Michael Baranski and Comcare
[2012] AATA 115
•27 February 2012
[2012] AATA 115
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/3874
Re
Michael Baranski
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms J F Toohey, Senior Member
Dr S H Toh, MemberDate 27 February 2012 Place Sydney The Tribunal affirms the decision under review
........[sgd]................................................................
Ms J F Toohey, Senior Member
CATCHWORDS
COMPENSATION – lower back injury – major depressive disorder secondary to back condition – liability for both conditions accepted by respondent – acceptance of liability subsequently revoked – whether lower back injury arose out of or in the course of the applicant’s employment – decision under review affirmed.
LEGISLATION
Safety, Compensation and Rehabilitation Act 1988
REASONS FOR DECISION
Ms J F Toohey, Senior Member
Dr S H Toh, Member27 February 2012
BACKGROUND
Mr Michael Baranski was born in Poland where he qualified as a marine technologist. He came to Australia in 1981 and worked as a shipwright for many years. Since June 2003, he has been employed as a technical officer at the Centre of Maritime Engineering (CME) in the Department of Defence.
On 10 May 2007, Mr Baranski claimed compensation for a lower back injury which he said occurred at work on Friday, 23 March 2007, when he lifted a heavy toolbox.
On 10 August 2007, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for Mr Baranski’s lower back injury and agreed to compensate him for time off work and medical treatment resulting from his injury. Apart from going to work briefly on Monday, 26 March 2007, Mr Baranski has not worked since 23 March 2007. In time, he developed a depressive disorder. In August 2009, Comcare accepted liability for permanent impairment resulting from the lower back injury and a major depressive disorder secondary to that injury.
In June 2010, Mr Baranski's employer, the Defence Materiel Organisation, reviewed Mr Baranski’s case and “identified concerns with the decision to accept liability”. It asked Comcare to review its decision to accept liability because “compelling new information” had come to hand which cast doubt on Mr Baranski’s claim to have injured his back at work. That information included statements from his work colleagues, one of whom said she was present at the time of the alleged injury, and others who said Mr Baranski had reported injuring his back while jogging.
On 5 August 2010, Comcare revoked its determinations and denied any liability for Mr Baranski’s back injury.
As will be seen, much of the “new information” appears to have been available to Mr Baranski’s employer around the time of his claim. It is unfortunate for Mr Baranski that it was not until nearly three years after his claim was accepted that it was reviewed and further information obtained. However, for the reasons we set out below, we have come to the conclusion that the decision under review should be affirmed.
THE ISSUE
We have to determine whether Comcare is liable under s 14 of the Act to compensate Mr Baranski for an injury to his back at work on 23 March 2007. Questions of liability for permanent impairment resulting from such injury, and liability for any secondary psychological condition, are not presently before the Tribunal.
THE EVIDENCE OF MR BARANSKI AND THE LAY WITNESSES
The Tribunal heard oral evidence from Mr Baranski and his wife, Akisi Baranski; Mr Geoffrey Wilhelm, then Deputy Director of the CME; Mr David Elliot, Mr Baranski’s supervisor at the time of his injury; Ms Danielle Hodge, who says she was present when Mr Baranski lifted the heavy box; several of Mr Baranski’s co-workers; and medical witnesses. Also in evidence were documents lodged by the respondent (the “T-documents”), written statements by Mr Baranski and the lay witnesses, and medical reports.
Friday, 23 March 2007
Mr Baranski was at his desk at about 9.15am on 23 March 2007 when Ms Danielle Hodge, a project engineer, came to see him and asked him to get two industrial thermometers from the toolbox where they were stored.
Photographs before the Tribunal show the toolbox, which contained survey equipment, was about the size of an average suitcase. It was on wheels and comprised three compartments which clipped together with a lid on top. It was housed inside a cabinet close to Mr Baranski’s desk. It is agreed that it weighed between 30 and 35 kilograms.
Mr Baranski was eating his breakfast when Ms Hodge came to see him and he asked her to return in about 20 minutes. It is common ground that she left, and returned a short time later.
Mr Baranski and Ms Hodge give conflicting accounts of what happened next, and Mr Baranski has given varying accounts himself.
In an “Accident Report” dated 29 March 2007, and a written statement on 30 November 2010, Mr Baranski described essentially one sequence of events. He stated that, at about 9.25am, he picked up the toolbox from the cabinet, removed the thermometers and placed them on his desk. He then returned the toolbox to the cabinet. In doing so, he bent to a squatting position and twisted to the side, extending his arms. Immediately, he felt “a strong current” running from his left foot up his left leg and into his lower back which he described as “like a strong zapping pain”. He managed to get the toolbox inside the cabinet but had to drop it into position rather than placing it gently.
Mr Baranski wrote that he immediately sat down because he was experiencing strong cramps in his left lower leg. Once the pain lessened, he locked the cabinet and returned to his work. When Ms Hodge returned at about 9.45am, he handed her the thermometers and she left immediately.
In oral evidence, Mr Baranski described a different sequence of events. He said he was removing the thermometers from the toolbox when Ms Hodge returned; he gave them to her and she left “straightaway”. He then closed the toolbox and returned it to the cabinet. He affirmed his statement that he experienced severe pain, which he described as a “kind of electrocution” from his foot up into his back. He dropped the cabinet, sat down and rubbed his leg to ease the pain.
Ms Hodge gives a different account. In a brief written statement on 18 May 2007, she said she waited while Mr Baranski took the toolbox from the cabinet, rolling it out “over the bump” at the front of the cabinet. She watched him lift the lid and remove the thermometers, then return the straps to their original position and replace the box in the cabinet. She saw no obvious lifting of the box and Mr Baranski gave no indication that he had hurt himself. She says he mentioned the box was heavy and she should be careful if he ever needed to get something from it when he wasn’t there to help her.
