Sula and K&S Freighters Pty Ltd (Compensation)
[2021] AATA 3058
•27 August 2021
Sula and K&S Freighters Pty Ltd (Compensation) [2021] AATA 3058 (27 August 2021)
Division:GENERAL DIVISION
File Number: 2020/1495
Re:Nevzat Sula
APPLICANT
AndK&S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:27 August 2021
Place:Melbourne
The Tribunal decides to set aside the decision under review dated 18 February 2020, and remits the matter for reconsideration in accordance with the directions that:
- the Respondent is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the Applicant’s left common extensor injury suffered on 7 November 2019;
2.the Respondent make a determination in relation to any benefits arising under ss 16 and 19 of the Act; and
3.the Respondent is liable for the Applicant’s costs pursuant to s 67 of the Act.
...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – decision not to accept liability for left elbow condition – nature of condition – nature of incident – credibility of Applicant – condition is an aggravation of a disease and so an injury – whether claim excluded for wilful and false representation – decision set aside and remitted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Griffiths v Australian Postal Corporation [2018] FCA 520
National Australia Bank v Georgoulas [2013] FCA 1412
Neat Holdings Pty Ltd v Karajan Holdings Pty Limited [1992] HCA 66Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
27 August 2021
BACKGROUND
Mr Sula applied on 10 March 2020 for review of a decision of the Respondent dated 18 February 2020 which affirmed an earlier determination denying liability for a left elbow condition.
At the time of the incident said to cause his condition, Mr Sula was on a return to work program following an earlier shoulder injury during his employment as a truck driver. At the end of a day shift on 7 November 2019, Mr Sula claims to have suffered pain in his elbow when attempting to uncouple a trailer from its prime mover. He since returned to work on other duties, but only briefly, and is currently not working. Mr Sula is left-hand dominant.
Mr Sula lodged a Statement of Facts, Issues and Contentions (SFIC). The following further material was admitted:
(a)Statement of the Applicant, dated 14 May 2021 (Exhibit A1);
(b)Report of Dr Ash Chehata, orthopaedic surgeon, dated 17 September 2020 (Exhibit A2);
(c)Bundle of reports of Dr Peter Braun, sports and exercise medicine physician, dated 17 July 2020, 3 March 2021, and 1 May 2021 (Exhibit A3); and
(d)Report of Dr Vu Dang, general practitioner, dated 14 September 2020 (Exhibit A4).
The Respondent lodged T documents, supplementary T Documents and a SFIC. The following further material was admitted:
(a)Practice records of Dr Dang (Exhibit R1);
(b)Photographs of prime mover (Exhibit R2);
(c)Video of prime mover (Exhibit R3);
(d)Report of Prof Peter Steadman, orthopaedic surgeon, dated 1 June 2021 (Exhibit R4);
(e)Practice records of Dr Braun (Exhibit R5); and
(f)Statement of Tesfalem Kidane, dated 6 July 2021 (Exhibit R6).
Mr Sula’s evidence in chief at the hearing consisted of the admission of his witness statement. Evidence was given by each of the medical professionals from whom written evidence was provided. Mr Kidane is a driver with the Respondent and also gave oral evidence.
LEGISLATION
Compensation for injuries arises under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Injury is defined, relevantly, in s 5A(1) of the Act as follows:
(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 is defined in s 5B of the Act to mean an ailment, or an aggravation thereof, that was ‘contributed to, to a significant degree, by the employee’s employment’. Certain factors may be considered in determining the relationship with employment (s 5B(2)). Significant degree is defined as ‘substantially more than material’ (s 5B(3)).
Among certain provisions made in respect of diseases in s 7 of the Act, is the following:
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by … a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
ISSUES
The Respondent advanced several contentions in its SFIC and the oral submissions at hearing. In short, the Respondent submitted that the medical evidence demonstrated that Mr Sula had a pre-existing chronic elbow condition and, ultimately, questioned the veracity of the claim. This included asserting that the Applicant had concealed prior symptoms, thus invalidating his claim under s 7(7) of the Act.
Accordingly, the issues for determination are the nature and extent of the medical condition affecting Mr Sula’s elbow, what connection it may have with his work on 7 November 2019, and, finally, whether his actions amount to disqualifying conduct.
