Dekker and Australian Postal Corporation (Compensation)
[2018] AATA 682
•28 March 2018
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 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
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’.
On 6 February 2014, the applicant attended on Dr Parajuli and reported that he had ‘twisted his right elbow at work today’. Dr Parajuli noted, ‘says he was holding a bike in neutral position and try to prevent falling by holding it, his right elbow hit somewhere and twisted as well”. The applicant advised that he did not want to go on WorkCover but would come back in after two days if he was no better. The clinical notes do not show the applicant returning to the doctor after two days.
On 9 July 2014, the applicant attended on Dr Ahmad (GP) complaining of neck and upper back sprain with headache. The applicant reported that it was ‘probably from sitting awkwardly in front of computer for a long time’.
On 28 July 2014, the applicant attended on Dr Parajuli (GP) complaining of pain in the right elbow. Dr Parajuli records that the applicant was ‘reinjured while playing golf’ and that it was an ‘ongoing problem’.
On 30 March 2015, the applicant attended on Dr Fiona Henneuse-Blunt (GP) and complained of neck pain with referred arm pain. On examination, Dr Henneuse-Blunt recorded that the applicant’s neck was slightly tender down the left side and that the shoulder was slightly tender with some crepitus on abduction and rotation. She notes that the applicant has been getting left shoulder/neck pain for some time and that might well be work related. She records that the applicant said he ‘had an accident a few years ago onto this shoulder and had physio at the time’.
On 20 April 2015, the applicant presented to Dr Reddy (GP) complaining of paraesthesia affecting his left upper limb which was worse with certain movements of the neck. Also on 20 April 2015, a CT scan of the applicant’s cervical spine revealed degenerative changes with endplate spurring and some disc bulging from the C5 to C7 levels.
On 27 April 2015, the applicant presented to Dr Reddy for a ‘discussion on neck pain’. Dr Reddy recorded, ‘Pt came in very irate that he believes his work is responsible for his neck cond. He wants me to say it’s work-related??’ Under ‘examination’ Dr Reddy notes, ‘I told him it is between his employer and himself. I could not certify his condition as work-related’.
On 7 May 2015, the applicant attended on Dr Quinton De Havilland (GP) for ‘neck pain with referred arm pain’. He records that the applicant had an exacerbation of neck pain and shoulder pain today and was unable to attend work. On 18 May 2015, the applicant presented to Dr Reddy for multiple issues. Under history Dr Reddy notes ‘pain in R hand persists. Unable to get to work’. On 26 May 2015, Dr Reddy notes, ‘pt in again with same pain’. On 1 June 2015, Dr Reddy again notes ‘Pt came in again c/o pain in the shoulder and neck. Could not get to work’.
On 9 June 2015, the applicant presented to Dr Reddy. The clinical notes state:
“This pt again wants sick leave
I TOLD HIM I CANNOT KEEP WRITING MED CERT FOR HIM
IF HE IS NOT IMPROVING I COULD REFER HIM TO SPECIALIST
BUT HE DOES NOT WANT IT
I TOLD HIM TO SEE ANOTHER DR…
MED CERT REFUSED”
On the same date, the applicant attended on Dr Solomon Nwanze (GP), who noted the reason for contact as ‘chronic back pain’. He notes, ‘Has a shoulder pain- a delivery man. Has had chronic back pain…Complaining of the pains. PH- has been involved in MVC - three times on duty’. On examination, Dr Nwanze records, ‘back-no swelling and movt of the neck is fine. Nil tenderness elicited’.
On 24 July 2015, the applicant presented to Dr Fiona Henneuse-Blunt (GP) for a medical certificate. She records in the notes that the applicant ‘has had left shoulder pain, recurrent for the past 12 years, has had a couple of RTC, motorbike accidents. Has been working as a postie for 25 years’.
On 30 July 2015, the applicant presented to Dr Lawrence Noonan (GP) complaining of increasing paraesthesia, pain and difficulty with his left arm. The applicant gave a history of having a motorcycle accident in 2004.
On 31 July 2015, an x-ray revealed moderate degenerative osteoarthritis of the applicant’s right acromioclavicular joint, and mild degenerative disc disease of the mid and lower thoracic spine. There was no evidence of acute fracture or dislocation of the right shoulder and left wrist.
On 31 July 2015, the applicant also underwent an MRI scan of his cervical spine which revealed moderate to severe degenerative spondylosis located at the C5/6 and C6/7 levels, associated with mild spinal stenosis located at the C5/6 level, and mild to moderate spinal stenosis located at the C6/7 level.
On 7 September 2015, the applicant presented to Dr Naresh Parajuli (GP), who recorded that the applicant had pain in his left elbow with no history of trauma. He records that the applicant said he ‘gets tennis elbow’.
On 18 September 2015, the applicant presented to IOH. The history he gave was that he was lifting large letters from a tub into a sorting frame. The applicant reported a ‘burning sensation’ that built-up over approximately 20 minutes, at the side of his neck into his shoulder. The applicant reported that he had a break and his pain eased, but when he got back to the job his pain returned. The applicant reported ‘no pain at rest’.
