Joseph Colombo and Australian Postal Corporation
[2015] AATA 10
•13 January 2015
[2015] AATA 10
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1014, 2013/4612, 2014/1416
Re
Joseph Colombo
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Mr P W Taylor SC, Senior Member Date 13 January 2015 Place Sydney The decisions under review are affirmed.
....................[sgd]..............................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
COMPENSATION – employee of licensed corporation – disc herniation – pain – underlying cervical spine degeneration – whether applicant has a compensable injury as defined by the Safety, Rehabilitation and Compensation Act 1988 – decisions affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B
CASES
Australian Postal Corporation v Bessey (2001) 32 AAR 508; [2001] FCA 266
Comcare v Canute (2005) 148 FCR 232; [2005] FCAFC 262
Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Mellor v Australian Postal Corporation (2009) 108 ALD 159; [2009] FCA 504
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Re Bessey and Australian Postal Corporation (2000) 60 ALD 529; [2000] AATA 404
Re Garcia and Comcare [2014] AATA 320
Re Mellor and Australian Postal Corporation [2010] AATA 502
Re Rutledge and Comcare (2011) 130 ALD 94; [2011] AATA 865
Re Tran and Comcare (2010) 52 AAR 449; [2010] AATA 719
Re Zomer and Telstra Corporation Limited [2012] AATA 601
Tippett v Australian Postal Corporation (1998) 27 AAR 40Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
13 January 2015
On about 8 November 2012 Mr Colombo made a compensation claim for a right shoulder injury, which he said occurred at work on 4 September 2012. The Respondent refused the claim and, in a February 2013 reviewable decision, it affirmed that refusal.
In the meantime, following the diagnosis referred to in paragraph 19 below, on 13 December 2012, Mr Colombo had an anterior cervical discectomy, and C6/C7 fusion, at Sydney Southwest Private Hospital. The operation was performed to alleviate severe radicular pain in his right shoulder and arm. In June 2013, after substantially recovering from the December 2012 surgery, Mr Colombo claimed compensation, for permanent impairment and non-economic loss, for a neck injury, he said resulted from “repetitive and strenuous work activities”. The Respondent refused that claim in July 2013, on the basis that Mr Colombo “[did] not have an accepted compensation claim for a neck injury”, and affirmed the refusal in a reviewable decision made on 26 August 2013.
On 28 February 2014 Mr Colombo lodged a claim for a right-sided C6/7 disc herniation, affecting his neck and right shoulder, which he said he had first noticed near the end of his work shift on 4 September 2012. On 10 March 2014 the Respondent also decided that Mr Colombo’s, right-sided C6/7 disc herniation and associated neck and shoulder pain, was not attributable to the nature and conditions of his employment. A further reviewable decision on 17 March 2014 affirmed the refusal.
BASES FOR THE CLAIMS
As the preceding narrative records, Mr Colombo attributes his disc herniation and his neck, shoulder and arm pain, to his work as a mail sorter. The submissions put on his behalf accepted that Mr Colombo had some degree of underlying cervical spine degeneration, but advanced his claim on various bases that addressed the timing, cause and manifestation of his allegedly compensable “injury”. These involved the contentions I summarise below:
(a)Timing: Mr Colombo suffered at least a partial cervical disc herniation at work, most probably on 4 September 2012, and such an occurrence constituted an “injury arising … in the course of … employment” – irrespective of whether or not any work activity causally contributed to the herniation: see s 5A(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
(b)Cause: irrespective of when or where Mr Colombo’s cervical disc herniation occurred, his work activities (including those on 4 September 2012) either caused the herniation, or caused or relevantly aggravated his underlying degenerative condition, so that the herniation was either an “injury” that arose “out of … [his] employment”: see s 5A(1)(b) of the SRC Act; or a disease:see s 5B(1) of the SRC Act.
(c)Manifestation: the pain Mr Colombo experienced at work on 4 September 2012 involved either (i) the aggravation of an existing physical injury (his cervical disk herniation) and itself constituted such an “injury”: see s 5A(1)(c) of the SRC Act; or (ii) the aggravation of his underlying degenerative cervical spine condition, and constitutes a “disease”: see s 5B(1) of the SRC Act.
The Respondent does not dispute that if Mr Colombo’s disc herniation occurred at work on 4 September 2012, it would constitute a compensable “injury” for the purposes of the SRC Act. But the Respondent says:
(a)it is common ground that Mr Colombo had significant underlying cervical spine degenerative change;
(b)that underlying degenerative condition was highly likely to have resulted in disc herniation, irrespective of Mr Colombo’s work activities;
(c)the evidence does not establish that Mr Colombo’s cervical disc herniation occurred at work on 4 September 2012;
(d)the evidence tends to establish that Mr Colombo’s disc herniation relevantly occurred some time after 4 September 2012;
(e)the evidence does not establish that Mr Colombo’s work activities relevantly contributed to his cervical disc herniation and its associated pain.
MR COLOMBO’S PAIN HISTORY AND HERNIATION DIAGNOSIS
Mr Colombo, who is aged 52, said he first experienced a neck problem in 2010, about 10 years after he started working as a mail sorter. He said that happened late one evening when he became aware of his neck being stiff and painful, particularly on the right hand side. He did not work that night and went to see his doctor. She gave him some painkillers. The pain subsided after a few days. Mr Colombo said that after this experience, towards the end of his work shift, he began to notice feeling a bit of a muscle spasm and discomfort in his right shoulder.
There is a record of Mr Colombo consulting his GP on Monday 20 September 2010 after waking up with right-sided neck pain. But the record indicates that the GP excluded any radicular pain and had a diagnostic impression that Mr Colombo had merely had an episode of “wry neck”. The GP advised analgesic use, but did not actually prescribe any medication.
In October 2011 Mr Colombo injured himself in a fall at a shopping centre. He slipped on something on the ground and fell forward onto an outstretched arm and hand. He fractured his right radius in the fall and, as a result, had a corrective plate surgically inserted during a short subsequent hospitalisation. In the following months he complained of back pain and X-rays taken in January 2012 revealed degenerative changes at L4/5 and L5/S1. In February 2012 he had persisting wrist pain, particularly with wrist movement, he was unable to return to his full pre-injury duties, and remained on sick leave until about mid March 2012. In April 2012, after he had returned to work, he again reported that his back was “playing up”. He had difficulty bending over and got back pain if he did not maintain good posture when he was sitting.
In the present proceedings, and in medical assessments relating to them, Mr Colombo said that he had a recollection that from about June 2012 he began to experience right shoulder discomfort after his shifts. However, there is no evidence of any complaint, or indeed any relevant medical consultation, about shoulder or neck pain from September 2010 until the time of Mr Colombo’s alleged injury on 4 September 2012.
In a statement dated 4 January 2013 Mr Colombo said he had started to notice neck and right shoulder pain, including pins and needles extending into the fingers of his right hand, in about August 2012. Without alluding to any incident at work, he said he woke up on 5 September 2012 with severe pain in his neck and right shoulder. In a later interview with Associate Professor McGill on 15 August 2013, Mr Colombo merely gave a history of an intermittent ache in his right shoulder and arm after about September 2012. However, in a later 18 November 2013 medico legal examination by Professor Beran, Mr Colombo described the pain he experienced in September 2012 “as if someone was gripping and pulling his right shoulder and neck”. He said the pain radiated all the way down his right arm to his fingers. It was so distressing that he could not sleep at night. He consulted a doctor about it.
