Vang Hung Chau and Australian Postal Corporation

[2015] AATA 24

[2015] AATA 24  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0186
Re	Vang Hung Chau
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	19 January 2015
Place	Sydney

1. The Tribunal sets aside the decision under review and in substitution finds that the effects of the injury sustained by the applicant did not cease as of 28 November 2013 and the respondent remains liable to compensate him under the Safety Rehabilitation and Compensation Act 1988.

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   Senior Member J F Toohey

   CATCHWORDS

   COMPENSATION – back injury – liability accepted – whether original injury arose out of or in the course of employment - whether effects of injury had ceased – Tribunal not satisfied effects of injury had ceased – decision under review set aside

   LEGISLATION

   Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16.

   REASONS FOR DECISION

   J Toohey, Senior Member

   19 January 2015

   BACKGROUND

2. Mr Vang Hung Chau has been employed by the respondent since 1990.  On 25 June 2012, he claimed compensation for an injury to his lower back described as “Left L5 nerve root impingement/posterior disc herniation” which he says he sustained at work on the evening of 6 June 2012 and which manifested itself in severe pain the following morning. 

3. In July 2013, the respondent denied liability to compensate Mr Chau but, on 19 September 2012, revoked that determination and accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) to compensate him for “aggravation of degenerative lumbar disc disease with L4/5 disc protrusion causing left L5 sensory radiculopathy”.

4. On 8 January 2014, the respondent affirmed a determination that the effects of Mr Chau’s injury had ceased as of 28 November 2013 and it had no present liability to compensate him under ss 16 or 19 of the SRC Act for medical expenses or incapacity.  Mr Chau seeks review of that decision.

   THE ISSUES

5. X-rays of Mr Chau’s lumbar spine on 8 June 2012 showed moderate degenerative changes.  It is not in dispute that those changes pre-dated anything that occurred on or about 6 June 2012 but there is no evidence that Mr Chau had symptoms of back pain before June 2012.    

6. When these proceedings commenced, the respondent’s contention was that the effects of Mr Chau’s injury ceased as of 28 November 2013.  In an amended Statement of Facts, Issues and Contentions filed on 31 October 2014, the respondent referred to clinical notes obtained under summons which indicated that Mr Chau’s symptoms were precipitated by sneezing while driving.  Based on this information, the respondent now contends that Mr Chau “never suffered from any work-related aggravation of his [degenerative condition]”.

7. I have to decide:

   (a)whether Mr Chau’s disc protrusion at L4/5 was caused by him sneezing while driving and not by any work-related factor; and

   (b)if it was related to his employment, whether its effects ceased by 28 November 2013.

   WAS MR CHAU’S DISC PROTRUSION CAUSED BY HIM SNEEZING WHILE DRIVING?

8. On the evening of 6 June 2012, immediately following his usual shift, Mr Chau worked two hours overtime, mainly on the bar code sorter which involved moving trays of letters and other items of mail weighing up to 10 kilograms or more onto trolleys with a twisting action from right to left.  He estimates he moved more than 100 trays while working overtime that evening.

9. Mr Chau says that, not long before he finished work, he felt a sharp pain in his lower back just above his left buttock.  It lasted for five to ten minutes.  He did not report it because he “thought it would go away”.  He finished his shift and was able to drive home, have a shower and go to bed without further pain. 

10. Next morning, Mr Chau says, he woke around 7.00am or 8.00am with pain and stiffness in his left lower back and “every movement” caused him pain.  His wife had left for work already.  His daughter, Shirley, brought him a heat pack but it did not relieve the pain.  He rang his general practitioner, Dr Natalie Nguyen, but was told she could not see him that day.  He then rang his wife and asked if she could arrange an appointment with her general practitioner, Dr Long Huynh, whom Mr Chau had seen several times in the past.  He was able to get an appointment with Dr Huynh later that morning. 

    Dr Huynh’s notes

11. Dr Huynh’s clinical notes for 7 June 2012 show:

    P/S acute pain of L lower back this AM after sneezing while driving.  P/E nil distress, walk with stiff back … nil h/o back pain, tender at L4/5/S1 and L side of lower back, back flexion restricted due to pain, knee jerk normal … tactile sensation both leg normal ? muscular spasm.