DIAGNOSIS
Mr Sula reported to his GP, Dr Dang, on 8 November 2019 (Exhibit A4) that the previous day he had injured his left elbow at work, while uncoupling a trailer. Dr Dang completed a medical certificate for Mr Sula on the same day (T15) which diagnosed ‘Left elbow injury/ Bicep tear’.
An ultrasound was conducted on 9 November 2019 (T16) which concluded there was a tear in the common extensor origin on a background of lateral epicondylitis.
An MRI commissioned on behalf of the Respondent, dated 6 December 2019 (T22), concluded there was thickening of the common extensor origin: ‘these findings are suspicious of common extensor tear and chronic tendonitis’.
A medical record indicates that Mr Sula presented to Dr Dang and his physiotherapist, Mr Michael Nguyen, on 31 October 2019 (Exhibit R1). Among other things in his physiotherapy consultation, Mr Sula appears to have complained of ‘medial elbow pain’. The record also observes: ‘neural tension left elbow and shoulder ? related’.
In his evidence, Mr Sula stated that at the time of his consultation with Mr Nguyen he had been attending the gym as part of his rehabilitation from the earlier injury. He stated that he experienced ‘a bit of pain’ in the elbow, but was unable to specify more clearly either the cause, or the symptoms.
Mr Sula stated that he continues to experience left elbow symptoms. Asked where, he stated ‘top, middle’. He agreed that he understood the difference between medial and lateral elbow pain, and stated that the ‘whole area was tender’. After some detailed questioning about his medical records regarding lateral pain, Mr Sula disagreed with the proposition that he only complained of lateral elbow pain to assist his case.
Mr Sula’s evidence with respect to current medication was not entirely clear. He agreed that he was prescribed pain medication at the time of the left elbow injury. However, when it was put to Mr Sula that there had been infrequent prescription since that time, he stated that he uses his mother’s medication on occasion. Mr Sula stated that he takes medication when he experiences pain, but he does not like to take medication.
Dr Dang was asked in evidence about the apparent change of diagnosis appearing in the medical record. Dr Dang stated that on examination on 8 November 2019, Mr Sula was tender around the bicep and left common extensor area. He was not aware that Mr Nguyen, who practices in the same clinic, had previously recorded medial elbow pain.
Dr Dang confirmed in evidence that he recorded medial elbow pain on 18 February 2020, and there was no further record until ‘tennis elbow’ recorded on 6 June 2020. He explained that this term describes inflammation of the common extensor tendon.
Dr Dang was not able to explain the apparent change in the site of pain. However, he confirmed that Mr Sula presented with symptoms of pain around the elbow area, and stated that the mechanism was strongly suggestive of a problem with the common extensor tendon.
In evidence, Dr Chehata was asked to explain how Mr Sula may have suffered an injury from a pulling action said to have been used in the incident. Dr Chehata stated that forcefully pulling distributes force medially and laterally, and there may be flexion involving the bicep, or pushing which involves the triceps.
Dr Chehata stated that when he saw Mr Sula in September 2020, he presented with a tennis elbow condition, but with a normal range of movement. Mr Sula had pain across the lateral column of the elbow which correlated with the history of the mechanism of injury provided, and the radiology.
Asked about the impact if degeneration is present, Dr Chehata stated that forceful use of the hand can worsen the condition. He stated that the common extensor origin is not a small region, and that inflammation can arise from small perforations in tissue. Dr Chehata also stated that muscle pain can arise medially. In his opinion, classically, underlying change can be seen in the 30–55 age range.
In cross examination, Dr Chehata stated that only a small percentage of tennis elbow cases arise from tennis. In his opinion, extension was the important factor. Extension arises from a gripping action, such as in gripping a handle. He also stated that various factors will determine where the force has effect, but noted that the third and fourth fingers generate power and involve the medial aspect.
Dr Chehata agreed that Mr Sula’s presentation when attending Dr Steadman led to ‘bizarre’ findings. In contrast, Mr Sula’s presentation to Dr Chehata was ‘completely different’. He confirmed that he found elbow pain laterally in his consultation, and stated that the mechanism described correlates to lateral pain and also biceps pain; the latter was not a ‘deal breaker’. He acknowledged, however, there was a psychological component to Mr Sula’s presentation.
I asked Dr Chehata to confirm his understanding of the radiology. Dr Chehata responded that his assumption was that whatever repetitive work Mr Sula had undertaken previously led to the development of tennis elbow, and a single incident has subsequently invoked a response. That is, there were no signs of a traumatic tendon tear, and the scarring indicated it very likely happened over a long time.
