Rosito Sevilla and Australian Postal Corporation
[2015] AATA 338
•18 May 2015
[2015] AATA 338
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6135
Re
Rosito Sevilla
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Mr P W Taylor SC, Senior Member
Date 18 May 2015 Place Sydney The reviewable decision dated 3 October 2013 is affirmed.
..................................[sgd]......................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
COMPENSATION – employee of licensed corporation – workplace fall – reduced capacity to work – soft tissue injury – pain – whether applicant has a compensable injury as defined by the Safety, Rehabilitation and Safety Act – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4(9), 14
CASES
Dean v Australian Postal Corporation (2010) 52 AAR 53, [2010] FCA 680
Re Zomer v Telstra Corporation [2012] AATA 601
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
18 May 2015
OCTOBER 2009 FALL & SUBSEQUENT CLAIMS
On 29 October 2009 Mr Sevilla slipped over in a workplace fall, probably caused by an oil or diesel spill near a filling bowser he was about to use. The next day he signed an incident report stating that he had hurt his left hand and the groin area of his left leg. Medical certificates between 30 October and 9 November 2009 described his injuries as “soft tissue injury to hands, right forearm and strain right hip adductors”. On 11 November 2009 he submitted a compensation claim, for injuries to his “shoulder, hand, neck and left thigh”.
In December 2009 the Respondent accepted liability (“for multiple soft tissue injuries to the hands, right and left hip adductors, shoulders, neck”). Until 13 September 2013 the Respondent paid compensation in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) on the basis that Mr Sevilla’s injuries had reduced his capacity to work: see s 4(9) of the SRC Act. On 5 September 2013 the Respondent decided that Mr Sevilla was no longer incapacitated and stopped the compensation payments. Its reviewable decision of 3 October 2013 maintained that stance.
In the meantime, on 31 May 2013, Mr Sevilla claimed compensation for permanent impairment relating to hip shoulder and neck injuries, and depression, all of which he associated with his October 2009 fall. On 21 June 2013 he made a compensation claim for a dysthymic disorder. On 2 October 2013, in two further reviewable decisions, the Respondent rejected those claims.
THE REVIEW APPLICATIONS
Mr Sevilla lodged applications to review all three of the Respondent’s decisions. But he ultimately pressed only for a review of the 3 October 2013 decision rejecting the claim for ongoing payments under SRC Act s 14. Consequently the review applications relating to the two decisions of 2 October 2013 may be taken to have been dismissed: see Administrative Appeals Tribunal Act 1975 s 42A(1A) & (1B).
The Respondent’s 3 October 2013 decision relied substantially on the opinion of Associate Professor Neil McGill, a consultant rheumatologist. Professor McGill reported that Mr Sevilla had a good range of normal shoulder and hip movements and no ongoing disability that would prevent him from returning to work carrying out the kind of truck driver activities in which he was engaged at the time of the October 2009 incident.
THE HISTORY OF MR SEVILLA’S COMPLAINTS ABOUT THE OCTOBER 2009 FALL
Mr Sevilla has had many consultations and reviews since the October 2009 fall. His relevant history can be outlined, sufficiently for my present purpose, by reference to the contents of the following medical certificates:
(a)30 October to 9 November 2009: which described his injuries as “soft tissue injury to hands, right forearm and strain right hip adductors”.
(b)10 and 12 November 2009: which described his injuries as “injuries to the shoulders, left palm, left side of the neck and front of thigh”
(c)17 November 2009: which described his injuries as “left hip adductor strain, STI (soft tissue injury) wrists”
(d)20 November to 8 December 2009: which described his injuries as “left hip adductor strain, STI wrists left shoulder injury + abdominal pain due to strong painkillers”
(e)16 December 2009 to 25 January 2010: which described his injuries as “left hip adductor strain, STI wrists left shoulder injury”
(f)15 February to 17 December 2010: which described his physical injuries as “left hip adductor strain, STI wrists left shoulder/neck injury”
(g)18 January 2011 to 16 March 2012: which described his physical injuries as “left hip adductor strain, STI wrists left shoulder/neck injury + labral tear left shoulder … + frozen left shoulder”
(h)18 April 2012 to 20 March 2013: which described his physical injuries as “left hip adductor strain + CAM impingement hip, STI wrists left shoulder/neck injury + labral tear left shoulder … + frozen left shoulder”
The apparent inconsistency between the injuries stated in Mr Sevilla’s incident form, and the 30 October 2009 medical certificate is notable. Similarly, the change in Mr Sevilla’s reported symptoms (from right hip strain to left hip strain) between late October and early November 2009 appears somewhat odd. However, Australia Post’s 1 December 2009 decision did accept liability for injuries to Mr Sevilla’s left shoulder and left hip adductor.
The continued reference in the medical certificates after 17 November 2009 to the soft tissue injury to Mr Sevilla’s wrists is inconsistent with the report attributed to Mr Sevilla in a workplace assessment carried out 17 November 2009. On that occasion Mr Sevilla was reported as saying that the symptoms affecting his wrists and palms had largely resolved and that he had only residual minor discomfort when applying pressure to those areas. In the present proceedings there was no suggestion that Mr Sevilla had any ongoing injury, or symptoms, affecting his wrists and hands.
