Blasco and Australian Postal Corporation (Compensation)

Blasco and Australian Postal Corporation (Compensation) [2017] AATA 1222 (7 August 2017)
Division:GENERAL DIVISION
File Number(s): 2014/2323; 2014/6110; 2015/4643
Re:Teresa Blasco
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Senior Member J F Toohey
Senior Member A Poljak
Date:7 August 2017
Place:Sydney

The Tribunal affirms the decisions under review.
..........................[sgd].............................................
Senior Member J F Toohey
CATCHWORDS
Compensation – claim for injury to neck, shoulders, arms, elbows and wrists – carpal tunnel syndrome – plantar fasciitis – liability denied – whether applicant suffered claimed conditions – whether applicant suffered a psychological injury – whether outside the bounds of normal functioning and behaviour – whether employment caused or contributed to conditions – whether conditions aggravated – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, subss 5A(1), 5B(1), (2), (3)
CASES
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Comcare v Mooi (1996) 69 FCR 439
Comcare v Reardon [2015] FCA 1166
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
Senior Member J F Toohey
Senior Member A Poljak
7 August 2017
INTRODUCTION

Teresa Blasco started part-time work as a postal officer at Australia Post’s Strathfield facility in September 2008. She has been a full-time employee at the same facility since March or April 2013.
On 5 November 2013, 4 July 2014 and 7 July 2015, Ms Blasco made claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a number of conditions which she said were caused, contributed to, or aggravated, by her employment with the respondent. The respondent denies liability to compensate Ms Blasco.
In these proceedings, Ms Blasco no longer presses some of her original claims. Consequently, the following are before the Tribunal:
(a)a claim for injury to the shoulders, arms and elbows sustained on or around 26 August 2013;
(b)a claim for injury to both wrists, diagnosed as carpal tunnel syndrome, sustained on or around 26 August 2013;
(c)a claim for a psychological injury sustained on or around 26 August 2013 as a result of bullying and harassment by her supervisor; alternatively, as a result of the pain of her physical injuries.
(d)a claim for an aggravation of her previous injuries when she returned to normal duties on 5 May 2014 after several months off work following her physical and psychological injuries, and a few months on restricted duties.
Ms Blasco originally sought review of a determination denying liability for an injury, described as “painful feet”, on or around 26 August 2013. The condition had been diagnosed as bilateral plantar fasciitis. By letter dated 24 November 2014 to the respondent’s solicitors, Ms Blasco’s then solicitors confirmed advice that the claim for plantar fasciitis would not proceed. Notwithstanding that correspondence, Ms Blasco has pressed her claim in these proceedings and so we have dealt with it.
Also included in Ms Blasco’s original claims was reference to injury to her neck on or around 26 August 2013. In their letter dated 24 November 2014, her solicitors advised that her doctors had reported that her symptoms of neck pain were “merely a manifestation of her bilateral rotator cuff tendonitis” and she “will assert cervical symptoms as a consequence” of the injury to her shoulders. Therefore, insofar as there is evidence of neck symptoms, we have dealt with it as part of the shoulder condition.
On 26 September 2016, the Tribunal visited the respondent’s Strathfield site with Ms Blasco and her legal representatives, and the respondent’s legal representatives. We were shown the machines Ms Blasco worked on at relevant times, and various trolleys and devices for transferring mail between locations within the site. Photographs of the various machines and relevant areas within the site were taken and are before the Tribunal.
The Tribunal also has before it statements from Ms Blasco dated October 2004 and 7 June 2016, clinical notes and reports from treating doctors, reports of medico-legal assessments, Australia Post documents describing mail officers’ duties, and documents provided by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975.
The Tribunal heard oral evidence from Ms Blasco; Dr James Bodel and Dr Kwan Yeoh, orthopaedic surgeons; Dr Tony Wong, general practitioner; Dr Stephen Allnutt and Dr John Champion, psychiatrists; and Associate Professor Neil McGill, rheumatologist. Clinical notes from general practitioner, Dr Stephen Lagaida, are also in evidence.
LEGISLATION
By s 14 of the Act, the respondent is liable to compensate an employee for an injury that results in incapacity, impairment or death.
Section 5A(1) provides that injury relevantly 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.
Subsection 5B(1) provides that 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.
Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development), and aggravation includes acceleration or recurrence: s 4. Significant degree means a degree that is substantially more than material: subs 5B(3)
Matters that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, include the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; any other matters affecting the employee's health: subs 5B(2)
For Ms Blasco it is submitted that she suffered a “frank injury” to her upper limbs within the meaning of s 5A(1)(b); alternatively, that the injuries to her upper limbs are diseases within the meaning of s 5B(1) that were contributed to, to a significant degree, by the “nature and conditions” of her employment. It is not in dispute that each of her conditions is an ailment for the purposes of s 5B(1).
BACKGROUND
From September 2008, Ms Blasco worked from 8am to 1pm, five days a week, with occasional overtime. In March or April 2013, she became a full-time employee and worked shifts of 7 hours and 21 minutes, with overtime of two hours most days.
