Edwards and Australian Postal Corporation
[2013] AATA 874
•9 December 2013
[2013] AATA 874
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1625
Re
Vicky Edwards
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 9 December 2013 Place Brisbane The decision under review is:
(a) set aside and in its place I substitute the decision that the respondent is liable to pay the applicant compensation under ss 16 and 19 of the Act; and
(b) the parties have 21 days in which to file submissions for orders in relation to costs. If no submissions are made, an order will be made for the respondent to pay the applicant’s reasonable costs as agreed or taxed.
........................[Sgd]................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
WORKERS' COMPENSATION – Australia Post employee – Liability for aggravated condition – Bilateral Achilles tendonitis – Decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19, 67
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
9 December 2013
INTRODUCTION
The applicant had a workplace injury for which the respondent had initially accepted liability. On 3 December 2012 the respondent made a determination under the
Safety, Rehabilitation and Compensation Act 1988(Cth) (the Act) that there is no present liability to pay her compensation pursuant to ss 16 and 19 of the Act. This decision was affirmed by a delegate for the respondent on 13 February 2013, the applicant has made an application for review of that reviewable decision.
BACKGROUND
Since October 2006 the applicant has been employed by the respondent. On 10 February 2012 the applicant was on duty pushing a heavy wheeled bin (known as a “ULD”) from the weighing station down a slight slope. She stated that she pushed the ULD off with both her feet and upon doing so felt what she has described as “an immediate burning sensation in my right Achilles area”.[1] She stated that the ULD went off quite suddenly and she had to pull the handle of the pallet jack to stop it, she then stated that she felt “an aching type pain in my left Achilles that came and went”.[2] The applicant next took her break and reported the incident to her manager. She was taken to the first aid room and ice was applied to her ankles.
[1] Applicant’s statement at exhibit D.
[2] Ibid.
On 11 February 2012 the applicant went to the doctor and was certified as being unfit for work on that day as well as 12 February 2012. On 13 February 2012 the applicant returned to work and was advised by her manager to sit down and do manual sorting for the day. On 14 February 2012 the facility doctor placed her on restricted seating duties. She performed those duties on 14 and 15 February 2012, she still had severe pain. On 16 February 2012 she went to another doctor and was given a medical certificate for two days off work for an ear infection. On 21 February 2012 the applicant then saw
a doctor who gave her a medical certificate to rest from 21 February 2012 to 27 February 2012.
On 2 April 2012 the applicant returned to work on suitable duties as she had to avoid lifting anything above 5kg. In March she saw Dr Aneel Nihal, orthopaedic surgeon, who referred the applicant to physiotherapy and anti-inflammatory medication. The condition of the applicant did not improve and in August 2012 Dr Nihal recommended that surgery be performed. On 8 January 2013 the respondent ceased paying compensation for her bilateral Achilles conditions.
MEDICAL EVIDENCE
A number of specialist medical reports are in evidence.
The applicant has tendered two reports from Dr Malcolm Wallace, orthopaedic surgeon.
In his report, dated 22 June 2013, Dr Wallace stated that the applicant suffers from bilateral Achilles tendonitis.[3] Dr Wallace considers that the applicant has been appropriately investigated and treated conservatively. Dr Wallace considered that there was no real indication for surgical treatment which is likely to make her worse if it is undertaken. Dr Wallace then stated that ongoing treatment should consist of simple analgesics, anti-inflammatory agents, a heel raise and the avoidance of activities which aggravate her pain. Dr Wallace considered that the applicant had reached “maximum medical improvement”. Dr Wallace also reported that in his opinion the applicant would not be able to return to the type of work which she was doing before and which involves any type of pushing or pulling. He considers that she would be able to do other lighter manual, supervisory or sedentary work.
[3] Exhibit B.