In his oral evidence in the present proceedings Mr Colombo said that prior to September 2012 he had occasionally noticed a bit of discomfort, like a muscle spasm, in his right shoulder, typically towards the end of his shift. But at the time of the injury he claims to have suffered on 4 September 2012, he said he noticed the pain was going more up into his neck, it was stronger and sharper than previously. He said it was as if there was some nerve going up and down his upper arm and it was like pins and needles. He went home that day at the end of his shift, and carried on normally for the rest of the day. That night, however, the pain woke him up, he took some painkillers, though with little effect, and decided to go to see a doctor rather than go to work. After going to the doctor on 5 September 2012, he thinks he went back to work the following morning. He thought that the only other day he had off work was the following Monday (that is, 10 September 2012).
The only clearly contemporaneous evidence of the circumstances involved in the injury Mr Colombo claims to have suffered on 4 September 2012 is contained in his GP’s brief note, relating to a consultation on Wednesday 5 September 2012. The note records that Mr Colombo presented complaining of pain in his right shoulder since the previous morning. But the contents of the note do not otherwise support the recollection Mr Colombo described to Professor Beran. Specifically, the notes do not include reports of either neck pain, or pain radiating down into the fingers. On physical examination Mr Colombo only had pain at the limits of abduction and flexion. He otherwise had a normal range of shoulder movement, and an absence of local tenderness. The doctor arranged for an ultrasound. The ultrasound report of 7 September revealed neither muscle tear nor bursitis. It suggested that the most likely explanation for Mr Colombo’s symptoms was overuse. The doctor prescribed Naprosyn, advised Mr Colombo to avoid using his right arm above shoulder height, and provided a medical certificate that he would be unfit to work until 7 September 2012. (I note that apparently notwithstanding that certificate, Mr Colombo’s recollection was that he only took 5 September 2012 off work that week.)
On the following Sunday, 9 September 2012, Mr Colombo represented to the medical centre, this time with an upper respiratory tract infection. He was prescribed antibiotics, and given further medical certificates for the next two days, until Tuesday 11 September 2012.
About a fortnight later, in the evening of Saturday 22 September 2012, Mr Colombo presented to Blacktown Hospital complaining of pain in his right shoulder. The hospital notes attribute to him a history of experiencing movement related right shoulder pain for about the past week and a half, a worsening of the pain that day, but no other previous history of similar pain. On physical examination the clinician noted that Mr Colombo had diffuse tenderness over his right scapula and back of the shoulder, but not in the region of his cervical spine. His right arm movements, and sensations, were reported as unremarkable, except for pain on internal rotation. Mr Colombo was not given a medical certificate and continued to work in the following week.
There was some evidence that, on 3 October 2012, Mr Colombo signed an incident form relating to a workplace injury to his right shoulder on 4 September 2012. But the actual contents of this form were not established. There is also a typewritten incident form apparently completed by one of Mr Colombo’s supervisors on 8 October 2012. This form, although neither written nor signed by him, records that on 4 September 2012 Mr Colombo felt pain on the right side of his shoulder, whilst sitting at his frame sorting mail. It describes his injury as a minor muscular injury to his right shoulder, attributes it to “occupational overuse syndrome”, says it is not an aggravation of any previous injury, and reports that Mr Colombo returned to full duties “right after” the incident, without receiving any first aid or treatment. This form appears not to have been fully completed, because many parts of it are marked “not answered”. (Its apparent incompleteness may relate to the fact that by October 2012 it was inappropriate. It referred to Commonwealth safety legislation that had been repealed in January 2012, and its compiler apparently did not appreciate that, by July 2012, it had been replaced by a new incident report form that addressed the relevant provisions in the Work Health & Safety Act 2011.)
This form does provide some degree of further corroboration of Mr Colombo’s claim that he felt some pain at work on 4 September 2012, and had perhaps reported the matter promptly. But it also suggests that the episode was a rather minor matter that did not require any treatment, and did not significantly affect his ability to work. In that context, I referred above to his memory that 5 September 2012 was the only day’s work that he missed. In addition, Mr Colombo gave evidence that there was nothing specific that had happened at work, and that he had not thought his symptoms were work related. The possibility that his symptoms were work related really only arose at the subsequent suggestion of Dr Dowla in early November 2012 (see paragraph 19 below). Mr Colombo took up that suggestion by lodging the 8 November 2012 compensation claim form, and his incident form, with the Respondent. I refer to those documents later in these reasons.
On Monday 15 October 2012 Mr Colombo attended a medical centre at Merrylands – apparently as a result of a referral from Blacktown Hospital emergency department. This time his principal complaint was about numbness and pins and needles in his right hand. The consultation notes referred to his history of wrist surgery and recorded that his symptoms were worse with right hand extension and mainly followed the distribution of the median nerve. The doctor’s impression was that Mr Colombo likely had carpal tunnel syndrome, and he arranged for him to undertake a nerve conduction study. The consultation notes also record that Mr Colombo reported a history of intermittent neck pain. But, on examination Mr Colombo had no cervical spine tenderness, and there was no report of current shoulder or neck pain, and no report of restricted movement.
Three days later, on 18 October 2012 and again on the following day, Mr Colombo represented to the Merrylands medical centre. On these occasions he was complaining about right elbow pain and tenderness. The doctor thought his complaints were likely to be caused by epicondylitis related to repetitive movements at work.
The nerve conduction study suggested in the 15 October 2012 consultation notes was the subject of a neurologist’s report dated 1 November 2012. In that report Dr Dowla noted Mr Colombo’s recent history of right sided neck, shoulder and elbow pain. He reported his clinical observations that Mr Colombo had mild tenderness on the lateral aspect of his right elbow, but neither weakness nor wasting, and no restriction of shoulder or neck movement. Dr Dowla summarised the nerve conduction study as showing no evidence of focal or generalised neuropathy. He opined that Mr Colombo was unlikely to have either any cervical radiculopathy at the C6/7 and C7/8 segments, or any brachial plexopathy. Dr Dowla felt that some of Mr Colombo’s symptoms, although he did not specify which, would be attributable to repetitive arm movements, but he also expressed concern about possible cervical spondylosis. He provided Mr Colombo with a medical certificate that he was not fit for work for the following week, and arranged for an MRI examination.
About a week after Dr Dowla’s report, but before the MRI examination was done, on 8 November 2012 Mr Colombo hand completed two pro-forma documents relating to what he claims is the workplace injury he suffered on 4 September 2012. One was a completed Incident Form, which referred to the Work, Health and Safety Act 2011, and apparently superseded the partially completed document of 8 October 2011. In part of this new document Mr Colombo said his pain started when was working seated at his mail sorting frame. He described sharp pains deep in his shoulder, and “pins and needles” down his shoulder, into his elbow and palm, affecting the index and middle fingers of his right hand. He said it was not an aggravation of any previous injury or illness. The second document was a compensation claim form. In that document Mr Colombo said that the pain had started about 7:00 am on Tuesday 4 September 2012, about an hour before the end of his six hour work shift, and he had promptly reported it to his supervisor. In answer to a specific question in the compensation form he replied that he had never previously had any similar injury or illness.
