Ryan and Linfox Armaguard Pty Ltd
[2011] AATA 747
•25 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 747
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/3360
GENERAL ADMINISTRATIVE DIVISION ) No. 2011/0120 Re ERNEST RYAN Applicant
And
LINFOX ARMAGUARD PTY LTD
Respondent
DECISION
Tribunal Ms J Toohey, Senior Member
Dr I S Alexander, MemberDate25 October 2011
PlaceSydney
Decision
The Tribunal affirms the decisions under review.
....................[sgd].......................
Ms J Toohey
Senior Member
CATCHWORDS
COMPENSATION – cervical spine fracture – whether injury arose out of or in the course of Applicant’s employment – whether aggravation of existing condition – whether Respondent liable to pay weekly compensation and medical expenses – whether Respondent liable for permanent impairment and non-economic loss – Tribunal not satisfied fracture of Applicant’s cervical spine related to his employment – decisions under review affirmed.
Safety, Compensation and Rehabilitation Act 1988
Comcare v Nicholls [1999] FCA 209
Philips v The Commonwealth (1964) 110 CLR 347; [1964] HCA 22
REASONS FOR DECISION
25 October 2011 Ms J Toohey, Senior Member
Dr I S Alexander, MemberBACKGROUND
1. Mr Ernest Ryan is 71 years old. From 2000 until 2010, he worked as a coin processor for Linfox Armaguard Pty Ltd (the Respondent). After work on 8 February 2010, he felt severe pain in his neck. Subsequent x-rays showed fractures in his cervical spine. He has not worked since.
2. Mr Ryan claims that the nature and conditions of his employment caused, or contributed to, the injury to his cervical spine. The Respondent does not dispute the fractures occurred, but says they were unrelated to Mr Ryan’s employment.
3. Mr Ryan seeks review of two determinations made by the Respondent. By the first, made on 30 July 2010, the Respondent denied liability to compensate Mr Ryan for incapacity and medical expenses. By the second, made on 21 December 2010, the Respondent denied liability to compensate him for permanent impairment and non-economic loss.
RELEVANT LEGISLATION
4. The Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that the Respondent is liable to compensate an employee for an injury that results in incapacity for work or impairment: s 14.
5. Injury for the purposes of the Act means, relevantly:
(i)a disease suffered by an employee; or
(ii)an injury (other than a disease) that it is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(iii)an aggravation of a physical or mental injury (other than a disease) that arose out of, or in the course of that employment.
6. Disease means an ailment suffered by an employee or an aggravation of such ailments that was contributed to, to a significant degree, by the employee's employment.
7. Since 3 April 2006, the Respondent has been a licensed corporation under the Act. It is common ground that any injury sustained prior to that date would be subject to the Workers Compensation Act 1987 (NSW) although nothing turns on this in these proceedings.
THE ISSUES
8. We have to determine whether Mr Ryan suffered an injury to his cervical spine that arose out of, or in the course of, his employment; alternatively, whether he suffered an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by his employment.
9. For the reasons set out below, we are not satisfied, on the evidence before us, that the injury to Mr Ryan‘s cervical spine was related to his employment. It follows that we do not have to determine the extent of the Respondent’s liability for any incapacity or medical treatment, or the degree of any permanent impairment.
MR RYAN’S EVIDENCE: HIS DUTIES
10. Mr Ryan started working at the Respondent's Smithfield site in July 2000. At that time he worked, on average, four days a week. In 2005, he became a permanent part-time employee and worked two days a week, on Monday and Tuesday, generally in six-hour shifts from 5.30 am to 11.30 am. Armoured vans delivered bags of coins for sorting and rolling. The bags would be offloaded, placed on trolleys and taken to the area where Mr Ryan worked.
11. At Smithfield, the average bag weighed approximately 12 kg but, according to Mr Ryan, the heaviest weighed in excess of 20 kilograms. He would pick up the lighter bags from a palette by hand, and the heavier bags with both arms, holding the bag against his chest. From there, he would cut the bag open and empty it into the sorting machine, from where he would tag the sorted bags and transfer them onto a palette.
