BITUIN and AUSTRALIAN POSTAL CORPORATION
[2011] AATA 571
•18 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 571
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0807
GENERAL ADMINISTRATIVE DIVISION ) Re JULIETA BITUIN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member Egon Fice Date18 August 2011
PlaceMelbourne
Decision The Tribunal sets aside the reviewable decision and remits the matter to Australian Postal Corporation to calculate the compensation to which Mrs Bituin is entitled under s 14 and s 16 of the Safety, Rehabilitation and Compensation Act 1988.
Australian Postal Corporation shall pay Mrs Bituin’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.
..........[sgd] Egon Fice.............
Senior Member
COMPENSATION – Mail officer – Employment with Australia Post – Manual sorting – Melbourne parcel facility – Reasonable medical treatment – Lower spine – Shoulders – Neck – Injury – Incapacity payments – Wilful and false misrepresentation – Aggravation of an existing disease – Aggravation of an existing ailment – Motor vehicle accident - Injury simpliciter – X-ray – Ultrasound – Reasonable medical expenses
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A, 5A(1)(b), 5B, 6(1), 7, 7(7), 14, 16, 19(4)
Accident Compensation Commission v McIntosh [1991] 2 VR 253
Comcare Australia v Porter (1996) 70 FCR 139
Iannella v French (1968) 119 CLR 84
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Taber’s Cyclopaedic Medical Dictionary (17th ed, 1993)
REASONS FOR DECISION
18 August 2011 Senior Member Egon Fice 1. Mrs Julieta Bituin commenced working with Australian Postal Corporation (Australia Post) in April 1997 as a mail officer. In October 2009 she was working at the Melbourne Parcel Facility which deals with parcels, and not letters. She was sorting parcels manually, a task reserved for large parcels which do not fit into the parcel machine, by removing parcels from a unit load device (ULD). Mrs Bituin suddenly experienced severe pain in each of her shoulders, neck and lower back when lifting a parcel. Mrs Bituin completed an Incident Report in which she stated that the accident occurred at 1.02am. She reported the incident immediately, seeking initial treatment which was provided by Ms Samantha Kuhl at 1.10am. The incident was witnessed by Ms Anna Koster. The incident was also reported to Mr Michael Davey, Mrs Bituin’s supervisor, at 1.10am.
2. Mrs Bituin lodged a claim for rehabilitation and compensation under s 19(4) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on 24 November 2009. That claim form also contained a statement by Mr Shane Kiernan, who described himself as Ops Support Mgr, verifying that the circumstances of the claim as asserted by Mrs Bituin were substantially correct.
3. In a letter dated 22 December 2009, Australia Post informed Mrs Bituin that it denied liability for the injuries to her shoulders, neck and back. On 11 January 2010 Mrs Bituin requested reconsideration of Australia Post’s primary determination. On 15 January 2010 a reconsideration delegate of Australia Post affirmed the primary decision. Mrs Bituin then lodged an application for review of the reconsidered decision by this Tribunal on 26 February 2010.
4. The issues which arise from my determination are:
(a)whether Mrs Bituin sustained an injury arising out of, or in the course of, her employment with Australia Post;
(b)if the answer to (a) above is in the affirmative, the nature of that injury;
(c)whether Mrs Bituin is precluded from claiming compensation by reason of the matters set out in s 7(7) of the SRC Act;
(d)whether Australia Post is liable to pay the reasonable medical expenses of Mrs Bituin in respect of injury to her lower spine, shoulders and neck; and
(e)whether Australia Post is liable to pay Mrs Bituin incapacity payments for the period 12 January 2010 to 9 February 2010.
THE REPORTED INJURY
5. Mrs Bituin testified that on 31 October 2009 while working in the manual sorting area, sorting non-machineable parcels, she attempted to remove a parcel from a ULD and felt pain in each of her shoulders, neck and lower back. Mrs Bituin said she reported the injury immediately and completed an Incident Report. That Incident Report records the time of the incident at 1.02am and it also records that she had initial treatment at 1.10am on that same day. In her witness statement made on 25 November 2010, Mrs Bituin also said that she had no prior history of any injury to her back, neck or shoulders.
6. Mrs Bituin’s injury occurred in the early hours of a Saturday. On the Monday following that weekend, she was referred to a facility doctor, Dr Lester Mascarenhas, who diagnosed bilateral sprained trapezius. His clinical notes record that Mrs Bituin complained of tender trapezius on both sides although she was able to bend without restriction. Dr Mascarenhas recommended restricted duties until 25 November 2009. Mrs Bituin again consulted Dr Mascarenhas on 18 November 2009 complaining that the pain and stiffness was worsening, particularly at night. She complained of pain predominantly over the trapezius bilaterally, although it was worse on the left side. Dr Mascarenhas referred Mrs Bituin for physiotherapy. She was to continue light duties and to be reviewed after a further two week period.
7. Dr Mascarenhas again saw Mrs Bituin on 1 December 2009 when he reported her as improving with physiotherapy. She was nevertheless to continue her reduced duties for a further three weeks.
