Almeida and Australian Postal Corporation (Compensation)
[2017] AATA 1001
•29 June 2017
Almeida and Australian Postal Corporation (Compensation) [2017] AATA 1001 (29 June 2017)
Division:GENERAL DIVISION
File Number: 2015/2789
Re:Sangeetha Almeida
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Regina Perton, Member
Date:29 June 2017
Place:Melbourne
The Tribunal affirms the decision under review.
........................................................................
Regina Perton, Member
COMPENSATION – mail sorting duties – lower back, left knee and right elbow pain – whether condition was contributed to by employment – whether condition was aggravated by employment – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A, 5B, 14(1)Cases
Re Balacki and Comcare [2013] AATA 768
Casarotto v Australian Postal Corporation (1989) 10 AAR 191
Re Cooper and Comcare [2010] AATA 625
Commonwealth v Beattie (1981) 53 FLR 191Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
REASONS FOR DECISION
Regina Perton, Member
29 June 2017
Ms Sangeetha Almeida worked for the respondent as a Postal Delivery Officer sorting mail. She lodged a claim for compensation dated 24 November 2014 for an injury described as lumbar back strain, right elbow strain, left knee strain that she says occurred on 9 October 2014.
On 7 January 2015 the respondent issued a determination denying liability on the basis that Ms Almeida’s condition did not arise out of, or in the course of, her employment with the respondent. On 14 April 2015 the respondent affirmed the determination. On 5 June 2015 Ms Almeida lodged an application for review with the Tribunal.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) states:
Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A of the Act states:
Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
…
Section 5B of the Act states:
Definition of disease
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material
…
Section 4(1) of the Act defines relevant terms:
"aggravation” includes acceleration or recurrence.
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES
The issues before the Tribunal are:
·What is the appropriate diagnosis of Ms Almeida’s conditions?
·Did Ms Almeida suffer an ailment or aggravation of an ailment that was contributed to, to a significant degree, by her employment with the respondent?
What is the appropriate diagnosis of Ms Almeida’s condition?
Ms Almeida told the Tribunal that she was born in Sri Lanka and after completing Year 10 she commenced work as a receptionist in her father’s general practice. After four or five years she completed a beauty course. After marriage and two children she and her family migrated to Australia in 1998. She studied English and found employment assembling electronic components and in a variety of part-time and casual packing jobs in factories. She also undertook training as a personal care assistant until commencing with the respondent in 2007. Initially she worked part-time (25 hours per week) in the Moorabbin depot sorting mail on night shift. After one year she moved to Mount Waverley Mail Delivery Centre where she worked about 30 hours per week and, when required, full-time (about 35 hours per week). Three years later she moved to the Dandenong Letter Centre.
In about 2013 Ms Almeida commenced full-time hours. She explained that in 2014 she worked night shift in the delivery section. Her duties consisted of sorting mail and small packages, and she said that the work was repetitive, involving sorting parcels which were delivered in bags weighing six or seven kilograms, and letters which were delivered in trays and sorted by hand from tubs weighing six or seven kilograms or from trays. She said that she was required to work in a standing position.
Ms Almeida told the Tribunal that she could not recall having problems with her right elbow in 2006, but acknowledged that clinical notes from her general practitioner dated November 2006 indicate that this was the case. Similarly she could not recall problems with her lower back that were recorded in the clinical notes dated March 2010, or problems with her left knee that were recorded in late 2011 and early 2012. She said that prior to October 2014 she was healthy, and did not experience any problems with her lower back, right elbow or left knee.
She took two weeks’ annual leave in September/October 2014 and stated that after two days back at work, she was sorting some large mail on 9 October 2014 when she felt pain in her lower back, right elbow and left knee, simultaneously. Her manager advised her to rest for a few minutes and then she resumed work. On the same day she was sent to the respondent’s nominated doctor, who diagnosed lumbar back strain, right elbow strain, left knee strain and recommended physiotherapy and a change to light duties sorting smaller items of mail. She said that the pain persisted over the next few days but she did not report the pain formally until 30 October 2014 because she was unaware of the correct procedure. She completed an Incident Report on 31 October 2014.
