Tran and Australian Postal Corporation (Compensation)

[2024] AATA 3571

Tran and Australian Postal Corporation (Compensation) [2024] AATA 3571 (9 October 2024)

Division:GENERAL DIVISION

File Number:          2022/6906

Re:Thuc Nghi Tran

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak KC, Member

Date:9 October 2024

Place:Melbourne

The Tribunal affirms the reviewable decision.

.................................[sgd]........................................

Mr A. Maryniak KC, Member

Catchwords

COMPENSATION – liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 – whether Applicant suffered an injury or ailment arising out of or in the course of employment – tear of the Achilles tendon – whether tear degenerative or acute – consideration of the mechanism of injury –– competing evidence – reviewable decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Mr A. Maryniak KC, Member

9 October 2024

1. The Applicant seeks review of a decision of the Respondent dated 30 June 2022, denying liability for her claim of injury as a consequence of being stuck by a trolley on 5 January 2022 (‘the Accident’). As agreed between the parties, the questions for determination arise from a determination of 8 April 2022 denying liability under section 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’).

2. The Tribunal has considered the documentary evidence before it comprising the Joint Tribunal Book lodged by the parties (Exhibit A1) and the T-Documents (Exhibit R1). The Tribunal has also considered the testimony of the Applicant, Mr Ash Moaveni, Dr Ciaran Laughlin, Mr Wan Zhang and Dr Terence Saxby, all of whom were cross-examined, together with the written and oral submissions of the parties.

3. The key issue to be determined is whether the Tribunal is satisfied that, by reason of the Accident, the Applicant suffered an injury (or ailment) in the form of a “partial thickness tear of distal Achilles tendon in the left ankle” and/or a “partial thickness tear of the left Achilles tendon with aggravation of insertional Achilles tendinopathy” or rather, suffers from a degenerative tear in conjunction with Achilles tendinopathy of the insertion type.

4. The 68-year-old Applicant has been an employee of the Respondent since 1982 and at the time of the Accident was a Postal Services Officer. She obtained tertiary education in business studies in Vietnam before immigrating to Australia in 1978 with her family. She has been on restricted duties since a prior back injury sustained at work in about February 2010. The Applicant also indicated that sometime between receiving her first and second Covid-19 vaccinations (12 October 2021 and 10 November 2021 respectively) she had been hit by a mail trolley and sustained some mild leg pain but did not report the incident as the pain was not severe.

5. On 10 November 2021 the Applicant saw GP Dr Myra Mpungu for pain in her leg which she thought may be associated with her prior Covid-19 vaccination or the earlier trolley accident at work.[1] Relevantly, a ‘swollen and painful ankle’ with tenderness at the Achilles insertion was noted and imaging of the left ankle was sought.[2] The X-ray and ultrasound of the left ankle taken on 10 November 2021 revealed:[3]

   [1] The Applicant’s Statement dated 1 March 2024 [13] (Exhibit A1, p 42).

   [2] Exhibit A1, pp 131-2.

   [3] Ibid p 133.

   LEFT ANKLE X-RAY

   Report:

   No fracture or talar dome defect. No ankle effusion.

   Large calcaneal spurs. Soft tissue swelling

   LEFT LOWER LIMB VENOUS DOPPLER

   …
     ULSTRASOUND OF LEFT HEEL

   There is mild thickening of the Achilles tendon insertion and a small amount of fluid is shown especially at the calcaneum and some fluid is demonstrated in the retrocalcaneal bursa in keeping with retrocalcaneal bursitis. The plantar fascia is thickened measuring 5 mm. The some soft tissue oedema and swelling also shown.

6. On 14 November 2021, after the 10 November 2021 imaging had been completed, Dr Mpungu saw the Applicant again to discuss the results and noted a ‘pro sprain’ and ‘ankle sprain’ as the ‘Reason for contact’,[4] whereas no history of injury was noted during the 10 November 2021 consultation with the Applicant.

