Hyndman and Australian Postal Corporation (Compensation)
[2023] AATA 1134
•11 May 2023
Hyndman and Australian Postal Corporation (Compensation) [2023] AATA 1134 (11 May 2023)
Division:GENERAL DIVISION
2021/1185 and 2021/2681File Number(s):
Re:Suzanne Hyndman
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:11 May 2023
Place:Melbourne
The Tribunal:
·sets aside the reviewable decision dated 5 February 2021 and, in substitution, decides the Applicant is entitled to the cost of bilateral hip replacement surgery pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth); and
·sets aside the reviewable decision dated 15 April 2021 and, in substitution, decides the Applicant continues from 18 March 2021 to be entitled to compensation in respect to the injuries of ‘aggravation of bilateral hip degenerative change or osteoarthritis associated with trochanteric bursitis and glutaeal tendinopathy’ pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth).
................................[SGD]........................................
Dr L Bygrave, Member
Catchwords
WORKERS COMPENSATION – postal delivery officer – bilateral hip osteoarthritis diagnosis – whether ailment is work related – whether ailment is a pre-existing degenerative condition – where pre-existing ganz lesions – whether nature of work aggravated ailment – ongoing pain and discomfort – medical opinion recommending bilateral hip replacement – decisions set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
REASONS FOR DECISION
Dr L Bygrave, Member
11 May 2023
INTRODUCTION
The Applicant, Ms Suzanne Hyndman, is 55 years old. In 1999, Ms Hyndman commenced employment at Australia Post: she was initially employed as a night shift mail sorter for about seven years and then as a Postal Delivery Officer (PDO) for 13 years. Since January 2020, her employment at Australia Post has comprised ‘indoor light duties’.[1]
[1] Exhibit TB-TB3, 36.
On 7 January 2020, Ms Hyndman lodged a Claim for Rehabilitation and Compensation for the injury, ‘bilateral hip injuries – trochanteric bursitis, gluteal tendinopathies & increased degeneration of hip joints’, which she claimed she first noticed on 27 December 2019.[2]
[2] Exhibit R1-T9, 31.
On 24 February 2020, Australia Post accepted liability to pay compensation to Ms Hyndman in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for ‘aggravation of bilateral hip degenerative change or osteoarthritis associated with trochanteric bursitis and glutaeal tendinopathy’ (the accepted injuries).[3]
[3] Exhibit R1-T18, 52.
Australia Post subsequently made the following decisions:
·Decision made on 5 February 2021 to affirm the determination made on 21 December 2020 to deny liability pursuant to section 16 of the SRC Act for the ‘cost associated with bilateral hip replacement’ for the Applicant[4] (Application No. 2021/1185).
·Decision made on 15 April 2021 to affirm the determination made on 18 March 2021 to deny liability to pay compensation to the Applicant pursuant to sections 16 and 19 of the SRC Act in respect of the accepted injuries[5] (Application No. 2021/2681).
[4] Exhibits R1-T46, 154 and R1-T59, 205.
[5] Exhibits R1-T60, 210 and R2-T8, 26.
Ms Hyndman lodged separate applications for review of these decisions with the General Division of the Administrative Appeals Tribunal (the Tribunal) on 2 March 2021 (Application No. 2021/1185) and 28 April 2021 (Application No. 2021/2681).
The applications were heard jointly in Melbourne on 6, 7, 8 and 9 March 2023. Ms Hyndman had legal representation; she attended the hearing in person and gave oral evidence.
RELEVANT LEGISLATION AND ISSUES
This matter relates to Ms Hyndman’s claims for entitlement to compensation for an ‘injury’ in accordance with the SRC Act. Subsection 14(1) of the SRC Act states:
(1) Subject to this Part, Comcare [or in this application, Australia Post] 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.
Section 16 of the SRC Act provides for liability to pay ‘in respect of the cost of medical treatment obtained in relation to the injury’ and section 19 provides for compensation to be paid where a person is ‘incapacitated for work as a result of an injury’.
Subsection 5A(1) of the SRC Act includes the following meaning of ‘injury’:
(1) In this Act:
“injury” means:
(a) a disease suffered by an employee; or …
[emphasis added]
Relevantly, ‘disease’ is defined in section 5B of the SRC Act as follows:
(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.
…
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
[emphasis added]
‘Aggravation’ and ‘ailment’ are defined in subsection 4(1) of the SRC Act as follows:
“aggravation” includes acceleration or recurrence.
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The issues for determination by the Tribunal are whether Ms Hyndman:
·continues to be entitled to compensation pursuant to sections 16 and 19 of the SRC Act in respect to the accepted injuries (Application No. 2021/2681); and
·is entitled to the cost of bilateral hip replacement surgery pursuant to section 16 of the SRC Act (Application No. 2021/1185).
EVIDENCE
A. Evidence of Ms Hyndman
Ms Hyndman provided a written statement dated 21 April 2022 and gave oral evidence at the hearing on 6 March 2023.
Ms Hyndman stated that her employment as a PDO at Australia Post comprised two main duties: first, she spent approximately two hours a day sorting mail into compartments corresponding to the streets on her delivery round; and second, she delivered the sorted mail and small parcels by motorbike for approximately five to seven hours a day.
Ms Hyndman explained in relation to the delivery of mail and parcels that she would leave the Australia Post depot with mail and parcels in panniers on the rear of her motorbike and, once she commenced the delivery process, she moved mail and parcels into a large basket attached to the front of the motorbike. Once her panniers were empty, she would ride to a depot bin to collect further mail for delivery by motorbike. She stated that, on a busy day, she would go to a depot bin three to four times to reload her panniers.
