WASSIM MEREKBI and LINFOX AUSTRALIA PTY LTD
[2009] AATA 384
•28 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 384
ADMINISTRATIVE APPEALS TRIBUNAL ) 2007/5936
)2008/4253
)2008/4333
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | WASSIM MEREKBI | ||
Applicant
| And | LINFOX AUSTRALIA PTY LTD |
Respondent
DECISION
| Tribunal | Ms G Ettinger, Senior Member Dr M E C Thorpe, Member |
Date28 May 2009
PlaceSydney
| Decision | The Tribunal affirms the three decisions under review, being in Matters 2007/5936, 2008/4253 and 2008/4333. Pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, costs may not be awarded. |
………..........[sgd]............................
Ms G Ettinger
Senior Member
CATCHWORDS
Compensation – Applicant makes claim for injury to lower back injury suffered carrying out delivery work on 8 May 2007 - Applicant attended general practitioner 14 May 2007 - compensation paid until 10 September 2007 when the employer held on the basis of a medical report that the Applicant had no further present entitlement - further claim for back pain, nature and conditions claim, regarding pain incurred 23 April/1May 2007 lodged a year later – liability refused - Applicant told this Tribunal that he continues to suffer pain, and is working 25 hours a week – imaging shows some degenerative changes – nature and conditions of employment considered – decision of Respondent affirmed - permanent impairment claim refused – all three decisions under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 5, 14, 19, 24, 27, 67
Guide to the Assessment of the Degree of Permanent Impairment, Second Edition
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310
Comcare v Sahu-Khan (2007) 156 FCR 536
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
REASONS FOR DECISION
| 28 May 2009 | Ms G Ettinger, Senior Member Dr M E C Thorpe, Member |
| BACKGROUND |
Mr Wassim Merekbi is 41 years of age and has been employed by Linfox Australia Pty Ltd (Linfox), since April 2000. He came to Australia in 1992, and was employed by BHP as a process worker for seven years, took a voluntary redundancy, and had a gap of one year during which he did not work until he commenced as a driver/customer service officer with Linfox. He was in this job at Linfox until 2007, when he injured his back while doing deliveries of cigarettes to retailers. Liability was accepted for lower back pain sustained on 8 May 2007. Mr Merekbi is currently doing indoor clerical duties.
Mr Merekbi alleges that commencing in approximately April 2007, the nature and conditions of his job changed substantially for some three months. He told us that he had more deliveries to carry out than before, and the two companies for which he delivered had not sorted their stock into his vans in the correct order for delivery, so that he had to stoop to enter the van from the back and pull out boxes from under each other in order to sort and deliver them. The boxes also adhered to each other from time to time, so that a jerking movement was required to separate them. Further, two delivery destinations had requirements for big and heavy boxes to be delivered, and he had to travel for considerably longer times than previously. He made a claim for back pain, which he says commenced on 23 April 2007, and for which he first sought medical assistance on 1 May 2007.
We found considerable inconsistencies in Mr Merekbi’s evidence, and some issues of credit which we have discussed below.
We are satisfied from all the evidence before us, including the medical evidence that Mr Merekbi is not presently entitled to compensation in relation to an injury he claims he suffered on 8 May 2007 while making cigarette deliveries for the Respondent. We have not found for him in relation to the nature and conditions claim.
We prefer the medical evidence which indicates Mr Merekbi can work full-time in an administrative or clerical position where he can get up and move around at will, and is not required to do repetitive work or lift heavy weights.
We are satisfied on the basis of the medical evidence that the Respondent is not liable for any permanent impairment as claimed by Mr Merekbi.
Our reasons follow.
ISSUES BEFORE THE TRIBUNAL
re matter 2007/5936
We have to decide whether, in regard to a “lower back injury” sustained on 8 May 2007, Mr Merekbi is presently, after 10 September 2007, entitled to be paid compensation for medical treatment and incapacity pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988, (“the Act”).
re matter 2008/4253
We have to decide Mr Merekbi’s claim of 8 April 2008 in which he claims the nature and conditions of work caused him to suffer “back pain” on 23 April 2007, and for which he first sought medical treatment on 1 May 2007.
re matter 2008/4333
We have to decide whether Mr Merekbi has suffered permanent impairment of his lumbar spine which is compensable pursuant to sections 24 and 27 of the Act, and applying Table 9.17 of the Guide to the Assessment of the Degree of Permanent Impairment Second Edition (the Guide).
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, as amended, in particular sections 5, 14, 19, 24 and 27.
“Disease” and “injury” are defined in sections 5A and 5B of the Act as follows:
…
5A Definition of injury
(1)In this Act:
injury means:
(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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5B Definition of disease
(1)In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
…
Section 14 of the Act provides as follows:
…
14. Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
Section 16 of the Act provides for medical treatment and section 19 deals with the payment of compensation.
There is well-established authority both State and Federal, which deals with injury and disease, with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases. Casarotto v Australian Postal Commission (1989) 17 ALD 321 deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. In Comcare v Sahu-Khan (2007) 156 FCR 536, the test for significant contribution of the workplace was explored, and the current principles established.
mr merekbi’s evidence
We noted from Mr Merekbi’s evidence that he had worked in Lebanon and Germany before coming to Australia in 1992. He then spent seven years as a process worker at BHP. After accepting voluntary redundancy due to changes in the company, he says, in his statement at Exhibit A1, that he was unemployed for some three or four months, and in his oral evidence that it was a year. We do not take any issue with that inconsistency, and it is of no particular consequence here.
