Nino Digiglio and Transpacific Industries Pty Ltd

[2015] AATA 226

[2015] AATA  226

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1351
Re	Nino Digiglio
APPLICANT
And	Transpacific Industries Pty Ltd
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	15 April 2015
Place	Melbourne

The Tribunal affirms the decision under review.

..........................[Sgd]....................................

G. D. Friedman, Senior Member

COMPENSATION – left shoulder, hips, lower back and groin injuries – whether significant contribution by employment – previous injury in 1998 – whether contribution by events that occurred prior to respondent becoming licensee on 1 July 2008   

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A, 5B, 14(1), 16

REASONS FOR DECISION

G. D. Friedman, Senior Member

15 April 2015

1. Nino Digiglio has worked for the respondent since 2007 as a driver of garbage collection vehicles.  On 20 November 2012 he lodged a claim for compensation for L/H shoulder, both hips lower back, groin.  On 12 February 2013 the respondent made a reviewable decision to deny liability for compensation for injury to the left shoulder, both hips, lower back, [knee and] groin.

2. Mr Digiglio seeks review of the decision.

LEGISLATIVE BACKGROUND

1. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:

   (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

   Section 5A of the SRC Act provides:

   5A  Definition of injury

   (1)       In this Act:

   injury means:

   (a)       a disease suffered by the employee; or

   (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment,

   …

   5B  Definition of disease

   (1) In this Act:

   disease means:

   (a) an ailment suffered by an employee; or

   (b) an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a) the duration of the employment;

   (b) the nature of, and particular tasks involved in, the employment;

   (c) any predisposition of the employee to the ailment or aggravation;

   (d) any activities of the employee not related to the employment;

   (e) any other matters affecting the employee’s health.

   This subsection does not limit the matters that may be taken into account.

   (3) In this Act:

   significant degree means a degree that is substantially more than material.

   Section 4(1) of the SRC Act provides:

   …

   aggravation includes acceleration or recurrence.   

   16  Compensation in respect of medical expenses etc.

   (1)        Where an employee suffers an injury, [the respondent] is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

   …

ISSUES

1. The respondent obtained a self-insurer’s licence under the SRC Act commencing on 1 July 2008, so liability for injuries suffered before this date would be covered by the relevant State worker’s compensation scheme. There was no dispute that Mr Digiglio suffered ailments affecting his left shoulder and lower back. The issues before the Tribunal are whether each ailment was a disease. This requires consideration of the following:

• Did Mr Digiglio’s employment with the respondent after 1 July 2008 contribute to a significant degree to his left shoulder condition and to the production, aggravation or acceleration of his lower back condition, with attendant symptoms to his hips, groin and lower limbs?  If so:

• Did the injuries result in incapacity for work?

• What treatment expenses were incurred in respect of the injuries?

DID MR DIGIGLIO’S EMPLOYMENT WITH THE RESPONDENT AFTER 1 JULY 2008 CONTRIBUTE TO A SIGNIFICANT DEGREE TO HIS LEFT SHOULDER CONDITION AND TO HIS LOWER BACK CONDITION WITH ATTENDANT SYMPTOMS TO HIS HIPS, GROIN AND LOWER LIMBS?

1. After leaving school in Year 12 Mr Digiglio worked in a number of manual jobs as a concreter, furnace operator, rigger and storeman, before working for the Melbourne City Council for 9 years as a street-sweeper operator.  In 1994 he commenced with Brambles Cleanaway as a driver/runner involved in garbage collection.  He told the Tribunal that this involved driving a garbage truck about 50 per cent of his time and acting as a runner the other 50 per cent of his time. As a runner he was required to collect garbage bins and lift recycling material manually and bring them to the truck for emptying by means of a hydraulic lifting device known as a lifter.  He explained that the recycling material such as cardboard was often heavy (30 to 50 kilograms), particularly when wet after overnight rain. 

2. Mr Digiglio explained that on 24 November 1998 he suffered a serious crush injury while working for Brambles.  He said that he was standing on a step at the rear of a two-person garbage truck when he dropped a glove. While leaning forward to retrieve it he accidentally activated the lifter, which crushed his thighs and legs. He stated that he was in significant pain and was taken to hospital where he underwent surgery to his thighs and buttocks.  After about six weeks he returned to light duties for one week, then full-time duties, despite intermittent back pain which he treated with anti-inflammatories and analgesics.  Mr Digiglio said that in about 2003 the two-person trucks were replaced by single-operator trucks that lift bins with a side-arm mechanism.