In oral evidence, Ms Hodge confirmed her written statement. She said she went away while Mr Baranski finished his breakfast. When she returned, he had not yet got the thermometers out. He said he was about to get them and she asked if he could do it “now” because she had to head down to the base. She watched him take the toolbox from the cabinet, take the thermometers from the toolbox, and return the toolbox to the cabinet; she did not see or hear any sign that he experienced pain while doing so. She confirmed that Mr Baranski told her the toolbox was heavy and she should be careful if he was not there to help her when she needed something from it. He asked if she would be returning thermometers that day, and she said she did not think so because she needed them over the weekend.
Mr Baranski denies that any of the conversation asserted by Ms Hodge occurred. We prefer Ms Hodge’s account. She had no reason to make it up. While she might not recall precisely all details of their conversation, we think it is unlikely she is completely mistaken and that nothing passed between them as Mr Baranski in effect claims. As we come to below, whether or not Ms Hodge was present when he returned the toolbox to the cabinet is important to the credibility of his claim, and we think it more probable than not that she was present.
Around lunchtime, Ms Hodge says, she returned to the office and spoke briefly to Mr Baranski in the kitchen. She asked how his day was and what he had done for lunch. He said it had been a quiet day and he went for a run at lunch because it was a nice day outside. She says she noticed he looked red in the face; she thought nothing of it other than it was because he had gone for a run. Under cross-examination, she conceded that she could be mistaken in recalling that he said he went for a run, and he could have said he went for a walk. Either way, she said, he did not demonstrate any symptoms of pain in his leg or back, and he did not mention he was in pain.
Mr Baranski denies this conversation at lunchtime occurred. He says he did not see Ms Hodge again that day after getting the thermometers for her. Ms Hodge says she recalls this conversation because she had not been at the CME for long and it was probably the only conversation she had had with Mr Baranski other than saying good morning. We prefer her evidence to Mr Baranski’s because of our findings about his credibility generally. Even if she was mistaken about whether he went for a walk or a run, his own evidence was that he went out for a walk at lunchtime.
Mr Baranski says he found it very difficult to work for the rest of the day after his injury; the pain kept returning and he had to keep rubbing his thighs to relieve it. At lunchtime he went for a walk outside to try to ease the pain. This gave him some relief and he remained at work, but he continued to experience cramps and “tremendous pain”. He went out for a walk again after lunch to try to ease the pain. Before doing so, he told a fellow worker he had “a strong cramp” in his left leg and needed to go for a walk, but he did not mention the cause of the pain. He was limping when he left the office at 4.15pm.
Mr Baranski did not report his injury or mention it to anyone before he left work on Friday afternoon. In his written statement made on 30 November 2010, he stated that, at 10.15am, Mr Elliot gave him new tasks which kept him busy for the rest of the day. He did not mention his injury to Mr Elliot then or later in the day. He agreed under cross-examination that it is important to report an injury at work, but he said he did not think he had been injured and did not “realise” about his injury until he was on his way home on the train.
Mr Baranski gave evidence that he continued to experience pain and muscle spasms in his leg on the train home. When he got home, he tried walking to relieve the pain. He walked to the end of his long driveway with difficulty but the pain forced him back to the house and, by the evening, it was so bad that he had to take to his bed. That night the pain in his back and left leg was severe.
The Weekend
Mr Baranski separated from his wife, Akisi Baranski, in about 2006 but she still visits him most days. She visited him on Friday evening. He says he told her he had hurt himself lifting the toolbox and she said he should see a doctor. He thought he would wait until the following day to see his doctor but, when Saturday came, he could not get out of bed.
Mr Baranski gave evidence that he spent the entire weekend in bed, unable to move; he did not eat or drink, or go to the toilet or get up for any reason. Asked why he did not telephone his wife and ask her to come and help him, he said he could not move; he could not raise his arms over his head and he could only just move his head.
Mr Baranski’s evidence that he spent all weekend immobilised in bed was contradicted by Mrs Baranski. She told the Tribunal she visited him on Friday evening around 8.30pm. He answered the door and was obviously in pain; he seemed unable to stand on his own and was having difficulty balancing himself while walking; he was still in his business attire while lying down on his bed. He told her he had hurt himself at work while lifting a heavy toolbox and he felt paralysed from his chest down to his feet. She offered to take him to the doctor but he insisted on staying home in the hope that the pain would improve. She recalled a previous episode of back pain, when he did not go to work for a couple of days, after which he was “all right”.
Mrs Baranski gave evidence that she visited again on Saturday evening. Mr Baranski answered the door and was still evidently in pain; he was sick and lying down. They had dinner together; she could not remember which of them cooked, but they ate at the kitchen table. She recalled telephoning him on Sunday evening after she had been to church to see how he was.
Mrs Baranski impressed us as a truthful witness. We have no reason to doubt her evidence about her visit to Mr Baranski on Saturday evening. At the very least, her evidence shows that Mr Baranski has exaggerated the extent of the pain he was in over the weekend. We accept her evidence that he told her he had hurt himself at work but whether that is true remains to be considered in light of all the evidence.
Monday, 26 March 2007
Mr Baranski went to work on Monday morning. He gave evidence that it took him 20 minutes to get out of bed “with overwhelming will”; he could barely manage to dress himself and, with “excruciating pain”, he caught the train to work; he “couldn’t walk”.
In cross–examination, Mr Baranski was asked why he went into the city to work, rather than to see his doctor, if he was in such pain. He said he felt he needed to report the accident first. He agreed that he had a telephone at home and could have rung his supervisor but said he “needed to go to the doctor anyway”. However, he conceded that his doctor was not in the city but in Parramatta.
Mr Baranski says Ms Hodge returned the thermometers on Monday morning and left them on his desk for him to put away. Ms Hodge disputes this and says she put them back in the toolbox herself. She says she recalls clearly that she did not remove the toolbox from the cabinet; instead, she loosened the straps on the toolbox, lifted the lid while it was in the cabinet and placed the thermometers in the top compartment. She recalls finding them some months later in the same position. Under cross-examination, she was certain she was not mistaken.
