Petrevski and Australian Postal Corporation
[2003] AATA 782
•8 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 782
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/528
GENERAL ADMINISTRATIVE DIVISION
Re: DAVID PETREVSKI
Applicant
And: AUSTRALIAN POSTAL
CORPORATION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 8 August 2003
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and in substitution decides that the applicant continues to be incapacitated for work. The incapacity arises from the disc prolapse caused, accelerated and aggravated by injury sustained in the course of his employment in January 2001. The applicant is entitled to continuing weekly compensation (s19 of the Safety, Rehabilitation and Compensation Act 1988) and the provision of reasonable medical and paramedical treatment costs.
. . . . .(sgd) Miss E.A. Shanahan. . . .
Member
Workers Compensation - continuing incapacity - conflicting medical expert opinions - acceleration and aggravation of disease process - cease effect.
Safety, Rehabilitation and Compensation Act 1988 s7, s14(1), s19
The Commonwealth of Australia v Muratore (1978) 141 CLR 296
Commonwealth of Australia v William Dawson Scott (1979) 1 CCD 119
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Re Borg and Commonwealth of Australia and Comcare (1989) 18 ALD 623
REASONS FOR DECISION
8 August 2003 Miss E.A. Shanahan, Member
1. This is an application for review of the decision of a delegate of the respondent dated 10 April 2002 and affirmed on reconsideration on 13 May 2002, that Australia Post “is no longer liable to make further payments of compensation in regards to the above claim as from close of business Wednesday 10 April 2002”. Application for review by the Administrative Appeals Tribunal was lodged on 17 May 2002.
2. The applicant was represented by Mr Nightingale of Counsel, instructed by Opie and Co. (a firm of solicitors) and the respondent by Mr Gourlay of Counsel, instructed by solicitors Hall & Wilcox. The Tribunal had before it the s37 documents (T-documents) in accordance with the Administrative Appeals Tribunal Act 1975. The applicant tendered the following Exhibits-
Exhibit A1- CT Report dated 17 April 2003
Exhibit A2- MRI Report dated 9 November 2001
Exhibit A3- Report by Mr A Razif dated 29 April 2003.
Exhibit A4- Report of Mr Neil Cullen dated 8 April 2003
Exhibit A5- Report of Dr Barr dated 6 February 2003Exhibit A6- Report of Mr F. Combe dated 6 August 2002
The respondent tendered the following Exhibits-
Exhibit R1- the report of Mr D Billett dated 4 April 2003
Exhibit R2- Dr H B Winfield’s clinical notes received on 3 March 2003Exhibit R3- Mr A Razif’s clinical notes received 5 March 2003
Background to the Application
3. The applicant was born on 18 August 1954 in Yugoslavia and migrated to Australia at the age of 7. He attended school in Australia leaving at the age of 14. Following several jobs working in factories and machinery shops he joined Victorian Tramways in approximately 1974 and remained in their employ for a period of 18 years. He was employed by the tramways as a driver of cleaning equipment used for the cleaning of tram tracks. He was offered a redundancy package when privatisation of the Victorian public transport service was put in place and he accepted the package. There followed a period of unemployment for some 12 to 18 months until he commenced work for the respondent as a driver on 1 June 1994.
4. The applicant first reported intermittent lower back pain to his treating general practitioner in July of 1994 but did not require any time off work. He was treated with physiotherapy and analgesia. There followed occasional exacerbations of pain, all of which responded rapidly to treatment. In 1999 his back pain was exacerbated after a fall, but again responded to treatment. He had fallen while strapping down the plastic curtains on the truck he was driving for the respondent. On 18, 19 and 22 January 2001, three separate injuries occurred at the workplace following which his back pain became more intense, constant and radiated to the right lower limb with occasional pain in the left buttock. Following the third episode he attended his treating general practitioner and was found fit for alternate light duties. He performed these duties from 23 January 2001 until 31 July 2001. He was off work from early August 2001 until December 2001, when he was found fit to return to light duties. The nature of these light duties were found unsuitable by his treating medical practitioners. The respondent was unable to offer any suitable alternate duties.. The applicant has not worked since 6 December 2001.
