Sukkarieh and Australian Postal Corporation
[2011] AATA 755
•27 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 755
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1600
GENERAL ADMINISTRATIVE DIVISION ) Re SAM SUKKARIEH Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr T Austin AM, Member
Date27 October 2011
PlaceSydney
Decision The Tribunal affirms the decision under review. .....................[sgd]....................
Ms G Ettinger
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Entitlement to compensation – Employment related injury – Employment substantial or significant contributing factor – Reliability of evidence – Compensation for injuries resulting in incapacity to work – Payment of medical expenses – Whether injuries resolved – Decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 16, 19
REASONS FOR DECISION
27 October 2011 Ms G Ettinger, Senior Member
Dr T Austin AM, MemberSUMMARY
1. Mr Sam Sukkarieh is appealing the decision of the Australian Postal Corporation, (Australia Post), which, following the acceptance of liability for a motor vehicle accident (MVA), in which the Applicant was involved on 5 November 2009, decided that further compensation pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act), was not payable from 22 January 2010. Mr Sukkarieh’s claim was for pain in his left hip, right shoulder, sternum, neck, and for his headache.
2. For the sake of completeness, we note that Mr Sukkarieh was involved in a serious MVA in January 2008, a head-on collision, following which he was hospitalised. That accident was not work related. He returned to work on restricted duties in mid-2008, and full duties in mid-2009. There is some inconsistency in the evidence regarding how Mr Sukkarieh’s health was, on resumption of full duties in mid-2009. He was involved in what we have found to be a relatively more minor MVA during the course of his work on 5 November 2009.
3. Mr Sukkarieh appeared unrepresented at the Tribunal, and conducted his own case. The Respondent, Australia Post, was represented by Mr M Best of counsel.
4. We are satisfied from the evidence before us, including the rather inconsistent accounts given by Mr Sukkarieh regarding the 2009 MVA, that the correct or preferable decision is to affirm the decision of the Respondent. Our reasons follow.
ISSUE BEFORE THE TRIBUNAL
5. The Tribunal must decide whether Mr Sukkarieh, who has had liability accepted for a motor vehicle accident which occurred on 5 November 2009, is presently, since 22 January 2010, entitled to compensation in respect of: soft tissue injuries to the chest, left hip, right shoulder, sternum, neck and headache, pursuant to sections 16 and 19 of the Act.
RELEVANT LEGISLATIVE ENVIRONMENT
6. The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, in particular sections 16 and 19. Section 16 deals with payment of medical expenses, and section 19 with compensation for injuries resulting in incapacity to workers.
BACKGROUND
7. Mr Sukkarieh, who is 43 years old, commenced his employment with Australia Post in December 1999. He is currently employed as a driver and sorter at the St Leonard’s Hub. The Applicant told us at the hearing that he is presently on light duties, that he sometimes drives, but as he recently hurt his ankle, he presently does mainly office work.
The January 2008 MVA
8. In January 2008, Mr Sukkarieh was involved in a head-on motor vehicle collision not associated with his work. He was taken to hospital where he remained for some three days, with injuries to his chest, (he sustained a fracture of the sternum), his neck and right shoulder, left knee, back, left hip, and both wrists. He remained off work until 23 June 2008. On his return Mr Sukkarieh worked at restricted duties for approximately a year until he returned to full duties in mid-2009. In November 2009, he made a claim in the District Court of NSW in regard to the January 2008 accident (Exhibit R4).
9. Mr Sukkarieh said in evidence that before the MVA in January 2008, he had experienced no neck, shoulder or sternum pain, or injuries, although he had suffered some back pain in the past. In cross-examination, Mr Sukkarieh was referred to Exhibit R5, Dr Salama’s notes. Dr Salama was Mr Sukkarieh’s family doctor from December 2002 to September 2006. In his notes dated 19 December 2003, (Exhibit R5), Dr Salama noted that Mr Sukkarieh had consulted him, and complained of soft tissue pain/muscle pain neck/trapezius, and that he had undergone X-rays of the cervical spine with a negative result.On 30 April 2004, Dr Salama recorded that Mr Sukkarieh had attended for C/O Pain in neck & shoulders also pain in back & lower limbs. Work related since 24.2.04 cert to 15.05.04. (Exhibit R6). When he was referred to Dr Salama’s clinical notes dated 2003 and 2004, Mr Sukkarieh told us that he could not remember any of that. He reiterated that he had had no problems with his neck or shoulders before the 2008 accident.
