O'Brien and Comcare
[2003] AATA 795
•14 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 795
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1055
GENERAL ADMINISTRATIVE DIVISION ) Re ROWAN O'BRIEN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Member Date14 August 2003
PlaceSydney
Decision The Tribunal affirms the decision under review. …………………………………
Ms N Bell,
Member
CATCHWORDS
COMCARE – Workers’ Compensation – ankle injury – whether injury pre-existing – whether injury aggravated by work activities – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, sections 4, 14, 16, 19
REASONS FOR DECISION
14 August 2003 Ms N Bell, Member 1. This is an application by Mr Rowan O’Brien (“the Applicant”) for review of a decision dated 27 May 2002 by Comcare (“the Respondent”) that it was not liable to pay compensation to the Applicant in respect of an aggravation of his right ankle sprain sustained on 4 June 2001. The Applicant applied for review of that decision to this Tribunal.
2. At the hearing before the Tribunal on 24 June 2003, the Applicant was represented by Mr Margerison, a Union Organiser and the Respondent was represented by Mr Brendon Kelly, Counsel. The Applicant gave oral evidence to the Tribunal at the hearing.
3. The Tribunal had before it the following documentary evidence:
Exhibit
Description
Date
T1-53 pp1-126
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Return to Work Plan
18 October 2001
A2
Report of Dr Billett
13 June 2002
A3
Bundle of documents including 20 September 2001 medical certificate
A4
Documents plus letter from Applicant
13 November 2001
A5
Documents attached to letter
17 January 2003
A6
Reference from R Cameron
25 June 1982
A7
Certificate of Service, R Daley
9 February 1982
A8
Reference by B Frkic
2 June 1997
R1
Respondent’s Statement of Facts and Contentions
4 February 2002
R2
Report Dr Caldwell
13 December 2002
R3
Report Dr R Head
23 May 2001
R4
Extracts from MultiCare Family Medical Centre
R5
Medical Report Dr Billett
2 October 2001
R6
Medical report Wije-Tunga
26 August 2002
R7
Work Performance Report
18 June 2001
R8
CRS Report
7 November 2001
R9
Medical report of Dr Kong
16 July 2001
R10
Medical report of Dr Kong
11 March 2002
BACKGROUND
4. The Applicant was born on 25 July 1962 and was employed by the Department of Defence as an Administrative Services Officer. Some of his duties involved management of computer resources.
5. It is not in dispute that the Applicant sustained an injury to his right ankle, at his home on 21 May 2001. The Applicant initially claimed compensation in relation to this incident but withdrew the claim. He later claimed an aggravation to that injury on 4 June 2001 when he carried a computer monitor up and down stairs as directed by his supervisor.
ISSUES AND LEGISLATION
6. Under s14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), the Respondent is liable to pay compensation “in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.” Section 4(1) of the Act defines injury as:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
7. Section 16(1) of the Act provides for payment of compensation in respect of medical expenses:
“Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare 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.”
8. Section 19 of the Act provides for payment of weekly compensation.
9. The issue to be considered by the Tribunal is whether, by carrying a computer monitor on 4 June 2001, the Applicant aggravated his earlier right ankle injury.
APPLICANT’S EVIDENCE
10. The Applicant told the Tribunal that, when leaving his home on 21 May 2001, he twisted his right ankle going down the stairs. He added that he was still within the compound of his residence. He returned to work on 4 June 2001 and provided a medical certificate and an x-ray report to his supervisor, Mr Ripple, and to his immediate supervisor, Mr Batchelor.
11. The Applicant said that on 4 June 2001 he was directed by Mr Batchelor to carry a monitor about 100 metres between two buildings, up two flights of stairs and down two flights of stairs. He carried the monitor in his arms and did not use a trolley. The Applicant said that relocating computer equipment was a large part of his job. He said that in the afternoon of that day, following moving the computer monitor, he felt a dull, severe ache in his right ankle.
