Ralph Sinclair and Transpacific Industries Pty Ltd
[2012] AATA 405
•29 June 2012
[2012] AATA 405
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3427
2011/3429
Re
Ralph Sinclair
APPLICANT
And
Transpacific Industries Pty Ltd
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 29 June 2012 Place Brisbane (heard in Cairns) Decision Summary
The decision to deny ongoing liability in respect of the applicant’s cervical spine condition is set aside. The Tribunal decides in substitution that the respondent remains liable under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The decision to deny ongoing liability in respect of the applicant’s lower back condition is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
WORKERS’ COMPENSATION – Claim for compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – Incapacity for work – Liability in respect of cervical spine condition and secondary lower back condition – Previously asymptomatic underlying condition becomes symptomatic following workplace injury – Decision under review set aside for cervical spine condition – Decision under review affirmed for lower back condition.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Commonwealth v Smith (1989) 18 ALD 224
REASONS FOR DECISION
Senior Member Bernard J McCabe
This case arises out of an all too familiar story: an individual with an asymptomatic underlying condition becomes and remains symptomatic following a workplace injury even though doctors say the effects of the workplace injury should have resolved long ago.
The employer in this case initially accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for a workplace injury to his neck and left shoulder, and a subsequent injury to his lower back that occurred at home while he was being treated for his neck and shoulder conditions. In a reviewable decision dated 15 June 2011, the employer determined the effects of the neck and shoulder injury – and the employer’s continuing obligations under the Act – have now ceased. The application to review this decision is the subject of proceedings numbered 2011/3427. The employer made a similar “cease effects” determination with respect to the lower back condition in a reviewable decision made on the same date. The application to review that decision is the subject of proceedings numbered 2011/3429.
The employee, Mr Ralph Sinclair, says he has a present entitlement to compensation under the Act with respect to his neck and shoulder because the effects of his initial injury have not ceased. He does not deny he had a pre-existing degenerative condition; he merely claims the condition was aggravated by the workplace injury so as to make it symptomatic and – crucially – the aggravation has worsened or accelerated the underlying condition. If his initial injury gives rise to a continuing liability, he argues the secondary condition, which has not improved, must also be compensable.
I think the applicant is right in relation to the neck and shoulder condition, but he is wrong about liability for the back condition, I explain my reasons below.
THE INJURIES AND THEIR IMMEDIATE AFTERMATH
Mr Sinclair worked for a company in the waste disposal business. On 28 December 2010, he arrived at a site in Cairns to collect a large bin that was to be emptied into the truck he was driving. The bin was on wheels and had to be manoeuvred into position so that it could be handled by the machinery. He said the hot weather had softened the tarmac surface on which the bin was standing and the wheels had sunk into the tar. He had to shake the bin loose. In doing so, he said he felt a pain in his neck and left shoulder.
The applicant reported the injury and received medical treatment. He was able to return to work in due course on a limited basis. On 17 January 2011, while he was still undergoing treatment, he says he experienced a further injury – this time to his lower back. It happened like this: he was at home doing the exercises he had been told to do for his neck and shoulder condition. He was on the floor doing stretches. He experienced a strain in his back. At the hearing, he said it was “like being hit in the back with a hammer”. He said the pain was excruciating. He had real difficulty getting up.
Mr Sinclair says the pain associated with the two injuries has persisted. He says the neck and shoulder conditions cause constant discomfort although sharp pain flares up if he engages in some kinds of physical activity. The back pain can also create difficulties: he cannot sit for long periods, for example. He takes pain-killing medication.
The applicant worked at light duties with his employer for some time before he resigned on the advice of his union representative. He has since undertaken a security course but he cannot do some of the things normally expected of a security guard, like crowd control. He is restricted to acting as a static guard.
THE APPLICANT’S MEDICAL HISTORY
Mr Sinclair experienced some pains in his shoulder and in his hip and lower back before the injury at work on 28 December 2010. In particular, he:
·had a workplace injury to his shoulder in 2003 that resulted in a tear, although he said that injury had settled following surgery and he was fully recovered by the end of 2010;
·saw a chiropractor over a number of years to deal with occasional minor pain in his hip and lower back that was caused (as he understood it) by his “hip going out”. The applicant had also seen a physiotherapist whose notes record back problems; and
·reported light muscle and shoulder strains that caused him to be placed on light duties for a short time during 2010.
The applicant denied any serious or regular pain in his neck before the incident on 28 December 2010.
It became clear during the course of the hearing that the full extent of the applicant’s medical history had not been communicated to all of the medical experts who were asked to prepare reports. The applicant conceded he might have made some mistakes in the history he offered to Dr Gibberd, who examined him at the request of the respondent. I also note Dr Cook, who was called by the applicant, did not have the benefit of the notes taken by the applicant’s physiotherapist which offered a more complete picture of Mr Sinclair’s medical history.
Dr Cook referred to radiological reports that showed degeneration in the applicant’s cervical spine. The degenerative condition pre-dates the incident in December 2010. He also noted “severe longstanding degenerative changes” in the lumbo-sacral spine. I do not understand those observations to be controversial, and I accept them. The question is whether the workplace injury caused a permanent aggravation of the degenerative condition that affected his cervical and lumbar spine. The opinions on that question vary.
The respondent relied in particular on the opinion of Dr Gibberd. Dr Gibberd, an orthopaedic surgeon, prepared two reports dated 25 March 2011 and 13 February 2012. He gave evidence at the hearing too. He focused in his oral evidence on the mechanism of injury in each incident. He said the activities being undertaken on each occasion – pushing and rocking a bin on 28 December and stretching on the floor in the course of a stretching exercise on 17 January – could not have caused a serious injury. He said that rocking a bin in the manner described to him by the applicant should not have exerted significant force through the cervical spine while rocking in a stretching exercise should not have exerted significant force through the lumbar spine.
