Taufaao and Australian Postal Corporation
[2006] AATA 419
•4 May 2006
Administrative
Appeals
Tribunal
WRITTEN REASONS FOR ORAL DECISION [2006] AATA 419
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/783
GENERAL ADMINISTRATIVE DIVISION ) N2005/1422 Re SIFA TAUFAAO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date 4 May 2006
Date of Written Reasons 12 May 2006
Place Sydney
Decision In Proceedings N2005/783 I find the whole person impairment of the cervical spine under Table 9.6 to be 5%.
In Proceedings N2005/1422 in relation to the right shoulder injury I find:
(a) that Australia Post does have liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”); and
(b) Mr Taufaao has a 10% whole person impairment of his right shoulder pursuant to Table 9.1.In both proceedings the decisions under review are set aside and the matters are remitted for reconsideration in accordance with my findings.
Costs
In my opinion, the appropriate order is that the Respondent pay costs pursuant to s 67(9) of the Act. However, as no argument was presented to the Tribunal on the issue of costs, I grant the parties 14 days in which to approach my Associate if they wish to argue the question. If they do not, I will make the order I have indicated.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
WORKERS’ COMPENSATION – accident involving motorcycle collision with a car – claim for liability for right shoulder – permanent impairment claim for cervical spine and right shoulder – Respondent has liability for right shoulder injury - permanent impairment to cervical spine and right shoulder – decisions set aside and remitted in accordance with findings.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s 14, 24 and 27
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly
Following is my decision in the matter of Sifa Taufaao and Australia Post.
Introduction
1. Mr Taufaao is currently 33 years of age and employed by Australian Postal Corporation (“APC”). He was first employed from 1992 until mid 1999 and then recommenced employment with APC in May 2000. The reason Mr Taufaao was not working for APC during 1999 to 2000 was that APC had determined to cease liability for an injury he had suffered to his left knee and right neck on 28 April 1998. In a consent decision of this Tribunal dated 5 June 2000 the parties agreed that liability continued. The injury is the same in these proceedings.
Decision
2. For the reasons that follow, the decision in this matter is:
3. In Proceedings N2005/783 I find the whole person impairment of the cervical spine under Table 9.6 to be 5%.
4. In Proceedings N2005/1422 in relation to the right shoulder injury I find:
(a) That Australia Post does have liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”); and
(b) Mr Taufaao has a 10% whole person impairment of his right shoulder pursuant to Table 9.1.5. In both proceedings the decisions under review are set aside and the matters are remitted for reconsideration in accordance with my findings.
Costs
6. In my opinion, the appropriate order is that the Respondent pay costs pursuant to s 67(9) of the Act. However, as no argument was presented to the Tribunal on the issue of costs, I grant the parties 14 days in which to approach my Associate if they wish to argue the question. If they do not, I will make the order I have indicated.
The Accident
7. At the hearing, Mr Taufaao described what happened on 28 April 1998. He was riding his motorbike along James Street, Hamilton, around lunch time. A car parked in front of him but had no indicators on. He overtook it on the right side and as he did so the car turned right to go into a car park. The rear driver's side door struck him, knocking him off his bike. In Mr Taufaao's words, he "flew like Superman" over the handlebars into a parked car. He was wearing a helmet and went head first into the parked car, then struck his right shoulder on the car and landed on the ground. He was able to get up. A man who was painting his house came to help.
8. Mr Taufaao was in shock. His motorbike was a write-off and his helmet had paint on it from the car he struck. He rang up for another bike and continued his duties that day until another officer came. During his oral evidence Mr Taufaao said that when he calmed down he felt pain. He could not turn his neck to the right side and his left knee had been hurt. He went to see Dr Savio who was nearby. His general practitioner was Dr Kochanski. It is not in dispute in these proceedings that Mr Taufaao has never consulted Dr Kochanski in relation to the injuries he suffered in the accident but has always seen Dr Savio about those injuries. I have the clinical notes of both doctors in evidence.
The Issues
9. The issues in these proceedings are whether as a result of the accident Mr Taufaao has:
· 1. A permanent impairment of his cervical spine pursuant to sections 24 and 27 of the Safety and Rehabilitation and Compensation Act 1988 (“the Act”).
· 2. A compensable right should injury for which APC is liable pursuant too section 14 of the Act.
· 3. A permanent impairment of his right shoulder under sections 24 and 27 of the Act.