On 11 November 2012 Mr Colombo had the MRI examination arranged by Dr Dowla. The MRI revealed a recent C6/7 disc extrusion with posterior displacement and flattening of the right C7 nerve root. The report opined that the potential causes of Mr Colombo’s right radicular symptoms included moderate right C4/5, and moderate to high-grade right C5/6, cervical stenosis.
On Sunday 18 November 2012 Mr Colombo re-presented to the emergency department at Blacktown Hospital, distressed by right sided neck, shoulder and arm pain which he said had worsened since the previous evening. Mr Colombo reported that the pain had “started last month” – possibly an allusion to the symptoms that prompted his visit to the Merrylands medical centre in mid October – and was associated with numbness and pins and needles in his index and middle fingers. On examination Mr Colombo was reported not to have any neck or shoulder tenderness, but his right shoulder movement was somewhat restricted and his neck movement was limited by pain. The examination confirmed the MRI C7 radiculopathy result, and Mr Colombo was given a certificate that he was unfit to work until 21 November 2012. He has not in fact returned to work at any stage since 18 November 2012.
On 22 November 2012 Dr Dowla saw Mr Colombo again. He reported that Mr Colombo needed immediate surgery for his cervical radiculopathy, and referred him to Associate Professor van Gelder, a neurosurgeon. In a report dated 26 November 2012 Professor van Gelder recorded Mr Colombo’s history of gradually worsening neck and arm pain at work. More specifically, he noted Mr Colombo’s report of a recent episode of waking up one morning with severe neck pain radiating into his right arm. That description seems most likely to refer to the circumstances that led to Mr Colombo’s attendance at Blacktown Hospital on Sunday 18 November 2012. Professor van Gelder associated these reported symptoms with Mr Colombo having an acute disc herniation – as had been revealed by the 11 November 2012 MRI examination.
PAIN HISTORY AND WORK ACTIVITIES
The history I have detailed does establish that in early September 2012 Mr Colombo had at least one, and perhaps three days off work because of shoulder pain. But at that time his recorded complaints were limited to shoulder pain and, on clinical examination, were not apparently associated with any significant restriction of movement. In October, when he presented to the Merrylands medical centre with pins and needles in his right hand, there is no record of complaint about neck or shoulder pain. He appears not to have completed any kind of incident or claim form until early October, and did not actually lodge any such form until early November. Moreover that incident form, even though it nominated early September 2012 as the time when his “injury” had occurred, included complaints of neck pain and radiating pain. Those specific kinds of complaints, referring to neck pain and radiating pain, were not explicitly recorded (notwithstanding his attendance in mid October 2012 with “pins and needles” in his right hand) until his presentation to Blacktown Hospital on 18 November 2012.
It was in mid November 2012, after the apparently unremarkable 1 November 2012 nerve conduction study, and the 11 November 2012 MRI examination, that Mr Colombo’s pain complaints worsened, and specifically implicated his neck. His worsened condition became particularly noteworthy with his distressed presentation to the Blacktown Hospital on Sunday 18 November 2012, when he described a significant worsening of his pain since the previous evening. Dr Dowla’s report of 22 November 2012 noted that Mr Colombo’s pain had got worse in the last week, he was having severe shooting pain in the right side of his neck and into his shoulder, and he complained of having difficulty moving his arm – even though Dr Dowla himself noted no movement restriction on examination. Professor van Gelder’s 26 November 2012 report stated that Mr Colombo had an acute cervical disc herniation and required urgent surgery to decompress his C7 nerve root.
Mr Colombo’s evidence at the hearing attempted to place the onset of his radiating pain earlier than October 2012. He said that around September 2012 he noticed that his right side shoulder pain was going more up his neck. It was like a very sharp pins and needles sensation in his upper shoulder and was very discomforting. He said he noticed it when he was sorting first class mail. Nevertheless, he finished his shift at 8:00 am and returned home at the normal time. There he had breakfast and a bit of a lie down. After that he just carried on normally for the rest of the day. This included visiting his mother. But later that day he claims he was woken by excruciating pain. He took some painkillers. They had little effect, so he took the day off work and went to Blacktown Hospital. There he was examined, given some painkillers and sent home. The following day and despite claiming to have experienced some discomfort, he worked as normal. He continued working on his normal shifts until 10 September 2012, when he had a further day off work. He said that he thereafter worked Monday to Friday, and took no further time off even when he went to Blacktown Hospital on 22 September 2012. He said that throughout this period when he had gone back to work his shoulder pain was constant and it was accompanied by nerve pain that went through his fingers as well. Later in his evidence, when he was asked specifically about the timing of what he referred to as “nerve pain”, he said his best recollection was that it started in later September, or early October, 2012.
I do not regard Mr Colombo’s evidence as reliable, to the extent it claims that he experienced neck pain, and pain radiating down his arm – which was what he included in the description “nerve pain” – before mid October 2012. It is more likely, and I find, that his recollection has conflated the events of September 2012 with those of mid to late October 2012 and November 2012. Essentially I agree with Professor McGill’s observation that there was little evidence to corroborate Mr Colombo’s complaint that his neck pain symptoms either occurred or significantly worsened in September 2012. The history recorded in the various contemporaneous records strongly suggests, and again I find, that Mr Colombo only reported shoulder pain on 5 September 2012, and reported only pins and needles in his hand, and elbow soreness, in October 2012. There are no specific contemporaneous reports of neck pain by Mr Colombo until his presentation at Blacktown Hospital on the evening of Sunday 18 November 2012.
TIMING: NO DISC HERNIATION ON 4 SEPTEMBER 2012
The critical question involved in Mr Colombo’s “Timing” argument (see paragraph 4(a) above) is whether this history establishes that Mr Colombo likely suffered his disc herniation on 4 September 2012 – or indeed on any occasion at about that time – when he was at work. In attempting to answer that question the medical experts who gave evidence agreed it was difficult to provide a definitive answer. They differed as to whether the herniation had likely occurred before Mr Colombo’s apparently normal nerve conduction on 1 November 2012.
Dr Endrey-Walder opined on the basis of a history that Mr Colombo’s shoulder had been asymptomatic until about early August 2012, and that his radicular nerve pain started at about that time. Dr Endrey-Walder recorded a history that on 5 September 2012 Mr Colombo woke with “severe pain in the neck and shoulder”, but not that Mr Colombo had first experienced that pain whilst at work the previous day. He considered that disc herniation was the most likely cause of Mr Colombo’s symptoms in August 2012, and that it had become progressively worse.
Professor van Gelder initially opined on the basis of a general understanding that Mr Colombo had reported “gradually worsening neck and arm pain at work”, culminating in waking up one morning with severe, radiating neck pain. He appears not to have had any specific awareness of Mr Colombo’s complaint of pain on 4 September 2012, until that matter was put to him in the course of his oral evidence.
