Dekker and Australian Postal Corporation (Compensation) - [2018] AATA 682

Dekker and Australian Postal Corporation (Compensation) [2018] AATA 682 (28 March 2018)
Division:GENERAL DIVISION
File Number(s): 2015/4873 & 2016/2949
Re:Rodney Dekker
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:28 March 2018
Place:Sydney

2015/4873
The decision under review is affirmed.
2016/2949
The decision under review is affirmed.
....................[sgd]................................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – workers compensation – section 14 claim – physical injuries – aggravation of an ailment – whether employment contributed to a significant degree – changes degenerative in nature – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
CASES
Re Blasco and Australian Postal Corporation [2017] AATA 1222
REASONS FOR DECISION
Senior Member A Poljak
28 March 2018

Mr Dekker, the applicant, is employed by Australia Post, the respondent, as a full-time postal delivery officer at Wollongong Delivery Facility and has been employed since 16 October 1990. The applicant’s role involved postal deliveries on a motorbike and sorting mail in preparation for delivery. As of early 2015, the applicant has been on restricted duties.
On 28 April 2015, the applicant lodged a claim for worker’s compensation in respect of ‘neck left shoulder and arm/hand’ injuries under section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the Act”). No specific incident is recorded in the claim form (“first claim”).
The respondent denied liability in a decision dated 18 May 2015, on the basis that the applicant’s claimed condition had not arisen out of, or in the course of his employment. The decision of the respondent was affirmed by a reconsideration officer on 30 June 2015. This is the first decision under review in these proceedings (“2015/4873”).
On 16 September 2015, the applicant lodged a second claim for worker’s compensation in respect of ‘soft tissue right shoulder/neck strain’ under section 14 of the Act, with an injury date of 16 September 2015 (“second claim”). The respondent denied liability in a decision dated 25 November 2015. The decision of the respondent was affirmed by a reconsideration officer on 4 April 2016. This is the second decision under review in these proceedings (“2016/2949”).
ISSUES
The issue in each application is whether the respondent is liable to pay compensation to the applicant pursuant to s 14 of the Act in respect of each alleged injury.
KEY FACTS
The following facts are not in dispute.
First Claim
On 31 August 2009, an incident form was completed which recorded that the applicant suffered an injury ‘reaching down to letterbox to push mail into box strain on left shoulder’.
On 29 October 2009, the applicant submitted a claim for rehabilitation and compensation for a ‘left shoulder muscular’ injury with an injury date of 31 August 2009. On 12 November 2009, the respondent issued a determination accepting liability for ‘left shoulder and neck muscle strain’.
On 28 April 2015, an incident form was completed which recorded that…

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 Dekker and Australian Postal Corporation (Compensation)

Details

AGLC: Dekker and Australian Postal Corporation (Compensation) [2018] AATA 682
Case: [2018] AATA 682
Decision Date: 28 March 2018

CaseChat Overview and Summary

This matter concerned two claims for compensation brought by the applicant against the Australian Postal Corporation. The applicant sought compensation under section 14 of the relevant Act for injuries to his left shoulder and neck, and subsequently his right shoulder and neck. The respondent had denied liability for these claims, and the Administrative Appeals Tribunal was required to determine whether the respondent was liable to pay compensation in respect of the alleged injuries.

The primary legal issues before the Tribunal were whether the applicant's claimed conditions arose out of, or in the course of, his employment with the Australian Postal Corporation, and whether his employment contributed to a significant degree to any aggravation of a pre-existing condition. This involved considering the nature of the applicant's work tasks, the medical evidence regarding the cause and aggravation of his symptoms, and the applicant's own account of events in light of his extensive prior medical history.

The Tribunal considered expert medical evidence from Dr Pillemer and Associate Professor McGill. Associate Professor McGill opined that the applicant's degenerative changes in his cervical spine were likely constitutional and that his symptoms were a reflection of these changes, not caused by his work. Dr Pillemer, however, suggested that the nature and conditions of the applicant's work would be regarded as aggravations of underlying conditions and substantial contributing factors to his ongoing symptoms. The Tribunal noted that the applicant's oral evidence was inconsistent with contemporaneous clinical history regarding prior injuries and non-work-related complaints, leading it to prefer the clinical records. Applying the principles from *Commonwealth of Australia v Beattie* and *Tippett v Australian Postal Corporation*, the Tribunal found that while pain experienced at work may constitute an aggravation, there must be a causal connection to employment, and the mere fact of feeling pain at work was insufficient.