In his evidence, Dr Steadman stated that he arranged the MRI scan to obtain information because of the difficulty he experienced when examining Mr Sula on 2 December 2019. He had, however, identified tenderness between the biceps and lateral tendon. One of the reasons he sought an MRI was because of a concern over a bicep injury, which would require urgent treatment.
Dr Steadman stated that the MRI confirmed chronic changes of the left epicondyle and did not consider there was clear evidence of a tear. He stated this form of change is a common age-related issue, reflecting changes in blood flow. Dr Steadman stated he was not able to correlate the result with his own clinical findings. He stated that pain can refer some way down the muscle wad in the forearm. Asked what he had observed, Dr Steadman stated that Mr Sula’s signs were very difficult to piece together.
Asked to confirm his diagnosis, Dr Steadman stated that he had never seen such clinical signs in a case of tennis elbow. In conclusion, reflecting on the MRI and presentation, he had found no diagnosable condition.
Dr Steadman distinguished in his evidence between resisted flexion movement, which can cause problems medially, and resisted extension, which causes problems laterally. Asked to consider the impact of forceful gripping, Dr Steadman considered that this involved both muscle compartments and forces might add to the effect, depending upon which movement is used.
In cross examination, Dr Steadman agreed that Mr Sula’s presentation on initial examination was ‘bizarre’, and pointed to non-physical issues affecting the presentation. He clarified that, in his opinion, lateral epicondylitis was a condition largely confined to those aged between 35 and the 50s. Dr Steadman agreed that it ‘could be the case’ that loading the elbow by pulling could make any underlying condition symptomatic.
Dr Steadman restated his opinion that the MRI did not provide evidence of a tear. He described the chronic change was related to different sized tears, being smaller micro tears, and noted that the MRI indicated inflammation.
In his evidence, Dr Braun confirmed numerous consultations with Mr Sula in his capacity as a sports physician, commencing in relation to the Applicant’s prior injury. He confirmed that he reviewed Mr Sula on 9 December 2019 and stated that the mechanism of injury given to him and imagery was consistent with a left lateral elbow condition.
When he reviewed Mr Sula in February 2020, Dr Braun stated the lateral pain had resolved but that the Applicant exhibited other, vague symptoms and was behaving in an anxious and apprehensive manner. Nonetheless, he considered that Mr Sula had the potential to make further progress with an appropriate rehabilitation program.
In cross examination, Dr Braun stated that the reports of medial pain were not consistent with his findings. Dr Braun was unable to find specific notes relating to his initial examination of the elbow, however he stated that his recollection was of pain and non-specific tenderness.
Dr Braun accepted that in a subsequent examination and report of 21 February 2020 (T29) he describes performing a more comprehensive examination. He accepted that he found mild focal tenderness over the lateral epicondyle. Dr Braun stated that he was puzzled by a new finding, consistent with Dr Steadman, of bicep tendon pain.
Dr Braun stated that he also observed jerky movements, similar to those found by Dr Steadman. In his opinion, a sense of apprehension was expressed in disordered movement.
Summary and conclusion
It was submitted on Mr Sula’s behalf that not a great deal turns on the distinction between medial or lateral pain, given Dr Chehata’s evidence as to the effect of a gripping action. Moreover, Dr Steadman did not rule out the possibility that an underlying condition could have been rendered symptomatic, and had also faced difficulties in his physical examination.
On the Respondent’s behalf, it was submitted that Dr Braun initially did not record left lateral pain, and that Dr Chehata did not examine Mr Sula until some ten months after the incident. The latter time difference meant that it was difficult to attribute lateral pain to the specific incident.
Submissions stressed that Dr Steadman had not been able to correlate his observations with the complained of injury. Given Dr Steadman’s inability to identify an organic basis for the complaint, there could be no injury.
I consider that the medical record clearly contains apparently contradictory elements. Critically, in the case of Dr Braun, his early findings were non-specific, if not benign, and Dr Steadman was unable to make a relevant diagnosis. Other clinical observations contemporary to the incident appear on their face to identify a different site of injury, being of the medial aspect of the upper arm. Indeed, this site is noted in a medical report that predates the incident.