He says his health was good, and that he had no back problems when he joined Linfox, the Respondent in these proceedings as a delivery driver/customer service operator in April 2000.
Mr Merekbi gave evidence regarding the three different vans he drove to do deliveries between 2000 and the relevant dates in 2007. All three were one-ton vans which we noted were not dissimilar. He told us that he had to bend and stoop as he entered from the back of the van to unload boxes of tobacco or cigarettes in order to deliver them. Mr Merekbi told us that initially he was on the Bankstown run for six years, and that although he was employed for nine hours, he could complete that work in approximately five to six hours each day.
In 2005 he was subject of a hold-up while driving his van, and following that incident, a security guard, Mr MJ who had been a former driver, was assigned to the van to be with him. In February 2007 Mr Merekbi was transferred to the Bondi run which meant he had to work longer hours. He told us that he was driving approximately an extra three hours a day in addition to the five or six hours per day which he formerly worked. He argued, and his counsel Mr Daley submitted, that the workload increased dramatically from about April 2007. We noted the Respondent’s submissions that the increase was actually two and a half hours a day, that is one and a quarter hours extra travelling time each way. For purposes of the decisions we have to make, we do not find the difference between two and a half and three hours of driving, material.
Mr Merekbi stated that in approximately mid-April 2007, he was feeling some stiffness and discomfort in his back from lifting and carrying the boxes, but did not then think that there was much wrong. He agreed when questioned that he had been taught how to lift correctly, and that this training was updated every six months.
Mr Daley’s submission was that Mr Merekbi had no problems with his back before April 2007, and that since that time his pain has been ongoing. We noted from Exhibit A10 (medical notes of Drs Dagher & Fashka dated 5 February 2007 – 8 February 2008), that Mr Merekbi has been attending at this general practitioner for back pain since 1 May 2007.
Mr Merekbi explained the location of his pain to the Tribunal, which Dr Thorpe of the Tribunal recorded as pain midline to the left hand side, just below the rib margin, above the belt line, somewhere towards the left side, T12/L1, with pain radiating to the left leg. Mr Merekbi told us that it was not a big problem for him at that time in April 2007, and that after a rest on weekends, he felt better, but that on returning to work, the pain would return.
Mr Merekbi told us that in April 2007 he obtained some analgesic medication from Dr Fashka, (the locum for his general practitioner Dr Dagher), and had a few days off from mid-April 2007 to 8 May. We noted from the medical records before the Tribunal, which were at Exhibit A10, there is no attendance recorded by Mr Merekbi at the practice between 25 March and 1 May 2007. The entry by Dr Fashka on 1 May 2007 records “back pain radiating to L side”, and noted that a CT of the lumbar spine was requested. We noted from the Applicant’s evidence that rather than the doctor recommending the scan, it was Mr Merekbi who requested the scan, to see if anything was wrong, he said.
The CT of the lumbar spine dated 15 May 2007 concluded as follows, which indicated that the results showed a slight bulging of the L5/S1 disc.
“…
Bony dimensions of the canal are normal and there is no canal stenosis. No facet arthritis or pars defect. No bony narrowing of exit foramina or lateral recesses.
Very slight bulge of the annulus at the L5/S1 disc noted. No disc herniation at any level. No soft tissue compression on the thecal sac or nerve roots.
…”
Mr Merekbi’s evidence was that he was doing deliveries for two different companies in April 2007, and that the stock was not sorted into the order in which it was to be delivered. He therefore had to lean over into the van, stoop, and pull the boxes out from various areas in order to obtain the correct goods for the particular delivery. In addition, the boxes were tightly packed, he said, and sometimes stuck to each other because of the packaging. He described the load as individual cartons weighing 250 grams, and boxes weighing one to three or four kgs for delivery to small shops, as well as bigger boxes of 25 kgs, comprising roll-your-own, the latter however, only destined for one or two customers.
Mr Merekbi told us that on 8 May 2007, while reaching into the van to remove stock, he moved a box weighing some 11- 12 kgs, and felt a sharp pain in his back, (recorded by the Tribunal according to the Applicant’s description as midline above the belt line), a pain he had never felt before. He also said that he felt pain in the back of both legs, and indicated the outer aspect of his left thigh, and midway down the lateral aspect of the right leg. Mr Merekbi said that the pain was mainly in the left leg, and indicated that he also felt numbness. He also said that this was a new and completely different pain from previous pain, both in intensity and location.
In his written statement, Mr Merekbi stated:
“…
I was unable to continue with my work that day and M… J…, who was my Security Guard, had to do all the driving and had to do all the deliveries. I just basically sat in the van and rested as best I could. It was a very painful day. The pain just kept getting worse and worse.