Ms Hodge impressed us as a truthful witness. She had no reason not to tell the truth. However, doubt is cast on her recollection that she returned the thermometers to the toolbox by the evidence of Mr Joseph Ebejer, who worked in the same bay as Mr Baranski. Mr Ebejer also impressed us as a truthful witness. He gave evidence that it would be difficult, if not impossible, to replace an item in the toolbox without removing it from the cabinet.
Mr Ebejer’s evidence appears to be supported by the photographs which show the toolbox sat in the cabinet in such a way that its back faced outward and the lid opened toward the back of the cabinet. The space between the top of the toolbox and the top of the cabinet was small and it appears it would be difficult to open the lid and replace an item without pulling the toolbox at least some of the way out the cabinet. We think it likely that Ms Hodge is mistaken on this point.
There is also a dispute about a conversation between Mr Baranski and Mr Elliot on Monday morning. Mr Baranski says that he could not lift anything and was having difficulty walking, so he asked Mr Elliot to open the cabinet and remove the toolbox. (Although it is not clear, this may have been to replace the thermometers; a note made by Mr Elliot later that day suggests this may have been so). Mr Eliott removed the toolbox from the cabinet for him and returned to his office.
Mr Baranski says while this was happening, he explained to Mr Elliot that he had hurt himself the previous Friday morning while removing the toolbox from the cabinet. In his written statement, he said he told Mr Elliot that, “in an attempt to mitigate the pain [he] attempted to walk/jog”.
Mr Elliot denies that Mr Baranski told him on 26 March 2007 that he had hurt himself at work. He gave evidence that he noticed Mr Baranski limping when he arrived at work that morning. He asked what was the problem and Mr Baranski replied with words to the effect “I injured myself while jogging last Friday evening”. Mr Elliot recalls that, within half an hour of this conversation, Mr Baranski asked him to help remove the toolbox because his injury made it difficult to do it himself.
Later that day, Mr Elliot made a record of his conversation with Mr Baranski. A copy of his note is in evidence. It states:
Michael asked me to assist him with removing the inclinning [sic] experiment equipment box so as he could return a piece of kit. He requested I do this as he had an injury which made doing this on his own difficult.
I did this for him and Michael returned the equipment. The box was then left out for the day being returned to its locker later in the day with the assistance of another member of the office, I believe.
On Michael’s arrival at work in the morning (26 March) I noticed Michael limping. I asked him what was wrong. He told me he had injured himself on the previous Friday evening (23 March) while jogging. Across the weekend he was suffering a great deal of pain from this incident, and was still not yet over it.
Mr Elliot gave evidence that he wrote this note after Mr Baranski left work mid-morning to see his doctor. It was Mr Elliot’s clear understanding that Mr Baranski had not injured himself at work but he made his note because he felt it important that any injury suffered by a worker not go unnoticed in case it later became exacerbated by the kind of work they had to do. It was not until a conversation with Mr Wilhelm around 4 April 2007 that he learned that Mr Baranski had claimed to have injured himself at work.
We note the reference in Mr Elliot’s note to Mr Baranski asking him to help him return a “piece of kit” to the toolbox. It is not clear from the evidence what the “kit” was, but it may be a reference to the thermometers. If so, as noted above, it would suggest that Ms Hodge’s recollection of returning the thermometers to the toolbox herself is not correct.
Mr Baranski denies that Mr Elliot asked why he was limping. He cannot remember if Mr Elliot asked him what was wrong. He agrees that he told Mr Elliot about “the jogging” but maintains he also told him about his work injury. He says Mr Elliot’s note about “jogging” refers to his attempt to walk to the end of the driveway when he got home on Friday evening. What Mr Baranski means by “jogging” is considered below.
Mr Baranski left work around 10.30am on Monday morning and went to see his doctor. Consultations with his doctors, treatment, and the evidence of the medical witnesses are dealt with below.
Conversations with Mr Wilhelm
Mr Baranski gave evidence that, while he was talking with Mr Elliot on Monday morning, Mr Wilhelm walked past. Mr Baranski says he followed Mr Wilhelm into the pantry room where he told him about the pain in his back and legs. Mr Wilhelm gave evidence that he has no recollection of this conversation.
Mr Baranski went into the office on Friday, 30 March 2007. At the time, his doctor had certified him unfit for work and it is not clear from the evidence why he went into work. He says it was for “an administrative nature visit”. While there, he had a conversation with Mr Wilhelm about his injury.
Mr Wilhelm has confirmed that this conversation occurred. On 2 April 2007, he made a record of their “informal conversation”. He recorded:
Although on personal leave, Michael dropped into the office (reason unknown). We chatted briefly where he mentioned that he had nerve pains that went down one of his legs. He further stated that believed that this was due to him removing items from the inclining experiment boxes that were stored in his locker in his work bay.
Mr Wilhelm also recorded that he had suggested that if this were the case, Mr Baranski should complete “an OH&S report so that we could learn from the incident and avoid it recurring” and “Michael accepted this”.
Mr Wilhelm gave evidence that he could not distinctly recall where this conversation took place but he thought it was in his office.
On 2 April 2007, Mr Wilhelm also made a record of another “informal conversation” with Mr Baranski which “occurred sometime in the week of 19 - 23 March 07”. He recorded:
Michael was complaining about leg pain that he stated occurred because he went for a half hour run. The date and time of the run in not known.
In oral evidence, Mr Wilhelm could not recall where, or when in the week 19 to 23 March 2007, this conversation took place but we do not think anything turns on precisely when it occurred. We accept Mr Wilhelm’s evidence that it did, and that his note about going for a “half hour run” reflects reasonably closely what Mr Baranski said to him.
It was submitted for Mr Baranski that Mr Wilhelm was evasive and argumentative, and an unreliable witness. It is true that his evidence about his conversations with Mr Baranski was vague in parts, and he did not appear to hold Mr Baranski in particularly high regard. He appeared somewhat defensive about the process by which Mr Baranski’s injury claim was dealt with. However, we accept his evidence about his conversations with Mr Baranski and are satisfied that his notes reflect reasonably accurately those conversations.