12. The Applicant said that on the following day he had a discussion with a co-worker named Kay Baker in which he joked about having played first grade football on the weekend. Ms Baker worked in the switchroom and he had known her for slightly more than a year. The Applicant was referred to document number T18, a Statutory Declaration by Ms Baker. In this document, Ms Baker states that the Applicant told her he had slipped down his steps at home over the weekend. The Applicant disputed the date and stated that he had spoken to Ms Baker on the 5 June 2001, rather than on the 4 June 2001 as stated in her declaration. He also denied having told her that he had injured his foot at home over the weekend.
13. The Applicant was also referred to document T17, a Statutory Declaration by Mr Peter Batchelor in which he states that the Applicant told him, on 4 June 2001, that he had injured his ankle at home and not on his way to work. The Applicant said that Mr Batchelor was aware of his original injury on 21 May 2001.
14. The Applicant said that he found that his work continued to aggravate his ankle injury with a great deal of walking up and down steps. He said that apart from a graduated ‘return to work’ program lasting approximately two weeks he had to do all of his usual duties. He said that he wanted a desk job.
15. The Applicant said that he was fined two hundred dollars for failing to adhere to a ‘return to work’ program. He said that his reasons for this failure were that he had had a mental breakdown and was in hospital and so he did not receive correspondence relating to the requirement to return to work or participate in the program. He continued to say that even if he had received that correspondence, given his breakdown, he would have been unable to attend.
16. The Applicant said that he attended the Commonwealth Rehabilitation Service to see if he could be moved to his former department, the Australian Bureau of Statistics. He said that the Department of Defence agreed to provide him with an ankle brace and physio, but that never occurred.
17. The Applicant said that the Department of Defence terminated his employment because, in August 2002, he failed to attend workplace meetings for the reason that he had had a mental breakdown. The Applicant said that he made an application for unfair dismissal and reached a settlement with the Department of Defence on that matter.
18. In answer to a question from the Tribunal, the Applicant said that the computer monitor that he carried on 4 June 2001 weighed somewhere between ten and 20 kilograms. He said that he was accustomed to moving computer monitors, but was surprised that he had been asked to do so on the first day he returned back to work after his injury in May 2001. The Applicant said that he felt no pain when carrying the monitor at approximately 9.30 in the morning, but his ankle began to ache in the afternoon.
19. In cross-examination, the Applicant said that, at the time he twisted his ankle on 21 May 2001, he was surprised that his ankle was not fractured because of the degree of pain and swelling he experienced. He said that he saw his general practitioner on 21 May 2001 and obtained a certificate for two days. He had an x-ray on 23 May 2001 and saw his general practitioner again on 27 May 2001, 30 May 2001 and 1 June 2001.
20. The Applicant said that he had two weeks off work, and agreed that his injury was a significant one but had stopped aching by the time he returned to work on 4 June 2001.
21. The Applicant said that he did not report the pain he felt in the afternoon of 4 June 2001, notwithstanding that his supervisor Mr Batchelor was at the workplace. He agreed that on 4 June 2001 he went back to his general practitioner and had an ultrasound of his right ankle. The Applicant also agreed that he saw his general practitioner again on 5 June 2001, and his attention was drawn to the clinical notes of the Multicare Family Medical Centre (Exhibit R4) which records an improving range of movement in the ankle.
22. The Applicant agreed that he then saw Dr Kong of Health Services Australia on 16 July 2001, and informed him about his fall on 21 May 2001, but could not recall whether he mentioned carrying a monitor on 4 June 2001.
23. The Applicant said that he did not claim in relation to his injury on 21 May 2001 because he was off work for only two weeks, but after the aggravation occurred on 4 June 2001, his ankle got much worse.
24. The Applicant agreed in cross-examination that he had injured his ankle in about 1982 and had had weather related symptoms for one or two years and then no further problems until May 2001.
25. It was put to the Applicant that a work performance review dealing with the Applicant’s efficiency, dated 18 June 2001, recorded that the Applicant had attended work for a total of only 32 days in the period 1 January 2001 to 18 June 2001 and that he had had 39 days sick leave and 43 days annual leave. The Applicant said that in that period he had two months leave without pay in order to complete a course.
