Shane Carter and and and Transpacific Industries Pty Ltd
[2013] AATA 852
[2013] AATA 852
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2553
Re
Shane Carter
APPLICANT
And
Transpacific Industries Pty Ltd
RESPONDENT
File Number(s)
2013/0664
Re
Shane Carter
APPLICANT
And
Transpacific Industries Pty Ltd
RESPONDENT
File Number(s)
2013/3475
Re
Shane Carter
APPLICANT
And
Transpacific Industries Pty Ltd
RESPONDENT
DECISION
Tribunal Ms J Toohey, Senior Member
Dr M Couch, MemberDate 29 November 2013
Place Sydney The Tribunal affirms the decisions under review.
.........................[sgd]...............................................
Ms J Toohey, Senior Member
CATCHWORDS
COMPENSATION – whether effects of accepted back injury had ceased – whether effects of accepted shoulder injury had ceased –Tribunal satisfied effects of shoulder and back conditions ceased in accordance with the reviewable decisions – decisions affirmed – whether respondent liable for psychological injury secondary to accepted conditions – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth); ss 5A, 5B, 14
REASONS FOR DECISION
Ms J Toohey, Senior Member
Dr M Couch, Member29 November 2013
Mr Shane Carter has worked as a truck driver for most of his life. He has been employed by the respondent since 1996. He seeks review of three decisions:
(i)a decision made on 5 June 2012 that, from 1 March 2012, he no longer suffered incapacity on account of an accepted back injury (“lumbar back strain”) sustained on 20 February 2012;
(ii)a decision made on 11 January 2013 that, from 31 August 2012, he no longer suffered incapacity on account of an accepted injury to his right shoulder (“aggravation of degenerative changes in the right acromio-clavicular joint”) sustained on 11 August 2008; and
(iii)a decision made on 11 January 2013 denying liability to compensate him for a psychological injury secondary to his shoulder and back injuries.
THE ISSUES
In relation to the first and second reviewable decisions, we have to determine whether the effects of Mr Carter’s injury ceased on the dates in question so that the respondent became no longer presently liable to compensate him for incapacity and medical expenses.
In relation to the third reviewable decision, we have to determine what, if any, psychological condition Mr Carter suffered at the relevant time, and whether any condition was causally related to his employment.
RELEVANT LEGISLATION
By s 14 of the Safety, Rehabilitation and Compensation Act1988 (the Act), the respondent is liable to compensate Mr Carter if he suffers an injury that results in death, incapacity for work or impairment.
Section 5A(1) provides that injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.
Disease in the Act means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee: s 5B(1).
Significant degree means a degree that is substantially more than material: s 5B(3)
BACKGROUND
Mr Carter is aged 52. In 2004, he suffered a stroke while undergoing surgery following a motor cycle accident. The stroke left him with permanent disabilities. His memory for dates and times is poor and, when he can remember events at all, his memory for detail is limited.
Mr Carter was off work in the 12 months before the surgery in 2004. His doctors gave him only a 30 per cent chance of surviving it. He felt “pretty lousy” and his general practitioner, Dr Romeo, prescribed anti-depressants which helped him leading up to the surgery. Mr Carter resumed work without restrictions approximately four months after the surgery. He did not take anti-depressants again until 2011.
There is no argument that Mr Carter suffered an injury to his right shoulder on 11 August 2008, but there is dispute as to the circumstances and whether they were sufficient to cause ongoing symptoms. Mr Carter contends he suffered a significant traction injury to his right shoulder. The respondent says the evidence does not support a finding that the nature of the injury on that date was sufficiently traumatic to result in ongoing incapacity and medical treatment beyond 31 August 2012.
As well as the injury in August 2008, Mr Carter suffered injuries to his left and right shoulders in January 2008 and April 2008 respectively. On occasions, he has described the incidents in January 2008 and August 2008 in almost identical terms. At other times, he has apparently forgotten earlier injuries, or confused his left and right shoulders. He has plainly done his best to be truthful but, unfortunately, as a result of his stroke, he has no memory of what actually happened on 11 August 2008, making it difficult to determine what happened on that date and its probable effect.