Mr Baranski’s Claim for Compensation
Mr Elliot gave evidence that the first he learned of Mr Baranski’s claim to have injured himself at work was on 4 April 2007 when Mr Wilhelm told him they should “prepare paperwork” because Mr Baranski had said he had injured himself at work. Mr Elliot says he was surprised at this and told Mr Wilhelm that Mr Baranski had said he had injured himself outside work.
On the day of his conversation with Mr Wilhelm, Mr Elliot telephoned Mr Baranski. He made a record of this conversation, and conversations he had over the next ten days or so with Mr Baranski.
On 4 April 2007, Mr Elliot recorded that he had left a voice message for Mr Baranski that morning asking him for a statement about the circumstances of his injury because he had learned it was “of an OH&S nature” and an incident report was required. Mr Baranski returned his call. According to Mr Elliot’s note, Mr Baranski said he would complete an incident report but “not right now as he was not feeling well”. Mr Elliot “advised him to take it easy and think over his statement over the Easter weekend break”.
Mr Elliot made a further note that, a few minutes after this call, Mr Baranski rang back. He said he was “rather incapacitated and may require a device” to help him get in and out of bed, and a wheelchair might be necessary. He asked if this would be possible and who would cover the cost. Mr Elliot questioned whether Mr Baranski should not be in hospital where he could have proper care and treatment, and suggested he follow his doctor's advice. Mr Baranski said “he wasn't sure of his doctor’s opinion on this point”. Mr Elliot reminded him of their earlier discussion and said he would speak to Mr Baranski next week to see how he was going with his statement.
On 10 April 2007, Mr Elliot had a further conversation with Mr Baranski. He recorded that he advised Mr Baranski that “no paperwork could be processed yet without understanding the nature of his OH&S claim”. Mr Baranski said he understood this and “shall be working” on it and might deliver it himself. Mr Elliot advised him not to do so if it was too difficult, and he could do it “by mail or other means”.
On 13 April 2007, Mr Elliot recorded that he telephoned Mr Baranski and asked “if he was prepared to further action this as a compensation claim”. Mr Baranski said he was “still having problems” but was “a little improved” and might be better in three to four weeks; he would need to speak to his specialist. He felt “he may not need to claim compensation” but, pending examination by the specialist, he could not say.
A document is in evidence from Mr Baranski to the CME Occupational Health and Safety Officer. It is headed “Accident Report” and is signed by Mr Baranski and dated 29 March 2007. It details how he says his injury occurred and concludes:
Currently I'm on sick leave and although attending regular medical check ups and subjected to numerous medications, my qualities of live have dropped dramatically. I'm confined to my house living space, can walk for few minutes at the time and occasionally encountering sleepless nights [sic].
Nevertheless despite all the sad stories some remaining hopeful, looking forward to full recovery and happily returning to CME work [sic].
There is no evidence of the date on which this document was received by Mr Baranski’s employer but we do not accept he wrote on 29 March 2007. References in its concluding paragraphs to “attending regular medical appointments” and taking “numerous medications” suggest it was written more than six days after the injury (by which time he had seen his doctor twice). Moreover, the date is at odds with Mr Elliot's records, which we accept as accurate, which indicate that Mr Baranski said on 4 April 2007 that he could not complete his statement “right now”, and on 10 April 2007 that he would work on it, and on 13 April 2007 when he was still not sure if he would make a claim. When this was put to him in cross-examination, Mr Baranski said he told Mr Elliot on 4 April 2007 and 10 April 2007 that the report was ready but he had not posted it. We do not accept his evidence about this. We are satisfied that the statement was not signed on 29 March 2009 and was probably signed after 13 April 2007. It does not follow necessarily that its contents are not true but it raises further doubts about the credibility of Mr Baranski’s evidence.
Dr Sivasubramaniam’s notes for 16 April 2007 show that Mr Baranski “wants to go on [worker’s compensation]”. For reasons which are not clear, up until then, Mr Baranski had used his personal leave to cover his absence from work. Before the Tribunal his explanation was that there was “disagreement within the Department” as to whether his claim “should be allowed or not”. It is not easy to understand this explanation. Mr Baranski did not formally make his claim until 10 May 2007, and Mr Elliot’s notes show that he was encouraging Mr Baranski before then to lodge his report about the incident. There is no evidence that anyone had suggested his claim might be in dispute at that point.
On 23 May 2007, an assessment was conducted of Mr Baranski’s “workplace and occupational rehabilitation needs”. Mr Baranski, Mr Wilhelm, Mr Elliot, an OH&S officer and the occupational therapist who conducted the assessment were present. Her report notes Mr Baranski’s claim that his injury occurred at work. It also notes that his physiotherapist was “unsure if liability has been accepted” and that discussions with his employer showed that written information “implies the injury first occurred when Mr Baranski went jogging on 23 March 2007” but he had given a different account.
It is submitted for Mr Baranski that no credible explanation has been given by Mr Elliot as to why he told Mr Baranski to submit an incident report form if, as he says, he knew Mr Baranski had hurt himself outside work. Mr Elliot gave evidence that he did not feel it was up to him to say to Mr Baranski that his injury did not happen outside work.
It was put to Mr Wilhelm and Mr Elliot that an OH&S assessment would be conducted only if an injury related to work, and not where it occurred outside work. They did not agree this was necessarily so. Mr Wilhelm gave evidence that it would depend on whether the injury affected an employee’s performance at work and, if an employee advised he or she had injured themselves in the workplace, there is an obligation to follow that up.
We accept Mr Elliot’s and Mr Wilhelm’s evidence about this. We accept that they did what they understood was required of them to assess the effects of Mr Baranski’s injury – whether work-related or not – and to deal with a claim which he was entitled to make, regardless of its ultimate merit.