12. In May 2006, the Respondent transferred its coin-processing operation to Rosehill.
13. Until 2008, the average bag of coins still weighed approximately 12 kilograms, but in 2008 this was halved to prevent injury. From then, the heaviest bag weighed 6.75 kilograms; others weighed between 4.68 and 6.41 kilograms, depending on the denomination of coins it contained.
14. At Rosehill, Mr Ryan worked only on the coin rolling lines as a coin handler. Coins came in loose or in bags and were loaded into the sorting and rolling machines. Mr Ryan would lift each bag from the trolley with both hands, cut it open and empty it into the machine. As the trolley emptied, the height of the bags reduced from around head height to around knee height. The machine sorted the coins, rolled them in cardboard tubes and dropped them onto a conveyor belt from where others would put them in to bags of varying denominations.
15. Mr Ryan gave evidence that the work was always busy; it was hard and fast, repetitive and constant, and involved a good deal of bending, and lifting and carrying substantial weights. He estimates he regularly processed 200 to 300 bags per shift and that, from 2008, he moved an average total of about 3000 kilograms each shift. (Based on a maximum weight of 6.75 kilograms, this would equate to 223 bags per shift). He says that, in 2008, breaks were reduced from two 10-minute breaks per shift to one 10-minute break per shift.
16. We heard evidence from Mr Ray Power, who was the coin operations manager and Mr Ryan's supervisor at Rosehill. He regularly worked on the line and was in a position to observe Mr Ryan at work. He gave evidence that he did not keep records of weights of individual bags but he kept exact and accurate records each day of the total weight of coins processed.
17. Mr Power agreed with Mr Ryan’s evidence about the weight of individual bags but said it was not possible for a worker to process 200 to 300 bags per shift as Mr Ryan claimed. Rather, that number of bags would be shared between workers and Mr Ryan would process on average 120, and at most 140, bags per shift. Mr Power also gave evidence that, at the relevant time, workers were entitled to a 10-minute break every two hours and, to the best of his knowledge, all of his staff took their breaks.
18. As we set out below, we consider aspects of Mr Ryan’s evidence to be unreliable. We have no reason to doubt Mr Power’s evidence and we prefer his evidence about the nature and conditions of Mr Ryan’s employment to that of Mr Ryan.
MR RYAN’S EVIDENCE: THE INJURY TO HIS CERVICAL SPINE
19. Mr Ryan gave evidence that, at the end of his shift, he often felt a bit stiff or tender around his lower neck, in the shoulder girdle area, but he had never required treatment or more than the occasional Panadol to relieve it. He was generally fit and would walk and jog daily, weather permitting, for up to two hours.
20. After leaving work on Monday, 8 February 2010, Mr Ryan felt pain around his middle to lower neck that was quite different from anything he had felt previously. He believed he must have sprained his neck but the pain became progressively worse. Around 7.00pm, he telephoned his supervisor and left a message to say he would not be in the following day.
21. On 9 February 2010, when the pain was worse, Mr Ryan saw his general practitioner, Dr Alfred Wilson, who arranged for him to have x-rays. On 10 February 2010, the pain was worse and the x-rays confirmed several fractures in his cervical spine. Dr Wilson had him admitted immediately to Westmead Hospital where he stayed for 16 days. He was discharged wearing a COT collar and brace which he wore for several weeks, after which he wore a softer collar until late May or early June. From then the pain gradually improved until by September or October 2010 it had stabilised.
22. Mr Ryan now has restricted movement and what he describes as minor discomfort and stiffness rather than pain between his shoulder blades. He occasionally takes Panadol to relieve the pain. He no longer jogs; he still walks for an hour or so each day, but not on rough tracks.
23. To his knowledge, Mr Ryan did not suffer any trauma to his neck in the period leading up to 8 February 2010 or at work that day. He was not involved in any motor vehicle accident; he is certain he did not suffer a fall; and he did not go for his usual jog or walk in the week or so before 8 February 2010 because of heavy rains.