Ms Hyndman said the process of delivering mail required her to get on and off the motorbike up to 70 to 80 times each day during busy periods, such as prior to Christmas, and approximately 30 times a day during slower periods, such as January. She explained she got on and off the motorbike to collect mail from a depot bin or to deliver registered mail or parcels.
Ms Hyndman stated that her height is 157cm (five foot two inches) and, due to the height of the motorbike, to mount the motorbike she needed to lean on her left leg and bend her right hip past 90 degrees to hook her right leg up and over the bike. The width of the motorbike seat also meant that the position of her legs splayed out to the side when she was seated on the bike. She said that, while seated astride the bike, she ‘could only just touch the ground with the tips of her toes’ and, if she stopped on the road such as at traffic lights, she would either balance on her toes or place one foot flat on the ground and lean the motorbike over to the side.[6]
[6] Exhibit TB-TB3, 37.
In 2018, Ms Hyndman was involved in an accident when the back wheel of her motorbike slid from under her and she came off the bike in slippery road conditions. She hurt her shins and had significant bruising but said she did not sustain any injuries to her hips.
After this accident, Ms Hyndman’s supervisor at Australia Post took photographs of Ms Hyndman with her motorbike that were filed with her written statement. These included a photograph of Ms Hyndman seated astride the motorbike and balancing on her toes, and a photograph of her lifting and bending her right leg to mount the bike. Both of these photographs support Ms Hyndman’s description of her height, and her posture and positioning, relative to the motorbike.
Australia Post provided Ms Hyndman with a smaller seat for the motorbike ‘in about 2019’ after she said she was ‘having problems’ with her hips; she described this seat as ‘slightly narrower but also thinner’ as it had less cushioning and was ‘very uncomfortable’.[7] She said that her delivery rounds were on sealed roads, but the surfaces she rode on could be ‘rough’ due to potholes in the road and raised footpaths. She found riding over uneven surfaces ‘jarring to [her] entire body, but particularly through [her] hips.’[8]
[7] Exhibit TB-TB3, 37.
[8] Exhibit TB-TB3, 37.
Ms Hyndman said she first noticed pain in both her hips in 2018. In her statement, Ms Hyndman wrote that she saw her general practitioner in March 2018 in relation to a ‘menstrual type pain’ that she thought was coming from her lower back, and subsequently had a CT scan of her abdomen and pelvis that showed she had osteoarthritis in both hips.[9] Ms Hyndman stated that she experienced pain in both hips that required her to seek medical treatment in November 2018 and November 2019. On 10 December 2019, an x-ray of Ms Hyndman’s pelvis and left hip and a left hip ultrasound showed she had ‘trochanteric bursitis and gluteal complex tendinopathy, together with bilateral hip joint degenerative change’.[10] An ultrasound of Ms Hyndman’s right hip on 18 December 2019 showed ‘right gluteal complex tendinopathy with associated trochanteric bursitis’.[11]
[9] Exhibit TB-TB3, 37.
[10] Exhibit TB-T3, 38.
[11] Exhibit TB-T3, 38.
Ms Hyndman saw her general practitioner on 27 December 2019 and 6 January 2020. On 6 January 2020, Ms Hyndman’s general practitioner recommended limiting Ms Hyndman’s employment duties at Australia Post and specifically restricted her from riding the motorbike.
On 7 January 2020, Ms Hyndman’s supervisor completed a Claim for Rehabilitation and Compensation and a Safety Event/Investigation form that stated Ms Hyndman had advised she was ‘feeling discomfort in both her right and left hips’ and ‘over the 13 years as a Postal Delivery Officer riding a motorcycle she has developed bilateral hip injuries’ that have ‘been attributed to getting on and off the motorcycle up to 100 times a day’.[12] Ms Hyndman told the Tribunal that Australia Post was aware she was experiencing discomfort in her hips from sometime in 2018, as demonstrated by them providing her with a smaller and narrower seat for the motorbike in about 2019. She said she did not make a formal complaint prior to January 2020 because she enjoyed her work as a PDO and was concerned that she would not be treated well by Australia Post if she made a worker’s compensation claim. Ms Hyndman said she initially ignored the ‘sharp shooting pain in [her] hips and groins’ hoping it ‘would go away’ but it became worse.[13]
[12] Exhibits R1-T9 and R1-T7, 23.
[13] Exhibit TB-TB3, 37.
Ms Hyndman stated she has not undertaken any activities or had any injuries – ‘other than work’ – that explains the pain she has in her hips.[14] She said she continues to experience ‘pain in both [her] hips and groin area’.[15] This affects her ability to undertake activities of daily living including dressing, walking and going up/down stairs, carrying shopping and washing, gardening, and getting in and out of the car. She said her right leg gives way under her. Ms Hyndman currently does light indoor duties at Australia Post commencing at 5am and finishing about 11:30am-12pm. She then returns home, has a shower and goes to bed to rest.
[14] Exhibit TB-TB3, 37.
[15] Exhibit TB-T3, 39.
Ms Hyndman said she wants to have bilateral hip replacement surgery, as recommended by her treating medical practitioners, so she can return to postal delivery duties using a tricycle delivery vehicle/ truck now being used for Australia Post deliveries.
B. Medical evidence
Evidence of Dr Karen Price (general practitioner)
Dr Price provided a written medical report dated 10 April 2021 and gave oral evidence to the Tribunal on 7 March 2023.
In the written report, Dr Price outlined the history of Ms Hyndman’s medical consultations, noting that she also saw several other general practitioners at the health care practice. This history included:
·Ms Hyndman had ‘nonspecific low back pain dating back to at least 2015’ and ‘had also suffered with plantar fasciitis and Achilles tendon issues’.
·Bilateral hip osteoarthritis was first recorded on 4 April 2018 and medical imaging was obtained.
