Katherine Turton and Australian Postal Corporation

[2014] AATA 138

[2014] AATA 138

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5331
Re	Katherine Turton
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member Dr I Alexander, Member
Date	14 March 2014
Place	Sydney

The Tribunal sets aside the decision under review and instead decides that Australia Post is liable to pay compensation in respect of the rupture of Ms Turton’s left tibialis posterior tendon and consequential alterations in the mechanics of her left foot.

........[Sgd]................................................................

Ms N Bell, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth Employees – whether applicant suffered a new injury to her left foot – whether injury an aggravation of a pre-existing condition – whether employment contributed to aggravation of pre-existing condition - tibialis tendon dysfunction- decision under review set aside

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr I Alexander, Member

14 March 2014 

1. Katherine Turton was unloading trolleys of undelivered mail containing thick, stacked magazines at the Ingleburn Delivery Facility of Australia Post in July 2011 when she experienced pain in her left foot. Australia Post eventually accepted liability for a fracture of the left navicular. It was decided by Australia Post that the effects of the injury had ceased by October 2011.

2. Ms Turton did not challenge this last decision and continued with her duties from October 2011. However, she says that in February 2012, after four months of no or few symptoms in her foot, she again experienced pain in her foot of a kind approximating the pain she had experienced at work in July 2011. Her claim for a new injury to her left foot was rejected by Australia Post and that affirmed decision is the subject of this application.

   ISSUES

3. There is no dispute that Ms Turton suffered from a pre-existing left tibialis tendon dysfunction and that in July 2011 she suffered a stress fracture of the navicular bone which healed. Ms Turton contended that in February 2012 she suffered a new injury to her foot, in the sense that there was a change to its physiology or mechanics. In the alternative, she contended that the nature of her work, and in particular the cumulative weights she was required to manipulate, caused an aggravation of her pre-existing tendon condition. Australia Post contended that Ms Turton did not suffer a new injury in February 2012 but, rather, the pain she experienced was simply the progression of her pre-existing tendon condition. Australia Post contended there was no contribution to this progression or aggravation of the condition by the nature of the work she performed.

4. Much was made in the hearing of the cumulative weights Ms Turton dealt with in her work. She had, during 2011, documented them extensively over three months. Evidence was called from other officers at the workplace to rebut the weights she contended she was required to deal with. It was contended by Australia Post that Ms Turton had misrepresented the weights involved. In the end, it mattered little because the weight of the expert medical evidence was that, if anything, it was the action of pushing a trolley that was most relevant to any mechanism of injury. That Ms Turton had concentrated with such intensity on a study of the cumulative weights she was required to manipulate was not cause to doubt her credibility, particularly in relation to the symptoms she experienced at various times.

5. The issues in this case are therefore whether Ms Turton suffered a new or frank injury to her foot in February 2012 and, if not, whether the nature of her work aggravated her pre-existing left tibialis tendon dysfunction.

   DID MS TURTON SUFFER A NEW INJURY TO HER FOOT?

6. Ms Turton’s evidence, given orally and in statements, was that she had an injury to her left knee in 2001, which had been accepted by Australia Post and which meant that she could not stand for long or lift heavy weights. She said that by 2009 she still had occasional pain in her knee. In July 2009 Ms Turton became the unaddressed mail co-ordinator at the Ingleburn facility. Unaddressed mail is “junk” mail which arrived at the facility by semi-trailers in trays and tubs in ULDs (Unit Load Device). Once unloaded, they are stored in a particular area of the facility. It was Ms Turton’s job to load the mail on to a trolley and then push the trolley to the area where pigeon holes were lined up and place the mail in the relevant pigeon holes. The distance from the storage area to the furthest pigeon hole was 41 metres by her reckoning. Ms Turton did this work for three days a week, eight hours a day.

7. Ms Turton said she was performing this task in July 2011 during a particularly heavy week when she felt pain on the top of her left foot. She said she took pain killers, sat down for 20 minutes and the pain lessened. She described the pain as sharp and severe. She had not experienced pain in her foot before. She continued to work for the rest of the day and the pain fluctuated over the following day. She said that over the following week the pain increased and her foot became swollen. She had investigations that showed a stress fracture of the navicular. She wore a CAM boot for eight weeks, did light duties from October and was certified as fit for pre-injury duties in December. She returned to her old job.

8. Ms Turton initially said she had no symptoms in her foot until February 2012 but qualified this later to say she had occasional pain that she disregarded as it was not as severe as the pain she had experienced in July 2011. She said that she had no problems with performing her work.