Professor van Gelder and Dr Endrey-Walder were of the view that the 1 November 2012 nerve conduction study could not be used to fix the time when Mr Colombo’s cervical disc herniation occurred. They regarded Mr Colombo’s pre-November 2012 complaints of neck pain as consistent with, and probably attributable to, a herniation process that had already commenced. Professor van Gelder said it was not uncommon for complaints of shoulder pain to be found, on surgical intervention, to be associated with pre-existing disc herniation, despite apparently normal nerve conduction studies. However he agreed that normal nerve conduction studies, though not necessarily conclusive, are regularly and routinely regarded as inconsistent with significant concurrent disc herniation.
Professor McGill and Professor Beran agreed that disc herniation was not necessarily a sudden phenomenon and that the development of associated symptoms could be an incremental process. They thought that any shoulder and neck pain Mr Colombo had experienced before 1 November 2012 might be attributable to some degree of nerve compression, but was more probably attributable to underlying degenerative change. They thought it was most likely that Mr Colombo’s C6/7 disc herniation occurred, or at least that it only became clinically significant, between 1 and 11 November 2012. Their views reflect the opinion Dr Dowla expressed in his 1 November 2012 report, and are consistent with his physical examination findings – that Mr Colombo then had no shoulder or neck movement restrictions: see paragraph 19 above.
I consider that the views of Professor McGill and Professor Beran are more discriminating in their reasoning, and more closely aligned with the factual findings I have made, than those of Dr Endrey-Walder and Professor van Gelder. The opinions of Professor McGill and Professor Beran point away from a conclusion that Mr Colombo suffered his cervical disc herniation at work on 4 September 2012. In addition, there is no contemporaneous report of any such injury and, indeed, the only clearly contemporaneous report is that Mr Colombo woke up the following morning with shoulder pain. There is nothing, in either the subsequent incident report, or the compensation claim form, of 8 November 2012 to substantiate the proposition that Mr Colombo’s pain experience on 4 September was brought on by any particular action, or incident. Rather, he simply became progressively aware of pain and discomfort.
The evidence of the medical experts was that it was not possible to determine the precise time when Mr Colombo’s herniation occurred. There is no more specific evidence to permit a conclusion that Mr Colombo’s disc herniation actually occurred whilst he was at work. As I pointed out earlier in these reasons, I regard Mr Colombo’s evidence about the pain he experienced at work on 4 September 2012, (and more generally, in about September 2012) as unreliable and as having conflated the symptoms that he experienced at that time with the later symptoms of nerve pain. Those latter symptoms perhaps began in October 2012, but certainly became significant in November 2012. Mr Colombo returned to work shortly after the consultation on 5 September 2012, and may in fact have only had one day off work. He did not himself then attribute his pain and discomfort to work activities. In these circumstances I am not satisfied that Mr Colombo’s limited evidence, even with the opinions of Dr Endrey-Walder and Professor van Gelder, provides a basis for concluding that his disc herniation occurred whilst he was at work on 4 September 2012. I find it is probable that Mr Colombo’s cervical disc herniation occurred after 4 September 2012. I find that the most probable timing of Mr Colombo’s cervical disc herniation was between 1 and 11 November 2012.
CAUSE: DIFFERING MEDICAL OPINIONS ABOUT CERVICAL DISC HERNIATION
The medical experts agreed that the precise timing of Mr Colombo’s actual disc herniation was not necessarily determinative of the question whether his workplace activities had caused or contributed to his cervical disc herniation. Both Dr Endrey-Walder, and Professor van Gelder, although for somewhat different reasons and with different degrees of confidence, opined that Mr Colombo’s work activities likely contributed to his shoulder and neck pain, and his disc herniation.
Professor McGill and Professor Beran held a contrary opinion. They thought it was most unlikely, given the nature of Mr Colombo’s herniation and the degenerative changes evidenced in the MRI examination report, that Mr Colombo’s disc herniation was attributable to his work activities.
Although they differed about their ultimate significance, the medical experts considered it important to look carefully at the nature and extent of Mr Colombo’s work activities in assessing the hypothesised causal link between them and Mr Colombo’s disc herniation. They all had a broadly similar understanding of the nature of his work activities – which I describe in the following paragraphs.
MR COLOMBO’S MAIL WORK ACTIVITIES
For many years prior to September 2012 Mr Colombo typically worked a 6½ hour week night shift (from about 1:30 am to 8:00 am) at the Parramatta Mail Centre. He would usually have two breaks in each shift. The first one was a 15 minute break at about 3:00 am. The second was a half hour break at about 5:45 am.
Mr Colombo’s main work involved either sitting or standing at sorting frames and sorting mail into a bank of pigeonholes. There were frames for first class letters, at which Mr Colombo predominantly worked, and other frames for large letters. At the start of a shift there would typically be trays of mail waiting beside the right hand side of his sorting frame. As the shift progressed he would periodically have to remove sorted mail from the pigeonholes, and collect further trays of mail for sorting.
The pigeonhole bank forming part of Mr Colombo’s sorting frame for first class letters was at right angles to a horizontal bench top. The bank was about 1.3 m wide, and its maximum height was about 1.5 m, perhaps about 75 to 80 cm above ordinary desk height. There were six rows, with about nine pigeonholes in each row. Each of the holes was labelled with either the name of a government department or with a group of post office boxes. There was one box for mail with an ordinary street address. Most of the holes in the pigeonhole bank were within arm’s reach and much of the time he worked sitting down at the bench top at the front of the sorting frame. But Mr Colombo said he used to stand to reach some of the holes in the upper rows and sometimes he would stand to put on top of the pigeonhole bank mail items he did not immediately know what to do with.
In sorting the mail items Mr Colombo would take a bundle in his left hand and, wearing a rubber thimblette on his right hand, he would quickly scan the address, identify the item’s appropriate pigeonhole and place it there. This simple operation he carried out quickly and repeatedly, until either some of the appropriate pigeon holes were full, or he had completed sorting the mail trays at hand. Typically such an interruption would occur, at the latest, within an hour of starting sorting a set of mail trays. Over the course of his shift he would typically spend broken periods totalling between three and four hours sorting mail in this fashion.
Once the mail has been sorted into its appropriate pigeonholes, Mr Colombo’s duties required him to collect the sorted items from the pigeonholes and then distribute the sorted bundles. In the case of bundles with post office box addresses, he had to sort them by placing them in the post office boxes at the Parramatta Mail Centre. In other instances a particular addressee organisation might have its own designated tub or bag for their mail. There were also occasions, typically towards the end of a shift, where Mr Colombo would have to deliver parcels to another delivery area within the centre.
THE VIDEO EVIDENCE OF WORK ACTIVITIES
In order to provide a more meaningful illustration and description of Mr Colombo’s scope of work as a mail sorter the Respondent provided videos of other people performing mail sorting activities at the Parramatta Mail Centre. Those videos showed one or other of Mr Colombo’s co-workers undertaking various activities of the kind he would typically have performed during the course of his work shifts. One part of the video footage showed a co-worker sorting mail at a frame similar to the one Mr Colombo used for sorting letters. Other videos showed workers sorting mail at a large, approximately 190 cm high, wall array of “pigeonholes” – such as one can readily envisage behind the bank of customer accessible “post office boxes” commonly found at major general post offices. The remaining video showed the process involved in collecting trays of unsorted mail from large pallet type bins – called “unit load devices”.
