Bradshaw and Australian Postal Corporation
[2011] AATA 226
•5 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 226
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2009/5007
GENERAL ADMINISTRATIVE DIVISION ) Re ann Bradshaw Applicant
And
australian postal corporation
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member and
Dr J D Campbell, Member
Date5 April 2011
PlaceSydney
Decision The decision under review is affirmed ..................[SGD]............................
Ms N Isenberg
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Injury to lower back – whether employment contributed to a significant degree – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14
Comcare v Sahu-Kahn (2007) 156 FCR 536; [2007] FCA 15; (2007) 44 AAR 523
Australian Telecommunications Commission v Treloar [1989] FCA 470; (1989) 90 ALR 202/11
5 April 2011 REASONS FOR DECISION
Ms N Isenberg, Senior Member and
Dr J D Campbell, Member
1. Mrs Ann Bradshaw has been a part time employee of the Respondent, Australian Postal Corporation, for about 14 years. She has complained of pain and swelling in her right ankle and knee, and pain in her lower back related to a work place incident on or around 6 November 2008.
HISTORY OF APPLICATION
2. On 3 August 2009 a determination was made by a delegate of the Respondent, whereby Mrs Bradshaw’s claim for compensation in respect of a back injury was disallowed. On 24 August 2009 the Reconsideration Officer affirmed the determination of the delegate. Mrs Bradshaw has sought a review of this decision by this Tribunal.
ISSUES FOR DETERMINATION
3. The issues for determination, discussed with the parties, are:
(a)Whether Mrs Bradshaw sustained an injury to her lower back.
(b)Whether her employment with the Australia Post contributed to her condition by a significant degree.
(c)Whether Mrs Bradshaw is entitled to compensation in respect of her lower back injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.
RELEVANT LEGISLATION
4. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
5. Section 5A of the Act, so far as is relevant, states:
5A Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
… (Original emphasis.)
6. Section 5B of the Act states:
5B Definition of disease
(1)In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material. (Original emphasis.)
7. Section 14 of the Act states:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
MRS BRADSHAW’S WORK
8. Mrs Bradshaw said that she started work for Australia Post in 1997, at which time she had no back symptoms. She has always worked part time and she works 15 hours per week spread over five days, with slightly differing hours each day. She works sorting mail into private mail boxes. In addition she identifies if there are parcels for private box-holders and creates a card advising them of a parcel to collect from the post office. She then places the card in the boxes.
9. She described that the mail to be distributed into the boxes is in a large tray on top of a trolley which she wheels into position. The mail is distributed from inside the post office, into one side of the boxes to be collected by customers from the outer side. Mrs Bradshaw takes a handful of about 30 letters at a time in her left hand from the trolley, which she places somewhat behind her, and she sorts the mail into the boxes installed in the wall in front of her with her right hand.
10. The top of the boxes is at about shoulder height and the bottom, she said, was at about calf height. A photograph of her appeared to show that the lowest row of boxes was at about knee height. She said that she twists to obtain more mail from the tray and bends to place mail into the lower rows of the boxes.
11. It was this bending and twisting that was said by the Applicant to have significantly contributed to her condition, diagnosed as lumbar disc degeneration with disc herniation and radiculopathy.
HISTORY OF COMPLAINT AND TREATMENT
12. Mrs Bradshaw said that she first became aware of pain in the right knee on 24 December 2002. She said in her evidence that she believed that pain was associated with her back. On 2 January 2003 she lodged an incident report in relation to her right knee in which she described the nature of her injury as: "twisted knee – pain to outside of right knee". In a claim for compensation she described the injury as "strain muscles – knee".
13. An MRI examination of 7 July 2003 demonstrated "moderate osteoarthritis and irregularity and an area of cartilage that appears detached [from the right knee]". Mrs Bradshaw was paid compensation “for soft tissue injury to right knee".
14. The first record of Mrs Bradshaw having any time off for a back problem was on 12 August 2003. She did not take leave pending compensation but instead took sick leave. The first record of any sciatica was recorded by her general practitioner in her notes of 12 November 2003: "® sciatica no injury". She said in her evidence that she had shooting pain down her right calf and into the ankle, pain in the back and buttock and underneath her foot was numb. Ultimately, after undergoing a myelogram, Mrs Bradshaw underwent a lumbar laminectomy on 16 July 2004. Mrs Bradshaw returned to work on light duties on 22 September 2004 after taking sick leave. A couple of months later she resumed full duties and was pain free for about “about three years”.