In his report dated 23 August 2013 Dr Wallace stated that the condition of the applicant is a result of the workplace injury.[4] Dr Wallace reiterated that the applicant’s ongoing treatment should consist of simple analgesics, anti-inflammatory agents, a heel rise and the avoidance of activities which aggravate her pain. Dr Wallace gave his opinion that the applicant has reached maximum medical improvement implying that the applicant’s condition is likely to continue indefinitely. Dr Wallace also stated that the applicant’s incapacity for work has resulted from the conditions described in his earlier report as it will involve pulling and pushing, and physical work as noted in his opinion.
[4] Exhibit C.
The respondent obtained two reports from Dr Terence Saxby, orthopaedic surgeon.
In his report dated 10 May 2012,[5] Dr Saxby diagnosed the applicant’s condition as a right Achilles tendinopathy, right much greater than left. Dr Saxby stated that he believed the condition is a pre-existing (constitutional) condition, however her work environment could be considered an aggravating factor. Dr Saxby stated that obviously pushing trolleys of a significant weight would increase the load on the Achilles tendon. Dr Saxby stated that the applicant had been treated appropriately for this and it would appear that her work aggravation has settled. He then considered that the applicant should be able to gradually increase her hours and return to normal duties. Dr Saxby stated that the applicant has an underlying degenerate problem in her Achilles tendon and this may cause her ongoing troubles in the future but at that stage he believed her work aggravation has been appropriately dealt with.
[5] Exhibit A, pp. 78-79.
Dr Saxby was asked by the respondent to provide a further report which he wrote on
10 September 2013. Dr Saxby was briefed with the reports of Dr Wallace dated 22 June 2013 and 23 August 2013. Dr Saxby was asked whether the reports of
Dr Wallace altered his opinion as expressed in his report dated 10 May 2012: Dr Saxby answered ‘no’ and that his opinion is unchanged. Dr Saxby opined:[6]
This lady has been treated appropriately for this aggravation, and one would have expected her work aggravation to settle. I therefore believe that any ongoing problems at this stage are related to the underlying degenerative condition rather than any work-related activity. I also believe that any permanent impairment is a result of the underlying condition rather than any work‑related component.
[6] Exhibit E.
Reports of Dr Nihal, consultant orthopaedic surgeon, are in evidence. In his report, dated 12 September 2012, Dr Nihal stated:[7]
I agree with Dr Terry Saxby’s comments that this Achilles nodular degeneration is pre-existing and constitutional condition and heavy work involvement and pushing trolleys could be considered as an aggravating factor. Obviously, pushing trolleys of a considerable weight and over a period of time, increases the load on the Achilles tendon, thus aggravates pre-existing Achilles tendonitis. Aggravation of Achilles tendonitis, when treated non surgically usually takes about 6-8 months to settle and in six to eight months time, is a reasonable period for the aggravation to cease.
I also agree with Dr Saxby’s report that Vicky Edwards has underlying degenerative problems in both Achilles tendons and this would give her ongoing pain, discomfort and trouble in the future, if she continues to be involved in heavy work, which she has been doing. The symptoms of right Achilles tendon which she started having on 10/02/12, has been appropriately treated with modification of activities and non surgical methods, as mentioned in my previous letter and Dr Saxby’s letter.
[7] Exhibit A, p. 150.
Dr Nihal in his report dated 26 March 2013 wrote:[8]
Clinical examination revealed Vicky is extremely tender over the right and left Achilles tendons. On the right Achilles tendons there is a small nodule palpable about 2-3 cms just above its insertion which is very tender to touch. On the left side there is also a small nodule papable which is less tender to touch as compared to the right side. She also has tightness of Achilles tendon. She is also tender over the insertion of Achilles tendon with the calcaneum.
[8] Exhibit F.
CONSIDERATION
I find in reliance of the reports of the medical specialists being Dr Wallace, Dr Saxby and Dr Nihal that the applicant has a condition of bilateral Achilles tendonitis. Dr Wallace agreed with the opinion of Dr Saxby that there is some thickening of the right Achilles tendon which is consistent with non-insertional Achilles tendinopathy. There is a consensus of opinion that the condition is worse on the right rather than the left.
The applicant stated that the condition of her left Achilles tendon became worse when she has to rely on that tendon when she was unable to use her right Achilles tendon.