7. On 5 January 2022 the Accident occurred. Whilst clearly on the material before the Tribunal it did occur, unfortunately the detail of it and sequence of events remains unclear due to inconsistencies in the evidence. Putting aside the question of the number of trolleys involved, a more critical and contested aspect of the Accident is whether or not the Applicant’s feet were resting on the lower shelf of a Kingfisher trolley and were subsequently knocked from the shelf to the floor resulting in a dorsiflexion of her left ankle (collectively the ‘Dorsiflexion Event’).

8. No documented account of the Accident prior to 8 April 2022 makes any reference to the Dorsiflexion Event. It is only first raised by the Applicant, in part, in her signed statement prepared with her solicitors around 1 March 2024.[5] Even the, albeit brief, description of the Accident written by the Applicant herself on 12 January 2022 made no mention of any component of the Dorsiflexion Event.[6] As it happens, this key aspect was first mentioned in the Respondent’s Initial Determination of 8 April 2022 which explained that “the primary mechanism for achilles tendon rupture is trauma from tensile forces such as … sudden forceful dorsiflexion of the foot with slipping, missing a stair, jumping or landing on the foot after falling. Based on your description of how the injury occurred the mechanism of injury does not match the injury you have sustained”.[7]

9. An analysis of the documentary evidence reveals that the Applicant did not report any injury or pain in her ankles during the telehealth appointment on 6 January 2022, nor during the appointment with Dr Zheng on 12 January 2022 where, importantly, Dr Zheng noted full “ROM [rotation of movement] both knees, both ankles” some 7 days after the Accident.[8] This is consistent with the fact that the Applicant was able to continue working on the day of the Accident and for the following week up to 12 January 2022. Dr Zheng had a long consultation with the Applicant on 19 January 2022, again noting no specific pain in the Applicant’s ankles, save for some swelling in the left ankle, and that the Applicant’s walking was “not distressed”.[9] Dr Zheng sought an ultrasound of the Applicant’s left knee and left ankle. A second opinion obtained that day was consistent.[10]

   [4] Exhibit A1, p 119.

   [5] Ibid pp 43-5 [16]-[36].

   [6] Ibid p 187.

   [7] Ibid p 232.

   [8] Ibid p 184.

   [9] Exhibit A1 p 137.

   [10] The Applicant’s Statement of Facts, Issues and Contentions dated 1 March 2024 [22].

10.  Further inconsistencies in the accounts of the Accident within the documentary evidence relate to the number of trolleys associated with the Accident and the sequence of events comprising the Accident. Such inconsistencies were in no way clarified by the Applicant’s testimony.  Despite being reminded of the importance of such, the Applicant’s testimony was less than satisfactory, and its weight must be assessed in the context of the matters discussed in paragraphs 11 to 13 below.

11.  The Applicant was not a particularly satisfactory witness. Obviously the Tribunal must allow for the fact that lay people, particularly those whose mother tongue is other than English, face challenges in giving evidence in an unfamiliar setting. The Tribunal may ordinarily have excused the Applicant’s inability to remember, for example her leg related problems and injuries prior to 2021, as well as aspects of the Accident. However, the Applicant, being tertiary educated, conceded that she withheld critical information regarding her medical history to treating doctors, at least in the early stages after the Accident, to increase the chances of success in her claim for compensation. Such manipulation is also evident even as at 17 May 2022 where GP Dr Laughlin reports, incorrectly, that the Applicant has never had pain in her 'left leg/ankle/achilles/knee’ before the accident.[11] As against the bulk of the evidence before the Tribunal, that is simply not true.[12]

[11] Exhibit A1, p 143.

[12] See also the Applicant’s Statement dated 1 March 2024 [15] (Exhibit A1, p 43).