On 10 May 2007, Mr Baranski lodged his claim for compensation. The claim form asked whether he had “ever had a previous similar symptom, injury or illness, work-wise or otherwise”. He responded “No”. That response is clearly not correct as there is evidence that he had two previous episodes of back strain, in 2004 and 2005 (see below). Mr Baranski agreed before the Tribunal that his answer on the form was not correct, and said he was affected by the heavy doses of medication he was taking when he completed the form. Whether or not that is so, the evidence shows that neither of the earlier episodes was serious or medically significant. It may be that Mr Baranski did not think of either episode as similar to the pain he was experiencing in 2007. We do not think anything in particular turns on his answer on the form.
Mr Chowdhury’s Evidence
Maghfar Chowdhury started work at the CME around the same time as Mr Baranski. In 2007, he was Mr Baranski’s immediate supervisor. He gave evidence that, over the years, they would have lunch together and on occasions have seen each other outside work. Mr Chowdhury says that, on one occasion, Mr Baranski told him he had hurt his back helping a woman friend assembling or fixing a cabinet or wardrobe at her house on the weekend. Mr Chowdhury recalled this conversation happened after a weekend but he could not recall more than that it could have been one or two years before March 2007.
Mr Baranski denies telling Mr Chowdhury about a wardrobe incident and denies such an incident occurred. It seems unlikely that Mr Chowdhury would be completely mistaken about this but it is possible. His recollection is so vague that we do not think we can prefer his evidence to Mr Baranski’s on this point. Even if it occurred, it would not appear to have any more medical significance than the two recorded episodes of previous back pain.
Mr Chowdhury also recalled that, sometime before his injury in 2007, Mr Baranski told him he had hurt his back when he went walking or jogging at home. Mr Chowdhury could not recall when this conversation took place; it could have been one month, or up to three months, before 23 March 2007. Mr Baranski disputes Mr Chowdhury’s evidence but Mr Chowdhury impressed us as a truthful witness and we prefer his evidence about this conversation to that of Mr Baranski.
Mr Ebejer’s evidence
In a written statement in May 2010, Mr Ebejer stated that he recalled Mr Baranski talking to Mr Wilhelm about one metre away from the bay where he and Mr Baranski worked. Mr Ebejer said he heard Mr Baranski say to Mr Wilhelm words to the effect that he went for a jog the day before and his leg muscles were feeling strained.
Mr Ebejer gave evidence that he was not sure how many days before Mr Baranski reported sick that this conversation occurred. He gave evidence, which we accept, that he did not see Mr Baranski again after 23 March 2007. It follows that the conversation he overheard did not occur on 30 March 2007, when Mr Baranski told Mr Wilhelm he had hurt himself at work, but was a separate conversation that pre-dated his injury.
Mr Baranski’s Relationships with Colleagues
It was suggested for Mr Baranski that his colleagues, in giving their evidence, were motivated by ill feeling toward him. According to Mr Baranski, his relationships with Mr Elliot and Mr Chowdhury were strained. He said his relationship with Mr Elliot was “sort of difficult”. He claimed that, in 2004, Mr Elliot had been unable to complete a project in two years and Mr Baranski completed it in two weeks, leading to friction between them.
Mr Baranski said he and Mr Chowdhury did not get on particularly well and their relationship was “stiff”. He said Mr Chowdhury’s feedback was negative, he made disparaging comments about their religious differences and Mr Baranski tried to avoid him. He thought Mr Wilhelm was “a good man” but he “followed the mainstream”. He did not suggest there was any tension between him and Mr Ebejer.
Mr Ebejer gave evidence that he did not detect tension between Mr Baranski and his colleagues; the way he saw it, Mr Baranski tended to overcomplicate his work and take a long time to complete it, but he saw no evidence of poor relationships.
Mr Ebejer worked near Mr Baranski and was in a position to observe him closely. He was an objective witness in the sense that Mr Baranski did not claim there was any tension between the two of them. We found him to be a credible witness and we accept his evidence. We see no reason to conclude that their evidence was tainted by ill will, either individually or collectively, towards Mr Baranski.
If there was any tension between Mr Baranski and Mr Elliot, Mr Wilhelm and Mr Chowdhury at work, we saw nothing in the manner in which they gave their evidence to support the conclusion that it tainted their evidence.
Whether Mr Baranski went Jogging
Mr Baranski’s evidence about whether or not he ever went “jogging” was not easy to follow. In his written statements, he referred variously to “walking”, “fast walking”, “walking/jogging” and attempting to “walk/jog”. In a statement on 16 July 2010, he wrote “No any jogging took place on 23 March [sic]”; he also wrote that, when he got home he “made walking/jogging attempt again”. In oral evidence, he said he tried to walk on the Friday night when he got home to relieve the pain “and perhaps jogging”.
What Mr Baranski means by “jogging” assumes significance because of the conversations he is said to have had with others, and the Tribunal asked him to clarify what he meant by “jogging”. He said it meant fast walking and maintained that he does not jog, and has never jogged in his life. When pressed about why he wrote that he tried “walking/jogging” he said:
I put jogging – it wasn’t really meant to be there because I don’t really jog. It just happen – I put that.
We recognise that allowance should be made for the fact that English is not Mr Baranski’s first language but we do not find his explanation persuasive. He clearly understands what “jogging” means because he was emphatic that he does not jog, yet he continues to use the term. We are satisfied that he referred to “jogging” in conversations with others. It is possible that, each time he referred to “jogging”, whether in written statements or conversation with others, all he meant was that he had taken a fast walk. However, we think that unlikely. We accept that he told Mr Wilhelm he had been for “a half hour run”. We do not accept Mr Baranski’s claim, in effect, that he never did more than a “fast walk”. We think it more probable than not that he would go jogging, although how often we cannot say. His denial seriously undermines his credibility.
Mrs Baranski was asked whether she ever knew her husband to exercise before March 2007. Her answers were not entirely clear. She said he did “just swimming and things like that”. She was asked in cross-examination where she ever remembered him doing any running or jogging for exercise. She responded: “Yes, sometimes”. Asked to clarify, she said “The only exercise we do is swimming … That’s the only thing I can remember. We always go for swimming”. Given the number of occasions when we are satisfied that Mr Baranski referred to ‘jogging”, we take Mrs Baranski’s response that he sometime went jogging to be correct.
