PETTGE and LINFOX AUSTRALIA PTY LTD

[2011] AATA 621

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 621

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No      2010/0223;

)2011/0540

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEFAN PETTGE

Applicant

And LINFOX AUSTRALIA PTY LTD

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, Member

Date2 September 2011

PlaceSydney

Decision The Tribunal affirms the decisions under review.

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

Ms N Bell
  Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – incapacity to work – permanent impairment – disc prolapse lower back, arm and neck, depression – whether injuries arose out of employment – when did incapacities cease – other conditions – degenerative back condition – decision under review affirmed.

Safety, Compensation and Rehabilitation Act 1988

REASONS FOR DECISION

2 September 2011 Ms N Bell, Senior Member
Dr M E C Thorpe, Member            

1.Stefan Pettge began employment with Linfox Australia Pty Ltd as a truck driver in 1998.  For most of his employment with Linfox he was required to unload pallets from his truck, using a forklift or pallet jack.  Generally he transported supermarket goods.  Not long before 2008 the system changed and “rollcages” were introduced.  These are tall, two sided cages with shelves onto which goods are loaded.  The cages rest on four wheels, two of which swivel in any direction, and the other two, at the back of the cage, are two directional.

2.On 17 July 2008 Mr Pettge transported a truckload of nine rollcages.  One of the cages had become “locked in” , meaning it was stuck and unable to be rolled out easily because a bag of birdseed had fallen to the side of the cage and some seed had come loose from a bag and fallen to the floor.  Mr Pettge had to pull hard a number of times to make the cage move.  He said he felt his back “pop” and had a sensation of bleeding or having warm water poured on his back.  He mentioned the incident to the shop manager and continued on with unloading and then on to his next delivery.  Three weeks later Mr Pettge saw his general practitioner who certified him for modified duties.  He claimed compensation for lower back pain and Linfox accepted liability.

3.Mr Pettge continued working with modified duties until 27 August 2009 when Linfox decided that the effects of his injury in July 2008 had ceased.

4.Mr Pettge also claimed compensation in November 2010 for “disc prolapse lower back, arm and neck and depression”.  Linfox denied liability.

5.In relation to Linfox’s decision that the effects of Mr Pettge’s back injury had ceased, Mr Pettge contends that his symptoms have worsened over time and, given that he had no back symptoms before the incident with the rollcage in July 2008, the progression of his symptoms must be due to the 2008 injury.

6.Linfox contends that, while Mr Pettge may suffer from significant back symptoms, they are due to his underlying degenerative spine disease and not due to the incident with the rollcage, the effects of which would have resolved well before the decision to cease compensation payments was made.

7.In relation to his claim for his neck and arm pain and his depression, Mr Pettge contended that his depression resulted from his pain and other consequences of his injury and his neck and arm condition were either the result of the incident in July 2008 or were caused some weeks later by physiotherapy he undertook for his lower back condition.

8.Linfox contends that there is no evidence on which the Tribunal could be satisfied that Mr Pettge’s physiotherapy caused a further injury to his neck; that no injury was caused to his neck by the incident with the rollcage; and that there is no causal nexus between Mr Pettge’s back injury and his depression and even if there were such a nexus, his back condition at the time of the onset of his depression did not arise out of his employment.

9.The questions for us to consider are therefore:

(a)Did the back symptoms suffered by Mr Pettge from August 2009 arise out of the incident in July 2008 or from his underlying degenerative back condition?

(b)Did Mr Pettge’s neck and arm symptoms arise out of the July 2008 incident, physiotherapy treatment or some other cause or contribution?

(c)If Mr Pettge’s physical conditions and symptoms in August 2009 were caused by or contributed to by his employment, was his depression caused by or contributed to by his physical conditions and symptoms?

Did the back symptoms suffered by Mr Pettge from August 2009 arise out of the incident in July 2008 or from his underlying degenerative back condition?

10.Mr Pettge said that on 17 July 2008, after he finished his deliveries for the day, he returned to the depot and completed an incident report.  He said his lower back and buttocks had become quite painful as the day wore on.