A report dated 11 December 2012 of an ultrasound scan of the applicant’s Achilles tendons reveals that in both the right and left tendons there are appearances consistent with tendinitis.[9]
[9] Exhibit A, p. 187.
The applicant has an Achilles nodular degeneration which Dr Nihal has described as being a pre-existing and constitutional condition. Dr Wallace was subject to extensive cross-examination on what was meant by a constitutional condition. Dr Wallace did not consider the fact that the applicant has what can be referred to as a constitutional condition in the sense of being “inborn” or “predetermined from within”. Dr Wallace was strongly of the opinion that the condition is either inflammatory or traumatic (i.e., over exercise or direct trauma), he did not consider that the condition would occur in any case. Dr Wallace was not prepared to agree with the opinion of Dr Saxby who considered that non-insertional tendinopathy is constitutional in nature. Dr Wallace stated that tendinopathy was not a well understood condition.
The applicant’s legal representative, in final submissions, accepted that prior to
10 February 2012 the applicant had a constitutional Achilles tendinopathy condition.
The applicant gave evidence that the condition was generally asymptomatic apart from when she felt some discomfort in October 2011mainly in her right ankle when pushing and pulling ULDs.
This is a matter in which there is a conflict of specialist evidence. Dr Saxby considers that “any ongoing problems at this stage are related to the underlying degenerative condition rather than any work-related activity”. Dr Wallace is of a contrary opinion, he is strongly of the opinion that her condition is a result of the workplace injury as outlined: he was not shaken from that opinion during his extensive cross‑examination, despite quite properly acknowledging the expertise of Dr Saxby. This is one reason why I prefer to rely upon the opinion of Dr Wallace. I also comment that Dr Saxby was briefed with both reports of Dr Wallace and while in his most recent report Dr Saxby still maintains his opinion he has not outlined any reasons why the reports of Dr Wallace should not be accepted. I accordingly find in reliance of the reports of Dr Wallace that the present condition of the applicant is related to her workplace injury.
I consider that it is appropriate to make an order that the respondent is liable to pay the applicant compensation under ss 16 and 19 of the Act.
I should for the sake of completeness record that this is not a case where the applicant can be regarded as refusing reasonable medical treatment in declining to have an operation. Dr Nihal had at one stage proposed an operation whereby the tendons in the big toe of the right foot would be moved to the Achilles tendon area. The applicant in giving evidence stated that Dr Nihal had indicated to her that he would not give her a guarantee that the operation would be successful. Dr Wallace was not challenged on his conclusion that an operation is likely to make her condition worse.
The applicant was questioned about whether she had untaken certain activities.
The applicant denied assisting her husband in his bread business before the workplace injury. The applicant also denied assisting her husband or her family in a business at the Carrara Markets before or after the workplace injury. There was no evidence placed before the Tribunal of the applicant having worked in any such businesses.
COSTS
This application has been resolved in a manner that is more favourable to the applicant than the reviewable decision. I accordingly consider that it is appropriate to consider making an order for costs under s 67(8) of the Act. During the hearing no submissions were made in relation to costs. I consider that it is appropriate to make an order for the respondent to pay the applicant’s reasonable costs in these proceedings as agreed or taxed. I will give the parties 21 days in which submissions can be made in relation to costs. If submissions are made they should be exchanged between the parties to ensure procedural fairness. If no submissions are made I will make an order in the terms that are proposed
DECISION
(a) The decision under review is set aside and in its place I substitute the decision that the respondent is liable to pay the applicant compensation under ss 16 and 19 of the Act.
(b) The parties have 21 days in which to file submissions for orders in relation to costs. If no submissions are made, an order will be made for the respondent to pay the applicant’s reasonable costs as agreed or taxed.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member .........................[Sgd]...............................................
Associate
Dated 9 December 2013
Date of hearing 21 November 2013 Solicitor for the Applicant Phil Nolan, Maurice Blackburn Lawyers Solicitor for the Respondent Donna Hatton
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