CONSIDERATION OF MR RYAN’S EVIDENCE
24. Mr Ryan has given varying accounts of the onset of his neck pain after he left work on 8 February 2010. In oral evidence, he was emphatic that the onset of pain occurred while driving home from work. He finished at 11:30am and drove straight home; about 15 to 20 minutes into the 25-minute drive home, his neck became “quite painful”; the pain came on “quite suddenly” and was “quite acute”. He identified the precise point in the drive home, as he passed a lake, when the pain started; by the time he got home it was bad enough that he could not go for his usual walk. We note that this is consistent with the history taken by Dr John Bentivoglio on 19 July 2010 that Mr Ryan started to experience severe neck pain while driving home from work.
25. In contrast, in a written statement which he prepared in April 2010, Mr Ryan stated:
I noticed this comfort in the upper part of my back and neck on or about 8 February 2010. This discomfort came on whilst I was at home.
26. The clinical notes from Westmead Hospital show that when he was admitted on 10 February 2010, Mr Ryan told a Registrar that the pain started “after getting home”.
27. A similar account appears in Dr Wilson’s reports dated 20 May 2010 and 25 May 2011 in which he records, respectively:
Mr Ryan went straight home after work on Monday 8 February 2010. He experienced severe pain that afternoon and that evening.
Mr Ryan had just returned from [sic] on Monday 8 February after midday and began experiencing pain in the neck.
28. The hospital’s notes for 10 February 2010 also show that Mr Ryan “presented with a history of severe neck pain from Monday” and “has been lifting heavy boxes yesterday” (that is, on Tuesday). Mr Ryan disputes the accuracy of this last note and denies lifting heavy boxes the previous day.
29. We accept the possibility that the clinical notes, particularly when taken in a busy hospital, do not accurately reflect what Mr Ryan said at the time. However, his insistence in oral evidence that the onset of neck pain was at a precise point during his drive home is not easily reconciled with the records of what he told his doctor and the hospital. It is one of several matters which tend to undermine the reliability of his evidence generally.
30. Mr Ryan has also given varying accounts of his alcohol consumption. In oral evidence, he said his consumption could vary but would be three to four standard drinks a day at most. Under cross-examination, he said it would be four or five “at the very most”, although it could be six or seven if he was at a barbecue or similar event. He was adamant that a bottle of wine would last him three or four nights and that he would never drink a whole bottle in a night.
31. The clinical notes from Westmead Hospital are at odds with Mr Ryan's evidence about his alcohol consumption. A report from the Department of Neurosurgery dated 26 February 2010 shows:
[Mr Ryan] was very agitated when came to us, diagnosed as being having Acute alcohol withdrawal syndrome. (sic) He was seen by drug and alcohol team who started him on diazepam and thiamine. He refused to have DNA services/rehab.
32. The progress clinical notes show that on 11 February 2010, Mr Ryan was “not really feeling neck pain” but he was anxious, agitated and experiencing visual hallucinations. Later that day, the notes show “Chronic ETOH [alcohol abuse] – 9 std drinks/day for last 15 years. 9+ drinks when in army; has ‘essential tremor’ ”. They also show his last drink was 48 hours previously, on Tuesday afternoon.
33. On 12 February 2010, the notes show that Mr Ryan was still agitated and having hallucinations. He was placed in restraints. He apparently settled a bit as the day wore on but was confused and disoriented. Around 2.30 am, the notes show: “My impression is that this is an acute withdrawal from alcohol however need to exclude other [indecipherable] cause for agitation”.
34. The notes for 12 February 2010 show that a Drug and Alcohol team member recorded:
Told me - drinks alcohol - 3 days wk. - 4 bottles beer - longneck - or 1-2 bottles of wine - can't remember when he last drank. Spoke with son - usually visits him weekly. Dad has been an alcoholic for a long time … mental deterioration over the years, mostly in recent months.
