Nguyen and Australian Postal Corporation
[2008] AATA 430
•27 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 430
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0087
GENERAL ADMINISTRATIVE DIVISION ) Re XUAN BAC NGUYEN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, MemberDate27 May 2008
PlaceSydney
Decision We set aside the reviewable decision and find Comcare is liable to compensate Mr Nguyen in respect of the injury to his right shoulder and lower back suffered on 14 September 2006, and remit the matter for determination of the amount of compensation payable. ..................[Sgd]...................
Dr Maxwell Thorpe
Member
for self and Ms Robin Hunt, Senior Member
CATCHWORDS
COMPENSATION – applicant employee of Australian Postal Corporation – lumbar spine pain – right shoulder pain – pain experienced while sorting mail – liability denied by the respondent – decision set aside as to right shoulder and lower back
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 67(8)
REASONS FOR DECISION
27 May 2008 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Membersummary
1. Xuan Bac Nguyen, the applicant, seeks compensation for a right shoulder and lower back condition which he claims are work-related. After hearing Mr Nguyen’s evidence and that of medical practitioners as well as the evidence of the respondent, we have concluded that Mr Nguyen did suffer a work-related injury on 14 September 2006. It follows that Comcare is liable to compensate Mr Nguyen for the injury to his right shoulder and lower back. Our reasons are below.
issues
2. Questions we have to decide are:
· Did the applicant sustain an injury to his right shoulder as the result of lifting a parcel at work on 14 September 2006?
· Did the applicant sustain an injury to his lower back as the result of lifting a parcel at work on 14 September 2006?
· Did the applicant suffer compensable injuries to his right shoulder and lower back giving rise to entitlement under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act')?
· Is the applicant entitled to compensation pursuant to sections 16 and 19 of the SRC Act as a result?
consideration and findings
3. Mr Nguyen had some history of previous incidents at work which are set out in the respondent’s facts and contentions. Medical certificates issued in 2004 indicated back muscle strain and adjustment disorder. The present claim concerns events in 2006.
4. Records of Australia Post include an incident report lodged by the applicant on 15 September 2006 concerning an event which occurred on 14 September 2006. In this report, the applicant claims that, at around 7.45pm, when he was working overtime in the “manual bullring”, doing “plenty of heavy lifting”, he lifted a big box and “felt sore at his shoulder and lower back”. In the incident report the applicant went on to say that he felt “really sore” when he arrived home. He made a similar statement in a claim for compensation form which he completed on the same day as he reported to a shift manager, Raj, again on 15 September 2006, at 10.25 am.
5. Mr Nguyen gave oral evidence that when he lifted a big box, during his overtime shift, he felt a sharp pain in the right upper arm and right-sided lower back pain. He explained he was working in an area called the manual bullring sorting mail when he hurt himself lifting the awkward sized box. He said he and his supervisor, Ms Cynthia Campbell were sorting mail parcels together from one “ULD” and placing them into other ULDs. This was part of the mail sorting process. He said there was a mix of various sized parcels in the ULD assigned to him and they were of differing weight.
6. He gave evidence to the effect that he was lifting more than his fair share of big heavy parcels because his supervisor was removing the little parcels and leaving him the big ones. He told the tribunal that the box which caused his injury was very big but not overweight. He had tested the weight before lifting the parcel by rocking it in the ULD with his hand. He had extracted it from the ULD by lifting it to gate height and then rested it before carrying it to the next ULD. He had rested it on the top of the ULD before carrying it to the next one because it was difficult to manage. When he moved off with the big parcel he felt a twinge and pain in his shoulder and back. After hurting himself, he nevertheless completed his shift. He said nothing about it to his supervisor that night and claimed she was busy instructing others on the shift at the time. He still felt sore at home later that night. Mr Nguyen’s wife gave oral evidence that her husband came home complaining of pain in his back and shoulder and had a long shower. She said he complained continuously of pain during the night.
7. The incident report and claim from show that Mr Nguyen told his new supervisor the next day about the incident the night before. Medical records confirm Mr Nguyen’s evidence that he also saw Dr Tony Antoun the next day. Dr Antoun issued a medical certificate on Australia Post letterhead on 15 September 2006. This certificate set out that the applicant suffered right shoulder – rotator cuff impingement with supraspinatus and low back – right pain – strain. The doctor certified that the applicant was fit for work but with restrictions from 15 September 2006 to 22 September 2006. The restrictions Dr Antoun imposed included no above shoulder work, limits on stretching, no bending, working from waist height and weight restriction of 5 to 8 kg. The doctor suggested 2 hours of work that day and 4 hours from the next shift. The doctor also recommended 4 physiotherapy sessions and wrote that he might need an injection and celebrex.
