Malcolm Grace and Australian Postal Corporation
[2013] AATA 529
•30 July 2013
[2013] AATA 529
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1374
Re
Malcolm Grace
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Dr M CouchDate 30 July 2013 Place Sydney The Tribunal has no jurisdiction to determine a nature and conditions claim.
The Tribunal sets aside the decision under review and substitutes for it a decision that the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate Mr Grace for the injury sustained in the course of his employment on 8 September 2010.
..........[sgd]..............................................................
Senior Member J F Toohey
CATCHWORDS
COMPENSATION – postal services officer – mail delivery – cervical spine – right shoulder – severe widespread degenerative changes – liability denied – whether the applicant suffered an injury – whether evidence of sudden or identifiable physiological change – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act ss 5A, 14
CASES
Australian Postal Corporation v Burch (1998) 85 FCR 264
Kavanagh v Commonwealth (1960) 103 CLR 547
Kennedy Cleaning v Petkoska (2000) 200 CLR 286
Szabo v Comcare [2012] FCAFC 129Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
Senior Member J F Toohey
Dr M Couch30 July 2013
BACKGROUND
Mr Malcolm Grace is a postal services worker employed by Australia Post. On 8 September 2010, he was delivering mail on his usual beat. As he put mail into a letterbox at a block of apartments, he felt pain in his right shoulder. He had trouble lifting his arm and thought he had pulled a muscle. He finished his beat using his left arm.
The following morning, Mr Grace could not move his right arm. He was admitted to hospital the same day and underwent surgery several days later. He has regained some movement in his right arm but has not been able to return to work since.
Mr Grace claims compensation under the Safety, Rehabilitation and Compensation Act1988 (the Act). The respondent denies that Mr Grace has suffered a compensable injury and contends that his condition was the result of severe, widespread degenerative disease in his cervical spine.
There is no dispute that Mr Grace suffers from severe degeneration of his cervical spine. At issue is whether he suffered an injury at work on 8 September 2010 for which the respondent is liable to compensate him under s 14 of the Act. Only liability under s 14 is presently in issue.
PRELIMINARY QUESTION
A preliminary question arises in this matter, being the proper construction of Mr Grace’s claim for compensation, in particular whether the Tribunal has jurisdiction in these proceedings to determine a nature and conditions claim, or whether its jurisdiction is confined to determining a claim in relation to a frank injury sustained on 8 September 2010. The background to this question follows.
On 11 October 2010, the respondent denied liability to compensate Mr Grace for an injury described in his claim form as “two bulging discs pressing against nerve”. The respondent was not satisfied that a causal connection between Mr Grace’s injury and his employment had been disclosed in the evidence submitted with his claim. In particular there were “no reported incidents or situations which might have resulted in the injury described”.
By a reviewable decision made on 15 February 2011, the respondent affirmed its decision to deny liability for an injury described as “two bulging discs pressing against [Mr Grace’s] nerve in his cervical spine”. The respondent cited the opinion of Dr Neil McGill, rheumatologist, that there was no evidence that the type of work Mr Grace performed would make any difference to the development of the severe widespread degenerative change in his cervical spine.
For Mr Grace it was submitted that, while his claim is essentially one for a frank injury occurring on 8 September 2010, a fair reading of his claim for compensation would also disclose a claim concerning the nature and conditions of his employment over many years. For Australia Post it was submitted that no such claim could be discerned and the Tribunal had no jurisdiction in respect of such claim.
Having heard counsel for Mr Grace and for Australia Post, we delivered an oral decision on the question of jurisdiction, a summary of which follows. We considered in particular the decision in Szabo v Comcare [2012] FCAFC 129 in which the Full Federal Court considered how construe the claim as disclosed in Mr Szabo’s claim for compensation.
In Szabo, the Court was unanimous in finding that, notwithstanding references in the claim form to “constant bending and lifting” and “continuous lifting of lamb shanks”, it was not possible to discern a nature and conditions claim from the documents which comprised Mr Szabo’s claim for compensation; properly understood, it did not extend beyond the specific incident disclosed in his claim form.
