Morales and Australian Postal Corporation
[2014] AATA 82
•21 February 2014
[2014] AATA 82
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2108
2013/0817
2013/2810
Re
Alexis Joseph Morales
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Dr Kerry Breen, MemberDate 21 February 2014 Place Melbourne The decisions under review are set aside and in substitution it is decided:
1.the applicant suffered a central protrusion of the L4/5 disc onto the thecal sac which arose out of or in the course of his employment with the respondent and to which the employment contributed in a material degree;
2.the respondent is liable pursuant to s 14 of the Safety, Rehabilitation andCompensation Act 1988 (the SRC Act) for payment of compensation:
a)pursuant to s 19 in respect of all periods of incapacity when the actual earnings of the applicant were less than the normal weekly earnings from 14 July 2010 to and at the present date; and
b)pursuant to s 24 and s 27 in respect of a whole person permanent impairment of the applicant’s lumbar spine at 11% pursuant to Table 9.17 of the Guide to the Assessment of the Degree of Permanent Impairment edition 2.1; and
3.the respondent shall pay the applicant's costs and disbursements pursuant to s 67 of the SRC Act.
(sgd) John Handley
Senior Member
COMPENSATION – applicant engaged in heavy manual work over 18-year period with the respondent – diagnosis of L4/5 disc protrusion – employment materially contributed to the injury – applicant incapacitated – respondent did not take reasonable steps to provide suitable employment – respondent liable and applicant entitled to compensation – applicant has a permanent impairment of 11% under Table 9.17 – decisions set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 14, 19, 24, 27
CASES
Re Liu and Comcare (2004) 120 ALD 119
Re Ashton and Linfox Armaguard Pty Ltd (2011) 128 ALD 593
REASONS FOR DECISION
Mr John Handley, Senior Member
Dr Kerry Breen, Member
21 February 2014
Mr Morales, the applicant in this review, was born in Chile in 1960. He and his family migrated to Australia in 1976. He completed secondary education and then obtained work of short duration with 3 employers – as a console operator in a service station, a labourer with Keilor Council and as a truck driver, before he commenced employment with Australia Post, the respondent, in July 1986.
The decisions under review are summarised as follows:
(a)2012/2108 – a determination made on 13 April 2012 (T40) and affirmed in a reviewable decision made on 9 May 2012 (T42) denying liability to pay compensation for incapacity between 14 July 2010 and 5 March 2012 pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
(b)2013/0817 – a determination made on 29 January 2013 (T5) and affirmed in a reviewable decision made on 15 February 2013 (T7) denying liability to pay compensation for central protrusion of the L4/5 disc onto the thecal sac pursuant to s 14 of the SRC Act.
(c)2013/2810 – a determination made on 20 May 2013 (T6) and affirmed in a reviewable decision made on 6 June 2013 (T8) denying liability to pay compensation pursuant to s 24 and s 27 of the SRC Act in respect of a back and a psychological injury. (At the commencement of the hearing the applicant indicated that it was intended to pursue this application only in respect of the back injury and withdraw the application in so far as it concerned the psychological injury. The applicant’s solicitors have subsequently notified the Tribunal in writing of its intention to withdraw that part of the application and pursuant to s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that part of the application is dismissed without proceeding to review it).
The respondent contended that the applicant suffered a temporary aggravation of a pre-existing degenerative condition of his lumbar spine and has no entitlement to compensation after 14 July 2010 when his employment ended with the respondent. The applicant contended that he suffered an L4/5 disc protrusion arising out of the heavy nature of his employment with the respondent. He denied any back injury before he commenced working with the respondent. He contended he ceased work because the respondent did not provide him with suitable employment.
The applicant had been referred for a CT scan on 3 occasions between 1998 and 2007. He also had an x-ray of his lumbar spine in 2006. Reports of each of those 4 events were received as Exhibit R2 and will, in large part, be reproduced in these reasons.
The applicant completed 5 incident reports of injury and subsequently claimed compensation, during his work with the respondent. A period of incapacity followed each incident, liability was admitted for 4 of the claims and compensation was paid. Each of those incidents will be described later in these reasons. One claim resulted in proceedings in this Tribunal, which was resolved and compensation was paid.
The employment
The applicant commenced work with the respondent at its parcel delivery centre in Dudley Street, West Melbourne. He drove a small van and delivered parcels. After 3 or 4 months, he commenced work driving a 5 tonne truck transporting bags to and from Tullamarine airport.
The applicant said that he could make up to 4 return trips per day to and from the airport, where he would be required to manually load and unload bags of mail onto and from his truck.
He said bags of domestic mail leaving Australia could weigh up to 20kg despite Australia Post having a limit of 16kg. International mail collected at the airport and returned to the Melbourne Mail Centre was contained in larger bags often weighing up to 40kg.
He said bags from Germany weighed between 30-35kg. He especially recalled them because they were labelled as requiring 2 persons to lift them. He said when he unloaded mailbags from a Lufthansa plane, he would know the mail was coming from Germany and he would seek assistance, but for 50% of the time, another person was not available and he would unload alone. The applicant estimated that the 5 tonne truck, on average, had a load of 300 bags of domestic mail. He was unable to estimate the number of bags of international mail he would carry because of the varying sizes of them.
A typical trip from the Melbourne mail centre to the airport and return involved:
·manually loading his truck by taking bags of mail from a conveyor belt located near the truck bay at the mail centre and throwing the bags into the truck. He then was required to stack them, within the truck and often had to lift them to above shoulder height;
·unloading the bags, manually at the airport. A conveyor was not available. On some occasions he was given assistance by another person;
·parking adjacent at the rear of the plane being unloaded. The large bags of international mail were thrown from the plane into the truck. The applicant was then required to stack them; and
·driving back to the mail centre where he manually unloaded the bags onto a conveyor belt positioned adjacent to the truck. He was given assistance unloading the truck on some occasions.