26. The Applicant was also referred to document T45, a ‘return to work’ program with a commencement date of 19 November 2001. The Applicant agreed that the duties outlined on the plan were limited and included a number of restrictions. He also agreed that the plan was well within his capabilities. He complained, however, that the actual work location had a number of stairs which caused him difficulty. The Applicant stated that he was unhappy with his position at the Department of Defence, and said that was because it was not helping his ankle. He agreed that he had made a request of the Commonwealth Rehabilitation Service that he be placed with his former Department, the Australian Bureau of Statistics. He said that he considered that the Victoria Barracks, where he worked, was a hostile work environment and he had requested that a union representative be present during his work place assessment by the Commonwealth Rehabilitation Service. The Applicant agreed that he was not happy with the position of his workstation because it was at the front, near reception and he would be asked for things and have to get up and down quite often. He also agreed that he refused to work at this workstation.
27. The Applicant stated that he had drawn up his own work plan which involved being moved to the Australian Bureau of Statistics. He said that he had been invited by the Commonwealth Rehabilitation Service to have some input into the development of a work plan.
28. The Applicant conceded that he had, on at least one occasion, walked from Central Station to the Victoria Barracks on his way to work. He also agreed that he had returned to full time hours and duties by 19 February 2002 but did not agree that he was fit for those duties.
29. In re-examination, the Applicant said that in August 2001 the light duties he was undertaking were simply shorter hours and there were no significant restrictions to the duties.
MEDICAL EVIDENCE
30. Dr P Endrey-Walder gave the following opinion in his report of 12 November 2001 (T20):
“Mr O’Brien suffered a significant injury to his right ankle in a fall down some stairs at his home on his way to work in May this year.
He lost a couple of weeks from work before returning to the workplace where, at the end of his first day back at work, he was again in a lot of pain which he described as a “dull ache”.. He certainly reported having to carry a monitor over a short distance and up a couple of flights of stairs on that day, an activity not recommended after a couple of weeks off with ankle damage.
In the weeks to come he was literally “on and off” at work, having difficulty ambulating and particularly being troubled by negotiating stairs to an extent that he decided to sell his home unit which is on the fourth floor of a building.
I believe that Mr O’Brien remains with a 25% permanent loss of efficient use of the right leg below the knee as a consequence of, what I expect to be, some talar dome damage at the right ankle.
Apart from a couple of x-rays of the ankle this gentleman has not had any meaningful investigation of the right ankle, and while he may indeed be suffering from no more than a tear of his lateral collateral ligament complex, it is my belief that there is more to the pathology than that.
May I now recommend that a bone scan be performed and this should be followed by an MRI scan of the ankle.
This gentleman’s long term prognosis in relation to his damaged, and later much aggravated, right ankle will depend a great deal on whether one can identify bony or joint injury as opposed to ligamentous damage.
I believe that he continues to remain fit for his current part-time duties, and one would certainly support his quest to be relocated into a work environment in which there is no significant negotiation of stairs or uneven ground, in which situation he may be able to increase his working hours more rapidly.”
31. Dr Endrey-Walder took a history from the Applicant which indicated that, approximately 20 years ago, while a TAFE student, he fell down some stairs, hurting his right ankle but that after a couple of years the symptoms resolved.
32. Dr Derrick Billett, Consultant Orthopaedic Surgeon, in a report dated 13 June 2002, to Dr Dale Kong at Health Services Australia (Exhibit A2) said:
“I consider that his prognosis is guarded.
In relation to employment, it should be noted that with the commencement of his problems on 21 May 2001, Mr O’Brien was absent from work for a period of time, but it was difficult to determine when he returned to work. At that stage he was requested to carry a large monitor up stairs and this aggravated his right ankle. Mr O’Brien returned to work for approximately one week in August 2001, working for four hours per day, five days per week, undertaking computer duties. However, it appears that there were problems between Mr O’Brien and his supervisor and he then discontinued working.
I consider that Mr O”Brien is fit to undertake administrative duties, operating a computer. However he should limit negotiating stairs, kneeling and squatting.”
