Almond and Australian Postal Corporation
[2007] AATA 1365
•25 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1365
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/87 & T2006/45
GENERAL ADMINISTRATIVE DIVISION ) Re KATHYRN MARY ALMOND Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal The Hon C R Wright QC (Deputy President) Date25 May 2007
PlaceHobart
Decision 1. T 2005/87 - Decision under review affirmed.
2. T 2006/45 - Decision under review affirmed.
..............................................
Deputy President
CATCHWORDS
Compensation -
1 - Mail sorting officer experiencing neck pain at work - claim for compensation granted - weekly compensation - medical and other expenses paid for 6 years - liability repudiated following new medical opinion in 1999 - Employee sought and received redundancy - In 2005 sought extension of time to seek review of "no liability" determination - Application refused.
2 - New application for compensation also made in 2005 - Employer repudiated liability - Question raised as to whether the applicant's claim was in respect of a new condition - Not shown on probabilities that applicant's condition was a work-related injury or ailment within SRC Act provisions - Application refused.
Safety Rehabilitation & Compensation Act 1988 Sections 14, 16, 19, 20, 21 & 62
Beecher v Telstra (1994) AATA 9245
Comcare v Willems (1996) 43 ALD 253
Australian Postal Corporation v Oudyn (2003) FCA 318
Liu & Comcare (2004) AATA 617
Plumb v Comcare (1992) 39 FCR 236 @ 240
Lees v Comcare (1999) 56 ALD 84 @ 92
Telstra Corporation Ltd v Hannaford (2006) FCAFC 87 (2 June 2006)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hewson v Australian Postal Corporation 1998 50 ALD 994
Collins v GIO Australia (for Telstra Corporation Ltd) (1999) AATA 564
Chamberlain v Comcare (Deputy President Forrest), 24 January 1997, V95/`362
Beer v Australian Telecom Commission No D88/3 AAT No 5974
Vella v Australian Postal Corporation No S98/382
Anderson v Australian Postal Commission (1993)
Comcare v Sahu Khan [2007] FCA 15
Commonwealth v Beattie (1981) 35 ALR 369
Carpenter v Comcare (2004) AATA 528
Zickar v MGH Plastic Industries Pty Ltd (1995-1996) 187 CLR 310
REASONS FOR DECISION
25 May 2007 The Hon C R Wright QC (Deputy President) Background
1. The applicant Kathryn Mary Almond has two current applications before the AAT. Although the nature and extent of each application has been the subject of debate and some confusion during the course of proceedings, their substance and significance will appear from the following discussion. The applicant is a 52 year old former employee of the respondent commission presently residing in a de facto relationship with her male partner at St Marys in Tasmania. It is likely that they are also partners in a business sense, jointly operating the St Marys Supermarket. The applicant says that she receives no income from the enterprise as she is unable to work in the shop due to her being incapacitated as a consequence of an injury or disease which she attributes to her employment with the respondent in July 1993. Why this should disentitle her to a share in the profits was not explained.
2. The applicant commenced employment with the respondent in January 1990. At first she worked part-time in credit management. In January 1991 she was transferred to the Hobart Mail Centre where she continued to work part-time as a mail officer. This work involved (inter alia) sorting letters and postal articles into letter frames where they were distributed for delivery to their intended destination.
3. On 18 July 1993, the applicant claims to have experienced severe pain in the neck and right shoulder whilst sorting mail into a letter frame. The pain persisted, she received medical attention and made a claim for compensation. Her claim was accepted and after a short initial period off work, she was deployed to work in areas of lighter duties during which she received rehabilitation treatment and counselling.
4. From time to time she had periods off work which were accepted as compensable pursuant to her claim. Her wages were supplemented to bring her earning levels up to the normal weekly earnings she had been enjoying before 18 July 1993.
5. The applicant continued working for the respondent in variously modified roles which she described in evidence, until August 1999, when, following her review by a consulting physician, Dr Peter Stevenson, on 17 June 1999, the respondent’s Claims Manager determined on 11 August 1999 to cease compensation payments to her and on her behalf as from 13 August 1999. The applicant was advised in writing of this determination.
6. The applicant said (A8 @ p2):
“I decided, at the time, not to challenge the determination as I didn’t feel that I was up to it. I determined instead to leave Australia Post to see if my symptoms improved by working in another environment”.
7. The applicant decided to accept a redundancy from her employment with the respondent and left that employment on or about 1 October 1999, moving to St Marys with her partner where they commenced the supermarket business, initially in partnership with another couple who have since left the business.
8. The applicant says that she found that she was unable to manage the work required of her in the supermarket a consequence of on-going pain caused by the incident at work on 18 July 1993.
Application No. T2005/81
9. On 7 July 2005 she sought an extension of time from the respondent (as the relevant determining authority) to have the determination of 11 August 1999 “ceasing liability” to pay her compensation, reconsidered. This application was rejected by the respondent on 21 February 2006 (T75). The applicant now seeks review of that determination by the AAT. The AAT has jurisdiction to review such a determination (Re Beecher v Telstra (1994 ) AATA 9245 and Comcare v Willems (1996) 43 ALD 254). Such a review is a merits review obliging the Tribunal to make the correct or preferable decision on the material available.
10. There was some debate between counsel as to the effect of the determination of 11 August 1999, couched as it was in terms which made it plain that the condition in respect of which the applicant had been receiving incapacity payments and medical expenses had been reconsidered following Dr Stevenson’s report and it was now determined that the applicant had not suffered a compensable injury or disease within S14 of the SRC Act.
11. During the course of her final address, counsel for the respondent said that she acknowledged and accepted that “the determination of 11 August 1999, cannot cease liability under Section 14, and can only purport to cease liability to pay compensation pursuant to Section 16, 19, 20 or 21”. Counsel for the applicant agreed with this and said “I understand that the parties agree the determination of 1999 only purports to deal with section 16, section 19, section 20 or section 21 incapacity issues and this” (meaning I take it, whether or not time should be extended to allow the correctness of the 11 August 1999 decision, understood in these terms to be contested) “is the substantive issue before the Tribunal”.
12. The submissions by counsel for the respondent upon this issue are to be found in the transcript at pages 173, 174 and 175. At a further hearing, which I convened for 4 April 2007, inter alia for the purpose of clarifying these submissions, both counsel confirmed their adherence to the views which they had previously expressed. It was submitted by counsel that to enable or facilitate the Tribunal to consider the applicant’s application for an extension of time on the merits and to deal with the central issue of whether or not the applicant currently suffers incapacity as a compensable consequence of the incident at work in July 1993 raised by her second application, the perceived difficulties caused by the respondent’s allegedly “erroneous” determination of 11 August 1999 could be overcome by one of two processes.
13. Either the respondent could set aside the determination dated 11 August 1999 and substitute a new determination “stating it relates purely to Section 16 and 19 matters, rather than section 14” or the Tribunal could remit the matter to the respondent under Section 26 and 42D of the Administrative Appeals Tribunal Act 1975 or, by consent, authorise an appropriate alteration to the original determination.
14. Notwithstanding the agreement of counsel for the applicant to these proposals I am completely opposed to either of the suggested methods of dealing with the 11 August 1999 determination.
15. As I have already mentioned that determination was clearly based upon the proposition that the applicant’s claim for compensation was not one in relation to a compensable injury or disease. The determination was in the following terms:
“In the matter of the claim of:
Ms Kathryn Almond
Unit 6/25a Red Chapel Ave
SANDY BAY TAS 7005
For compensation for “RIGHT NECK AND SHOULDER PAIN”
DETERMINATION
In pursuance with the provisions of the Safety Rehabilitation and Compensation Act 1988, and further to any determinations made previously in this matter, I hereby determine:
On considering the evidence before me and in accordance with the provisions of section 14 of the aforesaid Act, it has been established that Ms Almond does not suffer from a work-related condition in accordance to section 14 of the Act.
It has been determined that the neck and shoulder pain is due to cervical dysfunction and there is no medical evidence that there is any significant contribution through employment.