8. At another consultation on 22 September 2006, Dr Antoun made similar observations and suggestions to those on the first consultation and added that he should work and lift with both hands only. He thought that Mr Nguyen would need an injection if the condition did not settle in 2 weeks. He recommended work hours of 4 per week and then 6 per week.
9. On 6 October 2006, Dr Antoun saw Mr Nguyen again and thought he could work full hours including overtime from 14 October 2006 but also kept restrictions in place and recommended 6 hours of work “next week”. He suggested weight lifting of up to 10kg after the second week and again suggested an injection might be needed. On 27 October 2006, Dr Antoun raised the weight to 12 to 14 kg and suggested care with above shoulder work and stretching. He was awaiting a report and recommended alternative duties.
10. Mr Nguyen told the tribunal that he had some physiotherapy and took part in an exercise program that afforded him some benefit. A report from Burwood Physiotherapy Centre dated 18 September 2006 notes the applicant had discomfort in his left shoulder because he was using his left arm instead of his right at work that day.
11. The applicant gave oral evidence he saw the workplace doctor, Dr Antoun before seeing his own family doctor. He said that initially he was content to see a workplace doctor because he had no concerns at that stage about whether his employer would do the right thing if he was injured. However, he later went to see his own doctors because he became concerned when his claims of injury were rejected.
12. The applicant had an x-ray and ultrasound of the right shoulder and a CT scan of the lumbar spine on 16 November 2006:
X Ray Right Shoulder: No significant bone, joint or soft tissue abnormality.
Ultrasound Right Shoulder: Subscapularis calcific tear. Supraspinatus partial tear.
CT Lumbosacral Spine: Bulging annulus L4/5. Posterior protrusion posteriorly to the left L5/S1.
13. As well, Mr Nguyen saw a number of other medical practitioners including Dr James Ly, Dr Hoa Boa Luong, Dr S K Law, Dr Mark Liew and Dr Van Lanh Nguyen. The applicant also had physiotherapy treatment at Burwood Physiotherapy Centre, Yagoona Physiotherapy Centre and Campsie Physiotherapy/Rehabilitation. In November 2006, at the referral of Dr Ly, the applicant consulted Dr Liew, rheumatologist. Dr Liew relates his complaints of pain and disability of the right shoulder and lower back to the lifting injury referred to earlier which the applicant had in September 2006. At the request of the respondent, the applicant was examined by Dr Ron Muratore who produced a report dated 26 October 2006. Dr Muratore also provided a supplementary report at the request of the respondent’s solicitors dated 27 July 2007. An initial medical certificate from Dr Anthony Lam dated 13 December 2006 contained a diagnosis of lumbar disc prolapse and right supraspinatus tear which arose from lifting a 25 kg carton. Mr Nguyen told us at the hearing that his first GP went overseas and he had to seek other advice and assistance.
14. One of the doctors he consulted was Dr Ly. Dr Ly referred him to Dr Liew,, who reported back on 29 November 2006. Dr Liew found ultrasound of the right shoulder suggestive of tendinosis to the supraspinatus and subscapularis tendon with a small tear to the supraspinatus tendon. He thought Mr Nguyen had degenerative rotator cuff disease and degenerative disc disease to the lower lumbar segments. The doctor thought Mr Nguyen’s complaints of pain were related to the lifting injury complained of. He thought there was no need at that stage for therapeutic treatment but any aggravation might require steroid injection. He was fit for work with an upgrading work program as tolerable. In addition, he should not lift above 16kg over shoulder height, as this might aggravate his back or shoulder condition.
15. The applicant’s shift manager, Ms Campbell, who was supervising the mail sorting team at the time of his injury claim, reported on 20 September 2006 that he had objected to the tasks she was directing him to perform. In her written report, the shift manager added that Mr Nguyen had stated, “If I do the heavy parcels, I will also go on restrictions like the other staff, I will see my doctor and I will go on restrictions”. She further asserted that he did not lift a parcel of the dimensions Mr Nguyen claims. Mr Nguyen, on the other hand, gave evidence that she was attending to other workers at the time and simply did not see what happened.