35. On the same day, within a short time, another Drug and Alcohol team member recorded: “ETOH dependence: admits to several years of [approximately] 5-6 cans beer/day + 1-2 bottles of wine (i.e. 12 to 20 standard drinks/day)”; and “opiate dependence”.
36. Mr Ryan has little recollection of these days in Westmead hospital. He has no recollection of anyone discussing his alcohol intake with him. He disputes the notes about his alcohol consumption. He denies suffering from alcohol withdrawal and attributes his symptoms to the drugs, which included morphine, that he was given at the hospital. He says his son has since denied telling hospital staff he was an alcoholic.
37. Dr Neil McGill, consultant rheumatologist, saw Mr Ryan on 8 August 2011. He noted the clinical records from Westmead Hospital. He recorded that Mr Ryan told him he drank three or four beers or wines each day but acknowledged he could drink excessively at times. Dr McGill concluded that there was “a high likelihood that alcohol intake led to cervical spine injury. He may genuinely have had no recollection of the event.” Mr Ryan strenuously disputes Dr McGill's conclusion.
38. Dr Wilson’s patient summary (apparently from around 2000 when he first saw Mr Ryan) recorded that Mr Ryan drank five drinks a day, seven days a week. Mr Ryan disputes this record. Dr Wilson gave evidence that he did not think Mr Ryan’s drinking excessive and he had no reason to ask him about it again. However, we note that his clinical notes in March 2009 record “Alcohol intake is heavy”.
39. The evidence strongly suggests that Mr Ryan’s alcohol consumption is considerably more than he claims. We cannot reach any conclusion, on the evidence, that his fractures resulted from a fall as Dr McGill suggests. However, the inconsistencies in his accounts of his drinking tend to further undermine the reliability of his evidence, and a fall, as Dr McGill suggests, is possible.
THE MEDICAL EVIDENCE
40. The medical evidence is clear that Mr Ryan has widespread, degenerative changes at multiple levels in his cervical spine. It is also clear, from x-rays and MRI scans on 9 February 2010 and subsequently, that he has fractures in his cervical spine at C5 through C7 levels.
Dr Bentivoglio’s evidence
41. Dr Bentivoglio, an orthopaedic surgeon, saw Mr Ryan in July 2010 and November 2010 for assessment. He prepared written reports, including a supplementary report in March 2011, and gave oral evidence.
42. Dr Bentivoglio noted that Mr Ryan had evidence of significant degenerative changes at multiple levels in his cervical spine but he did not think these could explain the fractures. If anything, in his view, they would have protected his cervical spine against fractures.
43. In Dr Bentovoglio’s view, the absence of significant trauma meant there was no other explanation than stress fractures caused at work by the nature and conditions of Mr Ryan’s employment. The fact that the pain did not come on immediately could probably be explained by a combination of factors: any fracture leads to a haematoma that reaches maximum pain level after a couple of hours; and Mr Ryan would have probably cooled down on the way home where he became more aware of the pain at that site.
44. Having said that, however, Dr Bentivoglio gave evidence that he has never seen a stress fracture in the cervical spine; he has seen one in the back and the commonest area is in the foot. He told the Tribunal that he has read about stress fractures in the neck but never seen it. We note that Dr David Maxwell, an orthopaedic surgeon who saw Mr Ryan in January 2011 for assessment, also reported that he has never seen a stress fracture of the cervical spine, and Dr Neil McGill, whose evidence is summarised below, said the same.
45. In his written reports, Dr Bentovoglio recorded that Mr Ryan carried “heavy bags of coins”. However, it became apparent at the hearing that he thought that Mr Ryan had to carry considerably heavier weights than was actually the case. He was under the impression that the bags would have weighed “more than 20 to 25 kgs” each and, contrary to Mr Ryan’s evidence that he did not carry them any distance at all, Dr Bentovoglio thought he had to carry them over a distance of some 20 metres.