Therefore I determine that compensation payments be ceased under section 14 of the Act, by reason of section 4 and 6, as from the Close of Business Friday 13th August 1999.
Therefore it has been determined that Australia Post is no longer liable to make payments of compensation for “right neck and shoulder pain”
Please find enclosed a notice of rights available to you in accordance to the Act”.
The reasons for the determination were elaborated upon in an accompanying document (T47) (mistakenly) dated 11 August 1998..This document also made it clear that the determination rejecting the applicant’s compensation claim was based upon the proposition that her pain condition was not shown to be related to her employment.
16. To take either course proposed by counsel would therefore fly directly in the face of the relevant facts. The determination of 11 August 1998 was based upon Section 14, and had nothing to do with circumstances which might have been relevant under Section 16, 19, 20 or 21.
17. I can understand counsel’s desire to enable the Tribunal to determine the applicant’s case upon its merits without failing in limine upon technical grounds, but in the circumstances I do not see the course proposed as being either desirable or necessary to achieve this end.
18. It is not, in my opinion, desirable because it would involve a clear contradiction of what had actually taken place and a distortion of the determination actually made. It would not just involve a remission to the original decision-maker to correct or reconsider the original decision. It seems to me that it would involve the imposition of a fictitious determination upon the decision-maker. I do not see Section 26 or 42D of the AAT Act as permitting or condoning such a process.
19. Moreover, as I have said, and notwithstanding further written submissions by counsel for the respondent dated 16 May 2007, I do not see any such steps as these as being necessary to enable me to consider the extension of time issue upon its merits. In my opinion counsel for both parties in seeking amendment to the terms of the 11 August 1999 determination have misconceived the effect of the decisions in Australian Postal Corporation v Oudyn (2003) FCA 318 and Liu & Comcare (2004) AATA 617. .Both of these decisions recognise that a determining authority cannot foreclose its future liability to pay compensation under Sections 16, 19 or 24 of the SRC Act, during the subsistence of a Section 14 determination in favour of an injured or diseased applicant (Plumb v Comcare (1992) 39 FCR 236 @ 240). However both decisions also recognise that a Section 14 determination may be reconsidered by the relevant determining authority under Section 62 of the SRC Act,
20. As Cooper J said in APC v Oudyn @ 667:
“The liability under S14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated. The power of APC to reconsider a determination under S62 of the Act when exercised in relation to a determination made under S14 is a power limited to a reconsideration of one or more of the [five] elements identified by the Full Court in Lees”.
In Lees v Comcare (1999) 56 ALD 84 @ 92 the Full Court of the Federal Court identified those 5 elements as follows:
“First, that an appropriate notice has been given to the relevant authority as required by S53 of the Act; secondly that a claim for compensation has been made as required by S54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an “employee” at the time of the alleged injury (S4 & S5); fourthly, that the employee suffered an injury (S4) and finally, that the injury has resulted in death, incapacity for work or impairment”.
21. To satisfy the fourth of these elements, an employee must either establish an injury (other than a disease) suffered by the employee arising out of or in the course of his or her employment, or a disease being an ailment or aggravation of an ailment which was contributed to in a material degree by his or her employment.
22. It is this element alone which has been thrown into question by the determination of 11 August 1999. The first, second and third elements will remain undisturbed whatever the outcome of present proceedings. The fifth element will survive or fail dependent upon the determination made as to the fourth element. This means of course that, if the applicant is unsuccessful in respect of her application to extend time to seek a reconsideration of that determination she will not have to re-establish any of the first 3 elements if she sees fit to make a new application for compensation based upon fresh evidence as to the relationship between her incapacity or impairment and the events of 18 July 1993. Whether or not she may also have to establish a relevant nexus between the injury (or disease) and incapacity (the fifth Lee Element) could not be forecast until the nature of the claimed injury (disease) was established in the course of any such new application.
23. It is necessary I think to avoid a misreading of a passage of Cooper J’s judgement which, it may be suggested throws some doubt on these propositions. I refer to page 667 where His Honour said:
“APC cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act. Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to APC in respect of a particular injury, ceased on the date of the determination and (my emphasis) that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 o the Act.”
It is important to bear in mind that Cooper J was dealing with a case in which the determining officer, although purporting to make a determination under S14 was effectively accepting the existence of the relevant injury and was merely resolving that current entitlements had ceased because the effects of the work-related injury were no longer producing incapacity for work or impairment.
24. Cooper J makes this very point himself in the paragraph immediately following the last quoted excerpt from his decision. He was clearly not dealing with a situation such as we have in the present case where the re-determination was based upon the proposition that there never had been a relevant injury or disease.
25. The issue was also addressed in Liu v Comcare (supra) where a very strong panel of the AAT, comprising Justice Downes (President), R P Handley (Deputy President) and M D Allen (Senior Member), after discussing Plumb v Comcare, (supra) continued as follows (para 3):
“The only time that liability under s14 can be reconsidered is under s62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability. A changed determination upon such a reconsideration is a determination that there never was a compensable injury (see Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at 666-667)”.
26. The present case was not one in which the determining authority said in effect “The effects of your injury have now resolved and therefore you have no further entitlement”. This would have been an impermissible determination on the authority of all the cases cited above. What the determining authority did say, in effect, was “Your condition is neither an injury nor a disease as defined in the SRC Act and therefore Australian Postal Commission is (and never was) liable to pay compensation of any kind whatsoever in respect of your condition”. This in my view is a completely permissible determination which has the effect of immediately justifying withdrawal or cessation of benefits or claimed compensation. If the determination is not challenged by the employee seeking a review the adverse determination remains unless and until it is shown to have been made erroneously by reason of new circumstances, (eg fresh evidence). That there is no impediment to an employee seeking to reopen such an issue to achieve a favourable decision is not only plain enough in principle but is supported in a general sense by the approach of the Full Federal Court in Telstra Corporation Ltd v Hannaford (2006) FCAFC 87 (2 June 2006). Having regard to the way in which the s14 issue arose in Hannaford I regard the present as a stronger case. If the applicant is unsuccessful in overturning the decision of 11 August 1999 she is not precluded from re-visiting the question of the nexus between her employment and her claimed injury or disease on a future occasion. Indeed this is what she has sought to do in the second application to review which I will consider later in these reasons.
27. I therefore turn to consider whether or not the applicant has established grounds for review of the respondent’s decision dated 21 February 2006 rejecting her application under s62 (3)(b) of the SRC Act for an extension of time within which to review the respondent’s adverse S14 determination of 11 August 1999. The time for seeking a review of that determination was 30 days (see s62(3)(b)). The time for seeking an AAT review of the respondent’s refusal to extend time was 60 days (see 29(2) of the AAT Act and s65(4) of the SRC Act). The application to the AAT appears to be that document signed by the applicant’s solicitors dated 3 April 2006. I say “appears to be“ because the substance of the written application and the date of the decision referred to therein bear little relationship to the correct date or the real issue requiring determination.
28. The issue requiring determination is whether the justice of the case requires that the applicant should be afforded the right to challenge the 11 August 1999 determination under the review process provided for in s62 of the SRC Act.
29. Whether or not these steps take place will obviously not only depend upon the outcome of the extension of time application but, in practical terms, may also be governed by the second application to review. Indeed it was suggested by counsel that it may be unnecessary to deal with the merits of the extension of time application because the second application would of necessity involve a consideration of the question of the applicant’s entitlement in relation to the fourth and fifth Lee elements. I consider such an approach to be inappropriate, inter alia, because it was strongly argued by counsel for the respondent that the injury or disease in respect of which the applicant made her new compensation claim on 5 July 2005 (which lies at the heart of her second application to review) is substantially different from that which underpinned her original claim in July 1993. Therefore to make a decision which will in effect allow or prevent a re-determination of the s14 issues governing the original claim may have different consequences from a review of the s14 issues pertaining to the new claim.
