................................SGD........................................

WORKER'S COMPENSATION - Australia Post - whether work injury has resolved or is the cause of ongoing pain in neck and shoulders - conflicting medical evidence - whether spinal degeneration - whether there is need for radical surgery - 2 separate determinations - first decision set aside in part; second decision affirmed

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

1. Mr Ozcan Yagmur (the Applicant), applied for review of a decision by Australia Postal Corporation (Australia Post) (the Respondent) dated 2 February 2022 which affirmed a primary determination of 6 December 2021. The determination affirmed that Australia Post:

was liable, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for "multiple joint strain right thumb, 4/5th finger tips" under section 14 of the SRC Act for a closed period only, being from 5 October 2021 to 9 October 2021, with the primary delegate determining that from close of business on 9 October 2021, you have no present entitlement to compensation under sections 16 and 19 of the SRC Act for your claim. > > Further, Australia Post determined that it was not liable, pursuant to section 14 of the SRC Act for the diagnosed "left shoulder impingement, RC tear, bursitis", and alleged to have been sustained on 5 October 2021.

2. On 8 March 2022, Mr Yagmur sought review of that decision by the Administrative Review Tribunal (the Tribunal), stating that he disagreed with the decision as it was incorrect in law and fact.

1. Mr Yagmur applied for review of a decision by Australia Post dated 22 May 2023 which affirmed a primary determination of 27 February 2023. The determination affirmed that Mr Yagmur was not entitled to compensation for "neck bulge (3-4)" with an injury date of 5 October 2021. Determining:

I find it likely that you do suffer from a condition affecting your cervical spine, being an underlying neck condition, i.e., a 'disc bulge at C3-4.' The evidence of Dr Moran supports this finding. > > However, to be compensable, this condition will need to be a 'disease' for the purposes of section 5B of the SRC Act, and would therefore need to be contributed to, to a significant degree, by your employment. > > In view of the evidence before me, including that reviewed on your previous claim for compensation, particularly the opinion provided by Dr Haynes shortly after your reported injury, I find it unlikely that employment with Australia Post Group contributed to your cervical spine condition, or to an aggravation of your pre-existing condition. > > While I note that Dr Moran has commented that symptoms of neck pain have been triggered by your reaction to a crushing injury to your right hand, essentially a forceful effort with his left arm to separate the trolleys and to pull your hand out from the situation where it was jammed between your trolley and one left in the way, I am not satisfied that the evidence that I have reviewed supports his claims. Specifically, the CCTV footage reviewed of the incident does support that you did strike your hand on a trolley when manoeuvring a trolley towards double doors, however, it does not support that there was any 'forceful effort used with your left arm to separate the trolleys.' > > Furthermore, I have had consideration of the contemporaneous opinion provided by Dr Haynes, who in his report of 21 November 2021, stated that you were seen manoeuvring a large metal cage while wearing gloves on both hands. He noted that your right hand struck another metal cage but there was no evidence of any injury to the neck, back or left shoulder. Additionally, Dr Haynes reiterated that he did not consider it consistent that you could have sustained any left shoulder, neck, or back injury, as a result of an injury to the right hand. He added that there is no objective evidence of any aggravation of any pre-existing or underlying disease occurred as a result of the injury to the right hand on 5 October 2021.

2. On 29 May 2023, Mr Yagmur sought review of that decision by the Tribunal, stating that he disagreed with the decision as it was incorrect in law and fact.

1. Mr Yagmur is 50 years of age, married with three children. Mr Yagmur completed year 12 and has been employed by Australia Post since 2001, as a consultant at Star Track handling major accounts dealing with misdirected mail and returns. His role is primarily computer based but also involves some manual work.
2. On 5 October 2021, a Safety Event/Investigation - Output Form was completed by an Australia Post employee in which they record:

When Ozcan Yagmur was moving a blue cage out of reverse logistics the Handel of the cage which he was holding collided with a parked caged next to the doorway. > > Immediate Actions Ozcan immediately told his fellow workers what had happened and Denise Onte called myself straight away to perform first aid. > > A cold pack was placed on his right hand. > > And was being sent to see a doctor to get an X-ray. > > Potential Severity: Insignificant-First aid /no lost time.

3. On 7 October 2021, Dr S.S.K. Wong (Mr Yagmur's long term general practitioner) provided Mr Yagmur with a certificate of capacity which advised Mr Yagmur that he was unfit for employment from 6 October 2021 until 14 October 2021 as he had sustained a soft tissue injury to R hand esp 5th finger whilst at work on 06/10/2021.
4. On 14 October 2021, Australia Post completed a Rehabilitation Initial Assessment Report which recorded

Injury History > > Mr Yagmur reported that he sustained his right hand injury on 5/10/2021 when he was moving a blue cage out of reverse logistics at which time the handle of the cage he was holding collided with a parked cage on the inside of a doorway. Mr Yagmur reported that he pulled his right hand from the collision of cages and reported his injury to Denise and was provided with first aid. Mr Yagmur reported that Adam (First Aid Officer) attempted to assist Mr Yagmur schedule an appointment with a Jobfit/WorkReady Doctor, however, they were unable to get Mr Yagmur in and as a result, Mr Yagmur consulted with his GP via telehealth (due to COVID restrictions) on 6/10/2021. Mr Yagmur was referred for and underwent an X-Ray on 6/10/2021 whereby it concluded Mr Yagmur did not sustain any fractures and therefore was diagnosed with a soft tissue injury of his right hand and 5th finger. > > Mr Yagmur reported that he had begun experiencing pain in his right upper limb and neck and left shoulder since a few days post sustaining his right hand/thumb injury. > > Mr Yagmur reported that he has continued to experience pain, swelling and bruising in his right hand and arm to his shoulder since his injury on 5/10/2021. Mr Yagmur ceased work on 5/10/2021 following his injury and has not yet returned to work. > > Current Reported Symptoms > > Mr Yagmur reported the following with regards to his current pain symptoms: > > - 10/10 pain in thumb and fifth finger at it's worst as per the Visual Analogue Scale (0=no pain, 10 = worst possible pain); > > - Experiencing pain in right side neck and arm, and left side shoulder. Reported unable to raise left upper limb above head due to 10/10 pain; > > - Bruised and swollen and thumb and hand, 10/10 pain at its worst, however, pain has reduced (nil score out of 10 provided); > > - Utilising thumb and raising left hand above head aggravate pain symptoms; > > - Analgesia, neck range of motion stretches and pendulum swings assist to alleviate pain symptoms; > > - Reported difficulties sleeping > > Psychological Factors (i.e. social support, adjustment to disability and leisure activities) > > Mr Yagmur undertook the Orebro Musculoskeletal Pain Screening Questionnaire - Short Form (OMPSQ-SF). His results, a score of 88, indicated a high risk (65+) for future work disability. As a result of a score above 48, Mr Yagmur was offered Early Matched Care for Australia Post (EMCAP). EMCAP was discussed with the Mr Yagmur and was accepted via telephone. > > Recovery According To Evidence Based Practice > > Disability advisor reported the following prognosis and recommended recovery durations for a multiple joint strain right thumb and 4/5th finger strain in a medium job role is 26 days (non-operative medical management and rehabilitation). > > Summary of Initial Rehabilitation Assessment & Next Actions > > - Rehab to continue to liaise with all key stakeholders; > > - Fortnightly contact with Mr Yagmur to facilitate recovery and assist with rehabilitation goal setting; > > - Ongoing updates to compensation and workplace; > > - Rehab to refer Mr Yagmur for EMCAP and encourage use of EAP for additional support as needed. > > - StarTrack, Sharps Road Facility, can offer Mr Yagmur modified duties with regards to reduced lifting restrictions as guided by his Treating Practitioners**.**

