Re Cane Kiprovski and Australian Telecommunications Commission [1982] AATA 199 (1 October 1982)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: CANE KIPROVSKI
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. N81/211
Compensation

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
The Honourable Sir William Prentice (Senior Member)

CATCHWORDS

Compensation - Commonwealth Employees - back injury 1976 - whether effects had ceased at 1981 - total incapacity.

Compensation (Commonwealth Government Employees) Act 1971.

HEARING

CANBERRA
1:10:1982

ORDER

That the Determination of the Delegate of the 10 September 1981, the subject of review, should be confirmed; and the same is so ordered.

DECISION

1. The applicant became in receipt of compensation following an injury at work on 24 May 1976, which was regarded as having caused back trouble the effect of which was totally incapacitating. He had sustained an earlier injury to his back on 6 June 1974. On 10 September 1981 the Delegate of the Commissioner for Employees Compensation ("the Delegate"), determined that at that date any incapacity for work which might then exist, arose neither out of or in the course of his employment from personal injury, nor from contraction of a disease or aggravation or acceleration of a disease to which his employment was a factor.

2. The applicant then applied to this Tribunal for a review of that decision. Evidence was taken on 18 August and on 15 September 1982, when the decision was reserved. At the hearing oral evidence was received from the applicant, Dr. D. Manevsky his General Practitioner, and Messrs. F. Ehrlich, W. G. Taylor and E. Hedberg reporting orthopaedic specialists. In addition, the following medical reports were tendered:-

Mr. Ehrlich of 5 August 1982; Dr. Manevsky of 21 August 1977, 16 March 1981, 22 March 1982 (and certificates (5) from 24 May 1976 to 30 June 1976, of 7 September 1976, and (18) from 30 August 1977 to 31 December 1980); (certificates) of Dr. Bosnic in 1974; Mr. Bruce Trevitt orthopaedic surgeon of 2 July 1976, 27 July 1976, 2 September 1976, 19 October 1976, 21 December 1976, 18 January 1977, 1 March 1977, 24 March 1977, 29 October 1981, (and a number of certificates); Mr. E. Hedberg of 26 April 1977 (with answers to questions), 29 January 1981 and 18 August 1982; Mr. W. G. Taylor of 1 September 1982; a CAT-scan report from Dr. Lau of 8 January 1982; Dr. H. P. Greenberg psychiatrist of 28 June 1982; an x-ray report of Dr. Faulder of 18 August 1977; Mr. M. Johnson orthopaedic surgeon of 25 January 1982 and 9 June 1982.

3. Mr. Kiprovski is now aged 46. He migrated to Australia in 1960. He had left high school in form 3 in Yugoslavia, had 2 years military experience, and been a shepherd in the mountains adjoining Macedonia. Coming here initially without his wife, he obtained a variety of jobs as a process worker in a window-making factory, a flour mill, James Kirby's, Pick-Me-Up, W. C. Stevens; and then with Telecom. After some 4 years he left there, went to another factory, opened a restaurant which failed, and returned to Telecom in 1972 where he continued working until he suffered a second accident in 1976. During his first spell with the respondent he was working on digging trenches; during his second on cable hauling. In 1974 he and 2 other workmen were in a manhole engaged in an operation which required pulling and lifting cable so as to obtain enough slack to allow the cable to be placed in rests on the wall, when he felt sore in the back. "It hits me very hard" he said, "on the back right down the bottom". He had not had back pain before; and was on this occasion off work for several weeks, being treated with an injection and digesic tablets. He returned to cable hauling, but after a few months became a truck driver.