30. In support of her application for an extension of time the applicant’s solicitors wrote to the respondent on 7 July 2005 in the following terms:
“Pursuant to Section 62(3)(b) of the Safety Rehabilitation & Compensation Act, Mrs Almond hereby seeks an extension of time in which to request a reconsideration of Australia Post’s determination on 11 August 1999 ceasing liability to make payments of compensation. An extension of time is sought on the following grounds:
Reasons for delay
1. At the time of the determination Mrs Almond did not have the benefit of legal advice or assistance.
2. At the time of the determination Mrs Almond had returned to work, albeit with ongoing symptoms.
At the time of this determination and by reason of it, Mrs Almond was extremely upset. She was aware that a request for reconsideration could be made but felt unable to do so on her own and required assistance. Assistance was not forthcoming from either her Union or any other source. At the time of the determination Mrs Almond felt a sense of hopelessness with regard to anything she could do to alter the decision.
3. By reason of the symptoms resulting from Mrs Almond’s work injury, she struggled to continue performing her work duties toward the end of 1999. She also understood that her position may be made redundant. Accordingly, Mrs Almond approached the General Manager seeking a redundancy and was offered the same which was accepted by her in October 1999.
4. Following her redundancy Mrs Almond moved to the east coast of Tasmania and was employed in a supermarket. This employment ceased in October 2003 by reason of her symptoms of pain.
Following cessation of her employment, and in light of her financial difficulties, Mrs Almond sought access to Centrelink benefits. Centrelink benefits were refused on the grounds of her domestic arrangements. The refusal came before the Administrative Appeals Tribunal. At that time Mrs Almond received advice that she ought to obtain legal assistance in gaining access to the Safety Rehabilitation & Compensation Act entitlements in respect of her workplace injury. Prior to this indication, Mrs Almond believed that since the determination of Australia Post in 1999, and her subsequent departure from that employment, she was precluded from seeking to gain access to the payment of any benefits pursuant to the Safety Rehabilitation & Compensation Act.
In light of the advice Mrs Almond sought legal assistance and access to the Safety Rehabilitation & Compensation Act for payment, initially for permanent impairment, and subsequently for incapacity.
Merit of the Case
5. We enclose herewith report obtained from Dr Humphries dated 20 October 2004 which quite clearly supports the existence of an ongoing incapacity by reason of the work injury.
We accordingly request a determination as to the above”.
31.During the hearing before the Tribunal on 26 February 2007 the applicant gave oral evidence supporting the allegations made in that letter. Under cross-examination she conceded that, after she had been reviewed by Dr Stevenson shortly before the respondent’s determination to terminate her entitlements in August 1999, she had written a lengthy letter to the respondent (T45) dated 4 August 1999 containing a critical rejection of many of Dr Stevenson’s findings and opinions. Counsel for the respondent submitted that this demonstrated that she had an awareness of and a capacity to deal with issues relevant to her claim in a coherent and rational manner. The applicant also agreed that she received a letter from the respondent saying they were stopping her payments and that she knew that she “had to write back within a specific period fo time” and that she had a “right to dispute that decision”. She then sought union help "without success" she claimed, although she conceded the union representative, Mr Sturgess, told her to "write a letter" The suggested contents of the letter were not mentioned by the applicant. She said that she was unable to write the letter because she was “too upset”. She also sought advice from Dr Humphries who had treated her in respect of her painful neck and shoulders over a number of years. It was submitted by counsel for the respondent that the applicant chose to seek a redundancy package rather than pursuing her compensation claim and as a result she left her employment “for a sea change” with her male partner. It was submitted that the applicant decided to attempt to have the determination of August 1999 overturned only when she failed to secure payment of Social Security benefits in 2004. At first she sought a lump sum payment for permanent impairment from the respondent. An application to the AAT to achieve this purpose failed and was dismissed on 23 February 2005. In June 2005 she applied for incapacity payments and in July 2005 sought an extension of time to challenge the August 1999 determination.
32. The applicant’s delay in seeking to review that determination has been very substantial and I find no basis in the evidence for finding that the applicant was mistaken, misled or misadvised as to her entitlement to seek a review during the 30 day period specified in s62(3)(b) of the SRC Act. It is not unfair to observe that she chose alternative means of support until her thoughts of contesting the August 1999 decision were reawakened by a suggestion from a Centacare officer after she failed to gain a benefit from Centrelink in 2003. Even then she failed to take effective action to that end until 2005. I can see little, if anything, in the events and circumstances which have occurred since August 1999 which would enliven the exercise of a discretion to extend time in the applicant’s favour.
33. As to the strength of the applicant’s claim, which is always a matter for consideration where an extension of time is sought, the Tribunal in this case is in a much better position than many decision makers in comparable cases, because all relevant evidence relating to the substantive claims has been investigated in detail during the hearing process of the two current applications. True it is that, as respondent’s counsel submitted, there are substantial questions about the applicant’s ability to establish that she was incapacitated within the meaning of Section 19(1) of the SRC Act in August 1999 and thereafter, but in my opinion the applicant’s most difficult hurdle is to be found in the central issue viz. whether or not she suffered a relevant injury or work-related disease in 1993 which subsisted until August 1999. Whilst it will appear from my reasons as to the second application for review that I am not prepared to find in favour of the applicant on that issue, that does not necessarily mean that in considering her extension of time application, it can be said that her substantive case is without foundation, or is weak. Perhaps the fairest way of dealing with the issue for present purposes is to consider the strength of her case as a neutral element in the exercise.
34. Counsel for the respondent has also raised the issue of prejudice. It was submitted that a time delay of 6 years is itself prejudicial. Apart from any of the other considerations which I will mention, delay itself causes uncertainty, inaccuracy and faulty recollection in witnesses. This problem was apparent in the present case. Much of the applicant’s evidence lacked important detail. For example she described the initial onset of pain in July 1993 as “aching and burning in my right shoulder and” (indicating) “just here and here, up my neck and down my arm and it was excruciating...”. She said that thereafter the symptoms have “always been the same”, the only change being that “it moved from my right side to my left side as well, on both sides, and my neck, the mid part of my neck and both sides”. She maintained that these symptoms persisted, unabated except for an occasional “reasonable day” until the present time, even while she was performing light duties in her employment with the respondent. She said the pain eased when she went on holiday to Cape York in 1994 but re-established when she returned to work.
35. The applicant’s description of almost continuous severe pain is at variance with other evidence, for example, the “History” set out in rehabilitation adviser Kate Webber’s reports of 18 February 1994, 15 April 1994 and 30 May 1994 (T15, 16 and 17 respectively). Plainly the contemporaneity of these historical notes and the picture they give of the applicant's progress is more reliable and is to be preferred to the story of unremitting pain given from the witness box by the applicant. This does not mean that the applicant has been deliberately untruthful but rather that her recollections have become blurred and generalised by, amongst other things, the effluxion of time. While part of that problem may fairly be attributable to the applicant's delay since August 1999, it should not be overlooked that from 1993 to 1999 the respondent accepted and dealt with the applicant on the basis that her claimed incapacity based on injury or work-related disease was legitimate and compensable. As a consequence there was no particular need for the applicant to remember the events giving rise to her claim during that period.
36. Counsel for the respondent referred to prejudice resulting from the delay between 1999 and 2005 in the following terms:
“In that period the respondent has had an inability to have the applicant medically examined between August 1999 and 2006; an inability to continue to offer suitable employment from October 1999 to the present time; an inability to continue to rehabilitate the applicant from October 1999 to the present time; an inability to review the applicant’s claim and ongoing entitlement to compensation, if any, between October 1999 to the present time.
The applicant’s actions have misled the respondent into assuming that the matter was finalised. The respondent has also suffered a financial detriment, paying out a voluntary redundancy package of 32,000 when the applicant is now seeking to show that she wasn’t entitled to receive one because she is incapacitated for employment”
Except for the last point as to the applicant’s redundancy entitlement which is perhaps debatable and will be discussed later, counsel’s points are, in my opinion, well made. The principles which should be applied in respect of an application to review an extension of time sought under Section 62(3)(b) were referred to by the Full Federal Court in Comcare v Willems (supra). In that case the Court took the view that the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, dealing with a personal injury action and limitation of actions legislation was “a very different statutory regime to the beneficial legislation in which s62 appears”. Nonetheless Senior Member M D Allen in a detailed discussion of relevant authorities including both Willems & Taylor (Hewson v Australian Postal Corp 1998 50 ALD 994) was able to discern a number of principles which should be taken into account by the Tribunal in determining whether or not an extension of time ought to be granted. I agree with his analysis.