15. In her evidence Mrs Bradshaw said that pain in her right leg and ankle returned as before the lumbar laminectomy. She took about 10 weeks holidays, during which time she had no symptoms. She said that from the first day back at work the pain in her ankle, her calf and back returned. About two months later, on 8 October 2007, she attended her GP and they noted she complained of “lumbar backache on return to work. Pain – post aspect ® thigh. Lifting. Bending on return to work.” Following this she had about a week off work on sick leave.
16. Mrs Bradshaw said that on 6 November 2008 she was sorting mail and experienced pain and swelling in the right foot and ankle, and also pain in the back. On 24 November 2008 she consulted Dr Bailey, GP, and an x-ray was arranged. The GP’s notes record that there was no history of any trauma (Mrs Bradshaw later told Dr McGill that it had "[come] out of the blue" and that there was "no twisting nor any other event" involved). She was referred to an orthopaedic surgeon, Dr Redgment and she underwent a CT scan of her ankle. Mrs Bradshaw took about a fortnights’ sick leave for a swollen and injured right ankle. On 18 December 2008 Dr Redgment suspected that there might be some involvement of the L5 nerve root. On 27 January 2009 Mrs Bradshaw consulted Dr Pell, who had performed the laminectomy in 2004.
17. On 16 February 2009 Mrs Bradshaw attended a hospital casualty department and received morphine injections for her back. She was recorded as having told her GP on 18 February 2009: "Got out of car Saturday, something went in back ... Had morphine on Saturday followed by Codeine." She clarified in her evidence that she hurt her back getting into, rather than out of, the car.
18. On 24 February 2009 Mrs Bradshaw underwent an MRI scan, following which, on 21 March 2009, Dr Parkinson, orthopaedic surgeon, performed a spinal rhizolysis – a redo of the L4/L5 microdiscectomy. She was then off work, almost continuously, for about five to six months.
19. It was not until 27 April 2009 that the Applicant lodged an incident report for "muscular pain and swelling of right ankle".
20. Some numbness remains in her foot.
MEDICAL EVIDENCE
21. Reports were available from Dr Pell. Medico-legal reports were available from orthopaedic surgeons, Drs Bodel and Maxwell.
22. There was no dispute that Mrs Bradshaw suffers constitutional degenerative lumbar spine disease and that this has produced her foot and ankle symptomatology. She also has undisputed degenerative changes in her right knee.
23. All the doctors, with the exception of Dr Maxwell, acknowledged the possibility that Mrs Bradshaw’s work could have increased her symptoms, at least from time to time. Dr Bodel referred to Mrs Bradshaw’s “twisting injury at work”. Dr Pell referred to Mrs Bradshaw’s “repeated bending, twisting and reaching whilst sorting mail” as being an aggravating factor.
24. In supplementation of those doctors’ reports, evidence was also given by consultant rheumatologists, Dr McGill and Professor Sambrook.
25. Dr McGill took a history that Mrs Bradshaw’s work entailed some bending of her knees, slight bending of her back and movements to one side to access the mail boxes. He considered that Mrs Bradshaw’s work duties were not likely to have had any influence on the development or progression of the degenerative changes in her lumbar spine, observing that degeneration in the lumbar spine is very common. Dr McGill referred to a number of studies which, he said, had found that there was no evidence that the type of work performed by Mrs Bradshaw would make any difference to the degenerative change.