5. The respondent had accepted liability for the applicant’s injury, but following receipt of the report from Mr D. Billet dated 7 March 2002 (T-docs 10) wherein Mr Billet opined that all effects of the aggravation have now resolved completely and I consider that his pain is emanating from underlying pre-existing constitutional age-related degenerative changes, as noted on the MRI study (T-10 page 30), liability for continuing disability was denied.
Evidence Before The Tribunal
6. The applicant and Mr D. Billet attended the hearing and gave evidence. Mr A. Razif gave evidence by telephone.
7. The applicant confirmed his work history to the extent that he had had several jobs after he left school in the areas of spinning metal, fan making and as a lathe worker. He had not obtained any further qualifications after he left school at the age of 14.
8. He commenced work with the Victorian Tramways at the age of 22 or 23 and remained in that occupation for 18 years. He commenced work doing pick and shovel duties, then became a roadsweeper and eventually a truck driver. He left work after 18 years when he was offered a voluntary departure package at the time of privatisation of the public transport services in Victoria. He confirmed he was unemployed for 12 to 18 months, following which he joined Australia Post. Prior to being hired he underwent a medical examination and was given the all clear on a health basis. At Australia Post he was employed as a Postal Transport Driver and his duties were confined to shifting loaded and unloaded Unit Load Devices (ULDs). Trucks transporting up to 28 ULDs were rigid, and those transporting up to 44 were semi-trailers or articulated vehicles. He was required to work variable shifts and to drive a variety of vehicles depending on the load. He was required to physically manhandle ULDs in both loading and unloading, and these ranged in weight from 95 to 600 kg. The unloading mechanism varied according to the load. Loads relating to 10 or less ULDs were handled essentially manually and those of a greater weight were loaded and unloaded using a pallet lever trolley or on some occasions a forklift. The applicant admitted that he had had minor lower back pain whilst unloading ULDs in 1994, but this had not led to any loss of time at work. In October of 1999 he had experienced acute back pain, following a fall at work when he had been tightening ratchets on plastic drapes around a truck, and the ratchets slipped through his gloved hands and he fell onto his coccyx. The resulting discomfort and pain had resolved over the period of a few days. He did not lose work.
9. On 18 January 2001, while driving a 20-year old truck (Mitsubishi) and on passing over a bump he had developed sharp, acute back pain resulting from the vehicle’s driving seat suddenly collapsing. Both the injury and the fault in the Mitsubishi truck were reported to the employer. The following day the applicant had driven another Mitsubishi truck enabled to carry 28 ULDs and a similar episode occurred when the truck went over a bump. The seat bottomed out and he once more suffered severe back pain. Both his injury and the truck’s malfunctioning were reported to the employer. The next two days were a weekend and the applicant felt that with the rest this would afford he would be fit to resume work on the following Monday. He did resume work on 22 January, driving a larger vehicle, and was sent to the Dandenong Leisure Centre to pick up empty ULDs to deliver to a firm known as Wilkie. The ULDs had been electrically loaded at the Dandenong Leisure Centre but had to be manually unloaded at the Wilkie loading dock using a hand-operated trolley. Having pulled a stack of ULDs down the length of the truck, the applicant was required to turn the pallet through 180 degrees at which time he felt sharp pain and a clicking noise in his back. He reported this injury to the employer and lodged a claim form the following day. He also saw his general practitioner the following day and was referred to a consultant orthopaedic surgeon Mr N. Cullen.
10. Mr Cullen had advised conservative treatment and this was followed. As the applicant made little progress, he sought a second opinion and was referred to Mr A. Razif. Mr Razif had performed various X-rays and a CT scan of the spine and recommended an epidural injection, which was performed in August of 2001. This was beneficial for a period of approximately 3 weeks. The applicant remained on medication and continued with the physiotherapy program. Despite all treatment he continued to have severe lower back pain radiating to the right leg, occasionally to the calf and also occasionally to the left buttock. The severity varied according to his level of physical activity. The applicant acknowledged he had returned to alternative duties in August 2001 and this involved driving a van, clerical duties, training of new drivers and the operation of a forklift. His lifting had been restricted to no more than 5 kilograms. The alternative duties had involved the applicant climbing into the cabins of trucks to check the state of cleanliness and he had found this exacerbated his pain. His general practitioner had recommended alternative duties be modified to exclude such activity, but Australia Post had been unable to provide such duties. In response to Mr Nightingale’s question, the applicant advised that he had not been involved in any rehabilitation program, that he frequently needed to use a walking stick, wore a brace most of the time and continued to take Panadene Forte, Tramal, Nurofen and Voltaren cream was used.