10. We also had before us Dr Agyagasi’s clinical notes which were Exhibit R9. Dr Agyagasi was Mr Sukkarieh’s family doctor immediately following the first MVA. The first entry in his clinical notes following Mr Sukkarieh’s discharge from hospital after the MVA of January 2008, was 16 October 2008. Mr Sukkarieh attended the practice for other issues between that date and 16 February 2009 when Dr Agyagasi recorded: persistent neck, mid back, R anterior chest wall and R shoulder pain relating to his MVA 13 months ago (the Tribunal’s emphasis). We noted that that was the first entry relating to shoulder pain. There were further reports of neck and shoulder pain, including on 15 May 2009.
11. Mr Sukkarieh’s argument for compensation to continue to be paid after 22 January 2010 in regard to injuries suffered in the 5 November 2009 MVA, was that he has continuing disability after that date. He was particularly concerned for the Tribunal to accept that the tear of the supraspinatus tendon of the right shoulder be attributed to the 2009 MVA.
12. We are mindful that the tear was first noted in an ultrasound carried out on 2 December 2009, following the 5 November 2009 MVA, but were concerned with inconsistencies in Mr Sukkarieh’s evidence as noted above.
How was Mr Sukkarieh when he went back to work on full duties in mid-2009?
13. In reply to questions in cross-examination, Mr Sukkarieh said that on his return to work in mid-2008, on restricted duties, his pain was moderate, not severe. He was cleared by his own doctor and the Australia Post doctor. He indicated to the Tribunal that he had full movement, and could do everything, including putting on a t-shirt and doing his hair. He said that the pain did not stop him working, but that his injuries had not fully resolved.
14. In October 2008, when Mr Sukkarieh saw Dr Harvey, an orthopaedic surgeon, (Exhibit R3), Dr Harvey reported that Mr Sukkarieh told him he was still suffering pain in the neck, radiating into the shoulder blades and lower back, that he had chest pain coming on spontaneously, pain below the collar bone (worse on the right side), and had trouble turning his head. When asked whether he told Dr Harvey the truth, Mr Sukkarieh replied that he wasn’t sure as it was a long time ago, but added that at the time he also had occasional numbness in the right shoulder, radiating to the right upper arm. Dr Harvey also recorded that: There was no disturbance of sensation or muscle power in either upper limb. Movement of both shoulders was quite full. He complained of slight tenderness over the front of the sternum.
15. We noted from Exhibit R9, the clinical notes of Dr Agyagasi, dated 16 February 2009 the entry reading: persistent neck, mid back. R anterior chest and R shoulder pain relating to his MVA 13 months ago. On 30 April 2009, Dr Agyagasi recorded: … still reports moderate to severe neck, shoulder and thoracic pain …. And on 15 May 2009 shortly before Mr Sukkarieh returned to full duties at Australia Post: Complaint(s); back (L02007) – since MVA Jan 08 – Obx: Off Work Certificate.
16. Mr Sukkarieh told us that the bone scan he had on 15 May 2009 was to clear him for work, and not as a result of complaints about pain. However, the report of Dr Miller, the radiologist, contains the following clinical history: MVA approximately 13 months ago. The patient complains of generalised pain in the back, neck and shoulders.
17. Mr Sukkarieh said that from mid-2009, he returned to full duties, including plenty of overtime. He said that at the time, he was still experiencing a bit of pain from the 2008 incident, from the whiplash, at the sternum and shoulder, and in the area at the head of the humerus (indicated by pointing to the relevant area). He said that he did not say to anyone, or particularly, to any doctor, that he suffered no pain. Mr Sukkarieh said that he had no problems in the area of the tear, (the clavicle area), and that there was nothing wrong with him functionally before the 2009 incident. Mr Sukkarieh disagreed with Dr McGill who had recorded that in about May 2009: He thought he was then symptom free.