Ms Blasco’s duties at the relevant times included letter processing, mail handling and manual sorting. At various times she worked on the following machines: the Culler Facer Canceller (CFC); the Flats Mail Optical Character Reader (FMOCR); the Multi-Line Optical Character Reader (MLOCR); the Bar Code Sorter (BCS); the “rocket launcher”; the “Spectrum 10”; and the MAN4 tower. She was required to sort mail of various sizes, lift small bundles of mail and move or lift letter trays of varying sizes and weights, load letter trays onto a conveyor, remove sorted mail from machine stackers, and transfer letter trays onto unit loading devices (ULDs) and other containers for moving between areas.
Up until August 2013, Ms Blasco worked the day shift, rotating between duties with two 15-minute tea breaks and one 35-minute meal break each shift. In 2010 she had some shoulder and arm pain and her shoes caused her some pain, neither of which is of consequence for present purposes.
On 20 August 2013, Ms Blasco was transferred, at her request, to the night shift where she worked on the MAN4 tower until 9 September 2013. In a written statement, she claimed she went off work because of “physical pain caused by the injury sustained at work as well as the psychological effects that my job was causing”. Whether her duties at the time were capable of producing the physical injury she complained of, and whether she performed any other duties at that time, are in dispute. Also in dispute is whether the events she complained of caused any psychological injury.
On 12 September 2013, Ms Blasco was admitted to Westmead Hospital for 24 hours vomiting blood, with blood in her stools, and with chest pain. She was diagnosed with gastritis. There is no medical evidence supporting a connection between her gastritis and her employment.
After her discharge from hospital, Ms Blasco was off work until 31 March 2014 when she returned on restricted duties, working five hours a day for five days a week and subject to a weight restriction of three kilograms. On 5 May 2014, she resumed full time hours and commenced sorting work in the parcel area. She claims the return to work aggravated the pain in her shoulders, neck and wrists. She says that, although her psychological condition has been better since returning to work and she is no longer experiencing bullying, she becomes very emotional and sometimes starts shaking when she thinks about past events.
MS BLASCO’S EVIDENCE
Although English is not Ms Blasco’s first language, we are satisfied she had no real difficulty giving oral evidence. We observed that, at times, she felt nervous and became upset during what turned out to be a lengthy hearing over several days. Even allowing for the unfamiliarity and pressure of a hearing, however, much of Ms Blasco’s evidence was unsatisfactory. Whether this was due to her poor memory, or because she was embellishing her claims, or not being truthful, we found much of her evidence about matters central to her claims unreliable.
For example, as we detail further below:
·Ms Blasco denied any problems with her feet prior to 2013 until confronted with medical records showing she attended at Mt Druitt Hospital in 2010 complaining of what doctors thought was plantar fasciitis; she conceded she had worn orthotics since but had “forgotten” to mention this;
·in written statements, and clinical histories given to doctors, she claimed she performed repetitive tasks at or above shoulder height which she conceded in cross-examination did not reflect the nature and extent of those duties;
·she gave oral evidence about duties on night shift that was at odds with her written statements, suggesting a relationship between those duties and her upper limb conditions which we are not satisfied existed; and
·her written claim to have lifted weights of 8 to11 kilograms was at odds with her oral evidence at hearing that she did not weigh any of the items she lifted and she could not give a comparable example of something of similar weight. The only available evidence before the Tribunal is photograph (28) which depicts a grey tray containing letters, with an approximate weight of 5.5 kg. This tray was weighed during the site visit in September 2016, and is representative of the trays Ms Blasco lifted when working in an area referred to as the ‘rocket launcher’. Despite the Australia Post policy for mail handling dated March 2003, stating “the maximum weight of a full letter tray is 16 kg, and 8 kg for a standard letter tray”, there is no evidence to support a finding that Ms Blasco actually lifted mail trays of 8 kg or above.
Moreover, it became apparent that Dr Yeoh and Dr Wong in particular did not have a complete understanding of Ms Blasco’s duties, either because of how she described them, or because they made assumptions about her duties. As a result, their evidence was of limited assistance.
SUMMARY OF DECISION
For the reasons that follow, we have concluded that:
(a)the performance of Ms Blasco’s duties did not cause, or contribute to a significant degree to, her shoulder or arm conditions and nor did performance of those duties aggravate any pre-existing condition; nor did she suffer a “frank injury” in the course of her employment;
(b)the performance of her duties did not cause or contribute to a significant degree to her carpal tunnel syndrome and nor did performance of those duties aggravate any pre-existing condition;
(c)the performance of her duties did not cause or contribute to a significant degree to plantar fasciitis (if that is what she suffers) and nor did performance of those duties aggravate any pre-existing condition;
(d)to the extent that Ms Blasco suffered symptoms of anxiety and depression, her employment did not contribute to a significant degree to their development and, in any event, her response was not outside the bounds of normal human behaviour.
DUTIES PRIOR TO AUGUST 2013
The duties Ms Blasco performed, the time she spent on each, whether they were repetitive, and in particular whether they required her to work with her arms extended above shoulder height, are of importance because they go to the probability of a relationship between her duties and the upper limb injuries of which she complains. In particular, she is of short stature, standing just under five feet tall.
In a written statement of evidence, Ms Blasco said she spent much of her time working with her arm extended above shoulder height. We do not accept that claim.