11. In cross-examination the applicant confirmed the events of 18, 19 and 22 January 2001, and that prior to these events his back pain had been minor and intermittent. On 25 March 2001 he had suffered a fall on to his buttocks when he twisted his ankle while walking. This had exacerbated his pain for a period of one month. The applicant felt he would be able to cope with light duties. Mr Razif had advised an operation to relieve his referred leg pain, but had stated it would not alleviate the back pain. The applicant outlined his duties when he worked with the Tramways and agreed that some of his truck-driving involved driving over rough ground. In re-examination Mr Nightingale asked the applicant to quantify his pain level prior to and after the events of January 2001. The applicant assessed the physical activities involved in his employment with the Tramways as being 1 out of 10 compared to 10 out of 10 with Australia Post.
12. Mr A. Razif, treating orthopaedic surgeon, gave evidence by telephone. He had first seen the applicant on 23 March 2001. The applicant had requested his general practitioner Dr Winfield, refer him to Mr Razif, as Mr Razif had treated his son for some years. Mr Razif opined that the applicant had suffered minor and cumulative trauma to his lumbar spine over many years with intermittent symptoms that rapidly responded to treatment. When seen in 2001 he regarded the applicant’s degenerative changes to be beyond those attributable to wear and tear and that the lumbar spine and disc changes were due to the traumatic episodes of January 2001. Mr Razif had no doubt that the work involving the shifting of ULDs had exacerbated underlying degenerative changes, and that the changes in 2001 were far too significant to be due purely to degenerative disease. He regarded the applicant’s work at Australia Post be the major contributing factor to his lumbar spine disease.
13. The respondent questioned Mr Razif regarding the date on which he first saw the applicant and the date on the referral letter, which was some two days later. This was explained by the applicant contacting Mr Razif by telephone and arranging an appointment prior to the date of Dr Winfield’s written referral. Mr Razif once more opined that the changes in the applicant’s x-rays were greater than one would expect from purely degenerative factors and that he could only attribute the severity of the changes to the applicant’s work-incurred injuries. Had the applicant not worked at Australia Post and suffered the injuries, Mr Razif would not have expected the radiological and physiological changes to be as severe as they were. In his opinion the changes had been accelerated by the work injury. Mr Razif also advised that the changes would never resolve, the applicant’s activity would always be restricted, and in answer to a question posed by the Tribunal, he stated the disease process was becoming worse. He disagreed with Dr Billet that the effects of aggravation had resolved. The Tribunal also asked Mr Razif if a rehabilitation program would be beneficial? Mr Razif stated that this would not get rid of his pain but would enable the applicant to learn to live with the level of his pain. He opined that he believed the applicant would never work again.
14. Mr Billet had seen the applicant on three occasions at the request of the respondent (8 June 2001, 7 March 2002 and 4 April 2003). He was of the opinion that all the changes noted in the applicant’s x-rays were degenerative in nature and had probably commenced in his twenties. These changes had been aggravated by the work injuries of January 2001. Mr Billet had interpreted the CT scan and the MRI scan as showing degenerative changes only with no nerve root compression. Mr Billet strongly disagreed with Mr Nightingale’s suggestion that a degenerative disc was more susceptible to trauma. He also expressed the opinion that the WorkCover authorities advice regarding posture and lifting procedures were of no importance. He said the applicant was fit to return to full-time work but should avoid lifting weights greater than 60 kilograms. Mr Billet concluded that all work aggravation had long since resolved. It was Mr Billet’s report of 7 March 2002 that had resulted in cessation of workers compensation payment to the applicant.
15. During the hearing Mr Billet made non-responsive comments regarding the applicant’s behaviour and posture in the hearing room. The Tribunal commented on its superior line of vision in observing the activities of the applicant.