THE MEDICAL EVIDENCE
The Tribunal heard evidence from general practitioners, Dr Jeyarani Sivasubramaniam and Dr Mohammed Safi, and from Dr Brian Owler, neurosurgeon; Dr Neil McGill, rheumatologist; Dr Max Ellis, orthopaedic surgeon; and Dr Keith Lethlean, neurologist. The “T-documents” submitted by the respondent included reports from other doctors who did not give oral evidence.
Mr Baranski left work around 10.30am on Monday 26 March 2007 to see his doctor. Dr Sivasubramaniam, his usual doctor, was not available and he saw Dr Mohammed Safi at the same practice. His symptoms, which included radiating pain, were of sufficient concern for Dr Safi to refer him for an immediate CT scan and x-ray.
Dr Safi’s notes show that Mr Baranski had left buttock pain, thigh pain and a cramping sensation; he had difficulty walking. There is no reference to possible causes or to an injury at work on 23 March 2007. He certified Mr Baranski unfit for two days.
Mr Baranski gave evidence that he did not tell Dr Safi how he had hurt his back because he was in “such strong pain” that he could not speak.
On Tuesday, 27 March 2007, Mr Baranski saw Dr Sivasubramaniam. He says he told her he had lifted a heavy weight at work. She recorded that the CT scan and x-ray showed he had a disc bulge at L3/4 with no nerve compromise. She noted “After lifting heavy [weight]”. Her notes also show: “at work - 30 kg tool box? on 23/3/07”. This last note appears possibly to have been added later. Dr Sivasubramaniam gave evidence that, from memory, she did not think this was so but, sometimes, if notes are not finished at the time, they are written later. She certified Mr Baranski unfit for work until 30 March 2007 and issued a standard medical certificate. That she did not issue a Work Cover certificate is difficult to reconcile with her note on 27 March 2007 that it was a work injury.
Dr Sivasubramaniam saw Mr Baranski again on 30 March 2007. On 4 April 2007, she noted his lower back pain was not getting better. On 16 April 2007, he asked her for a WorkCover certificate “as he had decided to claim under work cover as the injury happened at work” (see her report of 25 July 2007). She referred him to Dr Owler and to a physiotherapist, and noted he had a workers compensation claim. She recommended that he return to work on 21 April 2007. As it happened, however, he complained of continuing pain and did not return to work.
From about June 2007, Mr Baranski had physiotherapy for several months. He saw Dr Owler in June 2007, and again in July and November 2007, over the course of which he reported worsening symptoms. Dr Owler recommended a spinal injection and a discectomy to relieve the pain. The medical witnesses generally agree that a discectomy is appropriate surgery and should give good results. However, Mr Baranski declined the injection and has declined to undergo surgery, essentially because of what he believes are the risks involved, even though Dr Owler says the risks are very low. At the time of the Tribunal hearing, Mr Baranski was still considering surgery.
Over time, Mr Baranski developed symptoms of depression and his doctor referred him to a psychiatrist. As noted, in August 2009, Comcare accepted liability for this condition as secondary to the back condition.
Mr Baranski claims his condition has become progressively worse, that he has pain every day, that he is unable to perform most activities, and spends much of his time lying down at home. Sitting and lying eases the pain but standing is very painful. He says he can only walk short distances to catch bus or go to the shops. He can drive short distances. His wife comes most days and helps him with shopping, cooking and cleaning.
It is common ground that Mr Baranski has some degenerative change in his lower lumbar spine. However, it does not appear to have caused him serious problems. The clinical notes show that Dr Safi saw him in June 2004 for “low back pain” that “started during the weekend doing exercises”. He noted there was “no radiation” and “no neurological signs” and recommended rest for two to three days and analgesia.
Dr Safi saw Mr Baranski again on 6 June 2005 when he complained of “low back pain since heavy lifting yesterday”. Dr Safi gave evidence that his presentation appeared similar to the previous year. There were no neurological signs and the pain appeared to be muscular. The noted that “a couple of days rest might be helpful but not necessary” and recommended analgesia. Two days later he noted the pain was “improving”.
There is also a record in the clinical notes from 14 April 2005 (incorrectly shown in the notes as 2003) that Mr Baranski was repairing a washing machine on 9 April; he hurt his back and now had pain over his mid-lumbar region. The notes show “back pain is a recurrent problem”. Dr Safi told the Tribunal it was not his note, and it is not clear whose it was or what it meant. At that time, the only other recorded episode of back pain at that time was in June 2004.
The clinical notes suggest there were two separate episodes of back pain in 2005 but this is not clear. Mr Baranski recalled in evidence hurting his back while working on a washing machine in 2005. In any event, the notes show that none of the previous episodes was serious or long-lasting; none required more than painkillers and none required time off work. No neurological signs were detected and the pain was apparently muscular. The medical witnesses generally agree that the previous episodes are not significant to the present injury. Dr Safi gave evidence that it was “a very different presentation” on 27 March 2007 when Mr Baranski’s symptoms were consistent with a bony, rather than muscular, injury.
The medical evidence makes clear that, as at 26 March 2007, Mr Baranski suffered a disc prolapse at L4/5 level. The report of the x-rays and CT scan on 26 March 2007 show degenerative changes including early degenerative arthritic changes in the lumbosacral facets. The MRI of his lumbar spine on 26 June 2007 confirmed:
At L4/5, there is a broad-based disc bulge causing mild impingement on the thecal sac. Bilateral facet joint hypertrophy at this level is noted. There is no evidence of impingement on the exiting nerve roots. At L3/4, there is a mild broad-based disc bulge causing no significant impingement on the thecal sac or the exiting nerve roots.
…
At L5/S1, there is a broad-based disc bulge which extends into the left neural exit foramina causing some impingement on the left L5 nerve root in the distal neural exit foramina at this level. There appears to be lumbarisation of S1 vertebral body.