11.He continued working over the next four weeks, but experienced “burning, jabbing, ripping pain” in his back and pain, numbness and pins and needles in his right leg and right foot.  He took Voltarin and applied Tiger Balm.  Eventually, he visited his general practitioner, Dr Makarias, because the pins and needles in his right leg were becoming “bad”.

12.Mr Pettge’s general practitioner certified him for modified duties which continued until August 2009.  About one month after the incident, Mr Pettge commenced physiotherapy but ceased after two weeks.  He then commenced hydrotherapy.  Approximately two months after the incident, Mr Pettge was referred to Dr Manohar, an orthopaedic specialist.

13.Mr Pettge said that his physical condition has worsened but is better with no activity.  He said he can lift no more than 10 kilograms and cannot bend or squat without pain in his lower back, between his shoulders, shooting pain into his head and pins and needles in his legs and left arm.

14.He said he had no physical restrictions prior to the incident in July 2008 and no prior back pain except for an incident at work while descending a slope and holding a pallet jack.  The effects of this resolved after two weeks.  He said he had never had any time off work for a back injury.

Effects of medication

15.The clinical notes of Mr Pettge’s general practitioner, Dr Makarias, make no mention of a “popping” sound or of a “warm” sensation over his back at the time of injury.  The notes also record a date of consultation more than three weeks after the incident on 17 July 2008.  The notes describe a pattern of flare ups and improvements of Mr Pettge’s back symptoms over the following year.

16.Dr Bentivoglio, an orthopaedic surgeon, considered that Mr Pettge’s pain was not from a constitutional back condition because he has an annular tear at L4-5 and an abnormality at L5-S1 which he considered not to be constitutional.  However, he accepted that Mr Pettge had moderate degenerative changes in his lumbar spine and “moderate plus” changes in his cervical spine.

17.Dr Bentivoglio said that discal damage can only arise from a trauma or frank injury.  He considered that the discal damage in Mr Pettge’s lumbar spine must have occurred at some point prior to the MRI scan done in 2008 but that there is no way of telling exactly when the damage occurred.

18.Professor Sheridan, Mr Pettge’s treating orthopaedic surgeon, considered that a frank injury could give rise to multi-level damage.  He also considered that an annular tear can arise in the absence of frank injury or trauma.  He noted that an MRI in 2008 showed that L5-S1 was causing his symptoms, although there was also abnormality at L4-5.  However, the MRI in 2011 shows the L5-S1 abnormality has remained stable but there is now a significant abnormality at L4-5.  Professor Sheridan agreed that the symptoms Mr Pettge had in 2008 were from his L5-S1 disc disturbance and that the additional symptoms he has now are from his L4-5 disc disturbance which was not shown on MRIs in 2008 and 2009.  However, Professor Sheridan considered there is no way to know the exact source of Mr Pettge’s symptoms and whether all aspects of his current condition are due to the July 2008 incident or to his degenerative spine disease.

19.Dr McGill, an orthopaedic surgeon, noted MRI evidence of disc bulging at L3-4, L4-5 and L5-S1.  He considered that a single event would be unlikely to be responsible for such multi-level damage and considered it more likely that degenerative changes were responsible.  However, he accepted that the incident had given rise to short term radiculopathy.  He also said the pattern of flare up and settling down of symptoms described in Mr Pettge’s general practitioner’s notes is typical of degenerative change.  He disagreed with Dr Bentivoglio’s assertion that discal damage can only arise from trauma and referred to epidemiological studies that establish that in the majority damage is caused by degeneration.

20.Dr Maxwell considered that Mr Pettge had suffered a temporary sprain of his back which, by March 2009, had resolved.  He reported Mr Pettge’s advice to him that at that time his lumbar spine felt “99% improved”.  Dr Maxwell considered it unlikely that Mr Pettge had sustained a disc protrusion in the course of his work and that, rather, the onset of back pain was due to a lumbar sprain.  He found the presence of an annular tear not to be an indication of trauma and noted age related changes.  He found no continued indications of radiculopathy.