22 January 2008
Mr Carter’s work required him to operate heavy vacuum hoses up to five metres long that had to be lifted on and off a vacuum loading truck. On 22 January 2008, he injured his left shoulder while working at a depot in Moorebank. On the same date his manager signed an incident report recording “while climbing onto back of truck loading hoses misjudged his footing and fell awkwardly and all his weight was put on his left shoulder, while he was trying to hold on to stop himself falling”. On 25 January 2008, his manager signed a Report of Injury, noting “misjudged his footing while he was loading hose onto a truck”.
On 24 January 2008, Mr Carter’s general practitioner, Dr Romeo, recorded:
Left shoulder injury at work on 22/1/08. Climbing at the back of his truck slipped and was pulled back by the weight of his body while holding truck side bar with left hand. C/o left shoulder pain.
On 25 January 2008, Dr Stephen Woolnough, the company doctor, provided a medical certificate diagnosing “left shoulder strain – clinically an acromio-clavicular strain”. On that part of the certificate describing how the injury occurred, Mr Carter wrote “climbing onto back of truck”.
23 April 2008
On 23 April 2008, Mr Carter reported a strained muscle in his right shoulder “while connecting 6-inch hose to the rear of tanker” at the Castle Hill depot. His manager recorded “strained shoulder while moving vac hose” on an incident form.
On 24 April 2008, Dr Woolnough examined Mr Carter and diagnosed “Right acromio-clavicular joint irritation” while “connecting hose to rear of tanker”. He certified Mr Carter certified fit for suitable duties with a 12 kilogram lifting limit and avoiding work above shoulder height with his right arm. Mr Carter had no time off and, on 22 May 2008, he was certified fit for pre-injury duties. On the same day, Dr Woolnough noted “Management plan – for ultrasound guided steroid injection into right AC joint”.
Mr Carter did not claim compensation for either of these injuries. They are relevant insofar as they may throw light on the injury to his right shoulder on 11 August 2008 at the Erskine Park depot which is the subject of these proceedings.
11 August 2008
On 11 August 2008, Mr Carter claimed compensation for “aggravation of right A-C joint” while “climbing into my truck”. His supervisor and manager signed an incident report describing the incident as “Injured shoulder while climbing into the truck”. In response to a question on the form about previous symptoms, Mr Carter indicated he had experienced similar symptoms when he had “crook shoulder … right joint pain” on 22 April 2008. He did not mention the incident in January 2008. An explanation for this might be that the injury in January 2008 was to his left shoulder but, given the generally confused histories he has given, it more probably reflects his difficulty remembering events.
On the day of his injury, Mr Carter saw Dr Woolnough who diagnosed “aggravation of degenerative changes in right acromio-clavicular joint”. Mr Carter recorded on a Workcover Medical Certificate that the injury occurred “climbing into truck”. Dr Woolnough certified him fit for suitable duties for one week and advised he should “avoid work above shoulder height with right arm”. Also on the day of his injury, Mr Carter saw his general practitioner who recorded only “Painful right shoulder. Unable to go to work”.
Medical certificates issued over the following months by Dr Woolnough and Mr Carter’s general practitioner continued to describe the incident as “climbing into truck” or “climbing into the cabin truck”. This may reflect nothing more than repeating what was on the original certificates.
An ‘Online notification and Report of Incident’ sent by the respondent’s OH&S Manager to Comcare in July 2009 describes an incident at the Moorebank depot on 11 August 2008: “While climbing onto the truck the driver slipped and held onto the handle with right arm taking the weight on, and causing injury to, his right shoulder”. We note that the incident at Moorebank was in January 2008 and the description of how the injury occurred is very similar to that incident, except to the other shoulder. It is not clear how the online document was created, or the basis for the information in it.
2 April 2009
Mr Carter had a further injury to his right shoulder on 2 April 2009. On 8 April 2009 his general practitioner recorded:
Recurrence of right shoulder injury on 02/04/09 while climbing into the cabin truck. Original injury on 11/08/08 when slipped while climbing into the cabin truck and hunged (sic) on his right arm. Sae (sic) shoulder surgeon (Dr Kuo) who advised shoulder arthroscopy.
This injury is not the subject of these proceedings. It is relevant only insofar as it might throw light on the injury on 11 August 2008.