18. On 16 February 2010, Mr Sukkarieh wrote to the reconsiderations officer noting his objections to Dr Hitchen’s examination and report of 8 December 2009, and commenting on his situation. He stated as follows in relation to his condition following the 2008 MVA: Following my 2008 accident, I was cleared by my doctor and an Australia Post doctor to resume full duties. Prior to my accident in 2009 I was performing my full duties without any problems. In fact, not only was I doing my full duties, I was also doing plenty of overtime.
19. We are mindful from the evidence that the MVA of January 2008 was a serious incident in which Mr Sukkarieh suffered various injuries, such as to the right shoulder, ribs, wrists and including a fracture to the sternum. He was hospitalised, and returned to work on restricted duties in the middle of that year. Although various investigations were undertaken, there was no objective investigation of the extent of damage to the right shoulder which Mr Sukkarieh now attributes to the 2009 MVA. We are however satisfied from the evidence that the 2008 MVA was a far more serious event than the 2009 work related MVA.
The 5 November 2009 MVA
20. On 5 November 2009, Mr Sukkarieh was involved in an MVA in which he says he injured his left hip, right shoulder, sternum and neck. In his claim form, he also claimed for headache. Mr Sukkarieh told us that he was driving his Australia Post van, and at 6:30 am on 5 November 2009, he hit the pedestrian refuge barrier in the middle of the road on which he was driving. Mr Sukkarieh told us that he did not know what happened.
21. He said that he felt no pain at the time, got out and checked the van to see if it was driveable, and then drove the 5 - 10 minutes or so back to the depot. He said that he then started to feel pain at approximately 6:40 am. The pain was in the neck, sternum, right shoulder, back, and area he described as behind the sternum (trapezius). At 10:00 am he also felt pain in the left hip.
22. Mr Sukkarieh did not require hospitalisation as a result of the incident. He made a claim for compensation, and on 17 November 2009, the claim was accepted for soft tissue injuries to the chest, left hip and right shoulder. He did not mention the neck.
23. There appear to have been various versions of what occurred on 5 November 2009. Mr Sukkarieh saw Dr Sim, a general practitioner, who reported that on 5 November 2009 (Exhibit R10), the Applicant had sudden loss of awareness, did not lose consciousness, and that his neurological examination was normal. Dr Sim also recorded that Mr Sukkarieh told him he was tired, and could have fallen asleep before the accident occurred on 5 November 2009 because he had been working a lot of overtime over the two weeks prior. Mr Sukkarieh told us that he disagreed with what Dr Sim had written.
24. X-rays taken on 5 November 2009 of the sternum, left hip and chest were normal, as was a cerebral CT scan. Dr Sim noted that the Applicant was slightly tender over the back of the neck, right shoulder and right side of the neck. Because of the concern regarding the sudden loss of consciousness, Mr Sukkarieh was also referred to Dr Walker, a neurologist.
25. Following the 5 November 2009 incident, Mr Sukkarieh was put on light duties. He said that he felt dizzy and wanted a few days off, but was not permitted to do so. Mr Sukkarieh was unhappy with that decision, and consulted his own general practitioner, Dr Ibrahim, who referred him to Dr Liew, a rheumatologist. He said that Dr Liew gave him a cortisone injection into his right shoulder.
26. At the request of Australia Post, Dr Hitchen, an orthopaedic surgeon examined Mr Sukkarieh. His report dated 8 December 2009 was the basis for the reviewable decision in which it was decided that Mr Sukkarieh had suffered minor soft tissue injuries in the incident of 5 November 2009, the effects of which had resolved by 22 January 2010.
27. Dr Hitchen recorded on 8 December 2009, that Mr Sukkarieh told him that after reporting the accident of 5 November 2009, he was not feeling any significant pain. However, he felt a little disorientated (sic), and over the next couple of hours accompanied his supervisor on a few deliveries. Dr Hitchen reported Mr Sukkarieh told him that as the hours went by he started to get some pain in the right shoulder, sternal region and left tip (sic). He also started to feel dizzy, developed parietal headaches and an ache in the neck.
28. Dr Hitchen recorded that the Applicant told him he had been feeling tired in the months leading up to the accident, and had been doing a moderate amount of overtime, although he had not done any for approximately 10 days before the date of the MVA, being 5 November 2009.