All the medical witnesses agree that Mr Baranski has a disc prolapse at the L4/5 level with associated radiculopathy. However, they have differing views about the causes of disc prolapses generally, and Mr Baranski’s in particular.
Dr Owler’s Evidence
Dr Owler saw Mr Baranski three times in 2007 and for review in 2010 when he requested a further MRI. In his opinion, the results of the MRIs were “absolutely” consistent with Mr Baranski’s claimed injury and he found nothing in Mr Baranski's presentation to suggest he was exaggerating his symptoms.
Dr Owler gave evidence that the lifting and twisting action described by Mr Baranski when he lifted the toolbox is the most common cause of disc protrusion. He says jogging can cause such injury but it is unusual, and if it happens, it is usually the “last straw” in degenerative changes. We note that the scans do not suggest that the degenerative changes in Mr Baranski’s lumbar spine were of that order. Dr Owler agreed that it is possible for a disc to rupture spontaneously but said this is uncommon and would have to be quite severe to cause a pinched nerve. When asked about Mr Baranski’s reported worsening of his symptoms over time, Dr Owler agreed with Dr McGill that the usual pattern of protrusions is to improve with time, but said they become worse in about ten per cent of cases.
Dr Owler gave evidence that he was not aware that Mr Baranski had episodes of back pain in 2004 and 2005. However, he said, nearly all people get some back pain at some point and he did not think either episode clinically significant. Nor did he think the degenerative changes in Mr Baranski's lumbar spine significant.
In relation to Mr Baranski’s decision not to undergo the surgery he had recommended, Dr Owler agreed there are some associated risks but the risk of infection or paralysis is less than one per cent. There is also a risk of the problem recurring, and there are risks associated with a general anaesthetic but, in his opinion, 80 per cent of people are much better off with the surgery.
Dr McGill’s Evidence
Dr McGill saw Mr Baranski in January 2010 at Comcare’s request. He noted in his report that, contrary to the clinical notes which showed episodes of back pain in 2004 and 2005, Mr Baranski told him he had never previously experienced back or lower limb problems. That said, Dr McGill did not think those episodes clinically significant.
Based on the MRI, which showed disc bulging at three levels, Dr McGill thought it probable that on or about 23 March 2007 Mr Baranski experienced radiculopathy symptoms in the left lower leg due to irritation of the left L5 nerve root. He thought Mr Baranski’s symptoms were probably caused by a disc protrusion. However, he pointed out that it was not possible to determine, from symptoms alone, their probable cause.
Dr McGill found no evidence of radiculopathy in January 2010, and Mr Baranski’s responses on clinical examination could not, in his view, be explained by objective neurological signs. For instance, he said, Mr Baranski reported lack of sensation over his entire left leg which, if true, would necessarily involve nerve root compromise at levels different from those shown on the MRI. Moreover, his ability to walk on his forefeet and heels was inconsistent with more than mild L5 radiculopathy and inconsistent with Mr Baranski’s reported severe symptoms. In other words, his symptoms and signs were not explicable on the basis of L5 nerve root compression.
In Dr McGill’s view, Mr Baranski demonstrated “no genuine neurological abnormality and he demonstrated a great deal of abnormal illness behaviour (that is behaviour not explicable on a physical basis)”. Dr McGill could find no objective neurological signs and noted that Dr Owler did not record any. Moreover, he said, Mr Baranski's reported worsening symptoms was at odds with the usual course of a disc protrusion in which weakness is generally greater at the beginning and gradually improves, although he agreed such a pattern was not impossible.
Dr McGill agreed with Dr Owler that a lifting and twisting action is the most probable cause of an L5 disc protrusion. However, he also said that he has seen disc protrusions caused by jogging and that have occurred spontaneously.
Dr Lethlean’s Evidence
Dr Lethlean supported the view that Mr Baranski's injury was consistent with a lifting and twisting action. He did not consider any prior episodes of back pain as described by Mr Baranski to be significant. He saw no sign that Mr Baranski was exaggerating his symptoms and had no reservations about his reported history.
Dr Lethlean expressed the same view as Dr McGill: that it is not possible to work from symptoms to the cause of an injury; one can only see if reported symptoms are consistent with a claimed injury. In other words, potential causes can only be excluded, not positively identified. Dr Lethlean did not think a traumatic incident was necessary for symptoms of the kind experienced by Mr Baranski. He gave the example of a person going to bed and waking with symptoms as a result of some movement while in bed although, for this to occur, he would expect some degenerative change to be present.
Dr Ellis’ Evidence
Dr Ellis saw Mr Baranski in November 2008 at the request of his solicitors. He concluded that Mr Baranski had suffered muscular ligamentous contusion and aggravation of degenerative change in his lumbosacral spine as a result of a lifting strain at work on 23 March 2007. Dr Ellis found no evidence of psychosomatic illness or of previous abnormality or injury contributing to Mr Baranski’s impairment.
Dr Ellis agreed with the other medical witnesses that a lifting and twisting action is the most likely cause of an injury of an L4/5 rupture, followed by turning or sudden movement. However, he considered it an “outrageous” suggestion that jogging could lead to such injury; in his view, it could not. He agreed that, where degenerative changes are present, a rupture can occur spontaneously but he thought sudden onset of pain with radiculopathy such as suffered by Mr Baranski made that diagnosis unrealistic.
We did not find Dr Ellis’ evidence particularly helpful. In contrast to the other medical witnesses, he effectively discounted the possibility of an L4/5 rupture occurring spontaneously, and he rejected the possibility of jogging as a cause of injury out of hand. We prefer the more considered evidence of Drs Owler, McGill and Lethlean to that of Dr Ellis regarding the range of possible causes of a disc protrusion. We also note that Dr Ellis’ view that the symptoms in Mr Baranski's right leg could be caused by “chemical radiculopathy” were not supported by Dr Lethlean.