·Medical records referred to worsening hip pain from 6 November 2019: a report by another general practitioner on 27 November 2019 noted Ms Hyndman’s work as a PDO, which required her to ‘straddle a motorbike and lift and twist her legs, hips and body on and off the delivery vehicle up to 80 times a day’.
·Records of medical imaging and treatment, notably:
o10 December 2019 – pelvis and left hip x-ray and ultrasound concluded:
Trochanteric bursitis and associated gluteal complex tendinopathy. Bilateral hip joint degenerative change, associated with bilateral proximal femoral Ganz deformities.
o18 December 2019 – right hip ultrasound concluded:
Right gluteal complex tendinopathy with associated trochanteric bursitis. I note the plain film finding of bilateral hip joint degenerative change.
o6 March 2020 – right trochanteric bursa steroid injection.
o13 March 2020 – left trochanteric bursa steroid injection.
o24 April 2020 – MRI of pelvis gluteal structures and right hip concluded:
[U]ltrasound findings are not confirmed. The patient has no substantial gluteal tendinopathy and only minimal trochanteric bursal fluid.
The major finding is in the hip joint where there is gross synovitis and thinning of articular cartilage overlying the femoral head anteriorly. Grossly degenerate anterior labrum.
No other features of avascular necrosis nor recent bone injury.
·A medical consultation on 28 April 2020 recorded:
oMs Hyndman had daily pain interfering with all activities of daily living and made a decision to continue with pain management.
oDr Price advised Ms Hyndman she ‘needed an opinion on orthopaedic surgery’ and referred her to Mr Ilan Freedman.
·Mr Freedman made an opinion concordant with Dr Price that Ms Hyndman ‘would likely need bilateral hip joint replacements and that the [right] side likely needed to be performed first’ and that ‘her work as a postal services delivery officer over many years had contributed and exacerbated her condition and pain significantly’.[16]
[16] Exhibit TB-TB4, 43-44.
Dr Price provided a diagnosis of ‘bilateral osteoarthritis of the hip joints with a significant but variable soft tissue degeneration in surrounding tissues including the labrum and the gluteal structures’.[17] She stated that, in her ‘professional opinion’, Ms Hyndman needs a ‘hip replacement(s) in the very near future to enable her overall health and to enable her work performance to continue’.[18] In oral evidence, Dr Price noted the challenges of chronic pain management to support her opinion that Ms Hyndman requires surgery soon so as to reduce her ‘experience of chronic pain and also the chronic limitation of mobility and a disabled life’.[19]
[17] Exhibit TB-TB4, 46.
[18] Exhibit TB-TB4, 45-46.
[19] Oral evidence of Dr Price, Transcript of proceedings, 7 March 2023, 17.
Dr Price also explained the medical imaging at the hearing. She said that ‘proximal femoral Ganz deformities’ are a ‘potentially developmental abnormality causing impingement in the hip joint’.[20] She opined that the differences in the conclusions of the medical imaging reports dated 10 and 18 December 2019 and the MRI report on 24 April 2020 suggested the steroid injections undertaken in March 2020 had probably helped with some of Ms Hyndman’s trochanteric bursitis and the likely source of Ms Hyndman’s ongoing pain was her ‘hip osteoarthritis rather than muscular issues in the gluteal tendons’.[21]
[20] Oral evidence of Dr Price, Transcript of proceedings, 7 March 2023, 11.
[21] Oral evidence of Dr Price, Transcript of proceedings, 7 March 2023, 12.
Dr Price set out the basis for her opinion about Ms Hyndman’s hip condition and her employment as follows:
I completely disagree [with other medical opinions] that the condition of Ms Hyndman has no work related component. I note that a CT scan of her lumbar spine performed in 2012 showed some lumbar spine degenerative changes and these issues have not been presented as a work related injury. Rather the load through the hips by the specific bio-mechanics of riding a motor bike delivery vehicle and needing to move on and off twisting and lifting repetitively for decades has been a significant contributing factor by virtue of that very particular movement. It is noted this has not seemingly involved or excessively aggravated the degenerative condition of the lumbar spine.[22]
[emphasis added]
[22] Exhibit TB-TB4, 45.
In oral evidence, Dr Price provided the following details about the nature of Ms Hyndman’s employment as a PDO for Australia Post that results in a ‘heavy physical load through the hips’:
·She ‘starts and stops at short house block intervals’, which requires her to ‘stop, lean on one leg, lift up the other, with a wide gait, and lift over the top of her motorbike’, deliver parcels or letters, and then get back on her bike. Getting on and off the motorbike involves her ‘putting load [her bodyweight] on the hip joint’.
·She sits on a motorbike for ‘long periods in an abnormally abducted position’ with her ‘hips at a wide angle’, and experiences ‘forces’ into the hip joint from bumpy pavements and potholes.[23]
[23] Oral evidence of Dr Price, Transcript of proceedings, 7 March 2023, 13-15.
Evidence of Mr Ilan Freedman (orthopaedic surgeon)
Mr Freedman provided written medical reports dated 18 June 2020, 22 April 2021 and 1 September 2022; however, he was unavailable to provide oral evidence at the hearing.
In the report dated 22 April 2021, Mr Freedman stated Ms Hyndman had been diagnosed with ‘bilateral hip arthritis’ and recommended she undergo hip replacement surgery as her ‘prognosis without surgery is poor’.[24] He opined that Ms Hyndman’s ‘job as a postie has made a significant contribution to her development of arthritis’, noting it is ‘unusual for a [in 2020] 52 year old to develop severe degenerative joint disease’.[25] He acknowledged that, although ‘some component of arthritis is degenerative’:
there is a clear correlation between [Ms Hyndman’s] occupational history, the progression and rate of progression of arthritis. For example, when compared to an office worker who is sitting sedentary, [Ms Hyndman] has been working as a postie for twenty years and doing repetitive movements where she is repetitively lifting her leg on and off her bike and continually mounting and dismounting from a postie bike. She has also been riding her bike on uneven ground.[26]
[24] Exhibit TB-TB8, 60.