Dr Kuo
On 10 November 2008, Mr Carter saw Dr Kuo, orthopaedic surgeon, on a referral from his general practitioner. Dr Kuo reported that Mr Carter presented with “right AC joint pain” and gave a history that “at the beginning of the year he was at work and he slipped off his truck. He held onto the ladder to break his fall and he sustained a traction injury to his shoulder”. Dr Kuo did not record the date of injury but the reference to “the beginning of the year” and the circumstances of the injury strongly suggest the incident in January 2008 injury rather in August 2008, only three months earlier, although the earlier injury was clearly to the left shoulder.
Dr Kuo noted, “He has also had a lot of repetitive manual labour and heavy lifting, required with work, as well as getting in and out of the truck and this seems to have exacerbated his pain”. On examination, he noted “moderate tenderness over the right AC joint”. He noted that x-rays in May 2008 “show irregularity around the AC joint consistent with previous trauma and degenerative changes. There is also a type III acromion, but the glenohumeral joint is well preserved”. He concluded “Shane has sustained an injury to his right AC joint which has probably resulted in a fracture and subsequently post-traumatic degenerative changes”. He thought surgery the likely quickest way to get Mr Carter back to work.
On 27 November 2008, Dr Foo certified Mr Carter fit for pre-injury duties.
Mr Carter underwent surgery on 27 May 2009. Subsequently, the wound became infected, requiring three further procedures during June 2009. He was certified unfit for work until 16 September 2009 but returned to work on suitable duties from 3 August 2009.
On 8 September 2009, Dr Kuo reported to Dr Romeo that Mr Carter’s “right AC joint is well healed and he demonstrates an excellent range of movement. [He] complains of some pain but there were no areas of tenderness to palpation”. He said he was “happy with Shane’s recovery from surgery (finally!)” and would only see him again if there was any change in his symptoms.
Dr Stephenson
Dr Brian Stephenson, an orthopaedic surgeon who assessed Mr Carter in February 2009, took a history that “early in 2008” he fell from his truck, grabbing with his right arm to support himself and taking all his weight on his right shoulder and, subsequently, that he lifted a heavy hose and got further pain in his right shoulder. He agreed with Dr Kuo regarding the need for surgery which he thought “related to the incident at work in keeping with the advice offered above”.
The history taken by Dr Stephenson also tends to suggest the circumstances of the January 2008 injury to the left shoulder rather than August 2008.
Dr Stephenson noted “some slight widening of the acromio-clavicular joint” consistent with a subluxation injury which is likely to follow the history of injury given by Mr Carter. As discussed below, Dr Neil McGill, rheumatologist, gave evidence that he has never been able to detect such widening and he doubts that Dr Stephenson could have made such finding.
Dr Endrey-Walder
Dr Peter Endrey-Walder, general and trauma surgeon, saw Mr Carter in August 2012 for assessment. He took a history from Mr Carter that, on 11 August 2008, he:
…was climbing up into the cabin of my truck and slipped, and as I slipped I grabbed hold of the handle and basically all of my weight was hanging on my right arm, instant severe pain. I had to let go, I ended up on my butt.
Giving evidence, Mr Carter could not recall what he told Dr Endrey-Walder, all he knew was he slipped and he was hanging on, and he “hit the ground”. Pressed about whether he fell to the ground, Mr Carter thought he “probably ended up on [his] butt” but he could not be sure. There is no suggestion that Mr Carter was not being honest, but nowhere else has he suggested that he fell to the ground on any occasion.
Dr Endrey-Walder gave evidence that, taking into account Dr Kuo’s report of the surgery, and changes seen on radiological scans between May 2008 and September 2008, there appeared to be a degree of subluxation or a mild dislocation of the joint since May 2008, which would be consistent with a traction injury to the right shoulder in August 2008.
On the basis of the history he took from Mr Carter, Dr Endrey-Walder concluded that he suffered a traction type injury to his right shoulder on 11 August 2008 likely to have resulted in a tear to his rotator cuff and the need for open rotator cuff repair. In fact, the surgery was mostly to the acromio-clavicular joint. Giving evidence, Dr Endrey-Walder acknowledged that he did not have the benefit of Dr Kuo’s report at the time of his own but said it did not alter his conclusions regarding the general post-injury condition of Mr Carter’s shoulder.