33. Dr Bruce Caldwell, Orthopaedic Surgeon, in a report to the Respondent dated 13 December 2002 (Exhibit R2), said:
“GENERAL HEALTH: He generally enjoys good health, though he has had removal of his spleen following a motorbike accident some years ago. His current medications include Ventolin, Vioxx and an anti-psychotic agent he is taking for mild schizophrenia. He says he is allergic to Penicillin.
He notes that he has had a number of sprains prior to this alleged injury. He claims that he was having no real problems.
HISTORY OF INJURY + INITIAL TREATMENT: On the 21st May 2000 he lost his rhythm while running down some stairs at the complex where he lives and sustained a twisting inversion injury to his right ankle. He said he was on his way to work.
…
He attended Dr McKenzie at the Ashfield Medical Centre on the following day and x-rays were considered normal. No fracture was seen.
He was given no medications, no crutches, no bandages but had two weeks off work.
I have reviewed these early x-rays and they do show there is avulsion fragments at the tip of the lateral malleolus, which appear to be acute injuries. There are some ossicles and changes in the medial malleolus, which are undoubtedly old. This is related to his previous ankle sprains.
These changes on the medial side indicate that he has had previous high grade injury to his lateral ligaments. He has injuries to the deltoid ligament on the medial side which represent a much higher level of injury than the usual ankle sprain.
He returned to work some two weeks after this injury but continued to have pain in this ankle.
On the 4th June 2001 he was required to carry a monitor from buildings and claims this is the cause of all his problems. While this simple carrying may have aggravated the pain in his ankle at that time, it of course has nothing to do with the sprain or long term disability. These monitors are generally <10 kg in weight and the simple carrying of a monitor does not cause long term ankle disability.
Since that time he has undergone a number of further investigations but the only treatment has been physiotherapy.
On the 11th December 2001 he underwent a bone scan which showed some mild changes in the right ankle but actually quite a hot talonavicular joint in the left foot.
On the 21st May 2002 he underwent MRI scan which confirmed the previous tear of the anterior talofibular ligament and some avulsions fragments at the tip of the fibular. The calcaneofibular ligament was intact but I doubt this due to the fracture fragments. The deltoid ligament was thickened but otherwise the ankle was quite normal and specifically there was no fractures and no talar dome lesions. There was no odema present in the ankle and this was only because it was a chronic injury and the acute injury has settled.
…
Essentially this man sustained a major sprain of his ankle in mid Yr 2001. I think these findings are present on his early x-ray and are consistent with his early injuries and pain.
However, the circumstances of this injury are under dispute. I don’t believe that the subsequent carrying of a monitor or his work practices had anything at all to do with the persistence of his pain. It would all relate to the original sprain.”
34. Exhibit R4 comprises excerpts from the Clinical Notes of the Multicare Family Medical Centre. The notes commence on 21 May 2001, when it is noted that the Applicant sprained his right ankle coming down the steps at home, that he had mild swelling and that his ankle movement was OK. On 23 May 2001 and 27 May 2001, the notes indicate that the ankle was still sore but that x-rays revealed no fracture. The only treatment recommended is rest, ice, lineament and Disprin. An attendance note on 4 June 2001 indicates that the Applicant was referred for an ultrasound. A note dated 5 June 2001 indicates that the Applicant felt an ache in his right ankle but had an improving range of movement. On neither 4 June 2001 or 5 June 2001 is the incident of carrying the monitor mentioned. On 7 June 2001, the notes indicate that the Applicant’s right ankle was still painful and swollen. Following entries indicate treatment with Vioxx and, on 25 June 2001, a referral to an orthopaedic surgeon.
35. Exhibit R5 is a further report from Dr Derrick Billett dated 2 October 2001. That report details only two injuries to the Applicant’s right ankle: a stumble down stairs some 20 years ago, and the stumble downstairs on 21 May 2001. However, in his report of the history given by the Applicant, he notes that the Applicant said that he was requested to carry a large monitor upstairs and that the Applicant considered that this aggravated his right ankle. When asked for an evaluation of the Applicant’s medical capacity for his usual work and any particular modifications required in his duties, Dr. Billett said:
“Mr O’Brien should limit prolonged standing, walking, negotiating stairs and squatting or kneeling. …”
36. Exhibit R6 is the Report of Dr L Wije-Tunga, orthopaedic surgeon, dated 26 August 2002. In that report Dr Wije-Tunga said:
“He complains of painful instability of his right ankle after a fall down the stairs 20 years ago. He said he has had intermittent symptoms since then.