MR SEVILLA’S LEFT SHOULDER COMPLAINT HISTORY
The inclusion of “left shoulder injury” in the medical certificates after 20 November 2009 (almost a month after the fall incident) reflects complaints recorded in December 2009 reports from both a neurologist and at least one of the GPs Mr Sevilla consulted. Nevertheless, an ultrasound examination on 12 November 2009 had reported the normal appearance of his rotator cuff tendons, no distension of the subacromial bursa and no soft tissue impingement in the subacromial space.
Consistent with the unremarkable ultrasound report, on 27 November 2009 Dr Chase, an occupational physician examined Mr Sevilla and reported that he had a variable range of active shoulder movement, but a full range of passive shoulder movement. Mr Sevilla’s GP’s attendance note of 22 December 2009 attributed to him the observation that, apart from some stiffness when he awoke in the morning, he was mainly pain free in his shoulder. On 19 February 2010 Dr Chase re-examined Mr Sevilla. On this occasion Dr Chase reported that Mr Sevilla had a full range of movement in his shoulders and that his previously reported symptoms had substantially improved. Dr Chase thought that his ongoing low-level shoulder symptoms could be related to the October 2009 fall, but he considered that Mr Sevilla should be able to resume truck driving in 4 to 6 weeks
The inclusion of a reference to a labral tear to Mr Sevilla’s left shoulder, in the medical certificates issued after February 2011 followed the investigation of Mr Sevilla’s complaints on ongoing discomfort with his left shoulder. He reported increased shoulder pain in June 2010 and was assessed by a consultant rheumatologist, Dr Lau. In an 18 June 2010 report Dr Lau noted that Mr Sevilla had a normal range of passive movement in his left shoulder, with some weakness on shoulder abduction and tenderness along his biceps tendon. Dr Lau arranged for a repeat ultrasound. The 12 July 2010 ultrasound report identified a tiny rim rent tear of the articular surface fibres of the supraspinatus and associated bursitis. The remaining cuff tendons appeared to be intact and normal.
Dr Chase reviewed Mr Sevilla again in September 2010. Dr Chase noted a change in Mr Sevilla’s apparent range of shoulder movement from his essentially unrestricted presentation in February 2010. He noted the content of the July 2010 ultrasound report and its suggestion of some degree of rotator cuff tendonitis. On the basis that Mr Sevilla denied having any significant shoulder problems prior to his October 2009 fall, Dr Chase considered that his ongoing symptoms, and apparent tendonitis and tear could be considered work-related conditions. But Dr Chase thought that the minor changes in Mr Sevilla’s shoulder did not preclude him from driving and, in any event, involved only “quite minimal symptoms”.
In December 2010 Dr Lau reviewed Mr Sevilla following a corticosteroid injection into his shoulder. He reported that Mr Sevilla had not improved following the injection, and described some pain along the front of his biceps tendon. However the area was not tender on palpation and Dr Lau reported that Mr Sevilla had a normal passive range of shoulder movement. Dr Lau considered it was desirable to have an MRI of Mr Sevilla’s shoulder, in case the previous ultrasound examinations (in November 2009 and July 2010) had missed some underlying pathology.
Dr Lau reviewed the shoulder MRI in December 2010. He noted that it did not show the previous small tear reported in the July 2010 ultrasound. However it did show a superior labral tear and some inflammation suggestive of capsulitis. Dr Lau reported that on examination Mr Sevilla exhibited a normal range of passive shoulder movement, but with some pain on external shoulder rotation.
Subsequently, in January 2011, Dr Lau reported that Mr Sevilla complained his left shoulder had deteriorated acutely over the last few weeks and that he had severe constant pain. The pain was made worse with flexion, abduction and even extension. On physical examination, Mr Sevilla’s passive external rotation was restricted to 20 degrees and he had restricted abduction and flexion. Dr Lau thought that Mr Sevilla was developing a frozen shoulder.
In a subsequent report of 11 April 2011 Dr Lau noted that Mr Sevilla’s shoulder condition has improved moderately and demonstrated near full flexion, although abduction was limited, by pain and stiffness, to 90 degrees. Dr Lau thought that Mr Sevilla could resume light duties. He thought that Mr Sevilla was not yet ready to drive a car, but it is not clear whether this was because of his shoulder complaints, or because of Mr Sevilla’s other complaints about his left hip – a matter I address later.
Dr David Maxwell, an orthopaedic surgeon, examined Mr Sevilla on 11 April 2011. His report of that examination was rather more extensive than that of Dr Lau, and came to different conclusions about the extent of Mr Sevilla’s shoulder complaints. He recorded Mr Sevilla’s history that his shoulder had spontaneously become stiff in December 2010, but prior to that had a reasonable range of movement. Dr Maxwell’s examination findings were that Mr Sevilla did have some restricted range of movement, but he had a greater range of movement than would be expected with a “frozen shoulder”. Dr Maxwell, who had reviewed all the available imaging studies, considered that Mr Sevilla had no pathological conditions that could explain his ongoing symptoms and that he was fit to resume his work as a driver.