Dr Endrey-Walder gave evidence that he has seen similar injuries in people who slipped while climbing into a truck. In his view, Mr Carter’s is a classical traction type injury. He said any trauma superimposed on an area of a degenerative condition, regardless of the particular anatomy, usually is more troublesome and leads to more severe and longer-lasting symptoms. Moreover, a heavier person like Mr Carter could be more vulnerable to injury. He agreed, however, that if Mr Carter had climbed a ladder, without slipping, and merely reported pain in the shoulder, that would suggest a less traumatic injury and effect.
Dr McGill
Dr McGill saw Mr Carter for assessment in November 2012. He took a different history again. He recorded:
While at [work] (possibly in 2008) he slipped while getting out of his truck. He had left the cabin and was walking towards the back of the truck. When he slipped he used his right hand to hold one of the stays that was supporting the rear vision mirror. He did not fall off the truck. His recollection was that he immediately experienced pain in his right shoulder. He had not had any previous shoulder problem on either side.
Mr Carter told Dr McGill he could not recall how long he continued to work following his injury but he recalled that at some time, possibly in 2008, he had surgery. He did not recall ever injuring his left shoulder.
Dr McGill noted that Dr Maxwell had taken a history that Mr Carter “slipped while getting out of his truck”, and the history taken by Dr Endrey-Walder was that he slipped as he was “climbing up into the cabin of his truck”. He noted the general practitioner’s clinical notes on 24 January 2008 of an injury to Mr Carter’s left shoulder on 22 January 2008 as he was “climbing at the back of his truck and was pulled back by the weight of his body while holding truck sidebar with left hand”.
Dr McGill noted that the first mention in the clinical notes of the right shoulder problem was on 11 August 2008, but there was no mention of any specific cause of injury. He noted also the clinical notes of 8 April 2009 concerning the recurrence on 2 April 2009 of the injury on 11 August 2008.
Dr McGill concluded from the documentation that the incident in which Mr Carter “slipped and used one hand to prevent his fall occurred in January 2008 and caused temporary pain in the left shoulder”. He thought Mr Carter might have suffered occasional minor increase in symptoms as a result of using his right hand to climb up into his truck (in August 2008) but, if so, that type of controlled action would be unlikely to cause more than a brief temporary increase in discomfort relating to “underlying constitutional osteoarthritis in the acromio-clavicular joint”.
In Dr McGill’s view, the incident involving his left shoulder in January 2008 merged in Mr Carter’s mind with the onset of right shoulder pain in August 2008. The clinical notes did not suggest he suffered a shoulder injury on 11 August 2008 although he did experience shoulder pain, and nor did they suggest that he suffered a significant right shoulder injury at any stage. He thought the requirement for surgery and the current state of Mr Carter's shoulder would have been the same regardless of his work duties.
Dr McGill agreed that, given the contemporaneous documents on 11 August 2008, it was likely that something happened that day. He also agreed that he saw Mr Carter only once (meaning his assumptions were based on the single history he gave that day).
Dr McGill could see no reason Mr Carter should not have been able to perform his duties but he accepted that he could have been limited by his symptoms. He agreed that the surgery and subsequent infections would have affected Mr Carter’s functional capacity during that period and for months afterwards, and the infection would have slowed down his recovery. However, he thought that Mr Carter was fit for duty when he saw him, even if he still had some pain.
Giving oral evidence, Dr McGill said he did not think one could reliably conclude, because an x-ray taken in May 2008 showed no widening on weight bearing, and a subsequent x-ray showed slight widening of the acromio-clavicular joint, that there had been sufficient trauma on 11 August 2008 to cause those clinical findings. He does not believe that a slight widening of the acromio-clavicular joint can be detected but he acknowledged that Dr Stevenson said he had done so in September 2008.
Dr Maxwell
Dr David Maxwell, orthopaedic surgeon, saw Mr Carter for assessment in February 2010, September 2010, March 2011, March 2012 and August 2012.
