Michael Baranski and Comcare

Case [2012] AATA 115

[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, Member
Date 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, Member

27 February 2012

BACKGROUND

  1. 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.

  2. 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. 

  3. 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.

  4. 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. 

  5. On 5 August 2010, Comcare revoked its determinations and denied any liability for Mr Baranski’s back injury.

  6. 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

  7. We have to determine whether Comcare is liable under s 14 of the Act to compensate Mr Baranski for an…

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AGLC
Michael Baranski and Comcare [2012] AATA 115
Case
[2012] AATA 115
Decision Date

CaseChat Overview and Summary

In the case of Michael Baranski and Comcare, the primary dispute revolved around whether Michael Baranski sustained a compensable lower back injury during the course of his employment. The Federal Circuit and Family Court of Australia was tasked with determining whether Comcare, the respondent, was liable to compensate Mr. Baranski for this alleged injury under section 14 of the relevant Act. The court had to decide whether the injury occurred in the manner and circumstances claimed by Mr. Baranski and whether it arose out of or in the course of his employment.

The central legal issue before the court was whether Mr. Baranski's lower back injury was caused by his actions at work on 23 March 2007. The court needed to consider the credibility of Mr. Baranski's account and the consistency of his statements over time. It also had to weigh the medical evidence regarding the nature and cause of the injury. The court scrutinized the evidence provided by Mr. Baranski, his colleagues, and medical experts to determine the likelihood that the injury was work-related.

After evaluating the evidence, the court concluded that Mr. Baranski did not sustain a compensable lower back injury during his employment. The inconsistencies in Mr. Baranski's account, along with the implausibility of certain aspects of his story, led the court to doubt the reliability of his evidence. The court preferred the accounts of other witnesses and found that the injury did not occur in the manner or circumstances claimed by Mr. Baranski. Therefore, the court affirmed the decision that Comcare was not liable to compensate Mr. Baranski for the alleged injury.

No further orders were made by the court beyond affirming the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.