The applicant was engaged in this work for about 18 years until 2005 or 2006 when he commenced driving a 30 tonne truck. At that time, the respondent introduced a system where bagged mail was placed into a unit load device (ULD), together with large parcels and boxes of mail. Thereafter, the applicant did not manually load and unload individual bags of mail.
A ULD is a 1200mm steel mesh cage having a drop-down side. When filled with bagged mail, it weighs approximately 600 kg. They are loaded by forklift, when filled, onto the tray of a truck which are delivered to and collected from the respondent’s suburban mail facilities. A 30 tonne truck, when fully loaded carries 28 ULDs which are stacked in 7 rows along the tray of the truck.
The ULDs were then secured by strapping, which required the applicant to climb onto the truck and reach across the top of each row, with the straps, which were eventually secured and tightened using a ratchet device. He would then close the curtains on each side of the truck.
During the hearing, counsel for the respondent relied on an entry in the clinical file of a medical clinic at the Highpoint shopping centre dated 1 July 1985 (Exhibit R1) and contended that the L4/5 disc lesion could then have been present. The entry on that date is Back sore 3/7 ago. Keilor Council landscape labourer. 130/90. The applicant had no recollection of having a sore back in 1985 or ever attending that clinic. We will refer to this incident in our conclusions.
The applicant first reported back pain to the respondent on 7 August 1992 (6 years after he commenced employment with the respondent). An incident report completed by him records (T4, p. 10):
I was off-loading mail bags on the back of a 5 ton truck. I picked up a bag that was quite heavy and threw into a ULD on ground (conveyor belt on (sic) working at the time). I believe that I injured my back when I picked up the mail bag.
A supervisor of the applicant also completed part of that incident report and confirmed that the conveyor belt was not working. A witness to the episode recorded that the applicant had been manually unloading his truck, he was unassisted, the bags were of various sizes and weights and he had to toss the bags into the ULD (ULD was approximately 6 foot from the truck) (T5, p. 11).
In his claim for compensation arising out of this incident, the applicant recorded that he picked up a bag that felt quite heavy and threw it into a ULD on the ground. I believe this was when I injured my back (T6, p. 13).
It is understood that the applicant provided certificates of incapacity following this incident because although not found within the T-documents, the respondent accepted liability for back strain having occurred on 7 August 1992 and paid compensation for incapacity for 6 days and 3 hours between 10 and 18 August 1992 (T7, p. 15).
The second report of back pain was made on 9 July 1993. A record of it (and any subsequent claim, if any, for incapacity payments and/or medical and like expenses) is not in the T-documents but is evidenced by an incident report that had been retained by the applicant (Exhibit A1). The report records that he felt pain in his lower back whilst loading bags from ground into back of van. In response to a question within the incident report form, the applicant recorded Bags were too heavy. Way over 16 kg.
The third incident with the respondent occurred on 23 April 1997 when the applicant was working at Melbourne airport. In his report to the respondent, he recorded that when he picked up a bag off the loading belt and threw it (he) felt something pull on my back I thought I pull a muscle. I believe the injury occur by the flow of mail being too fast. I did not have time to shift my feet before I threw the bag (T8, p. 16). The pain was reported by him to be located in the middle back area.
Medical certificates which we understand would have been supplied to the respondent were not within the T-documents. However, the respondent did accept liability for back sprain and paid compensation for incapacity for 6 days between 23 and 30 April 1997 (T10, p. 21).
Dr Sheriff is the applicant’s treating general practitioner who first consulted on 12 June 1998. He arranged for the applicant to be referred for a CT scan on 6 July 1998. A report of that procedure, undertaken 12 years after the applicant commenced working with the respondent, when he was 37 years of age, is reproduced as follows (Exhibit R2):
The L3/4 and L5/S1 discs are both normal in appearance.
The L4/5 disc shows a small to moderate focal midline bulge, suggestive of disc herniation. The thecal sac appears mildly indented at this level. There is no displacement of the adjacent nerve roots.
The central canal, lateral recesses and intervertebral foramina show no evidence of any bony narrowing. The facetal joints are intact. There are no pars interarticularis defects.
CONCLUSION: the CT findings suggest a small to moderate midline disc herniation at L4/5.
The applicant completed a fourth incident report on 11 December 2001 (T11, p. 22). The circumstances of the incident were also recorded by the applicant in his claim for compensation in the following terms (T12, p. 24-25):
After I finished loading air mail truck at SMC I felt slight discomfort in lower back, but thought nothing of it. Later on I was asked to go to overseers’ outer office to report an incident and when I sat on one of the chairs its backrest tilted all the way back. I then tried to stop falling back further and when I tried to upright myself I felt a sharp pain in lower back. The pain got gradually worse up to a point where I couldn’t stand upright because of the pain.
Those circumstances were observed by the overseer, Mr Koby, who recorded (T11, p. 23) that the applicant’s chair rolled back fully and he braced himself and in that action hurt his back. I could see on his face that he had extreme pain, major discomfort. I laid Alex on the table to take pressure off his back.
The respondent admitted liability for a condition it described as strained lower back having occurred on 11 December 2001 (T13, p. 28).
The fifth incident occurred on 4 November 2005. In an incident report completed by the applicant on that day (T15, p. 30), he recorded that he felt a sharp pain in his lower back when he was stepping onto the back of a truck. He gave a similar history in his claim for compensation (T16, p. 32).
The compensation claim form records that a medical certificate must be attached to it. It is not found within the T‑documents. We assume that such a certificate was provided because the applicant recorded that the injury sustained by him was L4/5 central disc protrusion lower back.
We assume the certificate was provided by Dr Sheriff who reported on 31 July 2012 (Exhibit A7) that he had a history from the applicant that he sustained a back injury on 4 November 2005. We note that he also referred the applicant for a CT scan on 7 November 2005 (reproduced below). The conclusion of the radiologist is consistent with the description of injury recorded by the applicant in his claim form.