In February 2010, Dr Maxwell obtained the history that, on 11 August 2008, Mr Carter was getting out of his truck when his right foot slipped off a wet step to the cab, causing him to take all his weight with his right arm and causing persistent pain in the right shoulder. On examination, he found slight restriction of abduction and flexion in the right shoulder compared with the left. He diagnosed an injury to the right acromio-clavicular joint at work and concluded “on the balance of probabilities as distinct from possibilities” that Mr Carter’s condition was related to his employment. He did not think Mr Carter had suffered an aggravation of any pre-existing condition. He thought the effects of the injury were probably permanent. He thought Mr Carter should be able to continue to upgrade his duties and would be fit for duty including lifting the heavy hoses in three to six months.
When he saw Mr Carter in September 2010, Dr Maxwell noted that the pain in his right shoulder had improved, he had been trying to upgrade his duties but was still not doing the heavier work such as lifting hoses, and his general practitioner, Dr Romeo, had restricted him to lifting seven kilograms. He noted that Mr Carter did not find driving a problem. He found modest restriction of right shoulder flexion compared with the left, and slightly less range of movement which he found “somewhat surprising given the improvement in his symptoms”. He found Mr Carter’s slow progress hard to understand and saw no reason to restrict his lifting capacity. He did not think Mr Carter needed continuing physiotherapy or any other treatment and thought he should return to normal duties over the next month. He still thought Mr Carter’s condition due to his employment.
In June 2011, Dr Kuo reviewed Mr Carter. He reported than an MRI confirmed a re-accumulation of AC joint spurs and that Mr Carter had some ongoing impingement in the right shoulder and “has always felt the shoulder has never been quite right”. He thought a right arthroscopic subacromial decompression, debridement of rotator cuff and removal of the accumulation of spurs worthwhile.
In July 2011, Dr Maxwell reported that osteoarthritis in Mr Carter’s right AC joint seen on an MRI were not directly related to the incident on 11 August 2008 but to his underlying osteoarthritis and post-surgical changes. He did not think further surgery warranted or directly related to the original incident. On this basis, the respondent declined to accept liability for this further treatment.
When he saw Mr Carter on 2 August 2012, Dr Maxwell recorded that he had difficulty sleeping on his right side and woke at night if he slept on that side. Mr Carter did not feel his shoulder was particularly stiff and movement was “not a big issue” although he had difficulty lifting objects above waist height because doing so caused discomfort in his right shoulder. Dr Maxwell said that, despite Mr Carter’s complaint of pain, he did not think he had any pathological condition which would affect his ability to work and no reason he could not work as a truck driver; his prognosis was “excellent”.
Dr Maxwell noted that Mr Carter presented a “generally depressed person” and thought he was “chronically depressed”, but he did not suggest he was making a formal diagnosis.
DID THE EFFECTS OF MR CARTER’S RIGHT SHOULDER INJURY CEASE BY 31 AUGUST 2012?
Mr Carter submits that, notwithstanding any discrepancies in his accounts and histories taken by the doctors, the Tribunal should conclude that he suffered a significant traction injury on 11 August 2008. He says the respondent proceeded on that basis at least until 2012 and, given his undoubted sincerity and genuineness, the Tribunal should find in his favour both in respect of what happened on 11 August 2008 and its continuing effects.
The respondent submits that too much doubt surrounds the circumstances of the injury and the Tribunal cannot be so satisfied. The respondent says it is clear, from the various incident reports and the medical reports, that the mechanism of injury described in January 2008 to Mr Carter’s left shoulder is what was subsequently adopted when giving the history of what happened in August 2008.
As already noted, it is not in dispute that “an injurious event” of some kind occurred on 11 August 2008. It is not seriously in dispute that Mr Carter continues to feel symptoms in his right shoulder from time to time.
However, the various clinical notes and histories taken by the doctors cast real doubt on whether an injury to Mr Carter’s shoulder occurred in the circumstances claimed and they raise the distinct possibility that he has confused what happened on that date with the earlier incident in January 2008. The question is significant because it goes to the probable effect of what happened on 11 August 2008.
We accept without question that Mr Carter is a truthful witness but we do not think the difficulties with his evidence can be overcome. There is no dispute that there was an aggravation of his symptoms, and we are satisfied of that. However, there is no reliable evidence from Mr Carter of a traumatic event – in the sense of a significant traction-type injury occurring as a result of slipping, or falling, or anything similar – on 11 August 2008 that substantially changed the underlying pathology in his right shoulder. If anything, the evidence in the contemporaneous records points otherwise.