12. Dr Huynh certified Mr Chau unfit for work on 7 and 8 June 2012.  He recommended rest, “back care and back exercise” and analgesics, and referred him for x-rays.  There is no reference in Dr Huynh’s notes to Mr Chau’s work, and he gave Mr Chau a standard (that is, not Workcover) medical certificate.

13. Mr Chau denies telling Dr Huynh that his back pain came on when he “sneezed while driving” or while sneezing at all.  He gave evidence that, when he went into Dr Huynh’s room, the doctor laughed and made fun of the way he was walking.  When Mr Chau said he was really in pain, Dr Huynh said “a lot of people get that pain when they have a big sneezing fit”. 

14. By letter dated 18 July 2014, Mr Chau’s solicitors asked Dr Huynh to “clarify the contents of the consultation” on 7 June 2012.  Dr Huynh replied:

    This letter to clarify the clinical note on 7.6.2012 that

    1)the sneezing did not the [sic] cause of his back pain but rather aggravate his existance[sic] back problem

    2)I am not certain the cause of his back problem which initially I believe due to muscle spasm.

    I am apology [sic] for the confusion.

15. Mr Chau’s solicitors sought further clarification from Dr Huynh.  The relevant parts of his reply on 30 October 2014 show:

    Mr Chau presented to me on 07/06/2010 for the treatment of back pain, there is no history of injury recorded.

    Physical examination revealed lower back muscular spasm without any neurological signs or symptoms.  The back pain started after severe sneezing while driving (it is not uncommon to trigger severe back spasm after a bout of cough or sneezing which I have encountered quite often during 30 years as GP).

16. In cross-examination, Mr Chau agreed that he had conversed with Dr Huynh in Vietnamese and they had no difficulty understanding each other.  The respondent submits the Tribunal should accept the contemporaneous notes as accurately reflecting what Mr Chau told Dr Huynh and accurately reflecting that his back pain was triggered by sneezing. 

17. Against that, it is submitted for Mr Chau that the only reference in the medical records and reports to “sneezing while driving” is in Dr Huynh’s notes, that Dr Huynh’s letter of clarification does not assist.  It is submitted that the weight of the evidence favours Mr Chau’s account.  The history taken by other doctors is discussed below.

    Evidence of Mr Chau’s daughter

18. Mr Chau’s daughter, Shirley, gave evidence that she was at home on the morning of 7 June 2012.  She says she clearly remembers that day because it was the first time Mr Chau had complained of lower back pain.  She says that, around 9.00am, he told her he was having pain in his lower back, and she gave him a heat pack but it did not help.  She recalls Mr Chau trying to get an appointment with his own doctor and then arranging to see Dr Huynh.  She drove him to the appointment, a journey of 10 to 15 minutes.  She insists Mr Chau did not have a sneezing episode while they were driving and says she would remember if he had because it is her duty as a daughter to look out for his health when he is ill.

    Conversation with Ms Wilkins

19. An undated report of an investigation undertaken between 6 June and 25 June 2012 into Mr Chau’s claim by his supervisor, Margaret Wilkins,  lends some support to the respondent’s contention that Mr Chau’s injury was not work-related.  According to Ms Wilkins’ report, Mr Chau first reported he had a sore back on 7 June 2012 and “stated it was not work related and initially submitted a normal sick leave certificate for the 2 days [off work]”. 

20. For reasons which are not clear, in a briefing letter to Professor Frederick Ehrlich, orthopaedic surgeon, on 16 July 2012, the respondent stated that Mr Chau reported his back pain to Ms Wilkins but “was unsure if it was work related” (emphasis added).  (Professor Ehrlich’s report of his examination of Mr Chau formed the basis of the respondent’s original determination to deny liability, later revoked after a later opinion from Dr Neil McGill).

21. Mr Chau does not deny saying to Ms Wilkins words to the effect that he did not think his back pain was work related.  However, he says, he was not sure which activity actually caused the pain, and it was not until it became severe at work on 22 June 2012 and he could hardly walk that he actually made the connection. 