…”
In his oral evidence, Mr Merekbi described how after the event he could not walk, that he lost control of his legs, and that his knees gave way when he got out of the van, so that he had to crawl to the passenger seat to get back into the van. Mr MJ who produced a statement (Exhibit A6), stated there:
“…
At some stage during that day (on or about 8 May 2007), however, he went into the back of the van and when he came out he was complaining of being in severe pain and to my observation, appeared to be in pain. When he got out of the van I noticed that he was holding his back and complaining of pain. He appeared to be a little bit hunched forward in a sort of bent over position…. He told me that he could not lift or drive and told me that the pain felt like a lightning bolt …”
Mr MJ also gave oral evidence at the hearing where he said that he had been occupied with his guard duties patrolling around the outside of the van, and did not see how Mr Merekbi got into the van after his alleged injury.
We noted the inconsistency in the evidence regarding the incident, in that Mr Merekbi did not tell any of the doctors whom he consulted, nor his accompanying security officer Mr MJ that he fell to his knees, and had to crawl into the van.
Following the incident of 8 May 2007 Mr Merekbi prepared an incident report dated 10 May 2007 which is marked as having been received on 17 May 2007 (T3). In it he said that he felt a sharp pain in his lower back, but did not mention that he had to crawl back into the van.
Mr Merekbi said that he worked on the Bondi run in the days following the incident of 8 May, that is 9 and 10 May 2007. Mr Merekbi said that on 9 May he did some driving, and Mr MJ assisted with unloading, and with driving.
In his application for compensation at T8, Mr Merekbi recorded that he had muscle strain and lower back pain as a result of the incident of 8 May 2007. However we noted that Mr Merekbi’s accounts of his pain varied over time. He commenced with reporting lower back pain, but indicated mid to upper back pain at the Tribunal. We also noted from the medical evidence which is discussed in the paragraphs below that the leg pain he reported does not correspond to a neurological distribution.
It is undisputed that following the incident of 8 May 2007, Mr Merekbi did not attend at his general practitioner, Dr M Dagher until 14 May 2007. He indicated to the Tribunal that at the time he consulted his doctor and requested a CT scan on 14 May 2007, the pain was in his left buttock. Dr Dagher recorded as follows on that day:
“… lower back, onjury (sic) at work on 8/5/07 while lifting parcels at work. Examination: moderate tenderness restricted movemnet,(sic) awiting (sic) CT …”
Mr Merekbi submitted a compensation claim dated 15 May 2007. He told us that initially he thought that the pain was much the same as the earlier muscle pain, but as it did not improve, he sought medical assistance. He said that Dr Dagher prescribed Voltaren, an anti-inflammatory drug, physiotherapy and hydrotherapy, and that he had approximately a month off. Mr Merekbi told us that physiotherapy only helped in the short term, and that he wanted to do more hydrotherapy as recommended by his treating specialist Dr Maniam, whom he first consulted in October 2007, but was not able to because of the cost.
Mr Merekbi told us that after approximately a month he returned to work on a graduated return, and is now doing administrative duties for five hours a day five days a week, but loved his job, does not enjoy indoor work, and would rather drive. He maintains that he cannot do more than the allocated five hours because by the time of the fourth hour, he suffers more pain. He stated that the pain was in the same location as previously, but the lower part of the back was worse, and sitting for any length of time was uncomfortable. He told us that his lifting of weights is restricted to five kgs, he can only drive for half an hour at a time, and that he can no longer swim much, mow lawns, or play tennis or basketball. He also said that his sex life has suffered.
Mr Daley submitted that the T31 rehabilitation plan at T31, was as Dr Dagher prescribed.
previous back pain
At T44, solicitors Maurice Blackburn Cashman Lawyers in a letter dated 27 September 2007, informed CGU – Self Insurance Services on Mr Merekbi’s behalf that: “We are instructed that prior to sustaining his lower back injury at work on 8 May 2007, our client had never before suffered any injury to the back nor experienced any back pain.”
It appears Mr Merekbi did not tell his solicitors or the doctors who examined him in connection with his claims that he had suffered back pain prior to 8 May 2007. Mr Merekbi subsequently lodged a claim for back pain he says he suffered on 23 April 2007, and for which he first sought treatment on 1 May 2007 (claim dated 8 April 2008).
dr v maniam
Mr Merekbi said that he first consulted his treating specialist Dr V Maniam in October 2007, and now consults Dr Maniam every month or six weeks.
We noted that Dr Maniam is a member of the College of Surgeons (FRCS and FRACS), practises in regard to shoulder, knee and arthroscopic surgery, but does not hold specialist orthopaedic qualifications. Dr Maniam’s reports were Exhibits A3 dated 19 November 2007, A4 dated 6 February 2008, and A5, dated 4 September 2008.
In his first report Exhibit A3, (19 November 2007), Dr Maniam referred to Mr Merekbi’s incident on 8 May 2007, and indicated that the Applicant continued to suffer pain and should remain on “fulltime selected duties”. He also referred to the MRI carried out on 16 October 2007 stating that the results were:
“…
a)There is a posterocentral disc bulge with associated right paracentral annular tear and there is no evidence of any impingement on the exiting nerve roots.
b)At L2/3 there is a broad based left paracentral disc bulge causing mild impingement on the thecal sac. There is no impingement on the nerve roots, however the left L2 nerve root in that lateral recess is in close apposition to the disc bulge.