He said he had a further fall a year ago, 21 May 2001 down the stairs of a building complex. He again injured his right ankle and said he had treatment by a Dr McKenzie. He said he had an x-ray done which he had not brought today. He said there was no fracture but they reported an effusion. He went back to work after a fortnight.
He said he aggravated his right ankle carrying a heavy monitor.”
37. Exhibits R9 and R10 are the reports of Dr Dale Kong, Health Services Australia Limited, dated 16 July 2001 and 11 March 2002. In his report of fitness for duty, dated 16 July 2001, Dr Kong said:
“HISTORY:
Mr O’Brien is a 38 years old man who stated that he had been employed with the Department of Defence for the past four years. His present duties include stocktaking assets and controlling the receipt, dispatch and repair of equipment. Most of his day is spent entering data on a computer and using the telephone. He is based at Victoria Barracks where he works a standard day, Monday-Friday, starting no later than 8.45am. He expressed some dissatisfaction with his position as he felt that there were no career prospects and “they won’t give me any training”. Educationally, Mr O’Brien stated that he completed the equivalent of his Higher School Certificate in Victoria. He subsequently completed an accounting diploma at TAFE and spent about 10 years working in accounts. He is presently completing a TAFE Certificate in Information Technology (Network Administration). He would prefer to work in an IT related area.
It was difficult to obtain a clear history from Mr O’Brien as many of his responses appeared evasive and he appeared reluctant to discuss his duties and hours of duty in any detail. I note from the various workplace reports that Mr O’Brien has been noted to be absent from work on 40 occasions (for sick leave) during 2001 together with 43 days annual leave and 5 public holidays. It is noted that except for one period in January, Mr O’Brien “has not worked greater than five days straight for the entire years”. In addition, comments were also noted regarding a perceived lack of motivation in performance of his duties.
Mr O’Brien stated that he disagreed with many of the comments expressed by his supervisor. Most of his sickness absences were due to an injured right ankle. In addition, he stated that he was resistant to some of the changes in the workplace as he felt that management were trying to change his current position into a storeperson’s role and take away any IT component.
In terms of his sick leave absences:
1. Right ankle: Mr O’Brien stated that he lost his balance walking down some steps on 21 May 2001. He said that he fell down about 6 steps and twisted the right ankle. He had difficult weight bearing on the ankle following the fall. He attended his treating doctor and subsequent x-rays of the ankle did not reveal any evidence of fracture. He states that he was also reviewed by an orthopaedic surgeon and no surgery was recommended at the time. He said that he was diagnosed with torn ligaments in the ankle. At present his treatment comprises physiotherapy, ankle exercises and Disprin for pain (he takes about 4 Disprin tablets a day). Mr O’Brien felt that his ankle was improving. He can walk independently, though with a limp. He still notes some swelling in the ankle. He has been back at work for a short period, though is off work at present due to the ankle discomfort.”
38. In his report of 11 March 2002, Dr Kong said:
“I spoke with Mr O’Brien’s treating doctor (Dr Chan, ph: 9798 6999) today. He stated that Mr O’Brien continued to complain of right ankle pain and needed to walk with a walking stick. He was uncertain about the nature of the pain, though he felt that it was most likely due to a ligamentous injury. Though Mr O’Brien has been seen by two specialists, both were for medicolegal purposes, rather than an assessment for treatment. He was thinking about referring Mr O’Brien to an ankle specialist.
He felt that Mr O’Brien’s ankle condition was about as good as it was likely to be in the foreseeable future. However he found it difficult to estimate Mr O’Brien’s level of disability as he attended the surgery infrequently – the last review was about a month ago. Dr Chan was unaware that Mr O’Brien would need to walk some 1.5km to work from the train station.