Radiology, however, was relied upon specifically by at least two of the specialist medical witnesses (Dr Chehata and Dr Braun) to support their conclusions that Mr Sula indeed developed left lateral epicondylitis. Their evidence as to correlation between history, observations and radiology was largely unequivocal. Both witnesses openly acknowledged that Mr Sula’s presentation involved more than physical aspects.
This concern about a possible non-organic element plays a role in Dr Steadman’s diagnosis. He also had a somewhat different insight into the radiology, but appears to have conceded that there was an indication of underlying pathology, that could have been made symptomatic under certain conditions. I note that I exclude from consideration the later ultrasound (T36) which was considered by the witnesses to be an anomaly.
I consider the evidence at the hearing of both orthopaedic specialists (Dr Chehata and Dr Steadman) to be particularly important. Leaving aside the details of the mechanism, which I will address in more detail shortly, my understanding of the oral evidence is that there was no finding of a traumatic tear in the left common extensor origin. However, the weight of the expert evidence demonstrates to my satisfaction that Mr Sula had an underlying age-related left common extensor condition which has become symptomatic as a result of the incident.
Accordingly, in terms of the Act, I find that Mr Sula experienced the aggravation of an underlying disease, being an ailment in the form of chronic left elbow tendonitis. I will address the factors identified in s 5B(2) of the Act in the following section.
INCIDENT
There is no dispute that Mr Sula was in a position to have suffered the injury complained of. Further, no evidence was adduced to suggest that there was any other mechanism of injury, work-related or otherwise. Mr Sula’s own evidence as to the circumstances of the injury was, however, not particularly strong.
In cross examination, Mr Sula stated that after driving the last route of the day, in company with a colleague, and reversing the vehicle, Mr Sula decided to uncouple the trailer as he was to drive unaccompanied the following week. He agreed that he had been offered help with the task, but considered it important to attempt the task himself.
Mr Sula agreed with the description contained in his statement, which was that he attempted to pull a handle which jammed and he returned to the truck cabin with pain in his elbow. He accepted that the photographs displayed (Exhibit R2) were of a ‘similar set up’. Mr Sula stated that a cable fixed to a safety pin was not in place at the time of the incident.
After persistent questioning about the circumstances, Mr Sula stated that he used his right arm to pull the pin, and his left to pull the handle operating the locking mechanism. It was noted during this passage of evidence that this conforms to the description in the claim form (T19, p 48). Mr Sula denied the direct challenge put to him that he fabricated the incident to avoid his return to work as a driver.
Mr Kidane stated in evidence that he had direct personal experience of the truck in question. He agreed that sometimes uncoupling can be difficult but that, ordinarily, the pin can be pulled easily in either hand. He stated the force on the handle itself varies. Mr Kidane also stated that ‘nine times out of ten’ the cable to the pin is attached. If it is not, he reports this as a fault.
Summary and conclusion
The Respondent’s representative submitted that I should treat Mr Sula’s evidence with a great deal of caution.
I consider that Mr Sula’s statement is not helpful in accurately describing the actions he undertook, as it contains ambiguities. His oral evidence lacked detail and accuracy. This was made apparent from the provision of imagery at the hearing which I understood to be of the actual vehicle involved.
As noted above in relation to the issue of diagnosis, a non-organic component has been identified in Mr Sula’s presentation during medical examinations. Medical witnesses also spoke of Mr Sula’s quiet demeanour. Information raised at the hearing indicated that Mr Sula is advancing a separate claim for psychological injury.
While I do not have before me any relevant medical evidence, I do consider that Mr Sula’s presentation as a witness appears to have been affected by what I understand to be both his demeanour in general, and his particular apprehension about his medical and workplace situation. That is, I consider that weaknesses in his evidence appear to arise from personal vulnerability, rather than being a deliberate tactic.
It is relevant to note that Mr Sula denied in evidence specific contentions about the reliability of his evidence (both medical and in relation to the incident). I also consider it relevant to take into account that there is a weight of evidence overall that presents a consistent picture of the incident. This includes the incident report (T14), reporting to Mr Sula’s supervisor (T40), the broadly corroborating evidence of a colleague (T12, T40), and the claim form (T19) (which I will turn to next).
There was an element of the case presented for the Respondent which, as I pointed out during the hearing, verged on seeking to identify a contribution by Mr Sula to his circumstances. Whether or not there were alternative strategies at the time of the incident, such as by slightly reversing the trailer to relieve tension, or by seeking the assistance of his driving colleague, is not strictly relevant to the findings necessary in this matter.