The Respondent submitted that the videos fairly illustrated the kinds of mail sorting duties that Mr Colombo carried out in the course of his work. Mr Colombo agreed that the activities and movements shown in the videos were broadly the same as the work he did. He complained, however, that he had worked, and had been required to work, at a much faster pace than the people in the video film. He complained that the extent of the movements shown was understated in comparison with what he actually did. He also complained that the large pigeonhole “array” shown in the video was only one of four such areas, and that one of the others had more pigeonholes, and was slightly higher. Finally, he complained that the activities involved in collecting mail trays from the “unit load devices” required somewhat more bending than was shown in the videos.
In response to Mr Colombo’s complaints, I accept that he probably did work at a faster pace than the people shown in the various films, and that his work regularly required him to be able to reach the more distant “pigeonholes” in both the sorting frame and the large pigeonhole “array” that I have described. I accept also that he generally worked as fast and as efficiently as he reasonably could. However, I do not regard his criticisms as materially detracting from the proposition that movements involved in the mail sorting operations, though repetitive, were comparatively limited in their range. Those movements were essentially similar in nature, although I accept not in frequency, to the ordinary movements frequently and typically performed, unremarkably, by many people in the course of their daily activities. Specifically, it is my view that the movements involved are not fairly described as involving either extremes of movement, or frequent twisting and turning. In support of that view I note, and accept, the evidence of Ms Pepper, one of Mr Colombo’s co-workers who has worked at the Parramatta Mail Centre since 2002. Ms Pepper, who is much shorter than Mr Colombo, gave evidence that she and other APC employees at the Parramatta Mail Centre have, for many years, been engaged in mail sorting duties similar to those undertaken by Mr Colombo. Some of the employees have been doing that work for much longer periods than Mr Colombo’s approximately 12 years’ service. Ms Pepper said that no other APC employee at Parramatta had reported any injury associated with mail sorting work.
CAUSE: WORK NEITHER CAUSED HERNIATION NOR AGGRAVATED AN UNDERLYING CONDITION
Attributing a relevant cause of Mr Colombo’s cervical disc herniation to his work as a mail sorter is made difficult by two main considerations. The first is the evidence of significant degenerative changes affecting his cervical spine. The second is uncertainty about whether the physical activities involved in mail sorting were capable of causing, or significantly contributing to, the sort of injury Mr Colombo suffered.
Dr Endrey-Walder, whose opinion was that Mr Colombo’s disc herniation had probably occurred by the August 2012 date he assumed marked the onset of relevant symptoms, thought that Mr Colombo’s degenerative spondylotic changes were not symptomatic. His view was that such changes would not themselves generally result in single disc herniation. Rather, such a happening would, he thought, require some additional causative factor. He also thought that what he assumed was the likely rapidity of Mr Colombo’s work related shoulder movements, and particularly the movement of his neck (presumably as he moved his gaze from the envelopes in his hand to the pigeonholes) was the most likely factor contributing to the onset of his disc herniation and symptomatic pain. This opinion was apparently based on the proposition that rapid repetitive movements were capable of contributing to degenerative change and, ultimately, disc herniation.
Like Dr Endrey-Walder, Professor van Gelder thought that disc herniation had been the cause of Mr Colombo’s severe pain. But in expressing that view Professor van Gelder differed somewhat from the opinion of Dr Endrey-Walder. He recognised that it was difficult to distinguish on the one hand, between the effect of ageing with its associated wear and tear and, on the other, with the postulated effect of repetitive work activities. In attempting to differentiate between them Professor van Gelder thought it was a reasonable hypothesis that repetitive movements – more specifically, constant repetitive turning over a substantial period – could cause “wear and tear” to an extent that was significant and beyond the ordinarily expected degenerative change. Influenced by that hypothesis he considered that repetitive actions at the “extremes of movement” could contribute to the onset of neck pain, and disc herniation. Finally, like Dr Endrey-Walder, he thought that Mr Colombo’s work as a mail sorter was likely to have caused his cervical disc hernia, or at least to have caused it to have happened years earlier than it may otherwise have occurred.
It is important to note that only one of the two assumptions on which Dr Endrey-Walder based his opinion was consistent with my factual findings. Furthermore, I am unpersuaded by Dr Endrey-Walder’s view that degenerative spondylotic changes would not themselves generally result in single disc herniation without the intervention of some additional causative factor. The first part of the proposition is not self evidently correct. Dr Endrey-Walder did not refer to any specific basis for his opinion. Professor McGill contradicted it by saying that disc herniation was a normal part of degenerative change. Professor van Gelder also contradicted it by agreeing that ordinary movement could precipitate disc herniation and that the apparently progressive development of Mr Colombo’s symptoms could be explained by his degenerative condition. The second part of Dr Endrey-Walder’s proposition is exquisitely ambiguous – because the postulated “additional causative factor” is a generality, and does not point informatively to repetitive movement in the course of employment. It is an hypothesis that is in no sense probative of the conclusion that Mr Colombo’s work activities relevantly caused or contributed to his disc herniation. In assessing the significance of this ambiguous proposition it is worth bearing in mind that in November 2012, when Mr Colombo reported significant worsening of his pain, and there is the first contemporaneous record of the onset of neck pain, and radiating pain, he was not at work and did not associate the worsening of his condition with any work activities. Rather, many of his neck pain experiences were reported on weekends, or were reported as pain that he felt when he woke up: see paragraphs 17 and 22 above.
I am not satisfied that I can or should accept the views of Dr Endrey-Walder. His opinion assumed that Mr Colombo’s nerve pain had started in August 2012. That is not well supported by the evidence, and is contrary to my finding about the most likely time when Mr Colombo’s disc herniation occurred. Dr Endrey-Walder’s opinion was, in my view, unduly influenced by hindsight and by mere satisfaction that there was an apparent “consistency” about Mr Colombo’s reported symptom, and complaints of pain.
In relation to Professor van Gelder it is significant that his opinion was directed at the effect of repetitive activity (in particular “turning”) at the “extremes of movement”. This apparent emphasis on the extent of movement, in addition to repetition, involves a proposition that Dr Endrey-Walder had not advanced, and itself tends to highlight the qualifications inherent in Professor van Gelder’s opinion. It is even more significant that Professor van Gelder couched his opinion in terms of a “reasonable hypothesis” or “assumption” about the causal connection between movement and cervical disc herniation. In advancing such an hypothesis Professor van Gelder accepted there were no probative studies he could rely upon to validate his hypothesis. But he thought that the absence of corroborative studies was not persuasively significant. There were many potentially confounding elements in the causal process – age, underlying degenerative change, and occupational variation. He thought that these variables made it difficult to define proper parameters for an authoritative study. Notwithstanding these confounding considerations, Professor van Gelder referred to some limited studies which he regarded as not contradicting his hypothesis. He claimed that there was good evidence of an association between movement and injury to the lumbar spine. Finally, Professor van Gelder referred to a study that indicated some association, although one that he characterised as not strong, between professional drivers and cervical spinal injury. With that limited support Professor van Gelder thought there was insufficient scientific evidence to conclude that Mr Colombo’s occupational exposure was unlikely to have been a major factor causing his cervical disc hernia. On the contrary he preferred the view that there was some support for such an association, and he regarded that association as probably one of cause and effect.