The Tribunal affirmed the respondent's decisions to deny liability. It found that the applicant had not established that his employment with the Australian Postal Corporation had caused or significantly contributed to an aggravation of any underlying condition. The Tribunal was not satisfied that the applicant had suffered a compensable injury within the meaning of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in each application is whether the respondent is liable to pay compensation to the applicant pursuant to s 14 of the Act in respect of each alleged injury.KEY FACTS The following facts are not in dispute.First Claim On 31 August 2009, an incident form was completed which recorded that the applicant suffered an injury ‘reaching down to letterbox to push mail into box strain on left shoulder’. On 29 October 2009, the applicant submitted a claim for rehabilitation and compensation for a ‘left shoulder muscular’ injury with an injury date of 31 August 2009. On 12 November 2009, the respondent issued a determination accepting liability for ‘left shoulder and neck muscle strain’. On 28 April 2015, an incident form was completed which recorded that the applicant was ‘getting pain from neck/shoulder/arm and hand on the side due to nerves and pins and needles’ with ‘similar symptoms with a work injury 31.08.2009. Recent recurrence of gradual onset related to work tasks, settles over weekend’. On 28 April 2015, the applicant submitted a claim for rehabilitation and compensation for a ‘neck left shoulder and arm/hand’ injury. No specific incident is recorded. The respondent denied liability in a decision dated 18 May 2015, on the basis that the applicant’s claimed condition had not arisen out of, or in the course of his employment (the decision). On 30 June 2015, the respondent issued a reconsideration affirming the decision. Arriving at the decision the respondent noted ‘there is currently no medical report explaining how your upper limb symptoms, which are similar to those experienced some years ago, have been caused or significantly contributed to by your work duties with Australia Post’.Second Claim On 16 September 2015, an incident form was completed which recorded the applicant ‘was sorting large letters into V sort frame’ when he ‘felt a dull burn pain’ in his right shoulder. The applicant attributed the injury to ‘overuse of his right arm, due to restrictions with left’. On 6 November 2015, the applicant submitted a claim for rehabilitation and compensation for a ‘right shoulder, neck’ injury with an injury date of 16 September 2015, together with a witness statement from Mr Colin Spencer. Mr Spencer notes ‘heard him cry out in pain, I turned around, and saw him lifting large letters out of tub and then grabbing his right shoulder in pain and complaining about neck burning’. The respondent denied liability in a decision dated 25 November 2015 (the second decision). On 4 April 2016 the respondent issued a reconsideration affirming the second decision. In arriving at the decision the respondent relied on a report from Associate Professor McGill dated 23 March 2016. The respondent notes that A/Prof McGill opined, when viewing a CT scan of the applicant’s cervical spine ‘indicated the presence of chronic degenerative changes (spurring)’ and ‘the degenerative changes in [your] cervical spine are likely to be constitutional’.CLINICAL HISTORY

Evidence

Evidence Before The Court

On 22 September 2016, the applicant presented to Dr Suresh Bheri (GP) complaining of left-sided neck pain. Dr Bheri records, ‘no fall or injury. Hurt it doing his paperwork yesterday, he thinks’.EXPERT EVIDENCE The applicant relies on the expert evidence of Dr Roger Pillemer, orthopaedic surgeon, and Dr Arthur Stanton, vascular surgeon. The respondent relies on the expert evidence of Associate Professor McGill. All of which have provided written reports in these proceedings which I have read and considered. Dr Pillemer and A/Prof McGill also gave oral evidence concurrently at hearing. Relevant aspects of the expert evidence is summarised below. On 23 March 2016 the applicant was interviewed and examined by A/Prof McGill. In the report of the same date, A/Prof McGill said in summary:“… Based on the information currently available to me I think the degenerative changes in his cervical spine are likely to be constitutional. I think the episode of neck and probable left radicular pain which he experienced in 2015 was a reflection of those degenerative changes and not caused by his work. He no longer has any left upper limb radicular symptom and he had a normal neurological examination….His treating doctor may wish to explore the possibility of depression based on [the applicant’s] statement today that he has felt depressed over the last six months. That may be influencing his symptoms and his confidence with respect to returning to work…” [Emphasis added] In a report dated 30 May 2016, Dr Pillemer opined:“If as suggested he does have bilateral thoracic outlet syndromes, there is invariably an underlying anatomical cause for this, but in my opinion the various accidents described as well as the nature and conditions of his work would certainly need to be regarded as aggravations of an underlying condition.Similarly, as far as his cervical spine is concerned, he does have evidence of degenerative change which could well be constitutional for him, but once again noting his history and the number of injuries, in my opinion the nature and conditions of his work would again be described as aggravations of an underlying condition and in my opinion a substantial contributing factor to his ongoing symptoms.As noted he has physical signs in keeping with bilateral SLAP lesions, and if this is the case then once again in my opinion the accidents and natural conditions of his work would need to be regarded as either a substantial contributing factor to the development of these lesions or aggravation of an underlying condition…Taking everything into consideration, in my opinion the nature and conditions of [the applicant’s] work would need to be regarded as substantial contributing factors to his presentation at the moment by way of causation and/or aggravation of underlying conditions…” On 5 July 2016, A/Prof McGill provided a supplementary report commenting on the summons records of IOC, PHC Dapto Medical Centre, Dapto Health Care and the medical report of Dr Roger Pillemer dated 30 May 2016. In his report A/Prof McGill concluded:“The documentation provided by his general practitioners did not suggest that he suffered any significant neck injury in the 2004 motorbike accident, nor in the incidents which he recalled occurring in 2006, 2007 and late 2009 or early 2010.As noted above, the history upon which Dr Pillemer reached his conclusions, was not supported by the documentation (with respect to neck injury at work).I think it would be reasonable for the possibility of the thoracic outlet syndrome to be clarified. I continue to believe that it is more likely that his neck and upper limb symptoms have been due to degenerative change in the cervical spine which has developed on a constitutional basis. I do not think that his work has caused any harm to his neck. I confirm the other conclusions which I provided in my report dated 23 March 2016.”