16. The shift manager gave further evidence that most of the staff on the shift worked in teams of two. She said she paired herself with Mr Nguyen and worked with him on the same ULD. This meant they both removed and sorted parcels from the same source. While she denied Mr Nguyen’s evidence that she was leaving all the heavy parcels for him to lift, she did explain that she had to take small parcels for two or three other workers on the shift who were on restrictions as to lifting heavy parcels. She was obliged to select parcels that they could lift and was placing these parcels in another ULD for them to sort further. She also gave evidence that Mr Nguyen took parcels from that ULD against her instructions. According to her version of events, it was when she reprimanded him that he retorted that he would end up on restrictions as well.
17. On 4 October 2006, a physiotherapist’s workplace assessment of Mr Nguyen noted that he was complaining of an intermittent “ache” over the anterior/lateral region of the right shoulder with no continuing symptoms in the lower back although after 5 to 6 hours of work his lower back becomes “tired” and he experiences a lower back right side ache. At an interview conducted on 30 October 2006, Mr Nguyen was recorded as saying he had no previous back pain until he started work in the parcel facility where he felt sore every day. He denied that he had threatened to see a doctor and go on restricted duties. He thought the parcel of which he had complained had weighed more than 20kg.
18. In his oral evidence, Mr Nguyen made similar statements and said he could estimate the weight of the parcels he sorted and that he had lifted wine boxes which weighed 22kg, when he worked in the wine section. That was how he was able to estimate the weight of the parcel he had lifted on 14 September 2006 as more than 20kg and was able to say it was not unduly heavy.
19. The respondent rejected Mr Nguyen’s claim for compensation and internal review followed. After the applicant requested review of the decision rejecting his claim for compensation, the respondent’s solicitors requested that he submit to examination by Dr David Maxwell. Mr Nguyen also presented himself for examination by Dr Ron Muratore who conducts a sports medicine practice.
20. Dr Maxwell, who describes himself as an orthopaedic and spinal surgeon, medico-legal consultant, subsequently produced a report dated 22 March 2007. In his report of 22 March 2007, the doctor noted x-rays of the right shoulder on 16 November 2006 were normal, an ultrasound of the same date taken of the right shoulder showed a partial tear under the surface of the supraspinatus tendon, and that a CT scan of the lumbar spine taken on the same day showed a disc protrusion at the L5 S1 level to the right. He stated however that it was not a true disc protrusion. He also noted a bulging annulus at the L4/5 level but considered it was within normal limits.
21. Dr Maxwell addressed specific questions put by the respondent. In answers furnished in the report, he said under “diagnosis” that Mr Nguyen had sustained no pathological lesion of his right shoulder or lumbar spine in the course of his work. He did not consider restrictions were needed and Mr Nguyen was fit for normal duties. He thought it unlikely that Mr Nguyen had any past incapacity for work and had none now. He did not need treatment and prognosis was excellent.
22. The respondent’s solicitors also requested that he submit to examination by Dr Christopher Browne, a WorkCover trained assessor of permanent impairment. Dr Browne subsequently saw Mr Nguyen on 23 April 2007 and produced 2 reports dated 14 May 2007 as well as a supplementary report on 1 April 2008. Dr Browne diagnosed rotator cuff tendonitis and supraspinatus tendon tear in his report dated 14 May 2007. He also diagnosed mechanical lumbar pain associated with L5/S1 disc protrusion. Dr Browne opined that Mr Nguyen had reasonably good shoulder function but was susceptible to re-injury if required to lift or carry loads above chest height. He thought Mr Nguyen may well have sustained a lumbar disc injury in the same incident in which he sustained a shoulder tear. He further thought Mr Nguyen’s condition had stabilised and he could go back to work and continue with a supervised exercise program. The doctor considered him fit to continue work provided he was restricted to loads of less than 10 kg and no lifting above shoulder height. He also assessed 8% whole person impairment of the lumbar spine under table 9.17 of the Comcare guide and could not determine a rateable impairment for the right shoulder.
23. Dr Muratore reported to the respondent on 27 July 2007 that the x-rays and CT scan taken on 16 November 2006 showed degenerative changes in the lower lumbar spine, and disc bulges, which were also degenerative and not work-related. He reported the x-ray of the right shoulder of 16 November 2006 was normal and the ultrasound showed degenerative changes with minor calcification of the subscapularis. He found no evidence of impingement and no objective clinical signs regarding the complaints of pain in the shoulder. He noted degenerative changes in the right rotator cuff and the lumbar spine, both of which were clinically insignificant and not related to work.