Professor van Gelder’s view, with respect to him, goes close to embracing a proposition that a causal connection between employment activities and cervical disc injury should be accepted because it cannot be excluded – even if the actual injury is consistent with the likely effect of underlying degenerative change. A proposition of that kind lacks persuasive force, and effectively reverses the proper approach to evidence based findings.
Professor van Gelder’s ultimate inclination to accept his reasonable hypothesis was based on a preference for surgical experience, and “pathophysiological” understanding, over inconclusive studies. To justify that preference he cited what he called a “huge body of anecdotal evidence” and cited a range of examples of patients involved in “high fork lift driving”, indoor painting, and a toll collector. The value of those examples is limited by an absence of detail. In the absence of particular detail there is no basis to arrive at a positive conclusion that this kind of “anecdotal evidence” is reliably informative. And Professor van Gelder’s more general reliance on pathophysiology is equally unpersuasive in its application to Mr Colombo’s particular circumstances, because of his acceptance of the proposition that it was inherently difficult to differentiate ordinary wear and tear, and his preference for the view that it was only “extremes” of movement that fell within his reasonable hypothesis. Furthermore Professor Beran, who apparently shared Professor van Gelder’s view about the potential probative superiority of relevant clinical and surgical experience, over inconclusive epidemiological studies, strongly contradicted Professor van Gelder. His view was that the sorts of activities involved in mail sorting were well within the category of ordinary movements and the adaptive capacity of human physiology.
Professor Beran was not sure whether it was appropriate to regard Mr Colombo’s underlying degenerative change as pre-disposing him to disc herniation. And he tended to agree with Professor van Gelder’s interpretation of the few relevant epidemiological studies – that there was no conclusive evidence either establishing or negating the causal contribution of particular kinds of activity to cervical disc herniation. But drawing on what he described as his experience as a “coal face physician more than anything else” Professor Beran was comfortable in his view that there was no sufficient basis to justify an affirmative conclusion that Mr Colombo’s workplace activities had relevantly contributed to his disc herniation or its associated pain. In arriving at that conclusion Professor Beran was influenced, and in my view correctly influenced, by the fact that there was no particular work related incident that had provoked the onset of Mr Colombo’s pain: see the comments I made in paragraph 49 above. Professor Beran thought that if Mr Colombo’s reported disc herniation and associated pain were really work related, he would have expected their onset or occurrence to be a result of some particular incident. This was not what had happened. On the contrary, Mr Colombo had a long standing cervical disc pathology which could account for his initial (that is, September 2012) symptoms, and those symptoms had markedly deteriorated, apparently at times away from the workplace and not related to any specific work activity. For all of these reasons Professor Beran thought that there was no evidentiary basis to conclude that any work related occurrence or activity was a probable cause of either the onset or the aggravation of Mr Colombo’s symptoms.
Professor McGill explicitly refused to accept Professor van Gelder’s approach. He said that cervical disc degeneration, such as that evident in Mr Colombo’s case, was known to have a major genetic component. The accuracy of that proposition was reflected in studies in 1999 (Sambrook, McGregor and Spector) and 2011 (Williams and Sambrook) and was not really disputed by Professor van Gelder. Secondly, as Professor van Gelder also partly acknowledged, there was no adequate epidemiological evidence to support the “reasonable hypothesis” that cervical disc degeneration had any significant work related causal relationship, or relevant association, with repetitive movement. Thirdly, such available studies as there were that bore on the topic could not properly be regarded as providing even the potential support that Professor van Gelder sought to derive from them. Fourthly, Professor van Gelder’s opinion ultimately rested upon the accuracy of characterising Mr Colombo’s workplace activities as involving repetitive activity at the extremes of movement.
As is readily apparent from the preceding paragraphs, a focus of the different opinions of Professor van Gelder, on the one hand, and Professor McGill, on the other, was the significance of the absence of any significant medical studies showing a relevant causal association between repetitive movement and cervical disc degeneration. They particularly differed on the significance of a 1996 Danish study of professional drivers, which had identified an elevated risk of cervical disk prolapse in professional drivers. Professor van Gelder thought that the study showed there was some degree of occupational association with cervical disc degeneration. He hypothesised that this might be associated with the repeated lateral head movement, and arm movements, involved in constant regular driving of commercial vehicles. But Professor van Gelder did not venture into any exegesis to explain what assumptions he made about the nature and extent of a driver’s activities, the extent to which those movements would occur at the “extremes of movement”, or their comparability to Mr Colombo’s mail sorting activities.
Professor McGill, on the other hand, thought that the study could not be relied on to justify any relevant causal connection. One reason for Professor McGill’s sceptical view of the utility of the study, in advancing the connection hypothesised by Professor van Gelder, was that the study reported a lower association with disc prolapse where the drivers were also involved in doing heavy lifting. The study authors had speculated that this difference might implicate “vibrations and road shocks, twisting of the neck and acceleration and deceleration of whiplash accidents rather than specifically heavy lifting” as causal factors in cervical disc prolapse.
Professor McGill thought that the reduced incidence of cervical disc prolapse reported in drivers involved in doing heavy lifting was an anomaly that was not explained by such speculations, especially in the absence of any reason to differentiate between actual driving activities and practices. Professor McGill thought that the apparent anomaly in the Danish study results confounded any justifiable reliance on it to support the views advanced by Professor van Gelder. I agree with Professor McGill’s analysis and interpretation of the driver study. But I would take his critique further, having regard to the author’s hypothesis about the potential effect of “vibrations”, “shocks”, “twisting of the neck”, “acceleration and deceleration” and “whiplash” as potentially relevant factors in the causation of cervical disc prolapse. None of those kinds of factors is apt to describe the activities likely to be involved in the kinds of mail sorting activities that Mr Colombo carried out. Consequently, for both the reason advanced by Professor McGill, and a lack of satisfaction about the relevant comparability of Mr Colombo’s activities with those of the professional drivers in the Danish study, I do not consider there is a proper basis for implicating Mr Colombo’s work activities in his cervical disc herniation.
The views of Professor Beran and Professor McGill reflect a more balanced, informed and reliable assessment than the “reasonable hypothesis” view advanced by Professor van Gelder. Professor van Gelder’s hypothesised causal contribution of repeated movement to the occurrence of cervical disc herniation, when properly analysed, was never elevated beyond the status of an assertedly “reasonable” assumption. As such I do not accept that it points to anything more than the possibility of a causal connection. It is not appropriate to elevate the recognition of such a possibility into the status of an informed expert opinion. More specifically, I do not accept that such a speculatively reasoned possibility satisfies a requirement that the relevant causal connection “must be established on the probabilities”: see Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
For the reasons I have set out above, I am not satisfied the evidence sustains an affirmative finding that Mr Colombo’s disc herniation was either caused, or aggravated by his work activities.