…”
In his second report, Exhibit A4 dated 6 February 2008, Dr Maniam referred to Mr Merekbi’s history, listed his functional limitations, and stated his diagnosis, being:
a)A broad based left paracentral disc protrusion impinging on the thecal sac. The left L2 nerve root in the lateral recess is in close apposition to the disc bulge.
b)At L1/S1 there is a posterocentral disc bulge with associated right paracentral annular tear. There is no evidence of impingement on the exiting nerve roots.
Dr Maniam has prescribed hydrotherapy, physiotherapy, analgesics and anti-inflammatory medication for Mr Merekbi throughout. He also set restrictions such as no heavy lifting, but without specifying the weight limit. He elaborated on that in his oral evidence saying that the lifting should not exceed 7.5 – 10 kgs, and that Mr Merekbi should not do repetitive bending, and not be required to do driving as part of his work. The Applicant reported Dr Maniam examines him at each visit, and reports that there has been no improvement with the regime he has prescribed.
In his oral evidence Dr Maniam confirmed that he accepted Mr Merekbi as stating the problems he experiences in an acceptable manner, and confirmed that the Applicant should work with the same restrictions previously prescribed. Dr Maniam said that on his first consultation he had ascertained that Mr Merekbi had not had previous problems with his lumbar spine. We noted however that that was incorrect as Mr Merekbi lodged a claim for back pain as a result of the nature and conditions of his work which he says he incurred on 23 April 2007. He did not inform Dr Maniam that he suffered back pain in April 2007.
dr p darveniza
We also heard oral evidence from Dr Darveniza, a neurologist, and had his reports of 15 April 2008 (Exhibit A7), 5 May 2008 (Exhibit A8), and 15 September 2008 (Exhibit A9). In his written reports, Dr Darveniza recorded a history of Mr Merekbi suffering intermittent low back pain while lifting, bending and stooping during April/May 2007, in the course of his work. He then noted that while retrieving an eight kg parcel from his van on 8 May 2007, Mr Merekbi developed a sharp pain in the low back which radiated down the left thigh to the knee, with occasional pins and needles in the foot and lateral thigh. Dr Darveniza also recorded that Mr Merekbi “has been left with more or less constant low back pain, radiating down the back of the thigh towards the left knee …”. We noted some inconsistency in regard to the weight of the boxes Mr Merekbi described; he told the Tribunal that the boxes he was moving when he hurt his back weighed between 11 and 12 kgs.
Dr Darveniza also reviewed a CT scan and MRI, and stated that Mr Merekbi is “suffering work-related, symptomatic, traumatic lumbosacral spondylosis confirmed on imaging, with evidence of left L2 nerve root irritation, limiting him physically …”
In his oral evidence, Dr Darveniza explained that the L2 referred to the upper part of the lower back. He also agreed that Mr Merekbi may have had degenerative changes before May 2007, and noted that a disc protrusion can be symptom free. He also said that what Mr Merekbi had, could have been either referred or radicular pain.
Dr Darveniza opined that Mr Merekbi could work fulltime in light duties provided he did not have to maintain one posture all day. Dr Darveniza told the Tribunal that hydrotherapy and physiotherapy are only indicated in the acute stages of an injury, and only for a short time thereafter. He opined that swimming was a suitable activity for Mr Merekbi, and that analgesics could be taken as required.
dr p hitchen
We had reports of Dr Hitchen, being Exhibit R4 dated 25 May 2008, Exhibit R5 dated 3 August 2008 and Exhibit R6, dated 19 January 2009. Dr Hitchen also gave oral evidence by telephone.
Dr Hitchen told us that it is his practice to record the history a patient gives at the first consultation, and then to read it back to the patient at the second consultation to ensure it is correctly recorded, and to give the patient the opportunity to make appropriate changes. Dr Hitchen said that he had done that with Mr Merekbi, and that he had not told him about falling to his knees on 8 May 2007.
Dr Hitchen also told us that he had inquired of Mr Merekbi as to back problems prior to 8 May 2007, and that Mr Merekbi had told him he did not recall any previous back problems (as recorded at PT30/69). Dr Hitchen stated that he had recorded Mr Merekbi had suffered no immediate neurological pain on 8 May 2007, and that he had reported carrying on working 15 minutes after the incident.
Dr Hitchen said that on 8 May 2007 Mr Merekbi may have suffered an acute disc prolapse, but that from the images available, there was no disc herniation. He also said that the history he took from Mr Merekbi with regard to the scene of the claimed injury on 8 May 2007 was not that Mr Merekbi had to pull boxes out from under each other, thereby jerking his body, but rather that he undertook rummaging action. Dr Hitchen said that the CT report showed some degenerative changes, which were normal for Mr Merekbi’s age. He added that degenerative changes can occur at all levels of the spine, and that a person may become aware of such changes at any time, stating that it appeared Mr Merekbi became thus aware on 8 May 2007. He added that the changes seen on the MRI ”would have been there for years yet he was working normally. The alleged mechanism of injury would not disrupt or herniate a disc.” (Exhibit R5). In his report dated 25 May 2008, Dr Hitchen confirmed that the recent MRI indicated Mr Merekbi had pre-existent degenerative disc disease at the lumbosacral level.
Dr Hitchen concluded that the diagnosis of Mr Merekbi’s complaint was chronic non-specific back pain, and that the workplace injury was a musculo-ligamentous strain to the back which would have resolved in a matter of weeks.