The radiologist reported that the L1/2, L2/3 and L3/4 intervertebral discs and the thecal sac at each level were normal in appearance. He then recorded (T14, p. 29):
L4/5: There is a focal central disc extrusion causing moderate compression on the thecal sac. Nerve roots in the lateral recess are not compressed. However, exiting L5 nerve root on the left side may be touched by the protrusion near its origin. There is sclerosis in the facet joints bilaterally suggestive of degenerative changes. Ligamentum flavum appears to be of normal thickness. No fracture is identified at this level.
L5/S1: There is a broad based bulge in the intervertebral disc. No thecal sac compression or exiting nerve root compression is seen.
Comment: L4/5 central disc protrusion which may be touching the origin of the existing L5 nerve root on the left side.
The respondent did not immediately determine the applicant’s claim for compensation following the incident on 4 November 2005. Instead, arrangements were made for him to be examined by Mr Wearne, an orthopaedic surgeon, on 30 November 2005.
The letter of referral enclosed a copy of the CT scan report of 7 November 2005 (T17, p. 35 – 36). Mr Wearne was notified of incidents concerning the applicant’s back commencing in 1992. He was also notified of reports of back pain in 2002 and 2003. Those reports were not within the T-documents and they were not the subject of any evidence in this review. The letter also records that following the episode on 4 November 2005, the applicant attended the emergency department of the Epworth Hospital and was given a certificate for incapacity until 7 November 2005. On that date, a further certificate was issued by Dr Sheriff until 14 November 2005. Neither of those certificates was within the T-documents.
The respondent eventually accepted liability for a condition of temporary aggravation of pre-existing degenerative condition lumbar spine which was determined as having occurred on 4 November 2005 (T19, p. 43).
It would appear that the respondent was prepared to make the determination recorded immediately above, following receipt of the report from Mr Wearne (T18, p. 41), who concluded that the employment of the applicant by the respondent did not in any way cause or materially cause the condition. However, I consider that his employment with Australia Post caused or materially contributed to an aggravation of a pre-existing degenerative condition of his lumbar spine.
The finding by the respondent’s delegate of a temporary aggravation appears to correspond to Mr Wearne’s conclusion that the effects of the aggravation will subside within 2 months and thereafter any discomfort in his back would be due to the natural effects of the underlying condition.
The applicant returned to work, following incapacity after the incident on 4 November 2005 in either late December 2005 or January 2006. He was able to resume work driving 30 tonne trucks delivering ULDs. He said he had been instructed by Dr Sheriff, in 2006 to exercise at home by a type of stretching which he said, allowed him to work in reasonable comfort. (Dr Poppenbeek, in a report of 3 February 2006 recorded that Dr Sheriff had recommended the applicant undertake Pilates).
The applicant was referred to Dr Poppenbeek, by a rehabilitation officer of the respondent, for an assessment of his fitness for duty (T20, p. 44). The referral letter was not within the T-documents and it is impossible to determine the materials made available to him. It would appear from his report that he did have a copy of the report of Mr Wearne of 21 December 2005 but did not have a copy of the report of the radiologist of 7 November 2005 (or of the radiologist who reported on the films of the earlier CT). We make that observation because Dr Poppenbeek referred to the report of Mr Wearne in his discussion of the contents of the CT scan of 7 November 2005. Dr Poppenbeek concluded that the applicant had a quite lengthy history of lumbar spine degenerative disease and had probably sustained a relatively minor L4/5 disc protrusion.
Dr Poppenbeek reported on 31 January 2006, when he assessed the applicant that he was then fit to resume full-time work (T20, p. 44-46). He acknowledged that the applicant’s constitutional back problem made him vulnerable to further back pain. He reported the applicant should be made aware of lifting techniques and manual handling activities and reinforcement of Australia Post excellent protocols in this regard would be of value. He did think that the applicant may have difficulty, especially on windy days, managing the side curtains of trucks.
The applicant said a heavy metal rod was used when closing and tightening the side curtains of the truck. He said at the end of each day he would have a sore back because of the frequency of climbing into and out of the truck and closing the curtains.
In February 2006, the month after the applicant consulted with Dr Poppenbeek, a claims manager of the respondent referred the applicant to an osteopath, Dr Alivizatos who reported that the applicant had irritation in the L3/4 and L4/5 spinal joints with an overall lack of motion in the pelvis (T21, p. 47). The applicant was referred for x-rays of his lumbosacral spine and a radiologist reported to Dr Alivizatos on 24 February 2006 (Exhibit R2):
Lumbar vertebral alignment appears anatomic and there does appear to be early narrowing of the L4/5 disc, the other discs appearing normal. No spondylolysis or spondylolisthesis is apparent. There is no obvious sclerotic change in the facet joints indicative of degenerative facet joint disease but the joints are better assessed on oblique films or on CT scanning than on AP and lateral plain radiographs. Sacrum and S1 joints, pelvic bones and hip joints have an unremarkable appearance. No primary bone lesion is seen and no major degenerative spondylotic change is apparent.
On 6 September 2007 the applicant lodged an incident report recording that he suffered muscular pain in his lower back on the previous day. The applicant reported (T30, p. 75):
After I topped up engine with oil, I pulled down the tilted cabin of truck SKI-153. As I pulled down I felt a sharp pain across my lower back.
A claim arising out of that incident was rejected by the respondent. The applicant lodged a request for reconsideration on 9 October 2007 (T34, p. 85 – 86) and the respondent affirmed that decision. The applicant challenged the reconsidered decision and the application came before this Tribunal. It was eventually resolved in March 2009 in application N° 2007/6208 and a decision was made pursuant to s 42C(1) of the AAT Act on 17 March 2009.