5. On 18 October 2021, Mr Yagmur submitted an Australia Post claim for Compensation and Rehabilitation for an injury he sustained on 5 October 2021 to his right hand and arm during working hours.
6. On 9 November 2021, EMCAP completed an initial assessment of Mr Yagmur for consideration of early intervention treatment following a workplace injury:

Case formulation with relevance to inventory scores: (biopsychosocial factors, comorbidities, identified barriers of workplace perceptions, job satisfaction, financial impacts, include any protective/supportive factors, client strengths/resilience) > > • Mr Yagmur reported living with wife and two daughters. Wife is supportive with client's condition. > > • His ability to engage in social activities and events has reportedly declined as a result of this condition. > > • Mr Yagmur presented as reactive to stress and holds quite negative perceptions toward his ability to recovery from his injury. > > • The client had heightened emotions during the initial assessment; talking with rapid pace and more often using negative statements towards condition, prognosis, support from leadership and towards the organisation. > > • A major barrier to success is Mr Yagmur's perception that he is experiencing bullying and harassment from the workplace to return when he feels unfit to do so. > > • Very angry, disappointed about how Australia Post has handled his case which, according to the client, is causing significant stress and anxiety. > > • Mr Yagmur appears to be experiencing significant amounts of stress, defensiveness and agitation when the topic of returning to the workplace is raised, stating that he would like to be 'left alone'. > > • Outcomes of pre-treatment inventory results demonstrate that Mr Yagmur is experiencing considerable pain severity and interference, clinically significant symptoms of distress as noted from the DASS results, and significant difficulties with management of his physical and emotional self in recovery and rehabilitation focus. Treatment recommendations, client goals including return-to-work plan, and agreed actions to address barriers: (relationships - family/work, other physical/mental/emotional health) > > • Based on the presenting biopsychosocial barriers present for Mr Yagmur, it is recommended that he engage in addressing said barriers through community support and clinical services such as EAP, physiotherapy and/or a mental health care plan to learn strategies for pain management. > > • It is in my clinical judgement to recommend that Mr Yagmur not continue with the EMCAP program at this point in time as current barriers would likely prohibit his ability to engage in the intentions of this service; and assisting with his transition back into the workplace. Given the significant pre-test inventory scores, and potential risk for this client, it is my opinion that he is referred by his GP for a more thorough mental health assessment.

7. On 6 December 2021, Australia Post accepted liability under section 14 of the SRC Act for a section 5A (Injury) for "multiple joint strain right thumb, 4/5th finger tips" but denied liability under section 5B (Disease) for Mr Yagmur's claim for "L, Shoulder impingement, RC tear, Bursitis". Noting in their reasons:

I have considered the evidence of Dr Wong, Fernando, Almadari and Haynes and other information provided with your claim. I am satisfied that you have suffered an injury, i.e. "multiple joint strain right thumb, 4/5th finger tips" that arose out of or in the course of your employment with Australia Post Group Section 5A (Injury) of the SRC Act. > > To consider your worker's compensation claim in relation to "L, Shoulder impingement, RC tear, Bursitis" I need to determine whether your employment with Australia Post significantly contributed to your medical condition. > > Having considered the evidence available to me I am not satisfied your employment with Australia Post has caused and/or significantly contributed to your claimed condition, i.e. "L, Shoulder impingement, RC tear, Bursitis", as required under sections 5B (Disease) of the SRC Act. Dr Haynes clearly stated the incident that occurred on 5 October 2021 could not have caused an injury to your neck, back or left shoulder. Consequently, liability has been denied for "L, Shoulder impingement, RC tear, Bursitis". > > Furthermore there is insufficient evidence to substantiate that the injury was caused during your employment with Australia Post. > > Dr Haynes had indicated that your right hand injury had resolved and further added he considered you did not require any time off work. However I have accepted liability for the period 6 to 8 October 2021 inclusive for loss of earnings in relation to your accepted work related condition in accordance with section 19 of the SRC Act.

8. On 2 February 2022, Australia Post affirmed its determination concluding:

In summary, Dr Haynes stated that after consideration of the further information provided, his opinion in regard to the injury causation has not changed. He stated that the incident reported to him by yourself was not consistent with any ongoing significant injury to the right hand or to the neck or right shoulder. He added that observation of the video footage did not in fact show any movement which should cause any injury to the neck or shoulder. > > Dr Haynes added that based on his examination and assessment, there was in fact not any evidence of a specific diagnosis in regard to your right hand condition. He added that he did not consider there to be any evidence that any left shoulder condition was caused or aggravated by employment or the incident of 5 October 2021, because observation of footage did not show any movement which could have caused injury to the left shoulder. > > Dr Haynes stated that he maintained his opinion that any contusion to the right hand had resolved and did not consider that any further treatment or incapacity is required. > > I have carefully considered the reasons and submissions made by your lawyers, including the report provided by your physiotherapist, Mr McCann, plus the results of the ultrasound of your left shoulder. However, I am satisfied that the medical evidence on file, specifically that provided by Dr Haynes, supports that firstly, you do not presently suffer the effects of any work-related injury to your right hand and secondly, that you do not suffer an injury to your left shoulder that was caused by, or significantly contributed to by your employment with Australia Post, specifically the incident on 5 October 2021. > > As noted, Dr Haynes had opportunity to conduct a physical examination and assessment of your condition, and also had opportunity to review CCTV footage of the 5 October 2021 incident, stating that you suffered a contusion injury to your right hand, particularly involving the right little finger, which he considered minor and would not have required any incapacity for work, nor was any ongoing treatment required. Further, Dr Haynes was of the opinion that you had not suffered any injury to your left shoulder or neck as a result of the incident of 5 October 2021. > > In view of the reasons set out above, I am satisfied that the decision finding that at COB 9 October 2021, you have no present liability under sections 16 and 19 of the SRC Act for your claim for "multiple joint strain right thumb, 4/5th finger tips" was correct. Further, I am satisfied that, relying on the specialist opinion of Dr Haynes, that you have not suffered an injury to your left shoulder that has caused by, or significantly contributed to by your employment with Australia Post Group.

9. On 23 November 2022, Mr Yagmur submitted an Australia Post claim for Compensation and Rehabilitation for an injury he sustained on 5 October 2021 at work to his neck, shoulder and arm, describing the injury as disc bulge at C3-C4.
10. On 27 February 2023, Australia Post denied liability for Mr Yagmur's claim finding:

Having considered the evidence available to me I am not satisfied your employment with Australia Post has caused a significant contribution to your claimed condition, i.e. "neck (disc bulge 3-4)", as required under section 5B (Disease) of the SRC Act. Dr Haynes clearly stated the incident that occurred on 5 October 2021 could not have caused an injury to your neck, back or left shoulder. Consequently, liability has been denied for "neck (disc bulge 3-4)".