8. Mrs Bituin was referred to a rheumatologist, Dr Kevin J Fraser, who saw her on 10 December 2009. Dr Fraser provided a report dated 15 December 2009 to Australia Post. On examination, Dr Fraser recorded that Mrs Bituin had a full range of movements with the right shoulder and only slight discomfort at the extremes. On the left shoulder, abduction and flexion were somewhat restricted and painful and there was also pain at the extreme of internal rotation. He found that there was only mild local tenderness of the trapezius muscle. Although Dr Fraser had arranged for an ultrasound of the left shoulder, he did not have a radiological report before him when he completed his report. He undertook to provide a supplementary report when an ultrasound became available.
9. Dr Fraser reported that he found it hard to accept Mrs Bituin would have simultaneously sustained multiple injuries, even soft tissue strains, as a result of the incident as described to him. He was also of the opinion that any soft tissue strains would have resolved or would have been improving by the time that he examined her. He said he wondered about the possibility of a left rotator cuff lesion but on balance, thought it unlikely. Dr Fraser then concluded with the following statement:
The widespread skeletal pain, involving her neck, shoulders and back is perhaps most likely due to fibromyalgia. This is generally considered to be due to psycho-social causes rather than occupational factors.
10. Dr Fraser subsequently received the results of an ultrasound of Mrs Bituin’s left shoulder from MIA Victoria dated 15 December 2009. It stated:
No demonstrated tear nor tendinopathy of the rotator cuff nor of long of head of biceps tendons. No bursal thickening or fluid and no bursal bunching on abduction.
Comment: No demonstrated abnormality.
11. Dr Fraser provided a supplementary report dated 17 December 2009 in which he referred to the ultrasound of 15 December 2009. He said that the negative result reinforced his opinion; presumably that Mrs Bituin was suffering from fibromyalgia.
12. On 23 December 2009 Mrs Bituin consulted Dr Alex Terris, a practitioner at the same medical centre where Dr Mascarenhas practiced, Cairnlea Super Clinic. Dr Terris’ clinical notes record Mrs Bituin complaining of left side neck and shoulder pain and that physiotherapy was not assisting her. Apparently Mrs Bituin said that the pain could go down her left arm with weakness and numbness in her left hand. Dr Terris described her left shoulder as tender along the supraspinatus. He prescribed Prednisolone.
13. In January 2010, after Australia Post had rejected liability for Mrs Bituin’s injuries, she began seeing her own general practitioner, Dr Herrero, who referred her to Dr David Middleton, an occupational health and rehabilitation consultant. Dr Middleton referred Mrs Bituin for physiotherapy treatment and prescribed Endep and Brufen. He continues to treat her and Mrs Bituin consults him on a monthly basis. She said she has temporary relief from pain but continues to take Endep and Brufen and takes days off from work when her injuries are too painful.
INJURY OR DISEASE – LEGAL DESCRIPTION
14. Ms A Malpas of counsel, who appeared on behalf of Mrs Bituin, submitted that Mrs Bituin sustained an injury in the course of her employment to her spine, shoulders and neck on 31 October 2009. Mr M Snell, who appeared on behalf of Australia Post, submitted that Mrs Bituin did not suffer an injury as claimed, but rather suffered an aggravation of an existing disease; but was in any event precluded from succeeding on her claim because she had made a wilful and false representation that she did not suffer, or had not previously suffered, from a disease. As best I could understand Mr Snell’s submissions, the underlying ailment suffered by Mrs Bituin was due to mild degenerative changes arising out of previous injuries sustained by her in a motor vehicle accident in 1989.
15. Insofar as it is relevant, injury is defined in s 5A of the SRC Act. It provides:
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
As I understood Mrs Bituin’s claim, it was that she satisfied s 5A(1)(b) of the SRC Act in that she suffered a physical injury which arose out of, or in the course of, her employment with Australia Post. In the alternative, Ms Malpas submitted that if in fact Mrs Bituin suffered from an underlying ailment, it was aggravated to a significant degree by the incident which she reported on 31 October 2009.
16. A disease is defined in s 5B of the SRC Act as follows:
(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.
The expression ailment is defined in s 4(1) of the SRC Act and it means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). The expression aggravation is also defined in s 4(1) of the SRC Act and it includes acceleration or recurrence.
17. Section 7 of the SRC Act contains provisions relating to diseases. Section 7(7) of the SRC Act deals with wilful and false representations. It provides:
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
18. There is a substantial body of law which deals with the distinction between injury simpliciter and disease. Many of those cases deal with the distinction between an injury caused by an external force on the body and one which occurs internally in the absence of an external force. However we are not concerned with that distinction in this case. Nevertheless, those cases also deal with the essential nature of what is commonly referred to as injury simpliciter, or injury in the primary sense of that word. For example, in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 the High Court was required to deal with the claim by Mr Zicker that he suffered a cerebral aneurism in the course of his employment. Toohey, McHugh and Gummow JJ said, at 334:
… that the aneurism was an autogenous disease but the appellant's claim to personal injury within par (a) is based on the rupture which occurred. … If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.
Their Honours also referred to Accident Compensation Commission v McIntosh [1991] 2 VR 253 where Murphy J, with whom Crockett and Cummins JJ agreed, said:
… If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture - something quite distinct from the defect, disorder or morbid condition, which enables it to occur.
