Ward and Asciano Services Pty Ltd
[2014] AATA 288
•12 May 2014
[2014] AATA 288
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5378
Re
Harold Ward
APPLICANT
And
Asciano Services Pty Ltd
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 12 May 2014 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – whether applicant continues to suffer the effects of his injury – whether pain as a result of the progression of applicant's degenerative back condition – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
REASONS FOR DECISION
Ms N Bell, Senior Member
12 May 2014
Harold Ward had worked as a terminal operator in the maintenance workshop at BHP in Port Kembla since 1995. In June 2008, he sustained an injury to his lower back while loading brake shoes weighing approximately four kilograms each onto a ute in a warehouse. Asciano Services Pty Ltd accepted liability for the injury.
In November 2012, Asciano decided that from 9 October 2012 Mr Ward no longer suffered the effects of his 2008 injury. He was taken off the light duties he had been placed on and directed on sick leave. He has not worked since then. Mr Ward contends that he is fit for the light duties he had been doing and wishes to return to that work.
Mr Ward had also lodged an application for review on 17 January 2014 in respect of a nature and conditions claim. However, this application was withdrawn at the commencement of the hearing.
There is no dispute that Mr Ward has an underlying degenerative back condition.
Mr Ward contends that the June 2008 incident caused some enduring damage to his back from which he continues to suffer pain. Asciano contends that his symptoms arise from the natural progression of his degenerative back condition.
DOES MR WARD’S INJURY CONTINUE TO AFFECT HIM?
The sole issue for me to consider is whether Mr Ward’s injury in June 2008 continues to cause incapacity to work and a need for medical treatment pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
Mr Ward’s evidence was that on 10 June 2008 he was taking limestone brake shoes, each weighing about four kilograms, off a pallet, picking up four shoes at a time, and placing them in a ute. He said to do this he had to bend and then rise and twist to put the shoes into the ute. After turning to step off the pallet, he slipped and experienced a sharp pain in his lower back. He said his back was quite sore and stiff by the end of the day when he gave a Notice of Injury.
Mr Ward said that over the years prior to 2008 he had had “the odd strain and ache” in his back but described them as settling at the end of the day and not requiring treatment. He accepted that the medical records show that he complained of back pain in 1992, 2001 and 2007 but recalled only one of those occasions, in 2007, when he fell backwards and bruised his buttocks. However, Mr Ward said that after the incident in June 2008 his symptoms did not settle and an MRI scan was arranged and he commenced physiotherapy and began to use painkillers.
Mr Ward said that he eventually returned to his full duties but the symptoms in his back never resolved. To discharge full duties he had to rely on painkillers, including Panafen Plus, and at one stage had to be examined by a doctor appointed by Asciano to investigate whether it was safe for him to continue his duties while taking this medication.
Mr Ward said his back symptoms have worsened over time. He said that at times his back was particularly sore and that is when he would consult a doctor. At other times, he said, he simply put up with the symptoms. He has worked since he was 14 years old and I believed him when he said that work has been a very big part of his life, including his family life, and that he enjoyed providing for his family. Mr Ward impressed me as a tough, hardworking and stoic man and I note that no examining medical expert considered he had embellished his reports of pain. I accept his evidence that he would much prefer to work than not.
However, Mr Ward finds that he now suffers marked physical limitations. He says he cannot sit or stand for extended periods because that produces pain and numbness in his right leg and tingling in his toes. He said he has good and bad days; on good days he can get by without pain medication but on bad days he takes 6-7 tablets of Panafen Plus. Mr Ward’s wife, Mrs Louise Ward, corroborated Mr Ward’s evidence of his current condition. I do not take Asciano to be disputing the limitations currently suffered by him.
However, Asciano did make much of the clinical notes of Mr Ward’s physiotherapist, Marc Muir and his GP, Dr Joe Furrugia, which show that for long periods following six months after the June 2008 incident, he did not complain about his back to those who were treating him.
Clinical notes obtained from Marc Muir show a pattern of long periods free of complaint about his back interspersed with shorter periods of treatment following the initial six months of physiotherapy treatment after the 2008 injury. To some extent this may be explained by Mr Ward’s stoicism and tendency to “live with” his pain, but it does show that, following treatment, Mr Ward did not complain to Mr Muir about his back for periods as long as 21 months.