[25] Exhibit TB-TB8, 59.
[26] Exhibit TB-TB8, 59.
Evidence of Dr Parminder Singh (orthopaedic surgeon)
Dr Singh specialises in hip surgery. He provided written medical reports dated 16 May 2022 and 6 October 2022, and also gave oral evidence at the Tribunal hearing on 7 March 2023.
Dr Singh’s report dated 16 May 2022 outlined the history of Ms Hyndman’s presenting complaint, past medical history and work history as a PDO. He interviewed and examined Ms Hyndman in person and his examination notes included measurements of her right and left hip movements.
Dr Singh provided a diagnosis of ‘bilateral hip degenerative joint disease with underlying Ganz lesions’ and ‘trochanteric bursitis and gluteal tendinopathy’; he opined Ms Hyndman’s:
bilateral hip degenerative joint disease is likely to progress from its current state to advanced arthritis, leading to increasing pain and stiffness, and with increasing difficulty in performing activities of daily living in the short to medium term. Ms Hyndman is likely to develop increasing incapacity as a result of her hip disease.[27]
[27] Exhibit TB-TB10, 65.
In relation to Ms Hyndman’s underlying Ganz lesions, Dr Singh explained that ‘Ganz lesions increase the risk of premature arthritis, particularly if there is increased frequency of flexion, abduction, external rotation and flexion, adduction and internal rotation’, which are movements repeated by Ms Hyndman getting on and off a motorbike. Dr Singh opined:
there is a mechanism of injury comprising of repetitive flexion, abduction, external rotation and flexion, adduction and internal rotation whilst getting on and off a motorbike. In the presence of an underlying Ganz lesion, this is likely to have exacerbated [Ms Hyndman’s] underlying condition. Therefore, this is likely to be an exacerbation of an underlying condition and therefore has some relationship with Ms Hyndman’s work [as a PDO].[28]
[28] Exhibit TB-TB10, 67.
In oral evidence, Dr Singh said the movements Ms Hyndman was undertaking to get on and off the motorbike – repetitive flexion and abduction – in the presence of arthritis and Ganz lesions would ‘exacerbate an underlying condition of degenerative change within the hip joint’.[29] He noted that where movements were over a longer period of time, ‘exacerbations may actually become permanent in nature’.[30] He opined ‘the work activity of getting on and off a motorbike multiple times a day over a period of years has accelerated the condition’ and, if Ms Hyndman had ‘not been undertaking those activities, the severity of the condition would be less’.[31] He explained that acceleration in this context referred to ‘an early deterioration’.[32]
[29] Oral evidence of Dr Singh, Transcript of proceedings, 7 March 2023, 27.
[30] Oral evidence of Dr Singh, Transcript of proceedings, 7 March 2023, 27.
[31] Oral evidence of Dr Singh, Transcript of proceedings, 7 March 2023, 27.
[32] Oral evidence of Dr Singh, Transcript of proceedings, 7 March 2023, 27.
Dr Singh explained the phenomena of ‘joint reaction force’ creating additional load in the hips when Ms Hyndman gets on and off the motorbike, which is that:
when you bring your leg around to get on to a motorbike you put six times your body weight…on the leg that you’re relying on to stand on while you’re rotating your hip, so that increases the joint forces within the other joint.[33]
[33] Oral evidence of Dr Singh, Transcript of proceedings, 7 March 2023, 31.
Dr Singh noted that where a person has a Ganz lesion (the femoral head is not spherical affecting the shape of their hip), movements such as repetitive flexion, abduction, external rotation, will aggravate their hip and lead to premature arthritis in their hip. He said that these movements are usually only undertaken during activities of daily living such as getting in and out of a car and getting into bed. He also noted that in view of Ms Hyndman’s height relative to the motorbike, she would be required to swing her hip higher than someone who is taller, and ‘that would lead her to more chance of impinging the hip when she’s doing those movements’.[34]
[34] Oral evidence of Dr Singh, Transcript of proceedings, 7 March 2023, 39.
In relation to whether bilateral hip surgery would be appropriate treatment for Ms Hyndman, Dr Singh stated that joint replacement surgery is reasonable to consider if she has ‘significant pain’ that is not responding to ‘simple anti-inflammatories and simple pain killers’ and is ‘not improving despite physiotherapy’, her ‘quality of life is deteriorating’ and she is ‘developing joint stiffness’.[35]
[35] Oral evidence of Dr Singh, Transcript of proceedings, 7 March 2023, 41.
Evidence of Dr David Kennedy (sports and industrial physician)
Dr Kennedy provided written medical reports dated 3 May 2021 and 8 September 2022, and gave oral evidence at the hearing on 9 March 2023.
Dr Kennedy completed a clinical assessment of Ms Hyndman in person on 15 April 2021. In his report dated 3 May 2021, Dr Kennedy outlined Ms Hyndman’s personal, medical and work histories, details of the incident and clinical progress, and his clinical assessment and diagnostic studies. He recommended Ms Hyndman should undergo ‘total hip arthroplasty procedures’ and opined that:
Ms Hyndman’s employment has significantly contributed to the problems in both hip joints, with the repetitive movements of attempting to get on and off a motorcycle, causing significant problems in both hip joints with the development of premature osteoarthritic changes in both hip joints, worse on the right side, as well as the development of trochanteric bursitis.[36]
[36] Exhibit TB-TB6, 54-55.