19. Kirby J in Zickar’s case took a slightly different approach. In his view, following changes to the New South Wales Workers’ Compensation Act which in effect split the definition of injury from the definition of disease, he said, at 351:
… No longer is there a dichotomy between "personal injury" in its full sense and “disease injury" within the additional part of the definition. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. …
and, further, at 352:
The approach to the definition of “injury" which I favour does not necessarily mean that every catastrophe connected with a progressive disease will fall within the definition of “personal injury", primarily so defined. Whether, in the case of a progressive disease, leading inevitably to a sudden or identifiable pathological change, it can be said that such change constitutes a “personal injury” can be left to determination on a case by case basis. …
… The sudden tear which caused the haemorrhage and the clot constituted a “personal injury". It was no less so because it was internal …
20. The fact that a person has an underlying pathology does not alter the possibility of the occurrence of an injury which may be connected with that pathology. The High Court made this clear in Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286. Gleeson CJ and Kirby J referred to Zickar’s case and said, at 299:
Secondly, the mere fact that a sudden physiological change is in some way connected with an underlying “disease" process does not, of itself, prevent the classification of such a change as an "injury" within the primary statutory provisions that apply to such a case.
Gleeson CJ and Kirby J also said, at 300:
All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word.
In agreeing with Gleeson CJ and Kirby J, McHugh, Gummow and Hayne JJ said, at 308:
The circumstance that a sudden physiological change has been caused or provoked by disease does not prevent it from constituting a "physical injury" for the purposes of s7(1).
21. Australia Post’s argument stems from the fact that Mrs Bituin was a passenger in a motor vehicle which was involved in a collision on 16 September 1989. The vehicle was being driven by Mrs Bituin’s husband. Mrs Bituin lodged a WorkCare claim, having lost two days off work as a result of her injuries. She suffered no major injuries according to the insurance adjuster’s report, but it stated that Mrs Bituin suffered from anxiety and some stress; and that she suffered sore arms, neck, head and minor bruises on her knees. The medical certificate provided by the examining doctor, Dr J M Deady, simply states:
Road traffic accident v. Upset & anxiety, no major injuries.
In the compensation claim form, Mrs Bituin referred to her injuries as whiplash injury. There is no mention of any injury to either of her shoulders.
22. Mrs Bituin was cross-examined about the motor vehicle accident. When asked if she suffered any neck or back pain, she answered no. She denied that she had any medical treatment and said only that she had been examined. She believed she had one day off work. When Mr Snell put to Mrs Bituin that the accident report indicated other injuries, Mrs Bituin said she could not recall the nature of the injuries but she nevertheless maintained she did not have a problem subsequent to the accident. Mrs Bituin did not deny that what was stated in the accident report was correct but simply indicated that she could not recall the specific injuries. She maintained she suffered no pain following the accident.
23. Mr Snell then referred Mrs Bituin to entries made in the clinical notes of doctors who examined her at the Western Family Medical Centre. The relevant entries referred to by Mr Snell were:
31 May 2002 – left shoulder pain three weeks, on leave for one week, tender around left scapula, range of movement full but painful, Neurofen.
13 August 2004 – some neck pain radiating to the head and shoulder, experienced two days, lifting heavy objects at work.
18 October 2005 – pain upper left trapezium, one week, did not work Sat/Sun but has not improved.
2 February 2006 – left shoulder pain radiating to left side of neck.
19 December 2008 – left trapezium pain, has been busy at work, tender upper border left trapezium, left shoulder, range of movement is full.
27 February 2009 – has been having on and off left shoulder and left trapezium pain, work involves lifting, yesterday the [pain] was really bad, also small c/o elbow pain left more than right, and neck pain, neck range of movement is full.
24. In my opinion, it is of some significance that the time which elapsed between Mrs Bituin suffering a motor vehicle accident and her first recorded attendance at the Western Family Medical Centre complaining of shoulder pain was some 13 years. There was no evidence at all before me making any connection between the motor vehicle accident and the complaint in 2002. While the insurance adjuster’s report indicated she suffered from sore arms, neck, head and minor bruises on her knees, there was no evidence subsequently that the reported bruising to her arms, neck and head had any connection whatsoever with her shoulder complaint.
25. There also appears to be a problem with Dr Fraser’s diagnosis of fibromyalgia. It seems as though Dr Fraser has, somewhat prematurely, jumped at the conclusion of fibromyalgia because Mrs Bituin had been prescribed Amitriptyline (Endep) on 18 November 2009 by Dr Mascarenhas. However, Dr Fraser seems to have paid scant regard the words inserted by Dr Mascarenhas in respect of the treatment which were: Added Amitriptyline 10mg for night pain and refer for physiotherapy. When Dr Mascarenhas was asked about prescribing Amitriptyline, he said it was for night pains and that it might help her at a low dose rate. When asked if there was any evidence of a psychiatric component, Dr Mascarenhas said: No. Dr Mascarenhas agreed that Endep may be prescribed for psychological complaints if a patient’s condition was chronic, but he described Mrs Bituin’s situation as acute.
26. Mrs Bituin was referred to Dr Middleton in January 2010 by her general practitioner, Dr Herrero. Dr Middleton had been provided with a medical certificate prepared by Dr Terris from the Cairnlea Super Clinic. Dr Terris had diagnosed Mrs Bituin with likely subacromial bursitis with rotator cuff strain. Dr Terris provided a further report dated 27 April 2010 in which he stated that Mrs Bituin returned three weeks after the subacromial bursitis diagnosis and he made a further diagnosis of neck sprain. He said Mrs Bituin subsequently had an ultrasound scan showing no abnormality in the shoulder. He also referred to the fact that on her first visit, Mrs Bituin complained of a painful low back originating some two months prior to the consultation but she did not say that it was related to the injury sustained at work. Dr Terris also declined to comment on Dr Fraser’s fibromyalgia diagnosis.