12.  Further, the Tribunal on a number of occasions reminded the Applicant of the importance of listening to the questions being asked of her and then providing informed true answers. Despite this, her testimony evolved on several points regarding the sequence of events comprising the Accident and the number of trolleys involved in it. This combined with the timing of the first mention of the Dorsiflexion Event by the Applicant and the absence of any prior mention of her feet resting on a shelf and being knocked or pushed to the ground, results in the Tribunal giving greater weight to contemporaneous documentary accounts of the Accident rather than later accounts provided by the Applicant, particularly after 8 April 2022.

13.  The Tribunal considers that the Applicant has a propensity (on her own testimony) to ‘fine tune’ at best or craft her evidence since the Accident, in ways that will favour a successful outcome to her claim. In fact, she testified that it was a work colleague (who she would not name) that advised her to purposefully not mention the earlier trolley accident in about November 2021 to bolster her claim. Hence both her signed statement, prepared over two years after the Accident, and her testimony given during the hearing are of limited weight.

14.  The Applicant first saw Dr Laughlin on 27 January 2022, on his testimony, because she was dissatisfied with Dr Zheng (which the Tribunal accepts) as opposed to the Applicant’s claim that it was because Dr Zheng had gone on holidays. The ultrasound of 25 January 2022 concluded “Partial-thickness undersurface tear of the distal Achilles tendon. The Achilles tendon appears thickened and hyperaemic suggestive of chronic tendinopathy”.[13] Dr Laughlin noted, for the first time in the documentary material since the Accident, that the Applicant was “now walking with abnormal gait” and, based on the history provided by the Applicant noted “Hit with a trolley at work on left lower limb. Has caused an achilles tendon partial-thickness tear … some impact on surrounding joint tissues”.[14]

[13] Exhibit A1, p 151.

[14] Ibid, p 138.

15.  On 10 February 2022 Dr Laughlin noted the Applicant’s ‘Reason for visit’ as ‘neuropathic pain’, which the Applicant’s physiotherapist reported as “most likely cause being sciatica”.[15] Again, on 17 February 2022 Dr Laughlin noted no ankle issues. On 10 March 2022 Dr Laughlin again noted neuropathic pain and “Pains around L calf area, radiating to ankle/foot”. A reluctance by the Applicant to continue physiotherapy was also noted. It was then apparent that, as at 28 March 2022, Dr Laughlin was ‘primarily’ treating the Applicant for her Achilles tear.[16]

[15] Exhibit R1 T22, p 137.

[16] Ibid p 181.

16.  On 29 March 2022, Dr Laughlin noted “ongoing pain around achilles tear area and radiating into calf”. He further noted, for the first time, based upon the history given to him by the Applicant, “Pain reviewed - clearly started after injury (was wearing boot on previous exam at work) [yet the Applicant had not been at work since 12 January 2022] but pain started on the day of injury in achilles area and since, didn’t have before then” and “IMP – it was an acute tear in the achilles tendon after injury at work with the trolley, that occurred in a longstanding poor tendon”.[17] These observations, nearly three months after the Accident are contrary to the medical observations and records during the period immediately after the Accident up to 12 January 2022 which make no reference to ankle pain, as discussed in paragraph 9 above.

[17] Exhibit A1, p 141.

17.  By 28 April 2022 the Applicant’s ankle condition had evolved into an “Achilles tendon rupture” according to Dr Laughlin. Then on 17 May 2022 the Applicant brought in a long letter which provided detailed information which formed part of the basis of his report dated that day, together with the numerous histories the Applicant had provided during the previous appointments. On that basis Dr Laughlin expressed his belief that the Applicant was “suffering from a left achilles tendon rupture which came on acutely from her history ... [and] [h]er history had no previous injury or pain in the left lower limb before the 5th January when the incident occurred”.[18] Yet, the Applicant did have ankle pain prior to the Accident, as discussed in paragraph 5 above.

[18] Ibid pp 95-6.