I note the following specialist reports:
· Dr Billett (2 October 2001): This indicated that Mr O’Brien suffered a ligamentous injury to the right ankle and would be fit for duties not requiring prolonged weight bearing or squatting. He felt that Mr O’Brien would be able to perform sedentary duties on a part time basis.
· Dr Endrey-Walder (12 November 2001): This indicated that Mr O’Brien sustained at least ligamentous injury to the right ankle and would be fit for part time duties not requiring prolonged weight bearing or managing a lot of steps.
Assessment:
Mr O’Brien has a chronic right ankle condition which continues to cause him discomfort. The nature of the condition remains unclear and appears to require further investigation and treatment. Both specialist reports have recommended an MRI scan.
At present, I note that Mr O’Brien is coping with work at 6 hours a day and walks some 1.5km from the train station to work. It is likely that he would be fit for full time duties within the restrictions I have indicated in my earlier report of 16 July 2001, however as the nature of Mr O’Brien’s condition remains unclear I would recommend that the MRI scan be performed to exclude any significant injury prior to an upgrade to his hours.
39. A letter from Dr P Endrey-Walder, dated 12 November 2001, (Exhibit A4) states:
“I believe that one tenth of this gentleman’s loss at the right ankle is due to pre-existing damage going back 20 years.
Six tenths is due to the injury suffered when he fell down the stairs at his home.
Three tenths would be due to current and on-going aggravation while at the Department of Defence in the weeks following the injury.”
40. Dr Kong’s report of 6 June 2002 makes no new observations.
OTHER EVIDENCE
41. Exhibit R8 is the report by Meaghan Fry, senior rehabilitation consultant, Commonwealth Rehabilitation Services Australia, dated 7 November 2001. This report of the Applicant’s Workplace Assessment included the following discussion:
“Mr O’Brien continues to lack understanding of the rehabilitation process and is unable to separate industrial relations issues from those related to his right ankle injury. This has resulted in complicating his return to work.
Mr O’Brien presented as unmotivated to return to work and presented new barriers at each step of the rehabilitation process including:
· Initially refusing to attend a Workplace Assessment the Victoria Barracks, his pre-injury place of work advising that he was only happy for a Workplace Assessment to be conducted at the Australian Bureau of Statistics as he believed that is where he would have been working if he had not injured his ankle.
· Mr O’Brien was evasive in his response to most questions during the Initial Interview and the Workplace Assessment.
· Providing unclear answers relating to his Return to Work and ankle injury.
· Reporting that he was not happy to work at his usual workstation reporting that he would be uncomfortable being the first staff member people entering the office would see. Mr O’Brien reported that he believed this would require him to get out of his chair to retrieve items for people entering the office. Mr O’Brien continued to refuse to sit at this workstation even after Lt Deans advised that he would not be required to access any equipment as he would arrange for other staff members to perform this duty.”
42. The report also says:
The following inconsistencies were note during the initial interview and the Workplace Assessment
1.“Mr O’Brien reported that he walked from Central Train Station to the Victoria Barracks on the morning of the Workplace Assessment reporting that it took him 50 minutes. (note it is approximately 3km from the station to the Barracks). During the workplace assessment Mr O’Brien reported that he need [sic] to take a break after walking approximately 20 metres. Mr O’Brien reported that he intended to walk back to the train station following his workday however reported that he was unfit to walk around the Barracks during his shift.
43. The report also noted that the Applicant reported aggravation of his symptoms on prolonged standing, carrying up to 15 kilograms and walking long distances.
44. Exhibit R7 is a Work Performance Report, dated 18 June 2001, in which the Applicant’s various absences from work are reported. The report says:
“… This year Mr O’Brien has attended work a total of 32 days. He has had 39 days sick leave, 43 days annual leave (the majority of which is at half pay) and five public holidays. With the exception of one ten-day period in January, Mr O’Brien has not worked greater than five days straight for the entire year. This has made it impossible for him to complete the majority of his tasks or provide any continuity in his position.”