Up until August 2013, Ms Blasco performed a range of duties on various machines. The evidence is that only the BCS required any work with the arms extended at or above shoulder height and then for only a minute or two on each shift. The “rocket launcher” required her to lift her hands above shoulder height but not to extend her arm. As described below, although Ms Blasco claimed the Spectrum 10 required her to work with her arms extended, we do not accept that performance of her duties required her to do so.
The Bar Code Sorter
A photograph of Ms Blasco at the BCS (photo 11) shows mail in business-size envelopes in slots four rows high, from the front of which she would transfer handfuls of mail to cardboard trays approximately one metre to her other side. Ms Blasco gave evidence that most of the mail she had to handle would be towards the front of the slot so that it did not overfill.
One photograph (11) shows Ms Blasco able to reach the top shelf of the BCS with her arm bent at the elbow at roughly 90 degrees. A second photograph (2) shows her reaching to the back of the mail slot with her arm fully extended. Giving evidence, Ms Blasco acknowledged the second photograph was not a “good representation” of her duties, and she conceded that the majority of the work required her to lift her arm no higher than depicted in photograph (11). She conceded that, of all the machines she was required to work on, the BCS was the highest she had to lift her arms.
Taking into account that Ms Blasco rotated between the BCS and other duties after 45 minutes, that she removed most mail from the front of the top slot and not from the back, and that the top row was one of four, we are satisfied that Ms Blasco extended her arm as shown in photograph (2) for brief periods only, and for no more than a few minutes during any rotation.
The “rocket launcher”
The “rocket launcher” involves taking handfuls of letters from a letter tray on a trolley and sorting them by hand into large letter trays arranged in rows on a rack. The trays are either three or four rows high, and range between knee and shoulder height.
Even allowing for Ms Blasco’s short stature, she was able to place mail into the highest letter trays without raising her arms above shoulder height.
The Spectrum 10
Ms Blasco says that while working at the Spectrum 10 she had to extend her arms above shoulder height to ensure that mail going up a conveyor belt did not slip or spill onto the floor. We do not accept that performance of her duties on this machine required her to extend her arms above shoulder height. We had the opportunity to observe Ms Blasco at this machine. We are satisfied that placing the correct amount of mail onto the belt, a matter that she was able to control, would ensure that it remained in place. Moreover, steps alongside the conveyor belt enabled access as it moved upwards, making it unnecessary for her to extend her arms in any event. Ms Blasco conceded both points in cross-examination.
Consideration
We find, on the evidence before us, that the highest that Ms Blasco had to lift and extend her arms was on the BCS. To the extent that she did anything above shoulder height on the BCS it was to clear the top shelf for a total of a few minutes at most during each shift.
We find that, to the extent that Ms Blasco extended her arms above shoulder height while working on the Spectrum 10, the performance of her duties did not require her to do so.
Ms Blasco gave evidence that she had no difficulty performing her duties, and had no physical or psychological problems, before August 2013. This is consistent with the duties she performed and the weight of the medical evidence (below) to the effect that work over some time with the arms extended above shoulder height would be necessary to explain the symptoms she subsequently experienced in her shoulders and upper arms.
TRANSFER TO NIGHT SHIFT
On 12 August 2013, Ms Blasco submitted a Workplace Flexibility Request asking to change to the night shift. There is no suggestion that her request was related to any difficulty performing her duties. She stated her reasons as:
I am a single parent raising my two under 18 children alone. My 5.15pm shift hour is not suit for me and for my children and I wanted to request to changes my shift into 8pm in the [8pm Express Post] section coz this the most suitable time for me and for my children.
Ms Blasco stated that, because of her “situation”, she came “most of the time late” or was absent, and the change in shift would help her come on time and do her duties “without worries and stress”. She confirmed on the form that, if her request was granted, she would still be able to carry out her full duties “without any delays”. Her request was granted for a period of 12 months. She commenced on the night shift on 20 August 2013.
26 August 2013
On 26 August 2013, Ms Blasco completed an Incident Form in connection with an incident said to have occurred at 8pm on 26 August 2013 in the “Man4 tower near in the Rocket Launcher”. She stated she had been “lifting excessively for 3 weeks in a row”. In an attachment to the form she stated:
[Since 20 August] I’ve been working the past from this date 3 weeks in a row until 6 of September 2013 in Man 4 on Express Post area near to the Rocket Launcher and there’s a day of this week that I was working too in the overseas tower alone and also in opening the bag in Express Post. I felt the muscular pain in my both arms in the 2nd week.
Ms Blasco stated that her supervisor continued to ignore her “until Sunday morning I vomited the blood” and went to hospital.
The MAN4 tower is no longer in use at the Strathfield facility but we have photographs of a similar machine (MAN2) which replaced it and is for present purposes the same. We accept Ms Blasco’s evidence that the conveyor belt onto which she placed letter trays on the MAN4 was slightly higher, but that makes no material difference.
Incident Form 5 November 2013
For reasons which are not altogether clear, on 5 November 2013 Ms Blasco completed a second Incident Form at her employer’s request in relation to injuries on 26 August 2013. She described her injuries as “muscular pain in both arms and both legs/thigh”, and her main injury as “Arms and thigh”.