In the absence of reliable evidence from Mr Carter, we have to turn to the independent evidence. The weight of that evidence points to a traction injury to his left shoulder in January 2008, and a relatively minor injury to his right shoulder in August 2008. It was not until some months later, when he saw Dr Kuo, that Mr Carter described a significant traction injury to his right shoulder in August 2008. Documents suggesting a significant injury on 11 August 2008 are the clinical notes on 8 April 2009 and the online incident report form, neither of which is consistent with contemporaneous clinical notes and incident reports.
We find that the injury to his right shoulder in August 2008 occurred when Mr Carter was climbing into his truck, that he did not slip or fall, and that he suffered pain as a result.
Of the doctors who saw him in 2012, Dr Maxwell and Dr McGill are in agreement that the effects of Mr Carter’s injury in August 2008 had resolved. Dr Endrey-Walder did not agree but his opinion was based largely on the history he took from Mr Carter and he agreed that, had the injury occurred as we find it did, that would suggest a less traumatic injury and effect. We prefer the evidence of Dr Maxwell and Dr McGill.
We are not persuaded, because it was followed by surgery, with all its consequences, that the injury of 11 August 2008 was sufficient to cause Mr Carter continuing symptoms beyond 31 August 2012. We accept that he continues to experience symptoms in his right shoulder but are satisfied, on the evidence before us, that the effects of his injury ceased by 31 August 2012 and the respondent is not liable for any incapacity or medical treatment after that date.
DID THE EFFECTS OF MR CARTER’S BACK INJURY CEASE ON 1 MARCH 2012?
Mr Carter was at work on 20 February 2012 when he tried to lower the height of his chair. He “made a mistake” and used the wrong lever. When the chair “jolted backwards”, he braced and hurt his back. He did not feel much pain at the time but woke early next morning with pain in his lower back. He rang work and reported the incident then went to see his doctor.
The respondent produced a similar chair to the Tribunal. It was of limited assistance but there seems little dispute that Mr Carter’s chair could have moved no further than 7.3 centimetres back when he tried to adjust it.
On 22 February 2012, Mr Carter lodged a claim for compensation for “back injury”. He indicated on the claim form that he had not ever had a similar symptom or injury, but that is not correct. In March 2012, Dr Lim, general practitioner, reported:
There is an inflammatory lower back. He has reported worsening early-morning stiffness and pain and that the symptoms are worsening markedly and that those symptoms have been present for over six months.
Again, it is not suggested that Mr Carter has done anything other than his best to respond to questions honestly, but the discrepancy between his claim form and Dr Lim’s notes underlines how poor his recollection is.
As far as he recalls, Mr Carter was off work for about a week before returning to his light duties performing data entry. He found he could not sit for long and his back would “seize up”. He gave evidence that his pain continued and he decided to take pain killers prescribed by Dr Romeo which he had previously declined to take because he did not want his kidneys affected. He still experiences pain in his lower back and in the back of his right leg down to his toes.
Dr Maxwell
Dr Maxwell was the first specialist to see Mr Carter after the injury. In his view, Mr Carter suffered a temporary aggravation of his pre-existing condition. He did not think Mr Carter had experienced a sustained significant structural injury to his lumbar spine in the “minor work related incident”.
In August 2012, Dr Maxwell reported that, when he saw him on 1 March 2012, Mr Carter reported that his back had “almost fully recovered”. However, during the August 2012 consultation, Mr Carter told Dr Maxwell he was experiencing lower back pain which was worse after prolonged sitting. Dr Maxwell considered him fit to return to his previous office based job. He thought Mr Carter’s job should be “gradually upgraded” and he should commence doing truck driving in a bid to return him to his previous duties. He did not see any reason Mr Carter could not work as a truck driver.
Dr McKechnie
Dr Simon McKechnie, neurosurgeon, saw Mr Carter on 3 July and 28 August 2012 for assessment. He gave evidence that the onset of Mr Carter's symptoms from when his chair jolted was consistent with an aggravation of his pre-existing degenerative condition, and that his symptoms had continued.