46. The evidence about the actual nature and conditions of Mr Ryan’s work did not cause Dr Bentivoglio to alter his opinion. In his view, the fact that he felt the onset of pain shortly after leaving work could not be explained other than by a stress fracture related to his employment. Had they occurred before 8 February 2010, for instance after a fall, Mr Ryan would have felt pain within a couple of hours, and much more severe symptoms by 8 February 2010.
47. Dr Bentovoglio told the Tribunal he did not consider whether anything outside work might have caused the fractures because he did not think it relevant; he did not think at Mr Ryan’s age that he would carry weights greater than 10 kilograms outside work.
Dr McGill’s evidence
48. Dr McGill, a rheumatologist, saw Mr Ryan in August 2011 for assessment. He prepared a written report and gave oral evidence.
49. Dr McGill thought the x-rays and MRI scans, and reports, were consistent with traumatic fractures that occurred within the two weeks before 9 February 2010 but said it was not possible to determine whether they occurred on 8 February 2010 or any other specific date within that period.
50. Dr McGill diagnosed Mr Ryan as having diffuse idiopathic skeletal hyperostosis (DISH). Contrary to Dr Bentivoglio’s opinion that the degenerative changes in Mr Ryan’s spine would protect against fracture, he gave evidence that the rigidity of the spine that those changes caused would have increased his susceptibility to traumatic fracture.
51. Dr McGill did not agree that the nature and conditions of Mr Ryan's employment, or any other daily activities, would have caused the fractures. He gave evidence that stress fractures can occur lower down in the thoracic and lumbar spines but he has never seen, or heard report of, a stress fracture of the cervical spine and he is not sure that such a thing exists at all. He explained in detail the mechanism by which a stress fracture may occur lower in the spine but said even weightlifters do not develop stress fractures of the cervical spine.
52. Dr McGill gave evidence that lifting does not put strain on the cervical spine; bending can put pressure on the cervical spine but he has never seen, heard, or read about, a stress fracture of the cervical spine. He agreed that the type of lifting and carrying described by Mr Ryan would have put some pressure on his spine, but it would have been at a level lower than the fractures, and even weightlifters do not develop stress fractures of the cervical spine.
53. Dr McGill was emphatic that Mr Ryan’s fractures had to be caused by discrete trauma such as a motor vehicle accident or a fall. As Mr Ryan had not reported being involved in a motor vehicle accident, or experiencing other trauma such as a fall, Dr McGill thought it likely he had fallen while intoxicated and forgotten the fall.
54. Dr McGill gave evidence that it is possible for a person to suffer a fracture and not have a lot of pain at the time. He thought there would be a reasonable case for arguing that Mr Ryan’s fractures occurred on the morning of 8 February 2010 if there was evidence of pain that became progressive and remained severe over the following days and weeks. However, given that the clinical notes showed that, on 11 February, 2010, Mr Ryan was “not really feeling neck pain”, he could only say that the trauma occurred in the few weeks prior to 9 February 2011. .
Dr Wilson’s evidence
55. Dr Wilson has been Mr Ryan’s general practitioner since 2006. He prepared a written report and gave oral evidence.
56. Dr Wilson gave evidence that Mr Ryan has had some minor neck and shoulder problems after work in the past but nothing of significance. In his opinion, the “persistent, rapid, multidirectional and persistent and jerky movements of [Mr Ryan’s] whole body and in particular the upper spine with the heavy weights in his hands” put stress on his spine especially at the C5 to C7 areas, resulting in “acute fractures of the brittle bones in his neck”. He was not aware of any factors unrelated to Mr Ryan's work that had contributed to his condition.
57. The medical certificates issued by Dr Wilson in relation to Mr Ryan's neck made no reference to his employment until 8 April 2010 suggesting, the Respondent submits, that Mr Ryan himself made no connection between his employment and his injury in that time. However, Dr Wilson gave evidence that he advised Mr Ryan on 9 February 2010 that he should claim compensation but Mr Ryan is not someone to stay away from work and he did not wish to make a claim. We accept Dr Wilson's evidence and attach no significance to this aspect of the medical certificates.