The decision records that (T38, p. 97-98):
(a)the applicant sustained a temporary aggravation of pre-existing L4/5 disc prolapse on 5 September 2007;
(b)he was periodically incapacitated between 5 September 2007 and 14 November 2008 as a result of the injury and was entitled to compensation pursuant to s 19 of the SRC Act during that period;
(c)the condition ceased to result in incapacity and from 15 November 2008 to the present date and he was not entitled to incapacity benefits pursuant to s 19; and
(d)the condition resulted in a need for medical treatment pursuant to s. 16 of the SRC Act between 5 September 2007 and 16 February 2009 and from 17 February 2009 he ceased to suffer the effects of the condition and was not entitled to compensation in relation to medical expenses for treatment from that date.
The respondent contended in cross-examination that the decision made by the Tribunal with the consent of the parties was relevant to application 2012/2108, being one of the applications under review in this proceeding. There was some discussion between Counsel concerning the relevance of the decision. We will return to this issue later.
The applicant was incapacitated for a few days following the episode on 6 September 2007 and returned to work with a certificate from Dr Sheriff restricting him from driving for a few weeks and later returning to driving at 5 hours per day only. The applicant said he had good days and bad days, he was taking painkillers and was driving for either 2 or 3 hours each day only. He maintained that routine until Christmas of 2007.
Whilst at home during Christmas, the applicant recalled an occasion where he stood up from a seated position and felt sudden severe pain in his lower back. He attended the Williamstown Hospital because Dr Sheriff was on leave.
The applicant consulted with another general practitioner, Dr Goldberg, who arranged a CT scan of his lumbar spine on 28 December 2007. The radiologist reported (Exhibit R2):
The intervertebral discs were examined and showed a central protrusion of the L4/5 disc onto the thecal sac. The remaining intervertebral discs were intact with no other focal or diffuse herniation. All neural exit foramina were patent. The existing spinal nerve roots were normal. The lumbar vertebral bodies demonstrate small marginal osteophytes. Neural arches were preserved. The facet joints were slightly sclerotic. There was no spinal canal stenosis. Conclusion: There is a central protrusion of the L4/5 disc onto the thecal sac. This is associated with mild degenerative changes in the lumbar spine.
The applicant did not ever drive again with the respondent. He returned to work in mid‑February 2008 and performed clerical work. Initially he worked an afternoon shift and later a night shift in a transport office at Ardeer.
On 1 April 2008, the applicant was handed a letter at work which relevantly records (Exhibit A3):
I confirm that you are directed on sick leave from commencement of your 22.00 p.m. shift on the 1 April 2008. As from this date, you are eligible to avail of sick leave in accordance with your credits.
The applicant left the workplace and did not work until about November 2008. Compensation was paid whilst he was absent. Certificates were provided to the employer, completed by Dr Sheriff, after April 2008. An example of one such certificate is found at Exhibit A2 and dated 21 September 2008.
In November 2008 the applicant was asked to return to work which he did, undertaking clerical work in an office. He described his duties as importing data into a computer. He said that he was able to sit and stand and walk during work, when needed.
Throughout 2008 the applicant said he was taking painkilling medication and his back pain would come back depending on the work he was undertaking and other activities including house work which he did attempt, but for periods of short duration only. He also suffered back pain after being seated for up to 45 minutes or standing for equivalent periods. He said that pattern of symptoms had existing since 2007 and it continues to the present time.
The applicant received another letter from the employer dated 29 April 2009 at the commencement of work on that day (Exhibit A4). He was directed onto sick leave from30 April 2009. The letter stated:
This direction is in accordance with Australia Post’s Non-Work Related Medical Restrictions Policy because you have provided medical evidence dated 21/9/2008 from your treating doctor that states your restrictions due to your medical condition are required on a permanent basis. You will not need to send any medical certificates to support your continued absence on sick leave.
The applicant ceased work at the end of his shift on 29 April 2009. He has not worked with the respondent since that date. Thereafter, he was paid annual leave, sick leave and long service leave until 14 July 2010 when all leave to which he had been entitled had been paid.
On 19 March 2010 the applicant was examined by Dr Soliman at the request of the respondent. In his report of 24 March 2010 Dr Soliman recorded that the applicant had suffered from chronic discogenic lower back pain for 18 years (T38, p. 102). He obtained a history of the applicant having suffered back pain in early 2007 after attempting to lower the cabin of a truck. Thereafter, he was incapacitated for a period of time and returned on light duties gradually increasing his hours of driving. He also obtained a history of the flare up in symptoms during Christmas of 2007 and later being placed on lighter duties and undertaking clerical work.
Dr Soliman also recorded (T38, p. 100):
Mr Morales had a flare up in January 2010 during a holiday to Lakes Entrance. He stated that he is usually careful with long trips and he stops during the drive and has a break. He was fine on the way to Lakes Entrance but on the way back he could not stop for a break so his condition flared up.
The applicant said he was a passenger in a motor car driven by his brother-in-law throughout the trip to and from Lakes Entrance in January 2010. He said the car did stop to allow him to have breaks on the way to Lakes Entrance but stopped once only during the return journey. He said the back pain started about halfway back from Lakes Entrance which he estimated to be after about one and a half or two hours.
Dr Soliman concluded, in response to specific questions put to him by the respondent, that the applicant was not fit to undertake his previous duties as a transport officer but could return to work undertaking duties involving permanent restrictions where he avoids repetitive bending, twisting and lifting above 5 kg, lifting above waist height and to sit and stand at will for a maximum period of 40 to 45 minutes. Dr Soliman concluded the applicant will never be able to return to driving duties.