Proceedings
10. There were two sets of proceedings before me.
11. Proceedings N2005/783 related to the following. On 17 February 2005 APC rejected Mr Taufaao's claim for permanent impairment to the left knee and right neck. The reviewable decision is that made on 9 June 2005 when the APC determined that the only issue before them was whether there was a permanent impairment to the cervical spine. It affirmed the decision of 17 February 2005 and found no permanent impairment to the cervical spine.
12. Proceedings N2005/1422 related to the following. On 22 September 2005 APC determined that there was no permanent impairment to Mr Taufaao's right shoulder. On 26 September 2005 APC determined that liability does not exist under section 14 for any right shoulder condition. Both of these decisions were affirmed on 26 October 2005.
Background
13. The following is not in dispute. Mr Taufaao was born in Tonga in 1972 and came to Australia when he was six years old. He left school when he was 16 years old and worked as an offsider on a delivery truck, as a storeman and a fish filleter before he joined APC. He played rugby union at an elite level and suffered injuries to his left knee and left shoulder which are not relevant to these proceedings. He also played cricket when he was growing up. He is married and has four children.
14. He recorded in his claim form dated 28 April 1998 that the nature of the injury was a contusion and laceration, and the body parts affected were left knee and right neck. Liability was accepted in May 1998. He had one day off work and had physiotherapy. He has continued to see Dr Savio over the years in relation to his injuries. Before the accident Mr Taufaao had no pain in the neck or right shoulder. He continued working, riding his motorbike until mid 1999.
15. His duties included sorting mail before delivering it. He found wearing a heavy helmet caused him discomfort. When he returned to work in 2000 he rode a bicycle and also delivered mail on foot and continued his pre-delivery mail sorting duties up until about 2004. Because of the problems he said he was having with his neck and shoulder he became a light van driver, which involves working at night. He has a restriction on lifting to no more than 16 kilograms.
16. During the period he was not working for APC in 1999 and 2000 he worked as a security guard. He has also done such work at weekends while working for APC but cannot do so at present because his light van driving work involves night work and he cannot therefore do both jobs.
17. In an undated document in proceedings N2005/1422 T4, Mr Taufaao completed a claim form for the injury that occurred to the right shoulder. The date of the injury was 28 April 1998 which is when he first noticed he was injured and when he first sought treatment. He acknowledges on his claim form that he has previously lodged a claim for the same incident when he had injuries to his neck and left knee.
Mr Taufaao’s Evidence
18. In summary, Mr Taufaao says that the two periods of physiotherapy he had in 1998 and 1999, which are mentioned later in this decision, provided only temporary relief and there is no point in having any more. He does not take medication to relieve his pain. His left knee has not caused him any problem. He says that there has been no improvement in his neck and shoulder since the accident. In particular, he says he cannot sleep because of the discomfort in his neck. He cannot turn his head to the right and he has other limitations on his head movement. His use of his right shoulder is also limited. For example, he cannot bowl overarm.
19. He acknowledged that in about July of 1998 he had two boxing bouts. In the first he lost on points in a three round fight and in the second he won in the first round when he knocked out his opponent. He also trained extensively before the fights, including sparring in the final preparation phase. He has not boxed since those two fights.
20. He explained that his current symptoms are pain in the top of his right shoulder about half way between his neck and the top of his right arm. He also described the pain down the right lateral posterior of his neck and the limitations on movement.
21. He expressed his frustration with APC and in particular with the doctors who saw him, including Dr McGill. He said that they did not write down his complaints of pain as he had told them.
Rehabilitation Report
22. In an initial rehabilitation needs assessment dated 7 June 2000 Mr Taufaao's current status and symptom levels were noted as "constant right shoulder and right neck pain" and "reports decreased right shoulder endurance strength" .
Medical Evidence
23. Following is a summary of the medical evidence. The medical opinions differ in relation to whether there is a permanent impairment to the cervical spine and the right shoulder. They also differ regarding whether a shoulder injury occurred during the 1998 accident. The only oral medical evidence was given by Dr McGill, consultant rheumatologist.
24. There are a number of diagnostic reports arising from investigations over the years. On 28 April 1999 Mr Taufaao had a CT scan. It reports:
Cervical spine: Alignment appears normal. There is no evidence of a fracture. The disc spaces, facet joints and neuroforamina appear normal. (Proceeding N2005/783, T14.)
25. An MRI scan was performed on 27 November 1999 and Professor Ghabrial, Mr Taufaao's treating orthopaedic surgeon, commented that it indicated:
“loss of signal at the C5/6 segment, consistent with internal disc disruption at the C5/6 disc.”