9. Ms Turton said that in February 2012, while pushing a trolley, she had sharp and severe pain in the top of her foot in the same place she had it in July 2011. She completed an incident report and took pain killers. She said the pain remained constant for the first couple of months and then intensified. She said her foot swelled and the pain moved to the left side of her foot below her ankle. She said her foot started to turn out slightly and to flatten. She said she had never seen that before. In June 2012 she consulted her general practitioner and made a claim for compensation. She said the only treatment she had for her foot between June and December 2012 was to wear a CAM boot. She said her foot became worse in 2013 and she eventually saw Dr Ronald Sekel, Orthopaedic Surgeon. She is scheduled for surgical implant, fusion and tendon reconstruction in March 2013.

10. We note that Dr Hitchen, Orthopaedic Surgeon, after examining Ms Turton in August 2012 diagnosed an “attritional or chronic rupture of the tibialis posterior tendon going on to cause an acquired flat foot, with complications of a secondary mid-foot break and reactive arthritis of the hind foot.” Dr Hitchen considered that, clinically, there was no function of the tendon and said that physical examination was consistent with an old rupture of the tendon.

11. Dr Sekel’s opinion was that Ms Turton had suffered a progressive fraying of the tendon and that this was underlying any stress fractures, the fractures being a direct result of the tendon’s demise. He considered it likely that there had been a gradual tear of the tendon and that when Ms Turton experienced a sudden increase in pain in February 2012 that was because the tendon had ruptured or the small ligaments attached to the tendon had ruptured. He also said the fraying of the tendon would have given rise to swelling and deformity of the foot and these could have manifested before a complete rupture of the tendon. He considered the rupture of the tendon and its fraying to be physiological changes.

12. Dr Sekel considered that by the time of her x-ray in July 2011, the collapse of Ms Turton’s foot had already commenced.

13. Dr Sekel considered that the weights Ms Turton was dealing with in her work were a contributor to the progressive collapse of her foot, although he noted that the individual weights being lifted by Ms Turton (up to 12 kilograms) were not heavy. He later noted that when a person is pushing a trolley, the person’s weight is through the ball of the foot and through the arch, directly affecting the tendon.

14. Dr Christopher Browne, Rheumatologist, and Dr Neil McGill, Consultant Rheumatologist, gave evidence concurrently. They agreed that Ms Turton suffered from tendon dysfunction which led to a stress fracture in 2011 that then healed and then an attrition process, or a gradual fraying of the tendon, continued from there. Drs Browne and McGill considered whether the tendon had actually ruptured, but they agreed there had been no investigations of the kind that would show whether a rupture had taken place and neither could be sure that it had. They agreed, however, that process of attrition had begun prior to the stress fracture in June 2011.

15. They both considered it unlikely that Ms Turton had suffered another fracture in February 2012.

16. Dr Browne thought that what had happened in February 2012 was the ultimate progression of the posterior tibial tendon degenerative change, the final rupture in the tendon attrition process. He considered Ms Turton’s sudden pain would have come from the rupture of the distal part of the tendon or from the talonavicular joint which suddenly became painful as a consequence of final rupture of the tendon, altered mechanics of the foot and pronation and rotation stressing.

17. Dr Browne also considered that the action of pushing a trolley repeatedly was significant and, because of the action of plantar flexing involved in that task and Ms Turton’s already stretched and compromised tendon, it was a key factor in progressing the rupture. He considered the action of pushing to be much more significant than lifting, regardless of the weights involved.

18. Dr McGill, on the other hand, considered that the episode in February 2012 was merely an episode of pain due to the abnormal mechanics of Ms Turton’s foot because of the progression of the tendon dysfunction. He considered Ms Turton’s pain to have been a flare up of pain in the course of the continuing dysfunction of the tendon.

19. It was submitted on behalf of Australia Post that it was inevitable that Ms Turton would be in the position she is in now, that is, requiring surgery and the other treatment she requires to deal with the state of her foot. It was also submitted that the fact that Ms Turton’s condition progressed beyond February 2012 and some months later she had pain in a different area of her foot prevents a conclusion that there was a frank injury in February. Rather, it was submitted, the pain she felt in February was merely a point in the progression of her underlying condition. We were urged to adopt the view that Ms Turton’s foot pain was the manifestation of a disease process that was not influenced by her activities at work. We were also urged to adopt a negative view of Ms Turton’s credibility.

20. The submission as to the inevitability of Ms Turton’s condition reaching its current point is stated to rely on the following evidence elicited from Dr Browne:

    MR GOLLAN:   Yes.  And that when you have significant compromise of this tendon the inevitable consequence regardless of what occupational pursuit is that you have a collapse of the arch, correct?