In a written statement dated 16 August 2014, Ms Almeida said that on 24 November 2014 she felt pain in her upper back area extending to her neck while lifting a small cardboard tray of letters, and was given first aid treatment by way of a heat pack and was driven home afterwards. On the same day she signed a claim for compensation for the injuries suffered on 9 October 2014, but not for the pain suffered on 24 November 2014. On 25 November 2014 she attended her general practitioner, who certified her as unfit for work.
Ms Almeida said that she has not returned to work since then because of the pain in her lower back, right elbow and left knee. She said that she has tried physiotherapy and hydrotherapy, and has been referred to two rheumatologists. She takes painkillers and has difficulty sleeping. Ms Almeida stated that she had surgery on her left knee in August 2015 but the pain has continued when she walks or when seated for a long time. She stated that her neck and upper back still cause problems, and she still had pain in her lower back, but the pain varies. She sometimes experiences pain in her right arm, and consults her general practitioner each month, or more often when the pain is especially bad.
In a letter to the respondent dated 9 April 2015 seeking review of the determination of 7 January 2015, Ms Almeida stated: …My pain developed over the period of my duties and was not caused by a one-off incident but was a gradual onset injury…
In oral evidence, Ms Almeida said that by about February 2015 the lower back pain, left knee and right elbow pain were unchanged. She said that the lower back and right elbow are now much better. She had further knee surgery on 3 February 2017.
Under cross-examination, Ms Almeida stated that she took annual leave in September/October 2014 to spend time with her family during school holidays. She agreed that in August 2014 she had consulted her general practitioner about alleged harassment at work, and that she was unhappy in the workplace because of incidents involving two co-workers. She also agreed that the work she was performing in October 2014 was similar to the work that she had performed since 2007.
Ms Almeida agreed that her general practitioner’s clinical notes dated 16 and 21 October 2014 contain no reference to back, elbow or knee pain. She said that these visits were for an unrelated medical complaint, and she did not mention her work issues to her doctor at the time, despite her evidence that she was struggling at work because of the pain. She agreed that she attended a different medical clinic on 23 October 2014 to obtain a certificate for time off work due to an upset stomach, but did not mention the back, elbow or knee pain that she later claimed was affecting her work performance. She explained that at the time her pain was not constant and she continued to work her normal hours until 31 October 2014. She said that the pain did not worsen when she was placed on light duties, but it stayed the same, despite physiotherapy treatment and taking Panadeine Forte medication.
Ms Almeida agreed that the upper back and neck pain suffered on 24 November 2014 gradually improved after she ceased work, and that at the date of the Tribunal hearing, the pain had largely resolved. She clarified that that she did not know the precise date on which the lower back, elbow and knee pain occurred, but was asked by her manager to nominate a date on the compensation claim form, when in fact the onset of the pain was gradual, and she had experienced no pain during the school holidays in September/October 2014.
In relation to previous medical issues identified in clinical notes of general practitioners, Ms Almeida said that she could not remember having X-rays on her knees in July 2013 and had no recollection of back pain in 2010, despite a clinical note dated 15 March 2010 that referred to severe low back pain that lasted seven to eight hours and Had back pain even 25 years back. She said that there had been no issues at work in the period leading up to 21 September 2014 when she commenced two weeks of annual leave, but admitted under cross-examination that she was having issues with two co-workers involving allegations of harassment and assault and that these issues had caused her distress and unhappiness at work. She denied complaining to any doctor, but clinical notes dated 29 August 2014 state: Harassment at work. Complained to boss? Ms Almeida denied complaining to her manager, but admitted that the doctor’s note was correct and she had, in fact complained and the matter was resolved.
In respect of the pain claimed to have been experienced on 9 October 2014, Ms Almeida agreed that the work she was performing on that day was much the same as her sorting duties with the respondent since 2007. She maintained that the pain occurred in the three parts of her body at the same time while she was sorting large mail, and the pain became progressively worse while she continued her normal duties until 31 October 2014. She also said that while on light duties the pain remained unchanged until the incident on 24 November 2014 affecting her upper back and her neck, when she ceased work. She said that there was no improvement in the back, elbow and knee pain despite physiotherapy treatment. Ms Almeida agreed that she asked Dr M Feletar, rheumatologist, to arrange an MRI of her spine, but that Dr Feletar did not believe it was necessary, so she asked Dr Heenetigala, her general practitioner, to make the referral.