24. On 1 April 2008, Dr Browne commented on the reports of Dr Muratore and Dr Maxwell and the CT scan of 16 November 2006. He observed that Mr Nguyen did experience lumbar pain during physical examination and right lateral flexion. As well, the CT scan of the lumbar spine showed intervertebral disc bulging at L4/5 and left disc protrusion at L5/S1. He disagreed with Dr Muratore that disc bulges were normal for people over 40 and found Dr Maxwell made an error about the side of the spine on which the disc protrusion was located. Finally, he disagreed with both when they opined Mr Nguyen’s pain was not work-related. In his opinion, there were sufficient biomechanical factors in operation at work to cause the symptoms arising from the lumbar apophyseal joints.
25. Dr George Weisz, orthopaedic surgeon, on 10 December 2007, noted diagnosis of a partially torn tendon in the dominant shoulder level and two-level disc pathology in the lumbar spine. In his view all rehabilitative work had been undertaken and impairment was permanent. He found a degree of impairment to both the shoulder and the spine and considered the injuries “plausibly the consequence of a lifting strain and conditions of work at Australia Post”. In a second report written on the same day, Dr Weisz stated, “I agree that the history is consistent with the diagnosed condition”. As well, on 18 March 2008, Dr Weisz reported further after examining the reports of Dr Muratore and Dr Maxwell and the CT scan of 16 November 2006. Dr Weisz was highly critical of their opinions and reporting.
26. Dr Weisz remarked that he was surprised at the non-objective nature of these reports. He expressed surprise at Dr Muratore’s remark that Mr Nguyen was “pain focused” which to him suggested antagonistic assessment. He also observed that Dr Muratore referred to the need for “regular stretch breaks”, which would have been unnecessary if there were no pathology. Even more surprising he found Dr Muratore’s comment that Mr Nguyen “may have early degenerative changes in the acromio-clavicular joint”, without reference to x-rays. This he noted was not acceptable in spinal practice.
27. He opined that Mr Nguyen undoubtedly had a number of non-objective clinical representations and regretted that magnetic resonance imaging had not been undertaken. He pointed out that the CT scan showed one disc bulge that was not significant but also a disc protrusion with nerve root deflection which explained intermittent leg pain of which Mr Nguyen complained. Dr Weisz went on to say that his surprise came with the positive traumatic radiological findings both at shoulder and even more so at lumbar level. He noted that Dr Maxwell did not deny, in relation to the back, that pain is produced not only by compression but also nerve irritation due to chemical released from damaged discs. Dr Weisz was further surprised about Dr Maxwell’s reference to the normality of the radiological findings and attribution of disc protrusion to asymmetry. This was simply not correct in Dr Weisz’s opinion. The shoulder ultrasound he agreed had many false negatives rather than false positive findings but noted the test was not complete. He again lamented the lack of an arthrogram or better still, an MRI of the shoulder. He iterated that his views differed from those of Dr Maxwell and stated that medically, if pathology is found on x-rays, which could potentially explain clinical complaints, the connection must be logically and scientifically accepted. He affirmed his assessment and report of December 2007.
28. When Dr Weisz gave oral evidence to the tribunal, he demonstrated the injury he believed Mr Nguyen continued to suffer to his shoulder. He said his opinion of a work-related injury and continuing impairment was consistent with the radiology available. He said that today the radiology would be different and he would still recommend an MRI if Mr Nguyen were his patient. Dr Muratore did not change his opinions when giving oral evidence and referred to Dr Weisz’s criticisms of his report. Dr Muratore thought that if Mr Nguyen had been injured at work, he had recovered but added that anything was possible.
29. On balance, we prefer the opinion of Dr Weisz, who was voluble, enthusiastic and adamant about his diagnosis and conclusions about Mr Nguyen. Mr Nguyen himself impressed us as a witness of truth and was not prone to exaggeration. While the situation in which Mr Nguyen was working at the time of the incident was abrasive, we are reasonably certain that Mr Nguyen did experience some discomfort when he lifted a large box and carried it to another location. The early examinations of the workplace doctor, Dr Antoun cast no doubt on this. As to whether Mr Nguyen continues to suffer ill effects from the injury is more problematic but we note that there is a tear in his shoulder tendon which is explained in the opinions of several of the doctors whose reports are before us as being consistent with Mr Nguyen’s version of events.
