Samarzic and Comcare
[2006] AATA 224
•24 February 2006
Administrative
Appeals
Tribunal
WRITTEN REASONS FOR ORAL DECISION [2006] AATA 224
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/555
GENERAL ADMINISTRATIVE DIVISION ) Re DRAGAN SAMARZIC Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly
and Dr Max ThorpeDate 24 February 2006
Date of Written Reasons 10 March 2006
Place Sydney
Decision The decision under review is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – permanent impairment claim – work accident in January 1996 – history of back pain from 1985 – involved in motor vehicle accident in 1998 and sustained injury to neck, right shoulder and thoracic lumbar spine – worked full time hours with overtime from January 1996 to July 1996 - claiming permanent impairment to his back, neck and right shoulder and arm – medical evidence supports no whole person permanent impairment to neck, back, right shoulder and arm – decision affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 24 and 27
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant and Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly and Dr Max Thorpe Summary
1. Mr Samarzic who is a truck mechanic, was injured at work on 23 January 1996. He was standing on a tool box between the cab of a Mach truck and the wing of the dumper section behind the cab (“the accident”). Some bolts holding the wing in position had been removed and it swung hitting him on the forehead.
Proceeding
2. This proceeding is a review of a decision made on 11 March 2004 which rejected his claim for permanent impairment to his back, his neck and right shoulder and arm resulting from the accident.
3. For the reasons that follow we have found that Mr Samarzic does not suffer permanent impairment as he claimed arising from the accident and accordingly affirm the decision under review.
Legislation
4. The relevant legislation is sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.
The Evidence
5. Mr Samarzic described the accident which is summarised above. He said the wing of the dump truck hit his forehead and nose and made him dizzy and unstable. He was assisted and his boss told him to go to the lunchroom where he stayed for the rest of the day. He said that the next day he felt bruised and sore. There was bruising to the forehead and nose. He had a sore neck, right shoulder and neck. He said that before the injury he had had no significant injury and no problems in those parts of his body. He said he was given some inflammation tablets by his doctor, Dr Lau.
6. The investigations undertaken at the request of Dr Lau included X-rays of the skull/facial and nasal bones taken on 25 January 1996 (T3). This showed no fracture, and an X-ray of his lumbar spine was performed which showed no significant abnormality in the lumbar spine and the sacroiliac joints appeared intact and unremarkable (T4). The report of Dr Lau dated 30 January 1996 recorded a contusion injury to forehead and nose with shoulder and neck pain and back pain due to the accident and certified him unfit for work. A similar certificate was given on 6 February 1996 for the period 24 January to 6 February 1996.
7. The claim form dated 22 February 1996 gave the diagnosis as "injury to forehead/ nose/ headache/ neck pain". The authority to allow medical information to be given in the same document specified "forehead, neck, back". The description of the injury given by Mr Samarzic was "headache, neck pain, back pain + face". In response to the question, what part of the body is affected, eg lower back? he specified “upper back - headaches.”
8. On 14 March 1996 Comcare accepted liability for contusion to forehead/nose and neck pain and expenses to 9 February 1996. On 22 July 1996 an X-ray report of the cervical spine found "minimal degenerative change at C5/6 of dubious significance and limited extension with reversal of the cervical lordosis. Rotation of the spine as processes of C1 to 3 to the left attributed to paravertebral muscle spasm". By 13 July 1996 Mr Samarzic had changed his general practitioner because he said Dr Lau was not interested in compensation claims.
9. The rehabilitation report (T15) dated around 28 August 1996 states that Mr Samarzic continued working until July 1996 "when one morning client had problems getting out of bed because of pins and needles in both arms and legs with sharp pain around his neck into his lower back region. Client returned to Dr Lau who appeared to have advised client the symptoms were the result of client's sleeping in an awkward position. Client was dissatisfied with the medical explanation because he felt those symptoms were related to the accident." This is the July 1996 incident. From then on Mr Samarzic then saw Dr Bosnic.
10. Occupational Health Nurse Elarcosa from the Australian Army wrote to Comcare on 5 August 1996 enclosing a completed schedule of questions and the X-ray report of 22 July 1996 received from Mr Samarzic "to support further treatment and time off work after 9 February 1996. I have advised claimant not to engage himself on overtime work while still experiencing neck discomfort as extended work hours led to lost mandays (recent absences 13 to 15 May 1996 and 22 to 26 July 1996). He stated that he is not interested in having physiotherapy unless it is conducted during work hours and if it will impose limitation on the amount of overtime work he performs".
11. Dr Crocker also details a July 1996 incident when Mr Samarzic woke up and "couldn't feel" his arms or legs and they felt paralysed to all limbs and that he had suffered a similar episode about two weeks before he saw Dr Crocker on 28 October 2006. However, the doctor did not consider those occasions resulted from the injury (T18).