Dr Hitchen also concluded in his May 2008 report that Mr Merekbi had no hard signs of a lower extremity radiculopathy, and that his “recent evolution of more distal left leg symptoms is not explained on a patho-organic basis.” (Exhibit R4).
Dr Hitchen told the Tribunal that the CT scan of 15 May 2007 was normal. An MRI scan of the lumbar spine performed in October 2007 showed disc dehydration and bulging at the lumbosacral disc consistent with degenerative disc disease at that level.
We noted that Dr Hitchen was asked about a study referred to in Dr Maniam’s report of 4 September 2008, made in 1966 by Nachemson which referred to “loading in the lumbar discs as well as the distribution of stress within these structures in different body positions”. Dr Hitchen who is an orthopaedic surgeon, told us that he had never heard of that study.
Some weeks after the hearing, Dr Maniam provided us with a page 95 of Proceedings and Reports of Councils and Associations Vol 54B, No 1, February 1972, and an article, “Role of the Trunk in Stability of the Spine” by J M Morris, MD, D B Lucas, MD, and B Bresler MS from The Journal of Bone and Joint Surgery 1961.
We sent both to the Respondent for its comment. We were notified that the material had been referred for Dr Hitchen’s comment. We were then notified that the Respondent did not wish to make any further comment upon the material.
The Tribunal is unable to give any weight to a study which is over forty years old, and we say by way of observation that at the time the article was prepared, currently used imaging, particularly CT scanning and MRI were not in use as they are today. The material was not of any assistance to us in our deliberations.
ct scan - mri
The CT of the lumbar spine dated 15 May 2007 concluded as follows:
“…
Bony dimensions of the canal are normal and there is no canal stenosis. No facet arthritis or pars defect. No bony narrowing of exit foramina or lateral recesses.
Very slight bulge of the annulus at the L5/S1 disc noted. No disc herniation at any level. No soft tissue compression on the thecal sac or nerve roots.”
…
Dr Hitchen commented that the CT scan of 15 May 2007 was normal, with slight bulging of the L5/S1 disc. He also referred to the MRI scan of Mr Merekbi’s lumbar spine performed on 16 October 2007, which he described as follows:
“…
On inspecting the films there was disc dehydration and bulging at the lumbosacral disc consistent with degenerative disc disease at that level. There was mild narrowing of the lumbarsacral disc consistent with a chronic process (chronic degenerative disc disease). There was no evidence of nerve root compression at the lumbosacral level to explain his recent alleged distal left leg symptoms. At L2/3 there was a disc bulge to the left in approximation of the left L2 nerve root (however clinically he has no numbness or radicular pain in an L2 distribution).
…”
(Exhibit R4)
Dr Hitchen concluded that Mr Merekbi did not demonstrate any neurological symptoms, and showed marked amplified pain behaviour in regard to the mid to lower lumbar spine. He said that Mr Merekbi showed no neurological signs, and had a non-radicular distribution of pain. He stated that his current diagnosis was chronic non-specific back pain, and that Mr Merekbi’s workplace injury was a musculo-ligamentous strain to the back which would have resolved within a matter of weeks. He stated: “He would have been working with the mild changes already evident on the CT and MRI for year’s (sic) prior.”
The MRI of Mr Merekbi’s lumbar spine dated 16 October 2007 concluded:
“…
Broad-based disc bulge at L5/S1 with associated posterior annular tear. At L2/3 there is a postero-central and left paracentral disc protrusion causing mild impingement on the thecal sac. The left L2 nerve root is in close apposition to this disc bulge.
…”
What we needed to do was to determine the issues before us as follows.
re matter 2007/5936 – whether mr merekbi continues to suffer from the effects of a lower back injury sustained on 8 may 2007; whether he is presently entitled to compensation for medical treatment and incapacity
In Matter 2007/5936, Mr Merekbi appeals against the decision of the Respondent in which the Respondent held that at 10 September 2007 he was not presently entitled to compensation for incapacity and medical treatment as a result of the effects of the compensable lower back injury he suffered on 8 May 2007, (sections 16 and 19 of the Act). He made his claim on 15 May 2007 and liability was accepted for “lower back injury”.
In coming to a decision we took into account the Applicant’s evidence regarding how the incident of 8 May 2007 occurred, the injury he suffered, the reports of pain, and the medical evidence.
We were concerned that Mr Merekbi’s account of the incident of 8 May 2007 to the Tribunal which was that he had fallen to his knees and had to crawl back into the van after unloading some stock and feeling pain in his back on 8 May 2007, was uncorroborated. The security guard who was on duty with Mr Merekbi was unable to corroborate his evidence. Neither had Mr Merekbi told the doctors who treated and examined him, (Maniam, Dagher and Hitchen), that version of events.
A rehabilitation file note at T12/33 indicates that Mr Merekbi told the Transport Supervisor on 8 May 2007 that he had a sore back due to stretching over parcels to get his correct stock. Mr Merekbi’s incident report at T3/5 indicated he was moving parcels and felt a sharp pain in his lower back. In his workers compensation claim at T8, Mr Merekbi simply stated that he injured his lower back on 8 May 2007. He did not mention that he had to crawl back into the van because he had fallen to his knees.