    Incident form

22. On 25 June 2012, Mr Chau completed an Incident Form.  The information he provided on the form about the time and location when he first felt pain in his lower back appears to conflict in some respects.

23. As to “Incident Time, Location and Type”, he wrote “7/6/12 at 8am” and “I felt lower back pain when I woke up at 8am”.  As to whether the incident happened at his workplace, he ticked “Yes”.  As to “the exact work process undertaken at the time of the incident” he wrote “Express post sorting parcel/heavy lifting pulling and pushing”.   As to his “duty status” he ticked “On duty” and wrote “After on [or OV] duty next day on the morning”.

24. Notwithstanding some apparent inconsistency, I am satisfied that, by these statements, Mr Chau was making a claim for an injury which occurred while he was on duty on 6 June 2012 and which had become more painful by the following morning.

    Consideration

25. X-rays on 8 June 2012 of Mr Chau’s lumbar spine showed anterior osteophytosis between L2/3 and L4/5, and a CT scan on 22 June 2012 showed a large posterior disc herniation at L4/5.  An MRI on 5 September 2012 confirmed this finding along with compression of the left L5 nerve root. 

26. Dr Huynh’s notes, the investigation report, and apparent inconsistencies on the Incident Form raise doubts about Mr Chau’s claim that he first felt pain at work on the evening of 6 June 2012.  However, Mr Chau impressed me as a truthful witness, as did his daughter.  On balance, I think he is entitled to the benefit of the doubt.

27. As stated above, I am satisfied that the Incident Form is sufficiently clear that Mr Chau claimed that an incident occurred at work on 6 June 2012 and he felt pain the following morning. 

28. It is true that there are variations in the histories taken by different doctors from Mr Chau about the incident.  For instance, Professor Ehrlich took a history that he had a normal day’s work on 6 June 2012, went home, showered and had a non-eventful night’s sleep before waking the next morning with severe pain.  Dr Drew Dixon, orthopaedic consultant, who saw him for assessment on 17 June 2014, took a history of onset of pain on 7 June 2012 while moving a trolley; he also notes in his report that the injury was “as a result of heavy lifting and recurrent bending of his back and lifting from below knee height” .  On 16 August 2012, Dr Tram Anh Bui, medical rehabilitation specialist, took a history consistent with Mr Chau’s evidence to the Tribunal.  Dr Robin Chase, occupational physician, took a similar history in August 2012, and Dr Neil McGill, rheumatologist, who saw him for assessment in September 2012, took the same history.

29. The inconsistencies in the histories taken raise some doubts about Mr Chau’s claims but, overall, they are generally consistent.

30. Contemporaneous records are not to be dismissed lightly but Dr Huynh’s notes, which are the only reference to Mr Chau sustaining an injury after sneezing, themselves raise questions.  Mr Chau says, and his daughter supports his evidence, that he woke with pain sometime around 8:00am, that he lay with a heat pack for about an hour, and then made calls to Dr Nguyen’s surgery, then to his wife, and then to Dr Huynh’s surgery, before seeing Dr Huynh some time before noon.  Mr Chau gave evidence that he did not drive anywhere other than Dr Huynh’s surgery.  I accept that evidence.

31. If Dr Huynh’s notes accurately reflect what Mr Chau told him, Mr Chau must have driven somewhere early that morning, before about 9:00am when his daughter learned that he was in pain, and it must have been during that earlier trip that he sneezed and felt pain in his back.  Otherwise, there was no reason for him to be on his way with his daughter to see Dr Huynh.  There is no evidence of any earlier trip.  While I have some difficulty accepting that Ms Chau was able clearly to recall, two and a half years later, that her father did not sneeze while they were driving, I accept her evidence; she had no reason to be driving Mr Chau to the doctor unless he was already in pain. 

32. There is no evidence that Mr Chau drove anywhere that morning before going to see Dr Huynh.  It is not suggested that he sneezed while driving home from work the previous evening.  It is possible that Dr Huynh simply got it wrong. 