11. The hearing was heard in-person on 24 July 2025 and via a hybrid model on 25 July 2025. Mr Yagmur was self-represented with assistance from his brother. Australia Post was represented by Mr Ray Ternes of counsel, instructed by Ms Leanne Kellett Litigation Officer Australia Post Group.

1. Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
2. Section 4 of the SRC Act defines an ailment to mean "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)". Relevantly, the interpretative provision at section 4(1) provides that the words injury and disease have the meanings detailed in sections 5A and 5B respectively 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.

1. Compensation under the SRC Act can be provided for medical expenses, being treatment that was reasonable for the employee to obtain in the circumstances (section 16), and for incapacity for work (section 19). Compensation can also be provided for injuries resulting in permanent impairment (section 24) and for non-economic loss (section 27).

(a) Has Mr Yamgur suffered an injury (disease) and, if so, has his employment at Australia Post contributed to that condition(s) or the aggravation of that condition(s) to a significant degree? > > (b) Has Mr Yagmur suffered an injury (other than a disease) and, if so, did it arise out of, or in the course of, his employment with Australia Post? > > (c) If the answer is yes, is Australia Post liable to pay compensation?

1. The Tribunal had access to clear CCTV footage of Mr Yagmur injuring his right hand on 5 October 2021. The CCTV footage clearly show Mr Yagmur, wearing a face mask and gloves, moving a blue metal cage out of reverse logistics and colliding with a parked metal cage on the inside of the doorway.

hurt R hand to send photo

Reason for contact:

R hand injury

Actions:

Diagnostic Imaging requested: ? # R 5th finger exclude #, X-ray - Hand (R). Send imaging reports to My

Health Record.

photos 2x no thumb seen 5th finger is bruised at mid-section no subungal haematoma 5th finger needs to exclude #

Reason for contact:

advice

Certificate Supplied

Actions:

Letter Created to .

Letter Printed to .

told by physio has soft tissue pain will take time to heal

emailed cert

Visit type:

Telehealth Consultation

still sore getting anxious

cert 21/10/2021 to 1/11/2021

his injuries will take time

Reason for contact:

Certificate Supplied

Visit type:

Telehealth Consultation

still in pain warned to keep strong analgesia to a min

must attend any request for exam but I will be the DR to treat him

happy to amend cert to include all Dx.

Realtime Prescription Monitoring

(11/11/2021 17:24:04): Green alert prompted.

Reason for contact:

Advice

Visit type:

Surgery Consultation

still in pain esp L shoulder & R thumb & 5th finger Examination:

ROM R hand L sh abd 90 rot 1/3 had U/S at Tristar report to be sent to me

Reason for contact:

Certificate Supplied

Actions:

Letter Created to.

Letter Printed to.

large anxiety response to his injuries which are soft tissue need report U/S may need cortisone injection to L shoulder try to avoid further test esp MRI to his back.

Visit type:

Telehealth Consultation

msg to call mobile

Reason for contact:

msg

Procedures:

msg

fully discussed letters can see union but not to spend too much chasing a small potential reward

Visit type:

Surgery Consultation

had a long chat with patient re injury advised pt to seek legal advice re denied claim

re R hand may start gradual RTW

Reason for contact:

Certificate Supplied

Visit type:

Surgery Consultation

Reason for contact:

Review

Actions:

Pathology requested: FBE; UECR; LFT; TSH; FBS; FBchol TG & HDL & Vit D. Send pathology reports to

My Health Record.

seeing lawyer advised him to follow their advice

I am worried he has a mindset that work never treated him well

I agree he has an acute R hand injury m & I covered him up to 6/52

Examination:

he has a residual mallet injury to R 5th finger

he needs to move on

amended WC cert typing error s/b Dec 2021

may need gastroscopy if dyspepsia

Dr Graeme Hall, Radiologist, on 19 October 2021 commented on an X-ray of Mr Yagmur's right hand:

Clinical History: Exclude fracture. > > Findings: Normal alignment. No fracture is detected. The joints appear well preserved. > > Conclusion: No significant acute injury is seen.

Dr Sundeep Pasricha, Radiologist, on 19 October 2021 commented on a Shoulder Left Ultrasound:

Clinical Indications: > > Impingement bursitis > > Findings: > > Long Head Biceps: Intact and enlocated. > > Subscapularis: Intact. > > Supraspinatus: 11x12mm full thickness tear of the anterior and mid fibres. > > Posterior fibres appear intact. > > Infraspinatus: Intact. > > Bursa: Thickened > > Dynamic Study: Bursal impingement with pain on abduction 40 degrees. > > AC joint: Normal. > > Conclusion: Full thickness partial width tear of the anterior mid fibres supraspinatus. > > Thickening of subacromial/subdeltoid bursa with bursal impingement on abduction.

Dr Phillip Hayes, Consultant Occupational Physician, in a medicolegal report of 25 November 2021 opined Mr Yagmur sustained a contusion injury to his right hand when the hand was crushed between two cages, on 5 October 2021. Any such contusion has now resolved. Dr Hayes noted:

At the time of my assessment, I did not consider that Mr Yagmur was suffering from any diagnosable condition related to any injury, sustained on 5 October 2021. I do not consider it consistent that he could have sustained any left shoulder, neck or back injury, as a result of an injury to the right hand. > > Noting that ultrasound studies have been reported as showing a left shoulder rotator cuff tear, it does appear that Mr Yagmur suffers from a degenerative left shoulder condition. There is no objective evidence that the injury to the right hand affected in any way to any left shoulder condition. > > There is no objective evidence of any aggravation of any pre-existing or underlying disease occurred as a result of the injury to the right hand on 5 October 2021.

Dr Hayes, opined in a supplementary medicolegal report of 28 January 2022 that:

I note that I viewed footage of the workplace incident which had occurred on 5 October 2021. Mr Yagmur was seen manoeuvring a large cage while wearing gloves and I noted that the right hand struck another metal cage. I did not consider that the incident viewed should be the cause of any significant injury to the neck, back or left shoulder. I considered that the incident was consistent with a contusion to the right hand. > > I note the letter provided from lawyers Slater and Gordon dated 22 December 2021 disputing my opinion that any rotator cuff tear could be considered degenerative or pre-existent. I also note the information that Mr Yagmur has complained of ongoing pain and restriction of movement in his right hand. I note that, at the time of my examination of Mr Yagmur's right hand, he was able to demonstrate a full range of motion in both hands. > > I noted the letter provided from physiotherapist Paul McCann dated 15 October 2021. Mr McCann reports injuries on 5 October 2021, which caused Mr Yagmur to jam his hand and jar his neck "in a reflex response to try and pull away". This allegation is not supported by the video footage which did not show any such movement at the time Mr Yagmur injured his right hand.