27. Dr Middleton first saw Mrs Bituin on 18 February 2010. On that day, he also arranged for Mrs Bituin to have an x-ray and ultrasound of both shoulders. Dr Middleton said in his report that he noted the ultrasound arranged by Dr Fraser was reported as normal and, concerned by the accuracy of the reported ultrasounds of her left shoulder, he arranged for an ultrasound at Victoria House Medical Imaging, where he said: The results can be relied upon. While the x-ray disclosed no abnormality of the glenohumeral joint on either side, and there was no soft tissue calcification, on the right there was evidence of some focal bony spurring arising from the anterior margin of the acromion. However, the ultrasound of both shoulders was significantly different to that produced by MIA Victoria on 15 December 2009. The report stated:
On the right side there is evidence of mild anterior focal supraspinatus tendinopathy with some swelling. On both sides there is some fluid in the subacromial bursa and on abduction on both sides there is a very mild bunching with pain demonstrated. There is no focal tear of calcification of the rotator cuff on either side. There is no abnormality of the long head of the biceps on either side.
Conclusion: Evidence of mild anterior supraspinatus tendinopathy on the right associated with mild bilateral subacromial bursal impingement.
28. Dr Middleton also explained the mechanism of Mrs Bituin’s injury. Among Dr Middleton’s clinical notes were a number of photographs of the workstations and devices used by Australia Post when sorting parcels. There was a photograph of a ULD which is effectively a 1200 millimetre cube comprised of steel corner posts, a base and steel mesh sides. Visible are the fold-down gates on either side. In describing the mechanism of injury, Dr Middleton said that Mrs Bituin had to reach out at arms-length, equating to full abduction and elevation, flex and twist the lumbar spine in order to reach a parcel weighing approximately 10 kilograms. That description is consistent with the photograph amongst Dr Middleton’s documents. The gate on either side of the cube folds out from its centre section and a person reaching into the ULD, particularly to retrieve parcels on the rear side of it, would most certainly be doing precisely what Dr Middleton has described. Dr Middleton also said that ergonomically, the equivalent weight when a person was bending and twisting to pick up a 10 kilogram parcel from the ULD is regarded as three times the measured weight, equating to something between 25 and 30 kilograms effective weight. In my opinion, this provides a much better understanding of the reasons why an injury may occur to the shoulders and/or back when performing the duties described by Mrs Bituin. It also lends credence to Dr Middleton’s statement that Mrs Bituin’s injury was a genuine physical injury because the nature of the work is very physical.
29. When examined by Dr Middleton, Mrs Bituin described her symptoms as pain across the upper trapezius area extending down the left arm to the hand. She described the pain as a constant burning pain with numbness in the left forearm. She also described her right shoulder as painful in the upper trapezius area, which comes and goes. It was not as severe as the symptoms on the left side. The pain in her neck was described as being at the base of her skull, greater on the left than the right. Her lumbar spine was painful across the lumbosacral area which caused stiffness and disturbed her sleep. She described occasional sharp pains which come and go.
30. In his oral evidence, Dr Middleton agreed that Mrs Bituin suffered a genuine physical injury as she described it. He was not of the view that Mrs Bituin had chronic regional pain syndrome (CRPS). He reaffirmed his opinion that her current pain was the result of the injury as she described it.
31. When, in cross-examination, Dr Middleton was asked to explain the prior episodes of pain Mrs Bituin experienced in the trapezius area, he said that they came as no surprise to him given the nature of her work with Australia Post. He described them as minor events. He said that her current situation was quite different. She now had signs of impingement. He likened her previous shoulder pain and trapezius pain to feeling sore after a run but the impingement, which was supported by the ultrasound conducted on 18 February 2010, was a different matter altogether. Dr Middleton also said that his examination confirmed the ultrasound as she had a painful arc of abduction, not being able to get past the right angle or above the shoulder. He said that was a classical sign of impingement. According to Dr Middleton her previous descriptions of pain in the trapezius area did not describe impingement pain at all.
32. Dr Middleton was also asked if the symptoms Mrs Bituin described, particularly the pain running down her arm and to her hand was consistent with the pathology he evidenced. Dr Middleton said that it was not consistent with her shoulder pathology however, if there was poor shoulder function, and she had strained her neck, then he would agree. He confirmed that Mrs Bituin’s grip strength in the left hand was affected.
33. Mr Snell attempted to make something of the fact that Mrs Bituin is recorded by Dr Herrero as describing pain in the earlobes on 5 March 2010. Dr Middleton was asked about her complaining of this pain and whether it might indicate a functional problem. He said he was not aware of it, but he would need to look at functional aspects. The expression, functional overlay, is defined in Taber’s Cyclopaedic Medical Dictionary as:
The emotional response to physical illness. It may take the form of a conversion of hysterical response, affective overreaction, prolonged symptoms of physical illness after signs of the illness have subsided, or combinations of these reactions. Functional overlay may appear to be the primary disease and require skilful diagnosis to determine the actual cause of illness.
In cross-examination Dr Middleton said that he did not detect pain amplification or any signs of functional overlay.