Associate Professor Neil McGill examined Mr Sevilla on 6 October 2011. He noted Mr Sevilla’s complaints of pain over the top of his left shoulder if he allowed his arm to hang down. He also complained of intermittent sharp pain in the same joint, and said he sometimes awoke at night because of pain in his shoulder. On Professor McGill’s physical examination he noted that, despite the suggestion of “frozen shoulder” / adhesive capsulitis in 2010, Mr Sevilla’s left shoulder movements were only mildly restricted. Professor McGill considered that Mr Sevilla was fit to resume work as a driver. However he accepted that the small labral tear evidenced in the December 2010 MRI could, in the absence of any previous shoulder symptoms, have occurred as a result of the October 2009 fall.
CONTEMPORARY ASSESSMENT OF MR SEVILLA’S LEFT SHOULDER
The most recent clinical assessments of Mr Sevilla’s left shoulder are set out in the various reports of Professor McGill, Dr Maxwell, Dr Guirgis and Dr Conrad. Dr Guirgis did not give oral evidence. His 2 April 2013 report recorded Mr Sevilla’s contemporary shoulder complaints as “painful stiffness, clicking and heaviness” which was increased in cold, wet weather and especially with activities requiring lifting his arm sideways, raising it forwards to shoulder height and bringing his arm behind his back. Without specifically correlating either that history, or his own examination findings, to any particular employment activities, Dr Guirgis concluded, with quite unhelpful ambiguity, that Mr Sevilla was “unfit for activities that would require applying stresses to the left shoulder”.
In his report of 29 July 2013 Professor McGill noted Mr Sevilla’s report that his right biceps and shoulder pains had resolved completely, having developed at the end of 2012 when he undertook the task of cleaning the hull of his sailing boat. Professor McGill recorded Mr Sevilla’s ongoing shoulder symptoms as limited to some discomfort when lying on his shoulder and when lifting his arm above shoulder height. However Professor McGill noted that Mr Sevilla made no complaint of discomfort during the physical examination he carried out on 29 July 2013. Professor McGill observed that Mr Sevilla had symmetrical shoulder girdles with no wasting. The circumference of each arm was equal, there was no reported tenderness and Mr Sevilla had excellent power in all upper limb muscle groups. Professor McGill noted the contents of Dr Guirgis’ 2 April 2013 report, and its different and lesser findings about Mr Sevilla’s range of movement. He contrasted those findings with his own observations in October 2011 (a full range of shoulder movement), January 2013 (a very minor restriction on internal rotation) and July 2013 (essentially full movement with very minor restriction of abduction). Professor McGill thought it was reasonable that Mr Sevilla not be asked to do work that involved repetitive activities with his arms above shoulder height. But he saw no restriction that would prevent Mr Sevilla from returning to work as a truck driver.
Professor McGill’s July 2013 views were not altered by the physical examination findings recorded by Dr Conrad, in his report of 21 October 2013 (to which I come below). Dr Conrad’s reported findings were markedly different from those of Professor McGill. Professor McGill thought that the findings in relation to Mr Sevilla’s range of shoulder movement were surprising, in that they reported restrictions on abduction, flexion, adduction and extension, but normal internal and external rotation. Professor McGill thought that given Mr Sevilla’s postulated or possible pathology of labral tear and / or episodic frozen shoulder, it was highly unlikely that he would present with no limitation of internal and external rotation. For that reason Professor McGill regarded the reported findings of Dr Conrad as somewhat anomalous. But even so, Professor McGill pointed out that they indicated that Mr Sevilla had a considerable flexion capacity and he did not consider that the examination findings could justify a conclusion that Mr Sevilla had any continuing impairment that would prevent him from resuming work as a truck driver. His opinion was that Mr Sevilla, even on the basis of Dr Conrad’s examination findings, would be able to return to work as a truck driver.
Dr Conrad examined Mr Sevilla on 16 October 2013. He recorded Mr Sevilla’s complaints of pain and stiffness in his left shoulder, and an inability to lift anything above shoulder height. He recorded the result of his physical examination of Mr Sevilla’s range of shoulder movement in an abbreviated fashion, without describing whether it reflected active or passive movement. Dr Conrad opined, although without any analysis of the tasks involved, or their relationship to either Mr Sevilla’s complaints or his own examination findings, that Mr Sevilla would not be able to return to driving work.
Dr Maxwell re-examined Mr Sevilla on 23 June 2014. Dr Maxwell recorded Mr Sevilla’s complaints of difficulty in lifting his shoulder, pain at the back and front of his shoulder and on top of it, as well as occasional sharp pain in his arm. However, Mr Sevilla told Dr Maxwell that the pain in his left shoulder, and his range of movement, was better than when Dr Maxwell had previously seen him in 2011. Dr Maxwell said he examined Mr Sevilla by asking him to perform active movements. In his oral evidence Dr Maxwell considered that both his own physical examination, and that of Dr Conrad, indicated that Mr Sevilla had no shoulder restriction that would prevent his return to work as a driver.