We noted that the first medical practitioner, Dr Dagher, whom Mr Merekbi consulted after that event was on 14 May 2007, some six days after the incident. Dr Dagher did not record the version of events which Mr Merekbi gave at the Tribunal. Mr Merekbi did not consult Dr Maniam until after the Respondent had found that it had no present liability for compensation from 10 September 2007.
We noted further that the evidence indicates that Mr Merekbi was paid by his employer for 9 and 10 May 2007, and accordingly was at work on those days following the incident of 8 May 2007. Mr Merekbi told us that on the day following the injury, that is 9 May 2007, Mr MJ assisted him with his work.
From the evidence before us we are satisfied that Mr Merekbi felt a sharp pain (as reported), in his lower back while unloading stock from his van on 8 May 2007, and suffered a musculo-ligamentous strain, as accepted by the Respondent, but we cannot accept his version of events for that day, which included falling to the ground and having to crawl back into the van.
We also noted that Mr Merekbi chose not to inform Drs Maniam and Hitchen that he had suffered previous pain in his lower back, (refer to the claim made for pain occurring on 23 April 2007 for which the Applicant sought medical assistance on 1 May 2007). We accordingly find his evidence unreliable.
Dr Hitchen referred to the MRI scan of Mr Merekbi’s lumbar spine performed on 16 October 2007, which he described as follows:
“…
On inspecting the films there was disc dehydration and bulging at the lumbosacral disc consistent with degenerative disc disease at that level. There was mild narrowing of the lumbarsacral disc consistent with a chronic process (chronic degenerative disc disease). There was no evidence of nerve root compression at the lumbosacral level to explain his recent alleged distal left leg symptoms. At L2/3 there was a disc bulge to the left in approximation of the left L2 nerve root (however clinically he has no numbness or radicular pain in an L2 distribution).
…”
(Exhibit R4)
Dr Hitchen concluded that Mr Merekbi did not demonstrate any neurological signs, and had a non-radicular distribution of pain. Dr Hitchen opined that Mr Merekbi showed marked amplified pain behaviour in regard to the mid to lower lumbar spine. We found that Mr Merekbi’s description of his pain was inconsistent as to location of the pain, and in relation to the non-radicular distribution of pain. We found that there were issues of credit in relation to the evidence he gave about the events of 8 May 2007, and the distribution of the pain.
We are mindful that Mr Merekbi’s treating specialist, Dr Maniam, whilst finding that Mr Merekbi suffers back pain, held the view that he could remain on fulltime selected duties with restrictions on bending and lifting. Dr Darveniza also opined that Mr Merekbi could work fulltime with restrictions on lifting and bending and maintaining one posture continuously. Dr Hitchen opined that Mr Merekbi could engage in pre-injury duties without restriction as to time or work, adding that “he is not incapacitated for work and there is no physical reason why he could not perform all duties of pre-injury employment”. Neither Dr Hitchen nor Dr Darveniza recommended further medical investigation nor treatment. Dr Hitchen opined that passive management such as physiotherapy, massage or chiropractic were not required, but that Mr Merekbi should be encouraged to keep physically active. We noted that Dr Darveniza recommended physiotherapy or hydrotherapy only in the acute stages of an injury.
We noted Dr Darveniza also agreed that Mr Merekbi may have had degenerative changes before May 2007, and noted that a disc protrusion can be symptom free. He also said that what Mr Merekbi had, could have been either referred or radicular pain.
We are satisfied with Dr Hitchen’s diagnosis of chronic non-specific back pain, and accepted his opinion that Mr Merekbi’s workplace injury of 8 May 2007 was a musculo-ligamentous strain to his lower back which already had some degenerative changes (as shown on the radiological investigations). Dr Hitchen concluded: “He would have been working with the mild changes already evident on the CT and MRI for year’s (sic) prior.” We are satisfied with the evidence that the work related injury would have resolved within a matter of weeks.
In coming to that decision, we have taken into account Mr Daley’s submission that pain brought on by a work activity may constitute an aggravation of a pre-existing injury even though no change in pathology has taken place. Mr Daley submitted that Dr Hitchen agreed with that proposition. (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626)
We are satisfied from the medical evidence that Mr Merekbi suffered a musculo-ligamentous injury to his degenerative lower back on 8 May 2007. We agree with the Respondent that he is not presently entitled, since 10 September 2007, to compensation for incapacity and medical treatment as a result of the effects of the compensable lower back injury he suffered on 8 May 2007, (sections 16 and 19 of the Act). The fact that he suffers some non-specific back pain does not alter that.
re matter 2008/4253 – whether the nature and conditions of mr merekbi’s work in february to april 2007 caused a work-related injury within the terms of the legislation
We moved then to consider Matter 2008/4253, in which Mr Merekbi appeals against the decision of the Respondent dated 11 July 2008. The Respondent held that it is not liable to pay compensation in respect of back pain Mr Merekbi attributed to an incident on 23 April 2007, and the nature and conditions of his employment. He first sought medical treatment in respect of that claimed injury on 1 May 2007. The Respondent denied liability in respect of that claim which was for “back pain” and was made on 8 April 2008, almost a year after the claimed incidents.
We were mindful that Mr Merekbi drove three different vans over a period of years, although the evidence did not establish that they were substantially different, particularly from the point of view of access to the stock he carried and had to unload. We have also noted that Mr Merekbi underwent training on a periodic basis on safe lifting.