30. Mr Nguyen himself says that he is getting better but we note that several of the doctors who have seen him also comment on possible aggravation arising if he lifts weight over a certain level or above shoulder height. The fact that the injury is improving is not justification for saying there was no injury. We have no difficulty in finding, on balance, that Mr Nguyen has a work-related shoulder injury stemming from the incident on 14 September 2006.
31. As to the back, there was agreement Mr Nguyen continues to have low back symptoms. Dr Browne elicited lumbar pain on the right side on lateral flexion and mild tenderness on palpation of the L2/L3 facet joint, suggesting apophyseal pathology. Dr Maxwell also described discomfort at L3/L4 on the right on lateral flexion. An independent rheumatologist, Dr Liew, noted tenderness to the right lower lumbar region and gluteal region. Dr Muratore reported the complaint of pain in the lower back was relieved by massage.
32. We have two conflicting views concerning the genesis and nature of the low back condition. Dr Muratore, a sports physician, considered the disc bulges on radiology to be degenerative and Dr Maxwell considered the disc protrusions on the CT scan were a normal variant. Both Dr Browne and Dr Weisz disagreed with Drs Muratore and Maxwell. Dr Weisz identified two levels of pathology on the CT scan at L4/L5 and L5/S1 as significant and an explanation for intermittent leg pain radiating down the legs. This was separate from Miss Henderson’s submission that normal straight leg raising as elicited on physical examination was against nerve root irritation and radiculopathy. Dr Weisz said that with the existent symptoms and the traumatic radiological findings the connection must be made and cannot be denied on any objective grounds. Dr Browne disagreed with Dr Muratore’s statement that the disc bulges were variants of normal in people over the age of forty, but rather are likely to represent disc degeneration. Dr Browne noted Dr Muratore made no reference to the possibility of lumbar apophyseal joints being the site of origin of this man’s pain secondary to underlying lumbar disc degenerational prolapse.
33. Dr Liew in his independent report to the local doctor identified the disc protrusion at L5/S1 and annulus bulge at L4/L5 and related Mr Nguyen’s pain and disability to the lifting injury on 14 September 2006, an opinion shared by Dr Browne and Dr Weisz. There was history of previous back problems prior to 2006 apart from 7 and 8 September 2004 when he was placed on two days stress leave. At that time, Dr Law, psychiatrist, reported the major reason for the two days stress leave was adjustment disorder and the back pain complaint was a secondary disorder, in his view was likely to be the result of heightened nervous tension. No imaging or orthopaedic opinion was available at that time.
34. Dr Maxwell is alone in interpreting the lumbar spine pathology as normal, it being a reflection of asymmetry rather than a disc protrusion, a view considered as incorrect by Dr Weisz.
35. Like the shoulder, the ongoing back complaints are minimal but we prefer the opinions of Dr Browne and Dr Weisz (and Dr Liew) to Dr Maxwell and Dr Muratore and on balance, find that Mr Nguyen has a back-related injury stemming from the incident on 14 September 2006.
36. Therefore, we will set aside the reviewable decision dated 25 November 2006 rejecting Mr Nguyen’s claim for compensation for a right shoulder injury and also for injury to his lower back.
37. We have not identified any expenses under sections 16 and 19 and have no submissions before us about the extent of these so have made no findings under these provisions.
costs
38. We note that the applicant seeks costs. As both of his claims have succeeded, the applicant is entitled to costs pursuant to subsection 67(8) of the SRC Act.
decision
39. We set aside the reviewable decision and find Comcare is liable to compensate Mr Nguyen in respect of the injury to his right shoulder and lower back suffered on 14 September 2006, and remit the matter for determination of the amount of compensation payable.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member
Signed: ........................[Sgd]...........................
Jennifer Wong, AssociateDate/s of Hearing: 2-3 April 2008
Date of Decision: 27 May 2008
Counsel for the Applicant: Mr L T GreySolicitor for the Applicant: Mr T Mannah, Carroll & O’Dea Lawyers
Counsel for the Respondent: Miss R M Henderson
Solicitor for the Respondent: Mr G Jones, Graham Jones Lawyers
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