!Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE WORKCOVER DIVISION Case No.C12401789 ZIVKA SAPAZOVSKI Plaintiff v ONE FORCE GROUP AUSTRALIA PTY LTD Defendant --- MAGISTRATE: S GARNETT WHERE HELD: MELBOURNE DATE OF HEARING: 29 & 30 MAY 2013 DATE OF DECISION: 3 JUNE 2013 CASE MAY BE CITED AS: SAPAZOVSKI v ONE FORCE REASONS FOR DECISION --- Catchwords: S 98C/E Impairment Claim: rejection of injuries to the back, neck and psychiatric condition alleged to have arisen out of or in course of employment between 1 September 2007 and 4 February 2008 and on 4 February 2008 as a result of a fall from a ladder. Acceptance of liability for left wrist and right shoulder injuries absence of complaint of symptoms of injuries to neck, back and psychiatric condition to treating doctor lack of medical evidence to support claimed injuries. Application Dismissed. --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr Podger Nowicki Carbone For the Defendant Mr Gray Lander & Rogers
HIS HONOUR: 1 Ms Sapazovski is aged 62 years and was employed with the defendant from 1 September 2007 until 29 March 2010. The defendant, being an employment agency, engaged her to work at Mushroom Exchange as a mushroom picker. She alleges that she sustained injuries to her left wrist, right shoulder, neck, back and anxiety/depression throughout the course of her employment between 1 September 2007 and 4 February 2008 and on 4 February 2008 as a result of a fall from a ladder. Ms Sapazovski lodged a Workcover Claim for weekly payments and medical expenses following the incident on 4 February 2008 for which liability was accepted by the defendant. She lodged a S98C/E Impairment Claim on 13 October 2010 alleging permanent impairments to her back, right shoulder, neck, left wrist, anxiety and depression. 2 The defendant accepted liability on 25 October 2011, in relation to the S 98C/E impairment claim in relation to left wrist and right shoulder injuries but denied liability in relation to the claimed injuries to her neck, back and anxiety/depression. 3 Ms Sapazovski gave evidence as did Dr Ristevski, her treating General Practitioner. The parties tendered clinical records, medical reports and claim forms. The issue for the court to determine is whether Ms Sapazovski sustained injuries to her neck, back and anxiety/depression which arose out of or in the course of her employment between 1 September 2007 and 4 February 2008 and/or on 4 February 2008. 4 Ms Sapazovski gave evidence through the assistance of a Macedonian interpreter and said that prior to commencing employment with the defendant she sustained injuries to her neck and back as a result of a motor vehicle accident on 2 August 2000. She told the court that she was a passenger in a car driven by her husband when it was hit from behind by another car. She said that as a result of those injuries she was unable to work for a period of 3 1 DECISION
months and even after returning to work she continued to experience neck and back pain and was never really without pain. The defendant tendered documents indicating that Ms Sapazovski pursued a TAC Impairment claim as a result of the injuries received and was assessed as having a 15% whole person impairment and received an amount of $4,317.22c in 2003. Ms Sapazovski gave evidence that her job as a mushroom picker required her to pick mushrooms and pack them into a box weighing 5-6 kgs which involved repetitive bending and stretching. The boxes were weighed and then stacked onto a multi level rack and she would be required to climb onto a trolley with steps to reach the higher levels. She estimated the trolley to be approximately 6 foot high which was on wheels so it could be physically moved around the factory area. 5 Ms Sapazovski told the court that on 4 February 2008 she was on the top step of the trolley when it moved causing her to fall a distance of approximately 4-5 metres onto the concrete floor. She said that she fell onto her buttocks and then onto her upper back. Ms Sapazovski told the court that she experienced immediate pain in her right shoulder and right side, left hand and lower back and head. She said she was then taken by her supervisor to the Mill Park Superclinic where she was seen by Dr Win. Ms Sapazovski gave evidence that she told Dr Win that she had hurt her shoulder, back and arm and he provided her with a workcover certificate to remain off work until he reviewed her on 8 February. She told the court that when she returned to see him on that date she continued to complain of pain in the right shoulder, neck, left wrist and back. She said that she also attended her normal doctor, Dr Ristevski, on 7 February and said that she told him of the fall and that she had pain in the right shoulder, neck and low back. Ms Sapazovski told the court that she attended her own doctor because he spoke Macedonian and Dr Win did not and she had difficulties conversing with him. 6 Ms Sapazovski gave evidence that she remained off work for one month and 2 DECISION