In the claim made for Matter 2008/4253, Mr Merekbi claims his workload increased dramatically when he was assigned to the Bondi delivery run in February 2007, and that his daily driving increased by three hours a day. He had been used to working five hours in a nine hour day, and this was now increased he said. We noted the Respondent’s submission that the increase was an extra two and a half hours driving a day which we do not consider to be materially different from the three hours which Mr Merekbi said it was.
Mr Merekbi’s evidence was that he was doing deliveries for two different companies in April 2007, and that the stock was not sorted into the order in which it was to be delivered. He therefore had to lean over into the van, stoop, and pull the boxes out from various areas in order to obtain the correct goods for the particular delivery. In addition, the boxes were tightly packed, he said, and sometimes stuck to each other because of the packaging. He described the load as individual cartons weighing 250 grams, and boxes weighing one to three or four kgs for delivery to small shops, as well as bigger boxes of 25 kgs, comprising “roll-your-own”, the latter however, only destined for one or two customers.
Mr Merekbi stated that in approximately mid-April 2007, he was feeling some stiffness and discomfort in his back from lifting and carrying the boxes, but did not then think that there was much wrong. He explained the location of the pain to the Tribunal, which Dr Thorpe of the Tribunal recorded as pain midline to the left hand side above the belt line, T12/L1, with pain radiating to the left leg. Mr Merekbi told us that it was not a big problem for him at that time, and that after resting on weekends he felt better, but that on returning to work, the pain would return.
Mr Merekbi told us that in April 2007 he obtained some analgesic medication from Dr Fashka, (the locum for his general practitioner Dr Dagher), and had some time off, from mid-April 2007 to 8 May. We noted from the medical records before the Tribunal, which were at Exhibit A10, there is no attendance recorded by Mr Merekbi at the practice between 25 March and 1 May 2007. The entry by Dr Fashka on 1 May 2007 which is the first we have referring to back pain, records: “Back pain, radiating to L side…” and notes that a CT of the lumbar spine has been requested. We noted from the evidence that rather than the doctor recommending the scan, it was Mr Merekbi who requested the scan, to see if anything was wrong, he said. We were mindful that the CT of the lumbar spine dated 15 May 2007 indicated a slight bulging of the L5/S1 disc. We are mindful that the Applicant consulted his doctor again on 14 May 2007, in connection with an injury on 8 May 2007, (for which liability has been accepted).
Mr Merekbi made his application for compensation in connection with the nature and conditions claim on 8 April 2008, a year after the alleged injury. Pursuant to section 53 of the Act, he is required to give notice in writing of an injury to his employer as soon as practicable after he becomes aware of the injury. To make a claim a year later and given the evidence before us, does not satisfy us that Mr Merekbi has complied with the legislation. At the time of making the claim for compensation which was granted for the injury of 8 May 2007, Mr Merekbi did not mention anything about an injury to his back on 23 April 2007. That was after a gap of only two weeks so one would have expected him to have remembered the event if it had been significant. We noted further that the claim in regard to the alleged injury of 23 April 2007 was made after Mr Merekbi’s claim for the injury of 8 May 2007 had been accepted, and the Respondent had held that by 10 September 2007 he had no present entitlement to compensation for lower back injury.
Mr Merekbi has been able to work in an administrative capacity for five hours a day, Drs Maniam and Darveniza opining that he can work fulltime with restrictions on bending and lifting. Dr Hitchen felt it was safe for Mr Merekbi to engage in his pre-injury duties without restriction.
We were unable to find from Mr Merekbi’s evidence or the medical evidence that the nature and conditions of Mr Merekbi’s work in the first half of 2007 caused a compensable injury arising out of or in the course of his work with the Respondent giving rise to incapacity for work or impairment, or a disease that had been contributed to in a significant degree by the employment in April 2007 (Comcare vSahu-Khan(2007) 156 FCR 536). The claim must fail.
re matter 2008/4333 - whether mr merekbi suffers permanent impairment which is compensable.
A reviewable decision was issued by the Respondent on 9 September 2008 affirming the determination made 19 August 2008 to disallow the Applicant’s entitlement for compensation for permanent impairment, pursuant to sections 24 and 27 of the Act, for his “lower back injury”.
Section 24 of the Act and the Comcare Guide are relevant and follow.
24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
…
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…
The medical evidence in regard to permanent impairment which we had to take into account was as follows:
§In completing the doctor’s section of the claim form for permanent impairment, Dr Maniam diagnosed “L1/2 IVD protrusion + impingement” and “L5/S1 IVD annular tear”. In his report of 6 February 2008, (Exhibit A4), Dr Maniam assessed Mr Merekbi as having a whole person impairment of 10% according to Table 9.6 of the Comcare Guide. He used the incorrect Guide, in that, for claims made after 28 February 2006, the Second Edition applies. Therefore, as Mr Merekbi’s claim for permanent impairment was made after that date, Dr Maniam’s assessment of Mr Merekbi’s permanent impairment can be disregarded.