At the hearing, Dr Kennedy stated that he based his opinion about the contribution of Ms Hyndman’s employment as a PDO to her hip condition on the repetitive motion of getting on and off the motorbike, in particular the activities of ‘moving on and off’ the motorbike, ‘twisting and maintaining balance’ with the motorbike, which involves ‘rotating and putting load on [the] lower limbs and putting pressure on the joints of the lower limbs’.[37] Dr Kennedy concluded that, in the absence of any other history of ‘excessive or repetitive loads’ on Ms Hyndman’s ‘lower extremities’ and on the balance of probabilities, it was the repetitive and constant activity of getting on and off and riding a motorbike as a PDO over a number of years that ‘contributed to the acceleration of osteoarthritic changes and the premature development osteoarthritic changes in her hip joints’.[38]
[37] Oral evidence of Dr Kennedy, Transcript of proceedings, 9 March 2023, 128.
[38] Oral evidence of Dr Kennedy, Transcript of proceedings, 9 March 2023, 129.
Evidence of Dr Mark Ridhalgh (orthopaedic surgeon)
Dr Ridhalgh provided written medical reports dated 26 November 2021 and 18 August 2022, and gave oral evidence on 8 March 2023.
Dr Ridhalgh reported on 26 November 2021 about Ms Hyndman’s history of employment and injury, and the details of a physical examination of Ms Hyndman undertaken on 11 November 2021. He stated that he conducted the examination by videoconference with the assistance of a physiotherapist in person.
Dr Ridhalgh diagnosed Ms Hyndman with ‘bilateral osteoarthritis of the hips’ and noted she has a ‘constitutional condition affecting the hips and worsened by her BMI which is mildly obese’, and she is ‘an appropriate patient now for bilateral hip replacement’.[39] He opined:
The employment with Australia Post did not cause a significant contribution to the condition. There was no history of injury. There was no history of trauma, just her first symptoms appeared whilst she was working.
Her employment did not significantly contribute to the acceleration, aggravation or exacerbation of the underlying condition.[40]
[39] Exhibit TB-TB16, 92 and 94.
[40] Exhibit TB-TB16, 92.
Dr Ridhalgh further stated on 18 August 2022:
The act of getting on a motorbike does not cause arthritis. It is a simple movement of the hip which is not loaded. Unloaded movement of hip occurs with normal use and does not cause osteoarthritis.[41]
[41] Exhibit TB-TB18, 99.
In oral evidence to the Tribunal, Dr Ridhalgh noted that in the absence of any history of fall, fracture or dislocation, he thought the contribution of Ms Hyndman’s employment to her hip condition was ‘minimal at best’.[42] However, in cross-examination, Dr Ridhalgh said he did not take a history of Ms Hyndman’s employment tasks and was unaware of factors such as her height in relation to the motorbike, the width of the motorbike seat, Ms Hyndman’s position seated on the motorbike and balancing on her toes while stationary, the movements (abduction and flexion) she undertook getting on and off the motorbike, or the effect of riding the motorbike over bumps in the road and kerbs. He accepted that the movement of placing all her bodyweight on one leg (in order to get on and get off the motorbike) was consistent with the concept of ‘joint reaction force’ and would lead ‘to an increase in loading through the hip joints’.[43]
[42] Oral evidence of Dr Ridhalgh, Transcript of proceedings, 8 March 2023, 52.
[43] Oral evidence of Dr Ridhalgh, Transcript of proceedings, 8 March 2023, 68.
Dr Ridhalgh further accepted in his oral evidence that Ms Hyndman’s ‘employment duties could have caused the exacerbation of the problem’, that is, a ‘worsening of her symptoms which may have contributed to her pathological change’.[44] He described Ms Hyndman as mildly obese and opined that ‘weight is a contributing factor of the multifacet[ed] cause of hip osteoarthritis’, but agreed that ‘not all overweight people get hip osteoarthritis’.[45]
[44] Oral evidence of Dr Ridhalgh, Transcript of proceedings, 8 March 2023, 72.
[45] Oral evidence of Dr Ridhalgh, Transcript of proceedings, 8 March 2023, 77.
Evidence of Dr Terrence Saxby (orthopaedic surgeon)
Dr Saxby provided a written medical report dated 3 February 2020 and gave oral evidence to the Tribunal on 8 March 2023.
In his written report, Dr Saxby set out a history of Ms Hyndman’s occupation, injury, activities, treatment and her personal/social situation. Dr Saxby opined that Ms Hyndman’s diagnoses are ‘bilateral hip degenerative change or osteoarthritis associated with it’ and ‘trochanteric bursitis and gluteal tendinopathy’, which are all ‘pre-existing or underlying degenerative conditions’.[46]
[46] Exhibit R1-T16, 46.
Dr Saxby stated that, on the balance of probabilities, Ms Hyndman’s employment has a ‘probable connection to her present symptoms’. He wrote that he believed her work did not cause the ‘underlying degenerative changes’ but ‘it is likely that work has aggravated the underlying condition’.[47]
[47] Exhibit R1-T16, 47.
Regarding treatment, Dr Saxby wrote that he ‘would not recommend surgical intervention’ but opined ‘in the long term it is likely Ms Hyndman will require some type of surgical intervention … [which] is most likely to be total joint arthroplasty’ to ‘treat the underlying condition not the work aggravation’.[48] He noted that the deterioration of Ms Hyndman’s underlying condition is likely to progress with time, causing ‘increasing pain and stiffness in her hip joint and more difficulty with range of motion of the hip’.[49]
[48] Exhibit R1-T16, 48.
[49] Exhibit R1-T16, 49.