34. Mr W Max Wearne, an orthopaedic surgeon, examined Mrs Bituin on 24 November 2010. He provided a report dated 6 December 2010 which was admitted into evidence. Mr Wearne also had with him at the time of writing his report the films of x-rays and ultrasounds performed by Victoria House Medical Imaging on 18 February 2010. He also had the ultrasound report prepared by MIA Victoria on 15 December 2009.
35. Mr Wearne pointed out that on examination, Mrs Bituin did not complain of pain in her neck or lower back but only of pain in both shoulders. He noted that Mrs Bituin had a history of pain in the region of her left shoulder going back as far as 2005. In his opinion, Mrs Bituin was suffering from mild soft tissue injuries of both shoulders. She did not have a medical condition in her neck or lower back. Mr Wearne also reported observing that when she removed her upper outer clothing for examination, although insisting she needed to be helped, she was able to demonstrate a full range of movement of her neck and both shoulders. On examination, Mrs Bituin managed a full range of movement of both shoulders, both elbows, both forearms, both wrists and a full grip with both hands. He was unable to detect any evidence of muscle weakness and there was no loss of skin sensation to light touch.
36. Regarding the radiological evidence, Mr Wearne agreed that Mrs Bituin had moderate subacromial and subdeltoid bursitis in both shoulders. He agreed there was evidence of mild tendinopathy of the supraspinatus and the subscapularis tendons in her right shoulder and mild supraspinatus tendinopathy in her left shoulder. He also said there was evidence of a mild, Type I, degenerative type SLAP (Superior Labrum, Anterior to Posterior). He did not consider that lesion to be significant. He said that such lesions are common in people of 45 years and older.
37. Mr Wearne considered that any connection between Mrs Bituin’s shoulder conditions and her employment with Australia Post were tenuous and more likely to be due to age related factors than to trauma.
38. In his evidence-in-chief Mr Wearne was asked whether he measured the range of movement of Mrs Bituin’s shoulders and neck. He answered that he did. However, on my subsequent questioning, Mr Wearne agreed that he did not measure those movements but rather observed them. He nevertheless maintained that Mrs Bituin had a full range of movement in both shoulders, including abduction above shoulder height. He said there were no signs of impingement on examination.
39. In cross-examination, Mr Wearne agreed that Mrs Bituin’s shoulder problems were consistent with the explanation she gave of how it occurred. He did not agree with Dr Fraser’s diagnosis of fibromyalgia, indicating there was a physical basis for her complaint which was connected with her employment. He also agreed that Mrs Bituin did not have pain free movement of her shoulders.
40. Dr Middleton provided a supplementary report dated 10 May 2011 in which he updated his earlier report as a consequence of continuing to treat Mrs Bituin. Despite having had a corticosteroid injection into the left subacromial bursa and treatment in the form of an exercise program, Mrs Bituin continued to complain of upper thoracic pain and radiation into the lumbar spine. Persistent pain also remained in the interscapular area which, Dr Middleton said, confirmed the presence of scapula instability. Despite Mrs Bituin indicating that her left hand was improving, Dr Middleton believed there remained residual bilateral rotator cuff tendonitis and probable minor impingement. Although working on restricted duties, Mrs Bituin complained that despite the rehabilitation plan provided by Australia Post’s rehabilitation provider, the pains in her shoulder increased towards the end of each shift. Dr Middleton arranged for a further MRI scan on both shoulders which was performed on 5 August 2010. His conclusions about Mrs Bituin’s cause of pain were confirmed.
41. The MRI scan revealed that Mrs Bituin had moderate subacromial and subdeltoid bursitis bilaterally. In her right shoulder, she had anterior supraspinatus tendinopathy and mild subscapularis tendinopathy as well as a mild SLAP tear. The left shoulder MRI disclosed mild supraspinatus tendinopathy and a Type I SLAP tear. Dr Middleton referred Mrs Bituin to Mr Richard Dallalana, an orthopaedic surgeon specialising in the shoulder joint. Mrs Bituin was reluctant to undergo surgical intervention. According to Dr Middleton, although Mrs Bituin finally agreed to surgery, that was subject to funding by Comcare. As liability had been denied, it did not proceed. By March 2011, Mrs Bituin was indicating that the pain had increased and was present in the right shoulder as well. She was also complaining of pins and needles in both shoulders, arms and hands. On 5 April 2011, after Australia Post failed to respond to the requests of Mr Dallalana and a neurologist, Dr David Freilich, to fund surgery, Dr Middleton made a clinical diagnosis of right carpal tunnel syndrome confirmed electro physiologically.
42. In his supplementary report, Dr Middleton also responded to the findings of Mr Wearne in his report of 6 December 2010. Dr Middleton pointed out that Mrs Bituin’s occasional muscular pains between 2002 and 2009, although related to the nature of the work performed for Australia Post, clearly responded to simple treatment and she was not diagnosed with problems involving the left rotator cuff or the glenohumeral joint. He also criticised Mr Wearne for omitting from his report a description of the duties Mrs Bituin undertook and the ergonomics involved, including maximum weight considerations. He described Mr Wearne as having no knowledge of the work process; the rate of the work; the height at which the work was performed; or the manner in which the parcels were presented and the process of how the parcels were distributed. He did not describe repetitive twisting, bending or forceful pushing or pulling. Dr Middleton said that in the absence of a description of that work, he questioned how Mr Wearne had come to his conclusion.