33. On balance, I am satisfied that Mr Chau did not first feel pain in his lower back after sneezing while driving.  I am satisfied that it occurred while he was working overtime on the evening of 6 June 2012.

    DID THE EFFECTS OF THE INJURY CEASE BY 28 NOVEMBER 2013?

34. Mr Chau returned to work after two days off.  He says he experienced occasional pain and stiffness but was able to perform his normal duties.  During his second week back at work the pain started to become worse.  On 20 June 2012 he went back to Dr Huynh who referred him to Dr Bui.  Dr Bui referred him for a CT scan. 

35. A CT scan of Mr Chau’s lumbar spine on the morning of 22 June 2012 showed a large posterior disc protrusion at L4/5 causing severe canal stenosis, probable left L5 nerve root impingement, and “potential” right L5 nerve root impingement.

36. Shortly after arriving at work on 22 June 2012, Mr Chau says, the pain in his back became more severe; he was struggling to walk and had pain down his left leg.  In a brief statement apparently prepared for the purposes of investigating his claim, a fellow worker states he was at a team meeting that morning at which Mr Chau appeared to be struggling to stand up properly and seemed in pain; he was holding his back while walking and needed to stop and sit down a lot. 

37. Mr Chau left work and saw his usual general practitioner, Dr Natalie Nguyen.  He was off work for two months and then made a graduated return to work with restrictions.  He gave evidence that he continues to experience residual pain and lumbar stiffness with radicular symptoms which sometimes extends below his left knee.  He uses an anti-inflammatory and Panadol for pain relief and has had some physiotherapy, acupuncture, chiropractic treatment and therapeutic massage.

38. Mr Chau’s claim is for a frank injury that arose out of, or in the course of, his employment.  He submits that, most probably, the pain he felt while working overtime on 6 June 2012 was the onset of the disc herniation seen shortly after on the CT scan against the background of his previously asymptomatic degenerative disc disease.  He submits that the herniation was most likely worsened over the next two weeks as he continued his duties, until 22 June 2012 when the L5 nerve root was further irritated, leading to severe pain and an extended period of time off work.  

    Medical evidence

    Professor Ehrlich

39. On 20 July 2012, Professor Ehrlich reported that Mr Chau had sustained a disc protrusion which occurred “quite spontaneously”; it was causing pain with some lower limb radiation and, while his symptoms were improving slightly, he was still considerably incapacitated and appeared to be developing “a degree of abnormal pain behaviour with much dependency features”.  He thought Mr Chau was unfit to return to work at present but the natural course of this condition was gradual recovery in the majority of cases, although this could take some months.

40. Professor Ehrlich’s opinion that Mr Chau sustained a spontaneous disc protrusion unrelated to his employment is not supported by any other medical opinion.

    Dr Nguyen

41. On 14 August 2012, Dr Nguyen reported to the respondent that Mr Chau presented to her on 22 June 2012 with severe lower back pain.  She stated she “strongly disagreed” with Professor Ehrlich’s suggestion that the large disc protrusion and new root entrapment occurred spontaneously.  She stated that Mr Chau was “a very keen long term worker with good personal character” and she would arrange for him to see “another Independent Orthopaedic surgeon for a second opinion”.

    Dr Hsu

42. Dr Brian Hsu, spine surgeon, saw Mr Chau in August and September 2012, and twice in November 2013 on referral from Dr Nguyen.  He diagnosed a significant disc herniation, annular tear and canal stenosis with lumbar radiculopathy, consistent with a history given to him by Mr Chau of repetitive bending and lifting.  He recommended physiotherapy and, after the consultations in September 2012, when his symptoms were “significantly improving”, that Mr Chau undertake a gradual return to work. 

43. On 27 September 2012, Dr Hsu reported to Dr Nguyen that Mr Chau’s symptoms were improving and he anticipated that over the following four to six weeks he could transition gradually towards normal duties.  As it appears to be based on an understanding that Mr Chau’s claim was by way of a “nature and conditions” claim, Dr Hsu’s opinion is of limited assistance.