37. In my opinion the evidence in the present matter supports the conclusion that:
(i) The applicant was at all relevant times fully aware of her entitlement to seek a review of the determination of August 1999.
(ii) The applicant made a conscious decision not to pursue that entitlement but chose rather to cease her employment and pursue an alternative source of income at St Marys.
(iii) The applicant has failed to provide an acceptable explanation for her failure to proceed within the time limited by s60(3)(b).
(iv) There has been prejudice to the respondent in the way described by respondent’s counsel in the passage reproduced above in paragraph 36.
I am not persuaded that this is a case in which the extension of time sought should be granted.
The Second Application - T2006/45
38. The applicant has also made a second application for review. On 1 July 2005 she lodged a claim with the respondent asserting that on 18 July 1993 @ approximately 3.30 pm she had sustained injury to “neck, both shoulders, upper arms and mind”. Having regard to the time and date of the alleged injury and the general description of its nature it require no great stretch of the imagination to see that the applicant was attempting to re contest the respondent’s decision in August 1999 repudiating liability to pay her compensation on the ground that her painful neck and shoulder condition was not work-related. The applicant’s new compensation claim was rejected by the respondent on 21 February 2006. The applicant sought reconsideration of this determination on 27 February 2006. On 23 March 2006 the respondent’s reviewing officer advised the applicant that the determination of 21 February 2006 was affirmed. This constituted a reviewable decision under s62 of the SRC Act and on 3 April 2006 the applicant applied for review by the AAT, pursuant to s64 of the SRC Act and s29 of the AAT Act. The original determination by the respondent on 21 February 2006 was in the following terms: “After viewing all the evidence on file I hereby determine that Australia Post is not liable to pay compensation benefits pursuant to Section 19 of the SRC Act 1988”. Neither the determination nor the accompanying letter raised an issue as to the existence of a work-related injury or disease which, as I have already mentioned during discussion of the applicant’s application for an extension of time, was central to the determination to cease disability payments to the applicant in August 1999.
39. Similarly, when the decision of 21 February 2006 was reviewed on 23 March, the reviewing officer confined herself to s19 issues and affirmed the 21 February determination essentially upon the basis that the applicant had a capacity for full-time duties but voluntarily chose to cease her employment with the respondent on 1 October 1999 and that there was no evidence to support a contention that “any current symptoms” Ms Almond may be suffering are referrable to her previously claimed condition. Again there was no reference to s14 issues as to whether or not the claimed condition was an injury suffered during the course of her employment or a disease contributed to by her employment. In my opinion the restricted nature of the grounds upon which the reviewable decision was based does not preclude me from considering this issue for myself upon review. That I am able to do so is, in my opinion clearly supported by the decision of the Full Federal Court in Telstra Corp Ltd v Hannaford (supra).
40. A number of diverse issues were raised by counsel during the hearing of the review by the Tribunal but having regard to the conclusions which I have reached upon the evidence I find it unnecessary at this stage to do much more than identify the arguments and explain why I consider them to have no significant bearing upon the decision I have reached.
41. Counsel for the respondent submitted that the injury/disease relied upon by the applicant as providing the foundation for her new claim was substantially different from that which had been relied upon as supporting her original claim in July 1993. I have no hesitation in rejecting this, either as a necessary conclusion from the description given each injury/disease by the applicant in her respective claims, or as an appropriate conclusion from the applicant’s description of her progressive symptoms and the various medical opinions expressed. The applicant’s case, at least in this respect has been clear and consistent. I have already referred to some of the core elements of her evidence. She suffered excruciating pain at work on 18 July 1993. This was in her right neck and shoulder. Since then the pain has persisted and spread to the left side of her neck and shoulder. She has also become depressed as a consequence of the chronic pain. These painful progressions of her condition are unremarkable in terms of physiological or psychological factors, and particularly in the absence of any evidence of any subsequent sudden injury or disease, should in my opinion be regarded as part and parcel of the development of her original condition. Indeed having regard to Dr Ian Sale’s evidence, it may be appropriate to take the view that her painful symptoms were probably the product of psychiatric disturbance from the outset. Dr Humphries thought that by November 1995 the applicant’s claimed experience of chronic pain was such that she was “drifting into” a chronic pain syndrome due to central sensitisation of pain (Transcript p82-83). Accordingly it is plain to me that there is no real causation issue necessitating the disentangling of her original condition from her present condition. Whatever the original cause of the applicant’s symptoms there has been no new or intervening cause or event which has occurred between then and now and her present condition is merely an apparently not improbable development or progression of the original problem.
42. Counsel for the respondent also raised issues as to whether or not there was any evidence upon which to assess the quantum of incapacity payments which should be made to the applicant in the event that she is found to have established the s14 elements of her claim. It was submitted that the applicant had now shown the necessary components of the formula used for compiling weekly incapacity entitlements under s19. As will be seen, findings on these questions are unnecessary.
43. Nor in the circumstances do I need to make findings as to the effect that the applicant’s acceptance of a voluntary redundancy package on 1 October 1999 may have had upon the amount per week that she was, or is, able to earn for the purposes of Section 19(4) of the SRC Act. (See for example Collins v GIO Australia (for Telstra Corporation Ltd) (1999) AATA 564, 2 August 1999 and Chamberlain v Comcare (Deputy President B M Forrest), 24 January 1997, V95/1362.
44. However this was a question which received attention from both counsel during the hearing and probably would have had a considerable bearing upon the Section 19(4) issues if my findings as to the compensability of the applicant's disabilities had been in her favour. Accordingly it may be helpful to make the following observations. After the applicant had received notice of the respondent's termination of her compensation entitlement on 11 August 1999 and without having taken any action to have that determination reconsidered, she approached the respondent's State manager and requested a voluntary redundancy package. The applicant says that she did this as she had learnt that her then current position of Administrative Officer 2 Sales and Marketing was to be abolished. However she agreed that she had no discussion with the manager, Mr Mark Worsley, as to the possibility of her future placement in some alternative position with the respondent. The respondent submits that the applicant, whose partner had sought and obtained a redundancy package himself some months previously in order to facilitate his re-establishment in the St Marys business, was not interested in continuing to work for Australia Post. It was contended that when her compensation stopped she saw a way to secure funding which would enable her to accompany him and join in running the business. The applicant denied this suggestion and claims she would have stayed with Australia Post had an alternative position been offered to her. I find this difficult to accept in the circumstances disclosed by the evidence. I note that at one stage while giving evidence the applicant said "The reason that I went to Mark Worsley and asked Mark Worsley for a package was because I was absolutely distraught over the fact that Australia Post had turned around and decided not to accept that claim" (ie compensation claim) "any further". However her conversation with Dr Davidson, mentioned in his report of 24 May 1999 (R8), suggests hat she was contemplating the move to the East Coast with her partner even before her compensation payments were terminated (see transcript p46). Correspondence between the applicant and respondent and the "Australia Post Redundancy/Redeployment/Retraining Agreement" (which were documents belatedly received into evidence during the course of final submissions) provide a useful matrix within which to consider this issue and I think the inference should clearly be drawn that, if the applicant had wished to continue in the respondent's employment every effort would have been made to accommodate her in a new position and, in view of the assistance previously shown by the respondent with her rehabilitation and treatment, I am confident that suitable alternative duties would have been found. My view is that the redundancy package negotiated between the parties was voluntary in the true sense of the word and, consequently, having regard to the issues raised by a consideration of Section 19(4), the applicant would have had difficulties in establishing any entitlement to weekly compensation in and after August 1999. How long this state of affairs may have continued would obviously depend upon further analysis of her physical and mental progress following her move to St Marys but I do not propose to venture into that area. In making the above comments I have not overlooked the opinion expressed by Dr Humphries in Exhibit T41 to the effect that the applicant should cease work due to ongoing symptoms. This view is at variance with the opinion of Dr Stevenson in his report, T44 (23 June 1999). Dr Humphries was vigorously cross-examined as to his reasons for this apparent change of outlook from his previously held view that the applicant was doing suitable work and was coping, albeit with some pain. Although it was not put directly to Dr Humphries I suspect that his views as to her ceasing work may have been initiated or at least coloured by the applicant herself broaching the subject during her consultation with him which preceded that report. At all events I prefer the evidence of Dr Stevenson on this issue.