Dr Cephas Kamba, Radiologist, on 14 February 2022 commented on an MRI:

Left SHOULDER, Cervical SPINE AND RIGHT HAND MRI > > CLINICAL HISTORY: > > Cervical radiculopathy. > > Internal derangement left shoulder. Symptomatic right hand. > > FININGS > > MRl Right hand > > Coronal T2FS and T1FS. > > Axial T2 FS and PD. > > Sagittal PDFS. > > The, TFCC Is intact > > There is no bone oedema. > > Normal FCU, FDL, FPL and FCR tendons. > > Normal APL, EPB, ECAL, ECRB. EPL, extensor digitorum, extensor digit minimi and ECU tendons. > > Normal median and ulnar nerves. > > There are no signs of significant arthropathy. > > There is no subcutaneous oedema. > > CONCLUSION: > > Normal examination. > > MRI cervical spine > > Sagittal T1 and T2. > > Bilateral T2 coronal oblique. > > Axial T2 C2-T2. > > There is developmental partial ankylosis of C2 and C3 vertebral bodies. > > There is mild degeneration of C3-C4, C4-C5, C5-C6 and C6-C7 intervertebral discs. > > There is a central and right paracentral posterior disc protrusion at C3-C4 level that is causing severe spinal canal stenosis. > > There is no intrinsic hyperintense signal in the spinal cord to suggest myelomalacia. > > There are central posterior disc bulges at C4-C5 and C6-C6 levels that are not causing significant spiral canal stenoses. > > There is no significant spinal canal pathology at C6-C7 and the imaged upper thoracic spinal levels. > > The craniocervical Junction anatomy is normal. > > There is no intra dural or extradural mass lesion. > > There is normal vertebral alignment. > > There are normal bilateral facet joint's and imaged neck space anatomy. > > There are mild impingements of the left C6, C6 and C7 nerve roots in the respective exit foramina. > > The rest of the exit foramina are capacious. > > CONCLUSION: > > 1. There are mild impingements of the left C5, C6 and C7 nerve roots in the respective exit foramina. > > 2. There is severe spinal canal stenosis at C3-C4 level that's not causing cervical spinal cord myelomalacia. A neurosurgical consult is advised for further management. > > 3. There is multilevel mild cervical spondylosis. > > Left shoulder MRI > > Axial and sagittal PD FS and PO. > > Coronal PD FS. > > There is mild to moderate supraspinatus tendinosis. > > There is no supraspinatus tendon teer. > > The supraspinatus muscle belly is normal. > > There is marked distension of the subacromial/subdeltoid bursa that is consistent with a bursitis. > > There is a type II acromion. > > Normal ACJ. > > Normal coracoclavicular, coracoacromial, coracohumeral and glenohumeral ligaments. > > Normal infraspinatus, teres minor and subscapularis tendons. > > The infraspinatus, teres minor and subscapularis muscle bellies are normal. > > The long head of the biceps is located in the bicipital groove and is intact. > > The biceps superior labral complex is intact. > > The glenoid labral cartilage is intact. > > The glenoid and humerus head chondral surfaces are normal. > > There is no bone oedema. > > Normal suprascapular and spinoglenoid notches. > > Normal quadrangular space. > > CONCLUSION: > > 1. There is mild-to-moderate supraspinatus tendinosis. > > 2. There is no rotator cuff tear. > > 3. There is a severe subacromial subdeltoid bursitis.

Dr V.I Karlov, Consultant Physician, in a report of 21 February 2022 to Dr Wong (Mr Yagmur's GP) opined on an MRI:

The right band didn't show any severe damage although there is mild dislocation of his finger. There is a mild deformity. > > The left shoulder showed some mild to moderate Supraspinatus tendinosis. but there was a severe Subacromial/Subdeltoid bursitis. > > The cervical spine, however, was more concerning. There is mild impingement of the left C5, C6 and C7 nerve roots in the respective exit. foraminal but there is severe spinal canal stenosis at the C3/4 level but not causing severe cervical myelomalacia arid a Neurosurgical opinion is recommended. > > Although there is no clinical evidence of cord damage, and I have sought a neurosurgical opinion.

Dr Micheal Wong, Neurosurgery, in a report of 1 August 2022 to Dr Wong (Mr Yagmur's GP) opined on an MRI:

On examination, this patient had no focal neurological deficit in his upper or lower limbs. Examination was otherwise unremarkable. > > I reviewed this patient's MRI scan of the cervical spine done in February this year. This demonstrated a right paracentral C3/4 disc osteophyte complex, causing moderate central canal stenosis and moderate to severe right-sided foraminal stenosis. There is also a C4/5 disc osteophyte complex, worse on the left side, causing moderate to severe left-sided foraminal stenosis. There is also a C5/6 disc osteophyte complex, causing mild to moderate bilateral foraminal stenoses. Given his distribution of pain, I explained to Ozcan that the most likely symptomatic disc level is the C3/4 and C4/5 levels. In addition, I also explained to him that on the scan, there is a congenital fusion of C2 to C3. I explained the treatment options for the C3/4, C4/5 disc osteophyte complex, canal and foraminal stenoses to Ozcan, including rest, analgesic medications/chronic pain treatment, and physiotherapy/physical therapy. Over the last 6 to 8 months, Ozcan has had a good trial of all these non-surgical treatment options, but has failed to improve his pain. His pain has deteriorated. I also explained to Ozcan that he could try a spinal injection. However, Ozcan does not want to have a spinal injection, because it may not permanently improve his pain. In addition, due to the canal stenosis, especially at the C3/4 level, I explained to Ozcan that he is also currently at risk of further neurological deterioration, such as paralysis or loss of sensation. Given the scan findings, I therefore advised him that the definitive surgical option forward would be a C3/4, C4/5 anterior cervical discectomy and fusion. I explained the risks and benefits of the surgery to the patient, and he is keen to proceed. As a result, I will send a letter to WorkCover to request funding for his surgery. I will let you know of any further progress.

Dr Peter Moran, Orthopaedic Surgeon, opined in a medicolegal report of 30 August 2022 diagnosed Mr Yagmur with a now resolved injury to the right hand, but also with issues pertaining to the cervical spine, and to the left shoulder. Dr Moran stated:

In the cervical spine, the major issue appears to be a central to right sided disc bulge at C3-4, immediately below a fused spinal segment (C2-3), a congenital anomaly. > > It is recognised that in the case of a longstanding fusion, the adjacent segment is prone to accelerated degenerative change as a result of additional stresses through this segment, and this is the basic mechanism by which changes seen on MRI scanning earlier this year have developed. > > Having said that, symptoms of neck pain have been triggered by Mr. Yagmur's reaction to a crushing injury to his right hand, essentially a forceful effort with his left arm to separate the trolleys and to pull his hand out from the situation where it was jammed between his trolley and one left in the way. > > With respect to his left shoulder pain, he has no signs of major structural damage to the shoulder, but his pain has certainly a consequence of chronic sub-acromial bursitis. This is usually associated with damage to the rotator cuff mechanism of a degree but in his case. there is no evidence of significant tendon tearing. His symptoms are, however, amenable to treatment, but not to physiotherapy. He would be advised to consider a sub-acromial bursa injection of local anaesthetic and corticosteroid and if this gave him significant but only temporary relief, he would need to consider an arthroscopic sub-acromial decompression and bursectomy which is likely to give a more long lasting result. > > With respect to his neck injury, I would expect that the aggravation of his underlying condition as a result of this dramatic event should subside in time, but I would accept that symptoms arising from the neck and to a degree an aggravation of pre-existing neck problems can be attributed to the work injury. > > Whilst his MRI scan reports impingement on a number of emerging nerve roots from the cervical region, there is no evidence of neurological symptoms or deficit arising from these x-ray changes.