Under cross-examination, Ms Blasco’s evidence about this form was unclear and, in our view, evasive. Pressed to clarify the date and her description of the injury, she said she was not sure that she suffered injury on 26 August 2013. She then said the date was incorrect and gave a number of explanations for the error: the form was sent to her “late” and to her home; she was not feeling well; maybe she did not understand the form; she was in pain and taking medication; she filled it out without thinking. She did not suggest an alternate date of injury.
We are satisfied that Ms Blasco intended in this form to refer to an injury on 26 August 2013.
Statement 25 October 2013
In a statement dated 25 October 2013, Ms Blasco stated that she started on the MAN4 at 8pm on 20 August 2013; in the first week she “just kept working everyday and doing my daily routine in the Man4 by myself because my partner was always left me”; in the second week she asked her supervisor why she was still in the MAN4 and he said it was because of a shortage of people; she did not argue even though she did not think it reasonable to stay in one place and “do the same job every day”. She wrote that even though they gave their reason, it was not really reasonable “to be stuck in the same job everyday” and asked “how come they never have a rotation?”.
Ms Blasco stated that “one time” another worker asked her to work in the Overseas Tower, which she did, but a supervisor told her it was not her area. In the third week, she was “still working in the Man4”; when she complained, her supervisor said he could not do anything about it because that was her roster. At the end of the third week, she was in pain. On Sunday, 8 September 2013 she vomited blood. Over the next few days she saw her doctor, she was vomiting blood and had blood in her stools. On 12 September 2013 she was admitted to Westmead Hospital.
Statement October 2014
In her statement dated October 2014, Ms Blasco stated:
I was required to operate the Man4 machine by myself. After three weeks of operating the Man4 machine and occasionally working at the Overseas Tower, I asked my supervisor George why I was still working on the same machine, and why there was no rotation. The work requires an intense amount of physical labour, and I was experiencing pain in my arms and legs, particularly painful in both of my shoulders, wrists and elbows as well as my neck. In the wake of the pressures of the job and the physical pain I was experiencing, I became stressed in my anxiety levels increased. George said that the reason that there had been no rotation was due to a shortage of staff. While I appreciated that this was the case, this should not mean that I am stuck in the same role for over three weeks, with the resulting physical and psychological told it was taking on my body.
Ms Blasco stated that “consequent of the above” on 8 September 2013 she began vomiting blood and experiencing chest pain; on 12 September 2013 she was admitted to Westmead Hospital for 24 hours where she underwent an endoscopy. She was found to have gastritis which she has since managed with medication.
Giving evidence, Ms Blasco acknowledged that she stopped work in September 2013 on account of her gastric problems but said she also had pain in her arms and shoulders. She acknowledged that the latter did not stop her working and that she was able to carry out all of her duties.
2015 statement
In an attachment to her “revised claim” in 2015, Ms Blasco stated:
2. During this time, I worked on the MAN4 tower and occasionally on the Overseas Tower. I was required to operate the MAN4 tower by myself. There are normally two people who work on the machine. Working on these towers involves repetitive lifting and movements for an extended amount of time.
3. I began developing pain in both of my arms and shoulders after about two weeks of working on these machines. There was no specific incident. Rather, I felt a gradual onset of pain which got worse as I continued to work on these towers.
Ms Blasco stated that after approximately one month, she could not cope with the pain any longer; it was making her extremely upset and there were times she could not do anything at all because of the pain. She took time off work for six months and did not return until 31 March 2014.
Ms Blasco’s oral evidence
Giving oral evidence, Ms Blasco maintained that she worked on a range of machines while on night shift including the MAN4, “overseas tower”, express post area, “bag wrap” and the “rocket launcher”. She claimed she did not really understand the compensation process, and she was in pain when she signed the statements indicating that she worked on the MAN 4 only. She denied working all, or most of the time, on the MAN4 in the time leading up to her admission to hospital.
The respondent submits that Ms Blasco has changed her evidence because she has come to understand the significance of working with her arms above shoulder height for her claim for compensation, and that the MAN4, which requires work with arms at approximately waist-height, would not give rise to the upper limb injuries of which she complains.
Whether or not Ms Blasco has so calculated her response, we are satisfied that her written statements reflect the duties she performed for approximately three weeks on night shift. We find that she worked exclusively on the MAN4 except for one occasion on the “overseas tower”. We note this is consistent with the Statement of Facts, Issues and Contentions filed on her behalf in December 2014 which states that she “worked on the Man4 machine by herself” and “was not rotated from this machine” causing bilateral injury to her shoulders, wrists, elbows, forearms and neck. We note that the same statement also asserts that the work involved the “repetitive lifting of heavy trays and prolonged periods of standing”.
Ms Blasco went off work in September 2013 following her admission to hospital. The evidence does not support the conclusion that she was suffering from a shoulder and upper limb condition. She was able to perform all the duties of her position prior to commencing night duty. Dr Lagaida’s records show she did not complain of pain in her shoulders and arms going off work until late October 2013, despite seeing him several times in the meantime about other matters. The medical evidence (below) is that the duties she was performing would not be likely to cause such problems, and it would take longer than one week for the performance of her duties to cause injuries.
MEDICAL EVIDENCE
Shoulders and upper arm condition