It is possible, and convenient, to summarise and contrast the examination findings of Drs Maxwell, McGill, Guirgis and Conrad, about Mr Sevilla’s range of shoulder movement. That summary and comparison is set out in the following table.
Clinician Maxwell McGill McGill Guirgis McGill Conrad Maxwell Date 19-Apr-11 6-Oct-11 31-Jan-13 2-Apr-13 29-Jul-13 21-Oct-13 23-Jun-14 ~409 ~458 ~589 ~616 ~724 ~773 Ex 22R Left Shoulder abduction 120 160 180 100 170 110 120 adduction 45 50 60 30 60 30 60 extension 30 60 60 20 60 30 65 flexion 125 170 180 150 180 120 160 rotation external 70 70 70 40 80 no loss 75 rotation internal 65 90 70 60 90 no loss 90
The table reveals the differences between the examination findings of Drs Guirgis and Conrad on the one hand, and Drs McGill and Maxwell on the other. But it is of some significance that Dr Guirgis’s flexion assessment is significantly more than that of Dr Conrad. It also significant that Drs McGill and Maxwell have seen Mr Sevilla on several occasions over a period of years. In the case of Professor McGill’s reports, in particular, he has been careful and detailed in his history taking and reasoned and thorough in his interpretation of both the history and his own examination findings. His view is that Mr Sevilla has an essentially good range of shoulder movement and certainly one that is not likely to restrict Mr Sevilla’s ability to return to driving. Given the very limited reasoning in the reports of Drs Guirgis and Conrad, and their apparent view that the movement restriction they accepted was essentially limited to activities above shoulder height, I am not satisfied that their pessimistic views of Mr Sevilla’s ability to drive are preferable to the considered and carefully expressed contrary views of Professor McGill, in particular.
MR SEVILLA’S HIP COMPLAINTS
The references to “CAM impingement” in Mr Sevilla’s left hip, in the medical certificates after 18 April 2012 (see paragraph (h) above) derived initially from a July 2010 MRI report describing a bony deformity of Mr Sevilla’s left hip joint. The report said that this deformity predisposed Mr Sevilla to femoro-acetabular impingement, and noted a small ossicle on the acetabular rim which it considered reflected a degree of chronic femoro-acetabular impingement.
In September 2010 Dr Bruce, an orthopaedic surgeon specialising in hip and knee surgery examined Mr Sevilla and reviewed the imaging of his hip, including the July 2010 MRI. Dr Bruce recorded that, on physical examination, Mr Sevilla had pain with flexion, abduction and rotation, but not extension. Dr Bruce observed that this combination of findings was a classic characteristic of femoro-acetabular impingement. Dr Bruce noted that in Mr Sevilla’s case his condition was a combination of both “CAM” and “pincer” impingement. Dr Bruce recommended hip arthroscopy, labral debridement if necessary, removal of a calcific area in the labrum and bumpectomy.
Dr Bruce’s recommendation, based on the diagnosis of impingement and the MRI study that underlay it, produced a degree of controversy as to whether the condition was actually symptomatic and also, to the extent that it had become symptomatic, it could readily be attributed to the 2009 fall incident. Ultimately that controversy was resolved by Professor McGill’s 6 October 2011 report. In that report Professor McGill said that the left hip abnormalities reported in the July 2010 MRI appeared to be long-standing and not related to Mr Sevilla’s October 2009 fall. He expressed some doubt as to whether Mr Sevilla’s then current symptoms were any different to those that were likely to have eventuated from the abnormalities evident in the imaging. But, on the basis of a history in which Mr Sevilla apparently had no groin pain before the October 2009 fall, Professor McGill thought it was reasonable to conclude that the fall had somehow aggravated his condition and that it was, in part, related to the fall.
Dr Bruce performed the recommended surgery in May 2012. The surgery involved labral debridement, acetabular osteectomy and chondroplasty on the acetabular side, anterior lateral bumpectomy, and the removal of two cysts. Dr Bruce’s operative findings, and a report of the surgery he performed, were the subject of his 24 May 2012 report to Mr Sevilla’s GP. Dr Bruce observed that Mr Sevilla’s pathology had changed significantly since his July 2010 MRI scan. Mr Sevilla definitely had a labral tear anteriosuperiorly and laterally (a finding apparently contrary to the 2010 MRI report) but below this there was a chondral delamination that had not been visible in the MRI. In a subsequent report in June 2012, Dr Bruce opined that Mr Sevilla would be able to drive a truck after 4 to 6 weeks, and a car somewhat earlier.