3. In respect of other injuries Mr Digiglio stated that on 23 September 2005 his truck collided with the rear of a petrol tanker and he suffered soreness in his neck and a bruised left shoulder.  He said that Brambles accepted liability for compensation for the left shoulder injury and he continued full-time duties.  Mr Digiglio stated that after 2006 his main duties involved collection of recycling material including bundles of paper and cardboard, commencing with commercial collection which cannot use automatic lifters, and then household bins which were emptied with the assistance of a lifter at the back of the truck.  He said that he often worked for ten hours or more a day, with regular overtime, and the work was physically demanding because it involved repetitive heavy lifting, including overhead lifting of household bins.

4. In late 2009 Mr Digiglio began to feel pain in his left shoulder, particularly when lifting rubbish onto the back of the truck.  He said that the pain gradually became worse, although he continued to work full-time.  He noted that in early March 2010 he was given an ultrasound-guided cortisone injection to treat the pain.  The pain was aggravated on 5 March 2010 when he and a colleague helped the lifter raise a heavy bin and he felt a sharp pain in his shoulder.  He completed an incident report in respect of pulled shoulder joint.  Mr Digiglio stated that in April 2010 he was given a further ultrasound injection but the pain remained.  On 13 October 2010 he completed an incident report in respect of a strained left shoulder caused by lifting heavy commercial cardboard boxes.  In the report he stated that he did not require treatment, and he did not lodge a claim for compensation.  On 14 December 2010 he completed an incident report in respect of a sore left shoulder caused by moving a bin containing pamphlets or booklets.  In the report he stated that he treated himself with an ice pack and an anti-inflammatory, and he did not lodge a claim for compensation.  He ceased work on 31 December 2012.

5. In oral evidence Mr Digiglio emphasised that he had not suffered any injury to the left shoulder in the 1998 crush injury.  He said that he has continued to experience left shoulder pain since he ceased work.  Under cross-examination Mr Digiglio agreed that he had not provided medical evidence about his shoulder injuries when submitting incident reports.  He gave further details of his duties with the respondent and said that although the 1200 litre bins were on wheels and were not lifted manually at the rear of the truck before the lifter was activated, at times (a couple of times a day) the lifter on the older trucks was unable to lift the weight of the large bins, so he and the other driver/runner would push the bins by hand to assist in the lifting process. He also said that on occasions he was required to climb in and out of the truck cabin, up to five hundred times each day, which involved twisting and turning movements because of the height of the cabin.

6. In respect of his lower back condition with symptoms affecting his hips, groin and lower limbs,   Mr Digiglio told the Tribunal that in late 2011 he began to experience pain in his back, hips and groin in addition to his left shoulder, particularly as his work involved bending and lifting.  He said that the back pain was continuous, and by November 2012 the pain had spread to his left leg and was shooting down to his ankle and the top of his foot.  He said that he reported the pain to his supervisor and tried massage and pain medication.  He was sent to a general practitioner, who imposed work restrictions including no more than four hours per day and a 5 kilogram lifting limit.

7. After x-rays and scans Mr Digiglio said that he was diagnosed with a disc prolapse and nerve root compression in his lower back, and tenosynovitis in his biceps.  A neurosurgeon recommended surgery, and in March 2013 he underwent a laminectomy and interbody fusion at L5/S1.  He said that there was some relief of leg pain after the surgery but he continues to take pain medication for back pain.  Mr Digiglio emphasised that he cannot return to heavy driving duties because of his back condition.

8. In oral evidence Mr Digiglio said that the pain radiated from his legs to his ankles, and in November 2012 he was losing balance and falling over because of weakness in his legs.  Under cross-examination he agreed that although he had not suffered significant pain in the crush injury of 1998 he had been prescribed Panadeine Forte, which is normally given for the relief of severe pain.

9. Under cross-examination Mr Digiglio agreed in about February 2013 he told the respondent:

   I indicated that I thought these other injuries might have been contributed to [by] the old crush injury, 14 years is a long time to work with such injuries.  I now feel that the excessive hours, repetitive actions and the physical demands of the job over 18 years would be a more fairer indication of why these current injuries were sustained.  

10. Mr Digiglio agreed that he had been trained in appropriate lifting techniques that involved bending the legs.  In an undated statement to the respondent he said that he had taken anti-inflammatory pain killers, and had attempted treatment such as exercise, ice packs, physiotherapy, massage and chiropractic sessions over the previous 12 years since the crush injury, but he had noticed continuous pain in his hips, shoulder and groin over the preceding twelve months.     

11. Mr P Kierce, orthopaedic surgeon, stated in a report dated 12 June 2014 that he took a history of a left shoulder injury that occurred on September 2005 when Mr Digiglio’s truck collided with the rear of a petrol tanker.  Further incidents occurred in 2009 and 2010, together with aggravation caused by heavy lifting.  The pain was said to be constant, and the cortisone injection to the left shoulder had the effect of worsening the pain.  There had been no treatment or rehabilitation.