Ultrasound examinations of Ms Blasco’s shoulders on 5 August 2014 suggested bilateral thickening of supraspinatus and of the subacromial bursa. MR arthrograms in March 2015 demonstrated rotator cuff tendinopathy and subacromial bursal thickening, with no rotator cuff tear on the right shoulder and a possible subtle intrasubstance tear of the subscapularis tendon on the left. An x-ray of her left shoulder on 27 March 2015 was normal; the right shoulder was “essentially normal with minor bone changes at the greater tuberosity”.
Associate Professor McGill
Professor McGill saw Ms Blasco for assessment in September 2014 and August 2016. In a report dated 22 September 2014, he said she “provided a very disjointed history and the symptoms were vague and ill-defined”. In a report dated 11 August 2016, he confirmed his earlier opinion and said the pattern of Ms Blasco’s symptoms did not suggest that physical disease had played a significant role; the changes in her rotator cuffs are found “very commonly” in her age group; they were almost entirely symmetrical and he believed they were constitutional, unrelated to her work and unrelated to her symptoms. He could find no objective abnormality on examination.
Giving oral evidence, Professor McGill said Ms Blasco’s complaints were not consistent with any physical cause. The pattern of her symptoms was not one that could be attributed to rotator cuff disease or any other physical pathology and the changes found on MRI and ultrasound studies are found commonly in the general population in asymptomatic shoulders in her age group.
Asked whether a pattern of symptoms at work, followed by reduction when off work, with recurrence on return to work, was consistent with a contribution by work to Ms Blasco’s experience of pain, Professor McGill said not in her case because her symptom complex was not consistent with rotator cuff pathology.
Dr Bodel
Dr Bodel gave evidence that he understood Ms Blasco was working for at least part of the day above shoulder height, that is, with her arm above shoulder height at the shoulder. He did not take a history of specifically what she was doing at the time of her injury because, while relevant to a frank injury, it was less so when, as he understood from Ms Blasco, her injury developed over time.
In response to questions, Dr Bodel said he understood the “antagonising activity” that caused Ms Blasco to have pain gradually resulting in incapacity, was the change to night shift duties. As set out above, however, her duties on night shift did not involve working with her arms at or above shoulder height.
On the basis that Ms Blasco did not have any physical problems when she moved to the night shift; that she worked for approximately one week on duties at waist height or a little above waist height (and then felt pain pushing a trolley), Dr Bodel agreed that her symptoms were inconsistent with gradual deterioration or onset and more in the nature of a frank injury. If it were a frank injury of that sort though, he thought it probable that something more than what was seen on Ms Blasco’s scans and ultrasounds would appear.
For example, he agreed there was no rotator cuff tear.
Dr Bodel also agreed that it was intrinsic to the diagnosis he arrived at, being overuse, that work is at or above shoulder height and done regularly. Further, that it would likely take more than a week for symptoms or problems in the shoulders to appear and become debilitating.
Although in conclusion Dr Bodel said he adhered to his opinion that the nature and conditions of employment caused or contributed to Ms Blasco’s injuries, by his own evidence that opinion was not supported.
Dr Yeoh
Dr Yeoh acknowledged that shoulder impingement is common across the population and can be aggravated by a number of things but said Ms Blasco did “a lot of activities above shoulder height”. His understanding of the extent to which she worked with her arms at or above shoulder height was at odds with Ms Blasco’s evidence. While he adhered to his view that there was a connection between her conditions and her employment, we can find no rational basis for that view in Dr Yeoh’s evidence.
Dr Wong
Dr Wong provided a report dated 21 June 2016 in which he stated that the nature and conditions of Ms Blasco’s employment caused or contributed to her injuries. Giving evidence before the Tribunal, Dr Wong acknowledged that he did not have a detailed understanding of her duties. He was able to describe them only in general terms such as sorting mail, and lifting and dragging mail bags. He was not familiar with the machines Ms Blasco worked on, how long she worked on each, or what each particular duty involved.
Dr Wong did not agree that only working above shoulder height could cause problems. He thought work at shoulder height could also cause problems but said he would put great weight on specialist opinions on the subject.
Dr Lagaida’s notes
Dr Lagaida’s notes show that, on 15 August 2013, Ms Blasco referred to stress as a result of bullying at work. She next saw him on 5 September 2013 when he noted “Wearing shoes by podiatrist; pain is a bit better; acting manager; tried to get to sign a release. Generally fevers, myalgia; tender neck, lifting boxes, tender arms, forearms”. It was therefore approximately a week and a half between the date of injury and when Ms Blasco saw Dr Lagaida.
On 28 September 2013, after Ms Blasco had been admitted to hospital, she complained of “sore arms, unable to lift heavy letter for work, unable to lift more than three kilograms; no repetitive work”. As Ms Blasco was off work by that stage, it is not clear what period he was referring to.
Frank injury to shoulders/upper arms
For Ms Blasco it is submitted that it is open on the material and the evidence to accept that she suffered a “frank injury” to her upper limbs within the meaning of s 5A(1)(b), alternatively that it is a disease or ailment, or that there has been an aggravation, as a result of her employment.
This claim did not form part of Ms Blasco’s claim or submissions until the hearing and there is no evidence before the Tribunal that would support a finding that she suffered a “frank injury”.
Neck and elbow complaints
Although Ms Blasco referred briefly in her written documents to neck pain, there is no clinical evidence of a pre-existing neck condition. Giving evidence she said she had pain in her neck before April 2013 but she was not sure whether it was due to any injury. She said she had pain in her neck and back “for a couple of days” following motor vehicle accidents some years ago but she did not see her doctor “because it does not happen anymore yet after that”.
We are not satisfied that Ms Blasco suffered any work-related injury to her neck. There is no evidence to support such a connection. Nor is there evidence to suggest that her rotator cuff condition might give rise to neck pain.