Dr Bruce’s initial optimism about Mr Sevilla’s ability to return to driving work after the May 2012 surgery was disappointed. Dr Bruce saw Mr Sevilla many times between June 2012 and February 2014. Mr Sevilla complained that the surgery had worsened, rather than alleviated, his hip condition. In February 2013 Dr Bruce noted that Mr Sevilla was complaining of having a great deal of pain. But on examination Dr Bruce reported that Mr Sevilla had a good range of hip movement. Dr Bruce reviewed a further MRI study in March 2013. He regarded this as essentially unremarkable, and confessed to an inability to explain Mr Sevilla’s complaints of pain. In further reports of September 2013 and February 2014, Dr Bruce again reported that Mr Sevilla had a good range of hip movement, but still complained of severe pain – complaints that Dr Bruce could not explain.
CONTEMPORARY ASSESSMENT OF MR SEVILLA’S LEFT HIP
Apart from Dr Bruce’s September 2013 and February 2014 reports, the most relevant assessments of Mr Sevilla’s left hip are contained in, or based on, reports by Professor McGill, Dr Maxwell, Dr Guirgis and Dr Conrad.
In his 2 April 2013 report Dr Guirgis recorded Mr Sevilla’s impression that the May 2012 surgery had eliminated a limp he had developed, but that he still had pain, clicking and a sense of weakness and stiffness in the hip. On examination Dr Guirgis reported that Mr Sevilla complained of tenderness on the front, side and back of his hip, and had some restriction of movement. He concluded, in the same ambiguous way on which I remarked in paragraph 19 above, that Mr Sevilla was unfit “for activities that would require applying stresses to the left hip”.
Professor McGill examined Mr Sevilla both before and after Dr Guirgis’s April 2013 review. In his 31 January 2013 report Professor McGill recorded Mr Sevilla’s complaint of “discomfort in the left groin and buttock” when walking, standing, sitting or lying. He noted, however, that Mr Sevilla had a full range right hip movement with no discomfort, apart from some pain in the left groin area at the limit of internal rotation. Professor McGill thought that the abnormalities described in Dr Bruce’s May 2012 operation report may have first become symptomatic at the time of Mr Sevilla’s fall but were most likely related to pre-existing degenerative diseases superimposed on the developmental shape of his hip. Professor McGill’s expectation was that Mr Sevilla could continue to experience symptoms for up to 12 months after the surgery, but he thought those symptoms more likely reflected pre-existing change in the hip than the effects of the incident in October 2009. Professor McGill described Mr Sevilla’s current status as one of mild arthritis against a background of developmental abnormalities that predisposed him to femoroacetabular impingement. He thought Mr Sevilla was well able to return to his pre October 2009 driving duties.
When Professor McGill examined Mr Sevilla again in July 2013 Mr Sevilla’s complaints about his left hip appeared to be limited to discomfort on the lateral aspect of the hip, typically associated with external rotation, but something Mr Sevilla claimed to be aware of when walking standing or sleeping. Mr Sevilla also reported some discomfort near the adductor tendons in his groin and in the left buttock. On physical examination Mr Sevilla again demonstrated an essentially full and symmetrical range of hip movement, with no complaints of pain, save an acknowledgement of “awareness of the hip region” at the limits of internal and external rotation. Professor McGill repeated his opinion that any ongoing hip problems Mr Sevilla was experiencing reflected the degenerative changes in his hip rather than being relevantly attributable to the October 2009 fall. He opined that, in any event, Mr Sevilla had no significant restriction in his range of hip movement. And despite acknowledging Mr Sevilla’s apprehensions that he might have difficulty with repeated climbing up and down into the cabin of a truck, Professor McGill considered that Mr Sevilla was fit to return to work as a driver.
Dr Conrad’s report of his 16 October 2013 examination of Mr Sevilla recorded Mr Sevilla’s complaints of pain and stiffness in his left hip and difficulty standing, walking and using stairs. He recorded the result of his physical examination of Mr Sevilla’s range of hip movement, although in more abbreviated fashion than either Professor McGill or Dr Maxwell, and opined that Mr Sevilla has “some restriction” of hip movement. Ultimately he concluded, albeit with the same deficiencies, upon which I remarked in paragraph 22 above, that Mr Sevilla would not be able to return to driving work.
Dr Maxwell saw Mr Sevilla on 23 June 2014. He noted Mr Sevilla’s complaints of left hip, involving sharp discomfort in the buttocks near the left ischial tuberosity, and also some pain in the inner thigh. Dr Maxwell reported that, on physical examination, Mr Sevilla had a reasonable range of hip movement.
It is again convenient to set out a comparison of the physical examination findings of Drs McGill, Maxwell, Guirgis and Conrad. In so doing I have, for the purposes of comparison, accepted Dr Maxwell’s explanation about the appropriate minimum numerical values that should be applied to Dr Conrad’s examination findings where he simply reported “no loss of movement” rather than stating a numerical value. That comparison is contained in the following table.