In cross-examination, Dr McKechnie said that he based his opinion on the history taken from Mr Carter that he had no prior back symptoms, and that there was no further event after the date of the injury. Dr McKechnie agreed that, if there was a prior history and pre-existing injury, it would have a bearing on his opinion but the work injury could still exacerbate his condition.
Dr McGill
Dr McGill gave evidence that Mr Carter could have suffered a lower back strain as a result of the incident on 20 February 2012 but it would not have influenced the widespread degenerative disc and facet joint changes in his lower back. He did not think Mr Carter was exaggerating his pain but, in his view, it was explained by the widespread degenerative changes in his back.
Dr McGill said episodes in which people go back on their chairs are not uncommon; in such cases they may have a flare of symptoms, if at all, but it lasts for a short period and settles down. Dr McGill said he knew of no evidence supporting the hypothesis that permanent injury to facet joint could be caused by such mechanism and, even in a back that was already degenerate, he would not expect any structural change from such a mechanism.
Dr McGill said he could not exclude the possibility of an injury to the soft tissues of the facet joint but, in that case, the pain would be transient; there is no evidence to support the concept that an injury of that sort could result in a change in the radiology of the spine. He thought it more likely that the transient pain would come from a muscle strain.
In Dr McGill’s view, the effect of the incident on Mr Carter’s lower back would have lasted no more than one or two weeks, and there is no ongoing incapacity as a result. In his view, “in the setting of very severe obesity and widespread degenerative changes in the low back, some degree of low back discomfort is expected”.
Dr McGill was asked whether, assuming continuing pain following an event, and no radiological evidence of structural damage, a plausible explanation for Mr Carter’s pain might be damage to the capsule of the facet joint. He thought this “highly speculative” and “untestable”, and the suggestion that a capsule of the facet joint would be so damaged as to continue to cause pain implausible; the sort of injury required was much more severe than the mild injury described by Mr Carter.
Dr Endrey-Walder
Dr Endrey-Walder thought it more probable than not that Mr Carter’s ongoing lower back symptoms were due to facet joint injury consistent with a sudden, traumatic movement such as a fall or a compacting injury. If it were muscular or tenderness, he would have expected it to settle within approximately three months; if it was a disc injury, he would have expected it to cause significantly greater complications or more severe pain. He also noted that Mr Carter had pain and restriction on hyperextension, a feature he said is associated with problems with the facet joints.
In cross-examination, Dr Endrey-Walder agreed that he did not take any details of how far back the chair moved but he said he was not sure how relevant that was. He agreed that the further Mr Carter fell, the more likely to cause damage, but said in a man of his size (Mr Carter is 6’3” tall and weighs approximately 145 kilograms) problems can be caused with a fairly minimal range of movement. He agreed that the degree of the movement and the speed with which a person falls were relevant but said there is not always a direct correlation between the conditions and the subsequent damage.
Consideration
We are satisfied, on the evidence, that chair would not have moved more than approximately 7.3 centimetres in the incident on 20 February 2012. We are satisfied that Mr Carter had existing degenerative changes in his back which were aggravated by the injury. We prefer the evidence of Dr Maxwell and Dr McGill, that no structural change to his lower back would have resulted, and the effects would have been short-lived, to that of Dr Endrey-Walder whose opinion was based, in part, on an incomplete history.
We are satisfied that Mr Carter sustained a soft tissue injury that would have resolved within a week or two, and we find that its effects ceased by 1 March 2012. We are satisfied that any continuing symptoms are the result of his pre-existing underlying condition.
IS THE RESPONDENT LIABLE TO COMPENSATE MR CARTER FOR HIS PSYCHOLOGICAL CONDITION?
On 10 December 2012, Mr Carter claimed compensation for:
medical and treatment expenses and for incapacity arising from a psychological injury (anxiety and depression) secondary to injuries to [his] back and right shoulder, such claim being from 23 August 2012 to date and continuing.
Mr Carter’s claim was supported by a certificate from Dr Romeo certifying him unfit from 23 August 2012 to 23 October 2012. For Mr Carter it is submitted that his condition is the result of the pain arising from his accepted conditions.
It is not in dispute, as we are satisfied, that Mr Carter suffers from an adjustment disorder with anxiety and depression. There is no argument that his condition is a disease within the meaning of the Act. The issue is whether the respondent is liable to compensate him for his condition. The respondent will be liable if Mr Carter’s employment contributed, to a significant degree, to his condition.