Similarly, while the clinical notes questioned the possibility of epicondylitis, no evidence was found on ultrasound on 5 August 2014, and so we are not satisfied Ms Blasco suffered any work-related injury to either elbow.
Carpel Tunnel Syndrome
Dr Kwan Yeoh, an orthopaedic surgeon specialising in hand, wrist and upper limb surgery, saw Ms Blasco on 27 February and 27 March 2015 at the request of her general practitioner, Dr Tony Wong.
On 27 March 2015, Dr Yeoh reported to Dr Wong that Ms Blasco presented with a “two year history of bilateral wrist and shoulder pains” but it was “very difficult to get a clear history from her”; test results were “suggestive of carpal tunnel syndrome”. He concluded that she had “ongoing bilateral shoulder pains consistent with ongoing subacromial bursitis and impingement” and “signs of ongoing carpal tunnel syndrome”. He noted that she found it difficult to work because of her problems but made no comment on any connection to her employment.
In a report to Ms Blasco’s then solicitors on 31 July 2015, Dr Yeoh stated:
As far as her carpal tunnel syndrome is concerned, the highest risk factor and association that she has is that she is a female in her middle age period and this is highly correlated with carpal tunnel syndrome. She is not in a job, nor does she perform any other duties, which have been proven to be linked to carpal tunnel syndrome. As far as her shoulders are concerned, subacromial impingement and bursitis are very common problems and usually no known cause is found. Once again, I do not feel that her job or her hobbies are likely to be the causes of her problems.
On 10 June 2016, Dr Yeoh saw Ms Blasco for review at her solicitor’s request. He was provided with a copy of her statement dated October 2014. His findings on examination were “once again consistent with bilateral shoulder subacromial impingement and bursitis and bilateral carpal tunnel syndrome”. He concluded that both were “likely to be related to her job”.
Dr Yeoh recorded that Ms Blasco was “required to carry trays of mail up to a fair height” and that “her elbows were required to be higher than her shoulders, implying that the height that she needed to lift to would have been above the level of her head”. He noted that many of her tasks were repetitive “including culling of mail and manual sorting” and that she had to stick labels on parcels, “many of which are above her head height”. He reported that, whereas it was difficult to get a clear history from her regarding her symptoms and work duties at earlier appointments, he had the benefit of her written statement and further consultation, and Ms Blasco had “clarified that her duties were far more repetitive and heavy than the impression that I had from her in her previous appointments with me”.
Giving oral evidence, Dr Yeoh said that he had changed his opinion about the relationship between Ms Blasco’s carpal tunnel syndrome and her employment because he had more information available to him, and the tasks she undertook were “a lot more strenuous and different” than he had previously thought. Further, the fact that her symptoms subsided when away from work and recurred when she returned, was consistent with her duties causing, or aggravating, her condition.
Dr Yeoh acknowledged that carpal tunnel syndrome is common across the population and can be aggravated by a number of things but said the “manual lifting, sorting, repetitive nature” of Ms Blasco’s duties “would certainly contribute to worsening” her carpal tunnel syndrome.
In cross-examination, Dr Yeoh confirmed that Ms Blasco’s gender, age and weight were determining factors in the development of carpal tunnel syndrome but said it was a greater appreciation of her duties, together with the period off work when her symptoms abated, that led him to change his opinion; similarly with her shoulder condition.
Dr Yeoh acknowledged that repetitive work of itself does not create a connection between occupational activities and carpal tunnel syndrome. He was not able to identify Ms Blasco’s relevant duties with any particularity. While he adhered to his view that there was a connection between her conditions and her employment, we can find no rational basis for that view in his evidence.
Dr Bodel gave evidence that Ms Blasco was in the “peak age incidence” for a woman of her age, body build and height to develop carpal tunnel syndrome. In the vast majority of cases carpal tunnel syndrome is a constitutional ailment. That is, a person has a genetic predisposition to develop it; it may or may not become symptomatic in association with work. He said Ms Blasco was not in a job and did not perform duties, proved to be linked to carpal tunnel syndrome (that is, he agreed with Dr Yeoh’s first opinion).
Professor McGill thought Ms Blasco might have mild carpal tunnel syndrome when he saw her in September 2014 but said, if so, it could not account for her widespread symptoms and there was no “possibility” any carpal tunnel syndrome she had was work-related.
Given Dr Yeoh’s limited understanding of Ms Blasco’s duties, we place little weight on his opinion that there was a connection between her carpal tunnel syndrome and her employment. We prefer the opinions of Dr Bodel and Professor McGill. Taking into account that carpal tunnel syndrome is common across the population, and that Ms Blasco’s gender, age and weight are determining factors in its development, we are not satisfied that her carpal tunnel syndrome was caused, or contributed to, by the performance of her duties, or that any pre-existing condition was aggravated by the performance of those duties.
Plantar Fasciitis
Ms Blasco lodged her third claim on 7 July 2015 following discussions at a directions hearing about the Tribunal’s jurisdiction to determine a “nature and conditions” claim. Consistent with correspondence on 24 November 2014 from Ms Blasco’s solicitors to the respondent confirming that she “will not proceed” with the claim for plantar fasciitis, the claim made only passing reference to problems with her feet, and none to plantar fasciitis. Notwithstanding that correspondence, Ms Blasco has pressed her claim in these proceedings, and we have dealt with it.
In an attachment to her third claim, Ms Blasco stated that, around April or May 2013, she began having difficulties with her supervisors; she was also “having difficulty” with her footwear which was causing pain in her feet and legs but her supervisors ignored her problems. She stated that the “issue concerning my incorrect footwear was eventually resolved”.