On 14 July 2010 the applicant retired from employment with the respondent on the basis of ill-health. He said retirement had been offered to him on a number of occasions since 2007 but he had declined. He understood that the respondent supported his ill-health retirement on the basis of the report completed by Dr Soliman. The applicant received a lump sum payment from the superannuation fund. The applicant said he accepted the offer because all other leave credits had been exhausted and he did not then have income. He said he did not seek or request medical retirement, rather that decision had been made by the employer and in the absence of any other monetary entitlements from the respondent, he had no choice but to accept it.
Subsequently, the applicant has not found any other employment. He continues to have treatment and has continuing back pain. He has been prescribed Tramadol, Valium and Lyrica medication. He said he has soreness all the time the pain goes up and down depending on how much work I do. When the pain becomes particularly bad it extends to both legs and radiates as far as each of his knees.
The applicant said that were it not for the letter he was given by the respondent on 29 April 2009, he believed he would have continued in the clerical work he was then undertaking. He said Dr Sheriff has continued to provide him with certificates.
The letter of 29 April 2009 from the respondent contained the following paragraph (Exhibit A4):
Australia Post will endeavour to seek redeployment opportunities for you if appropriate. Also, if you wish to avail of the opportunity of referral to an external provider for a Vocational Assessment, you will need to complete and return the attached release authority to me. Vocational Assessment is a service provided to Australia Post employees who may need to seek alternative employment, given they are unable to meet the inherent requirements of the position and may be retired on medical grounds. The fact that Australia Post may be unable to redeploy such employees does not mean that there is not work available in the wider community that may be available where their medical restrictions can be accommodated.
In response to questions put to him in cross-examination, the applicant said he did not interpret the paragraph above as an offer by the respondent, the employer, for redeployment with it. He interpreted it as an indication that he should seek employment elsewhere. Prior to receiving the letter, he thought that Australia Post would eventually find employment for him and that he would at a future date return to work with it. The applicant did not believe that a Vocational Assessment was an option, for the same reason, namely, his belief that the respondent would provide him with a job.
Mohammed Sheriff
Dr Sheriff has been a doctor in general practice for about 25 years. He has treated the applicant since 1998. He has provided a number of medical reports and certificates in support of incapacity, including certificates recording specific restrictions in the event of the applicant being engaged by the respondent.
Dr Sheriff arranged for the applicant to undertake the CT scans on 6 July 1998 and 7 November 2005. He was also aware of a CT scan arranged by Dr Goldberg on 28 December 2007. He was satisfied, having treated the applicant and observing the CT (which he said was his normal practice) that the applicant did have a chronic spinal disc lesion as he reported to the applicant’s solicitors on 18 November 2013 (Exhibit A8). He was also satisfied that the applicant was permanently unfit to work as a truck driver and thought that any further rehabilitation was unlikely to assist him. In evidence, he said the disc lesion was at the L4/5 level and that he did not think that the medical profession can offer him anything more.
In a report to the applicant’s solicitors on 31 July 2012 (Exhibit A7), Dr Sheriff recorded that the applicant had a central protrusion of the L4/5 disc which was associated with mild degenerative changes in the lumbar spine (being the conclusion of the radiologist in his report following the CT scan of 28 December 2007).
In cross-examination, Dr Sheriff agreed that the CT report of 28 December 2007 recorded that the lumbar vertebral bodies demonstrate small marginal osteophytes which he said could be a sign of degeneration. Despite those findings, Dr Sheriff also noted that the 3 CT reports (commencing on 6 July 1998) recorded the presence of a disc lesion. Dr Sheriff said that his observations of the CT films of 7 November 2005 were consistent with the report of the radiologist that degeneration existed only at the L4/5 level. He also noted that the radiologist found that the intervertebral discs at L1/2, L2/3 and L3/4 were normal in appearance. In these circumstances, he was satisfied that the degenerative changes in the applicant’s spine were minor because they were confined to one level only.
Thomas Kossmann
Mr Kossmann is an orthopaedic surgeon who examined the applicant in October 2012 at the request of his solicitors for the purpose of assessing whether he had a whole person impairment pursuant to Table 9.17 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Guide).
He concluded that the applicant suffered significant signs of radiculopathy being an alteration of relevant reflexes, especially in the Achilles tendon which in his opinion, attracted a finding of whole person impairment of 11%.
In cross-examination, Mr Kossmann found significant differences when comparing the reflexes of the applicant’s patellar to his Achilles tendon. When his attention was drawn to the findings recorded in the reports of Mr Wearne, Mr Jones and Dr Soliman of either not being able to find tendon reflexes or on other occasions, tendon reflexes being present and equal, he said there could be a variation in the alteration in relevant reflexes within a few hours of assessment. He said the fluctuation in the findings of other doctors, might point to the impairment not being permanent.
Mr Kossmann was asked to consider the evidence of the applicant of a sensation of tingling in his left foot and said that would normally be associated with nerve impingement at L4/5. When he was notified of the applicant giving evidence of pain in both thighs, he said the origin would have been at the L4 level. He also thought that the evidence of the applicant of pain extending through his thighs to the front of both knees would have its origin at L4/5.
In response to some questions from us, Mr Kossmann agreed that his primary diagnosis was a disc protrusion at L4/5. He said he was unable to find any evidence of pre-existing degenerative disease. He said there have been some degenerative changes subsequent to the prolapse at L4/5.
He acknowledged that he had said earlier in evidence that the variation in findings by other doctors of a fluctuation of sensation and response in the applicant’s reflexes might suggest the impairment was not permanent. He said the symptoms may not be permanent, they may change and on occasions might become severe. He remained of the opinion, as he reported, that the applicant does have an impairment of his lumbar spine which is permanent and is likely to continue indefinitely.
CONCLUSION AND REASONS FOR DECISION
We found the applicant to be an honest witness and having regard to the nature of his work and his medical history, to be a diligent and stoic employee.