12. On the evidence we find that Mr Samarzic returned to normal duties at the end of January or early February 1996 and continued with them until July 1996 without significant time off work and in fact he was also undertaking overtime (T15).
13. The schedule of questions dated 30 July 1996 (T10) and filled out by Dr Bosnic described the work related condition as muscular ligamentous strain of cervical and lumbosacral spine. He described the current status as painful cervical and lumbosacral spine during bending over and lifting and the treatment was rest and analgesics plus physiotherapy during the course of employment. The prognosis was good. There are many certificates in evidence from Dr Bosnic and it is not necessary to refer to all of them in detail. The first date of 19 August 1996 certified Mr Samarzic as fit for modified duties from 20 August and specified no climbing, no heavy lifting, no excessive bending. The diagnosis given was a “strained cervical spine” Physiotherapy was also specified.
14. A certificate dated in September 1996 certified him as fit to return to pre-injury duties although treatment required specified "physiotherapy and restricted duty". He was certified unfit for work on 25 October 1996 (T17). He commenced normal hours on suitable duties on 16 December 1996 and was to upgrade his duties. He had physiotherapy from August 1996 until March 1997. He was certified fit to return to pre-injury duties on 19 August 1997 but was subsequently certified unfit. On 9 June 1998 he was involved in a motor vehicle accident when he was sitting in a stationary vehicle which was hit from behind. He had physiotherapy again and was certified fit to resume his pre-injury duties on 17 May 1999 (T38) and subsequently was certified unfit and then fit for suitable duties.
15. An MRI scan of the cervical spine dated 14 October 1999 (T49) showed no abnormality. On 26 May 2000 Dr Bosnic certified Mr Samarzic fit to resume pre-injury duties but subsequently certified him to be unfit. This pattern continued until he was made redundant on 25 October 2003. Over the years he had further physiotherapy from time to time. Mr Samarzic in his oral evidence described how in the early days when he returned to normal duties which involved all sorts of mechanical work it made him sorer and he took tablets. He would see Dr Bosnic, would have time off, return to restricted duties and then back to normal duties as I've set out above.
16. His main problems, he said, with normal duties were he could not elevate his arms above shoulder height. It made his shoulder and neck really painful. He cannot get his right shoulder much above horizontal. Cramping in his hands was another problem. He could not remember any of these problems before the injury. He said that the 1998 motor vehicle accident aggravated his neck and shoulder pain but it went back to the level it was before the accident. He still gets pain but did not know which it was from. Since his redundancy he does chores around the house looking after the children, has tried to get two jobs but as he has a compensation claim he has been rejected.
17. At the hearing he said he cannot get full movement in his neck. Movement to the right, left and up and down was restricted. His right shoulder is tight. Dr Giblin had given him a cortisone injection in his shoulder. He gets cramping in his hands and fingers which still happens. His back is still a little bit stiff which restricts movement. He experiences soreness in the middle to lower area of his back.
18. In cross-examination Mr Samarzic agreed that he had been involved in a motor vehicle accident when he was young. He thought when he was about 14 but could not recall. He also could not recall and did not deny having given a history of lower back pain to Dr Lau in 1986 and in 1991 and requesting X-rays of that date. Dr Lau's letter to a firm of solicitors dated 21 May 1991 about a motor vehicle accident on 6 January 1985 sets out Mr Samarzic's history relevantly (Exhibit R2) He first consulted that practice on 15 July 1985 with conjunctivitis and made no mention of any problems relating to an accident. The first presentation referring to lower back pain was on 6 November 1986. The complaint was of dull aching pain across his lower lumbar region with no radiation down his legs. Tenderness was found on examination. Mr Samarzic told Dr Lau of a car accident about two years ago and that he had on and off back pain since then. X-rays taken that year showed normal findings. There were no back symptoms after that until May 1991 when Mr Samarzic requested further X-rays of his back saying he had recurrent back pains over the years. He said he had seen doctors and specialists and had been told that it was muscular. He was not in pain at the time of examination. In 1991 he had a normal CT scan of the lumbar spine apart from minimal apophyseal joint degeneration. Mr Samarzic conceded that if he had forgotten the problems he told Dr Lau about, he may have forgotten problems concerning the neck and shoulder that he has reported to other doctors since.
19. Mr Samarzic also agreed that if Dr Giblin recorded that he had told him that in the 1998 accident he had hurt his neck, right shoulder and thoracic lumbar spine he would have told him that.
20. Until November 1998 Mr Samarzic's complaints to Dr Giblin were about the neck and low back. Following the 1998 motor vehicle accident Dr Giblin diagnosed Mr Samarzic as having an aggravation of his pre-existing symptoms and a new injury to his right trapezius area. On 31 January 2000 Dr Giblin described the aggravation of his cervical spine and right trapezius pain as persistent and the aggravation of his thoracic lumbar pain had settled (Exhibit A4). Notably Dr Giblin reported on 27 October 2003 that Mr Samarzic had made little mention of his lumbar spine pathology until then and he had not mentioned it in his earlier reports "as it has only been mentioned in your letter of 8 October 2003" and when he saw Mr Samarzic he indicated some low back pain on his back form (T94).