    Dr Chase

44. Dr Chase saw Mr Chau for assessment in August 2012.  He said he was making “excellent ongoing progress” and he thought Mr Chau capable of returning to work with restrictions.

    Dr Dixon

45. Dr Dixon saw Mr Chau for assessment in June 2014.  He reported that Mr Chau was experiencing residual pain in his lower back with lumbar stiffness with radicular complaint with left buttock and thigh sciatica, at times extending below his left knee.  Mr Chau told him he has difficulty with “prolonged sitting and standing and has a sitting and walking tolerance of half an hour and a standing and driving tolerance of one hour after which he develops increased low back pain and left sciatica”.  Dr Dixon thought Mr Chau’s prognosis remained “guarded” as to doing full unrestricted duties.

46. In Dr Dixon’s opinion, Mr Chau requires ongoing anti-inflammatories and analgesic medication, three-monthly reviews by his general practitioner and reviews by his spinal specialist, and he would benefit from physiotherapy and would probably require surgery in the future.

    Dr McGill

47. Dr  McGill saw Mr Chau again for assessment on 13 September 2012.  He recorded that Mr Chau told him he now only “intermittently” experiences pain in the left lower back, and he had “intermittent” numbness of the big and second toes on his left foot.  Dr McGill reported that some of the changes evident on the radiological scans were “clearly long standing” but it was very likely that the L4/5 disc protrusion “increased in association with the episode of pain which commenced on 6 or 7 June 2012 and then deteriorated on about 22 June 2012”. 

48. Giving oral evidence, Dr McGill thought the pain could have worsened after further impingement or depression of the nerve root.  He reported that, since then, Mr Chau had “improved greatly”.  He said that “intermittent” was probably his term, rather than one used by Mr Chau, but it reflected what Mr Chau described to him.  He accepted that Mr Chau could have some back pain on most, or all, days.

49. Dr McGill thought Mr Chau’s back condition was primarily constitutional but, accepting the history he had given as accurate, there was “sufficient likelihood that his work duties contributed to the disc protrusion to determine that his symptoms from 6 or 7 June 2012 until the current time have been work influenced and that the employment contribution has been significant”.

1. Dr McGill saw Mr Chau again on 17 October 2013.  Mr Chau reported that the most troublesome problems he was having at that time were with his neck and shoulder; he experienced minor intermittent discomfort in the left low back, and numbness in both legs after sitting in one position for more than 30 minutes which was quickly relieved on moving; he felt very slight discomfort in the right lower leg and none in the left lower leg.  Dr McGill thought Mr Chau’s “residual mild low back symptoms” were related to constitutional degenerative disease and would fluctuate from time to time.

2. On 24 May 2014, Dr McGill provided a further report in response to a suggestion by Dr Hsu that Mr Chau undergo L4-S1 decompression and rhizolysis.  He stated that, given Mr Chau’s symptoms and the absence of radiculopathy in particular, he did not think surgery of that type appropriate.  He noted that the radiculopathy had resolved by the time he saw Mr Chau on 17 October 2013, although he continued to experience some discomfort in the left low back when repeatedly reaching forward or attempting heavy lifting. 

3. Giving oral evidence, Dr McGill said he was “prepared at the margins” to accept that Mr Chau’s disc lesion may have been related to his work but in his view the back pain that Mr Chau continues to experience is due to his degenerative condition, and no different from the pain that a person with degenerative changes is likely to experience at some point.  It was relevant in his view that Mr Chau had significant pre-existing degenerative changes, that the degree of force and nature of the work activity was very minor and not likely to have played a role in Mr Chau’s current symptomatology, and that he had been performing the same duties for over 20 years without any previous incident of pain.

   DR HARVEY

4. Dr F J Harvey, orthopaedic surgeon, saw Mr Chau for assessment on 29 September 2014.  He agreed that Mr Chau has a lumbar disc herniation at the L4/5 level and has had symptoms indicative of a radiculopathy in the left lower limb.  He said disc herniations of this type are degenerative in nature and not the result of trauma, but the “heavier work” (by which he appears to mean pushing heavy trolleys) could have aggravated his pre-existing pathology and precipitated the onset of symptoms.