45. The statutory declaration of Peter Alan Batchelor, dated 5 October 2001, (T17) states:
“On the morning of 4 June 2001 I spoke to Mr Rowan O’Brien, an employee of my section, regarding a prior period of abscence [sic]. Mr O’Brien informed me that he had injured his ankle at home. I inquired as to whether he was going to or from work at the time and he replied that he was not.
Later in the morning, I was with Mr O’Brien when he was approached by Mrs Kay Baker of the Victoria Barracks switch. She also asked him what had happened and his response was the same. She then said to him words to the effect of that it was a pity that he couldn’t claim compensation.”
46. Document T18 is the statutory declaration of K Baker dated 5 October 2001. She states:
“On Tuesday morning 4/6/01 Peter Batchelor and myself were outside at morning tea when we were joined by Rowan O’Brien. I noticed Rowan was limping and asked him what had he done. His reply was that he had slipped down his steps at home over the weekend. Jokingly I said it was a pity he hadn’t done it on the way to or from work so that he could claim compo. At this comment the three of us had a bit of a laugh.”
47. Finally, exhibits A6, A7 and A8 are references and statements of service, dated 25 June 1982, 9 February 1982 and 2 June 1997 respectively, relating to the Applicant’s employment at the Australian Bureau of Statistics.
SUBMISSIONS
48. Mr Margerison, for the Applicant, submitted that the Applicant had been made to carry a computer monitor weighing 20kg up and down two flights of stairs, and that this had aggravated his previous ankle injury. He referred the Tribunal to the report of Ms Fry, Senior Rehabilitation Consultant, in which she noted that the most significant postures and movements which would aggravate the Applicant’s condition were (Exhibit R8):
·Prolonged standing;
·Carrying up to 15kg; and
·Walking long distances.
49. The Tribunal noted, however, that the reason given by Ms Fry for this view was that the Applicant had reported aggravation of his symptoms with these activities.
50. Mr Kelly, for the Respondent, noted that the Applicant conceded that the Respondent has no liability for the incident on 21 May 2001. In relation to the Applicant having carried a computer monitor on the day of his return to work, Mr Kelly noted that there is no contemporaneous record of that incident, and that the first mention of it is in Dr Billet’s report in October 2001. It is not mentioned in either the statutory declaration of the Applicant’s supervisor or his colleague, and there is no mention of the incident by the Applicant’s general practitioner in entries for the Applicant’s attendances on 4 June and 6 June 2001. Mr Kelly also noted that the Applicant’s evidence was that he felt no pain when he was carrying the monitor. He submitted that the Applicant’s reason for claiming in relation to having carried the monitor was that he had attempted to lodge a claim in September 2001, in relation to his fall downstairs on 21 May 2001, and found that it would not succeed, given that he sustained the injury whilst at home. Mr Kelly submitted that the Applicant consequently lodged a further claim, this time concerning carrying the monitor in October 2001.
51. Mr Kelly also submitted that the Applicant was reluctant to co-operate with any rehabilitation plan, being described as evasive by Dr Kong, and fit for reasonable duties by all his treating medical practitioners. Mr Kelly noted that the Applicant had been fined for failing to comply with his ‘return to work’ program.
CONSIDERATION
52. The combined effect of sections 14 and 4(1) of the Act is that the Respondent is liable to pay compensation to the Applicant if, in the course of his employment, he suffered an aggravation of an injury.
53. The Tribunal accepts the Applicant’s evidence that he was required to carry a computer monitor up and down two flights of stairs on 4 June 2001, the day he returned to work after injuring his ankle on 21 May 2001. However, the Tribunal notes that the Applicant did not report the incident or the pain he says he suffered later in the day, to his supervisor or to his general practitioner, whom he attended on that day and two days later. Nor did the Applicant, in his discussion with his co-worker the following day, mention carrying the monitor, even though he discussed his injured ankle.
54. The Tribunal is mindful that the Applicant wished to be moved to his former employer, the Australian Bureau of Statistics. His stated reason was that he considered the Victoria Barracks to be a “hostile workplace” and that the premises contained too many stairs which had a bad effect on his ankle.