Clinician Maxwell McGill McGill Guirgis McGill Conrad Maxwell Date 19-Apr-11 6-Oct-11 31-Jan-13 2-Apr-13 29-Jul-13 21-Oct-13 23-Jun-14 ~409 ~458 ~589 ~616 ~724 ~773 Ex 22R Left Hip abduction 70 full full 25 30 45 40 adduction 25 full full 15 20 25 20 extension 25 full full 20 <5 loss 15 25 external rotation 75 full full 30 40 25 30 flexion 120 full full 95 110 95 100 Internal rotation 20 full 80% full 30 20 15 20
The table reveals some differences in the various examination findings. But there were not, in my view, material differences between the examination findings of Drs Maxwell, McGill and Dr Conrad. Professor McGill, in each of his thorough reports was consistent in his characterisation of Mr Sevilla as having a substantially full range of hip movement. Dr Maxwell was of substantially the same view. Professor McGill addressed Dr Conrad’s left hip examination findings in his oral evidence. He thought that they indicated some mild degree of limitation on flexion, good extension, and a mild degree of limitation on internal and external rotation. But he also considered that those restrictions would not adversely impact on Mr Sevilla’s capacity to work as a truck driver. Similarly Dr Maxwell also thought that even Dr Conrad’s reported examination findings indicated a good range of movement and were consistent with Mr Sevilla having a continued ability to return to his pre October 2009 driving duties.
Given the very limited reasoning in the reports of Drs Guirgis and Conrad, and their very abbreviated accounts of the hip complaints Mr Sevilla reported to them, I am not at all satisfied that their pessimistic views of Mr Sevilla’s ability to drive are preferable to the considered and carefully expressed contrary views of Professor McGill and Dr Maxwell.
MR SEVILLA’S VIEW ABOUT HIS WORK CAPACITY
It was submitted on behalf of Mr Sevilla that it would be wrong for me to prefer the clinical findings and opinions of Professor McGill and Dr Maxwell to Mr Sevilla’s own evidence – in particular his complaints of ongoing pain, consequently limited capacity, and his association of those complaints and incapacity with the October 2009 fall. Mr Sevilla’s evidence, put shortly in his oral evidence in chief, was that his work activities were restricted to filing and sorting of documents, occasional errands, monitoring the use of the truck wash bay, general office and yard tidying up, and occasional checking of trucks in the yard. He claimed that because of his injuries he could not even access the upper and lower drawers of document filing cabinets.
In emphasising the significance of Mr Sevilla’s evidence the submissions drew attention to (i) the importance of a proper evaluation of a claimant’s own evidence (about pain, in particular): see Zomer v Telstra Corporation [2012] AATA 601 at [51], and (ii) the importance of not importing any requirement of “reasonableness” into the relevant statutory definition of injury and the employment related criteria it involves: see Dean v Australian Postal Corporation (2010) 52 AAR 53, [2010] FCA 680. In the latter case Perram J was dealing with a claim where an Australia Post employee believed he had been bullied at work, and that the bullying was the cause of an incapacitating mood disorder he had developed. His Honour reviewed a number of authorities dealing with the situation where an employee suffers from a condition as a result of “an inaccurate or unreliable perception arising in the workplace” (at [2010] FCA 680 [8]). Perram J referred to Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 41; Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195 and Wiegand v Comcare (2002) 72 ALD 795, and said
The critical question always remains the one posed by the statutory language, namely, whether the ailment “was contributed to in a material degree by the employee’s employment”. That question is one involving notions of causation which are factual in nature and informed by commonsense.
Notwithstanding the submissions made on Mr Sevilla’s behalf, in determining his claim that he has an ongoing physical incapacity for work attributable to the October 2009 fall, the conflict between Mr Sevilla’s view of his abilities, and the views of the various clinicians who have examined him, cannot be resolved in the manner submitted on Mr Sevilla’s behalf. Mr Sevilla may believe that his shoulder and hip functions are limited to the extent he claims. But that belief is not consistent with the objective reality that emerges from the assessments of Drs McGill and Maxwell. Neither is it independently persuasive.
In relation to what I have referred to as the objective reality evidenced by the assessments of Drs McGill and Maxwell I recognise that there is some variation in the results of the physical examinations carried out by the various clinicians. Professor McGill was aware of those variations. He said that such variations can be associated with belief and non-physical restrictions on movement. He considered that the greater degree of variation then the greater the likelihood that non-physical factors were contributing to the restriction. Professor McGill was comforted in his conclusions because there was no great variations in Mr Sevilla’s apparent capacity on the various occasions that he examined him.
Dr Maxwell also addressed the variations in the reported results of examinations of Mr Sevilla’s range of movement. He considered that there were three possible explanations – (i) differences in the clinician’s skill and accuracy, (ii) variability in the patient’s underlying symptoms and (iii) differences in the clinician’s measurement techniques and preferences (about the tolerable degree of discomfort involved in the testing). But Dr Maxwell considered that even assuming that Mr Sevilla’s hip movements were as Dr Conrad assessed, Dr Maxwell considered that Mr Sevilla would still not have any reason for not returning to work as a driver.