26. The radiologist's report was not in evidence.
27. On 24 May 2000 Mr Taufaao had a CT scan of his right shoulder. No abnormalities were found. He also underwent an ultrasound to the right shoulder. This indicated that there were no abnormalities in the right shoulder. (Proceeding N2005/783, T35)
28. Professor Ghabrial commented that an MRI scan performed on 7 August 2000 showed no evidence of any "subluxation or instability of the right sternoclavicular joint". The radiologist's report was not in evidence. I note at this point that the issue of the right sternoclavicular joint was not relevant in these proceedings.
29. A cervical spine X-ray was performed on 23 May 2003. Dr McGill comments in one of his reports that it demonstrated a tiny bone fragment at the anterior end of the upper vertebral end plate of C3. There was no report before me by the radiologist.
30. On April 2004 an X-ray was performed on the right shoulder and there was found to be no bone or joint abnormality or fracture or dislocation. An ultrasound was also performed, which found there was minimal bunching of the supraspinatus which is in keeping with minimal impingement. (Proceeding N2005/783, T101.)
Physiotherapy
31. Mr Taufaao had the following physiotherapy. David Goodwin, a physiotherapist, records that on examination on 18 May 1998 that there was, "tenderness on his right scalenes and trapezius muscles". There was also tightness in his upper cervical spine and upper thoracic spine. Mr Taufaao was discharged from physiotherapy to his neck and left knee on 18 May 1998. No physiotherapy was recorded for the right shoulder. (Proceeding N2005/783, T8.)
32. At that time, Mr Taufaao was boxing six times a week for fitness as recorded in Exhibit A2. On a diagram the physiotherapist had marked the right side of C2 and C3 and T1, 2, 3 and 4 and the lateral posterior of the neck and into the right shoulder (Exhibit A2).
33. On 5 July 1999 Paul Hazel, physiotherapist, recorded that Mr Taufaao presented complaining of pain in his right cervical spine and he had tenderness there. He has recorded that his symptoms improved significantly after six weeks and that he was happy to manage his problem with home stretching. No physiotherapy was performed specifically on the right shoulder. (Proceeding N2005/783, T15.)
Dr Savio
34. On 28 April 1998 Dr Savio diagnosed left knee contusion and a left leg and knee laceration. There is no mention of any injury to his shoulder or neck. (Proceeding N2005/783, T7)
35. On 7 September 1999 Dr Savio prepared a report. He described the accident and Mr Taufaao's report of pain to the right neck and left leg. (Proceeding N2005/783, T29.)
36. From April 1999 to May 2003 Dr Savio made recommendations for Mr Taufaao to have physiotherapy due to the recurrence of neck pain. This recommendation was on a needs basis and in summary, remedial massage was also recommended. (Proceeding N2005/783, T7.)
Professor Ghabrial
37. Professor Ghabrial first examined Mr Taufaao on 27 October 1999. Mr Taufaao had full flexion and extension with some discomfort on extension of the neck. This was when the MRI scan was performed which indicated a loss of signal at the C5/6 level and disc disruption at that level.
38. Professor Ghabrial saw Mr Taufaao again on 3 December 1999. Mr Taufaao was complaining of pains in his neck. The doctor recorded radiation of neck pain into the right shoulder. The doctor did not think surgery was necessary but recommended that Mr Taufaao adjust his lifestyle and avoid contact sports to suit his present disabilities. He assigned a permanent impairment of the neck at 30% and the upper right limb at 10% but did not use the tables in the Comcare Guide.
39. On 1 September 2000 Professor Ghabrial noted that an MRI indicated no evidence of any "subluxation or instability of the right sternoclavicular joint" but the CT scan performed in May 2000 does suggest post traumatic osteoarthritis of the right sternoclavicular joint.
40. On 16 May 2003 Professor Ghabrial recorded that Mr Taufaao has, "C5/6 abnormalities which has been investigated by MRI scanning confirming C5/6 internal disruption". That was based on the MRI scan performed in 1999. Professor Ghabrial instructed Mr Taufaao to avoid repetitive neck movements, lifting over 12 kilograms and that he should not lift his upper limbs above shoulder level. Surgery was not recommended.