12. Mr Kierce said that there was a positive impingement test for the left shoulder, and found tenderness over the anterior aspect of the left shoulder rotator cuff and left acromioclavicular joint.  He concluded that employment with the respondent from 1 July 2008 contributed to a significant degree to the development of the left acromioclavicular joint and the injury to the left shoulder rotator cuff.  Under cross-examination Mr Kierce agreed that he relied on the history given by Mr Digiglio about heavy lifting in reaching his conclusion.     

13. In respect of the lower back condition Mr Kierce noted that laminectomy and fusion surgery of L5/S1 had been carried out in March 2013 as a result of stress on the lumbrosacral joint, which he attributed to the heavy nature of the work involved with collection of recycling material.  He concluded that employment with the respondent from 1 July 2008 contributed to a significant degree to the production of pre-existing lumbar spondylosis with referral of pain in particular to the left lower limbs.  Mr Kierce stated that as a result of the back injury with related symptoms affecting the left leg Mr Digiglio sought medical treatment in November 2012.  He said that Mr Digiglio was suffering referred pain from the lower back to the left buttock and thigh as far as the knee.  Mr Kierce stated that Mr Digiglio will never be fit enough to return to pre-injury duties and may need re-training, but would have difficulty in finding gainful employment at his age.

14. Under cross-examination Mr Kierce agreed that an x-ray of Mr Digiglio’s lumbo-sacral spine in 2004 showed a Grade 1 spondylolisthesis of L4 on S1 and that this was similar to x-rays taken in 2012 showing spondylolisthesis of L5/S1.   

15. Ms A Manolopoulos, orthopaedic surgeon, stated in a report dated 26 February 2014 that she took a history of left shoulder pain since 2010 following an incident at work.  She diagnosed subacromial bursitis and degeneration of the AC joint, with positive testing to impingement.  There was wasting around the shoulder joint.  She noted that Mr Digiglio has had three local anaesthetic and cortisone injections in his shoulder, but none has resulted in lasting relief, although the pain has stabilised.  Ms Manolopoulos suggested local and steroid injection to the AC joint itself as a therapeutic measure and to give guidance for possible surgery.  She concluded that Mr Digiglio first reported pain at work, so the incident in 2010 made a contribution to the signs, symptoms and pathology present in Mr Digiglio’s left shoulder.

16. She concluded that Mr Digiglio has suffered a chronic injury to his left shoulder with unrelenting symptoms.  She said that Mr Digiglio was unable to return to full-time employment in his previous capacity or in any job that involved unrestricted manual activities.

17. In respect of the lower back condition Ms Manolopoulos took a history of the crush injury in 1998 and stated that fusion surgery to the lower back was conducted in March 2013, following which Mr Digiglio reported pain radiating down his left leg.  She said that on examination his symptoms were consistent with residual S1 radiculopathy and evidence of weakness in his spine at L5/S1.  She found evidence of degenerate spondylolisthesis and described his back symptoms as stable.  She said that the crush injury had given Mr Digiglio a predisposition to develop post traumatic degeneration of the spine, and because of the back and leg injuries (as well as the shoulder injury) he was incapable of working in his previous occupation.  Ms Manolopoulos concluded that Mr Digiglio’s spondylolisthesis contributed in part to his symptoms of back pain.

18. Mr M Shannon, orthopaedic surgeon, stated in a report dated 9 August 2013 that he took a history of Mr Digiglio hurting his left shoulder several times in 2009 and 2010, although he said that Mr Digiglio was somewhat vague about the details.  Treatment consisted of a cortisone injection, and the injury improved initially but later worsened with heavy lifting.  Treatment consisted of analgesic and anti-inflammatory medication.  A left shoulder ultrasound in February 2013 showed mild biceps tenosynovitis, but the rotator cuff and subacromial bursa appeared normal and there was a normal range of movement.

19. Mr Shannon concluded that Mr Digiglio had mild bicipital tendonitis in the left shoulder.  He said that the shoulder condition could have been precipitated by repetitive lifting, particularly overhead activity, but has substantially subsided, although it was likely to be recurrent.  He found no significant rotator cuff pathology.

20. Under cross-examination Mr Shannon agreed that Mr Digiglio was engaged in an occupation involving some heavy lifting and that there was no evidence of heavy work performed outside the work environment.  He also agreed that if Mr Digiglio climbed in and out of the truck many times each day there might be a load on his shoulder.  However Mr Shannon emphasised that he could not be sure whether the left shoulder injury was caused by Mr Digiglio’s employment.

21. In respect of the lower back condition Mr Shannon took a history of the crush injury, but said that scans and x-rays taken when Mr Digiglio was admitted to hospital did not identify a fracture.  He also noted that Mr Digiglio reported pain in the left thigh in 2011 without specific incident.  He said that Mr Digiglio had ongoing back pain and some hip and buttock pain.  Mr Shannon diagnosed spondylolisthesis at the lumbrosacral junction due to pars interarticularis defects, which were stress fractures.  