In respect of her letter of 9 April 2015 seeking review of the determination, Ms Almeida agreed that she had read and signed the document, but denied that her back, knee and elbow pain were in existence before 9 October 2014. She said that the letter was written by another person, probably a union representative. Later in cross-examination she said that she felt the pain during a period of her employment around 9 October 2014.
Dr N Heenetigala, general practitioner, told the Tribunal that he has been Ms Almeida‘s treating doctor since about 1998. He stated in a Certificate of Capacity dated 28 November 2014 that Ms Almeida suffered from spasm of muscles of neck, thoracic - lumbar spine and certified Ms Almeida as unfit for work from 25 November 2014. In a report dated 16 January 2017, Dr Heenetigala diagnosed chronic pain in neck, thoracic and lumbar spine due to degenerative disease, and stated that Ms Almeida developed low back pain, pain in the left knee and right elbow since 27 October 2014. He explained that this date was given to him by Dr Feletar to whom Ms Almeida was referred, and was the date specified by Ms Almeida when she was examined by Dr Feletar.
Dr Y Pun, rheumatologist, stated in a report dated 19 March 2015, that Ms Almeida presented with symptoms of a good range of movement in the right elbow, but some tenderness posteriorly. There was some reduction of movement in the neck, shoulders and lower back because of discomfort. The left knee moved reasonably well and swelling was detected. An MRI of the entire spine showed mild disc degeneration but no evidence of neural compression, and a tear in the lateral meniscus of the left knee.
Dr Pun stated that Ms Almeida suffers from mechanical pain which was of a multifactorial nature, including a contribution from physical strain. She explained that mechanical pain of a multifactorial nature means pain arising from various structures of the skeleton, but also the functioning can be physical strain, postural stress, even poor sleep. Therefore it may not be confined to one anatomical area or one component of a joint. She described physical strain as strain arising from any physical activity, whether occupational, recreational or just from the daily activities of life.
Under cross-examination Dr Pun agreed that, after examining Ms Almeida and taking a history, she did not believe that Ms Almeida was suffering from right lateral epicondylitis, but merely subjective elbow pain. Similarly she agreed that the complaints of lumbar pain were completely subjective, and consisted of reduced movement because Ms Almeida was uncomfortable. On 19 March 2015 she found swelling of the left knee, indicating inflammation coming from within the joint, which might be a cartilage tear.
Mr M Khan, orthopaedic surgeon, stated in a report dated 10 November 2015 that Ms Almeida had undergone arthroscopic surgery to her left knee on 7 August 2015 and was unable to bend or twist the knee without pain in the joint. She presented with pain in the middle of her thoracic spine, which was worse when bending and twisting her spine. The main pain was in the lower part of the lumbar spine with no referred pain in the lower limbs. Mr Khan diagnosed mild pre-existing degenerative changes in the lumbar spine, particularly at L4/5 and L5/S1 levels. There was no numbness in her hands, and her neck condition did not give her serious problems. She did not report any pain in the right elbow but he noted symptoms of lateral epicondylitis of the right elbow due to repetitive and strenuous use of the right forearm. He diagnosed a flare-up of mild pre-existing degenerative changes in the left knee.
Mr I Jones, orthopaedic surgeon, stated in a report dated 2 March 2016 that Ms Almeida presented with complaints including her neck, thoracic spine, right elbow, lower back and left knee. The neck pain was said to be constant but with no neurological symptoms in the upper limbs. Ms Almeida complained of constant pain in her lower back, but with no neurological symptoms in the lower limbs. There was intermittent pain in the back of the right elbow, and the left knee was painful when climbing stairs or if Ms Almeida attempted to squat or kneel. There were no symptoms of locking in the knee or swelling.
Mr Jones diagnosed mild spondylosis of the thoracic spine and some degenerative disease of the neck and lumbar spine affecting L4/5 and L5/S1 consistent with constitutional ageing. There was a horizontal tear of the lateral meniscus of the left knee and evidence of a minor strain of the right elbow joint. Mr Jones found mild symptoms of patelloarthritis in the knee and medical compartment osteoarthritis. He agreed with Mr Khan’s diagnosis of mild degenerative disease of the lumbar spine and degenerative lateral meniscus in the left knee. He said that Ms Almeida may have had mild symptoms of epicondylitis of the right elbow when examined by Mr Khan, but this seems to have resolved.