45. I turn now to examine what I consider to be the central and determinative issue raised by the applicant’s second application. As mentioned earlier she had been employed by the respondent for about three and a half years before she experienced the symptoms which lie at the heart of her claim. It is clear enough that the applicant blames her work activities on 18 July 1993 as the cause of the pain which she claims developed in her right neck and shoulder area that day, but the relationship of those activities to the onset of the pain is far from clear. It is, for example difficult to say whether the onset of the pain was sudden or gradual. Nor is it clear whether the applicant had been developing strain or discomfort in the affected area earlier in the day. The applicant gave evidence that in 1991 she had experienced neck and shoulder pain “as a result of sorting mail with Australia Post” but these symptoms had quickly resolved. She had no recurrence of these symptoms despite continuing with mail sorting duties between 1991 and July 1993. The nature of the work processes or events leading up to the onset of pain in 1991 were not explored in evidence and the cause and nature of the pain symptoms then experienced were not clarified. There was no evidence as to the weight or dimensions of articles which were being handled by her nor was there any evidence as to the speed at which the sorting process was carried out.
46. In her evidence at the Tribunal hearing the applicant said that at the time of the onset of pain on 18 July 1993 she was sorting letters at a large letter frame. The difference in dimensions and the methods of sorting operations between a large letter frame and a standard letter frame were referred to in evidence. Photos of a large and small (or standard) frame were also tendered in evidence (Exhibits R1 & R2). When operating at a small frame the operator is usually seated. When operating at a large frame the operator can choose to stand or sit. It was not suggested that either of the frames shown in R1 or R2 was the frame at which the applicant was actually working on 18 July 1993, but nonetheless those photos serve as useful points for reference in understanding the fairly simple sorting tasks required of the applicant.
47. The applicant’s evidence that she was sorting at a large frame was challenged in cross-examination (see Transcript p.32 & 33). In the Incident Report (T Documents T3 @ p13) signed by the applicant on 20 July 1993 she stated the date and time of “injury or when symptoms noticed” as being 18/7/93 @ 3.30 pm. She stated that her starting time had been 8.30 am and her scheduled finishing time was 4.50 pm.
48. In Section C of the Report she said “while sorting on small letter frame I felt pain in neck and right shoulder area (Sunday). After sorting for approximately 15 minutes on Monday I felt pain return. I mentioned problem to shift manager Barry Robbins (sic)/Gill Ralph”.
49. Under this, in response to the pro forma question “Where did the injury or incident occur?”, she has responded “Standard Letter Frames”. In the Report by B Robins, the Shift Manager, (T4 @ 13) he describes the applicant as having been seen by him “sorting at the standard letter frames” at 2pm on 19-7-93. Whether this date is incorrect (ie whether or not it should have been 18-7-93) was not touched on by the evidence. His report says that the applicant reported to him "at 4.00 pm on 19-7-93 with sore neck and shoulder, pins and needled (sic) down the right arm”. According to the medical report of 16 August 1993 by Dr O’Halloran, who issued the applicant’s first medical certificate, the applicant told him that she had developed pain while sorting “on the small letter frame”. The applicant saw him on 20 July 1993. The dimensions of neither the small nor the large letter frame suggest that the pigeon holes or slots, into which letters are placed, require excessive reaching by an operator. If the operator is seated at the small frame the top row of pigeon holes is at about eye level. If the operator is standing at the large frame the top row of pigeon holes is also at about eye level. If, as the applicant says, she was seated at a large frame it is likely she would have had to stretch up for a short distance to reach the top row of pigeon holes but I do not accept her evidence that this was how she was working on 18 July 1993. I find that she was seated and was sorting mail at a small frame at the relevant time.
50. The applicant described her initial experience of pain as follows:
“...I had aching, and a burning in my right shoulder, and just here and here, up into my neck, and down my arm, and it was excruciating, and I said to Lindsay next door to me, "My arm is killing me."
She was then asked if the symptoms had changed to any extent over the years, “including 2004, 2005 and now”. She replied:
“... No, it's always been the same. The only change was that it moved from my right side to my left side as well, or both sides, and my neck, the mid-part of my neck, and both sides. Otherwise the symptoms are the same. I have either pain, burning. It's an ache and a burn. I get loss of feeling in my upper arms, pins and needles in my hands sometimes, pins and needles in my back, and this aching and burning in my neck. And I get headaches that go from my neck up over the back of my head to my temple and eye.
In respect of those headaches are they similar, the same, or different to the headaches or the migraines you experienced before?‑‑‑Different.
[The applicant had described her experience of migraine/headaches which had troubled her from time to time before July 1993]
In what way are they different?‑‑‑There's no aura for a start, and I can feel - it goes from my neck, the back of my neck, up over the head, into that right or left temple and eye, whereas a migraine isn't like that. A migraine, you have the aura and pain in that temple eye area, but not over the back of the head.
Aside from those physical symptoms that you have described, do you experience any other type of symptoms, or any other symptoms at all presently?‑‑‑I get depressed, depressed because I can't do anything, because whatever I do, whether it's washing up, hanging clothes on the line, walking the dog, anything, I end up in a lot of pain.
And how - over what period have you suffered from that symptom of depression?‑‑‑Depression started, I would say, with frustration that led to depression, from '94 to now, because I can't do anything to - there's nothing I can do. I can't garden for very long, or if I lift anything, you know, I've got to be careful, and I lift and do some things, because I've no one else to do them, and whatever it is I always end up in pain.
Had you experienced that symptom of depression, that you describe as depression before the 1993 incident?‑‑‑No. No.
What duties were you performing at Australia Post between making your claim in 1993 and 1999?‑‑‑When I filled out the claim form after that Sunday I was on light duties at the Hobart mail centre. They did - I still have the same symptoms so I was moved down to the office area for a short time. Then I was re-deployed to the Bathurst Street Post Office, and still had those symptoms. I was having physiotherapy as well. But still had those symptoms of pain and burning and the numbness. And they needed someone down at head office on the - in the credit management switchboard area, so I went down there, and that's where I stayed.
And what duties were you performing there?‑‑‑I was on the switchboard. Did a little bit of mail sorting into the various departments boxes, and looked after the photocopier, did some photocopying for people, did some laminating, and that also caused me pain. And basically I sat at my desk and looked after the phone.
And how - what was your experience of symptoms that you described in your neck, your shoulder, your arms, and depression during that period, performing those sorts of duties?‑‑‑The same. It's always been the same.
When you say the same, the same as what?‑‑‑The same aching, burning, and headaches, the frustration, and - the frustration of my pain, the frustration of not being able to work properly, and people can't see your pain, and you look okay, but you're not really, and just frustration and depression. And over those years the depression has got worse and when I have a very bad period of depression I want to die. I don't see any life for me. I can't contribute, I can't join anything in St Mary's because people can't depend on me, such as the ambulance, or any clubs, or anything, because people can't depend on me.
At present are your symptoms there all the time?‑‑‑Most of the time, yes. Occasionally I'll have a reasonable day, but not very often”.
51. Dr O’Halloran’s report of 16 August 1993 discloses that on examination of the applicant on 20 July 1993 she had “muscular spasm” about the right neck and shoulder blade. He said “I consider Miss Almond (sic) injury to be of a transient nature and expect full recovery in a matter of weeks. Her prognosis is good”. Dr O’Halloran said that the applicant attributed her symptoms to reaching to a high shelf on the letter frame both on the occasion of the trouble in 1991 and also on 18 July 1993. This suggests that a specific activity had precipitated the pain on each occasion rather than it being a condition of gradual onset over an extended period of time. This conclusion would also be consistent with the applicant’s evidence during the Tribunal hearing. Dr O’Halloran was not called to give oral evidence.