43. Dr Middleton also said that Mrs Bituin, after reporting the injury, was rested and did not return to work her shift. That clearly indicated an acute incident and an acute onset of an injury. Dr Middleton also criticised Mr Wearne for failing to recognise the impingement disclosed by the ultrasound of Mrs Bituin’s shoulders. He was also critical of the fact that Mr Wearne was unimpressed by the recommendations and diagnosis of Mr Dallalana, preferring to indicate that 45 year old people are on the decline and that on average, a 45 year old person suffers from impingement, SLAP injuries and painful shoulders. He said this was entirely different to his experience in the area. Dr Middleton concluded that the history provided to him allowed him to be clear and definite that there was an acute onset of shoulder pain reported to the supervisor after which Mrs Bituin was unable to continue with her work and was referred to the facility nominated doctors for treatment.
44. Mrs Bituin was also examined by Mr Peter N Mangos, a general surgeon, who provided two reports, both of which were admitted into evidence. They are dated 25 May 2011 and 7 June 2011.
45. On examination, Mr Mangos recorded that her shoulders revealed definite evidence of inflammatory change on the right side with restrictions of movement on that side as well as the left. In his opinion, Mrs Bituin was suffering from overuse syndrome involving her shoulders, neck and back as a consequence of work she was performing as a Mail Officer. This generally became worse to the point where it had not fully recovered by rest and treatment and the event which occurred on 31 October 2009 was the most severe which he said was the straw that broke the camel’s back.
46. In his second report, Mr Mangos referred specifically to the MRI of Mrs Bituin’s cervical and lumbar spine. He said her cervical spine revealed cervical spondylosis with a small central disc extrusion at C4/5 without true radicular involvement. The lumbar spine MRI revealed a similar finding with aggravated lumbar spondylosis and aggravation of the facet joints in particular, but also a small bulge of L5/S1 without true sciatica. He said his opinion previously given had not altered substantially and he maintained that as a consequence of her work, she suffered an aggravation of cervical spondylosis with a small rupture of C4/5 without true zygomatic pain and aggravation of lumbar spondylosis with a small ruptured L5/S1 disc without sciatica. He maintained she suffered severe bilateral shoulder tendonitis and bursitis.
47. In cross-examination Mr Mangos was asked whether her neck and back problems were a continuum of the pathology developing some eight or nine years previously and he agreed. He said that was his impression of it. He agreed that it was likely to be an aggravation or exacerbation of a previous condition over a number of years. When asked why he thought fibromyalgia was not an appropriate diagnosis, he said that it was used loosely and that it was not a diagnosis. He said the expression was used for conditions which medical practitioners were uncertain about. Mr Snell referred to the entry in the clinical notes of Dr Herrero regarding pain in the earlobes, but Mr Mangos said that was not a good example as it was unrealistic and could be referred pain. When told that Mrs Bituin complained of pain in the earlobes, he said he could not see the connection and it may be a different cause entirely. It was certainly not consistent with the injuries of which she complained.
48. Mr Wearne provided a follow up report dated 15 June 2011 which was accepted into evidence. In preparing that report, Mr Wearne was provided with a report from Mr Dallalana, a report from the Cairnlea Super Clinic and Dr Middleton’s second report.
49. He also re-examined Mrs Bituin on 7 June 2011. Mrs Bituin told Mr Wearne that she continued working full time but with physical restrictions. She also said that she had not had any further accident or suffered further injuries since he last assessed her. She continued to complain of constant pain in both shoulders and had trouble lifting objects. She maintained a 2.5 kilogram lifting limit at home and at work. She told Mr Wearne that she had ceased having physiotherapy because it appeared to be ineffective and was waiting for arthroscopic surgery which Mr Dallalana had advised. Mrs Bituin had brought with her the films and reports of the MRI of the lumbar and cervical spine performed on 3 June 2011.
50. According to Mr Wearne, the MRI of Mrs Bituin’s lumbar spine revealed mild degenerative changes all of which were consistent with age and of no particular consequence as far as Mrs Bituin’s general health and wellbeing were concerned. The main feature of the MRI of her cervical spine was the central disc extrusion at the C4/5 level which was causing moderate cord compression without cord signal abnormality. Mr Wearne said it was not uncommon for radiological appearances, particularly MRI appearances, to be different from the clinical findings and with Mrs Bituin’s full and painless range of neck movement, he felt that the radiological findings cannot be taken seriously.
51. Mr Wearne essentially maintained his prior diagnosis. He said Mrs Bituin had mild soft tissue injuries of both shoulders and because she was able to demonstrate a full range of movement of her neck, both shoulders and her thoracolumbar spine, the contrast between her complaints and lack of physical findings suggested an element of hypochondriasis.
52. Mr Wearne also referred to Dr Middleton’s report of 10 May 2011 and in particular his comments about being unaware of the ergonomics of Mrs Bituin’s workstation and the nature of her work with Australia Post. He admitted that was the case. Nevertheless, he was of the view that arthroscopic surgery at this stage would be an example of treating the radiology rather than the patient. He described that as a hazardous procedure.