At the hearing, Dr Saxby acknowledged the risks and benefits of having joint replacement surgery at Ms Hyndman’s age but accepted that surgery is an option in circumstances where she has osteoarthritis in her hips, is in pain and requires pain medication most days, is attending work but then comes home to go to bed and rest, and her activities of daily living are adversely affected.
Evidence of Dr Phil Allen (orthopaedic surgeon)
Dr Allan provided written medical reports dated 30 November 2020 and 18 August 2022, and gave oral evidence on 8 March 2023.
In his report on 30 November 2020, Dr Allen wrote that he assessed Ms Hyndman by videoconference with the assistance of an allied health professional on 18 November 2020. He provided a brief history of Ms Hyndman, set out the details of the physical examination and medical investigations, and outlined the following summary and assessment:
Ms Hyndman has evidence of degenerative hip disease with bilateral osteoarthritis of the hips and trochanteric bursitis.
Her condition is not a work-related injury but is a degenerative condition affecting the hips. There has been no work-related injury here and the expression of symptoms during a period of employment does not constitute a work-related injury. Her condition is entirely degenerative and constitutional in nature and cannot be ascribed in any way to employment.[50]
[50] Exhibit TB-TB14, 81.
Dr Allen stated Ms Hyndman’s ‘symptoms have evolved regardless of employment and would have developed in a similar way had she not been employed by Australia Post’.[51] He further opined that, on the basis of his assessment, Ms Hyndman’s symptoms had ‘not reached the severity where hip replacement would be considered’.[52]
[51] Exhibit TB-TB14, 82.
[52] Exhibit TB-TB14, 82.
At the hearing, Dr Allen stated that he was ‘familiar’ with the duties performed by a PDO but could not recall or explain what these were in relation to Ms Hyndman’s employment. It was also unclear whether he was aware of Ms Hyndman’s height in relation to the motorbike or had considered the effect of her riding the motorbike over uneven roads or kerbs, in making his assessment. Dr Allen said he:
came to the conclusion that her condition was not a work-related condition because the overwhelming body of medical evidence indicates that her condition is a constitutional degenerative condition.[53]
[53] Oral evidence of Dr Allen, Transcript of proceedings, 8 March 2023, 104
C. Medical evidence – haemochromatosis
I note there are medical reports and opinions before the Tribunal regarding Ms Hyndman’s diagnosis of haemochromatosis and whether this medical condition contributed to her hip condition. While this no longer appeared to be in dispute between the parties at the Tribunal hearing, I address this issue for completeness.
I have had regard to the reports by Professor Richard Fox (haematologist and oncologist) dated 14 October 2022 and 9 November 2022. Referring to a research study, Professor Fox reported that ‘haemochromatosis is an inherited disease with iron overload and joint involvement resembling osteoarthritis’.[54] However, Professor Fox noted in relation to Ms Hyndman that she has not required treatment for this condition and it is ‘likely her disease is mild’.[55] Professor Fox opined on 9 November 2022 that Ms Hyndman ‘did not have iron overload’ and he did ‘not consider her hereditary haemochromatosis played a role in the development of her hip osteoarthritis lesions’.[56] This evidence of Professor Fox was not disputed or challenged by Australia Post at the Tribunal hearing.
[54] Exhibit TB-TB12, 72.
[55] Exhibit TB-TB12, 73.
[56] Exhibit TB-TB13, 77.
CONSIDERATION
A. Does Ms Hyndman continue to be entitled to compensation pursuant to sections 16 and 19 of the SRC Act in respect to the accepted injuries (Application No. 2021/2681)?
The issue of whether Ms Hyndman continues to be entitled to compensation in respect of the accepted injuries requires consideration of whether she continues from 18 March 2021 to date to suffer a disease pursuant to section 5B of the SRC Act being:
(a)an ailment or an aggravation of an ailment suffered by her;
(b)that continues to be contributed to, to a significant degree, by her employment with Australia Post.
I make the following findings of fact based on the medical evidence before the Tribunal:
·Ms Hyndman has been diagnosed with bilateral hip osteoarthritis, which is a degenerative joint condition or disease.
·Medical imaging obtained on 10 and 18 December 2019 concluded Ms Hyndman had ‘trochanteric bursitis and associated gluteal complex tendinopathy’ and ‘bilateral hip joint degenerative change, associated with bilateral proximal femoral Ganz deformities.’ On 6 and 13 March 2020, Ms Hyndman underwent right and left trochanteric bursa steroid injections. Further medical imaging obtained on 24 April 2020 concluded Ms Hyndman had ‘no substantial gluteal tendinopathy and only minimal trochanteric bursal fluid’: this supports Dr Price’s opinion that Ms Hyndman’s trochanteric bursitis was assisted by steroid injections and the source of her pain was hip osteoarthritis.
·Ms Hyndman has been diagnosed with haemochromatosis; however, this condition did not contribute to her bilateral hip osteoarthritis.
Based on the evidence before the Tribunal, I am satisfied that Ms Hyndman has bilateral hip osteoarthritis that is an injury within the meaning of paragraph 5A(1)(a) of the SRC Act because it is a disease suffered by Ms Hyndman. I am further satisfied that Ms Hyndman’s bilateral hip osteoarthritis is an ‘ailment’ within the meaning of subsection 4(1) of the SRC Act.
I find paragraph 5B(1)(a) of the SRC Act does not apply to Ms Hyndman because the medical evidence shows bilateral hip osteoarthritis is a degenerative joint condition or disease. It is therefore not an ailment suffered by Ms Hyndman.
Consequently, the issue for consideration – as set out in paragraph 5B(1)(b) of the SRC Act – is whether Ms Hyndman’s bilateral hip osteoarthritis is an aggravation of an ailment that was contributed to, to a significant degree, by her employment at Australia Post. This requires consideration of the matters listed in paragraphs 5B(2)(a)–(e) of the SRC Act.