The work undertaken by the applicant, especially between 1986 and 2005/2006 when he was delivering bagged mail to and from Melbourne airport was not challenged. When closely examined, it is not difficult to comprehend the relationship between his work and the resultant L4/5 disc prolapse which, for reasons which will appear later, attract liability on the part of the respondent.
The delivery of domestic mail required him to manually lift bags weighing 16 kg – and sometimes greater – from a conveyor and load them into a truck. Often those bags had to be thrown or lifted to a position above shoulder height within the truck. The applicant estimated that each load would carry approximately 300 bags. At 16 kg per bag, a full load would weigh 4800 kg which is consistent with the applicant then driving a truck with 5 tonne capacity. That procedure was repeated at the airport by him throwing the bags off the truck. On arrival at the airport the mail would be manually unloaded. Each trip to the airport required him to manually load his truck and unload it on arrival.
Collection of international bags of mail at the airport was undertaken in a similar fashion. Although whilst a conveyor was not available when loading, assistance by another person was available on 50% of the collections. The international bags were considerably heavier than the domestic bags and the applicant was again exposed to heavy manual lifting, alone on 50% of each occasion he unloaded the international bags at the mail centre. Those bags were lifted from the truck and placed on a conveyor.
A single trip to from the airport required the applicant to manually load his truck on 2 occasions and unload on another 2 occasions. Each load had a combined weight of approximately 4800 kg, perhaps greater when the weight of international mailbags is considered. That he would complete up to 4 trips per day, to and from the airport would have exposed the applicant to lifting an enormous aggregate weight each day, even allowing for the assistance that was available to him on occasions.
The applicant first reported back pain in 1992, being 6 years after he commenced undertaking his work with the respondent. Another 2 reports of back pain were made by the applicant in 1993 and 1997, yet throughout this time he continued to perform his duties. In 1998 he first had a CT scan which demonstrated the presence of herniation at L4/5. The applicant continued to work in the presence of back pain whilst undertaking the above duties.
For about 2 years after the applicant ceased delivery and collection of mail from the airport, he drove a larger truck delivering mail in ULDs. Whilst that work did not expose him to the repeated heavy lifting previously undertaken, it did require him to physically manoeuvre side curtains on the truck and to climb on it to fit and fasten belts to secure the load. By the time he commenced that work, another CT scan in 2005 confirmed the presence of pathology at L4/5 described as a central disc extrusion with moderate compression on the thecal sac. A broad based bulge in the intervertebral disc was also observed at L5/S1.
On 5 September 2007 the applicant lodged an incident report following another episode of back pain after he attempted to close the cabin of his truck which had been in an elevated position. Thereafter, but for a relatively short period of total incapacity, the applicant worked on restricted duties until a further episode of back pain at home during Christmas of that year. He did not drive again with the respondent. He resumed work in February 2008 but was directed to leave the premises in April. He resumed in November 2008 (having been paid compensation during his absence) and commenced clerical duties. He worked until 29 April 2009 when he was again directed by the employer to leave the premises. He has not subsequently worked with the respondent or at all. On 14 July 2010 he retired from work and was paid superannuation from the employer’s superannuation fund.
The denial by the respondent of liability was based on an assertion, principally by having regard to opinions expressed by Mr Wearne, that the employment was responsible for a temporary aggravation of a pre-existing degenerative condition of the applicant’s lumbar spine.
We have some difficulty comprehending the opinion expressed by Mr Wearne (who was not called by the respondent. We do not draw any inference adverse to the respondent. It was learnt during the hearing that Mr Wearne was unwell). In his report, he acknowledged that he examined the CT films of 7 November 2005 and was satisfied with the conclusions of the radiologist that the applicant did suffer a central disc extrusion at L4/5 (T18, p. 40). He then recorded that there was no other significant abnormality, apart from some early degenerative changes in the facet joints at the L4/5 level. A similar opinion was expressed in his report of 29 October 2012 (Exhibit R7). That opinion was again expressed, after he had been provided with the CT report of 28 December 2007.
The report of the radiologist in 2005, does not point to any abnormality between L1 and L4. It is only at the L4/5 level, where the protrusion exists, that some degenerative changes were observed. Nothing points to any degenerative condition of the applicant’s spine (refer paragraph 33).It follows that but for the changes at L4/5, there were no degenerative changes of the applicant’s spine, pre-existing the employment or at all.
With respect to Mr Wearne, we wonder whether he has confused the applicant with another patient or a person he examined for medico-legal purposes. On the first page of his report, Mr Wearne recorded the applicant’s residential address being an apartment on the 7th floor of an apartment complex, which is true. However, he reported that the applicant is able to complete light maintenance of his garden and his lawn, but raking leaves aggravated his back pain. The applicant does not have a garden, he does not have a lawn and he does not have trees.
Mr Wearne also recorded that the applicant left Chile with his family because they had become political refugees. The applicant specifically denied giving that history or that there was any truth in it.
The applicant was also assessed by Dr Poppenbeek in January 2006. It would appear from his report (PT20, p. 44-46) that he was not given a copy of the CT scan 7 November 2005. Rather he relied on a summary of it, as recorded by Mr Wearne in his report of 21 December 2005. He concluded, on the basis of his examination and history, and the summarised version of the report of the radiologist of 7 November 2005 that the applicant had a lengthy history of lumbar spine degenerative disease. He recorded that the applicant probably sustained a relatively minor L4/5 disc protrusion which he attributed to an incident at work in November 2005 and which he regarded as an aggravation of a constitutional, pre-existing condition. He agreed with the conclusions Mr Wearne.
We are disappointed that Dr Poppenbeek was influenced by a summarised version of radiologist’s report. It would have been preferable for him to have seen the report in its entirety. If he had, he would have learnt that the radiologist did not find any degeneration other than at the L4/5 level. He would have also observed that the radiologist reported that the intervertebral discs at L1/2, L2/3 and L3/4 were normal in appearance.