4. In May 1976 the second accident, the effects of which are said to be still apparent and incapacitating, occurred. He and his mate having offloaded an empty cable drum from a truck with the aid of a crane, were engaged in removing the steel spindle upon which the drum had turned. The mate pulled the spindle which was said to be some 3 metres long and 4 inches in diameter from the drum and as the second end of it left the drum its weight fell on the applicant's arm and he went down - hurting his back. He was treated firstly by Dr. Manevsky, then referred to Mr. Trevitt who put him on tablets and prescribed progressively, stretching, manipulations, traction, heat treatment and one year's physiotherapy. The pain he was experiencing was on the hips, through his legs and back again. He still, he says, gets pain ("not sharp pain") on the middle bony part of the back; and on the left side of the left leg after 2 to 2 1/2 hours "walking". He takes no part whatever in the household tasks, not even helping with carrying parcels when shopping. Nevertheless, since being retired from Telecom, he has applied for a number of jobs of light duty nature, he informed the court. He is presently in receipt of the invalid pension.

5. Dr. Manevsky in evidence stated that the applicant's condition has deteriorated. His opinion that the pain reported was due to disc degeneration, was based he said not only on examinations but x-rays and myelograms (he made reference to the latter twice). It is not clear exactly which x-rays he refers to, they may be some taken at Auburn Hospital; but it seems clear that no myelogram was ever in fact performed, and Dr. Manevsky later admitted he had never seen one of the applicant. He regards the applicant as unfit for any work. In cross-examination Dr. Manevsky stated that in assessing the applicant he relied on (Mr. Trevitt) the orthopaedic surgeon's opinions "not 100% perhaps 75%"; but when it was pointed out that Mr. Trevitt had diagnosed only musculo-ligamentous strain, his rejoinder was that that "diagnosis was too superficial". In cross-examination Dr. Manevsky stated that he was not aware of the test of having a patient sit up with legs straight from a lying position, as an alternative method of testing "straight leg raising (SLR)".

6. Mr. M. Johnson appears to have seen the applicant first on 17 November 1981 and again 25 January 1982. On examination he reported:-

"Neck reveals slight restriction on all movement. In the lower back flexion was diminished with complaint. Spasm was present during movement. Stretch tests resisted at 60 degrees on each side, but he sits at 90 degrees to his extended lower limbs. There is no wasting of his thigh or calf. Neurology was normal".

He accepted a lumbar CAT-scan as accurately reporting "narrowing of L4 - L5 disc space and there is slight posterolateral fullness of this disc, causing narrowing of the adjacent nerve root canal". Mr. Johnson regarded the back pain as "relateable to the L4 - L5 disc" and "to relate to 2 incidents, that of 1975 (sic) and March 1976".

7. Mr. W. G. Taylor saw Mr. Kiprovski on 1 September 1982 for report. He found:-

"SLR to 30 degrees on the left and to 70 degrees on the right. His ankle jerks were brisk and equal and present. There was loss of sensation to pin prick and light touch on both sides of the left calf and posteriorly and on the inner side of the right calf".

He noted that after talking, the SLR on the left leg increased to 40 degrees - but produced pain. His overall opinion was that there was L4 - L5 disc protrusion and L4 - L5 nerve irritation. He regarded the disability complaint as real and work-induced.

8. Dr. Greenberg examined the applicant for the respondent. No real submission was made by the applicant's Counsel as to a psychiatric element in the applicant's disabilities; which is not surprising when one looks at Dr. Greenberg's conclusion which was to the effect:-

"Secondarily to the pain discomfort, disability and occupational consequences for him of his orthopaedic disturbance, he is suffering from a mild Reactive Depressive State. The prognosis for this depends essentially on the prognosis for his orthopaedic condition. The question of his fitness for work as a Lines Assistant is essentially a matter for orthopaedic opinion".

9. Mr. Trevitt had the treatment of the applicant from after his second accident until 1977. It included therapy and a manipulation under general anaesthetic in September 1976. By 19 October 1976 he was reporting:-

"To-day he is obviously in a good deal more pain than he has been on any previous visit and there is also equally obviously a good deal more emotional overlay. There is virtually no movement allowed in the lumbar spine and straight leg raising tests appear to cause pain on both sides, although they can be elevated to 90 degrees bilaterally . . . "

He found the patient extremely difficult to assess at that stage but regarded him as "basically a genuine person".