18.  Given the Applicant’s admitted experience in manipulating information given to medical practitioners to attempt to influence their conclusions, noting the tensions between Dr Laughlin’s observations and earlier contemporaneous medical records as discussed above and his lack of expertise in ankle conditions, the Tribunal gives his evidence little weight.

19.  The Tribunal was provided with expert medical evidence from both parties. On behalf of the Applicant, Mr Moaveni and Mr Zhang, both from Melbourne Medicolegal, and on behalf of the Respondent, Dr Saxby of Medhealth Pty Ltd.

20.  Mr Moaveni saw the Applicant and provided a report on 4 May 2023. On that occasion the Applicant “noted that she was having pain in her left leg in 2021”.[19] The version of the Accident noted by Mr Moaveni was that the Applicant “was seated at her work station when, and (sic) a large trolley carrying heavy parcels collided with the two trolleys that were located near to and (sic) her workstation. The trolleys subsequently collided with her left leg, and several parcels fell off the trolley into [the Applicant’s] left knee and leg… she immediately felt pain radiating down her left leg following the incident.”[20] Mr Moaveni apparently was not informed of any specific ankle related aspects of the Accident including that the Applicant’s feet may have been dislodged from the lower shelf of a Kingfisher trolley and the force off/down resulting in a dorsiflexion of (at least) her left ankle. Hence, he was not instructed that the Dorsiflexion Event had occurred.

[19] Ibid p 55.

[20] Exhibit A1, p 56.

21.  The feet slipping was however reported to Mr Zhang when he assessed the Applicant on 21 February 2024. He was provided with an unsigned copy of the Applicant’s Statement.[21] The ‘Mechanism of Injury’ as noted by Mr Zhang, the second expert to report on the Applicant’s behalf, was considerably different from that of Mr Moaveni. Mr Zhang noted that the Applicant “reported that due to her short stature, she was seated with her feet resting on the bottom rung of a “Kingfisher” trolley. Ms Tran reported that she was struck on her left leg by a large trolley carrying heavy parcels. She stated that several parcels fell off the trolley onto her left knee and leg, and her feet slipped off the bottom rung of the trolley and hit the floor…”.[22]

[21] See The Applicant’s Statement dated 1 March 2024 [28] (Exhibit A1 p 44).

[22] Exhibit A1, p 77.

22.  Yet a further version of the Accident was relayed by the Applicant to Dr Saxby, the expert engaged by the Respondent, on 27 October 2023 with the Applicant stating “that she was struck unexpectedly by a trolley loaded with parcels. The trolley struck her on her left thigh and knee and the parcels fell from the trolley onto [her] thigh. She state[d] that this caused her foot to be pushed into the ground … she continued to work but was in discomfort and then stopped work on 12 January 2022”.[23]

[23] Ibid p 106.

23.  Mr Moaveni, who accepted that he is more of a shoulder expert than an ankle expert, was of the opinion that based upon the version of the Accident he received, the Applicant’s “partial thickness tear of distal achilles tendon left ankle was caused and aggravated by the described incident”.[24] He testified that had the Dorsiflexion Event occurred then his opinion would not change in that the injury was the result regardless.

[24] Exhibit A1, p 63.

24.  Such evidence cannot be reconciled with that of Mr Zhang who testified that without the Dorsiflexion Event (which he assumed had occurred as a consequence of the Applicant’s feet slipping)[25] the “mechanical rationale” for the left ankle injury of “a partial thickness tear of the left Achilles tendon with aggravation of insertional achilles tendinopathy” did not exist. In other words, in its absence there was no mechanism by which the injury said to be the result of the Accident could have occurred. Mr Zhang’s evidence was clear and unequivocal on this point. Whilst Mr Zhang’s expertise was more ankle focused than Mr Moeveni’s, it was not of the depth and length of the ankle-expertise of Dr Saxby.[26]

[25] The Applicant’s Statement dated 1 March 2024 [28] (Exhibit A1, p 44).