21.Of particular interest is the history given to Dr Maxwell by Mr Pettge.  Dr Maxwell recorded that he told him he had been concerned about a symptom of tingling and numbness in his right leg and so went to see his general practitioner.  He said it was only after his general practitioner asked him if anything had happened at work that he remembered the incident with the birdseed and the rollcage.  Dr Maxwell considered it would be very unusual for pins and needles to follow one month after a trauma responsible for those symptoms. 

22.We are persuaded by the opinions of Drs McGill and Maxwell that Mr Pettge suffered a temporary disturbance of his lumbar spine in the July 2008 incident and that underlying age related changes are responsible for his current pathology.  We are not persuaded by Dr Bentivoglio’s opinion that an annular tear can only come about from trauma and prefer the opinions of Drs McGill and Maxwell in this regard.  We also note the opinion of Dr Sheridan that Mr Pettge has developed additional symptoms now associated with a disc disturbance at L4-5, a disturbance not evident in the MRIs of 2008 and 2009.  We consider this suggests advancing degeneration and that this is responsible for his present lumbar symptoms.  We consider it likely that from August 2009 Mr Pettge had ceased to suffer the effects on his lumbar spine of the July 2008 incident.

Did Mr Pettge’s neck and arm symptoms arise out of the July 2008 incident, physiotherapy treatment or some other cause or contribution?

23.Mr Pettge’s evidence was that in physiotherapy some weeks after the July 2008 incident he was required to perform an exercise that had him arch his back and raise one leg while lying on a table.  This meant that his weight was supported by his neck and one foot.  He said that after a couple of days of doing that exercise he felt pain in his neck and between his shoulders.  He said the pain persisted until he commenced hydrotherapy.

24.Mr Pettge told Dr Maxwell of the pain following the physiotherapy exercise but said that his neck symptoms and pins and needles in his arm had resolved. 

25.Dr Bentivoglio considered that, given the lapse of time between the July 2008 incident and the onset of neck pain, there could be no causal connection between the two.  As to physiotherapy, Dr Bentivoglio said the position adopted by Mr Pettge could have caused a disc to “pop”.

26.Dr McGill noted multi-level findings in Mr Pettge’s cervical spine and the presence of osteophytes which he said take years to develop.  He considered this pointed to degenerative change. Dr McGill considered the physiotherapy exercise would not have more than a transient effect on Mr Pettge’s neck and shoulders, being merely muscle contraction and unlikely to affect the structure of his spine.

27.We consider that the length of time between the incident at work and the onset of neck pain and arm symptoms suggests that there is no direct causal link between the two.  We also note the presence of osteophytes which indicate degeneration.  We accept the opinion of Dr McGill that any effect of the physiotherapy exercise would have been transitory and would not have produced the pathology evident in the MRIs nor the symptoms Mr Pettge now experiences.

If Mr Pettge’s physical conditions and symptoms in August 2009 were caused by or contributed to by his employment, was his depression caused by or contributed to by his physical conditions and symptoms?

28.Mr Pettge’s depression was first reported in January 2010 in his general practitioner’s clinical notes and claimed for in November 2010. We have concluded that the effects of Mr Pettge’s injury had ceased by August 2009 and that the pain he experienced after that time is due to his underlying degenerative disease. It follows that if there is a causal nexus between Mr Pettge’s physical conditions and symptoms then our conclusion that the effects of his injuries had ceased by August 2009 means that his depression was not contributed to by his employment.

Decision

29.The Tribunal affirms the decisions under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr M E C Thorpe, Member

Signed: …[sgd].....................................................................
           C. Taylor, Associate

Date/s of Hearing  25, 26 and 27 of July 2011
Date of Decision  2 September 2011
Counsel for the Applicant         Christopher McKeown
Solicitor for the Applicant          David Chen, Capital Lawyers
Counsel for the Respondent     David Richards
Solicitor for the Respondent     Nathan Hepple, Dibbs Barker