22. Mr Shannon said that scans have not identified an acute disc prolapse or any specific incident or injury in the course of employment.  He concluded that the relationship between the claimed injuries and employment was somewhat vague, although the back condition showed signs of being pre-existing, but may have been caused in the crush injury.  The 1998 incident was not the cause of subsequent spondylolisthesis which probably occurred as a result of a stress fracture suffered during adolescent or subsequent years. Recovery from fusion surgery was not yet complete, and Mr Digiglio may require ongoing medication and possibly physiotherapy.  Mr Shannon found no significant ongoing injury to the right hip, right groin or left knee.

Consideration

1. In determining whether Mr Digiglio’s employment with the respondent made a significant contribution to the left shoulder condition and back conditions, the Tribunal takes into account the provisions of s 5B(2) of the SRC Act. In respect of s 5B(2)(a) (the duration of the employment) the Tribunal notes that Mr Digiglio had been performing similar duties since commencing with Brambles in 1994, and only the period after 1 July 2008 is relevant to the Tribunal’s determination.

2. In respect of s 5B(2)(b) (the nature of, and particular tasks involved in, the employment) the Tribunal accepts that Mr Digiglio was engaged in an occupation that at times involved heavy lifting and some overhead lifting because the garbage trucks operated by Mr Digiglio were mainly two-person vehicles which did not always perform satisfactorily and sometimes required some manual assistance in lifting bins.  In addition the nature of the duties included manual handing of recyclable material such as heavy bundles of paper and cardboard.  However this was not the situation in all cases (estimated by Mr Digiglio to be about twice each day), because every bin had wheels to assist in the process of positioning the bin against the mechanism at the rear of the truck, after which the hydraulic lifter raised the bin and emptied it into the truck’s hopper and removed the empty bin for manual re-positioning on the kerb using the wheels.

3. The Tribunal also accepts that Mr Digiglio was often required to climb in and out of the cabin of the truck a number of times each day, although his estimate of five hundred times on some days seems excessive. Further, Mr Digiglio spent significant periods driving the truck (or as a passenger when acting as a runner) to and from the depot or recycling point, during which there was no lifting, bending or climbing.

1. In respect of s 5B(2)(c) (any predisposition of the employee to the ailment or aggravation) the Tribunal takes into account the evidence from Ms Manolopoulos that the crush injury has given Mr Digiglio a predisposition to develop post traumatic degeneration of the spine. Section 5B(2)(d) (any activities of the employee not related to the employment) is not relevant to the left shoulder condition.    

2. In respect of s 5B(2)(e) (any other matters affecting the employee’s health) the Tribunal notes that Mr Digiglio first complained of left shoulder pain in 2005, which was three years before the commencement of the licence in 2008, although liability was accepted by Brambles for a bruised left shoulder.  Mr Digiglio has had no ongoing treatment.  The Tribunal notes his evidence about symptoms of pain in his left shoulder from 2009 and ultimately cortisone injections in the shoulder in 2010.  The Tribunal also notes that Mr Digiglio told the respondent that since the crush injury he had undertaken various treatment options such as anti-inflammatories, exercise, ice packs, physiotherapy and chiropractic massage, suggesting that the effect of the crush injuries and the consequent back condition had been present before 2008.  This is consistent with the evidence from Ms Manolopoulos, who said that the crush injury has given Mr Digiglio a predisposition to develop post traumatic degeneration of the spine and culminated in the fusion surgery, and that his spondylolisthesis has contributed in part to his back pain.   

3. The Tribunal takes into account Mr Kierce’s evidence that he relied on the history given by Mr Digiglio regarding the nature of the work and the specific accounts of pain in the left shoulder and the lower back.  He also agreed that an x-ray of Mr Digiglio’s lumbo-sacral spine in 2004 showing signs of spondylolisthesis was similar to x-rays taken in 2012, which the Tribunal considers links the back condition to the crush injury.  The Tribunal takes into account the evidence from Mr Shannon who concluded any relationship between employment and the shoulder and back conditions was vague.

4. On all the material the Tribunal finds on the balance of probabilities that the shoulder and back conditions may have been contributed to, to some degree, on and after 1 July 2008 by Mr Digiglio’s employment with the respondent, but any contribution is not conclusive and falls short of the required degree of significant. Therefore, each condition was not a disease for the purposes of the SRC Act and does not constitute an injury. Consequently Mr Digiglio cannot succeed in his application.

DECISION

1. The Tribunal affirms the decision under review.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

........................[sgd]................................................

Associate

Dated 15 April 2015

Dates of hearing	8 and 9 April 2015
Counsel for the Applicant	Mr M Carey
Solicitors for the Applicant	Nowicki Carbone
Counsel for the Respondent	Ms C Dowsett
Solicitors for the Respondent	Sparke Helmore