§Dr Hitchen concluded that Mr Merekbi did not demonstrate any neurological signs, and showed marked amplified pain behaviour in regard to the mid to lower lumbar spine. He reported that Mr Merekbi showed no neurological signs, and had a non-radicular distribution of pain, that is, no radiculopathy. We have noted Dr Hitchen’s diagnosis of chronic non-specific back pain, and accepted his opinion that Mr Merekbi’s workplace injury of 8 May 2007 was a musculo-ligamentous strain to his back which showed some degeneration. Dr Hitchen opined that the injury would have resolved within a matter of weeks. Dr Hitchen concluded: “He would have been working with the mild changes already evident on the CT and MRI for year’s (sic) prior.” He opined that Mr Merekbi suffered 0% permanent impairment pursuant to Table 9.17.
§Dr Hitchen also stated that the CT report and MRI of Mr Merekbi’s spine showed some degenerative changes which were normal for Mr Merekbi’s age. He added that degenerative changes can occur at all levels of the spine, and that a person may become aware of such changes at any time, stating that it appeared Mr Merekbi became thus aware on 8 May 2007. He did not comment with regard to 23 April 2007 because he had not been told of any incidents Mr Merekbi suffered previous to 8 May 2007. However Dr Hitchen indicated that he disagreed with Dr Darveniza (report of September 2008), that the nature and conditions of Mr Merekbi’s work in April 2007 could cause a disc protrusion at L2/3 and a bulge at L4/5 with an annular tear.
§Dr Darveniza noted in his report of 15 April 2008 (Exhibit A7), that a year had passed since the incident of 8 May 2007, and that he was satisfied Mr Merekbi’s disabilities could therefore be considered permanent. He assessed him at 13% whole person impairment according to Table 9.17 of the Guide “(- history of a herniated disc at the level and on the site consistent with objective clinical findings)”. Dr Darveniza told the Tribunal that Mr Merekbi suffered a herniated disc which he had confirmed both clinically and on the MRI. Dr Darveniza agreed that to attain 13% impairment under the Guide, there would have to be radiculopathy, which we noted Mr Merekbi does not have. Accordingly, we prefer the evidence of Dr Hitchen to that of Dr Darveniza.
In coming to a decision, we considered the evidence regarding permanent impairment, including the medical evidence, and taken into account Table 9.17 of the Guide, (Second Edition). As relevant it follows:
9.17 Lumbar Spine - Diagnosis-Related Estimates
Table 9.17: Lumbar Spine - Diagnosis-Related Estimates
% WPI Criteria 0 · No significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness;
or
· No fractures.
8 · Clinical history and examination findings compatible with a specific injury. Findings may include: significant muscle guarding or spasm; asymmetric loss of range of motion; or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings.
· No alteration of the structural integrity and no significant radiculopathy;
or
Prior clinically significant radiculopathy and radiologically demonstrated disc herniation, consistent with the radiculopathy, but radiculopathy no longer present following conservative treatment;
or
Fractures:
· Compression fracture of one vertebral body of less than 25%;
· Posterior element fracture without dislocation (not developmental spondylolysis) that has healed without alteration of motion segment integrity;
· Spinous or transverse process fracture with displacement without a vertebral body fracture, with no disruption of the spinal canal.
13 Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location (may be verified by electrodiagnostic findings);
or
History of a herniated disc at the level and on the side consistent with objective clinical findings, associated with radiculopathy, or employees who have had surgery for radiculopathy but are now asymptomatic;
or
Fractures:
· Compression fracture of one vertebral body of 25% to 50% - healed without alteration of structural integrity;
· Posterior element fracture with displacement disrupting the spinal canal - healed without alteration of structural integrity.
……..
We were satisfied from the medical evidence that Mr Merekbi did not give a consistent history of the location of his pain to the various doctors who examined him, and to the Tribunal. We were also satisfied that Mr Merekbi showed no neurological signs, and whilst he may suffer referred pain from his spine, he demonstrates a non-radicular distribution of pain, that is, no radiculopathy. We were satisfied that as Dr Hitchen diagnosed, the Applicant suffers chronic non-specific back pain, and may suffer permanent impairment due to the degenerative changes in his lumbar spine, which are not work related.
We have found in the paragraphs above that the injury of 8 May 2007 was a musculo-ligamentous injury the effects of which concluded following some weeks, and that after 10 September 2007, Mr Merekbi is not presently entitled to compensation in relation to an injury he suffered on 8 May 2007.
The MRI showed age related degenerative changes. Dr Hitchen whose evidence we accept opined that the changes had been there for years. We are not satisfied from Mr Merekbi’s evidence or the medical evidence, and taking into account the legislation and Table 9.17 of the Guide, that the Applicant suffers permanent impairment which is work related and therefore compensable. His claim for permanent impairment must fail.
DECISION
The Tribunal affirms the three decisions under review, being the Matters 2007/5936, 2008/4253 and 2008/4333.
Pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, costs may not be awarded.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G Ettinger, Senior Member and Dr M E C Thorpe, Member
Signed: ......................[sgd]....................................................
Associate
Dates of Hearing: 23 & 24 February 2009;further documents from Applicant for comment by Respondent received 6 May 2009;
Respondent’s reply 20 May 2009
Date of Decision: 28 May 2009
Solicitor for the ApplicantMr S Smith, Cameron Gillingham Boyd
Counsel for the Applicant Mr M Daley
Solicitor for the Respondent: Ms M Mittiga, Dibbs Abbott Stillman
Counsel for the Respondent: Ms R Henderson
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