52. In a report by Maree Webber, the applicant's rehabilitation consultant, dated 18 February 1994 (T15 p26) a concise history of the applicant’s condition and work history has been provided. Ms Webber was not called to give evidence but the contents of her several reports were not challenged and they seem to me to be a more reliable account of the applicant’s progress than that which she provided herself in evidence.
53. In Ms Webber’s report of 18 February 1994 she says this:
“Kate was put off work on 20 July 1993 with right neck and shoulder pain. Kate returned to work on 9 August 1993 on full hours, restricted duties in the Mail Centre. Kate started regular osteopathic treatment, which relieved her symptoms, but her pain recurred whilst she was working, particularly with looking down and reach as combined actions. Kate found her pain improved when she was not at work. Kate saw her GP Dr Salter regularly for review.
Kate had a flareup in pain in early September 1993, which persisted for 10 days. Kate’s duties were modified further with regular rotation during this time. Her pain slowly eased with a 10-15 minute rotation of duties. A portable desk slope was purchased for Kate, which was helpful for her desk duties.
The frequent rotation of duties was continued until 25 October 1993. From this date Kate did the Airport duty for five weeks. Kate found she managed better on day rather than afternoon shift on the Airport duty. The method of mail stacking into the truck was improved during Kate’s second week in this duty, and she felt she managed better with this. Kate had a flareup of pain in this position, in mid November, which she related to heavy workload, and temporary lack of desk slope.
Kate resumed duties in the Mail Centre from 29 November 1993, continuing as she had done previous to the Airport duty, with 10-15 minute rotations, and no small letter sorting. Kate worked until 6 December 1993 in the Mail Centre. She described her pain as niggling during this time.
Kate took sick leave from 7 December 1993, for surgery for a medical condition unrelated to her work injury.
For further details of the History, please refer to the Initial Report dated 13 September 1993, and Progress Reports dated 12 October 1993, 11 November 1993 and 20 December 1993.
PROGRESS
Kate resumed working following her sick leave, on her previous light duties in the Mail Centre, on 24 January 1994. Kate reported that she had had no neck or shoulder pain during her time off work. Within two days of returning to work, Kate’s previous symptoms of neck pain, burn and tingling had returned. Kate returned her GP, Dr Salter, and he recommended redeployment to a position that would not continue to aggravate Kate’s symptoms.
A management of return to work meeting was held at the Mail Centre on 2 February 1994, and it was agreed that Kate would be redeployed to the position of Trainee Postal Services Officer.
Kate began her redeployment on Monday, 7 February 1994, at the Bathurst Street Post Office, working the normal hours of the Post Office. I assessed her work place on 4 February 1994, to advise about correct posture at the computer and to check her counter duties.
Kate has now been working in her redeployed position as Trainee Postal Services Officer for two weeks, and to date says she has had only very minimal ache in her neck. Kate describes her pain as vastly improved.
REHABILITATION PLAN
SHORT TERM GOAL
To monitor Kate’s progress in her redeployed position as Trainee Postal Services Officer.
LONG TERM GOAL
To place Kate in a position as Postal Services Officer
ACTION
I will keep in touch with Kate and liaise with her supervisor and doctor if necessary.
TIME FRAME
I understand the training period for Postal Services officer to be 3-6 months.
IN CONCLUSION
Kate has now been placed in a redeployed position, as Trainee Postal Services Officer, Bathurst Street Post Office. After two weeks in this position, Kate describes her symptoms as vastly improved. I would expect her to be able to continue in this position without further aggravation to her injury. The movements which aggravated her pain in her previous position, ie combination repetitive reach out and looking down, are not required in her new position”.
In a further report of 15 April 1994, Ms Webber said (inter alia):
“... Kate has now been working in her redeployed position as trainee Postal Services officer in the Bathurst Street Post office for nine weeks. She appears confident in her new position and reports she is very happy with the work.
...
Overall, Kate feels as though she is coping well with her training program. The flareups noted above can hopefully be avoided by careful attention to the position of her arms and shoulder as she works, and by taking breaks from prolonged sessions of stamping or keying
...
Kate has now been working in her redeployed position, as Trainee Postal Services Officer, Bathurst Street Post Office for nine weeks. Overall she feels as though her pain is much improved, although she has had two occurrences of increased pain, both of which I feel can be avoided in future by simple changes to the duration and working heights involved. Kate is gaining improvement in her symptoms with physiotherapy treatment”.
54. During her oral evidence the applicant agreed “that despite being in agony for six years from 1993 until [she] left in 1999” she was working full time and, although not always working on Sundays, she was also working overtime on occasions when overtime was available. The applicant says that she now has “the odd day where I don’t have bad pain”. The longest period she has been with “hardly any” pain was during 8 weeks in 2001 while she was working part time in the supermarket at St Marys.
55. The applicant was asked in evidence as to the degree of restriction that she experiences in carrying out normal everyday tasks and activities. Her responses are set out in the following passage of transcript:
“Yes. So as a result of these pains, I assume that you do all you can to not use your arms; is that right?‑‑‑I have to hang the washing out, I have to do the washing, I have no-one else to do it.
Okay?‑‑‑I have a lady that cleans for me. I have to do other things that may well be not the best thing, but if I have no‑one else to do them, there is only me to do them.
So is it your evidence that you are able to do normal, domestic chores?‑‑‑No.
You can use your arms normally?‑‑‑I cannot vacuum or iron. If I swept the floor, when I wash up, when I peg the clothes on the line, it all causes pain.
So what I am saying to you is that if you have to do those duties, you do them, but anything else that would cause you to use your arms, you avoid; is that right?‑‑‑I drive. I use my arms.
As a normal person would?‑‑‑I'm careful.
Do you use your arms as a normal person would?‑‑‑Yes.
Okay. So there is no activity that you don't do because of your neck or shoulder pain?‑‑‑No.”
56. The central difficulty which arises from a consideration of the applicant’s description of the onset and continuation of her painful neck and shoulders, is in ascertaining the existence of an "injury" which occurred during the course of her employment or an "ailment" which was caused, contributed to or aggravated in a material degree by her employment. According to the applicant, activities of any kind involving the use of her arms, precipitates painful symptoms so it is not possible to say that these problems are only related to the peculiarities or exigencies of her work environment, It is also of significance that the pain which she attributed initially to the tasks which she was performing on the letter frame persisted with equal severity (on her evidence) even after her work duties were substantially modified for rehabilitation purposes. There is also the puzzling fact that there was no specific event during the applicant’s work activity on 18 July 1993 which apparently caused the pain condition to commence. For example she doesn’t say that she was handling heavier than usual postal items (which one would not expect on the small frame) or that she twisted her neck or body in some unusual way. She told Dr O’Halloran she was “stretching” but this was not repeated in evidence to the Tribunal and, without some greater detail a mere description of “stretching” would not, in any case, tend to explain the onset of excruciating pain without clear medical evidence to explain the mechanics and consequences of such activity. However, as I have already found, the applicant was working on a small frame on 18 July 1993, so the likelihood that she was stretching to any significant extent or that she was handling a heavy postal article appears to be remote. Furthermore the applicant claims that notwithstanding the excruciating pain at that time, she continued to work to the end of her shift. She came back to work next day and, this time, it seems, that she was pain free until she had been working for a quarter of an hour or so when the pain recommenced. Medical examinations thereafter disclosed no clinical evidence of physiological change in the applicant. Dr O’Halloran initially found evidence of muscle spasm and Dr Humphries, when he examined the applicant in August 1994, was unable to discover a lesion or organic cause for the plaintiff’s pain condition. He thought it may be caused by poor working posture and agreed it was possibly the result of a non work related activities although the applicant had given no history to suggest such a conclusion.
57. In a second report dated 1 November 1995 (T26) Dr Humphries said this:
“Miss Almond appears to be suffering from cervical dysfunction with secondary cervical headache and arm pain. This could also be termed a functional thoracic outlet syndrome or a chronic cervical pain syndrome. Unfortunately no definitive test exists which can confirm these diagnoses as they are functional rather than pathological diagnoses”.