29. Mr Sukkarieh told us that he disagreed with Dr Hitchen’s examination of him because it was not thorough, and disagreed with his report, in particular because Dr Hitchen told Australia Post that he had suffered minor soft tissue injuries which Australia Post then held had resolved by 22 January 2010. Mr Sukkarieh said that as a result, his employer had ceased paying him compensation. Mr Sukkarieh also disagreed with what Dr Hitchen said about the accident being low energy just because the airbags did not inflate.
30. Dr Hitchen’s record of what Mr Sukkarieh told him regarding the commencement of the pain after the MVA is substantially different from the Applicant’s. He also noted in his report that there may be background industrial issues propagating Mr Sukkarieh’s illness behaviour, and that there was a degree of embellishment in the Applicant’s presentation, and that he appeared somewhat pain focused. We noted that Mr Sukkarieh objected to that evidence.
31. Dr Hitchen concluded that from an orthopaedic perspective his soft tissue injuries were minor and effectively have resolved (report of 8 December 2009).
32. Mr Sukkarieh then consulted Dr Ibrahim, who on 11 November 2009, referred to the MVA on 5 November 2009, and recorded: Suddenly lost awareness ? LOC (momentarily) was very tired - working the previous 2wks several double shifts. … On 20 November 2009, Dr Ibrahim recorded: R shoulder & neck pain …
33. Mr Sukkarieh did not have any ultrasound investigation of his right shoulder following the 2008 MVA, and the first occasion on which such investigation was undertaken, was 2 December 2009. The ultrasound indicated a partial thickness tear at the supraspinatus tendon. Mr Sukkarieh relies on the tear having occurred during the November 2009 MVA. Medical opinion on that was divided.
34. There were three reports of Dr Liew before the Tribunal. In the first, dated 10 December 2009, Dr Liew recorded that Mr Sukkarieh described the 2009 MVA, and denied any prior history of any injury or problem to the musculoskeletal sytem. He also commented on the supraspinatus tear as the ultrasound of 2 December 2009 had indicated a tear. Dr Liew did not record anything about the 2008 MVA. Mr Sukkarieh told us that Dr Liew did not ask him about the MVA in 2008. He emphasised however that Dr Liew was alerted to the 2008 MVA because Australia Post’s letter of referral had mention of the 2008 MVA.
35. We noted that at T100, Dr Liew’s second report dated 5 February 2010, he apologised for not having mentioned the 2008 MVA, stating that: following further interrogation, (of Mr Sukkarieh), he had obtained the history of the earlier MVA in 2008. Dr Liew recorded that at the time of his examination in February 2010, Mr Sukkarieh had largely recovered from the 2008 MVA (before the 5 November 2009 MVA occurred), and only had some residual pain and stiffness to the right shoulder in a different region (the Tribunal’s emphasis), and some residual pain and stiffness to the neck, the wrist and left knee. In February 2010 Dr Liew attributed Mr Sukkarieh’s ongoing symptoms and disabilities in the right shoulder mostly to injuries sustained in the 2009 MVA.
36. In his third report dated 24 June 2011, Dr Liew reiterated his view about the effects of the 2009 MVA, and noted further that prior to the 2009 incident, Mr Sukkarieh had been coping with full pre-injury functional capacity.
37. At Exhibit R11 dated 5 July 2011, Dr Ibrahim, (treating general practitioner), recorded that he had seen Mr Sukkarieh on 11 November 2009 and opined: Mr Sukkarieh has suffered injury to his sternum, cervical spine and right shoulder following a MVA on 5 November 2009 which exacerbated an old injury 2 years earlier.
38. We had before us Dr Agyagasi’s clinical notes (treating general practitioner), of Mr Sukkarieh’s attendance at his practice in 2008 following the January 2008 MVA. The first mention of right shoulder pain was recorded on 16 February 2009: R anterior chest wall and R shoulder pain relating to his MVA 13 months ago…
39. Dr Agyagasi also noted on 30 April 2009 reports from Mr Sukkarieh that he had moderate to severe neck, shoulder and mid thoracic pain despite physio. Mr Sukkarieh agreed that this was shortly before he resumed full duties, but emphasised that the pain was moderate, not severe at that time. We would have to prefer the contemporaneous medical record of the time to Mr Sukkarieh’s recollection.