Dr Feletar stated in a report dated 10 February 2015 that Ms Almeida was referred by Dr Heenetigala and presented with complaints of pain in her lower back, left knee and right elbow since 27 October 2014. She said that Ms Almeida told her that the pain has not changed since she ceased working on 24 November 2014. Dr Feletar said that on examination she found a normal range of movement in the thoracolumbar spine, neck and right elbow. There was mild tenderness in the lateral region of the right elbow but no indication of lateral epicondylitis. CT scans showed degenerative change in C5-6 level, and the lumbar spine was normal. Dr Feletar referred Ms Almeida to a physiotherapist.
Dr T Kontos, rheumatologist, stated in a report dated 24 May 2016 that Ms Almeida probably has mild right lateral epicondylitis in the right elbow and mild stiffness in the spine but no specific injury. He said that he could not make a diagnosis of the left knee complaint, but there had been a tear in the lateral meniscus of the left knee and her ongoing pain is not an injury but probably relates to the failed arthroscopic surgery.
Consideration
In relation to the lower back condition the Tribunal accepts the evidence from Dr Heenetigala, Mr Khan and Mr Jones that Ms Almeida suffers from a mild degenerative change in the lumbar spine. This is consistent with radiology reports and evidence of changes in the lumbar spine due to constitutional ageing. In relation to the right elbow condition, the Tribunal accepts the conclusion by Dr Pun, Mr Jones and Dr Feletar that the symptoms do not support a diagnosis of lateral epicondylitis, but rather suggest tenderness or a minor strain in the right elbow. The Tribunal notes that Ms Almeida’s elbow pain has largely resolved. In relation to the left knee condition the Tribunal takes into account that Dr Pun found swelling that indicated inflammation within the joint, which might be a cartilage tear, while Mr Khan found a flare-up of mild degenerative changes and lateral meniscus, and Mr Jones and Dr Kontos found a horizontal tear of the meniscus. On all the evidence the Tribunal finds that Ms Almeida suffers from a degenerative lateral meniscus of the left knee.
For these reasons the Tribunal finds that Ms Almeida suffers from an ailment under the Act.
Did Ms Almeida suffer an ailment or aggravation of an ailment that was contributed to, to a significant degree, by her employment with the Respondent?
Dr Heenetigala stated in his report that Ms Almeida’s pre-existing degenerative disease has been aggravated by the work she was doing with the respondent. Under cross-examination he stated that because of degenerative changes to Ms Almeida’s lower back, she would have had symptoms of intermittent pain before October 2014. He told the Tribunal that when Ms Almeida complained of left knee pain in November 2014 he regarded this as being associated with her work because she was standing and moving from place to place and moving items of mail, and the back problems could have caused some weakness in the knees, leaving the left knee to bear the brunt of the workload.
Dr Heenetigala said he was not aware of any non-work incidents that might have contributed to the knee pain, and stated that the damage to the cartilage resulted from Ms Almeida’s work over the years, although he agreed that he did not take a detailed history and there was no acute injury or trauma. He agreed that if Ms Almeida had no symptoms of pain in the lower back, right elbow and left knee in the months before October 2014 then this could not be reconciled with her evidence that all three conditions occurred at work simultaneously on 9 October 2014. He also agreed that Ms Almeida did not mention any of these issues when she attended his practice on 16 and 21 October 2014, but emphasised that patients often concentrate on specific issues of concern, rather than other matters. He agreed that he had given her three days off work to deal with her allegations of harassment at work, and assumed that the matter had resolved.
On 10 November 2014 Dr Heenetigala had issued a Certificate of Capacity to the effect that Ms Almeida was unfit for work on 11 November 2014, and agreed that this was based on her back condition, not her elbow and knee conditions, and he agreed that her back condition was not serious enough to prevent her from returning to work on 13 November 2014.
In relation to a consultation on 25 November 2014, Dr Heenetigala agreed that he recorded in his notes: CT. No abnormality detected. Now has mid-thoracic pain and pain in the neck. He agreed that there is no reference to an incident at work on 24 November 2014 or of an electric shock sensation in Ms Almeida‘s neck and upper back and he was unaware of the circumstances. He agreed that if Ms Almeida ceased work then her back, knee and elbow symptoms should reduce, but only if she continued with treatment including physiotherapy, medication and hydrotherapy.