On 21 December 1976 improvement was reported; and the doctor, while finding severe restriction of lumbar movement "particularly in forward flexion although with some jerking and jumping, suggesting an emotional overlay is present. The SLR tests are negative"; considered him then fit for light duties in a weeks time. Finding on 18 January 1977, "a full range of movement in the lumbar spine with apparent pain during all movement in all directions", and "SLR now negative at 90 degrees bilaterally", he considered him still fit only for light duties. In March he prescribed a Boston Brace to be worn, and in May 1977 was still certifying him for light duties. Reporting on 24 March 1977, he stated "there was a little tenderness on deep palpation at the lumbo-sacral junction and moderate restriction of movement in the lumbar spine". He found neurology normal and x-rays "essentially normal revealing only some developmental ossicles in the antero superior aspect of the bodies of L4 and L5". Mr. Trevitt continued:-

"Although I felt initially that his symptoms were probably genuine there has certainly been quite a large and obvious emotional overlay in the last few months".

On 29 October 1981 Mr. Trevitt again examined the applicant and reported:-

"While he undresses there is obviously good muscle control in his lumbar spine as he is able to stand on one leg to remove the opposite sock. During the movement of his lumbar spine while the patient is erect there are many well controlled voluntary muscle jerks and grunts, presumably intended to indicate discomfort. However I note symmetrical activity of the muscles in his back and no evidence of localised muscle spasm or pathological alteration of the rhythmn of movement. There is no definite localised tenderness, although the patient makes grunting noises when the skin of his back is touched around the lumbo-sacral region and over the erector spinae muscles on either side. There is a full range of movement in the lumbar spine so that he can flex in the erect posture taking his fingertips below the knees and with the lumbar spine becoming just convex. The other movements are also full. SLR are negative at 90 degrees bilaterally and the neurologic examination of the lower extremities is normal. The heels, ankle and feet are also normal with no tenderness, swelling or restriction of movement and with normal function. The lower extremities are symmetrically muscled and well developed. The patient's original muscular tendonous strain of his lumbar region which is said to have occurred in May of 1976 has of course healed some years ago. There may have been some underlying degenerative changes which were aggravated by the incident, although these have never been confirmed by subsequent radiological studies. His present physical examination and the description of his symptoms reveals a fairly obvious emotional component to his complaints and lack of functional activity, and certainly no more than minimal permanent residual disability due to discomfort can reasonably be attributed directly to the original incident."

10. Mr. Ehrlich saw Mr. Kiprovski only the once, on 5 August 1982. He reported thus:-

"The injuries described . . . may well have led to a back strain of musculo-ligamentous type . . . his condition since the last incident, however, is much more difficult to explain, particularly in organic terms. His physical findings contain significant inconsistencies and there is obviously very substantial exaggeration if not indeed complete invention of his signs. Whilst the x-rays reveal abnormalities, these clearly cannot be ascribed to his lat injury. In my opinion, the claimant is most probably fit for the type of duties carried out before the injury and should certainly be considered capable of coping with most jobs not involving constant lifting or bending . . . ".

In evidence Mr. Ehrlich gave an explanation of the inconsistencies he found in the applicant's tests. He himself found abnormalities only, as shown by Dr. Faulder's x-ray; that is "separate centres of ossification for the antero-superior portion of the 4th and 5th lumbar bodies" - apparently a congenital abnormality "of no clinical significance", in his opinion. He agreed with Mr. Trevitt's comment that the applicant may have suffered muscular lumbar strain but that should have rectified itself, adding "and there is no reason to think that it has not". In effect he found no organic disease but "very characteristic signs of non-organic disease . . . the findings were not at all those in an individual who is suffering from disc pathology. They were very much like those in a person who is trying to project an image of back agony . . . the clinical picture presented to me was classical of that of a person who is attempting to project an image of back agony . . . and not at all like the picture found in a person suffering from organic pathology". Mr. Ehrlich in evidence reiterated that he considered the applicant most probably fit for the type of duties carried out before - but certainly capable of doing a lighter job . . . he could probably do any job but certainly should be able to do a lighter job . . . I don't think there is much amiss in his back. Therefore I do not see any reason why he should not be able to do any job really . . . I know there could be things wrong with his back. I just don't think that there is".