21. In a second report of that date, that is, 27 October 2003, Dr Giblin referred to an injection to Mr Samarzic's right shoulder and described his present disabilities in relation to his neck, right shoulder and upper thoracic and cervical spine.
22. On the evidence as summarised we find that Mr Samarzic complained of low back pain on and off from 1986. He was involved in a motor vehicle accident in 1985. After the accident in 1996 he was able to resume normal duties for about six months including overtime with very little time off work. It was only after the July 1996 incident which we do not consider was related to the accident, that the pattern emerged of going off work, returning to suitable duties and then normal duties, going off and so on.
23. His complaints of right shoulder problems arose only after the 1998 motor vehicle accident. We do not consider on the evidence that there is any permanent impairment attributable to the injury in relation to the right shoulder and arm. We have to consider the assessments carried out by various doctors of permanent impairment against the history we have found. Dr Giblin's assessments are not helpful (Exhibits A1, A3 and A4). His attempts to distinguish the permanent impairment arising from the injury against that attributable to the 1998 motor vehicle accident were not persuasive and he agreed in cross-examination that you cannot unscramble the effects of the 1998 motor vehicle accident and the 1996 accident and he had done no assessment of permanent impairment before that 1998 motor vehicle accident.
24. Another factor relevant to our not accepting Dr Giblin's evidence is that he had been given no history of the 1985 motor vehicle and the complaints of lumbar back pain following that and before the 1996 accident and had not considered those matters in coming to his assessment. When the prior complaints of pain were put to Dr Giblin in cross-examination he agreed that he could not say with any probability that there was anything wrong with Mr Samarzic's back due to the 1996 injury.
25. Dr Conrad's assessment on 16 June 2005 is also unhelpful (Exhibit A2). He had no history of the 1985 motor vehicle accident and complaints of low back pain before the 1996 accident and no history of the 1998 motor vehicle accident and its effects and he did not give oral evidence.
26. We find Dr Wearne's evidence of assistance. When he saw Mr Samarzic on 28 August 2003, Mr Samarzic did not tell him of the 1985 motor vehicle accident or the complaints of lower back pain before the 1996 accident as referred to in Dr Lau's report and he did not tell him of the 1998 motor vehicle accident.
27. Dr Wearne prepared a report dated 30 December 2004 in which he had considered material from Dr Bosnic, Dr Giblin and Mr Middleton, physiotherapist. Dr Wearne then took into account the 1998 motor vehicle accident but that did not cause him to change his opinion. He found Mr Samarzic's complaints of pain, soreness and so on inconsistent with his general demeanour and ease of movement when he was not being formally examined.
28. He found that the right shoulder condition was not related to the injury as we have found. Mr Samarzic was complaining of symptoms suggestive of carpal tunnel syndrome in his right arm. The doctor found no impairment in relation to his right hand or arm. Dr Wearne considered the condition of the cervical spine related to the injury and assessed the whole person impairment as 5 per cent. In relation to the lumbosacral condition he found no whole person impairment under Table 9.6 on the basis that the restriction of movement was largely a result of voluntary resistance.
29. Dr Wearne made the assessment of 5 per cent whole person impairment under Table 9.6 for the cervical spine on 28 August 2003 (T90), without having the history of the 1998 motor vehicle accident. His report of 30 December 2004 (Exhibit R1) affirmed that assessment with having knowledge of that accident. In his evidence in chief he did agree that if all you knew was that the motor vehicle accident involved being hit from behind, it was consistent with causing cervical spine problems and he agreed that he could not say whether there was any impairment of the neck due to the 1996 accident or the 1998 motor vehicle accident.
30. None of the doctors refer to the fact, or perhaps were unaware of the fact that ,Mr Samarzic was able to resume his normal duties for a period of about six months with only four days off work from February until July 1996. We find that he was also working overtime during that period. It was only after the July 1996 incident that the pattern described above began. Taking that into account as well as the history of the 1985 motor vehicle accident, the lower lumbar back complaints prior to 1996 and the 1998 motor vehicle accident we find that Mr Samarzic suffers no whole person impairment in respect of his neck, lower back, right shoulder or arm arising from the 1996 accident.
Decision
31. For the above reasons we affirm the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Dr Max Thorpe
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 29 November 2005 and 21 February 2006
Date of Decision 24 February 2006
Date of Written Reasons 10 March 2006
Counsel for the Applicant Mr G. Foster
Solicitor for the Applicant Valenti & Valenti
Counsel for the Respondent Mr G. Johnson
Solicitor for the Respondent Phillips Fox
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