The interpretation of ‘aggravation’ and ‘significant degree’ was considered in the High Court of Australia decision, Federal Broom Co Pty Ltd v Semlitch[57] (Semlitch) and the Full Federal Court of Australia decision in Commonwealth v Beattie[58] (Beattie).
[57] (1964) 110 CLR 626.
[58] (1981) 35 ALR 369.
Windeyer J reasoned in Semlitch that the question when deciding whether there is an aggravation of the disease is ‘whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient’.[59] His Honour noted that ‘[t]he contributing factor [to the aggravation of the disease] must … be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed’.[60] He further stated ‘[t]he question whether there has been an aggravation … is, I think, essentially one of fact’.[61]
[59] (1964) 110 CLR 626, 639.
[60] (1964) 110 CLR 626, 641.
[61] (1964) 110 CLR 626, 637.
In Beattie, Evatt and Sheppard JJ affirmed that Semlitch is ‘an authority which establishes that there may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology’.[62] Their Honours also said that ‘pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place’.[63]
[62] (1981) 35 ALR 369, 377.
[63] (1981) 35 ALR 369, 378.
These cases provide authority that, in the application of paragraph 5B(1)(b) of the SRC Act, I am required to consider whether the effects upon Ms Hyndman’s bilateral hip osteoarthrosis are more serious as a result of her employment; and if so, whether a contributing factor to the aggravation of the ailment is a characteristic of the work she undertook. Furthermore, pain brought on by employment tasks and activities may constitute an aggravation of an ailment, even if there is no change in the underlying pathology. In making my decision, I must rely on the facts before me.
Based on the evidence before the Tribunal, I make the following findings of fact in relation to the matters listed under subsection 5B(2) of the SRC Act:
Duration of the employment
·Ms Hyndman was employed full-time as a PDO at Australia Post for an extensive period of 13 years. This employment involved the daily activity of delivering mail and small parcels by motorbike for approximately five to seven hours.
The nature of tasks involved in the employment
·The activity of delivering post by motorbike involved Ms Hyndman getting on and off the motorbike up to 70 to 80 times a day during busy periods.
·Due to Ms Hyndman’s height relative to the motorbike, getting on and off the motorbike involved movements of flexion, abduction, external rotation and flexion, adduction and internal rotation. The joint reaction force of Ms Hyndman placing all her weight on one leg to get on and off the motorbike created additional load in Ms Hyndman’s hip joints.
·Ms Hyndman’s height relative to the motorbike meant that, while seated on the motorbike and stationary (such as at traffic lights), she could only touch the ground with the toes of both feet or with one foot flat and the motorbike leaned over to the side. This likely created additional load in Ms Hyndman’s hip joints.
·Due to the width of the motorbike seat, Ms Hyndman’s posture while seated on and riding the motorbike was that her legs splayed outwards. This posture likely created additional load in Ms Hyndman’s hip joints.
·In the task of delivering post by motorbike, Ms Hyndman rode over uneven terrain including potholes and kerbs. This likely created additional load in Ms Hyndman’s hip joints.
Any predisposition of Ms Hyndman to the aggravation of the ailment
·Ms Hyndman’s bilateral hip osteoarthritis was an underlying degenerative disease. She experienced symptoms of pain in April 2018 (that subsequently abated for approximately six months), November 2018 (that subsequently abated for about 11 months) and from November 2019 to the present. As contemplated in Beattie, pain affected by work tasks may represent an aggravation of an ailment.
·I rely on the credible and informed evidence of Dr Singh, who opined that Ms Hyndman’s underlying femoral Ganz deformities increased her risk of premature arthritis in the hip joints, particularly due to increased frequency of flexion, abduction, external rotation and flexion, adduction and internal rotation movements undertaken getting on and off a motorbike. I find this opinion is supported by or consistent with evidence provided by Dr Price, Dr Kennedy, Mr Freedman and Dr Saxby and the oral evidence of Dr Ridhalgh.
·There were some references to Ms Hyndman’s weight and body mass index (BMI) in medical reports; overall, however, I consider the medical evidence did not show this amounted to anything more than Ms Hyndman is ‘mildly obese’ and a generalised opinion that weight is one contributing factor of hip (and other joint) osteoarthritis.
·Ms Hyndman’s diagnosed haemochromatosis did not contribute to her bilateral hip osteoarthritis.
·The medical evidence is that Ms Hyndman is young to be diagnosed with bilateral hip osteoarthritis: consequently, her age is not a contributing factor.
Any activities of Ms Hyndman not related to her employment at Australia Post
·There was no evidence before the Tribunal that Ms Hyndman undertook any sporting, social or other activities outside of her employment, or had any other matters that affected her health, that would have contributed to the aggravation of the osteoarthritis in both hips.
Relevantly, I find that all (except one) of the medical practitioners who examined Ms Hyndman and gave evidence to the Tribunal – Dr Price, Mr Freedman, Dr Singh, Dr Kennedy, Dr Saxby and (in oral evidence) Dr Ridhalgh – accepted that Ms Hyndman’s employment as a PDO at Australia Post contributed to an exacerbation or aggravation of her bilateral hip osteoarthritis. Each of these medical practitioners provided objective expert opinions that considered the biomechanics involved with Ms Hyndman getting on and off the motorbike multiple times a day, her height relative to the motorbike, the width of the motorbike seat and the terrain she rode over on the motorbike. I note that Dr Allen was the only medical practitioner who opined Ms Hyndman’s bilateral hip osteoarthritis was not work related. However, I place very limited to no weight on Dr Allen’s opinion as his evidence showed minimal understanding of the tasks and activities associated with Ms Hyndman’s employment.