40. On 30 September 2010, Dr Agyagasi recorded: Pt presents with R ant shoulder pain. Apparently had a deep partial tear of R supraspinatus in 2009 whilst working at Australia Post and is awaiting a surgical opinion (Dr Biggs). The next entry was not till 23 July 2011 when Dr Agyagasi recorded: 2/R shoulder now fully functional; has a PHx of MVA in 2008 and also a disputed workplace injury in 2010, claim allegedly denied by insurance company. Pt provided detailed background info about his previous WC case; Wants a letter stating that his shoulder injury was independent from his sternal injury (the Tribunal’s emphasis). We noted that Mr Sukkarieh denied that his shoulder was fully functional as recorded by Dr Agyagasi on 23 July 2011.
41. We also had before us a letter of Dr Agyagasi dated 1 August 2011 (Exhibit A3), in which he referred to earlier examinations of the Applicant, including a bone scan of 15 May 2009, and stated that Mr Sukkarieh had made him aware of an ultrasound of the right shoulder dated 2 December 2009 which showed a deep partial tear of the right supraspinatus tendon. He added: Clearly the tear occurred after I saw the patient for his shoulder.
42. Dr Biggs, an orthopaedic surgeon, provided a report to Dr Ibrahim about Mr Sukkarieh, dated 12 August 2010. In it he recorded that Mr Sukkarieh gave him a history of being involved in an MVA in 2008. Dr Biggs wrote: He made an uneventful recovery following that injury and specifically had no sequelae with regard to his right shoulder. He reports that he had a further injury to the right shoulder when he was involved in another motor vehicle accident whilst driving in November 2009. Since that time he has developed quite marked activity related shoulder pain. Dr Biggs attributed the supraspinatus tear to the 2009 MVA. We noted that Mr Sukkarieh disagreed he had told Dr Biggs his injury had fully resolved.
43. Dr Wallace, an orthopaedic surgeon who examined Mr Sukkarieh on behalf of his then solicitors, produced a report dated 7 September 2010 (Exhibit A1). He noted that the Applicant reported pain at the scene of the MVA of 5 November 2009, and onset of pain in his neck, sternum, right shoulder and left iliac crest on arrival at the work depot, (which according to Mr Sukkarieh was 5 – 10 minutes from the scene of the MVA). Dr Wallace recorded that the incident of 5 November 2009 had resulted in a musculo-ligamentous strain of his cervical spine. Dr Wallace also referred to plain X-rays taken 2 December 2009 of the right shoulder which indicated no abnormality, noting however that the ultrasound of the right shoulder showed a partial thickness tear at the supraspinatus tendon. Dr Wallace opined that Mr Sukkarieh’s cervical spine and right shoulder conditions as found on his examination in August 2010, indicated that they had been caused by the MVA of 5 November 2009. He added that Mr Sukkarieh’s employment with Australia Post remains a substantial contributing factor to these conditions. Dr Wallace also recorded that Mr Sukkarieh had made a full recovery from injuries he sustained as a result of a previous non work-related motor vehicle accident in January 2008, noting that the Applicant was able to resume pre-injury duties in June 2009, some five months prior to the MVA of November 2009. We noted that Mr Sukkarieh did not agree with what Dr Wallace had written about him making a full recovery before he returned to work following the 2008 MVA. Having considered Dr Wallace’s report, we are not minded to place any weight on it, being a report which arrives at conclusions not supported by evidence. We note that Dr Wallace’s examination of Mr Sukkarieh fails to identify any abnormality or ongoing problems, and accordingly does not allow him to reach the conclusions he did on Mr Sukkarieh’s diagnosis. We give his opinion little weight.
44. Dr McGill examined the Applicant at the request of Australia Post and produced a report dated 8 December 2010 (Exhibit R2). Dr McGill opined as follows in his report: I think as a result of the accident in November 2009 he suffered a minor muscular ligamentous strain of the neck and right clavicular region. In view of the findings documented by his general practitioner on the day of the accident, … I think it is unlikely that the November 2009 accident caused any injury capable of continuing to influence his symptoms for more than a short period. The pattern of prolonged symptoms, out of proportion to the objective findings of pathology, is a pattern that has been documented in the past for Mr Sukkarieh.