Mr Grace’s claim form discloses even less ground for finding a nature and conditions claim. Mr Grace identified his injury as “two bulging discs pressing against nerve” that occurred on 8 September 2010 at 1pm. He described the injuries received as “unable to lift right arm above chest area … [n]oticed while delivering mail on 8 September 2010 as was unable to reach up above chest to insert mail into boxes”.
We are satisfied that, read as a whole, Mr Grace’s claim, and the reviewable decision, concern a frank injury occurring on 8 September 2010, and not a claim related to the nature and conditions of his work. It follows that we have no jurisdiction to determine a nature and conditions claim. That is not to say that a claim concerning the nature and conditions of Mr Grace’s employment could not be made at another time.
MR GRACE’S EVIDENCE
Mr Grace impressed us as a truthful person, and he did his best to recall events, but he was not a good historian. His evidence was inconsistent in parts. He had trouble recalling some matters and was confused about others. He had to be prompted sometimes to answer questions or provide more information, and he agreed with propositions when it was not always clear that he appreciated their implications. Variations in the histories taken by some of Mr Grace’s doctors may be attributable to these difficulties. In any event, Mr Grace’s evidence has to be approached with caution.
Mr Grace gave evidence that, in 2010, his beat covered three streets in Bondi where the majority of addresses were apartments. He would collect mail from depots along the way and put it in a trolley which he pushed by hand. There could be 20 to 25 boxes at a block of apartments, at heights varying from below knee-height to above shoulder height. He had worked this way for about 10 years. We have no reason to doubt his evidence that he loved his work and would like to be back on his round.
Before 8 September 2010
Mr Grace had a motor vehicle accident on the way to work in December 2004. A workplace Incident Report at the time recorded that he suffered knee and shoulder pain. On 9 December 2004, Dr Affleck, his general practitioner at the time, recorded that Mr Grace had a painful right knee and neck strain. On 13 December 2004, Dr Affleck recorded that Mr Grace had noticed some “pain/spasm in both shoulders posteriorly” following the accident, but “neck feels fine now”.
Mr Grace gave evidence, which we accept, that he suffered only slight injuries in the accident and was back at work in a couple of days. The doctors who gave evidence in these proceedings all agreed that Mr Grace might have suffered some C5 nerve root irritation in the accident but no significance could be attached to this injury.
Around March or April 2010, Mr Grace started experiencing intermittent numbness and pins and needles in his right arm. His symptoms occurred about once a week and only in the evening while he was lying down propped up on pillows watching television. The pins and needles would last five to ten minutes, there was no pain associated with them and they would pass when he shook his arm. He thought they could signal a heart condition, and he had been thinking of seeing his doctor, but had put off doing so.
Mr Grace’s evidence about where he felt the pins and needles was not clear. For instance, under cross-examination, he described them as running from his elbow down into his third and fourth fingers, and later as running from his shoulder down into his middle finger as well as his third and fourth fingers. Under cross-examination, Mr Grace denied his symptoms were gradually becoming worse leading up to 8 September 2010, and said that since surgery, the symptoms in the middle finger had been relieved, but he still experiences intermittent pins and needles in the third and fourth fingers.
Also, from about April 2010, Mr Grace felt what he described in oral evidence as “fatigue” in his right arm after a long day. In the two or three months leading up to September 2010, he declined several offers of overtime because his right arm and shoulder were “consistently feeling very fatigued and weak” by the end of the day. When this happened, he would take Voltaren or Nurofen Plus. He had never experienced marked weakness or inability to lift his right arm until 8 or 9 September 2010, and he had never previously had to use his left arm to deliver mail.
Other than being fatigued at the end of a long day, there is nothing to suggest that Mr Grace’s symptoms affected his ability to perform his duties in the period leading up to 8 September 2010. Nor is there any evidence that they restricted his ability to perform household duties including hanging out washing, which his son told the Tribunal Mr Grace did “most days”.