CONSIDERATION
We accept that Mr Baranski removed the toolbox from the cabinet, and replaced it, on 23 March 2007.
We accept that Mr Baranski was in pain on the evening of 23 March 2007, over that weekend, and later. Even though Dr McGill expressed serious reservations about Mr Baranski’s presentation, he still thought it probable that that he was experiencing symptoms consistent with a disc prolapse on or about 23 March 2007.
The medical evidence establishes that, by 26 March 2007, Mr Baranski had sustained an injury to his lumbar spine. The question for the Tribunal is whether the cause of his injury was lifting the toolbox at work on 23 March 2007 as he claims.
The weight of the medical evidence supports the view that a lifting and twisting action such as that described by Mr Baranski when lifting the toolbox is the most usual cause of a disc protrusion. However, the inconsistencies in his evidence and between his evidence and that of others, and the implausibility of some of his evidence, lead us to conclude that he did not injure himself in the way he claims.
Mr Baranski has given inconsistent accounts as to whether he returned to the toolbox to the cabinet before, or after, Ms Hodge returned to collect the thermometers. This might reasonably be explained by the sequence of events being blurred by the passage of time. However, Mr Baranski expressed no uncertainty in his oral evidence; he was emphatic about the sequence of events but gave a different version from his written statements, one of which was written soon after the incident. Ordinarily, the precise sequence of events might not be significant but in this case it goes to the reliability of Mr Baranski’s evidence overall.
Whether or not Ms Hodge observed Mr Baranski replacing the toolbox in the cabinet is important. If Mr Baranski is to be believed, that he experienced severe pain at that moment and had to sit down, Ms Hodge could hardly fail to observe what happened. We have observed that Ms Hodge’s recollection of replacing the thermometers in the toolbox is likely to be incorrect but we prefer her account to that of Mr Baranski. Her statement of 28 May 2007 is brief but clear. She had no reason to make it up. We accept she watched him replace the toolbox in the cabinet without giving any sign of pain.
Even if Ms Hodge is wrong, and she was not present when Mr Baranski returned the toolbox to the cabinet, we find it implausible that he was in the amount of pain he claims yet failed to mention it to anyone before he left work that day. It is not plausible that an injury occurred at work as he says, causing him excruciating pain, but he did not mention it to Mr Elliot when he gave him “new tasks” a short time later or later in the day, and that he did not realise he had been injured, or think of it as a work injury, until he was on his way home.
We accept that Mr Baranski was in pain on the evening of 23 March 2007 and over that weekend, but we find he has exaggerated the extent of the pain. It is implausible, in our view, that he was literally unable to move all weekend and did not eat, drink or go to the toilet, as he claims, yet managed to go to work on Monday morning. In any event, his evidence was contradicted by Mrs Baranski’s evidence about their meal together on Saturday evening. We accept her evidence that he told her he had hurt himself at work but that does not necessarily make it so.
Mr Baranski’s evidence about why he went to work on Monday morning made little sense. He could have telephoned work if he thought it necessary to report his injury, and he conceded this was so. His explanation, that he had to go into the city in any event to see his doctor, was not true, given that his doctor was in Parramatta. In our view, the only plausible explanation for going to work on Monday morning is that he was not in the degree of pain he claims.
Merely because he has exaggerated the extent of his pain does not mean Mr Baranski did not injure his back as work as he claims. However, it goes to a pattern of unreliable evidence that undermines of credibility of his claims.
We are not satisfied that Mr Baranski told Mr Elliot on Monday 26 March 2007 that he had injured himself at work. In our view, it is most unlikely that he would not have said something immediately, and it also seems unlikely that Mr Elliot misunderstood what Mr Baranski said about going for a walk when he got home Mr Elliot appeared fairly meticulous in following up Mr Wilhelm’s report of his conversation with Mr Baranski on 30 March 2007. If Mr Baranski had reported on Monday morning that he had hurt his back at work, we are satisfied that Mr Elliot would have advised him he should complete the necessary paperwork. We are satisfied that the note Mr Elliot made later that day accurately reflects his conversation with Mr Baranski.
We have difficulty accepting Mr Baranski’s claim that he was in too much pain on Monday afternoon to tell Dr Safi how he had injured his back. It is possible that Dr Safi’s only concern at the time was to send him for investigation and did not take any history, although that seems unlikely.
We cannot make any firm finding whether Dr Sivasubramaniam’s note about a work injury on 27 March 2007 was added later. She agreed that it was possible but, even allowing she made it at the time, it only shows that is what Mr Baranski told her.
We note Dr McGill’s comment about Mr Baranski’s “abnormal illness behaviour” which appeared to be borne out by Mr Baranski’s posture and movement during the hearing. He spent quite some time during the hearing standing against the wall, which he said relieved his pain. This behaviour appears at odds with his evidence that standing causes pain, and only sitting and lying relieve it. We also note that neither Dr Owler nor Dr McGill found any objective neurological signs to explain his symptoms. On the other hand, the doctors who saw him most often, over some period of time, found no evidence that he was exaggerating his symptoms.
To accept Mr Baranski’s evidence would mean that, on critical points, Ms Hodge, Mr Elliot, Mr Wilhelm, Mr Chowdhury and Mr Ebejer were all mistaken or lying, partly or wholly, and that his wife is mistaken or lying about visiting him on Saturday evening. Considered separately, each of the matters that in our view undermine his evidence might be reasonably or plausibly explained. However, when his evidence is viewed as a whole, we cannot be satisfied that he injured himself as he claims.
We affirm the decision under review.
I certify that the preceding 122 (one hundred and twenty two) paragraphs are a true copy of the reasons for the decision herein of Ms J F Toohey, Senior Member.
..........[sgd]..............................................................
Associate
Dated 27 February 2012
Date(s) of hearing 21, 22, 23 November 2011 Counsel for the Applicant David Baran Solicitors for the Applicant Samuel Ankomah Counsel for the Respondent Rhonda Henderson Solicitors for the Respondent Naomi Tondl
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