that when she returned to work was placed on restricted duties including a sit down job and work not involving heights. She said that she returned to mushroom picking approximately 5 months later but was not required to go beyond the first step on the trolleys as she was scared. She told the court that she remained at work on a full time basis with that restriction and continued to see Dr Ristevski once per month in addition to receiving physiotherapy treatment to her shoulder, neck and low back at Mushroom Exchange. (Neither party tendered any records relating to the alleged physiotherapy treatment received by her at her place of work). Ms Sapazovski gave evidence that she was terminated by her employer on 29 March 2010 because she refused to perform her full pre injury duties which would have required her to climb to the top steps of the trolleys. She said at that time she was still experiencing pain in her shoulder, neck and low back. 7 In cross examination, Ms Sapazovski was questioned about the distance she fell. She told the court that she believed she fell a distance a 4-5 metres despite the history recorded Dr Win on 4 February that she said she fell about 6-7 feet. She also told the court that her health was good before commencing with the defendant although admitted that she had some back problems from the motor vehicle accident in 2000 which she said was worse after the fall. She agreed that she made a successful TAC impairment claim in relation to injuries to her back, neck and psychiatric condition and that she made an unsuccessful attempt to receive Centrelink benefits in 2006 as a result of her back and neck conditions at which time she requested Dr Ristevski to complete a Centrelink Medical report. She told the court that she was not eligible due to financial issues. She told the court that her back and neck problems had improved by the time she commenced work with the defendant on 1 September 2007. She said her condition got worse after the fall and that the main problem from the fall was the injury to her right shoulder. 8 Ms Sapazovski was adamant that every time she consulted Dr Ristevski after 3 DECISION
the fall on 4 February 2008 she told him that she was experiencing pain in her right shoulder, neck, back, left wrist and was anxious and upset. She agreed that despite this pain she was able to work full time albeit with height restrictions from when she initially returned to work on 25 February 2008 until she was terminated on 29 March 2010. She could not offer any explanation as to the reason Dr Ristevski failed to record any complaint of back pain between 7 February 2008 and 30 January 2010 and that the first record of her feeling anxious did not occur until 29 March 2010, the day she was terminated. 9 Ms Sapazovski agreed that she successfully pursued a claim for total and permanent disability benefits under her superannuation scheme in 2012 with medical support from Dr Ristevski. She told the court that she is currently in receipt of the disability support pension and has been since September 2010. 10 Dr Ristevski gave evidence, his clinical records and the medical reports prepared by him dated 18 August 2006, 16 April 2008, 12 August 2011, 15 February 2012 and 20 April 2012 were tendered. He told the court that he first began treating Ms Sapazovski on 18 March 1991 and examined her following the motor vehicle accident in August 2000. He said that she did not initially complain of physical injuries but was more concerned about her anxiety and he therefore prescribed anti anxiety medication. He told the court that over the years prior to commencing employment with the defendant she did complain of neck and back pain which improved over the years. He confirmed that he provided a medical report for Centrelink in August 2006 where he reported that she had; chronic lower back pain with disc degeneration and limitations regarding lifting and bending activities, the impact on her ability to function would persist for more than 24 months; chronic neck pain (spondylosis) which causes pain and limitation of movement and would impact on her ability to function for more than 24 months. Dr Ristevski also recorded that she suffered from diabetes, anxiety and depression and hyperlipidaemia. 11 Dr Ristevski gave evidence that he saw Ms Sapazovski on 7 February 2008 4 DECISION