[26] Curriculum Vitae of Dr Terence Saxby (Exhibit A1, p 114).

25.  In Dr Saxby’s expert opinion, the Applicant’s injury sustained from the Accident was “best described as soft tissue injury left thigh and left lower leg but there is also a condition of Achilles tendinopathy of the insertional type … this is a pre-existing condition. The basis of this opinion is that Ms Tran had in November [2021] seen her general practitioner complaining of pain and swelling in her leg and tenderness over the Achilles tendon and at that stage, investigations in the form of an ultrasound demonstrated thickening of the Achilles tendon and therefore … Ms Tran was having pre-existing Achilles tendon problems prior to the work injury”.[27] Dr Saxby also noted “post injury, an ultrasound carried out on 25 January 2022 reports thickening and hyperaemia with a partial thickness undersurface tear near the insertion. This picture is really of a tendinopathy not of an acute tear. This is a degenerative tear and is not specifically related to trauma. I note that it is partial thickness, … it has not gone through the tendon fully and that this picture is classical of degenerative Achilles tendinopathy not related to trauma”.[28]

[27] Exhibit A1, p 108.

[28] Ibid.

26.  Dr Saxby further reported that the “injury itself was relatively minor. This is supported by the fact that Ms Tran was able to keep working that day and continued to work for another week. The pain was more global and not specifically related to her Achilles tendon at the time of the injury. It appeared to be her thigh, knee and left leg rather than the Achilles tendon”.[29] The Tribunal notes Dr Saxby’s opinion is consistent with, and in fact based upon the medical history taken at the time, prior to Dr Laughlin’s involvement, parts of which have been discussed in paragraph 9 above.

[29] Ibid, p 109.

27.  Dr Saxby did introduce in his testimony some opinions as to the nature of vertical and horizontal tears to the Achilles tendon which were not present in his Report. However, he properly conceded that with the information he had on hand he was unable to conclude that aspect of the tear to the Applicant’s Achilles tendon. In the circumstances, this does not detract from the weight the Tribunal has given to his expert evidence.

28.  Further, whilst Dr Saxby did concede that it was possible that a degenerative partial tear could be caused from a low-level force injury, the Tribunal finds this no more than a possibility, rather than a probability when considering all the evidence, as discussed above, and the fact that such a tear can occur even from walking according to Dr Saxby.

29. On balance, the Tribunal prefers the expert evidence of Dr Saxby as he is the most ankle-qualified expert and his opinions are soundly based upon an analysis of the documentary evidence from the medical professionals treating the Applicant, both before and after the Accident. Further, Dr Saxby’s opinions are consistent with the above observations and findings the Tribunal has made in respect of such evidence. The Tribunal is not satisfied that sufficient causal or temporal connection is established on the evidence between the Accident and the injury or ailment claimed to have been suffered by the Applicant. Hence, there is no compensable injury and no liability for any injury pursuant to the SRC Act.

30.  For completeness, the Tribunal is not satisfied that the Dorsiflexion Event occurred as part of the Accident. The Tribunal gives greater weight to the contemporaneous documentary accounts of the Accident rather than the Applicant’s recent statement of March this year and to her testimony, and notes that no mention of the Dorsiflexion Event or any variation of it was made until after it appeared in the Respondent’s Initial Determination of 8 April 2022, hence foreshadowing its relevance to the Applicant’s claim.

31.  Further, in light of the conclusions reached it is unnecessary for the Tribunal to make any finding as to how many trolleys were actually involved in the Accident. 

32.  By reason of the matters discussed above and findings made, the Tribunal affirms the reviewable decision.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member

................................[sgd]........................................

Associate

Dated: 9 October 2024

Dates of hearing:	28, 29 and 30 August 2024
Counsel for the Applicant:	Mr Shane Dawson
Solicitors for the Applicant:	Angela Sdrinis
Counsel for the Respondent:	Mr Roy Seit
Solicitors for the Respondent	Moray & Agnew