MANIFESTATION:- PAIN AS AN INJURY OR AGGRAVATION
As I indicated in paragraph 4(c), the submissions made on Mr Colombo’s behalf, whilst accepting that he had an underlying degenerative condition, also characterised the occurrence of his cervical disc herniation as a separate injury. On the basis of those two propositions, and an implication that Mr Colombo’s disc herniation process had started earlier, there were further submissions that the pain Mr Colombo experienced at work on 4 September 2012 involved either (i) the aggravation of an existing physical injury (his cervical disk herniation): see s 5A(1)(c) of the SRC Act; (ii) a separate “injury” under s 5A(1)(b) of the SRC Act, or (iii) the aggravation of his underlying degenerative cervical spine condition, and thus a “disease”: see s 5B(1) of the SRC Act.
The first part of the alternative submissions put on behalf of Mr Colombo depends on the proposition that his disc herniation occurred before 4 September 2012, or at least at some time before he finished his shift that day. This is contrary to my earlier finding – that Mr Colombo’s cervical disc herniation probably occurred between 1 and 11 November 2012: see paragraph 34 above.
The second part of the submission made on Mr Colombo’s behalf was that irrespective of the time when Mr Colombo suffered the actual cervical disc herniation evident on the 11 November 2012 MRI examination, the pain and discomfort he claims to have suffered at work on 4 September 2012 itself constitutes an injury for the purposes of s 5A(1)(b) of the SRC Act. This submission is difficult to sustain, in the light of Mr Colombo’s underlying degenerative condition, the difficulty of the distinction involved in characterising “pain” associated with such a condition as a separate injury rather than a manifestation or aggravation of the condition, and the wording of s 5A(1)(c) of the SRC Act, which tends to exclude the aggravation of a disease from the concept of “injury” for the purposes of the SRC Act.
There are instances where particular manifestations of a disease process can properly be characterised as a separate “injury” distinct from the disease itself. But I do not accept that the present case is one of those instances. In Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 Gleeson CJ and Kirby J, referred to the relevant illustrative authorities and said:
All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment … If the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.
The third part of the submissions made on Mr Colombo’s behalf was that the circumstances at work on 4 September 2012 involved an aggravation of his underlying degenerative condition – and thus constituted a disease for the purposes of the SRC Act: see s 5B(1) of the SRC Act.
In Re Rutledge and Comcare (2011) 130 ALD 94; [2011] AATA 865; at [10] Member Webb summarised the relevant principles. That summary was as follows (I have reformatted the extract, so as to conveniently include the authorities Member Webb cited):
[10] … An “injury” under the Act includes a “disease”, which is defined to include the aggravation of an ailment that is significantly contributed to by the employee’s employment. The term “aggravation” is defined to include acceleration or recurrence. It is synonymous with exacerbation, in the sense that an ailment
●is made worse: Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157; Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; [1967] ALR 545; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533; 87 ALR 385.
●or the experience of it is “increased or intensified by an increase or intensifying of symptoms”: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 634–5; [1964] ALR 1031 at 1036–7 per Kitto J.
●“Neither the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act”: Mellor v Australian Postal Corporation (2009) 108 ALD 159; [2009] FCA 504 at [26].
In paragraphs 12 and 27 above I set out my finding about the pain Mr Colombo said he experienced on 4 September 2012. It was limited to shoulder pain, which he experienced towards the end of his shift, and was not accompanied by any significant tenderness or restriction of movement.
In developing the argument that such an experience involved an “injury” Mr Colombo’s submissions relied on the propositions that (i) the aggravation of a “frank injury” could itself be a relevant compensable “injury” if it occurred in the course of employment, and (ii) the experience of pain brought on by a work activity could constitute a relevant injury, even if the underlying condition was itself neither work related nor affected by any pathological change. The submission relied on Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Commonwealth v Beattie (1981) 35 ALR 369 at 377-8; Tippett v Australian Postal Corporation (1998) 27 AAR 40, and Mellor v Australian Postal Corporation (2009) 108 ALD 159; [2009] FCA 504; and Re Mellor and Australian Postal Corporation [2010] AATA 502.
It has been stated that aggravation requires that an existing condition has been “made worse” and not that it has simply “become worse”: Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593. Nevertheless, the broad effect of the principles involved in the decisions referred to in the preceding paragraph is to reject a “rigid separation” (Federal Broom: 110 CLR at 636 per Windeyer J) between a disease or injury and its symptoms or consequences. The application of those principles has led to decisions where:
(a)a schizophrenic was held to have suffered a compensable injury when her condition was “exacerbated” by a workplace accident that resulted in a new delusion: Federal Broom;
(b)an office worker was held to have suffered a compensable injury when her work activities “aggravated” pain caused by a groin strain that had happened at home: Beattie;
(c)a sportsman who had a pre-existing rotator cuff injury was entitled to compensation for “injury” when it became painful as a result of repetitive gear changing on his work delivery van: Tippett;
(d)a 61 year old postal worker who had spinal osteoporosis, thoracic kyphoscoliosis (abnormal curvature of the thoracic spine) and a degenerative lumbar spinal condition was held to have suffered a compensable “aggravation” because the conditions became temporarily symptomatic as a result of his work activities: Mellor;
(e)a teacher who had substantially recovered from an adjustment disorder suffered a relapse that constituted a new injury when she was distressed by an informal, personal conversation with her school principal: Rutledge;
(f)a postal delivery officer with degenerative lumbar spondylosis was held to have suffered a compensable aggravation injury as a result of riding his delivery motorbike, but the aggravation injury was held to have had only a temporary effect, and to have ceased a few months after he stopped riding the delivery motorbike: Re Bessey and Australian Postal Corporation (2000) 60 ALD 529; [2000] AATA 404 at [11] and Australian Postal Corporation v Bessey (2001) 32 AAR 508; [2001] FCA 266 at [7] & ]8];
(g)a Medicare customer service officer was entitled to compensation for the aggravation of her degenerative cervical spine condition where her work involved the repetitive use of her right hand and increased her pain: Re Tran and Comcare (2010) 52 AAR 449; [2010] AATA 719.
In Beattie Evatt and Sheppard JJ grappled with the, difficult to differentiate, views of Kitto and Windeyer JJ in Federal Broom about whether relevant “aggravation” was established merely by a finding that an underlying condition had been made more serious for the person concerned: (see 35 ALR at 375). They ultimately concluded that “there can be cases where there will be an … aggravation … of a previously existing injury by activity which increases or precipitates pain”: (at 35 ALR 378). However, their Honours continued with the following passage:
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. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place. (Emphasis added.)
Taken on its own, the scope of that reservation is of doubtful content. In Tippett Finkelstein J suggested (despite the words I have emphasised in the passage above) that it applied only in the case of a worker whose underlying condition caused pain “whether or not the worker [was] at work”. Finkelstein J himself concluded that “aggravation” was sufficiently established whenever a pre-existing condition became symptomatic during work activities. His Honour said:
In considering the meaning of the word “aggravate” in the Compensation Act … an injury will be aggravated if the experience of the injury is increased or intensified … In addition, because “aggravation” of an injury is defined to include the “recurrence” of that injury it is not necessary to show that the experience of an injury is increased or intensified. It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity as before.