Mr Khan in his report stated that Ms Almeida’s employment was a significant contributing factor to the onset of her medical conditions involving the left knee and back. The right elbow condition appears to have subsided and has improved significantly. At the hearing he said that the left knee and right elbow conditions were pre-existing degenerative changes that were aggravated by her employment with the respondent.
Under cross-examination, Mr Khan agreed that it would be extremely unusual for injuries to the lower back, right elbow and left knee to occur at work on the same day (9 October 2014), and in Ms Almeida’s case it probably occurred over a period of time while she was working for the respondent. In relation to the back pain, he stated that he could not determine that Ms Almeida was symptomatic immediately before 9 October 2014, and could only say that this was the first time that she had complained of the pain. He agreed that, based on X-rays of both knees taken in July 2013, she would have suffered symptoms before 9 October 2014.
Dr Pun stated in a report dated 9 April 2015 that Ms Almeida returned for a review consultation and reported that pain had continued, particularly in the left knee, although there was some relief due to pain medication. Dr Pun said that Ms Almeida was still off work and …it is reasonable to assume that her previous duties at Australia Post have contributed to the development of her pains. She explained that she generally takes patients at face value and accepts a history of pain related to the patient’s work. Dr Pun agreed that she took a brief history of Ms Almeida’s work with the respondent and concluded that employment made a contribution to the medical conditions, and did not take a history of non-work activities which she agreed might have contributed to the symptoms of pain.
Dr Pun agreed that if work activities made a contribution to Ms Almeida’s lower back, elbow and knee pain, then the symptoms would be expected to reduce significantly after months away from the workplace. She agreed further that if Ms Almeida’s pain actually became worse in the months after ceasing work, there would be other contributing factors, hence her conclusion that the pain is mechanical and of a multifactorial nature. She said that multifactorial also includes postural stress, stretching of ligaments that hold the bones together, or lining of the joints that is irritated. It could also be muscles and tendons or nerves that are under strain.
Dr Pun accepted that the multifactorial nature of the pain might include contributions from non-physical factors, such as a perception that Ms Almeida’s conditions were worse than their actual situation, and the pain is multifactorial in both a localised and whole-body sense. She said that there was no justification for an MRI scan of Ms Almeida‘s whole spine, and agreed that sometimes when a patient insists on having an investigation it may be counter-productive because it raises or reinforces an idea that patients are worse off than their actual condition.
Dr Kontos referred to the medicalisation of Ms Almeida’s condition by her frequent desire for unnecessary investigations, including her desire for an MRI scan of the entire spine, which he believed was very significant in her overall presentation. He told the Tribunal that, in relation to her claim of simultaneous injuries to her lower back, right elbow and left knee at work on 9 October 2014: It just doesn’t happen that, you know, simultaneous problems develop without any injury or accident. Dr Kontos said that he had never seen such an occurrence in more than 30 years of private practice.
Dr Kontos stated that degenerative change in Ms Almeida’s lower back would be expected for a person of her age. He said that arthroscopic surgery for knee arthritis and torn cartilage was unnecessary and should not have been performed on Ms Almeida‘s left knee. Dr Kontos concluded that if Ms Almeida‘s symptoms actually increased after she ceased work, despite ongoing conservative treatment, then her work was not relevant to her medical conditions.
Mr Jones told the Tribunal that, in relation to Ms Almeida’s claim of simultaneous injuries to her back, left knee and right elbow at work on 9 October 2014, signs of injury to three disconnected body parts would occur Only if they’ve had a fall or been involved in a vehicle accident or something of that type. He said that, on examination, the symptoms were largely subjective, rather than observable or measurable, and that degenerative changes to the spine would be commonly seen in a patient aged 44 years. He said that if Ms Almeida had pain in her lower back, elbow and knee while she was working, he would have expected such pain to have completely resolved when she ceased working. Mr Jones explained that if the symptoms persisted or increased, then this suggests that work was not a factor, and mild degenerative changes in her neck, lower back and possibly her left knee have just progressed with the passage of time.
In a further report dated 6 March 2015 Dr Feletar stated that Ms Almeida reported that anti-inflammatory medication was helping the pain by about 30-40 per cent, but there was still pain in the lower back. Dr Feletar said that she told Ms Almeida that this was a degenerative condition with mild lumbosacral degeneration which would be assisted by an active strengthening program.