In a supplementary statement dated 7 June 2016, Ms Blasco stated that she “used to feel significant pain in the soles of both feet by the end of a shift”; at the time of her statement she was feeling less pain because she was able to do many of her duties sitting down.
To the extent that she provided any details of problems with her feet, Ms Blasco made no reference in either statement to problems before 2013.
On 4 April 2013, Ms Blasco’s primary general practitioner, Dr Stephen Lagaida, recorded “pain both feet, has to lift heavy at work. burning in both feet”. He noted she had “soles made by podiatry” and recorded bilateral plantar fasciitis. He recorded bilateral plantar fasciitis in subsequent appointments.
Giving oral evidence, Ms Blasco said she first felt symptoms in her feet around March or April 2013 while working at the BCS and the Express Post area. She said the pain went up her legs and into her vagina. Her supervisor ignored her complaints but Australia Post eventually referred her to a podiatrist who prescribed orthotics and lighter shoes. In cross-examination Ms Blasco denied any problems in either foot before March or April 2013. She maintained she had never spoken to any doctor about plantar fasciitis or seen any health practitioner about problems in either foot, and she had never previously worn orthotics.
Contrary to Ms Blasco’s evidence, records from Mount Druitt hospital show she presented there on 20 May 2010 complaining of pain in the sole of her left foot since the previous Friday. The hospital note shows “[Impression]: planter (sic) fasciitis” and “Follow up with LMO for podiatric referral”. Ms Blasco gave evidence that she could not recall attending the hospital. When pressed, she acknowledged that she had worn orthotics “all the time” since 2010 but she “forgot” to say so.
Regardless of any actual diagnosis, we find it implausible that Ms Blasco would overlook, or forget, that she had problems with her feet before 2013, in particular that she would forget that she had worn orthotics continuously since then. We are not satisfied she has been truthful about this claim.
We accept that Ms Blasco experienced some problems with her shoes around April 2013. However, there is no medical evidence before the Tribunal to support any connection between plantar fasciitis, or any other problems with her feet, and her employment with the respondent, whether by way of initial injury or aggravation of a pre-existing condition.
In these circumstances we are not satisfied that any problems Ms Blasco has with her feet are related to her employment.
Psychological condition
Ms Blasco claims she suffered a psychological condition as a result of her supervisor’s abuse and her reprimand about Ms Blasco’s lateness, and by reason of the physical pain caused by the performance of her duties.
In a medical certificate dated 13 November 2013, Dr Lagaida diagnosed Ms Blasco as suffering from anxiety, harassment at work, depression and Post Traumatic Stress Disorder (PTSD). Although she no longer presses a claim for PTSD, her counsel submits that the reference to PTSD supports the conclusion that the severity of her condition was “outside the boundaries of normal mental functioning and behaviour”: Comcare v Mooi (1996) 69 FCR 439 at 444. For the reasons that follow, we do not agree.
Ms Blasco has provided almost no detail of the claimed harassment by her supervisor. Although she claims Ms Campbell ignored her need for proper shoes, her evidence was that the problem was in fact resolved. As set out below, her request to transfer to the night shift was granted without delay. What remains is being spoken to on 14 August 2013 by Ms Campbell about being late for work (a matter she does not dispute) and being called “dumb”.
According to the report of an investigation into that incident by the night shift manager, Mr Roman Drab, he “encouraged Ms Blasco to document specifically any issues that took place at work that might have caused her anxiety”; he expressed his surprise at her reaction to “relatively standard supervisory function” when a staff member is late; and he explained to her the importance of punctuality and reliability at work. He asked if her health and personal life was “in order” to which she said she was having “family problems”.
We have not heard from Ms Campbell. Mr Drab’s report records that she denied calling Ms Blasco “dumb”. Even if we accept that she did, we are not satisfied that Ms Blasco’s response was “outside the boundaries of normal mental functioning and behaviour”.
By Ms Blasco’s own evidence, the competing demands of work and young children were causing her stress. The reference in Mr Drabb’s report to “family problems” is consistent with her request on 12 August 2013 to change to the night shift. In a Workplace Flexibility Request, Ms Blasco stated her reasons as:
I am a single parent raising my two under 18 children alone. My 5.15pm shift hour is not suit for me and for my children and I wanted to request to changes my shift into 8pm in the [8pm Express Post] section coz this the most suitable time for me and for my children.
Ms Blasco stated that, because of her situation, she came “most of the time late” or was absent, and the change in shift would help her come on time and do her duties “without worries and stress”. In response to a question as to whether she would still be able to carry out the main parts of her role if her request was granted, she stated she could still carry out her full duties “without any delays”. Her request was granted for a period of 12 months and she commenced on the night shift on 20 August 2013.
The respondent submits that, even if Ms Campbell called Ms Blasco “dumb” (and even if Ms Campbell also did not respond promptly to her complaint about the shoes, and spoke to her about being late) her conduct could not plausibly cause the kind of psychological response described in Mooi (above). We agree.
Medical evidence
Dr Lagaida’s clinical notes show that Ms Blasco reported to him on 2 October 2012 that a co-worker had upset her and she was feeling dizzy. On 15 August 2013, he recorded “bullied by supervisor – stressed, unable to work, took to union – other workers also being bullied by her. always picking on her. counselling”. He recorded the reason for contact as “stress”.
For reasons which are not clear, in records of consultations in October 2013, Dr Lagaida recorded that Ms Blasco felt “traumatised at work”. On 29 October 2013, he recorded that she was “shaking at work yesterday” and he prescribed Avanza. In subsequent appointments he noted that she was to see a psychologist. On 17 December 2013 he noted that she “still has flashback from the abuse”. In subsequent appointments in January 2014, he noted PTSD as the reason for contact.
Dr Allnutt
Dr Allnutt saw Ms Blasco for assessment on 8 September 2014. He provided a written report, with a brief supplementary report, and gave oral evidence.
Dr Allnutt took a history from Ms Blasco of difficulties in the workplace from around April or May 2013, of her supervisor “harassing and abusing her” after she raised the need to change shifts in order to meet her children’s needs, and because she “had to change her shoes”. The only example he cited was that her supervisor swore at her, called her dumb, did not want to help her, and was “trying to move her on”. He recorded that Ms Blasco became stressed and more anxious until, on 12 September 2013, she was admitted to Westmead Hospital vomiting blood.
Dr Allnutt recorded that, when he saw her, Ms Blasco was cooperative and well groomed, her speech was clear, she maintained good eye contact and did not manifest behaviour consistent with side effects of psychiatric medication or neurological illness, and she spoke in a clear and coherent manner. He recorded that she had suffered “panic attacks, characterised by shaking, feeling hot and being sweaty”. He thought she “endorsed some mild depressive and anxiety symptoms”. He concluded that she manifested “residual symptoms of a probable resolving chronic adjustment disorder with a depressed and anxious mood” to which her employment had substantially contributed.
The respondent submits, and we agree, that the best that Dr Allnutt could say is that Ms Blasco may have had a problem in the past. However, he and Dr Champion (below) agreed that people can have their “ups and downs” without being outside the bounds of normal human behaviour. On the evidence before us, we are not satisfied that Ms Blasco suffered more than ordinary “ups and downs”. We can accept she was under some stress around mid-2013 but we are not satisfied that the events she complains of contributed to a significant degree to that condition, or that it was outside the bounds of normal human behaviour.