5. Dr Harvey thought that while undoubtedly there was a physical basis to Mr Chau’s complaint of back pain, “there is now evidence of some functional overlay”.  He could find no physical explanation why flexing his left knee while lying prone would cause pain in the lower back as Mr Chau said it did.  He referred to studies which show that susceptibility to chronic lower back pain is “more related to psycho-social and psychological factors than to mechanical pathology” and “there are indications of the non-organic component in Mr Chau’s complaints, namely the widespread nature of the tenderness and the stocking-type diminution of sensation over the left lower limb”.

6. Dr Harvey concluded that, as Mr Chau’s pain came on after working longer hours than usual on the previous day, it “would have to be accepted” that this work may have played a part in precipitating the onset of his symptoms.  He thought it likely, “now that he had begun having symptoms he may well continue to have some residual pain indefinitely”.  He said:

   [u]ntil such time as he became completely asymptomatic, I don’t consider it would be possible to say that the effects of the pre-existing degenerative disc disease had superseded the effects of the aggravations produced by his work.  It is wellknown that persons with such disc pathology can remain without symptoms for many years. 

7. In a further report on 22 October 2014, Dr Harvey wrote that he had now been given a copy of Dr Huynh’s notes.  He stated that, when preparing his previous report, he had accepted Mr Chau’s account of some back pain while working overtime, and acute lower back pain on waking the following morning, but this seemed no longer to be the case.  In light of the contemporaneous record, he said, it now appeared that the onset of symptoms was precipitated by a non-work related factor, namely sneezing.  In light of my finding about Dr Huynh’s notes, I will disregard this part of Dr Harvey’s second report.

   Consideration

8. The respondent contends that the evidence does not support the conclusion that Mr Chau suffered an injury within the meaning of s 5A of the SRC Act, or an aggravation of an ailment within the meaning of s 5B, and that inconsistencies in his evidence and in the histories given to doctors undermine his claim. 

9. The respondent contends that a clinical note showing that Mr Chau saw his doctor in 1999 complaining of “hip pain, radiating down [posterior] thigh and calf” is consistent with a significant longstanding degenerative condition in the lumbar spine and supports Dr McGill’s conclusion that Mr Chau’s back pain has “always been present but became symptomatic in June 2012”.  However, that is not Mr Chau’s evidence.  There is no evidence that he was off work at any time due to back pain, or complained of back pain.  The most that can be said it that was an isolated incident some 13 years previously about which nothing more is known.

10. For Mr Chau it is contended that he continues to suffer back pain on the left side of his buttock, and a feeling of pain down his left leg, sometimes associated with numbness down to the toes.  It is conceded that the symptoms in his leg may have changed over time, but he has continued to experience the same back pain, in the same place.  Absent some identifiable discontinuity or change in his symptoms, it is contended, it cannot be said that he would inevitably have had lower back pain by now on account of his degenerative disc disease and the Tribunal should therefore find that the effects of his work-related injury, being at least an aggravation of his disc prolapse, have continued.

11. On balance, I am satisfied that Mr Chau suffered an aggravation of his previously asymptomatic degenerative disease in his lumbar spine to which his employment contributed to a significant degree.  I am not satisfied that the effects of that injury ceased by 28 November 2013. 

12. The respondent’s position involves a finding that Mr Chau would have suffered the same pain, in the same place, by November 2013 regardless of any injury at work.  While that may be possible, the more probable explanation in this case is that the effects of his injury have continued.  That is not to say merely because a condition was previously asymptomatic, and a person has continuing symptoms, that the effects of an injury necessarily have continued. 

13. The decision under review is set aside and I find instead that the effects of Mr Chau’s injury, while mild, did not cease on 28 November 2013 and the respondent remains liable under the SRC Act.

63.       I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 19 January 2015

Date(s) of hearing

18 – 20 December 2014

Representatives for the Applicant

Mr Leo Grey, Counsel

Mr Tony Mannah, C & M Lawyers

Representatives for the Respondent

Mr Paul Jones , Counsel
Mr Tarana Singh, Australian Postal Corp