CONSIDERATION
58. We prefer Dr McGill’s evidence to that of Dr Bentivoglio. In our opinion, Dr McGill gave a more considered opinion which he was able clearly to support. Similarly, we prefer Dr McGill’s evidence to that of Dr Wilson, who has known and treated Mr Ryan for some time but is not a rheumatologist.
59. Dr Bentovoglio was under a misapprehension as to what Mr Ryan’s duties actually involved, and understood them to involve lifting considerably heavier weights, and carrying them over some distance, than was the case. Further, he concluded that the fractures were work-related based on a temporal connection alone. In his view, the pain having come on shortly after Mr Ryan left work, the fractures had to be caused at work that day; no other explanation was possible. However, he gave no clear explanation why they could not have happened in the previous days. He agreed that he did not consider any other possibility, including trauma. He did not think it relevant to do so but, even then, he made assumptions, without evidence, about what Mr Ryan might, or might not, do in his domestic life.
60. Dr Bentivoglio could not explain the mechanism of injury and why the activities which Mr Ryan performed at work would cause stress fractures in his cervical spine. Moreover, there was an internal inconsistency in his evidence which he did not satisfactorily reconcile. He attributed the fractures to the nature and conditions of Mr Ryan’s employment but, at the same time, he gave evidence that he has never seen a stress fracture of a cervical spine.
61. The medical evidence is consistent that stress fractures in the cervical spine are virtually unheard of, and we accept Dr McGill’s opinion, that the condition of Mr Ryan’s cervical spine made it more susceptible to traumatic fracture. We prefer his opinion to Dr Bentivoglio’s opinion that the condition of Mr Ryan’s spine protected it from fracture. Dr Bentivoglio did not refer us to any independent evidence supporting his view.
62. We accept Dr McGill’s opinion that the fractures in Mr Ryan’s spine had to be caused by trauma and were not caused by the nature and conditions of his employment. We also accept his opinion that the fractures occurred at some point in the two weeks leading up to 9 February 2010. Dr McGill acknowledged there was a reasonable case for concluding that they happened close to, or on, 8 February 2010 and, to that extent, he was in agreement with Dr Bentivoglio. However, in the absence of evidence of trauma that day, mere proximity in time is not sufficient to conclude that the fractures were caused by Mr Ryan’s employment.
63. We cannot, on the evidence before us, reach any conclusion about when the fractures in Mr Ryan’s cervical spine occurred. In the absence of evidence of trauma at work that day, the possibility that they occurred at work on 8 February 2010 and he did not feel pain for some hours is unlikely. It is possible the trauma occurred at any time in the previous two weeks, or even after he left work on 8 February 2010. We cannot conclude on the evidence that Mr Ryan fell while intoxicated and could not remember it, as Dr McGill suggested, but it remains a possibility as well.
CONCLUSION
64. It is well established that there is no onus of proof in administrative proceedings. However, a claimant nevertheless bears the practical onus of proving the facts necessary for his or her claim to succeed: Comcare vNicholls [1999] FCA 209, per Heery J at [19] citing Kitto, Taylor and Owen JJ in Philips v The Commonwealth (1964) 110 CLR 347, 350. In our view, Mr Ryan has not discharged that onus.
65. We are not reasonably satisfied, on the evidence before us, that Mr Ryan suffered a traumatic fracture or fractures of his cervical spine while at work or that the nature and conditions of his employment caused, or contributed to a significant degree, to them.
66. We affirm the decisions under review.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr I Alexander, Member.
Signed: ......[sgd]........................................................................
C. Taylor, AssociateDates of Hearing 10 and 11 October 2011
Date of Decision 25 October 2011
Counsel for the Applicant Mr D Shillington
Solicitor for the Applicant Mr S O’Halloran
Counsel for the Respondent Mr D Richards
Solicitor for the Respondent Mr B Ablong
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