45. Dr McGill also noted that when Mr Sukkarieh returned to full duties in about May 2009, he was symptom free. We noted that Mr Sukkarieh did not agree that he had been symptom free, or that he had told that to any doctor. He had earlier told us that he still felt pain, but was able to work when he returned to full duties in mid-2009.
46. Dr McGill opined that:
· the 5 November 2009 incident was low energy; generally a rotator cuff tear would result from substantial trauma e.g. as experienced in the 2008 MVA;
· the 2008 MVA resulted in a fracture of Mr Sukkarieh’s sternum, indicating substantial force on the shoulder which may have resulted in the rotator cuff tear;
· the 2009 bump, even if Mr Sukkarieh had been asleep, was too minor to cause a tear or even render one symptomatic;
· generally pain from a rotator cuff tear commences immediately, although a partial thickness tear can be asymptomatic; and,
· he was unable from the evidence before him, including the 2 December 2009 ultrasound, to accurately date the tear.
47. We are satisfied from the evidence that the 5 November 2009 MVA was a far lesser incident than that of January 2008, following which Mr Sukkarieh was hospitalised, and in which he suffered a fracture to the sternum, and injuries to the right shoulder and wrist. Notwithstanding the different accounts of the 5 November 2009 incident which Mr Sukkarieh has given, we are satisfied that the impact was low, and that the airbags did not inflate.
48. We are satisfied, taking into account Dr McGill’s opinion and the accounts of the 2009 MVA, that the incident of 5 November 2009 was on the balance of probabilities unlikely to have been the cause of the supraspinatus tear which was seen for the first time on the ultrasound done on 2 December 2009. In that regard we note that no previous ultrasound of the right shoulder was done in connection with Mr Sukkarieh’s 2008 accident. We are satisfied from the evidence that in order for such a tear to occur, an impact more severe than that of 5 November 2009 would have to have occurred.
Present complaints
49. Mr Sukkarieh told us that he presently suffers as follows: his right shoulder is not the best, not improved. His sternum and trapezius, (the latter described by the Applicant as the back of the sternum), has recovered, his neck has been improving over the last couple of months before the hearing, his hip is improved, but his rotator cuff injury and his sleeping are a worry, worse than before the second accident.
Mr Sukkarieh’s submissions
50. Mr Sukkarieh’s submissions are essentially that he suffered some pain following the 2008 MVA, but was able to return to work first on restricted, then full duties with over-time from mid-2009, after he was cleared by his own doctor and the Australia Post doctor. He then suffered an MVA on 5 November 2009, and found out from the result of an ultrasound on 2 December 2009, that he had a rotator cuff tear. He accordingly attributes that tear and the present pain he reports in his right shoulder to the MVA of 5 November 2009.
Respondent’s submissions
51. Mr Best submitted that the main issue in the case was to consider whether the MVA of 5 November 2009 had caused Mr Sukkarieh’s rotator cuff tear. He submitted that the Tribunal not accept Mr Sukkarieh’s position which was that he discovered the existence of the tear on 2 December 2009, that it followed the MVA, and that it therefore was the cause. We have summarised only the main points of the Respondent’s submissions noting that it relied on the medical evidence of Drs McGill and Hitchen.
52. Mr Best acknowledged that it was not possible from the medical evidence to date the tear precisely, and submitted that it was Dr McGill’s opinion on which the Respondent relied, to say that the impact of the MVA Mr Sukkarieh suffered on 5 November 2009 would not have caused the tear or indeed rendered an existing tear symptomatic. He submitted that the symptomatology reported by Mr Sukkarieh prior to the 2009 MVA indicated evidence of disruption to the right shoulder. Mr Best referred to Dr Sim’s report of 5 November 2009 in which he recorded Mr Sukkarieh had pain over the right clavicle which is different from the rotator cuff area.
53. Mr Best also referred to the report of Dr Muratore, sports physician, whose report dated 27 July 2011 was Exhibit R8. Dr Muratore had been consulted for injuries Mr Sukkarieh sustained to his ankle. Mr Best submitted that in recounting the history of his injuries, Mr Sukkarieh had only mentioned right shoulder pain to Dr Muratore in relation to the 2009 MVA, rather than in relation to the 2008 injuries. We noted Mr Sukkarieh’s response which was that he was consulting Dr Muratore for his ankle and not for other injuries.