    DR BROWNE:   Yes.  The later progression may vary according to the activities undertaken from that point on.

    MR GOLLAN:   Yes.  Inevitably you are going to have a collapse though, correct?

    DR BROWNE:   Well, collapse means final rupture of the tendon.  "Inevitably" probably is strong but it's – - -

    MR GOLLAN:   Okay.  Let me put it to you in these terms.

    DR BROWNE:   It's more likely than not that it may happen but – - -

    MR GOLLAN:   It's more likely, more probable?

    DR BROWNE:   Yes.  It's likely that it may progress.

    MR GOLLAN:   And in the process of collapse, one experiences pain.

    DR BROWNE:   Yes.  If something acute happens particularly but then it becomes an ongoing process once it has collapsed leading to chronic pain.

    MR GOLLAN:   Yes.  And that pain is a derivative of the collapse as opposed to any activity that one person may or may not be undertaking, correct?

    DR BROWNE:   Yes, a consequence of the collapse and the final rupture of the tendon.

    [Tr. pp 30-31]

21. This evidence does not quite support the submission made. Rather, Dr Browne agreed that continued degeneration was likely but he said the later progression may vary according to the activities undertaken after the degeneration begins. This evidence also undermines the submission made about the effect of a later change in the site of pain on the question of whether there was a frank injury in February 2012. Dr Browne said that after the final collapse of the tendon there follows an ongoing and consequential process involving chronic pain. Clearly Dr Browne did not consider that a new injury, that is, a tendon rupture, meant there could be no further progression or change in the foot or the pain experienced by Ms Turton.

22. As to Ms Turton’s credibility, a great deal was made of her having recorded the weights involved in her work and the disparity between her figures and those of other employees of Australia Post. As it became clear from the expert medical evidence, the relevant activity was that of pushing a trolley against inertia, and the plantar flexion involved in that action, rather than any lifting undertaken. The question of what weights were cumulatively lifted by Ms Turton became irrelevant. However, it was submitted that Ms Turton’s evidence should generally not be accepted because the weights she maintained she had to lift were significantly more than the number assessed by the other employees. We do not know why Ms Turton fixed her attention on the issue of the cumulative weight carried by her, or what may have led her to overestimate it, if indeed she did, but we do not take that as an indication that the history she gave to the Tribunal or to her examining and treating doctors about the symptoms she suffered should not be accepted. None of the numerous doctors who examined her raised any doubt about the history of symptoms she had given.

23. Other parts of her evidence, for example, her initial answer that she had no symptoms in her foot between December 2011 and February 2012 that she later modified to say that she had some minor pain that did not approach the pain she had experienced in June 2011 and that she simply ignored, are not, in our view fatal to her credibility. Nor is the report of Dr Whittaker, Rheumatologist, who examined her in October 2011 and found the beginnings of a collapsed arch. We accept her evidence that her pain in June 2011 was severe, that after treatment with a CAM boot it settled and largely disappeared and allowed her to perform her normal duties, and that in February 2012 she experienced a sudden onset of pain of a sharpness and severity that was similar to the pain she had felt more than seven months previously. We also accept that her pain and the deformity of her foot stayed and increased to the point that she is now scheduled for surgery to treat it.

24. This sudden onset of pain after a comparatively pain free period leads us to prefer the opinion of Dr Browne who considered that some change occurred at the time of the sudden onset of pain – either from the rupture of the distal part of the tendon or from the talonavicular joint which suddenly became painful as a consequence of final rupture of the tendon, altered mechanics of the foot and pronation and rotation stressing. We are not persuaded by the view of Dr McGill that this sudden onset of sharp and severe pain was merely a flare up.

25. These changes described by Dr Browne, and echoed by Dr Sekel, as the likely course of events, are physiological changes. They occurred in the course of her work. They constitute a new and frank injury.

    DECISION

26. The Tribunal sets aside the decision under review and instead decides that Australia Post is liable to pay compensation in respect of the rupture of Ms Turton’s left tibialis posterior tendon and consequential alterations in the mechanics of her left foot.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr I Alexander, Member.

...[Sgd].....................................................................

Associate

Dated 14 March 2014 

Dates of hearing	13-15 January 2014
Counsel for the Applicant	Mr L Grey
Solicitors for the Applicant	Carroll & O'Dea Lawyers
Counsel for the Respondent	Mr M Gollan
Solicitors for the Respondent	Sparke Helmore