Documentary Evidence Before The Tribunal
16. The CT scan of the lumbosacral spine performed on 17 April 2003 (Exhibit A1) revealed Scheurnann’s osteochondrosis of the thoracolumbar spine. At the L4-L5 junction there was a prominent disc bulge with degenerative changes in both facet joints. The latter had resulted in acquired canal stenosis of advanced degree. At the L5 S1 facet joint, degenerative changes were reported.
17. The MRI performed on 9 November 2001 showed mild changes from T-12 to L4 levels, a broad-based posterior disc bulge at L4-5 with marked degenerative facet joint change and central canal stenosis of moderate degree. The disc bulge extended bilaterally to the L4-5 neural foramina, more prominent on the right than the left. The linear aspect of the right L4 nerve root was abutted by the disc. There was a further mild diffuse disc bulge at L5-S1 level. Moderate anterior wedging of T-12 and L1 vertical bodies and a mild crush fracture of T-11 body had progressed radiologically compared to the plain films of 6 February 2001.
18. Mr Neil Cullen, orthopaedic surgeon had provided a report on 18 February 2001 (Exhibit A4), having seen the applicant shortly after the injury sustained in January 2001. He had diagnosed an exacerbation or aggravation of lumbar disc degenerative changes secondary to the work injuries. At that time the symptoms had not resolved.
19. Doctor Z. Barr first saw the applicant on 2 November 2001 (Exhibit A5) and diagnosed L4-5 disc prolapse with L4 nerve root compression, right sciatica, anxiety and mild depression. He found the applicant unfit for work entailing repetitive prolonged use of the cervico thoracolumbar spine and the handling of weights greater than 5 kilograms. A 30% loss of overall function was assigned although the injuries had not at that time stabilised. Prognosis was guarded.
20. The Tribunal had access to the clinical notes of Dr Winfield and Mr Razif, but these do not provide additional information.
21. The respondent had sought the opinion of Mr M Shannon, orthopaedic surgeon and the applicant was seen by Mr Shannon on 3 December 2002. Mr Shannon had provided a report prior to the hearing but the respondent elected not to tender this document nor would they disclose any of its content.
22. Mr F. Combe (Exhibit A6) attributed the applicant’s signs and symptoms to his L4-5 disc prolapse following injury at work in January of 2001. This diagnosis he believed was supported by both the CT and the MRI scan findings. At page 3 of his report of 6 August 2002 Mr Combe stated I cannot agree with the view that these episodes at work caused only temporary aggravation and that the effects of this aggravation have resolved. Rather, the effects of the aggravation continue, with ongoing severe lumbar back pain and right leg sciatic territory symptoms. Similarly, I cannot agree with the view that his radiological lumbar spondylosis is constitutional and age related and not related to his described heavy physical work with Australia Post since 1994. Mr Combe anticipated long term progression and deterioration of the applicant’s lumbar spondylosis and the possibility of future decompressive surgery. The applicant was regarded as being permanently unfit to return to his pre-injury work with Australia Post.
Legislation
23. The Safety, Rehabilitation and Compensation Act 1988 provides for the payment of compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment (s14(1) of the Act) Section 62 provides for reconsideration of determinations and s62(5) empowers the reviewing officer to make a decision affirming or revoking the determination or varying the determination in such a manner as the person thinks fit.
24. Section 7 of the Act delineates the circumstances in which a disease shall be taken to have been contributed to by employment. Section 7(2)(1) places the onus of proof upon the respondent and s7(6) has regard to the aggravation of a disease as follows-
“(6)An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a) the incapacity or impairment would not have occurred;
(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c) the extent of the incapacity or impairment would have been significantly less”.
Submissions
25. The respondent relied primarily on the opinion of Mr Billet that the applicant had underlying degenerative changes in the thoracolumbar spine dating from his early twenties, had performed heavy manual work during his 18 years employment with the Tramways and had then suffered an aggravation during January 2001 when in the employment of the respondent. The respondent questioned the existence of right sciatica and contended that if leg pain was present this related to a fall on 25 March 2001. This reliance is despite the fact that the applicant told Mr Razif of the existence of leg pain on 23 March 2001.