41. On 7 September 2004 Professor Ghabrial's opinion was that the clinical assessment in the investigation suggests:
1. C5/6 internal disc disruption.
2. Right Sternoclavicular joint injury.
3. An injury to the right shoulder with secondary impingement.
42. The opinion was based on the MRI from 1999, the ultrasound of April 2004, and clinical examinations.
43. Professor Ghabrial provides an assessment of 10% whole person impairment under Table 9.6, that is the cervical spine, as Mr Taufaao, in his opinion, has a loss of half the normal range of movement. Under Table 9.4, upper limb, he assessed Mr Taufaao as having a 10% whole person impairment. On 6 September 2005 Professor Ghabrial assessed Mr Taufaao at 10% under Table 9.1, that is upper limb, based on his previous reports.
Dr Bracken
44. On 7 September 2004 Dr Bracken, orthopaedic surgeon, assessed Mr Taufaao and prepared a report, Exhibit A1. Mr Taufaao complained to Dr Bracken about a restricted range of movements in his neck and that his neck aches at night which makes it difficult to sleep. In relation to the right shoulder, he complained that he had difficulty using his right arm above shoulder level and it hurt to sleep on the right shoulder. Dr Bracken performed a clinical examination.
45. Dr Bracken's opinion is that from the incident in 1998 Mr Taufaao suffered permanent restriction of movement in his neck, that it is less than half normal range. He assigned a 5% whole person impairment under Table 9.6. In relation to his right shoulder or right upper extremity, he found signs of chronic impingement syndrome with a loss of less than half range of movement which as a consequence provides an assessment of a 10% whole person impairment under Table 9.1.
Dr Gliksman
46. Dr Gliksman prepared two reports, dated 16 February 2001 and 28 February 2001 (N2005/83 T49, T50). He considered there was degenerative change at C5/6, no evidence of neural impingement or disc herniation. He proscribed motorcycle delivery duties because of that condition.
Dr McGill
47. Dr McGill first saw Mr Taufaao on 27 January 2000 when he was not working for APC. He recorded that during the accident Mr Taufaao's head and right shoulder struck the other vehicle. He also recorded that Mr Taufaao continued to play cricket, "but he no longer attempts to bowl". At that time, Dr McGill diagnosed damage to the C5/6 disc which is very likely to have been caused by the accident. He reported neck symptoms and said:
I think his neck symptoms are probably the direct result of the accident.
48. Dr McGill saw Mr Taufaao again in May 2003. Mr Taufaao reported an ache or pain in the right side of his neck and that the pain is worse in the evening and after he has finished work. Dr McGill recorded that he does not have "upper limb symptoms".
49. He completed this report on 31 May 2003 after Mr Taufaao underwent cervical spine X-rays. He said that these X-rays demonstrated a tiny bone fragment at the anterior end of the upper vertebral end plate of C3, which is consistent with the previous trauma incident from 1998. Otherwise the X-ray was normal with no plain X-ray abnormality at the C5/6 level which was indicated by the MRI in November 1999. Dr McGill's opinion was that "he has a full range of neck movement, normal upper limb function but that he experiences mild intermittent neck discomfort/ pain".
50. On 27 June 2003 Dr McGill compared X-rays from 28 April 1999 and 23 May 2003. On re-examination he found that the tiny bone fragment found in May 2003 was present on the April 1999 X-ray, although the radiologist in 1999 had not noted it and he had not when he first looked at it, although it was more noticeable in the May 2003 X-ray. This supports the conclusion that this fragment occurred as a result of the 1998 incident.
51. Dr McGill prepared a further report on 13 September 2005. At that time Mr Taufaao weighed 129 kilograms and had a BMI of 41.He was classified as obese but because of his large muscle mass his degree of adiposity was less than for most people with markedly elevated BMI.
52. Mr Taufaao said that since May 2003 when he last saw Dr McGill he had developed a more troublesome sleep pattern. He complained of ache and pain on the right side of his neck and in the right trapezius and right shoulder region.
53. Dr McGill's opinion is that in the 1998 incident Mr Taufaao suffered "avulsion of a tiny bone fragment at the anterior end of the upper vertebral end plate of C3". From this he believes that the 1998 incident did produce a permanent aggravation of the cervical spine and he continues to experience some neck discomfort from the accident. His opinion is that it is unlikely that he suffered any injury of the C5/6 disc as a result of the 1998 incident and if any injury did occur, it was minimal.
54. Dr McGill acknowledges that Mr Taufaao struck the vehicle with his right shoulder in the accident but said that it did not cause any significant shoulder injury. He found a full range of movement, full power and essentially normal shoulder imaging, which makes it clear he does not have any significant shoulder disorder. In his oral evidence he stood by his opinion about the right shoulder and explained why, in his opinion, the various investigations supported him. He conceded that impingement may not be seen on an investigation, depending on the angle it was taken, but stated that he had tested for impingement and not found the signs.