where she provided him with a history that she fell at work from a high trolley and bumped her head and back. He said on examination she did not have significant injuries and she told him that she did not lose consciousness as a result of the fall. On 11 February, he recorded a complaint of right shoulder pain and on 14 February, he recorded that an x ray of the right shoulder demonstrated no fracture but prominent bony spurs. (Interestingly, although not questioned during examination in chief or cross examination, the records reveal Ms Sapazovski providing a history on that date of a recent fall in shower ). On 16 April, Dr Ristevski recorded that her pain in the right shoulder was not as severe and that she was managing picking at work with low trolley work. In his medical report dated 16 April 2008, Dr Ristevski noted that Ms Sapazovski could manage low trolley picking work and suffers from a stable right shoulder full thickness supraspinatous tear with limitation in abduction. Dr Ristevski told the court that it is his normal practice to record as much information as possible given to him by his patients during their consultation. He said that he saw Ms Sapazovski on numerous occasions throughout 2008 and she did not complain of neck or back pain. He also told the court that she did complain of back pain on 30 January 2010 without a cause for it being recorded by him. He said that on 29 March 2010 she was anxious which she attributed to the fact that her brother was ill and she had been terminated by her employer so he prescribed medication for that condition. 12 In cross examination, Dr Ristevski confirmed his clinical records reveal complaints of back pain on; 28 May 1994, January 1995, March and June 1995; neck pain on 23 February 1997; neck, shoulder, hip and back pain on 30 September 1999; and, anxiety symptoms, neck and back pain following the motor vehicle accident in August 2000. He also confirmed that he referred Ms Sapazovski to Mr B Barrett, Orthopaedic Surgeon, in 2001 because of continuing complaints of back pain. He agreed that her first complaint of back pain to him following the fall at work on 4 February 2008 was almost 2 years later, on 30 January 2010 and the first recorded complaint of neck pain was 5 DECISION
on 6 December 2012. He agreed that if she had complained of neck pain prior to that date he would have recorded it in his notes. Dr Ristevski also agreed that the first recorded complaint of anxiety symptoms following the fall was on 29 March 2010, being the date of the termination of her employment. 13 Dr Ristevski diagnosed that Ms Sapazovski suffers from a supraspinatous tear to the right shoulder with bursitis, confirmed by ultrasound performed on 24 August 2010 and a lumbar multi level disc and facet joint degeneration with L5 nerve root compression, confirmed by CT Scan on 26 July 2010 together with insomnia and anxiety. He is of the opinion that the fall may have aggravated the lumbar pain related to the degenerative process and the insomnia and anxiety was aggravated by the suffering from the shoulder and back pain. 14 The defendant tendered medical reports from Mr Barrett, Orthopaedic Surgeon, dated 2 March 2001, 1 May 2001 and 23 August 2001. He obtained a history of back and neck pain following the motor vehicle accident on 2 August 2000. He reviewed x rays and an MRI scan which showed L5-S1 disc narrowing and a bulge with right sided L5 nerve root involvement. He considered that she should continue working on light duties. The defendant tendered a medical report from Mr Shannon, Orthopaedic Surgeon, dated 26 May 2003. He assessed Ms Sapazovski on 13 May 2003 for the Transport Accident Commission. He noted complaints of neck, back and shoulder pain and diagnosed that she suffered from soft tissue injuries to her cervical and lumbar spine with aggravation of pre-existing degenerative change. He assessed her as having a 5% impairment to the cervical region and a 5% impairment to the lumbosacral region. The defendant tendered a report from Dr Stern, Consultant Psychiatrist, dated 6 June 2003 who also assessed Ms Sapazovski for the Transport Accident Commission. He recorded that she was depressed and nervous by her pain and physical restrictions. He noted that she complained of constant pain in the neck, back of the head, shoulders, low 6 DECISION