26. The respondent referred the Tribunal to the decision in Casarotto v Australian Postal Commission 1989 where Hill J distinguished aggravation and acceleration stating that aggravation connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one.. Hill J also remarked that the two terms were not mutually exclusive in that acceleration may aggravate the severity of the underlying disease.
27. The applicant submitted that the essential issue was whether or not there was a continuing employment contribution to the applicant’s symptomatology. The onus of proof rests with the respondent to show that the documented work-related injury was not a continuing contribution (Commonwealth v Muratore (1978) 141 CLR 296, Re Borg and Commonwealth of Australia and Comcare (1989) 18 ALD 623). The applicant agreed there were pre-existing degenerative changes prior to the injuries of January 2001. The evidence of Mr Razif, Mr Combe and Dr Barr support that there had been an aggravation or acceleration of the applicant’s spinal disease as a result of the 2001 injuries. It was contended that Mr Billet’s evidence and comments regarding the applicant’s conduct during the hearing, disqualified him as an unbiased expert witness. The applicant submitted that the respondent’s failure to call Mr M. Shannon or to tender his report of December 2002 should lead the Tribunal to conclude that Mr Shannon’s report was “not inconsistent with the case as presented by the applicant”. (Commonwealth of Australia v Scott 1979 1CCD 119 per Fisher J at 127).
Application of the Legislation To the Evidence Before the Tribunal
28. The Tribunal accepts that the applicant had pre-existing degenerative disease of the thoracolumbar spine given the CT evidence of Scheurnann’s disease - an osteochondritis of juveniles, and the past history of occasional transient backache responsive to conservative treatment.
29. Following the injuries of 18, 19 and 22 of January 2001, the applicant’s back pain has become severe, constant and disabling with radiation to the right thigh and leg and occasional radiation to the left buttock and thigh.
30. Since these events CT and MRI scans have documented an L4-L5 disc prolapse with right L4 nerve root impingement and canal stenosis. Plain x-ray in 1994, when the applicant had attended his general practitioner with transient back pain, showed minor changes. Doctor Winfield’s clinical notes do not reveal any further complaints of back pain until 23 January 2001. Plain x-ray of the lumbar spine on 13 February 2001 was reported as showing moderate narrowing of the L5-S1 disc space, mild narrowing of the L4-L5 disc space and the radiologist commented that there had been progression in the changes compared to the films of 1994.
31. Mr Combe, Mr Razif and Dr Barr have all diagnosed aggravation and probable acceleration of the underlying degenerative process. The Tribunal prefers their opinion to that of Mr D. Billet who ascribed all changes to degenerative process unrelated to any injury.
32. Based on the authority of Commonwealth of Australia v William Dawson Scott (1979) 1CCD 119, the Tribunal concludes that Mr Shannon’s report was beneficial to the applicant’s application.
33. The Tribunal finds that the applicant’s pre-existing lumbar degenerative disease was aggravated to the point of L4-L5 disc prolapse, as a result of the injuries of January 2001. This aggravation lead to constant back pain with radiation to the right thigh and leg, due to right L4 nerve impingement. The disc prolapse has, in turn, caused spinal canal stenosis and accelerated the degenerative process in the applicant’s spine.
34. The effects of the injuries of January 2001 persist and continue to accelerate the underlying condition. The respondent remains responsible for the aggravation - acceleration of the condition and is liable to continue Workcover payments and payment of medical costs. As recommended by Mr Razif, structured rehabilitation program should be provided as this may assist in determining the period of incapacity and whether or not that incapacity will end. (Re Borg and Commonwealth of Australia and Comcare (1989) 18 ALD 623).
35. The respondent shall pay the applicant’s legal costs.
36.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan, Member.
Signed: ....C. Irons.........................
SecretaryDate/s of Hearing 9 May 2003 & 14 May 2003
Date of Decision 8 August 2003
Counsel for the Applicant Mr M. Nightingale
Solicitor for the Applicant Opie & Co.
Counsel for the Respondent Mr I. Gourlay
Solicitor for the Respondent Hall & Wilcox
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