11. Mr. Hedberg apparently saw the applicant on 4 occasions 7/4/77, 18/8/77, 29/1/81 and 5/8/82. He reported initially (1977):-

". . . movements slow and tentative. There are no positive neural signs in the lower limbs. There is no spasm in the back, he is able to sit up on the couch".

After viewing x-ray film from Dr. Faulder he found "there was a lumbar sprain. There is a significant degree of functional overlay". He did not consider Mr. Kiprovski's condition related to the 1976 accident, though there had been a sprain previously. He felt that "there are no unequivocal clinical signs of continuing disability". He regarded the applicant as not then totally incapacitated - in fact "fit then for his previous duties - the only treatment required being resumption of normal activity". On examination in January 1981 he found the applicant "undresses and dresses normally" (I should add that when asked to take off his shirt to indicate muscular development during the hearing - the applicant displayed a marked difficulty that appeared exaggerated to me). Though expressing pain and resisting SLR at 45 degrees - each leg could be extended to 60 degrees with hip and knees flexed, and he could sit upright on the couch, though again with complaint of discomfort. There was tenderness over the sacral region. Mr. Hedberg found him again at that date fit for normal activity - with no restrictions imposed by his condition.

He examined again on 5 August 1982 - noting the discrepancy re L4 - L5 reports between Dr. Faulder's and Dr. Lau's reports. On testing the left ankle he found it not flexed - "but the agonists and antagonists contracted together". With hip flexed there was SLR to 60 degrees - but without hip flexion SLR was resisted at 45 degrees on the right and 30 degrees on the left. There was neither wasting nor spasm, and Mr. Hedberg remained of the same opinion that there was absence of significant organic impairment . . . even further manifestations of "overlay" or perhaps simulation.

In evidence Mr. Hedberg explained that if Dr. Lau's report of prolapsed disc be accepted (there was no sign of lesion L4 - L5) - then if it was significant, there should be right sciatica, muscle-wasting, loss of power. The tenderness complained of was over the sacral region and hence of no significance as to L4 - L5. There were no objective signs he felt, of involvement of spine or nerve roots. The symptoms described relate, he said, to areas not supplied by L4 - L5 nerve roots. He agreed essentially with Mr. Trevitt. He did not agree with Mr. Johnson's assessment of some impairment - he could find no orthopaedic impairment - nothing to show the applicant is unfit for work. Mr. Hedberg's view is that there is no evidence radiologically or clinically of significant degeneration of the spine ("though we all have some") - differing from Mr. Trevitt on that. He did not regard the CAT-scan as relevant to the situation when compared with the symptoms reported. If there were nerve root pressure at L4 - L5 from disc lesion, then there should be pain inside the calves and pain localised in the limb and localised in the back. The symptoms of which the applicant complains are related to areas not those supplied by L4 or L5 nerve roots, the doctor explained

12. Where there is conflict of opinion between Dr. Manevsky and Messrs. Johnson and Taylor on the one hand, and those of Mr. Hedberg, Mr. Ehrlich and Mr. Trevitt on the other, I prefer those of the latter. I find the latter mutually supporting and accept their findings and opinions and the evidence given in this case, as establishing on the probabilities as matters of fact that the effects of the injuries sustained in the accidents of 1974 and 1976 by the applicant were of a muscular-ligamentous nature only, and that as at September 1981 those effects had long since ceased to operate, and that any incapacitation for work which they had caused or to which they had contributed, had long since ceased - that the applicant was fit for work as far as could be seen. I consider therefore that the Determination of the Delegate the subject of review, should be confirmed and an order in that respect will be made.