There is evidence in the clinical notes of Mr Carter’s general practitioner, suggesting that his symptoms had their onset around September 2011, after an incident at work in which Mr Carter was upset about drug testing conducted at his workplace. On 7 September 2011, Dr Romeo recorded that Mr Carter felt unfairly treated, he could not concentrate or sleep properly, he was worried he would lose his job, and he had financial difficulties and was worried about paying his mortgage. Dr Romeo gave him Lexapro and then prescribed antidepressants. He was unfit for three or four months.
Dr Canaris
Dr Christopher Canaris, consultant psychiatrist, saw Mr Carter for assessment on 6 March 2013. He has provided a written report of his assessment, and a supplementary report in which he offers comments on an assessment by Dr John Champion, psychiatrist, who saw Mr Carter for assessment on 19 March 2013. Both doctors gave oral evidence.
Dr Canaris concluded Mr Carter had a “history of depression consistent with a chronic depressive illness – most likely a dysthymic disorder in the setting of chronic pain disorder secondary to a physical injury”. He thought it “evident from his history that his illness has been substantially aggravated by his back pain and its sequelae”.
Dr Canaris noted Mr Carter’s “long-standing physical problems [and] pre-existing depression” and his “ambivalent relationship” with his employer because he perceived his employer as having failed to support him in connection with an OH&S officer role. He thought the accident in which he sustained injury to his lower back “the proverbial last straw in terms of his physical and psychological condition”. He thought Mr Carter had probably achieved maximum improvement from a psychiatric perspective.
Giving oral evidence, Dr Canaris agreed that he was not aware, when he saw him, that Mr Carter had been prescribed anti-depressant medication in 2003, before he underwent surgery (which he had stopped taking by the time he went back to work in 2004). Nor was he aware of the incident at work in September 2011 when Mr Carter was told he had failed a urine sample drug test at work and threw the sample in the bin before leaving work and not returning. However, he said, neither would cause him to alter his assessment “dramatically” as to the relationship between Mr Carter’s physical injury and his depression; the back injury superimposed on the shoulder injury was “the tipping point”.
Dr Champion
Dr Champion diagnosed Mr Carter as suffering from mild to moderate adjustment disorder with symptoms of anxiety and depression as a result of multiple stressful factors. In his view, the only work-related stressor currently causing Mr Carter’s condition was a dispute with his employers over his status as OH&S coordinator. Other factors included a breakdown of an important relationship and financial stress in relation to the loss of the light duty loading he formally enjoyed. He thought Mr Carter’s condition would improve once the industrial issues were resolved.
Dr Champion did not consider Mr Carter had sustained a psychiatric condition secondary to a work-related physical injury. He did not think Mr Carter’s shoulder or back injury was contributing significantly to any adjustment disorder, although he agreed that his health was “one of his factors”. Rather, there was a range of non-work-related factors including the breakdown of an important relationship, financial stress, sequelae of the brain injury and effects of widespread degenerative arthritic change associated with psoriasis.
Consideration
No claim has been made in respect of Mr Carter’s psychological condition around September 2011 or in connection with events at that time. His claim is for an injury from 23 August 2012 by which time, we have found, the effects of both his shoulder and back injuries had ceased. In those circumstances, it cannot be said that his employment contributed, to a significant degree, to his condition.
CONCLUSION
We recognise that, through no fault of his own, Mr Carter is at considerable disadvantage over other claimants when it comes to giving evidence. However, we are not satisfied, on the evidence before us, that the effects of either his right shoulder or back injury continued beyond the dates in the reviewable decisions. We find, on the evidence before us, that Mr Carter suffered a temporary aggravation of his pre-existing degenerative right shoulder and back conditions. We find the effect of each had ceased by 31 August 2012 and 1 March 2012 respectively. We are not satisfied that his employment contributed, to a significant degree, to his psychological condition. We affirm the decisions under review.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member. ........................[sgd]................................................
Associate
Dated
Date(s) of hearing 5-7 August 2013 Counsel for the Applicant Mr P Stockley Solicitors for the Applicant Steve Masselos & Co Counsel for the Respondent Mr B Dube Solicitors for the Respondent Sparke Helmore
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