On 23 December 2015, the applicant presented to Dr Tim Bailey (GP) complaining that he was unable to work two days previously because he fell off a skateboard, hit his testicle and was unable to manage to do anything for some time.
On 4 July 2016, the applicant presented to Dr Noonan and reported that his pain was slightly improved over the weekend but was rapidly aggravated by work and domestic duties. Dr Noonan noted thoracic outlet syndrome unlikely.
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.”
In a report dated 15 August 2016, Dr Arthur Stanton, vascular surgeon, reported to Dr Noonan that the applicant’s symptoms were ‘almost certainly musculoskeletal in nature, and probably related to his cervical spine stenosis’.
Following receipt of Dr Stanton’s report dated 15 August 2016, A/Prof McGill provided a report dated 6 March 2017, in which he stated the following:
“The letter by Dr Arthur Stanton, vascular surgeon, following the bilateral upper limb venous and arterial duplex studies indicated that thoracic outlet syndrome was unlikely to account for [the applicant’s] symptoms. The views expressed by Dr Stanton did not support the possibility raised by Dr Pillemer in regard to thoracic outlet syndrome as an explanation for [the applicant’s] symptoms. The further records provided by Dapto Health Care and Dapto Medical & Dental Centre did not provide substantial information above that which was already available to me.
I confirm the conclusions expressed in reports of 23 March 2016 and 5 July 2016. In brief, I think the neck and upper limb symptoms which he has experienced have occurred due to degenerative change in the cervical spine which developed on a constitutional basis. I do not think that his work caused any harm to his neck.” [Emphasis added]
At hearing, Dr Pillemer and A/Prof McGill gave evidence concurrently.
Initially, Dr Pillemer advised that the applicant has had symptoms since 2004 as a result of aggravations of an underlying condition. He said that in 2015 the applicant suffered another aggravation but it was not significant. He said it was just a “flare up” and that there was nothing significant in his injuries to make work a significant contributing factor. He said it was “just a further aggravation”. In regards to the nature and conditions of work, Dr Pillemer stated that he related them to the original injury in 2004 and that the applicant had problems since.
A/Prof McGill stated that it was possible that the applicant’s duties influenced the onset of pain and led to the development of symptoms however he said that he would not expect the nature of the work to aggravate his condition. He stated that regardless of the activities undertaken by the applicant, “flare ups” were a normal part of the disorder.
In regards to bilateral thoracic syndrome, both doctors said they defer to the vascular surgeon’s opinion.
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.
Taking into account all of the relevant information, A/Prof McGill diagnosed the applicant as suffering from neck and upper limb symptoms due to degenerative changes in his cervical spine which developed on a constitutional basis. Dr Pillemer agreed that the applicant’s condition may well be constitutional however based on the history given by the applicant and the nature and conditions of his work, Dr Pillemer opined that the applicant’s work was a substantial contributing factor to his ongoing symptoms. I don’t place much weight on Dr Pillemer’s opinion in this regard as at hearing, it was evident that he was not provided a complete and accurate history from the applicant and that in arriving at his decision in his written report, he relied on events that are not the subject of the claims that are before this Tribunal, such as the motorcycle accident of 2004. Dr Pillemer also conceded at hearing that there was nothing significant in the injuries allegedly suffered by the applicant in 2015 which would make work a significant contributing factor.
In regards to bilateral thoracic outlet syndrome, the letter of Dr Stanton following the bilateral upper limb venous and arterial duplex studies raises significant doubt about whether the applicant suffers from this condition. A/Prof McGill is of the opinion that this evidence indicates that thoracic outlet syndrome was unlikely to account for the applicant’s symptoms.
For the above reasons, I am of the opinion that the expert witnesses are unanimous in that the applicant’s work was not a significant contributing factor to his claimed condition; instead the applicant’s symptoms were a reflection of degenerative changes in his cervical spine.
I am satisfied, on the weight of the evidence, that the applicant has not suffered an “ailment” or an “aggravation” of an ailment that was contributed to, to a significant degree, by his employment. It follows that the respondent is not liable to pay compensation under section 14 of the Act as the applicant has not suffered an “injury” resulting in incapacity for work or impairment.
DECISION
The decisions under review are affirmed.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
......................[sgd]..............................................
Associate
Dated: 28 March 2018
Date(s) of hearing: 9 & 10 August 2017 Counsel for the Applicant: J Dodd Solicitors for the Applicant: P Myrtle, Slater & Gordon Lawyers Counsel for the Respondent: P Woulfe Solicitors for the Respondent: D Hatton, Australian Postal Corporation
Key Legal Topics
Areas of Law
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Employment Law
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Negligence & Tort
Legal Concepts
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Causation
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Duty of Care
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Expert Evidence
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Negligence
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Statutory Construction
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Vicarious Liability
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