Clinical notes written by Berwick Physiotherapy show that Ms Almeida attended several times in 2015, and the entry for 17 February is: Elbow little better; for 3 March: A little better in elbow; for 17 March: Elbow improving; and for 24 March: Elbow continuing to improve.
Consideration
In the Full Federal Court judgement of Commonwealth v Beattie (1981) 53 FLR 191 Evatt and Sheppard JJ stated at 201:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury …each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.
In Re Balacki and Comcare [2013] AATA 768 the Tribunal stated at [74]:
…I find instead that, on the balance of probabilities, Mrs Balacki’s condition is not contributed to any degree by her employment let alone to a significant degree. Certainly, she experiences symptoms at work and, understandably, she associates those symptoms with her duties but, on the evidence I have, I have also found that she experiences symptoms away from her work when she is performing household duties or duties such as driving. Factors in both her workplace and in her life and activities outside the workplace cause her to suffer pain but that pain is not indicative of an aggravation or acceleration of her condition. It is, instead, indicative of the condition from which she suffers. Like the worker to whom Evatt and Sheppard JJ referred in Beattie, and who fractured a leg in a non-work related incident and then put weight on it in the workplace, Mrs Balacki will suffer pain from time to time in her employment with Centrelink. That does not mean, though, that she has aggravated her condition. Her pain is a consequence of her condition and not an aggravation of it.
In Re Cooper and Comcare [2010] AATA 625 the Tribunal stated at [82]:
The mere intensification of pain as a result of activitiy (sic) in a temporal sense, in that the pain is only suffered at work would not however, appear to be sufficient to constitute a compensable injury.
In Casarotto v Australian Postal Corporation [1989] FCA 116, after reviewing earlier judgements, Hill J stated at [23]:
...the ordinary English meaning of the words “aggravation and acceleration”, namely that “aggravation” connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of the disease.
51.Hill J states further at [38]-[39]:
…one can imagine cases of acceleration of a pre-existing progressive disease where the course of the disease itself is such that the consequences of the acceleration cease to matter after a time and contribute not at all to a greater incapacity than would have arisen as a result of the normal progression of the disease. In other circumstances the acceleration results immediately in total incapacity and the mere fact that at some stage total incapacity would have arisen is not a reason for discontinuing compensation.
It would be necessary in each case, be it one of aggravation or acceleration to have regard to the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue.
Mr Ternes, on behalf of Ms Almeida, submitted that Ms Almeida’s conditions were contributed to, to a significant degree, by her employment with the respondent. He said that Ms Almeida is aged in her low-to medium 40s and has carried out the same duties since 2007 without serious medical issues; the work is repetitive and sometimes involves moderately heavy lifting of items of mail. He noted that on 9 October 2014, despite experiencing pain in her lower back, right elbow and left knee, she continued working until 30 October 2014, when she reported the pain to her manager, and then performed light duties until a second incident on 24 November 2014 when she experienced upper back and neck pain and ceased working.
Mr Ternes acknowledged that medical records show that Ms Almeida had had problems with her lower back, right elbow and left knee before October 2014, but subsequent attendances to medical professionals indicate that her pain after October 2014 was genuine. He emphasised that there is no suggestion that Ms Almeida has engaged in particular physical activities such as strenuous sport or other recreational pursuits. In relation to the three conditions, Mr Ternes submitted that the symptoms became worse after Ms Almeida ceased working, and that her employment caused aggravation or exacerbation of all conditions, satisfying the criteria for the award of compensation under s 14 of the SRC Act.
Mr Ferwerda, on behalf the respondent, submitted that even if Ms Almeida’s evidence is accepted, there would be at best a temporal connection between any of the three medical conditions and her employment with the respondent, but no causal connection. He said that the repetitive nature of the work and the manual handling of mail would be an insufficient basis on which to claim that an injury or injuries had occurred, either gradually or on a particular day.