55. Dr McGill assigns a 5% whole person impairment under Table 9.6 which he describes as being an at most figure due to the "minor restrictions of neck movement". With regard to the right shoulder under Table 9.1 he said as there was no loss of function and he has no X-ray change in the shoulder, that is a 0% whole person impairment rating under Table 9.1. For completeness, he also assigns a rating under Table 9.4 of the upper limb but assigns a 0% whole person impairment. That is on the basis that Mr Taufaao has no difficulty with digital dexterity and has excellent grip strength and a full range of movement.
Dr Maxwell
56. Dr Maxwell is an orthopaedic and spinal surgeon and he prepared a report dated 27 January 2005. He described Mr Taufaao's present symptoms as including discomfort in the right side of his neck and right shoulder. There was no pain in the arm and the pain was in the top of the shoulder. He performed an examination of Mr Taufaao.
57. His diagnosis and opinion is that he has a full range of movement in his cervical spine and has 0% whole person impairment under Table 9.6. He prepared an additional report on 31 May 2005. In relation to Table 9.4 he found that "he has sustained no direct injury to his shoulder” and “he has a full range of movement of his right shoulder”. Accordingly, he finds that there was a 0% whole person impairment under Table 9.4. He also noted that Mr Taufaao had no problems digital dexterity. On examination he found no neurological impairment to his right upper arm and no wasting of the right upper limb.
Consideration
58. Having considered all the evidence, I accept Mr Taufaao's evidence that his right shoulder has caused him concern since the accident. I find that he is an honest witness. I have taken into account Mr Elliott's submission on behalf of APC that there were no recorded complaints in relation to the right shoulder until Professor Ghabrial noted referred pain on examination on 3 December 1999 (T33), that the investigations do not show impingement until 2004 and that it did not appear in early investigation. However, in my opinion there is a reason for that. Nobody was looking specifically at the right shoulder in isolation but, were concentrating on Mr Taufaao's neck injury.
59. Professor Ghabrial considered the shoulder pain to be referred pain when he first noted it in December 1999. It was not properly investigated until 2004. I note that although Dr McGill recorded in his first report in 2000 that Mr Taufaao no longer bowled in cricket, he did not appreciate the significance of that remark at that time and has not acknowledged its significance since. I infer that he did not relate that complaint to a problem in the neck with which he was concerned.
60. The complaint about Mr Taufaao's right shoulder in the 2000 rehabilitation report is consistent with ongoing shoulder symptoms.
61. I prefer Dr Bracken's assessment of Mr Taufaao. I find that he has a 5% impairment of cervical spine under Table 9.6 and 10% whole person impairment of the right upper extremity, as he has a loss of less than half normal range of movement of the right shoulder. He does not have a minimal loss of function as described in relation to 5% permanent impairment in that table.
62. Although not necessary to this decision, I accept Mr Elliott's submission that X-ray changes in Table 9.6 do not include ultrasound findings.
63. In my opinion, the medical investigations and opinions have been directed to Mr Taufaao's neck and have not considered his shoulder properly until his claim was lodged. With respect to Dr McGill, his focus until 2005 was on Mr Taufaao's neck and not his shoulder. Although in retrospect he interprets his earlier reports to support his opinion that there is no significant shoulder injury, I am not persuaded by Dr McGill's evidence. I also note that he has accepted Mr Taufaao's neck injury was caused by the accident but the basis for that conclusion has altered from one of desiccation of the C5/6 discs, which he now disregards, to the bony fragment at C3.
64. I also do not find Dr Maxwell's evidence persuasive. In particular, I do not accept his opinion that Mr Taufaao suffered no direct shoulder injury. I note that APC did not act on Dr Gliksman's opinion in 2001, from which I infer it did not give weight to that opinion. Nor do I. It conflicts with the then opinion of Dr McGill.
Decision
65. The decision is as I have already stated above.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine KellySigned: Miss Sacha Keady
AssociateDate/s of Hearing 2-3 May 2006
Date of Decision 4 May 2006
Date of Written Reasons 12 May 2006
Counsel for the Applicant Mr G. Giagios
Solicitor for the Applicant Whitelaw McDonald Solicitors
Counsel for the Respondent Mr G. Elliott
Solicitor for the Respondent Graham Jones Lawyers
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