Dr James Bodel, orthopaedic surgeon, was of the opinion that the combination of no significant back symptoms prior to June 2008, an MRI in October 2008 that suggested an annular tear at L4-5 and Mr Ward’s need for treatment for six months following the injury points to the June 2008 incident being a cause of the pathology in Mr Ward’s spine. He described an internal disruption of an already degenerate disc and said that in a degenerate disc not much force is required to disrupt it.
In cross examination, Dr Bodel conceded that it could not be said that on the balance of probabilities the annular tear suggested in the October 2008 MRI occurred as a result of the June 2008 incident. He said it could not be known how long the changes shown in the 2008 MRI had been there. He also conceded that, given Mr Ward’s history since 2009 of long periods without complaint of back pain interspersed with short painful periods and onsets of pain, Mr Ward’s current pain could not be related back to the June 2008 incident, except for the structural abnormality in the disc which, he said, has lasting effects. This, of course, would depend on there having been a structural abnormality arising out of the June 2008 incident. He noted, however, that symptoms fluctuate and it is “possible” that Mr Ward’s current pain is due to the June 2008 incident.
When Dr Bodel was taken through other events after which Mr Ward experienced acute pain, for example, standing to wash dishes in May 2010; standing up from a chair in August 2012; doing extra housework in November 2012; bending to vacuum in December 2012; and bending, twisting and straightening in January 2013, he said those events were no less significant than the June 2008 incident and could be causing Mr Ward’s current pain.
When asked in re-examination which, of all of the incidents that preceded acute pain, was most likely to have caused Mr Ward’s back condition, Dr Bodel said he could not answer that question and did not know.
Dr Neil McGill, consultant rheumatologist, considered that the incident in June 2008 gave rise to a temporary aggravation of symptoms of Mr Ward’s degenerative spine condition and later episodes of pain were simply the natural course of degenerative lumbar disc disease, with normal and usual activity resulting in a flare of pain. He saw no connection between Mr Ward’s current symptoms and the incident in June 2008.
Dr McGill said the long gaps in complaints about his back indicate that Mr Ward’s injury in June 2008 was not a significant injury and that it settled down. He said the later incidents of pain indicate a degenerative condition with intermittent symptoms. He said it is typical in degenerative spine disease to have pain not connected to any significant activity.
In relation to the October 2008 MRI scan, Dr McGill said annular tears can happen spontaneously. He also said that the result of the MRI was in accordance with Mr Ward’s age and well within the expected range. He considered Mr Ward to be no more vulnerable to injury than another man of his age. He said that a sudden onset of pain does not mean there was sudden pathology. He also said that spontaneous intermittent episodes of pain can happen with or without disc pathology.
I have no doubt that Mr Ward suffers significant symptoms in his back. The question is whether those symptoms continue to be contributed to by the injury in June 2008. I cannot be satisfied on the balance of probabilities that they are.
The opinion offered by Dr Bodel was a theory of continuing contribution on the basis that in June 2008 Mr Ward suffered internal derangement of an already damaged disc. This may be a possibility but no evidence, including the MRI, establishes it as more likely than not. Dr Bodel accepted that the annular tear shown in the MRI could have happened at any time before the June 2008 incident.
Against this is the temporal connection between Mr Ward’s onset of pain, requiring some six months of treatment, and the incident at work in June 2008. However, while this may have been a temporary aggravation of Mr Ward’s degenerate spine, the course of his symptoms after that period of six months suggests that the aggravation resolved and was followed by a series of further aggravations arising out of the ordinary activities of living or arising spontaneously. The long periods between Mr Ward’s complaints of and treatment for back symptoms suggest not only that he is a stoic and hardworking man, but also that the effects of his injury in 2008 had ceased.
Given Mr Ward’s long experience and his willingness to work, it is disappointing that light or supervisory duties are not available to him with his employer of some 20 years. I have no evidence as to the availability of such work, and, given my conclusion as to the present effect of his injury, this observation is mere comment.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. .....[Sgd]...................................................................
Associate
Dated 12 May 2014
Date(s) of hearing 10 and 12 March 2014 Counsel for the Applicant Mr J Mrsic Solicitors for the Applicant Carroll & O'Dea Lawyers Counsel for the Respondent Mr D Richards Solicitors for the Respondent Clarke Legal
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