The Tribunal finds that Ms Almeida’s evidence contained a number of inconsistencies, and although English is not her first language, she had the assistance of an interpreter at the hearing and the Tribunal is satisfied that she understood the questions asked of her. She claimed that she suffered pain in her lower back, right elbow and left knee simultaneously on 9 October 2014, but only reported the pain formally on 30 October 2014 and did not lodge her claim for compensation until 24 November 2014, when she claims to have suffered pain in her upper back and neck. She told Dr Feletar that the pain occurred on 27 October 2014. She attended Dr Heenetigala on 16 and 21 October 2014 and another general practitioner on 23 October 2014 for unrelated medical complaints, but did not mention the pain allegedly suffered on 9 October 2014, despite telling the Tribunal that the pain was getting worse and she was struggling at work at the time. The Tribunal finds that her explanation that she was concentrating on the other complaints is unconvincing, particularly as she had been a longstanding patient of Dr Heenetigala and might have been expected to inform him of such matters.
Ms Almeida denied that she had made allegations of harassment and being unhappy at work in the period leading up to 9 October 2014, yet under cross-examination in the face of documentary evidence she agreed that she had complained of harassment and an alleged assault and that her manager had resolved the issue. Dr Heenetigala had given her three days off work to deal with the issue. In her request for review of the determination, Ms Almeida stated that the onset of her pain was gradual and not caused by a one-off incident, which contradicts her evidence of the pain occurring on 9 October 2014. Although she said that the request for review was written by someone else, she acknowledged that she read and signed the document. Ms Almeida’s evidence about the pain after 9 October 2014 is also inconsistent. At times she said that at times it became worse and then improved, and at other times she said that it remained unchanged. The physiotherapist reported some improvement in Ms Almeida’s right elbow in March 2015, when her own evidence on this was unclear.
Ms Almeida stated that she had no recollection of experiencing problems with her lower back, right elbow and left knee prior to 9 October 2014, yet the clinical notes of general practitioners shows clearly that she had had been referred for X-rays of both knees and had complained of severe back pain. The Tribunal finds that she had prior issues with her lower back and her left knee.
The Tribunal accepts the evidence from Dr Kontos and Mr Jones, both of whom are highly experienced medical practitioners, that simultaneous injuries to three distinct parts of the body such as the lower back, right elbow and left knee would occur only as a result of an accident or a fall, which clearly is not applicable to Ms Almeida. Similarly, the Tribunal accepts their evidence, supported by Dr Heenetigala and Dr Pun, that if the symptoms of pain persisted or became worse after ceasing work, the pain would be expected to resolve or at least be reduced if there had been a connection with her work.
The Tribunal takes into account that on 10 November 2014 Dr Heenetigala issued a Certificate of Capacity to the effect that Ms Almeida was unfit for work on 11 November 2014 based on her back condition, which he considered was not serious enough to prevent her returning to work on 13 November 2014. On 25 November 2014 Dr Heenetigala examined a CT scan and found no abnormality and was unaware of the incident alleged to have led to the severe pain the previous day.
Because of the inconsistencies in Ms Almeida‘s evidence, the Tribunal places little weight on her account of the circumstances under which she claims that pain occurred on 9 October 2014. The medical evidence as a whole is not supportive of her claims. The Tribunal has accepted the medical evidence and the radiology that points to degenerative change in the lower back, right elbow and left knee.
There is also merit in the evidence by Dr Kontos of the medicalisation of Ms Almeida’s conditions by her frequent desire for unnecessary investigations, supported by the evidence by Mr Jones of largely subjective symptoms rather than observable or measurable. Similarly, Dr Pun referred to mechanical pain of a multifactorial nature involving contributing factors other than Ms Almeida’s work. Dr Feletar did not refer to any connection between her findings and Ms Almeida’s employment. This evidence is more plausible and persuasive than the evidence from Mr Khan.
For these reasons the Tribunal finds that there may have been a temporal connection between the pain reported by Ms Almeida and her employment with the respondent, but not a causal connection. On all the material the Tribunal is not persuaded that there was any aggravation or exacerbation of her conditions.
CONCLUSION
The Tribunal concludes that the ailment suffered by Ms Almeida under the Act was not contributed to, to a significant degree, by her employment by the Commonwealth. Consequently Ms Almeida does not suffer from a disease or injury and is not entitled to compensation under s 14 of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member ..........................................................
Associate
Dated 29 June 2017
Dates of hearing 22, 23 and 24 February 2017 Counsel for the Applicant Mr R Ternes
Solicitors for the Applicant
Counsel for the Respondent
Maurice Blackburn
Mr J Ferwerda
Solicitors for the Respondent
Litigation Section, Australian Postal Corporation
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