The additional reason why Mr Sevilla’s apparent subjective belief in the limitation of his shoulder and hip functions is unpersuasive is that his subjectively perceived limitations do not appear to be associated, or at least not consistently associated with, movement. This is a point that Dr Chase made in his 10 August 2012 report. There he remarked on the incongruity of Mr Sevilla initially denying any pain in his left shoulder, and then spontaneously reporting pain in the shoulder, even though he was merely sitting waiting for Dr Chase to finish looking at his xrays. Dr Chase also remarked on the difference between the restricted range of movement apparent on active examination and the comparatively full range evident on passive examination, when Mr Sevilla appeared to actively assist with the movment. Dr Chase concluded that Mr Sevilla’s physical examination was notable for “pain behaviour”. He observed that Mr Sevilla appeared to be evidencing “a fair amount of activity avoidance behaviour”. Dr Maxwell made a similar observation, in his 30 June 2014 report when he noted that Mr Sevilla had exhibited “modified pain behaviour” when he was flexing his back. Dr Maxwell explained that the expression described a patient’s reaction that was greater than he would normally expect from the person’s known pathology. In this instance Mr Sevilla suddenly complained of pain in his hip, and grabbed part of his leg, whilst flexing his back, even though he had previously not complained of any pain when Dr Maxwell had been assessing his range of hip movement. Dr Maxwell thought the two behaviours were inconsistent, and not really probative of any incapacity.
The apprehensions of both Drs Chase and Maxwell tie in with the concluding comment Dr McGill made in his July 2013 report. There Dr McGill commented that
The discrepancy between what Mr Sevila appears to believe he is capable of performing and the physical and imaging findings is such that the success of lack thereof of an improvement in his work activities will depend primarily on his beliefs and motivation rather than the physical state of his left hip and left shoulder.
The validity of that observation by Dr McGill seems to be graphically illustrated by Mr Sevilla’s conduct in the latter part of 2012 when he voluntarily engaged in the activity of hand scraping the hull of his 25 metre yacht. In undertaking that activity he used a 1.3m long scraper and worked for two to three days to complete the task. Although Mr Sevilla strenuously denied that this involved much more arduous work than any of the employment tasks he had undertaken since the October 2009 fall, his denials are quite unconvincing. In undertaking the task of cleaning the hull of his yacht, over a period of days, Mr Sevilla was plainly engaged in a physical activity far more demanding and strenuous than the document filing activities he described at the beginning of his evidence in chief. It is, in my view, a telling corroboration of Professor McGill’s observation that I set out above.
Another pointer in the same direction comes from analysis of Mr Sevilla’s pessimistic view of his ability to return to work as a driver. Mr Sevilla said, towards the end of his cross examination, that he could not go back to work as a driver. I asked him why not. In so doing I drew his attention to the fact that Drs Maxwell and McGill had examined him and reported that he had essentially a full, and evidently pain free, range of relevant movement in his left hip. Mr Sevilla said that the doctors had not examined him when he had been driving. He claimed that when he was driving he got pain in his hip and shoulder.
It later emerged that Mr Sevilla still had his driver’s licence and a large car. He regularly used the car to drive to and from work – a trip that takes 20 to 25 minutes. He uses the car to go and visit friends and, occasionally, to go caravanning. His last caravanning trip had been in 2014, when he spent three weeks staying in the Lane Cover National Park. He persevered in this regular use of the car, despite his claims of hip and shoulder pain. When I asked him how he managed that he said that “you make adjustments”. I would infer from this evidence that Mr Sevilla’s reported pain in his hip and shoulder whilst driving is neither readily explained by any objectively discernible pathology nor evidenced in the history he has given, at least in relevant recent times, to Professor McGill, Dr Maxwell, Dr Conrad or Dr Guirgis. I would also infer that these complaints of pain, for which I note he took no medication, do not in fact significantly interfere with his capacity to drive.
For these reasons I am not satisfied that Mr Sevilla has, or had in September 2013, any relevant work incapacity as a result of the October 2009 fall.
ATTRIBUTION TO THE OCTOBER 2009 FALL
On the assumption (contrary to my finding) that Mr Sevilla did have a significant ongoing incapacity for work, it was implicit in the submissions made on his behalf, that I should accept Mr Sevilla’s claims that his shoulder and hip symptoms both relevantly started after the October 2009 fall and, irrespective of any underlying, but previously asymptomatic, pre-existing condition, should be accepted as compensable injuries for the purposes of SRC Act s 14.
There is an apparent degree of support for this submission in the history of the controversy over the responsibility for the arthroscopic surgery Dr Bruce carried out on Mr Sevilla’s hip in May 2012. On the assumption that Mr Sevilla had no prior pain symptoms, Professor McGill considered it was reasonable to conclude that the October 2009 had caused some aggravation of the underlying degenerative condition. In that respect his views were consistent with those of Dr Bruce and Dr Chase. And it was a conclusion strongly endorsed by Dr Conrad. Indeed Dr Conrad went so far as to say that the “bump” abnormality evident in the July 2010 hip MRI could only have been caused by trauma and was likely itself to be attributable to the October 2009 incident.