Accordingly, I find that the evidence overall demonstrates that the incident claimed as the source of Mr Sula’s medical condition did in fact occur.
Returning to the nature of the condition, the Act requires consideration of the strength of the relationship with employment, taking into account the kinds of matters identified in s 5B(2) of the Act. The medical witnesses identified the underlying condition as age-related. There appears also to have been a potential precursor event, given Mr Sula’s recollection of possibly experiencing pain prior to the incident from gym attendance.
I note that the specific legal test is whether the contribution of employment to the aggravation of Mr Sula’s underlying condition was substantially more than material. Taking into consideration my finding about the incident above, and considering the medical evidence more broadly, I am satisfied that the condition meets this test.
REPRESENTATIONS IN THE CLAIM PROCESS
The two preceding issues come together in respect of the challenge raised by the Respondent to the form completed by Mr Sula (T19).
Question 13 of the form (T19, p 46) asks: ‘Have you ever had a similar symptom, injury or injury before – work related or otherwise?’ Mr Sula completed this question by answering ‘no’. Asked in evidence how the Applicant reconciled this with his complaint of elbow pain prior to the incident, Mr Sula responded that he ‘did not think it was an injury’.
Mr Sula accepted on specific questioning that this response was false, but stated that he did not think much of the elbow soreness from the gym. When asked to confirm that he attributed the prior pain to the gym, Mr Sula stated that he did not know the cause of the pain.
Summary and conclusion
It was submitted on the Respondent’s behalf that Mr Sula made a wilfully wrong claim, one that was objectively false, given that he acknowledged experiencing elbow pain prior to the incident. The claim of injury therefore should fail under s 7(7) of the Act.
On Mr Sula’s behalf, it was submitted that the Respondent’s contentions amount to an allegation of fraud. Accordingly, the relevant test is that in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw), as restated in Neat Holdings Pty Ltd v Karajan Holdings Pty Limited [1992] HCA 66, and therefore a strict standard of proof was required.
It is well understood that there is a distinct conception of evidence and proof in merits review, and there is authority for the view that the Briginshaw test does not apply to Tribunal proceedings (Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93). However, I consider a fair reading of the law and submission in this case is that the Tribunal should not lightly reach conclusions that have serious consequences.
More direct guidance as to the application of s 7(7) of the Act is found in Griffiths v Australian Postal Corporation [2018] FCA 520 (Griffiths). There are essentially two questions to address: first, was the disease the same, or one substantially similar to, that arising in the claim? (Griffiths at [19]–[20], where Flick J cites National Australia Bank v Georgoulas [2013] FCA 1412, at [73]–[74]); and second, was there wilful misrepresentation, which requires both objective falsity, and knowledge of that falsity? (Griffiths at [35]–[44]).
The best reading of the evidence appears to me to show that, put at its strongest, Mr Sula may have experienced some elbow pain, possibly biceps pain, prior to the incident. It does not appear to me that the evidence shows that Mr Sula understood this to be a disease, and there was, objectively, no clear diagnosis of any condition at this point. When completing the form, there was a diagnosis, supported by radiology, of a condition involving left common extensor origin. I have also noted above other relevant evidence relating to his relatively non-specific presentation at the time.
Accordingly, I do not consider the evidence supports the making of the specific findings required to enliven the statutory disqualification.
CONCLUSION
To summarise, I have found that Mr Sula’s condition is best understood as being an aggravation of an underlying degenerative condition. I am also satisfied from the circumstances overall that it was contributed to, to a significant degree, by his employment. I was not persuaded that Mr Sula made a disqualifying representation about the condition.
DECISION
For the reasons given the Tribunal decides to set aside the decision under review dated 18 February 2020, and remits the matter for reconsideration in accordance with the directions that:
(a)the Respondent is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the Applicant’s left common extensor injury suffered on 7 November 2019;
(b)the Respondent make a determination in relation to any benefits arising under ss 16 and 19 of the Act; and
(c)the Respondent is liable for the Applicant’s costs pursuant to s 67 of the Act.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
...[sgd]....................................................................
Associate
Dated: 27 August 2021
Dates of hearing: 19–21 July 2021 Counsel for the Applicant: Mr Nicholas Horner Solicitors for the Applicant: Zaparas Lawyers Counsel for the Respondent: Mr Roy Seit Solicitors for the Respondent: McInnes Wilson Lawyers
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