53. In my opinion, close analysis of the medical evidence in this matter supports Mrs Bituin’s contention that she suffered an injury in the primary sense on 31 October 2009 while she was working for Australia Post. I find that the event as described by Mrs Bituin occurred in the manner in which that event is stated in the incident report. That is because she reported the event immediately and had initial treatment for it within eight minutes of the event occurring. She was then given time to rest and referred to a medical practitioner nominated by Australia Post. Furthermore, the event as described by Mrs Bituin was witnessed by Ms Anna Koster who made a witness statement to that effect on 24 November 2009. She said that she saw Mrs Bituin pick up a parcel from the ULD which was perhaps a little more than 10 kilograms in weight and then saw her suddenly in pain. Mrs Bituin complained about her shoulder, her neck, chest and back. There was no evidence to refute these statements. In addition, after an analysis of the work environment and the description given to him by Mrs Bituin, Dr Middleton concluded that her description of the injury was entirely consistent with that evidence. Even Dr Wearne, who had quite a different opinion about the injuries sustained, nevertheless agreed that the pain Mrs Bituin complained about was consistent with her explanation of how it occurred. The only significant difference appeared to be the severity of the injury and the fact that he viewed it as an aggravation of a pre-existing pathology.
54. However, as the High Court said in Petkoska’s case, a sudden physiological change which is in some way connected with an underlying disease process does not, of itself, prevent that physiological change being described as an injury in the primary sense. What is required to identify an injury in the primary sense is the sudden or identifiable pathological change. The uncontradicted evidence was that on the day of the claimed injury, Mrs Bituin was working without any restrictions. Although she complained of shoulder pain in the past from time to time, as Dr Middleton explained, those pains seemed to resolve after relatively short periods of time. That of course is consistent with the fact that she was lifting relatively large parcels from a ULD on the night of the event. I accept that it is unlikely she was working that evening lifting parcels of some 10 kilograms weight if she had any significant shoulder pain. The uncontroverted evidence was that on feeling the sharp pain in her shoulder, neck and lower back, she sought medical treatment. Subsequent radiology confirmed tendonopathy associated with mild bilateral subacromial bursal impingement. The event itself is properly described as a sudden or identifiable pathological change. For those reasons, I find that Mrs Bituin suffered an injury in the primary sense or, as it is sometimes described, an injury simpliciter.
55. I also find that Mrs Bituin’s shoulder injuries arose out of or in the course of her employment with Australia Post. Section 6(1) of the SRC Act, insofar as it is relevant provides:
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)...
(b)while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment; ...
The uncontroverted evidence was that Mrs Bituin was at her place of work and was in fact conducting that work at the time the injury occurred.
56. Mrs Bituin’s injury resulted in some incapacity for work and accordingly, I find she must be compensated for her injuries under s 14 of the SRC Act. Furthermore, I find Australia Post is liable to pay the costs of reasonable medical treatment in accordance with s 16 of the SRC Act. While those findings dispose of this matter, in the event that I am wrong, I will also deal with Australia Post’s contentions that the event which took place on 31 October 2009 constituted an aggravation of an existing aliment.
AGGRAVATION OF AN EXISTING AILMENT
57. Section 5B of the SRC Act defines a disease as an aggravation of an ailment suffered by an employee which was contributed to, to a significant degree, by the employee’s employment. Mr Snell submitted that there are two possible consequences which arise if Mrs Bituin had an aggravation of an existing ailment. The first is the application of s 7(7) of the SRC Act which provides that the aggravation of a disease shall not be taken to be an injury for the purposes of the SRC Act where that employee has made a wilful and false representation that they have not previously suffered from the underlying ailment. According to Mr Snell, this arises because Mrs Bituin, in her claim for rehabilitation and compensation lodged in November 2009, answered No to the question whether she had ever had a similar injury/illness. Mr Snell submitted that her medical condition can be traced back to Mrs Bituin’s motor vehicle accident in 1989.
58. However, as I have said above, there was no suggestion in any of the reports dealing with the motor vehicle accident that Mrs Bituin suffered injury to either of her shoulders. It was reported that she suffered from anxiety and stress and reported a sore neck which she described as whiplash. She did not receive any treatment for any injuries and the formal report of the accident indicated no major injuries. Mrs Bituin’s evidence was that she did not suffer any problems as a result of those injuries. In fact, her medical records from 2002 record shoulder pain and neck pain, particularly the upper left trapezius muscle, on an irregular basis between 2002 and 2009. Those complaints were sufficient for her to seek medical treatment. The last of those events occurred some seven months prior to the 31 October 2009 event.
59. The issue regarding s 7(7) of the SRC Act is whether Mrs Bituin, by failing to disclose any injuries she received to her shoulders, neck or back as a result of a motor vehicle accident in 1989, made a wilful and false representation when she ticked the no box on the claim form when asked whether she had ever had a similar injury/illness. The meaning of the expression a wilful and false representation was examined by Jenkinson J of the Federal Court of Australia in Comcare Australia v Porter (1996) 70 FCR 139. In that case, Mr Porter, in an application for employment, answered no to a number of questions dealing with his previous health and worker’s compensation claims. Some of answers were found to be incorrect. Nevertheless, Mr Porter contended that an incorrect answer did not attract the operation of s 7(7) of the SRC Act in his case because the answer was not made by him without a belief that it was true. Jenkinson J referred to an observation made by Barwick CJ in Iannella v French (1968) 119 CLR 84, at 94-95 where the Chief Justice said:
In my opinion, "wilful" connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known.