54. Mr Best asked that the Tribunal take into account that Mr Sukkarieh’s evidence and reports of his injuries over the period which had been inconsistent, for example:
·with reference to Dr Biggs’ report which indicated that there were no sequelae to the shoulder injury whereas the Applicant has maintained the opposite;
·what Dr McGill had recorded of Mr Sukkarieh’s statements to him which differed from the Applicant’s evidence at the Tribunal;
·the fact the Applicant did not disclose the 2008 MVA to either Dr Liew or Dr Muratore; and,
·Dr Agyagasi’s record of moderate to severe shoulder pain in April 2009, which the Applicant denied, saying he had reported moderate, but not severe pain.
The Tribunal’s conclusions
55. Our task has been to review the decision of Australia Post and decide whether Mr Sukkarieh, is presently, since 22 January 2010, entitled to compensation in respect of soft tissue injuries to the chest, left hip, right shoulder, sternum, neck and headache, pursuant to sections 16 and 19 of the Act. In doing so we have taken into account the legislation and all the evidence, including the medical evidence. We are mindful of the difficulties Mr Sukkarieh has faced in appearing at the Tribunal and representing himself.
56. Unfortunately he has given some inconsistent evidence over time in regard to how the MVA of 5 November 2009 occurred, and also of his condition, to the various doctors. We note by way of example that:
·Mr Sukkarieh did not tell Dr Liew about the 2008 MVA, although he says that Dr Liew should have known about it because there was mention of it in the referral.
·He did not tell Dr Muratore he had had a serious MVA in 2008, his explanation being that he attended for his ankle, and not for other matters.
·Dr Biggs, an orthopaedic surgeon, provided a report to Dr Ibrahim about Mr Sukkarieh, dated 12 August 2010. In it he recorded that Mr Sukkarieh gave him a history of being involved in an MVA in 2008. Dr Biggs wrote: He made an uneventful recovery following that injury and specifically had no sequelae with regard to his right shoulder. He reports that he had a further injury to the right shoulder when he was involved in another motor vehicle accident whilst driving in November 2009. Since that time he has developed quite marked activity related shoulder pain. It seems therefore that Dr Biggs attributed the supraspinatus tear to the 2009 MVA. Mr Sukkarieh disagreed he had told Dr Biggs that he had fully recovered from the 2008 injuries.
·We noted Dr McGill’s statement in his report under the heading ‘EXAMINATION’ was that Mr Sukkarieh’s recollection of the timing and progress of symptoms appeared imperfect as some of the information was contradictory. He made that statement with reference in particular to discomfort on resisted contraction of the supraspinatus first on the left, then on the right which we understand is the location of the tear.
57. We accept from the evidence that the MVA in 2008 was far more serious than that in 2009 because as a result of the 2008 MVA, Mr Sukkarieh was hospitalised, he suffered a fracture of the sternum and other injuries to his shoulder, wrists and other areas. It was a head-on collision. By contrast, the 2009 MVA appears to have been at a slow speed, and low energy, resulting in Mr Sukkarieh’s car hitting the pedestrian refuge barrier, an accident where the air bags did not inflate.
58. Dr Liew reported on 10 December 2009 following the 2 December 2009 ultrasound which indicated a supraspinatus tear, that Mr Sukkarieh described the 2009 MVA, and denied any prior history of any injury or problem to the musculoskeletal sytem. He accordingly attributed the tear to the 5 November 2009 MVA. In February 2010, Dr Liew, who by then knew about the 2008 MVA, recorded that at the time of his examination, Mr Sukkarieh had largely recovered from the 2008 MVA (before the 5 November 2009 MVA occurred), and only had some residual pain and stiffness to the right shoulder in a different region (the Tribunal’s emphasis), and some residual pain and stiffness to the neck, the wrist and left knee. In a further report dated 24 June 2011, Dr Liew reiterated his view about the effects of the 2009 MVA, and noted that prior to the 2009 incident, Mr Sukkarieh had been coping with full pre-injury functional capacity. We did not give much weight to Dr Liew’s opinions because as noted in the paragraphs above, he based his opinion on an inaccurate history, and attributed the supraspinatus tear to the 2009 MVA without having been told about the 2008 MVA until after he had examined Mr Sukkarieh and produced his first report.