back and legs. He diagnosed she was suffering from post traumatic stress disorder caused by the motor vehicle accident and the resultant injuries. He assessed her as having a 15% psychiatric impairment, 6% being a primary reaction, 6% secondary and 3% due to unrelated factors. 15 The defendant tendered a medical report from Mr Dooley, Orthopaedic Surgeon, dated 18 October 2011. Mr Dooley assessed Ms Sapazovski for the purposes of her S 98C impairment claim on 17 October 2011. He obtained a history from her that she injured her left wrist and right shoulder as a result of falling a distance of 2-3 metres on 4 February 2008. He reported that; She thinks she may also have suffered soft tissue injuries to her neck and lumbar spinal areas. On examination, Mr Dooley reported that her cervicothoracic spine was normal and that she had a full painless range of movements in her cervical spine without any evidence of muscle spasm. He also noted that a CT scan of her lumbosacral spine on 26 July 2010 showed multi level disc and facet joint degenerative changes. He reported that the probabilities are that in the fall she did not sustain any soft tissue injury to either her lumbosacral spine or her cervicothoracic spine. He assessed her as having a 12% impairment to the right upper limb which converts to a 7% whole person impairment. On the basis of his assessment, the defendant accepted liability pursuant to S 104B of the Act for injuries to the left wrist and right shoulder and determined that Ms Sapazovski had a whole person physical impairment of 7% which converted to a 10.4% impairment benefit rating entitling her to the sum of $13,310. Conclusion 16 There is no medical evidence to support a finding that Ms Sapazovski sustained an injury to her neck in the course of her employment between 1 September 2007 and 4 February 2008 or on that date as a result of the fall. Whilst I accept her evidence that she fell from the trolley and landed on her buttocks and then upper back, she made no immediate complaint of neck pain 7 DECISION
and in fact did not complain to Dr Ristevski of any neck pain following the fall until almost 5 years after the event. On that basis he did not arrange for any radiological investigations to be performed on her cervical spine. It is not disputed that she previously injured her neck in the motor vehicle accident on 2 August 2000 which consisted of soft tissue injuries and the possible aggravation of an underlying degenerative condition. However, in the absence of a contemporaneous complaint of neck pain to her doctors during the relevant period and following the fall coupled with the lack of radiological evidence of injury, I am unable to find that Ms Sapazovski sustained an injury to her neck arising out of or in the course of her employment. 17 For similar reasons, I am unable to find that she sustained an injury to her back during the relevant period or on 4 February 2008. Ms Sapazovski previously complained of back symptoms in the 1990 s and sustained injury to her back in the motor vehicle accident in August 2000. Her evidence was that she continued to experience back pain from then and the records reveal regular complaints concerning back symptoms to Dr Ristevski. However, if she injured her back in the relevant period or on 4 February 2008, it is inexplicable as to why she would not have complained to him of that fact after the initial complaint to Dr Win of back pain on 8 February 2008. The records reveal no complaint of back symptoms to Dr Ristevski until 30 January 2010, nearly 2 years later. Whilst the mechanics of the fall may be consistent with a person sustaining a traumatic injury to their back or aggravating a pre-existing underlying degenerative condition, the absence of complaint to her treating doctor when considering her past history of complaint to him when experiencing back pain, leads to a conclusion that she did not sustain an injury to her back in the relevant period or as a result of the fall. The findings in relation to her neck and back are also consistent with her failure to list either body part as being injured in her initial Claim Form dated 21 February 2008. 8 DECISION
18 Although I accept that the fall from the ladder caused Ms Sapazovski to be scared and fearful of heights, there is no medical evidence to support that these symptoms amounted to a mental injury within the meaning of the Act. In fact her first complaint of feeling anxious to Dr Ristevski did not occur until 29 March 2010, more than 2 years after the fall, and on the date she was terminated and at the time of the illness of her brother. The majority of further complaints of feeling anxious from that date relate to non work issues. Apart from Dr Ristevski stating that the fall may have aggravated her insomnia and anxiety, there is an absence of psychiatric opinion supporting the nexus, particularly where there is a prior history of post traumatic stress disorder. On this basis, I am unable to find that Ms Sapazovski sustained a mental condition in the form of anxiety or depression in the claimed period and/or as a result of the fall on 4 February 2008. 19 The proceedings will be dismissed. ` 9 DECISION