Dr Moran, opined in a supplementary medicolegal report of 30 August 2023 that:

If the history and mechanism of injury as detailed in my initial report to you is correct, then there are some simple issues to confirm. > > Firstly, a soft tissue injury to the shoulder is consistent with the mechanism of injury. He has signs of persistent sub-acromial bursitis and impingement, which relates directly to the incident that he has described. > > The treatment is quite simple, initially with an injection of local anaesthetic and corticosteroid into the sub-acromial bursa, and if he does respond but the symptoms persist then a second injection is permissible but if again the response is not sustained then he would be ideally treated with arthroscopic sub-acromial decompression. To my knowledge, having reviewed his x-rays. he has not sustained a rupture of the rotator cuff mechanism, and therefore does not require a rotator cuff repair but rather a simple, day patient procedure to relieve pressure on the inflamed rotator cuff mechanism and allow resolution of pain in time. This operation is of low risk. and significant complications are rare. He will require post-operative physiotherapy.

Dr Graeme Brazenor, Neurosurgery, opined in a medicolegal report of 19 January 2024 Mr diagnosed Mr Yagmur is now suffering no condition in any way related to his employment by Australia Post. Indeed, the weight of evidence is that he is suffering from no condition whatsoever, other than the beginning of degenerative processes which one meets in one's fifth decade. Dr Brazenor stated:

On careful consideration of the multiple modalities of evidence, all of which are concordant, I have been forced to the following conclusions: > > 1. The CCTV footage is interconvertible: there was absolutely no bodily reaction when Mr Yagmur briefly jammed his right hand between trolleys. He shook it, walked off normally, and came back with a man who I assume is his supervisor. There was no reaction of his body, not in cervical spine, not in right shoulder, and not in low back at the time of this very brief, zero-energy injury. I agree entirely with the opinion of Dr Philip Haynes that there was no possibility of injury to cervical spine, lumbar spine or shoulders in the brief hand trauma of 5 October 2021. > > 2. The reports of scans on cervical spine and right shoulder are all concordant in demonstrating age-appropriate degenerative changes only. Even if they demonstrated changes consistent with injury, those changes could not be related to the low energy trauma to the right hand on 5 October 2021. > > 3. Accordingly, taking all modalities of evidence into account, the only explanation which fits the facts of this case is that since December 2021 Mr Yagmur has been perpetrating a ruse with respect to neck, shoulder and low back symptoms in relation to the 5 October 2021 incident. Since then, he has been fully fit to resume normal duties at work without restriction and can be expected to work fulltime until normal retiring age.

Dr H S Zadeh, Radiologist, on 17 October 2024 commented on a cervical spine CT scan:

IMPRESSION: > > Osteophytosis and disc calcification cause spinal canal stenosis at C2/3, C3/4 and C4/5. This could compress the descending nerve roots. > > Multilevel foraminal narrowing cause compression of right and left exiting nerve roots, as described above. > > No facet joint arthrosis or abscess.

1. Mr Yagmur submitted:
   • The injury he suffered at work on 5 October 2021 has left him in debilitating pain in his neck and shoulders and has resulted in permanent damaged to his right hand.
   • The force of the accident was so significant he crushed his hand and jerked his body on impact resulting in injury not only to his right hand but left shoulder and neck.
   • He did not realise the extent of the impact of his injuries for some time as the pain in his hand on impact was overwhelming and he was running on adrenaline.
   • Numerous radiological scans confirm the extent of his injuries.
   • As he had not suffered pain in his neck and shoulders prior to the injury to his hand on 5 October 2021, the force of the impact was the logical cause of his neck and shoulder pain.
   • His physician has advised him the degeneration in his neck cannot be explained as age related; that the MRI report shows damage beyond normal ageing.
   • He has tried all treatments available physiotherapy, pain relief but nothing is working, and he is not getting better.
   • The severe spinal canal seen at the MRI at C3-C4 and discs damaged at C46-C6 are causing pain all the way down his neck and arms, he get tingles in his arms, shoulder blades, everything just feels heavy and constantly burning most of the time if he is not resting.
   • Australia Post has not treated him, a dedicated employee of over 24 years, with any respect or dignity during this process, not one Manager came to enquire about his health or well after the incident, he has been made to feel like a criminal.
   • The opinions of Medico-legal experts who had only examined him once should not be preferred to his long-standing treaters who have been examining him and treating him for many years.
   • His pain is such the only logical treatment available to him is the surgery proposed by Dr Micheal Wong.
   • He did not deny he was suffering from workplace stress leading up to the incident, that he was aggrieved by the way he and other long-standing employees had been overlooked for promotion, indeed he had sought to call his union delegate as a witness to address many of his concerns about his treatment by Australia Post.
   • His Comcare claim was for the pain he continues to suffer as a result of his workplace accident and not a proxy for dealing with his workplace grievances.
   • He is struggling with all aspects of daily living, spends most of his time sitting or lying trying to find a comfortable position with a pillow to support his neck and can only manage to work 15 hours a week.
   • The accident has taken an enormous toll not only on himself, but also his family, as the sole breadwinner in the family, his inability to work and medical expenses have greatly impacted their financial position. Additionally, he can no longer interact with his children as he did before.
   • The accident on 5 October 2021 has resulted in him suffering from both an injury to his right hand and an aggravation of the underlying pathology in his left shoulder and neck.
2. Mr Yagmur's previous legal representative submitted, in their letter of instruction to Dr Moran, Mr Yagmur's history of injury:

My client instructs that on 6 October 2021, he pulled a large trolley loaded with returns out of the office and into the floor for processing. He instructs that the trolley was very heavy. He instructs that he did not notice another parked trolley behind him. As he passed the parked trolley, he crushed his right hand between the trolley he pulled and the parked trolley which instantly extreme pain due to the sheer weight of the two trollies. In a reflex action, he used his left arm to try and pull the heavy trolley off his right hand, which was done whilst standing behind the trolley. > > My client instructs that he felt some pain in his shoulder at the time of the incident, however, the hand was excruciatingly painful and as such was his focus. > > He immediately reported the incident and first aid was performed. A cold pack was placed on his right hand and he was sent to see a doctor. > > He instructs that he sought medical attention soon thereafter, and was provided strong pain killers, which masked the pain in his shoulder. However, as my client took the pain killers as prescribed, he did not notice the pain until they were ceased in late October 2021. As the pain returned, my client realised there was an issue with his shoulder. He consulted with his GP who referred him for an ultrasound. > > On 18 October 2021, my client had an ultrasound of his left shoulder which reported "full thickness partial width tear of the anterior mid fibres supraspinatus. Thickening of subacromial/subdeltoid bursa with bursal impingement on abduction". > > On 25 October 2021, my client reported that he was experiencing issues sleeping due to his shoulder and neck and was seeing a physiotherapist for treatment.