26. Professor Sambrook took a history from Mrs Bradshaw that her work involved “considerable” bending and twisting. He opined that the link between degenerative disc disease and occupation is “becoming clearer”, and that the “strongest link” is with lifting, carrying and forward bending. He considered there to be “an association” between lumbar disc disease and repetitive bending and twisting. He referred to a recent study which he had co-authored. A conclusion of this article was that work-related factors, including heavy lifting and frequent bending and twisting, are associated with lumbar disc disease, but that "the strength of this association [with occupational activities] remains uncertain". Some of the references in the studies cited, which make an association between occupational activities and intervertebral disc degeneration, refer to heavy physical work, "extreme forward bending" and frequent twisting, usually under heavy load. The authors of the article developed a matrix evaluating the link between occupational risk factors and the condition. Professor Sambrook considered that Mrs Bradshaw’s exposure to ”frequent bending or twisting of the trunk”, at her age, would contribute 26 per cent to her back condition. Because she only worked part time, this was reduced to between 12 and 17 per cent. While in the article “highly exposed” frequent bending or twisting of the trunk was defined to mean “>10% of the work time with back bent or twisted 30°”, no indication was provided as to what might otherwise amount to “frequent” bending and twisting. Professor Sambrook agreed in cross-examination that he had reached his assessment of 12-17 per cent work contribution on the basis that Mrs Bradshaw had undertaken “considerable” bending and twisting. In answer to questions by the Tribunal, he said that “frequent” meant 10-20 per cent of the time, and that “considerable” meant “not insignificant”.
CONSIDERATION
27. For a condition to be compensable it must be “contributed to in a significant degree by the employee’s employment” in accordance with the Act. A “significant” degree means a degree that is substantially more than material. The term “in a material degree” was discussed by Finn J in Comcare v Sahu-Kahn (2007) 156 FCR 536, where it was concluded that it “imposes an evaluative threshold below which a causal connection may be disregarded”, and “requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment”.
28. For an employee to succeed in a claim such as this, it is not necessary to establish that the employment is the central, main or primary factor in the onset or aggravation of the ailment in question, only that the employment contributes to the ailment in a significant degree. That is a matter of fact and degree to be determined on evaluation of all of the contributing or causal factors.
29. We heard and read evidence from the various medical practitioners on the question of the contribution of Mrs Bradshaw’s work to her condition. With the exception of Dr Maxwell, their evidence was not altogether divergent. The high point of the medical evidence for Mrs Bradshaw was the evidence of Professor Sambrook. By Professor Sambrook’s calculations, he estimated that Mrs Bradshaw’s work provided a 12-17 per cent contribution to her condition. He came to this view on the basis that she had undertaken “considerable” bending and twisting, which he explained meant “not insignificant”. We consider that the opinion of Professor Sambrook is flawed, because it proceeded on an erroneous understanding as to the amount of bending and twisting actually undertaken by Mrs Bradshaw.
30. Mrs Bradshaw worked for three or three and a half hours a day, to a total of 15 hours over a five day working week. There was scant evidence about twisting that might have been involved in her role. The tray of mail on the trolley was behind her, it appears, but, from the photographs, it was unclear as to why a trolley would need to be positioned, such that a full twist was required in order to access it. She agreed in cross-examination that there was no reason she could not move her feet to face the trolley to collect more mail, in any event. Further, there did not appear to be much twisting required at all in order to place mail in the boxes, when, as Mrs Bradshaw agreed, she was able to step sideways along the wall on which the boxes were located.
31. Similarly, we had reservations about the amount of bending that was undertaken. We observe from the photograph of Mrs Bradshaw at the mail box wall that the bottom of the lowest level of boxes appeared to be at her knee height. The photograph demonstrated her inserting a letter into a box on the lowest level. There appeared to be minimal bending involved, if any. It is unfortunate that the photograph was not available to show the doctors who gave evidence, especially Professor Sambrook. We do not accept that her activities could be described as “frequent bending and twisting”. Even if we were to accept the tenuous connection between frequent bending and twisting described by Professor Sambrook, it seems to us that a far higher amount of bending and twisting would be required before a significant contribution could be said to have been made by Mrs Bradshaw’s work to her condition.
32. In our view, it has not been shown on the probabilities (as opposed to possibilities) that Mrs Bradshaw’s work "contributed to a significant degree" to her ailment or aggravation as required by s 5B of the Act: Australian Telecommunications Commission v Treloar [1989] FCA 470. Hence, the Respondent is not liable to pay the Applicant compensation pursuant to s 14 of the Act with respect to her lower back condition.
DECISION
33. The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr J D Campbell, Member.
Signed:...............................[SGD].............................................. Nicholas Olson, Associate
Date/s of Hearing 16, 17 & 18 March 2011
Date of Decision 5 April 2011
Counsel for the Applicant Mr P Stockley
Solicitor for the Applicant Mr T Mithieux
Counsel for the Respondent Mr P Jones
Solicitor for the Respondent Ms C Tirado
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