Dr Champion
Dr Champion saw Ms Blasco for assessment on 30 September 2014. He provided a written report and gave oral evidence.
Dr Champion took a history that Ms Blasco underwent a period of “harassment” in 2013; she was vague about dates but said she became upset and anxious when her supervisor called her “dumb”. She claimed her supervisor had called her that previously but it had not worried her. He understood Ms Blasco to relate her symptoms of vomiting blood to the harassment. After six months or so off work, she returned to work in March 2014 and told Dr Champion she was now “very happy at work and there was no harassment or bullying since her return”. She said her doctor had prescribed Avanza when she was off work but she took it only once or twice a month.
Dr Champion concluded there was no indication in Ms Blasco’s presentation of depression or anxiety. He thought there was no basis on which her complaints could be diagnosed as PTSD. He thought it likely that any emotional disturbance was primarily related to her physical ill-health. He concluded she may have been suffering from emotional distress in the form of anxiety or depression, most likely associated with the physical conditions from which he was suffering at the time, which appeared to be non-work-related.
Giving oral evidence, Dr Champion did not accept that being called dumb would normally be a factor precipitating a diagnosis of a psychiatric disorder. He agreed that physical symptoms may produce an emotional response with symptoms of anxiety and depression. In Ms Blasco’s case, her response could “either be a normal reaction or it could have crossed the bounds to be a mild adjustment disorder” but there was no indication that it was at any stage a significant psychiatric disorder.
Consideration
Despite references to continual harassment and bullying by Ms Campbell, the only events identified by Ms Blasco as leading to psychological injury were the failure to accede to her request for proper shoes, being spoken to about being late, and being called “dumb” on one occasion.
Although Mr Drab’s report of his investigation records that Ms Campbell denied calling Ms Blasco “dumb”, we will accept for the purposes of this decision that she did. We accept that Ms Blasco would not like being called “dumb” but we do not accept that she suffered a psychological injury as a result.
We are not persuaded that Dr Lagaida’s references to PTSD are a sound basis for assessing the severity of Ms Blasco’s symptoms or for attributing them to her employment. The timing of her complaints suggests her response was very probably associated with being admitted to hospital vomiting blood (and pressure of family and study). Even so, neither Dr Allnutt nor Dr Champion suggested a condition approaching PTSD in severity.
Finally, as we are not satisfied that Ms Blasco suffered an injury within the meaning of the Act, any psychological consequence of her condition, including any condition caused by the pain of her condition, cannot be a compensable injury, even if outside the bounds of normal human behaviour.
DID MS BLASCO’S RETURN TO WORK IN MARCH 2014 AGGRAVATE ANY INJURIES?
Ms Blasco returned to work on 31 March 2014 on restricted duties and reduced hours. According to her written statement dated October 2014, she worked on the CFC machine doing “facing up” that is, ensuring that all mail is turned the right way up. The task is performed standing and can require lifting of letter trays.
On 5 May 2014, Ms Blasco returned to her normal work hours and moved to “sorting work in the parcel area”. In the incident form completed on 7 May 2014, she said she felt pain in her right shoulder, arms and elbow. She has been on restricted duties since. She did not mention her wrists or her feet.
On 3 November 2014, the respondent denied liability for injury to Ms Blasco’s elbows, shoulders and arms. The Statement of Issues, Facts and Contentions filed on her behalf refers to “re-aggravation of the injuries to both her shoulders, wrists and her neck” but does not reflect her claim at the time. The attachment to her revised claim lodged in July 2015 makes no mention of wrist or feet pain, and no mention of psychological symptoms on return to work.
We are satisfied that the Incident Report form reflects the symptoms of which Ms Blasco complained at the time (without finding that they were related to her employment). There is no reason not to have included pain in her wrists if she was experiencing it. We therefore understand Ms Blasco’s claim for aggravation to relate to her upper limbs
For the purposes of the Act, aggravation includes acceleration or recurrence: s 4. In Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 405 Hill J described the difference between the two as follows:
[T]he ordinary English meaning of the words “aggravation and acceleration”, namely that “aggravation” connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.
Pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place: Commonwealth of Australia v Beattie (1981) 35 ALR 369 at 378. It is not necessary that any pre-existing condition itself be an injury (or a disease) within the meaning of the Act. The question is whether any pre-existing condition was aggravated and, if so, whether the employment contributed to a significant degree to that aggravation.
For Ms Blasco it is submitted that the recurrence of pain she experienced in May 2014 was the result of her work, alternatively that her work was a significant contributing factor to that pain, and is an injury for the purposes of the Act.
It is not enough that an employee feel pain while at work. In Beattie (above), Evatt and Sheppard JJ said (at 378):
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.
Nor does it follow, merely because an employee feels pain on return to work after a period away during which symptoms abate, that she has suffered an injury within the meaning of the Act. In Tippett v Australian Postal Corporation (1998) 27 AAR 40, Finkelstein J said:
What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable...Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury: Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee’s employment (emphasis added).
Insofar as Ms Blasco experienced a worsening of her (upper limb) symptoms after her return to work, we are not satisfied that her employment contributed, to a significant degree, to that worsening. The duties she was performing at that time did not require her to work above shoulder height, and there is no suggestion that she did.
For Ms Blasco it is submitted that the experience of pain itself constitutes an injury. Pain brought on by work may constitute an aggravation: Commonwealth of Australia v Beattie (1981) 235 ALR 369 at 378. That is so, but there must still be a causal connection to employment. We are not satisfied on the evidence before us that Ms Blasco’s employment contributed to a significant degree to any pain she experienced.
In Comcare v Reardon [2015] FCA 1166, Mortimer J agreed with the observations of Finkelstein J in Tippett v Australian Postal Corporation (1998) 27 AAR 40, where he observed of Beattie:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
The mere fact that Ms Blasco felt pain when she returned to work is insufficient to find there was a causal connection with her employment. For the reasons we have given, we are not satisfied that a connection existed.
CONCLUSION
For these reasons, we are not satisfied that any of Ms Blasco’s conditions was caused or contributed to, to a significant degree, by her employment with the respondent.
We affirm the decisions under review.

I certify that the preceding 134 (one hundred and thirty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey, Senior Member A Poljak

........................[sgd]...........................................
Associate
Dated: 7 August 2017

Date(s) of hearing:
23 September 2016; 26 September 2016; 27 September 2016; 13 June 2017; 14 June 2017; 15 June 2017; 16 June 2017

Counsel for the Applicant: Mr K Pattenden

Solicitors for the Applicant: Dr P Hansen, CommComp Lawyers

Counsel for the Respondent: Mr M Gollan

[2017] AATA 1222

7 August 2017

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Duty of Care

Remedies

Statutory Construction

Date(s) of hearing:	23 September 2016; 26 September 2016; 27 September 2016; 13 June 2017; 14 June 2017; 15 June 2017; 16 June 2017
Counsel for the Applicant:	Mr K Pattenden
Solicitors for the Applicant:	Dr P Hansen, CommComp Lawyers
Counsel for the Respondent:	Mr M Gollan