Considering all these matters in section 5B of the SRC Act, I am satisfied Ms Hyndman’s bilateral hip osteoarthritis is an aggravation of an ailment that was contributed to, to a significant degree, by her employment at Australia Post.
I further find Ms Hyndman has continued since 18 March 2021 and continues to experience symptoms of bilateral hip osteoarthritis that requires treatment. Therefore, I am satisfied Ms Hyndman has continued since 18 March 2021 and continues to be entitled to compensation pursuant to sections 16 and 19 of the SRC Act in respect to the accepted injuries, which includes bilateral hip osteoarthritis.
B. Is Ms Hyndman entitled to the cost of bilateral hip replacement surgery pursuant to section 16 of the SRC Act (Application No. 2021/1185)?
For the reasons set out above, I am satisfied that bilateral hip replacement surgery is in relation to the accepted injury of Ms Hyndman’s bilateral hip osteoarthritis.
I have had regard to the medical opinions of Dr Price, Mr Freedman, Dr Kennedy and Dr Ridhalgh, who consider that bilateral hip replacement surgery is reasonable treatment for Ms Hyndman’s bilateral hip osteoarthritis. I also have had regard to the oral evidence of Dr Singh and Dr Saxby, who considered that bilateral hip replacement surgery is reasonable treatment for Ms Hyndman’s bilateral hip osteoarthritis in circumstances where she is in significant pain, requires pain medication and her activities of daily living are adversely affected. These circumstances are consistent with Ms Hyndman’s evidence.
I am satisfied that Ms Hyndman is entitled to the cost of bilateral hip replacement surgery pursuant to section 16 of the SRC Act.
ADDITIONAL SUBMISSIONS MADE BY THE RESPONDENT
The Respondent, in its’ Statement of Facts, Issues and Contentions dated 31 May 2022 and in closing submissions, contended that Ms Hyndman:
·did not comply with the notice of injury requirements pursuant to section 53 of the SRC Act; and
·is precluded from claiming compensation for the work-related injury by operation of subsection 7(7) of the SRC Act relating to false and wilful representations.
Ms Hyndman lodged a Claim for Rehabilitation and Compensation on 7 January 2020 that set out her injury of ‘bilateral hip injuries – trochanteric bursitis, gluteal tendinopathies & increased degeneration of hip joints’ that she first noticed on 27 December 2019.[64] Ms Hyndman confirmed this document was completed by her supervisor based on information she told him.
[64] Exhibit R1-T9, 31.
I am satisfied the medical evidence shows the following chronology of events in relation to Ms Hyndman’s hip condition:
·Ms Hyndman was diagnosed with bilateral hip osteoarthritis in April 2018; she experienced symptoms of pain in the hip/groin region in April 2018 (that subsequently abated), November 2018 (that subsequently abated) and from November 2019.
·Medical imaging undertaken in December 2019 concluded she had trochanteric bursitis and associated gluteal complex tendinopathy, and bilateral hip joint degenerative change.
·Ms Hyndman met with her treating general practitioners in relation to hip pain on 6 and 27 November 2019, 13 and 27 December 2019, and 6 January 2020.[65] Medical records show that following the medical imaging reports in December 2019 and during consultations with her treating general practitioner in late December 2019 and early January 2020, Ms Hyndman accepted the symptoms of pain in her hip would not resolve itself.
[65] Exhibit TB-TB20, 215-218.
Ms Hyndman provided evidence that she did not provide formal notice of her injury to Australia Post prior to 7 January 2020 because she enjoyed her employment as a PDO and she hoped the pain would go away as had occurred after she experienced pain in April 2018 and November 2018. I accept Ms Hyndman’s explanation is plausible, given the nature of the pain she previously experienced (onset of pain that subsequently abated). I also note that Ms Hyndman presented to the Tribunal as a credible and honest person who, despite experiencing significant pain in her hips since November 2019, has continued her employment with Australia Post, albeit on light indoor duties.
I find in the particular circumstances of this matter – where Ms Hyndman enjoyed her work, her pain had previously abated and medical investigations were continuing – that the lodgement of the Claim for Rehabilitation and Compensation on 7 January 2020 was a time that was as soon as practicable after she became aware of the injury.
I also note Ms Hyndman’s evidence that her supervisor took photographs of her seated on the motorbike in 2018 and Australia Post changed her seat on the motorbike to a narrower seat in about 2019. I consider this evidence shows Ms Hyndman, at some time in 2018, informed Australia Post that she was experiencing discomfort riding the motorbike as part of her employment duties.
Finally, I find no evidence to support the contention made by Australia Post that Ms Hyndman made ‘a wilful and false representation’ that she did not suffer, or had not previously suffered, from bilateral hip osteoarthritis. For the reasons set out above, I am not satisfied Ms Hyndman withheld – deliberately or otherwise – her circumstances relating to her bilateral hip osteoarthritis from Australia Post.
DECISION
The Tribunal:
·sets aside the reviewable decision dated 5 February 2021 and, in substitution, decides the Applicant is entitled to the cost of bilateral hip replacement surgery pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth); and
·sets aside the reviewable decision dated 15 April 2021 and, in substitution, decides the Applicant continues from 18 March 2021 to be entitled to compensation in respect to the injuries of ‘aggravation of bilateral hip degenerative change or osteoarthritis associated with trochanteric bursitis and glutaeal tendinopathy’ pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth).
| I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the written reasons for the decision of Member Dr L Bygrave |
.................................[sgd].......................................
Associate
Dated: 11 May 2023
Date(s) of hearing: 6 March 2023 - 9 March 2023
Counsel for the Applicant: Kim Bradley Solicitors for the Applicant: Angela Sdrinis Legal Counsel for the Respondent: Roy Seit
0
2
0