The proposition that the categorisation of pain as an aggravation of an existing disease or injury depends on its occurrence “whether or not the worker [was] at work”, has been an influential criterion, at least prior to the 2007 insertion of s 5B of the SRC Act: see Re Tran and Comcare [2010] AATA 719 at [76]; Re Garcia and Comcare [2014] AATA 320 at [46] and [57]. Nevertheless, in Mellor (at (2009) 108 ALD 159 [42]-[44]) Bennett J questioned whether Finkelstein J’s approach in Tippett was an accurate interpretation of the reasoning in Beattie – that “pain brought on by work activity may constitute an aggravation of a pre-existing injury”. In addition, it is unlikely that a simple enquiry about the occurrence of pain “whether or not the worker [was] at work” really describes the “evaluative threshold” for relevant contribution that the Full Court of the Federal Court identified in Comcare v Canute (2005) 148 FCR 232; [2005] FCAFC 262 at [67]. In Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15 at [16] Finn J emphasised that the evaluation required consideration of all relevant contributing factors and that the ultimate assessment as to whether the employment contribution was of a “material degree” was a conclusion that depended on a matter of fact and degree.
The definition of “disease”, in s 5B(3) of the SRC Act, since its insertion in 2007, requires that before a disease, or the aggravation of a disease, is compensable for the purposes of the SRC Act, it must have been “contributed to, to a significant degree” by the person’s employment. The term “significant degree” is defined to mean “a degree that is substantially more than material”. Section s 5B of the SRC Act also contains a non-exhaustive list of matters relevant to determining whether an aggravation has resulted from an employment contribution of a “significant degree”. These matters include “any predisposition of the employee to the ailment or aggravation”. In Re Zomer and Telstra Corporation Limited [2012] AATA 601 the Tribunal addressed the significance of this question. It effectively reached a conclusion that appears to give added emphasis to the qualification expressed in Beattie (to which I have referred in paragraph 70 above). The Tribunal, taking into account both the Explanatory Memorandum and the Second Reading speech relating to the relevant amendments, said (at [52], footnotes omitted):
[52] … s 5B of the SRC Act … contains a non-exhaustive list of matters that may be taken into account in determining whether an aggravation was contributed to to a significant degree by employment. These matters include “any predisposition of the employee to the ailment or aggravation”. Taken by itself, it is not clear whether that paragraph requires that any such predisposition should be used in effect to discount the impact that work-related events would have on an employee with such predisposition, or whether the paragraph was intended to have the opposite effect, that is, that any such predisposition would leave the employee vulnerable to the relevant work-related event, so that that event would then be more likely to contribute to the aggravation to a significant degree (this being the traditional approach to the relevance of pre-existing vulnerability in compensation cases). We think that having regard to the purpose of the 2007 amendments, the former interpretation is correct…
In the decision in Mellor v Australian Postal Corporation (2009) 108 ALD 159; [2009] FCA 504 Bennet J set aside a Tribunal decision on the basis that it had incorrectly determined that the degree of aggravation was not material, rather than deciding the materiality of the employment contribution to that aggravation. The Tribunal had characterised the employment caused pain as having a temporary effect, and found that there was no deterioration in the worker’s underlying condition. Bennett J held (at [36]) that relying on this reasoning to conclude that there had not been an aggravation was:
to confuse the requirement that the employment be a material cause of the aggravation with a requirement that the effect of the aggravation be material.
Subsequently in determining the remitted matter, the Tribunal rejected Mr Mellor’s claim to have suffered a lower back injury, as a result of a fall at work, but decided that he was entitled to compensation for the, work related, aggravation of the underlying spinal conditions that had become painful, and were diagnosed, a few months after the fall. Mr Mellor continued to work for four years after the fall. During that time he experienced a mild degree of intermittent pain associated with activities at work: Re Mellor and Australian Postal Corporation [2010] AATA 502. Dr Alexander (at [88] to [90]) referred to the statement in Beattie that “pain brought on by work activity may constitute an aggravation of a pre-existing injury”; considered that the concept of “aggravation” included “temporary aggravation”, and said that characterising the period of aggravation as either permanent or temporary would depend on the detail of the medical evidence. Dr Alexander (at [91] – [94]) then rejected the claim that Mr Mellor’s work conditions had contributed to his underlying spinal conditions, but was satisfied that he suffered increased symptoms and that constituted an aggravation of his spinal conditions – although one that was temporary and closely associated with his work activities. This reasoning, which confines any relevant pain aggravation to the actual period of the employment activity during which it occurs (and perhaps some short subsequent period) is consistent with the reasoning and decision in Australian Postal Corporation v Bessey [2001] FCA 266 at [6] to [8].
The distinction drawn in Mellor between the materiality of an employment contribution to pain, and the degree of related aggravation of an underlying condition, is conceptually clear. But the practical assessment of whether or not the employment contribution is material cannot be undertaken without some regard to the suggested effect of that contribution, and some degree of comparison with the likely effect of the condition itself. The latter comparison is suggested even by the “whether or not at work” paraphrase favoured in Tippett. It is certainly invited by the permission, in s 5B(2)(c) of the SRC Act, to take into account “any predisposition of the employee to the ailment or aggravation”. The consideration of the nature and extent of the postulated effect is encouraged by the qualification referred to in Beattie, and particularly its indication that a finding of relevant causal contribution was not to be made merely because pain was “brought on by work activity”: see the extract in paragraph 70 above.
In the present matter Mr Colombo’s evidence about the events of 4 September 2012 is slender, general and unreliable (to the extent that it conflates a recollection of shoulder pain on that day with subsequent symptoms of nerve pain – see paragraphs 26 and 27 above). As I have previously found, he did experience shoulder pain towards the end of his shift that day, but it appears not to have been significant enough to interfere with his activities after he left work. Indeed, it was not until later that evening, when he says he was woken by pain, that it was a matter that troubled him. He had an underlying degenerative condition which was likely to lead to the symptoms he did experience. There was no particular event at work that he could recall as having precipitated his pain. Consistent with that fact, he returned to work shortly afterwards, and did not himself associate his shoulder pain with his work activities. In addition, as I have earlier found, none of the medical evidence reliably pointed to a significant causal connection between his work activity and the shoulder pain he experienced. In the totality of those circumstances, whilst I accept that Mr Colombo suffered some shoulder pain at work on 4 September 2012, and from time to time thereafter, both at work and when he was not at work, I am not satisfied that his employment contributed “to a significant degree” to the occurrence of that pain, and involved an aggravation of his underlying degenerative condition.
DECISION
Each of the decisions under review is affirmed.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member .................[sgd]................................................
Associate
Dated 13 January 2015
Dates of hearing 25-27 March 2014 Counsel for the Applicant Mr L T Grey Solicitors for the Applicant Steve Masselos & Co. Counsel for the Respondent Mr P Jones Solicitors for the Respondent DLA Piper Australia and Moray & Agnew Lawyers (as of 17 July 2014)
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