1. In a written submissions from Mr Yagmur's previous legal representative, they contended in relation to the left shoulder injury:

(a) he sustained an "injury" to his left shoulder on 5 October 2021 for the purposes of s. 5A of the SRC Act, in the form of: > > (i) a "disease" under s 5B, being an "ailment" to which the Applicant's employment with the Respondent contributed to a significant degree: and/or > > ii) an "injury (other than a disease)" or an "aggravation" of an injury (other than a disease)" arising out of or in the course of his employment; > > (b) which resulted in impairment or incapacity for work, such that the Respondent is liable under s 14 of the SRC Act to pay the Applicant compensation.

2. In a written submissions from Mr Yagmur's previous legal representative, they contended in relation to the right hand injury:

(a) on 5 October 2021 he sustained the injury to his right hand; > > (b) which from 9 October 2021 to the present has given rise to an impairment or incapacity for work or the need for medical treatment such that the Respondent is liable to pay compensation under ss. 19 and 16 of the SRCA.

1. In a written submissions from Mr Yagmur's previous legal representative, they contended in relation to the neck injury:

(a) he sustained an "injury" to his neck on 5 October 2021 for the purposes of s. 5A of the SRC Act, in the form of: > > (ii) a "disease" under s 5B, being an "ailment" to which the Applicant's employment with the Respondent contributed to a significant degree: and/or > > (ii) an "injury (other than a disease)" or an "aggravation" of an injury (other than a disease)" arising out of or in the course of his employment;

(c) which resulted in impairment or incapacity for work, such that the Respondent is liable under s 14 of the SRC Act to pay the Applicant compensation.

1. Mr Yagmur felt compelled to address the testimony of Dr Brazenor which he found both troubling and deeply disturbing. Submitting that it was deeply concerning that a medical witness appeared to discount the legitimacy of radiologists, dismiss the judgement of a fellow specialist and presented as the sole authority who could be trusted to provide advice on Mr Yagmur's injury.
2. Mr Yagmur submitted the Tribunal should determine his matter on the medical facts and the truth, not the legal tactics designed to protect an organisation at the expense of an injured worker.
3. Mr Yagmur contended:
   • It was well established in administrative and compensation law that treating physicians who have been seeing a patient over time, monitoring their recovery and continually reviewing imaging hold greater evidentiary weight than doctors conducting single and brief assessments.
   • Medical assessments must be based on the totality of evidence, not just a visual interpretation of a single moment in time.
   • He had been transparent, honest and cooperative throughout this long and exhausting process.
   • Has seen every specialist, attended every appointment and provided every document asked of him.
   • The Tribunal should find Australia Post was liable for his neck and left shoulder injuries.
   • Australia Post should award full back pay from October 2021, cover all related medical costs past, present and future.
   • Australia Post should grant him a redundancy on mental health and workplace fairness grounds.

1. Australia Post submitted it accepted that Mr Yagmur had suffered a minor bruising injury to his right hand/finger/s on 5 October 2021 which resolved within a few days; requiring minimal medical treatment and resulted in incapacity for work for only a few days.
2. Australia Post submitted any need for medical treatment and any incapacity for work as a result of Mr Yagmur's injury had ceased by 9 October 2021.
3. Australia Post contended:
   • The CCTV footage of the incident shows a minor incident consistent with a trivial injury.
   • Mr Yagmur's hand was not 'crushed' between the two cages.
   • The X-Rays undertaken shortly after the incident showed no fracture.
   • Mr Yagmur did not use his left hand, arm or shoulder to release his crushed hand from between the cages.
   • Mr Yagmur did not show any reaction in the CCTV footage that he had suffered any significant injury from the incident besides a sore hand which he clearly shakes before walking off.
   • The Tribunal should prefer the opinions of Dr Haynes and Dr Brazenor, who were eminently qualified to comment on Mr Yagmur's injury.
   • Mr Yagmur was an unreliable witness.
4. Australia Post submitted in respect of the medical evidence, the Tribunal should rely upon Dr Brazenor's interpretation of the MRI scans of 21 February 2022 as he had reviewed the images themselves and not relied upon the radiologist report. That Dr Brazenor's assessment that the radiologist got it wrong should be accepted by the Tribunal as his assessment was vindicated by Mr Yagmur's cervical spine CT scan of 17 October 2024 and Dr M Wong's assessment. Submitting they all demonstrated that Mr Yagmur's was suffering from moderate narrowing of his spinal canal at C3/4 and C4/5 but it was not damaging his spinal cord and there was no significant narrowing of the outflow canals for his exiting nerve roots.
5. Australia Post submitted in respect of the medical evidence, the Tribunal should discount Dr Karlov's reports that Mr Yagmur had repeatedly mentioned and placed great reliance upon. Submitting it was abundantly clear Dr Karlov had not viewed the images himself but relied upon the radiologist report which has been shown to be incorrect by both Dr Brazenor and Dr M Wong.
6. Australia Post submitted the development of Mr Yagmur's symptoms have been greatly influenced by his belief in what the radiologist reported in February 2022 and then confirmed by Doctor Karlov in February 2022. Submitting that combined with Mr Yagmur's pre-existing anxiety and depression, together are more likely to have produced or magnified his neck symptoms and sustained them over any frank injury caused by the incident on 5 October 2021.
7. Australia Post submitted the Tribunal should make six findings of fact:

(i) Mr Yagmur sustained a contusion injury to his right hand in the incident on 5 October 2021, as this is entirely consistent with the CCTV footage before the Tribunal and the evidence of Doctor Haynes and Doctor Brazenor. > > (ii) Mr Yagmur did not jerk, jolt, jar, shake, or perform a reflex action or otherwise engage in any traumatic or forceful movement involving his neck or left shoulder to remove his hand from between the two trolleys in the incident on 5 October 2021, as this is entirely consistent with the CCTV footage before the Tribunal. > > (iii) Mr Yagmur did not sustain an injury to his neck or left shoulder in the incident on 5 October 2021, as this is entirely consistent with the CCTV footage before the Tribunal and the evidence of Doctor Haynes and Doctor Brazenor. That the opinions of Dr Moran and Dr Wong are not reliable as they are premised on the false foundation that Mr Yagmur experienced a forceful event to his left arm in the incident. > > (iv) Mr Yagmur obtained reasonably obtained medical treatment in relation to his right hand contusion injury; consisting of attending a General practitioner in the two days following the incident and obtaining an X-ray which showed there was no fracture. Anything beyond that was unreasonable for him to obtain in the circumstances. Again, this is entirely consistent with the CCTV footage before the Tribunal and the evidence of Doctor Haynes and Doctor Brazenor. Fundamentally, when you bang your hand you don't require much treatment. > > (v) Mr Yagmur did not suffer any incapacity for work as a result of the five October 2021 incident and relied upon the evidence of Dr Hayes. > > (vi) Mr Yagmur's right hand injury completely resolved by 15 November 2021, the day on which Dr Hayes' examined him at which he opined the injury had resolved.