59. At Exhibit R11 dated 5 July 2011, Dr Ibrahim, (treating general practitioner), recorded that he had seen Mr Sukkarieh on 11 November 2009 and opined: Mr Sukkarieh has suffered injury to his sternum, cervical spine and right shoulder following a MVA on 5 November 2009 which exacerbated an old injury 2 years earlier.
60. We have dealt with Dr Agyagasi’s evidence in the paragraphs above. We noted Mr Sukkarieh disagreed with some of what Dr Agyagasi had recorded in regard to reports of pain. We have also concluded that Dr Agyagasi was an advocate for Mr Sukkarieh, particularly in his letter of 1 August 2011 at Exhibit A3. We have however accepted his contemporaneous medical records as accurate, for example:
·the first mention of right shoulder pain recorded on 16 February 2009: R anterior chest wall and R shoulder pain relating to his MVA 13 months ago; and,
·his clinical note which recorded on 30 April 2009 the report from Mr Sukkarieh that the patient had moderate to severe neck, shoulder and mid thoracic pain despite physio.
However, we have given little weight to his opinion as expressed at Exhibit A3.
61. We noted Dr Wallace’s report on 7 September 2010. His opinion was that the MVA of 5 November 2009 had resulted in a musculo-ligamentous strain of the Applicant’s cervical spine, other soft tissue injuries, and the partial thickness tear of the supraspinatus tendon (right shoulder). Dr Wallace also recorded that Mr Sukkarieh had made a full recovery from injuries he sustained as a result of a previous non work-related motor vehicle accident in January 2008, noting that the Applicant was able to resume pre-injury duties in June 2009, some five months prior to the MVA of November 2009. We note that Mr Sukkarieh does not agree he made a full recovery from injuries sustained in the 2008 MVA, although he accepted that he was able to return to work. We did not give much weight to Dr Wallace’s report on the basis that his examination of Mr Sukkarieh fails to identify any abnormality or ongoing problems, and accordingly does not allow him to reach the conclusions he did on Mr Sukkarieh’s diagnosis.
62. That brings us to the point on which Mr Sukkarieh relies, which is that the supraspinatus tendon tear of his right shoulder was as a result of the 2009 incident, and that his pain and incapacity continues after 22 January 2010, and indeed to the present. The evidence before us, particularly of Dr McGill, which we accept, is that an impact greater than that which appears to have occurred on 5 November 2009 is required to cause such a tear. Dr McGill characterised the MVA of 5 November 2009 as low energy, and we accept that. Dr Hitchen thought similarly that the 2009 MVA was low energy. Both Drs McGill and Hitchen opined that it caused a minor soft tissue injury strain to the neck and right shoulder. Dr Hitchen opined that this was upon a background of pre-existing shoulder problems (from the 2008 MVA), the tear possibly having been caused by a previous heavy blow to the shoulder.
63. We are of course concerned because the tear was first noted in an ultrasound of 2 December 2009, and no doctor has ventured to date the tear exactly. However we are satisfied that it is more likely than not to be associated with the 2008 MVA, rather than with the 2009 MVA. We are satisfied in any case from the medical evidence that the result of the 2009 MVA was a minor soft tissue injury which resolved before 22 January 2010.
64. Dr Sim, the general practitioner who saw Mr Sukkarieh on 5 November 2009, the day of the MVA, recorded Mr Sukkarieh being tender over the right clavicle, sternum and iliac crest. We would expect pain from a supraspinatus tear to be at the proximal humerus, the upper arm. We noted also that Dr Sim described Mr Sukkarieh’s injury as a soft tissue injury. We accept that Mr Sukkarieh suffered a minor soft tissue injury on 5 November 2009, and accept Drs McGill and Hitchen’s opinion that it was of short duration.
65. We accept that the effects of the 2009 MVA were soft tissue injuries which had resolved by 22 January 2010.
DECISION
66. The Tribunal affirms the decision under review.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr T Austin AM, Member.
Signed: ................[sgd]..............................................................
Casey Comans, AssociateDates of Hearing 13 and 14 September 2011
Date of Decision 27 October 2011
Applicant Self Represented
Counsel for the Respondent Mr M Best
Australia Post Representative Ms D Hatton
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