55. The Tribunal also notes the opinion of Dr Endrey-Walder (T20) that carrying a monitor up stairs is not recommended after two weeks off with ankle damage but notes, as well, Dr Enrey-Walder’s comment that the Applicant had difficulty with the stairs at his home which was a unit on the fourth floor of a building. Dr Endrey-Walder described the Applicant’s ankle as “much aggravated” but did not describe the process of aggravation in any detail.
56. Dr Billet also stated that carrying the computer monitor aggravated the Applicant’s ankle and recommended that he should limit negotiating stairs, kneeling and squatting (Exhibit A2). He did not elaborate on the way in which the aggravation operated.
57. Dr Caldwell was of the view that carrying the monitor may have aggravated the pain in the Applicant’s ankle at the time, but has nothing to do with his long term disability (Exhibit R2). He was of the same opinion in relation to the Applicant’s work conditions generally. Rather, he was of the view that the Applicant’s previous acute ankle injuries, including sprains prior to the fall on 21 May 2001, are the cause of his persistent pain. He pointed to the absence of odema in the Applicant’s ankle, and was of the view that this indicated that there remained only a chronic injury and that the acute injury had settled. Dr Caldwell was also of the view that the Applicant’s early x-rays show acute injuries to the Applicant’s ankle, some of which are quite old and some of which involve a “much higher level of injury than the usual ankle sprain”.
58. The clinical notes of the Multicare Family Medical Centre (Exhibit R4) record no mention by the Applicant of carrying the monitor, and on 5 June an improving range of movement is noted. On 7 June, the notes indicate that the Applicant’s ankle was painful and swollen.
59. Dr Kong’s report (Exhibit R5) makes no comment on the role played by carrying the monitor, and notes that the Applicant walks some 1.5 kilometres from the train station to work. However, the Applicant denied this and said he had only done so on one occasion.
60. The Tribunal is also mindful of the report of Ms Fry (Exhibit R8), which describes the Applicant as unmotivated to return to work and unco-operative with the rehabilitation process. He was also described as evasive and intent on returning to his former employer. Ms Fry reported that the Applicant had walked to work from the train station (approximately three kilometres) on the day that his workplace assessment was carried out, and had said he intended to walk back to the station at the end of the day. However, during the workplace assessment he maintained he was unfit to walk around the barracks.
61. The report of Ms Fry details a proposed Graded Return to Work Program. A four week program commenced on 19 November 2001, involving restrictions on carrying and walking on stairs and initial restriction of hours of work (Exhibit A4). Dr Kong of Health Services Australia had recommended, in July 2001, that the Applicant work four hours per day for two weeks, six hours per day for two weeks and then return to full time work and that, during the graduated return to work period, he should not walk or stand for more than 15 minutes in any one hour period.
62. Dr Billet was of the view, in October 2001, that the Applicant was fit to undertake sedentary, at least part time, duties. Dr Endrey-Walder, in his report of November 2001, considered the Applicant to be fit for his part time duties current at that time.
63. These matters lead the Tribunal to conclude that, while the Applicant’s carrying of the computer monitor up and downstairs may have temporarily aggravated his ankle pain, his persistent pain is due to his sprain injury on 21 May 2001 and due to his previous ankle injuries. In this regard, the Tribunal prefers the evidence of Dr Caldwell who discussed in detail the effects of the Applicant’s acute injuries and of carrying the monitor.
64. The Tribunal is also satisfied that reasonable and appropriate work was made available to the Applicant by his employer after his injury, this work being in accordance with the recommendations and opinions of medical practitioners including Drs Kong, Billet and Endrey-Walder.
65. The Tribunal is satisfied that the Respondent is not liable to pay compensation to the Applicant in respect of his ankle condition.
DECISION
66. The Tribunal affirms the decision under review.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed:C. Gregson
Associate
Date/s of Hearing 24 June 2003
Date of Decision 14 August 2003
Union Organiser for Applicant Mr D Margerison
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms M Taplin
0
0
0