8. Australia Post submitted Mr Yagmur suffered a frank injury to his hand in the 15 October 2021 incident which had resolved by 15 November 2021. Further, they submitted the Tribunal had no evidence before it that Mr Yagmur's claimed neck and left shoulder injury where an aggravation of an underlying injury. Further, the Tribunal could not find Mr Yagmur had suffered a disease in accordance with the SRC Act as there was no significant contribution from his work as incident involved no force affecting Mr Yagmur's neck and left shoulder.
9. Australia Post contented the Tribunal should affirm the determination as Mr Yagmur had not sustained an injury in his neck or left shoulder in the 5 October 2021 incident but a slight injury to his hand which had been accepted by Australia Post and compensated accordingly under section 16 and 19 of the SRC Act.

1. There is no dispute that Mr Yagmur suffered a frank injury at his workplace on 5 October 2021. There is no dispute that Mr Yagmur injured his right hand in the incident. What is in dispute is the impact of the injury on Mr Yagmur.
2. Mr Yagmur contends he suffered a devastating injury which caused significant damage to his right hand, neck and left shoulder. He argues that he has been left with permanent damage to his right hand and cervical spine, and lives in unbearable pain with significant financial stress, resulting in a diminished quality of life.
3. Australia Post contends the evidence clearly demonstrates Mr Yagmur was involved in a minor incident at his workplace which resulted in a trivial injury that has subsequently resolved.
4. The Tribunal did not share Dr Brazenor's view that Mr Yagmur had been perpetrating a ruse with respect to neck, shoulder and low back symptoms in relation to the 5 October 2021 incident. The Tribunal found Mr Yagmur to be a frank and credible witness who is experiencing pain. Mr Yagmur did not shy away from the fact he had issues with Australia Post prior to the incident, nor that he is aggravated at the way Australia Post has dealt with his Comcare claim or that he was suffering from depression.
5. The Tribunal accepts that Mr Yagmur suffered an injury on 5 October 2021, that the incident was not trivial and that he has made genuine attempts to return to work and deal with the pain he is experiencing.
6. However, the Tribunal considered Mr Yagmur's perception of the incident on 5 October 2021 and the subsequent impact on him has become distorted by his apparent extreme preoccupation with his sense of injustice at the hands of his long-term employee. The Tribunal relied upon Mr Yagmur's evidence:

To say that it was a dramatic event. I mean that that's just not accurate, is it? > > It is accurate. > > Your right hand was never trapped between the two cages, was it? > > It was trapped. > > Mr Yagmur do you wish to revise your evidence that you've given to the tribunal about this incident, having reviewed that that footage, > > As you see the cage is heavy. > > So once I crushed my hand, I had to do something to release it. > > And I did move it, and I did see my body twitch, part of my body, which and I had to use my left arm to push it a little bit. > > Mr Yagmur, there's absolutely no manoeuvring on your part required to release your right hand shown in that video but you disagree with that somehow? > > I disagree with it. > > All right. Well, the video speaks for itself. > > The cage is very heavy and you need to do something to move it, and the wheels aren't aligned properly as well. > > As you can see, there's a high volume of freight inside as some of them... can weigh up to about 20 kilograms... > > And for me not to do anything, and just leave my hand there, just the cage to move on its own is never going to happen. > > The question was where do you do something to release your hand? > > The whole body did shake. > > It shook. > > If you have a look at it properly, you see the whole body shake when once it's hit my hand...being crushed.

7. The Tribunal in this case had the unique advantage of access to CCTV footage of the injury on 5 October 2021. The Tribunal having reviewed the footage on numerous occasions did not concur with Mr Yagmur's evidence that his whole body shook or that he jerked his arm back or utilised his left hand to free his right hand from between the 2 cages. The CCTV does not accord with Mr Yagmur's assertion that he must have used force to remove his hand, this is not made out on the evidence before the Tribunal.
8. The description provided by Mr Yagmur to the Tribunal, various treaters and medico-legal experts in this matter simply does not accord with the footage before the Tribunal. There was no evidence before the Tribunal to find the incident of 5 October 2021 had resulted in him developing shoulder and neck pain. The Tribunal arriving at this conclusion relied upon its review of the footage and compared Dr Karlov's report of 10 February 2022 based on Mr Yagmur's recall of the event and that of Dr Brazenor based on a review of the CCTV footage.

He states he was pulling a rather heavy trolley where the wheels weren't properly aligned, and he found it difficult to control. There was another trolley next to it and in the course of manoeuvring his trolley he caught his hand between the trolleys

He jerked his arm back and as a consequence developed shoulder and neck pain.

Dr Brazenor, medicolegal report of 19 January 2024 stated:

This is a good quality CCTV clip of 1 minute and 20 seconds duration. At 00:25 (25 seconds) the masked man briefly catches his right hand between a stationary cage and the one that he is pulling. He does not look at the hand immediately but gives it a shake and examines it later in the footage, firstly taking off his glove, and briefly rubbing the hand.

What is pivotal in this video is that there is absolutely no truncal, right arm or right shoulder reaction to the impact. That is to say, there is no bodily or neck or right arm or shoulder reaction until some moments later when he shakes the hand once and turns to look at it.

The conclusion must be that any allegation of neck or right shoulder or low back pain from this minor bruising injury to the right hand cannot in any way be sustained. To injure any part of the musculoskeletal system requires energy expended, and clearly from this CCTV footage, no part of Mr Yagmur's musculoskeletal system in neck, right shoulder or low back was stressed, (even in the briefest or most subliminal way) at the time of this minor bruising to the right hand.

Comment: This operation is being proposed for purely degenerative changes, in a patient who is neurologically absolutely normal. I consider this to be extremely poor management in a personal injury litigant assessed only for the first time by Dr Wong.

1. The Tribunal, as stated earlier, does not suggest Mr Yagmur is lying to the Tribunal, various treaters or Comcare about the incident on 5 October 2021. The Tribunal accepts it is his firm belief that he was required to utilise force to separate the cages, and this is the cause of his pain. The Tribunal also accepts Mr Yagmur is not exaggerating his pain and the impact of the incident in attempting some fraud/ruse against his employer.
2. The Tribunal was impressed by Dr Wong's evidence and his treatment of Mr Yagmur's numerous health issues. The Tribunal did not dispute Dr Wong's evidence that Mr Yagmur's pain is genuine and is magnified by his chronic anxiety. However, the Tribunal had no evidence to support Dr Wong's assertion that Mr Yagmur's pain was work related and aggravated by the 2021 injury. Dr Wong's evidence to the Tribunal:

And do you think that injury has resolved or is he still suffering from it? > > No, no, it has not resolved and it will not resolve because the symptom he's got there are due to injuries that is unlikely to get 100% better. > > So which injuries do you think aren't likely? > > But he's got a problem, he's got persistent pain in his neck and he's seeing a specialist doctor, Victor Karlov for that and he's currently having treatment for it. > > Noted over the years that Mr Yagmur been stressed about work....Do you think that's impacting his perception of his pain? > > Well, he's got a lot of conditions, but that work injury aggravated his condition. > > And he's also got, basically, chronic anxiety, which he's getting treatment from his psychologist. > > Do you think his anxiety is conflating his pain? > > Well, pain is a very subjective thing. > > I do believe he's genuine and I do believe he has pain, but I think the bulk of his pain is coming from his work injury two or three years ago, I can give you the exact date if you need that. > > So I mean from your understanding from seeing him that you think that the incident where he had the hand in October 21 to now is all related. > > Well, it is my opinion that the injury in the 2021 aggravated and magnified his pain, which, don't forget this gentleman has chronic anxiety before the injury and he's been having pain since. > > And...I believe clinically that his pain is genuine, and his pain is work-related and his pain is from the aggravation of that 2021 injury. > > So the premise of your opinion that he has a work related neck and shoulder pain is that he jerked something in October 2021 at work. > > Have I got that right, correct. > > Yes, that is correct.