Decision

Reasons for decision

The respondent denied liability in a decision dated 25 November 2015 (the second decision). On 4 April 2016 the respondent issued a reconsideration affirming the second decision. In arriving at the decision the respondent relied on a report from Associate Professor McGill dated 23 March 2016. The respondent notes that A/Prof McGill opined, when viewing a CT scan of the applicant’s cervical spine ‘indicated the presence of chronic degenerative changes (spurring)’ and ‘the degenerative changes in [your] cervical spine are likely to be constitutional’.CLINICAL HISTORY Some aspects of the summons records of IOC, PHC Dapto Medical Centre and Dapto Health Care are relevantly summarised below. On 25 March 1988, the applicant attended his GP and complained of migraine. He reported a neck injury of one month duration and that he had been seeing a chiropractor. On 8 April 1988, the applicant attended his GP in relation to a neck x-ray. He advised the GP that he had been a boxer. On 6 December 1989, the applicant attended his GP and complained of ‘back pain cervical spine’. On 6 May 1996, the applicant attended his GP in respect of right and left shoulder pain. The applicant’s GP noted that the applicant’s neck movements were slightly decreased and it was noted that the applicant had prior history of neck injury as a child in a pool. Reference is made to a neck x-ray from 1988. On 3 November 1997, the applicant saw his GP in respect of a ‘head injury 30 hrs ago’ that occurred when he ‘fell on his head while climbing in bathroom window’. On 5 November 1997, the applicant attended his GP in respect of a sore neck. On 10 December 1988, the applicant attended his GP in respect of back pain. GP queried whether that pain was secondary to a motorcycle accident at work. On 21 February 2006 the applicant attended his GP in respect of neck pain. The GP noted ‘musculo-ligamentous injury. Day off’. On 27 February 2006, the applicant attended his GP in respect of right neck pain. On 31 July 2006, the applicant attended his GP in respect of upper left thoracic spine pain. On 7 August 2007, the applicant attended his GP in respect of ‘musculo skeletal injury left shoulder/neck pain’. On 6 January 2011, the applicant attended on Dr Michael Reddy (GP) complaining of pain on the left side of his neck which at times goes down the left upper limb. On examination the applicant’s neck movements were slightly restricted and painful, more so on moving to the left. On 6 April 2011, the applicant presented to Dr Samer Elhafi (GP) complaining of neck pain against a history that he has been playing sport. On 12 July 2012, the applicant presented to Dr R Balgi (GP) complaining of numbness, pins and needles in both hands. Dr Balgi recorded that the applicant had a history of neck problems and noted cervical spine osteoarthritis. On 16 September 2013, the applicant attended on Dr Parajuli (GP) and reported that he had ‘lifted some heavy stuff’ and was ‘now sore in both hands, tender’. Dr Parajuli records in the clinical notes ‘no active trauma’, ‘movements ok’, ‘no sprain or bruises’.

Ratio Decidendi

Legal Principle Established

The applicant’s prior history was put to the doctors at hearing. Dr Pillemer conceded that it was not the history given to him by the applicant and he stated that based on the information, he would not attribute the applicant’s injury to the 2004 incident. Dr Pillemer also agreed at hearing with A/Prof McGill that SLAP tears were incredibly common and that the shoulder pathology was not significantly contributing to the applicant’s symptoms. CONSIDERATION At hearing, the applicant provided details about his duties with Australia Post and provided details about a major accident he had in June 2004, an incident in August 2009 and the event that occurred on 16 September 2015. In cross-examination the applicant denied a range of matters, arising from the clinical history which is outlined above in this decision. For example, the applicant denied injuring himself while playing golf, playing sport and riding a skateboard. This is despite the clinical notes from his long-term treating practitioners recording such matters contemporaneously. The applicant appeared to accept matters in his history which included references to his employment but could not recall his neck and shoulder complaints when those complaints arose in a non-work-related context. This raises doubt as to the accuracy of the applicant’s evidence. In saying that, I do accept that over the passage of time, the applicant’s recollection of events may have faded. To the extent to which the applicant’s oral evidence is inconsistent with the contemporaneous clinical history, I prefer the latter evidence. Medical practitioners are obliged to record accurate clinical notes which include, among other things, a patient’s reason for consultation. It is plain from the applicant’s evidence that he describes a noticeable onset of symptoms while doing his work in 2015. This does not necessarily mean that the applicant suffered an aggravation. The law in relation to claims involving an alleged aggravation was recently summarised by the Tribunal in the decision of Re Blasco and Australian Postal Corporation [2017] AATA 1222 (7 August 2017) at [125]-[132], where it relevantly was observed as follows:[125] 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. …[127] 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.[128] 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).…[130] 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…[131] 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.[132] 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.