In the course of cross-examination, it became apparent Dr Gibberd was making a number of detailed assumptions about the mechanism of injury to the neck and shoulder. In particular, he was making assumptions about the size and dimensions and weight of the bin in question, although I note he said he had seen bins like the one described to him before. He also formed his views about the mechanism of injury on the basis of an assumption the injury was sustained while the bin was being pushed after it had been emptied. Dr Gibberd conceded there might have been an injury if, in the course of moving the bin, it had come to a sudden halt. It was ultimately unclear whether that occurred. Even so, the detailed nature of those assumptions was troubling, not least because the applicant was not an especially good historian and may not have given Dr Gibberd an accurate description of what occurred. It follows Dr Gibberd’s evidence on this issue was not as helpful as it might have been.
Dr Gibberd was also concerned about the applicant’s account of his pain following the incident at work. He said mechanical back pain like that experienced in connection with a degenerative condition tended to wax and wane, and ordinarily settled. He said persistent pain following a relatively minor injury was probably explained by other factors, most obviously psychological issues. But he conceded in cross-examination that a relatively minor soft tissue injury could be “the straw that broke the camel’s back” for a person who had a previously asymptomatic underlying condition. He added the underlying condition could be exacerbated in this process, although he preferred not to use the word “aggravated”.
Dr Gibberd went on to say in cross-examination that it was likely the applicant’s degenerative condition would have become symptomatic in time in the absence of trauma. He said that could and often did occur spontaneously, although he acknowledged some individuals experiencing serious degenerative change might not develop symptoms at all. Importantly, he agreed with Mr Anforth, who appeared for Mr Sinclair, that “the onset of pain may have been brought forward in time” by the soft tissue injury.
Dr Cook was not troubled by the mechanism of injury. He acknowledged some individuals suffering degenerative conditions might never experience symptoms, and a previously asymptomatic condition might become symptomatic spontaneously. He also accepted a soft tissue injury like that the applicant experienced in the workplace should resolve within a matter of months, and a minor soft tissue injury was less likely than a serious injury to cause a permanent aggravation or worsening of the underlying condition. I did not understand Dr Cook to say the injury sustained in the workplace was an especially serious one, but he insisted the injury caused the underlying condition to become and remain symptomatic.
WHAT THE APPLICANT MUST ESTABLISH IN ORDER TO SUCCEED IN HIS CLAIM
Mr Anforth argued this should be approached as an injury case even though the underlying degenerative condition was a disease. The respondent did not demur. On that basis, Mr Anforth argued I should take particular note of the admission by Dr Gibberd that the soft tissue injury to the applicant’s cervical spine may have caused the asymptomatic condition to become symptomatic sooner than it would otherwise have done. To that extent, Drs Gibberd and Cook were in agreement. Dr Cook had no difficulty with the mechanism of injury to the cervical spine on 28 December 2010; Dr Gibberd’s difficulties with the mechanism of injury were based on detailed and questionable assumptions about precisely what occurred as the applicant manhandled a large bin.
Mr Anforth said that was enough to make out the applicant’s claim that his underlying degenerative condition was aggravated (in the sense it became and stayed symptomatic) by his injury at work. The fact the applicant’s condition may have become symptomatic spontaneously at a later date in the absence of an injury trigger was beside the point: he said cases like Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 and Commonwealth v Smith (1989) 18 ALD 224 confirm it was enough if the injury caused a permanent worsening of the condition even if that worsening would have occurred later in any event.
Mr Clark, for the respondent, pointed out it was important to focus on the mechanism of injury. He relied on Dr Gibberd’s evidence to establish the mechanism of injury was such that there would not have been any damage to the cervical spine in particular in the December incident that was serious enough to make any difference to the course of the applicant’s underlying condition.
I have already noted concerns over Dr Gibberd’s opinion about the mechanism of injury involved in the December 2010 incident. Given those doubts, I do not think I have any basis for disputing the common-sense proposition that the experience of pain while manhandling bins was triggered by that (work-related) activity. I accept the applicant’s evidence that he continues to experience pain in his cervical spine that manifests in the shoulder and neck. It may be the pain would have developed spontaneously in the absence of the injury on 28 December 2010; but I also note the evidence of the applicant’s doctor that the injury was sufficient to trigger a change in the underlying condition when it did. The admission of Dr Gibberd during cross-examination suggests Dr Cook’s view is fair enough, and I accept it. In the absence of evidence suggesting an intervening event – such as a psychiatric explanation for the applicant’s pain – I do not think there is any break in the chain of causation between the incident at work on 28 December 2010 and the applicant’s current cervical spine symptoms.
The position in relation to the applicant’s lumbar spine is different. While the applicant’s neck condition was substantially asymptomatic before the incident at work, and his shoulder problems were largely connected to a specific earlier injury that is irrelevant for present purposes, the physiotherapist’s notes and other aspects of the applicant’s medical history suggest the lower back condition was already becoming symptomatic by the time he experienced an episode of pain on the floor while doing exercises on 17 January 2011. I do not doubt that event caused a temporary aggravation of the back pain, but it is much less clear there was a sudden and dramatic change in the course of the lower back condition. That view of the evidence is consistent with the radiological evidence discussed by Dr Cook in his report which appeared to suggest the lumbo-sacral spine was in a more parlous state than the cervical spine.
CONCLUSION
The decision to deny ongoing liability in respect of the applicant’s cervical spine condition is set aside. I decide in substitution that the respondent remains liable under the Act. The decision to deny ongoing liability in respect of the applicant’s lower back condition is affirmed.
24. I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 29 June 2012
Date(s) of hearing 23 May 2012 Counsel for the Applicant Mr Anforth Counsel for the Respondent Mr Clark
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