I have set out earlier (in paragraph 28) the substance of the reasoning that led Professor McGill, and the Respondent, to conclude that, at least at the time of Dr Bruce’s May 2012 left hip arthroscopy procedure, Mr Sevilla’s complaints may be attributable to the October 2009 fall. Dr Conrad’s views in 2013 and at the hearing were, at least initially, rather more emphatic. His 21 October 2013 report described the July 2010 MRI as evidencing “blunting of labrum with unstable tear”. He then ventured the opinion (in his oral evidence) that labral injury was usually the result of a traumatic event . He thus attributed the cause of Mr Sevilla’s hip complaints to the October 2009 fall incident, on the basis that this was the only known such traumatic event.
There are a number of difficulties with Dr Conrad’s view. They start with the fact that he misinterpreted the July 2010 MRI. It actually describes a “blunted antero-superior and super-lateral labrum without unstable tear”. Furthermore, Dr Conrad later conceded that labral tears may in fact occur without trauma.
The difficulties increase with the consideration that none of the other clinicians supported Dr Conrad’s view about the likely traumatic origin of the degenerative abnormalities evident in the July 2010 MRI. That view is conspicuously absent from any contemporaneous medical assessment and was categorically rejected by Professor McGill. It was an opinion merely asserted in the course of Dr Conrad’s somewhat voluble and indirect response to questions put to him in cross examination, and I am unable to attach any significance to it.
Thirdly, Dr Conrad’s attribution of Mr Sevilla’s ongoing hip difficulties to the October 2009 fall incident is based on two main assumptions. The first is that his relevant symptoms only started after the fall. The second is that the fall involved an impact mechanism that provides at least a plausible causal mechanism.
In relation to the first matter, Mr Sevilla was clearly a very poor historian. That is a matter consistently remarked upon in the many medical reports throughout the period from 2009 to 2013. It became even more apparent in the course of Mr Sevilla’s cross examination. He was cross examined on many aspects of his previous history, and his absence of specific recollection of details was readily apparent. It did emerge that he had in fact had various relevant consultations over the years before his October 2009 fall.
One of the doctors Mr Sevilla had seen was a Dr Chan. In 2005 Dr Chan provided a medical report to an insurance company in which he gave an overview of Mr Sevilla’s previous medical history. The report included information that Mr Sevilla had a long history of gout and other musculoskeletal complaints, including knuckle pain in December 1993 and shoulder joint and trapezius pain on and off since December 1993. Mr Sevilla remembered his history of gout, but not the other matters reported by Dr Chan.
Mr Sevilla consulted another GP – Dr Sung – from about April 2004 onwards. Dr Sung’s attendance notes identified a consultation in November 2007 when Mr Sevilla reported pain in his left shoulder, both at night and with movement. Mr Sevilla could not remember any details of the matter. However, Dr Conrad accepted the potential relevance of this information, and its possible significance to his views about the likely causal significance of the October 2009 incident. Dr Conrad conceded that he would need to obtain more information than had been previously provided to him before being able to arrive at an informed opinion.
In relation to the second assumption underlying Dr Conrad’s view, both Dr Maxwell and Professor McGill thought it highly unlikely that the hip impingement symptoms Mr Sevilla sought to relate to the October 2009 fall could possibly be explained by a backwards fall of the kind he had described to various clinicians. They both thought that symptoms associated with Mr Sevilla’s predisposition to femoro-acetabular impingement could not readily be accounted for unless the fall involved a considerable degree of hip flexion. (Professor McGill demonstrated what he thought would be required, by hugging his flexed leg into his chest.) But they considered that such a possibility was contradicted by the mechanism of a backwards fall of the kind that Mr Sevilla had, relatively consistently, described to various medical practitioners he consulted. Mr Sevilla, despite being a poor historian, is consistently recorded in the history he gave to various doctors, as saying that he fell backwards onto his hands and that his buttocks did not hit the ground as a result of the October 2009 fall.
Dr Conrad was asked what were the details of the fall circumstances on which he relied in expressing his opinion about causation. It soon became apparent (indeed he conceded) that he had no clear understanding of, and had made no specific assumption about, the actual mechanism of Mr Sevilla’s October 2009 fall. Dr Conrad was then asked to assume that the fall had not involved any impact between Mr Sevilla’s buttocks and the ground. Dr Conrad then conceded that, on such an assumption, he would have no foundation for his opinion attributing Mr Sevilla’s current hip symptoms to the October 2009 fall.
For these reasons I am not satisfied that Mr Sevilla’s current complaints of ongoing pain and discomfort can be relevantly attributed to the October 2009 fall.
DECISION
The 3 October 2013 decision under review is affirmed.
I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member .....................................[sgd]...................................
Associate
Dated 18 May 2015
Date(s) of hearing 15 - 17 April 2015 Counsel for the Applicant Ms R Henderson Solicitors for the Applicant Marshall & Gibson Lawyers Counsel for the Respondent Mr P Jones Solicitors for the Respondent Sparke Helmore
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