We are satisfied that the applicant did not have pre-existing degenerative disease of his lumbar spine. We are also satisfied that no weight should be at attributed to the opinions of Mr Wearne or Dr Poppenbeek.
Dr Sheriff was satisfied that any degenerative disease in the applicant’s spine was confined to the L4/5 level as indicated by the presence of osteophytes, at that level only. Mr Kossmann did not find any degenerative changes pre-existing the prolapse at L4/5.
On the basis of their professional expertise and experience, we are satisfied that the evidence of Dr Sheriff and Mr Kossmann is sound and is to be preferred.
The respondent arranged for the applicant to be examined by Mr Ian Jones, an orthopaedic surgeon in September 2008. He prepared a report dated 2 September 2008 (T36, p. 90). Mr Jones was provided with the CT scans of 7 November 2005 and 27 December 2007, together with the clinical notes Dr Sheriff, other records, certificates and reports, including the report from the Highpoint Medical Centre. He was not provided with the reports of Mr Wearne.
Mr Jones was satisfied that the L4/5 disc prolapse occurred by the cumulative effects of a number of injuries to his lumbar spine from 1993. The L4/5 disc prolapse therefore, predated the injury of 5 September 2007. He thought that incident did cause a temporary aggravation of the pre-existing L4/5 prolapse and regarded the aggravation to be transient. He was satisfied that prior to employment with the respondent, the applicant did not have any condition affecting his lower back. He concluded that the applicant was not capable of continuing work as a truck driver but could undertake clerical work. Mr Jones was not called by the respondent.
We dismiss the entry in the records of the Highpoint Medical Centre records – Back sore 3/7 ago – in 1985 as evidence of injury or the presence of degenerative disease pre-existing the employment with the respondent. Not surprisingly the applicant had no recollection of his presentation in 1985. The notes do not suggest that the applicant was referred for any radiological assessment nor is there any other entry on that date or at all within the clinical notes of any other complaint of back pain or of a diagnosis. The entry on 1 July 1985 of back sore 3/7 ago is remarkable for its brevity and is consistent with the absence of concern by the practitioner that treatment was warranted.
We dismiss the contention of the respondent that the applicant then presented with an L4/5 disc lesion.
We also dismiss the respondent’s contention that the back pain suffered by the applicant in January 2010,whilst a passenger in a motor vehicle returning to Melbourne from Lakes Entrance, caused or contributed to incapacity. The applicant had then been in a seated position for between 1.5– 2 hours.
Mr Kossmann obtained a history of back pain following that occasion and reported it as the applicant having developed further pain in his lumbar spine. He also obtained a history of the applicant subsequently suffering several flare ups of pain (PT4, p. 6 and 9).
We are not satisfied that the history reported by Mr Kossmann points to an aggravation of the pre-existing injury as counsel for the respondent submitted (Transcript p. 112). Rather, we are satisfied that the applicant then suffered back pain as a consequence of having occupied a seated position for a considerable period of time set against the existence of a lumbar disc protrusion. He has suffered flare ups of back pain subsequently (he also suffered flare ups prior to the journey from Lakes Entrance) but we would associate those occasions as being a consequence of the protrusion and its impact on everyday activity. Nothing points to the occasion of him being a passenger as described above being responsible for any aggravation of the pre-existing injury or contributing to incapacity.
The claim made by the applicant following the incident in September 2007 was denied by the respondent. It was affirmed on reconsideration and proceedings were eventually issued in this Tribunal. The parties reached an agreement in the course of the proceedings which would have reflected the terms of the decision made by the Tribunal on 17 March 2009 pursuant to s 42C of the AAT Act (T38, p. 97-98).
One of the terms of the decision, setting aside the decision under review, was of the applicant having sustained a temporary aggravation of pre-existing L4/L5 disc prolapse…
We are satisfied that the decision made by the Tribunal does not prevent the applicant pursuing the current application nor does it interfere with or act as an estoppel of these applications.
The Tribunal was apparently satisfied that it was appropriate to make a decision in accordance with the terms of the agreement between the parties (sub-s 42C(1) and (2) of the AAT Act). The Tribunal did not hear evidence nor did it make findings of fact. The decision limited the entitlements of the applicant to weekly compensation and to medical and like expenses but in so doing it did no more than reflect the terms of the agreement. The parties agreed that the injury which gave rise to the compensation entitlement at that time was a temporary aggravation of a pre-existing L4/5 disc prolapse which occurred on 5 September 2007 in the course of his employment.
The claim then made arose entirely out of the incident on 5 September 2007. The applicant claimed compensation. We will find later that the prolapse at L4/5 arose out of and in the course of the employment well before 5 September 2007. Any temporary aggravation of it by an incident at work and a subsequent agreement to pay compensation for a limited period cannot amount to a finding of the employer no longer having liability. Any attempt to limit the opportunity of the applicant to pursue his compensation rights would contravene a decision of the former President, Downes J in ReLiu and Comcare (2004) 120 ALD 119 and more recently, a finding by Senior Member Britton in ReAshton and Linfox Armaguard Pty Ltd (2011) 128 ALD 593.
We are satisfied that the applicant has suffered a central disc protrusion at L4/5 which arose out of or in the course of his employment and to which there was a contribution by the employment to a material degree.
The applicant has not had any capacity to resume employment as a transport driver since September 2007. We are satisfied that the opinions expressed by Dr Soliman in his report (T38, p. 99 -104) and the opinions expressed by Dr Sheriff at the hearing and in certificates provided to the employer are sound and to be preferred, namely, that the applicant is permanently restricted as a transport driver; any employment should involve permanent restrictions of repetitive bending twisting and lifting above 5 kg; he should not lift from below waist height; he should sit and stand at will; he is only fit to return to work with the above restrictions and should be redeployed or retrained.
