Blasco and Australian Postal Corporation (Compensation) - [2017] AATA 1222

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blasco and Australian Postal Corporation (Compensation)

Details

AGLC: Blasco and Australian Postal Corporation (Compensation) [2017] AATA 1222
Case: [2017] AATA 1222
Decision Date: 7 August 2017

CaseChat Overview and Summary

This matter concerned a claim for compensation brought by Ms Blasco against the Australian Postal Corporation. Ms Blasco alleged she suffered injuries to her neck, shoulders, arms, elbows, and wrists, including carpal tunnel syndrome and plantar fasciitis, as well as a psychological injury. The Australian Postal Corporation denied liability, disputing whether Ms Blasco suffered the claimed conditions, whether her employment caused or contributed to them, and whether any psychological injury was outside the bounds of normal functioning. The decision was heard by J F Toohey SM.

The court was required to determine whether Ms Blasco suffered a "frank injury" to her upper limbs or whether the conditions she claimed constituted diseases within the meaning of the relevant legislation, and if so, whether the nature and conditions of her employment contributed to them to a significant degree. Additionally, the court had to assess whether Ms Blasco suffered a psychological injury and, if so, whether her employment significantly contributed to its development and whether her response fell outside the bounds of normal human behaviour. The court also considered whether her employment aggravated any pre-existing conditions.

The court found that the performance of Ms Blasco's duties did not cause, contribute to a significant degree, or aggravate her claimed shoulder or arm conditions, carpal tunnel syndrome, or plantar fasciitis. This conclusion was based on a detailed examination of the evidence regarding the nature of her work, including the machines she operated and the weights she handled. The court found Ms Blasco's evidence regarding working with her arms above shoulder height to be unreliable and inconsistent with observations and other evidence. Furthermore, the court determined that to the extent Ms Blasco suffered symptoms of anxiety and depression, her employment did not contribute to a significant degree to their development, and her response was not outside the bounds of normal human behaviour.

The decision affirmed the reviewable decision, meaning Ms Blasco's claim for compensation was not upheld on the grounds presented.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.