He also expressed the opinion that “it is probable that” (the applicant’s) “condition should be considered work related”. He repeated the opinion on 24 May 1999 when he reported again:
“I would regard this as a postural overload of the cervical spine. It has assumed chronic proportions. A percentage of cervical dysfunction will follow this path. I do consider the condition to be work related as whenever she takes a substantial break from work her symptoms abate almost completely”.
58. Expressed in these terms it would seem that at best Dr Humphries is expressing the view that work activities trigger painful symptoms related to the applicant’s spinal condition but it falls short of assigning any pathological cause to her presumed underlying physiological problem.
59. In his report of 20 October 2004 (T59) Dr Humphries expressed his diagnosis of the applicant in the following terms:
“The diagnosis in this lady appears to be of cervical dysfunction with a chronic pain outcome. Ms Almond gave an initial history of this pain having been triggered by the posture requirements of her workplace and has maintained that this was the primary cause of her onset of symptoms since that time. She does have evidence of degenerative change in the cervical spine in the form of disc desiccation but this is not particularly abnormal for her age group”.
He also said:
“Ms Almond’s initial complaint seemed to relate primarily to the postural requirements of her employment at Australia Post. These were noted to have commenced in 1993 and she attributed them to mail sorting. Through her period of employment at Australia Post, the repetitive nature of her work appeared to exacerbate her symptoms”.
He continued:
“It is not possible to define a specific cause of Kathryn’s current diagnosis and incapacity for work. Her symptoms seem to have originated during the period of her work with Australia Post and have continued since that time. There is not however a specific injury incident nor has a pathological diagnosis which could be directly attributed to her work ever been made. The grounds for considering this to be an occupational related pain are that her symptoms were initiated at work and exacerbated by her work”.
He was asked to comment on the report of Dr Stevenson dated 23 June 1999 which had been obtained by the respondent and supplied to the applicant’s solicitors. Dr Humphries observed as follows:
“Dr Stevenson’s report is comprehensive and to all intents and purposes accurate. The difference in opinion lies around whether he believes that her work initiated her pain, I have chosen to accept Ms Almond’s history that her pain was initiated by her work practice and exacerbated by ongoing work practice”.
60. During the course of his oral evidence Dr Humphries was asked as to his understanding of the mail sorting duties which the applicant was engaged in at the time of experiencing her initial pain:
“Have you been to a mail centre and observed the duties that she was performing?---I have had people from the mail centre come and describe them to me, but I haven’t been there.
So a lot of these decision you are making rely on a very vague understanding of what the duties involve?---They rely on a vague understanding, but I have had a number of clients from the mail exchange and I’ve had a number of rehabilitation providers discuss the requirements with me including drawing pictures and boxes and what have you”.
61. There was no direct or indirect evidence to suggest that the applicant’s pain condition was identical or similar to any condition which had frequently or commonly been experienced by other mail officers in performing mail sorting activities of the kind upon which she had been engaged. (Compare: Beer v Australian Telecom Commission No D88/3 AAT No 5974, R K Todd Deputy President, 20 June 1999 and Vella v Australian Postal Corporation S98/382, 25 November 1999, Senior Member Kiosoglous). In his report of 23 June 1999 Dr Stevenson reported:
"There is a modest increased incidence of neck pain in occupations which require repetitive use of the upper limbs like machine operators and carpenters, but because pain in often present in individuals without any risk factor, making causative hypotheses in any individual case may be difficult".
62. Nonetheless evidence suggesting a general co-relation between mail sorting activities and the onset of neck and arm pain may have been very useful in establishing a causal connection between such duties and pain in the neck and shoulders.
63. Dr Humphries is an experienced medical practitioner in the field of sports related injuries and he had the applicant under his general care over a significant period of time. His reports were useful and he gave his oral evidence with care and authority.
64. Dr Paul Stevenson, a Consultant Physician and member of a group known as Tasmanian Medico-Legal Consultants was engaged by the respondent to examine and report upon the applicant in June 1999. He saw the applicant for the first time on 23 June 1999. He saw her again on 3 October 2006. In his report of 23 June 1999 (T44) he said:
“It is very difficult, if not impossible, to make a specific diagnosis in regard to the condition which Ms Almond suffered in July 1993. I note that she has now been under the care of Dr Humphries for approximately four years and he has been unable to make a specific pathological diagnosis.
She experienced an episode of neck pain in 1993 and it is of interest that the pain now appears to have migrated to a different part of her body, so it is by no means clear that the two conditions are identical or continuous.
It is an established fact that in the analysis of cervical pain, only approximately 10% of such pains can be anatomically sourced to a specific pathology. The vast bulk, some 90%, is not susceptible to anatomical diagnosis. I agree with Dr Humphries, that this is a functional condition rather than a pathological diagnosis, ie it reflects to some degree how the neck and other muscles and nerves of the neck work rather than specific pathology. Dr Humphries has attempted to describe the mechanics, but am sure he would regard this analysis as conjectural. Cervical dysfunction merely means that the neck does not work very well. Postural overload of the cervical spine is also conjectural as the main load placed on the spine is related to the task of carrying the head.
The Royal Australian College of Physicians, in its guidelines on the management of so-called repetitive strain type injuries, recommends use of the term Regional Pain Syndrome or Localised Fibromyalgia with reference to these non-specific non pathologically diagnosable somatic discomforts. It means very little aside from pain in one part of the body but at least it does not have an inaccurate or inappropriate implication with regard to pathology or causation as other terms do.
It is possible that in Ms Almond’s case there has been a minor musculo-ligamentous strain, although the work related activities involved do not appear to have been exceptionally demanding.
...
The evidence that her symptoms were related to her duties as a mail officer is of course conjectural. It is possible that there was some relationship but the evidence for this appears to be based on the fact that her symptoms were initially reported by her at her workplace and that she described her pain as being, on the whole, diminished but by no means absent whilst she was on holidays. These factors are merely suggestive and are by no means diagnostic. Many pains and discomforts tend to be diminished when an individual is in a more relaxed circumstance such as whilst on holidays, but they are not necessarily occupational in consequence”.
65. Whilst I do not accept the suggestion in the second paragraph of the passage quoted that there is no clear indication that the 1993 pain condition was “Identical” to or “continuous” with that from which the applicant suffered in 1999, I found Dr Stevenson’s report in other respects to be helpful, thorough and persuasive. The same may also be said of his second report of 9 October 2006. He gave evidence before the Tribunal by videolink, and while it may be said that he was not as fluent in his delivery as either Dr Humphries or Dr Sale, I found his evidence to be very useful. In addition to confirming his earlier views as to the nature and extent of the applicant’s pain condition he pointed out that when the applicant was seen last year it seemed to him that it was “highly likely that much of her pain reflects depressive illness and psychological factors rather than physical injury”. As I have indicated above I take the view that insofar as the applicant’s condition may have progressed by spreading to her left side, and by being reflective of her depressed state secondary to her chronic pain, these factors do not remove her claims from the ambit of her original compensation claim in 1993. In short there is no need for the applicant to demonstrate a new pathway for her claim on the assumed basis that the 1993 condition is not essentially the same as that in respect of which she has made the second claim under consideration. That condition has been continuous since 1993 and is the genesis and sine qua non of her present claim. Counsel for the applicant provided written submissions as to this issue on 10 May 2007, in response to my memorandum for counsel dated 18 April 2007. Between pages 4 and 8 she deals with the issue and, in substance, I accept her submission.
66. Dr Stevenson was asked in evidence to comment on a view expressed by Dr Humphries that the applicant’s pain condition may have been caused by “static overload” of her arm or arms. This was a causative factor suggested for some forms of occupational overuse syndrome in Beer v Australian Telecom Commission (supra) and discussed by Deputy President R K Todd in paragraph 25 of that decision. The following exchange occurred in the course of Dr Stevenson’s cross-examination:
“Dr Humphries has given evidence to the Tribunal, and that evidence is to the effect that the cervical dysfunction arose out of a static overload whilst Ms Almond was performing the duty of sorting the mail?---Did he explain what the static overload was?