3. The Tribunal found, based on the evidence before it, Mr Yagmur's left shoulder and neck pain were not work related. There was no evidence which supported Mr Yamur's contention that the incident on 5 October 2021 had aggravated his underlying cervical spine pathology. The Tribunal relied on Dr Brazenor's medicolegal report of 19 January 2024 stated:

I also note in Dr Wong's record a report dated 14 February 2022 on magnetic resonance scans of left shoulder, cervical spine and right hand, at Epping Diagnostic Imaging, the investigation requested by physician Dr Victor Karlov: > > MRI Right Hand: No abnormality is found. > > MRI Cervical spine: > > This report describes "multilevel mild cervical spondylosis"; "mild impingements of the left C5, C6 and C7 nerve roots in the respective exit foramina"; and: "severe spinal canal stenosis at C3-C4 level that's not causing cervical spinal cord myelomalacia." > > MRI Left Shoulder: > > This concludes that there is "severe subacromial subdeltoid bursitis" and: "mild-to-moderate supraspinatus tendinosis." > > The report specifically states: "There is no rotator cuff tear." > > Comment: Thus, only degenerative changes are seen, and not those of a traumatic injury, and this is concordant with the fact that there is no evidence of trauma in the CCTV footage. > > Comment: Both the left shoulder ultrasound dated 18 October 2021 and the magnetic resonance scan dated 14 February 2022 specifically exclude rotator cuff tear, so Dr Roshan Fernando who has written these two consultation notes is mistaken with respect to shoulder injury. > > I asked Mr Yagmur whether, in the approximately 2.5 years since the injury, his clinical condition had improved at all, and he said that it has not. He said that he is "no better" and he held up his right hand to show me a slight flexion contracture at the proximal interphalangeal joint of the fifth digit. > > Comment: this is a degenerative phenomenon not uncommonly seen in males approaching 49 years as Mr Yagmur will be in eight days from now. It does not necessarily imply injury. > > Mr Yagmur, in continuing to answer my question as to whether or not his condition has improved in the last c. 2.5 years, went on to say that his neck has become worse, and his anxiety has become worse

Additionally, the Tribunal relied on Dr Brazenor's evidence to the tribunal:

Doctor Brazenor, could it be said that because he had no neck pain prior to the 5th of October, but then subsequent to the 5th of October he had neck pain, that therefore there's a causative relationship shown between the neck pain and the incident on the 5th?

No, you have to have energy.

You have to have injuring energy and there was no injuring energy to his neck or his shoulder or his lower back in that video.

And I cannot understand how anyone would doubt that.

1. The Tribunal, relying upon the evidence of Dr Moran and Dr Hayes, found that Mr Yagmur's hand injury had resolved. Dr Moran, medicolegal report of 30 August 2022 stated:

At the time of interview, I would consider that his condition had substantially stabilised, but there remains scope for improvement in his left shoulder symptoms, but also, there is the possibility of further aggravation of his cervical spine pathology, hence the need for neurosurgical assessment.

2. The Tribunal was troubled by Mr Yagmur's evidence that his only course of treatment to deal with his pain was to pursue surgery that had been suggested to him after one visit to Dr M Wong. Mr Yagmur had asserted on numerous occasions the Tribunal should consider his long-term treaters evidence over the medico-legal evidence as they had only viewed him on one occasion. But in the same breath, Mr Yagmur dismissed the opinion of his long-term treater preferring the view of a once-off visit to a neurosurgeon. The evidence before the Tribunal clearly indicated the recommended surgery was not considered reasonable by his long-term treaters or the medical-legal experts who had examined him. The Tribunal relied upon the following evidence to arrive at this conclusion:

And Doctor Wong has recommended cervical fusion at C34 and C45.

Now that's a very serious surgery, isn't it?

Well, I personally think that is a major undertaking.

And because the end result of that surgery would be neck stiffness and at the age of whatever he was, 45 or whatever, I think we don't want to sacrifice mobility unless the pain is unbearable.

And if a person was going to have a fusion surgery, you'd normally do an injection beforehand, wouldn't you?

To work out whether the pain is actually from that level in the neck.

In the domain of the specialist.

I don't participate in whether or not they should have whatever, but I can make a comment as a GP that fusion of the neck is a major undertaking because it will restrict movement of the neck severely.

It's fair to say that you've got significant reservations about the idea of Mr Yagmur undergoing neck fusion surgery, don't you?

Correct.

Dr Brazenor's evidence to the Tribunal:

There is nothing in Mr Yagmur's neck which is necessarily causing him pain, and there's certainly nothing that warrants a dangerous operation.

Based on all the MRI and CT you've seen, would you think that's a reasonable option going forward?

Certainly not.

And, why would you say certainly not?

I think recent studies have shown that the effectiveness of cervical or lumbar fusion is very limited.

Very often that just leads to further complications.

It's the kind of response you'll probably get from a neurosurgeon who's very keen to want surgery.

I think more and more nowadays that the studies have shown that fusion surgery is to be avoided at all costs.

It's the ultimate, the actual last possible resort when the pain is so severe that you can't continue any longer.

And so between getting to that, what would most people recommend as reasonable treatment if you've got ongoing, you know, pain that is -

exercise, exercise, strengthening, exercise, physiotherapy, strengthening exercises, mild analgesia such as paracetamol.

1. The Tribunal having considered all the evidence, found that Mr Yamgur had sustained an injury to his right hand in the course of his employment with Australia Post on 5 October 2021. The Tribunal, based on the CCTV footage, did not consider the injury trivial and whilst Mr Yagmur had not sustained a fracture, he had crushed his hand resulting in significant pain.
2. The Tribunal considered on the evidence Mr Yagmur continued to suffer from his right-hand injury until 14 December 2021, based on the medical assessment of his general practitioner Mr Wong.
3. The Tribunal finds Mr Yagmur was entitled to payment:
   • for medical expenses, under section 16 of the SRC Act, for treatment that was reasonable for him to obtain in the circumstances between the 9 October 2021 and 14 December 2021.
   • for incapacity for work, under section 19 between the 9 October 2021 and 14 December 2021.
4. The Tribunal, having considered all the evidence, did not find that Mr Yamgur had sustained an injury to his left shoulder or neck in the course of his employment with Australia Post on 5 October 2021. Nor did the Tribunal find on the evidence that Mr Yagmur had aggravated his left shoulder or neck in the course of his employment with Australia Post on 5 October 2021.

1. The Tribunal sets aside the decision of 2 February 2022 in respect of the closed period of liability for Mr Yagmur's right-hand injury but affirms the denial of liability for the left shoulder injury. The Tribunal determines that Australia Post continued to be liable to pay compensation for Mr Yagmur's right-hand injury, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 until 14 December 2021.
2. The Tribunal affirms the decision of 22 May 2023.

1. I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke, General Member

...................[sgd].....................