The respondent provided the applicant with clerical work on 2 occasions after September 2007. On each occasion the applicant completed that work. After a period of undertaking it, he was directed in writing to cease and leave the workplace. Initially he was directed to take sick leave that was available to him. On the second occasion, he was again directed to leave the workplace and take all available leave entitlements owing.
By 14 July 2010 the applicant had been paid all sick leave, long service leave and other benefits to which he was entitled. Thereafter, he had no entitlement to income from the employer. For that reason only, he applied for superannuation and qualified for a lump sum benefit on the basis that he was found to be totally and permanently disabled.
The applicant did not voluntarily resign from employment (thereby, interfering with his entitlement to future compensation). He retired from the employment because he was found to be totally and permanently disabled and had no choice but to seek monies from the superannuation fund in the absence of any other monetary entitlement from the respondent.
The letter of the respondent dated 29 April 2009 (Exhibit A4) is inconsistent with its obligations pursuant to s 40 of the SRC Act because it did not exercise its duty to take all reasonable steps to provide the applicant with suitable employment or to assist him to find suitable employment. Instead it decided that it will endeavour to seek redeployment opportunities for him if appropriate.
From the date of that letter, the employer did not seek to provide the applicant with suitable employment or at all.
We are satisfied the applicant has had no ability to earn his normal weekly earnings since 14 July 2010.
We are satisfied that from 14 July 2010 the respondent has been liable pursuant to s 14 of the SRC Act for payment of compensation to the applicant.
Accordingly, the decisions under review in applications 2012/2108 and 2013/0817 will be set aside and decisions in substitution will accordingly be made.
The decision remaining under review is found within application 2013/2810, namely, a denial by the respondent of an entitlement to lump sum compensation for permanent impairment pursuant to s 24 and s 27 of the SRC Act. Initially that application concerned a claim for compensation with respect to the back injury and a psychiatric impairment. Following the withdrawal of the application in so far as it concerned the psychiatric impairment, the only issue before us is the applicant’s entitlements to compensation for permanent impairment as a result of the back injury.
In a report of 14 August 2013, Mr Wearne was satisfied that the applicant did have a permanent impairment as a result of his back injury which is likely to continue indefinitely and assessed the degree of permanent impairment at 8% pursuant to Table 9.17 of the Guide (Exhibit R8). Mr Kossmann was of a similar opinion except he found the degree of permanent impairment to be 11%.
Table 9.17 of the Guide contains criteria to determine the degree of impairment of 8% and within the range of 10 – 13%.
Mr Wearne reported that the impairment of the applicant could be reduced by further treatment, home-based exercise and medication (Exhibit R8). However, he concluded that whilst the applicant does have a permanent impairment and had given a history of a specific injury, he had asymmetric loss of range of motion and non-verifiable radicular complaints.
Mr Kossmann reported that the applicant may need treatment by way of painkillers and anti-inflammatories, physiotherapy, hydrotherapy and acupuncture (T4, p. 5). Although surgery is not presently indicated, it cannot be excluded. He was satisfied the applicant’s injury is well documented and he suffers a protruding L4/5 disc which is pressing on the thecal sac.
Neither Mr Wearne nor Mr Kossmann specifically referred to the criteria in the Guide in reaching their respective conclusions.
We are satisfied, having regard to the evidence heard and read in these proceedings and especially the criteria within the Guide against an assessment of 8% and against an assessment of 10 – 13% that the attitude of each of those doctors with respect to radiculopathy satisfies us that the opinion of Mr Kossmann is to be preferred.
A finding of 8% impairment would be appropriate if a person had prior clinically significant radiculopathy and radiologically demonstrated disc herniation, consistent with the radiculopathy but radiculopathy no longer present following conservative treatment. We are satisfied that the applicant does continue to have clinically significant radiculopathy. It therefore, does remain present.
In his evidence, Mr Kossmann spoke at length of the alteration in the function of nerve roots as manifesting in symptoms and signs in the applicant’s legs which he attributed to pressure on those nerves from the pathology in the applicant’s spine. He also spoke of the potential for variation in radicular findings. The manifestation of those symptoms to him and the description of them by the applicant in evidence satisfies us that they fit within the description of significant and which remain present despite treatment.
The applicant continues to suffer radiculopathy which is significant and which remains present despite conservative treatment. It is for that reason we are satisfied that an assessment of 8% would be inappropriate.
Accordingly, the decision of the respondent in application 2013/2810 is set aside and in substitution for it we are satisfied the applicant is entitled to compensation pursuant to s 24 and s 27 of the SRC Act. We are satisfied the impairment is permanent and is likely to continue indefinitely. We are satisfied that the whole person impairment should be assessed at 11%.
DECISION
The decisions under review are set aside and in substitution the Tribunal decides:
1)the applicant suffered a central protrusion of the L4/5 disc onto the thecal sac which arose out of or in the course of his employment with the respondent and to which the employment contributed in a material degree;
2)the respondent is liable pursuant to s 14 of the the SRC Act for payment of compensation:
a)pursuant to s 19 in respect of all periods of incapacity when the actual earnings of the applicant were less than the normal weekly earnings from 14 July 2010 to and at the present date; and
b)pursuant to s 24 and s 27 in respect of a whole person permanent impairment of the applicant’s lumbar spine at 11% pursuant to Table 9.17 of the Guide to the Assessment of the Degree of Permanent Impairment edition 2.1; and
3)the respondent shall pay the applicant's costs and disbursements pursuant to s 67 of the SRC Act.
I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member & Dr Kerry Breen, Member
.............................[sgd].....................................
Associate
Dated 21 February 2014
Date(s) of hearing 11-12 December 2013 Counsel for the Applicant Mr M. Carey Solicitors for the Applicant Ryan Carlisle Thomas Counsel for the Respondent Ms C. Dowsett Solicitors for the Respondent Sparke Helmore
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