The holding of the arm in front repetitively and on a sustained basis?---That puts a – that’s fairly light physical muscular use.
Can we - - -? ---I don’t know of any evidence that would actually injury the neck.
What I would like to explore with you, Doctor, is whether or not, as a – on a conceptual basis, you accept the proposition that people suffer symptoms – a constellation of symptoms that affects the neck and shoulder when subjected to a static loading or an overload mechanism?---Well, static – the idea of static loading was raised, as I understand it, first in the RSI epidemic, when it was put as one explanation for arm pain, and I don’t know of any evidence-based guideline that accepted it. The Royal Australasian College of Physicians had guidelines on occupational overuse syndrome and it didn’t address it. I know of American studies – authoritative documents on work-related arm disorders which just don’t discuss static loading. I mean, static loading is – my understanding from her was that she was actually moving her arms, so her arms weren’t static. So I don’t know of any actual – so it’s really too – in this case it seems too slippery a hypothesis to have scientific merit”.
In respect of this issue I prefer the evidence of Dr Stevenson to that of Dr Humphries. I am not persuaded by, and in the absence of more compelling evidence would not accept as probable, the suggestion that the applicant’s pain condition was caused by a situation of static or other form of muscular or ligamentous overload.
67. Dr Stevenson conceded under cross-examination that “it was possible she could have had a minor soft tissue strain”, not observable on x-ray, but, he said "that wouldn’t provide an explanation for a decade of pain”. Later he said that the applicant’s sorting activities “could have been an occasion of pain but it didn’t provide any basis for an explanation for any long term pathology”. He said "what she was describing was not very demanding work, she was sorting mail and doing a variety of clerical duties. The upper limb work that she was describing was, say, much less than many people to for healthy recreational sport".
68. It was not contended by the applicant that her work activities “aggravated” a pre-existing condition, but nonetheless I gave this possibility some thought, only to reject it as a sound basis for finding that the applicant had established her claim. I am of the view that pain per se is not necessarily an “ailment” within the meaning of that term as part of the definition of “disease” in the SRC Act but, where “proofs are otherwise adequate”, a case based upon the occurrence of pain and its cause is allegedly due to working activities, a finding in an applicant’s favour may succeed. The wise observations of Deputy President R K Todd in Beer’s case (supra) are very pertinent to this (see paras 59 and 60). I am prepared to accept , that pain, in common or general parlance is an "ailment" whether caused by physical or mental stimuli (see also Anderson v Australian Postal Commission (1993)) but for an "ailment” to qualify as a compensable disease under the SRC Act it must be shown to have been contributed to in a material degree by the relevant employment (see Comcare v Sahu Khan [2007] FCA 15 @ para 15 per FinnJ) or alternatively it must be shown to have been aggravated by the employment. In the present case I have difficulty in concluding that the employment made a causal contribution to the onset of the applicant’s pain condition and I have a similar difficulty in finding that, if the pain condition should properly be regarded as caused by or resulting from some non work related condition or event preceding the 18 July 1993, it was aggravated by the work activities of that day or any other time. The concept of aggravation is usefully discussed in Ballard & Sutherlands “Annotated Safety, Rehabilitation & Compensation Act 1988” (6th Edition @ p28 and following). I think the most pertinent reference given by the authors is to the observation of Evatt & Sheppard JJ in Commonwealth v Beattie (1981) 35 ALR 369 @ 378 where their Honours said:
“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. The evidence earlier recounted shows this to be a very different type of case. Thus 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”.
69. The difficulty for the applicant in the present case is that she gives no evidence of a pre-existing ailment or injury which could properly be regarded as a condition which work activity on 18 July 1993 “aggravated”.
70. There are additional dimensions of difficulty for the applicant in the present case even if I am wrong in concluding that this is not a case where the applicant has established a basis for success in the “aggravation” provisions of the Act. She accepted redundancy in 1999 and thereafter did not work for the respondent again. Assuming for the moment that her work activities were aggravating a pre-existing condition up until that time, thus entitling her to weekly compensation and medical expenses, how could it be said that thereafter her employment was aggravating her condition unless it could be said aggravation had in fact become the cause or source of a new compensable injury. This type of problem was adverted to by Estcourt Deputy President and Dr Ericksen Member in Carpenter v Comcare (2004) AATA 528 esp @ paras 13-15. The matter is further complicated by the fact that the applicant has associated her pain with household chores and activities which she has continued to perform over the years, albeit with painful consequences.
71. Furthermore, if Dr Sale’s opinion is accepted that the applicant’s psychological stressors before 18 July 1993 provide an acceptable or persuasive basis for her initial and chronic experience of pain there would be no room for considering aggravation as a relevant issue in the case. Dr Sale said in his report of 3 November 2006:
“It is not for me as a psychiatrist to judge whether there is a musculoskeletal problem or syndrome that provides an explanation for Ms Almond’s symptoms. However, I am able to say that there are adequate psychological factors present both in the past and currently that would provide the basis for the presence of unexplained pain”.
There is no need to reproduce the difficult personal and medical factors to which Dr Sale adverted in coming to his conclusion. I found his evidence to be persuasive and helpful and I accept his opinion. This is not a case in which it has been claimed or established that a pre-existing mental problem was aggravated by work. Nor is it a case where it has been shown that a predisposition to mental problems has resulted in abnormal disability as a result of a work incident.
72. Counsel for the applicant contended that the evidence showed that the applicant had suffered an “injury” as defined in the SRC Act Section 4. Reliance was placed upon the High Court decision in Zickar v MGH Plastic Industries Pty Ltd 1995-1996, 187 CLR 310 in which a majority of the Court held that a worker who collapsed at work after the rupture of a cerebral aneurism causing severe brain damage had suffered a personal injury in the course of his employment notwithstanding the congenital nature of the aneurism. However, the Court did not resile from earlier decisions in which “injury” in the primary sense, had been defined as a “sudden or identifiable physiological change which could properly be described as a personal injury, not being a disease”. For the purposes of the problem confronting the present Tribunal one of the determinative questions is whether the applicant has demonstrated a sudden or identifiable physiological change as the cause of her pain syndrome or disorder, and apart from Dr Humphries evidence coupled with the chronological sequence of events recounted by the applicant, there is little, if anything, to suggest that conclusion.
73. I accept Dr Humphries as a generally sound witness but I am unable to share his conclusion that the applicant suffered an injury at work. In the circumstances of this case and the absence of additional material supportive of the applicant’s claim I do not accept his opinion that the applicant sustained a compensable injury. Dr Sale, like Dr Humphries and Dr Stevenson regarded the applicant as truthful and it should not be thought that any comments that I have made in these reasons should be construed as indicating that I believe her to have been deceitful or deliberately misleading in any way in giving evidence although I entertain some misgivings about the bona fides of her claim to have been working on the large letter frame. Other aspects of her evidence which I have found to be unreliable or unhelpfully vague are essentially due to her poor memory and the passage of time, possibly coupled with her natural preoccupation with the case.
74. The final outcome however is as follows. I am not satisfied on the balance of probabilities that the applicant suffered an injury being a physical or mental injury arising out of, or in the course of her employment with the respondent. Nor am I so satisfied that the applicant suffered an ailment which was contributed to in a material degree by her employment. Nor am I so satisfied that she suffered an aggravation of any such injury or disease, arising out of or in the course of her employment or to which her employment contributed in a material degree. In consequence it is concluded that the respondent is not liable to pay compensation to the applicant in accordance with the SRC Act S14(1) or any other provision of the Act.
75. Accordingly the decision under review is affirmed in both matters now before me ie T2005/87 and T2006/45.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 26, 27, 28 February 2007, 8 March 2007 and 4 April 2007
Date of Decision 25 May 2007
Counsel for the Applicant Ms Leigh Mackey
Solicitor for the Applicant Ogilvie Jennings
Counsel for the Respondent Ms Ann McMahon
Solicitor for the Respondent Mr C Cunningham, Simmons Wolfhagen
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