios from 6 October 2014 - 7 November 2016
A10Clinical notes of Dr Nassios dated 29 June 2002 to 13 October 2014
A11Report of Dr Kim Boyden, Rheumatologist, dated 12 January 2016
Respondent
R1T-Documents
R2MRI report of left shoulder dated 25 July 2016 - Assoc Prof Richard O'Sullivan
R3Letter of Mr Eden Raleigh to Dr Nassios dated 13 July 2016
R4Letter of Mr Eden Raleigh to Dr Nassios dated 27 July 2016
R5Letters of Mr Craig Timms dated 30 May 2016 and 22 June 2016
R6Report of Dr Ronald Haig dated 23 November 2015
R7Report of Dr Michael Bloom dated 16 November 2015
R8Report of Assoc. Prof Graeme Brazenor dated 27 November 2015 with letter of instruction
R9Report of Dr Roland Ebringer dated 12 December 2011
R10Records of Prof Malcolm Hopwood (summonsed documents)
R11Sleep study records - Dr Shahnaz Haque (summonsed documents)
R12Report of Professor George Mendelson dated 2 March 2016
R13Northern Hospital Records for Mr Robert Kruljac (summonsed documents)
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Remedies
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Standing
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Procedural Fairness
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Appeal
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Costs
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