60. Jenkinson J then referred to the verbal context of the phrase false representation and said that exposed the legislature’s intention to the conceptions and language of the common law which distinguished clearly between the objective falsity of a representation, signified by the word false, and the representor’s knowledge of the falsity, commonly signified in civil proceedings by the word fraudulent. He then concluded, at 150:
The subject matter of s7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
61. When Mrs Bituin was cross-examined about the 1989 motor vehicle accident, it was apparent that her memory surrounding those events was not particularly clear. That is not intended as a criticism but rather simply recognises the fact that the accident occurred some 22 years ago. Her recollection was that she suffered an injury only to her knee and did not suffer any neck or back pain. Nevertheless, she correctly recalled that she was only examined and did not have any medical treatment. She recalled having one day off work. When the reports of the accident were put to her, Mrs Bituin simply said she could not recall the detail but she stated she did not have any problems with any of the described injuries after that event. In fact, this is borne out to a certain extent by the fact that the first recorded complaint Mrs Bituin made about her shoulders or neck was in 2002, some 13 years after the motor vehicle accident.
62. Between 2002 and the date on which she sustained the work injury in October 2009, the only complaints recorded related to the trapezius muscles. These complaints appear totally unrelated to anything which occurred in the motor vehicle accident and there was certainly no evidence so much as suggesting a link between the two events. Therefore, I find that by putting a cross in the no box in the answer to whether she had ever had a similar injury or illness, Mrs Bituin did not make a false representation let alone a wilful and false representation by doing so. There was no evidence before me which would allow me, on the balance of probabilities, to make any connection between the two events. Even if I were incorrect about that, given that the motor vehicle accident occurred some 22 years prior to Mrs Bituin making the representation on the claim form, if there was a misrepresentation, I would nevertheless find it was an innocent misrepresentation as she could not be expected to make any connection between her motor vehicle injuries and the injuries suffered in October 2009. Accordingly, I find that s 7(7) of the SRC Act has no application in her case.
63. If Mrs Bituin in fact suffered an aggravation of an existing condition, she would nevertheless be entitled to compensation for any incapacity which resulted from that aggravation provided that it was contributed to in a significant degree by her employment with Australia Post.
64. In my opinion, the evidence of both Dr Middleton and Mr Wearne supports the contention that if Mrs Bituin suffered from an ailment prior to her claimed injury on 31 October 2009 which was then aggravated, that aggravation was contributed to in a significant degree by her employment with Australia Post. Dr Middleton has made it clear that in his opinion, the mechanics of her injury are consistent with the work that she claimed to be doing immediately at the time the injury occurred. While Mr Wearne disagreed with the severity or extent of the injury diagnosed by Dr Middleton, he was nevertheless of the view that the problem Mrs Bituin suffered from was consistent with the explanation she gave of how it occurred. In fact, he viewed it as an aggravation of a pre-existing pathology. Therefore, if it were necessary, I would find that Mrs Bituin suffered aggravation of a pre-existing pathology which was contributed to, to a significant degree, by her employment with Australia Post. It follows that I would find that Mrs Bituin was entitled to compensation under s 14 of the SRC Act and also to her reasonable medical expenses pursuant to s 16 of the SRC Act.
CONCLUSION
65. Mrs Bituin claimed she suffered an injury to her left shoulder, neck and back when sorting parcels for Australia Post in October 2009. Although Australia Post contended that the event described by Mrs Bituin was an aggravation of an existing ailment, I have found it was an injury in the primary sense, or an injury simpliciter, because there was an event which caused a sudden or identifiable pathological change in Mrs Bituin’s shoulder, neck and back. I have also found that Mrs Bituin’s injury arose out of or during the course of her employment with Australia Post. She is therefore entitled to compensation for any incapacity caused by that injury and the costs of medical treatment obtained in relation to the injury, provided it was reasonable for her to obtain that treatment.
66. Alternatively, if Mrs Bituin suffered an aggravation of an existing ailment to her shoulders, neck and back, I have found that she is not precluded from claiming that aggravation to be an injury for the purposes of the SRC Act by reason of s 7(7). She did not make a wilful and false claim for rehabilitation and compensation. Therefore, as the medical evidence was overwhelmingly that the aggravation was contributed to, to a significant degree, by her employment at Australia Post, even if I am wrong about my finding that she suffered a primary injury, she would nevertheless be entitled to compensation for incapacity pursuant to s 14 of the SRC Act and to reasonable medical expenses pursuant s 16.
67. In my opinion, the decision made by a delegate of Australia Post on 15 January 2010, following reconsideration, was incorrect. I set aside that decision and remit the matter to Australia Post to calculate the compensation to which Mrs Bituin is entitled under s 14 and s 16 of the SRC Act.
68. Australia Post should pay Mrs Bituin’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.
I certify that the sixty-eight [68] preceding paragraphs are a true copy of the reasons for the decision herein of
Senior Member Egon FiceSigned: ........[sgd] Elise Montalto..........................................
AssociateDates of Hearing 27-28 June 2011
Date of Decision 18 August 2011
Counsel for the Applicant Ms A Malpas
Solicitor for the Applicant Victorian Compensation Lawyers
Counsel for the Respondent Mr M SnellSolicitor for the Respondent Clarke Legal
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