Mr Grace’s son, Michael Grace, gave evidence that he was not aware of his father having any problems with his arm before 8 September 2010, although it was not something they had discussed.
Despite some inconsistency in his description of his symptoms, there is nothing to suggest that Mr Grace experienced more than mild, intermittent symptoms in his right arm and shoulder before 8 September 2010. There is no evidence that his symptoms interfered with his ability to perform his work or household tasks.
The incident on 8 September 2010
On 8 September 2010, about 30 to 40 minutes from the end of his three-and-a-half hour round, Mr Grace was delivering mail at a block of apartments where the mailboxes were arranged in rows of approximately five boxes by five boxes. The top row was slightly above shoulder height. Approximately six months earlier, these particular mailboxes had been raised after Mr Grace had difficulty bending down to deliver mail.
Mr Grace gave evidence that he was holding a bundle of mail in his left hand. As he lifted his right arm just above shoulder height and placed mail into the first box, he felt a sharp pain going from his right shoulder and down on the outside of his right arm to his elbow “like a little sharp pinching”. His arm felt “limp like it was harder to control it”. Pressed to describe the pain, Mr Grace said he thought it was a mild, or minor, pulled muscle.
Mr Grace completed the rest of his deliveries using his left hand. By the time he finished, the pain had gone but his arm felt limp. He went home, a distance not far from the end of his beat. He then went shopping, using his left arm to carry the shopping, and cooked dinner. After dinner, his right arm and shoulder were “a bit tender”. He took two Voltaren and thought he would be fine. He slept well.
When he woke the next day, Mr Grace could barely move his arm. He rang work, said what had happened and that it was “work-related” and was told to come in and complete an incident form.
Michael English, an Administration Officer whose occupational health and safety role included helping injured workers complete reports, completed a “P400” form with Mr Grace. A copy is in evidence. It refers to a “problem” with Mr Grace’s right arm while delivering mail but not to any pain. Mr Grace has little clear memory of completing the form but says he “would have told” Mr English he had shoulder pain because that was his reason for seeing Mr English. Mr English's evidence is considered below.
Later that day, Mr Grace saw Dr Abdul Mohammed, a workplace medical officer who diagnosed “right shoulder girdle weakness” and referred him to St Vincent’s Hospital for further investigation and management. Mr Grace gave evidence that he told Dr Mohammed he had hurt himself while on his beat the previous day. Dr Mohammed’s notes, which record a different history, are considered below.
On 15 September 2010, Mr Grace underwent a double decompression. Since the surgery he has been able to raise his arm to approximately 45 degrees but there has been no further improvement.
Did Mr Grace feel sudden, sharp pain?
The respondent contends that Mr Grace did not feel “sudden, sharp pain” while delivering mail on 8 September 2010 as he described to the Tribunal.
Mr English gave evidence as to his usual practice as he has no specific recollection of helping Mr Grace. He said he would read questions from an electronic form to the employee and insert the answers, some of which were filled in automatically from drop down menus.
The “P400” completed by Mr English with Mr Grace describes the incident as: “Holding mail in left hand, delivering with Right. Had problem reaching above chest area whilst using Right arm”. The injury is described as: “Unable to lift Right arm above chect [sic] area. Noticed whilst delivering mail on 08/09/10, as was unable to reach above chest to insert mail into boxes”.
Although the form instructs a person to describe “the injuries with the body parts that were affected, including nature and symptoms”, Mr English gave evidence that he did not ask Mr Grace specifically the nature of his injury or his symptoms. However, he gave evidence, which we accept, that the words “pain” “sudden” and “severe” are “key words” on the electronic form and, had Mr Grace used those words, he would have identified them on the form. We accept that evidence of “usual practice” may be of limited assistance but we accept Mr English’s evidence in this regard.
Dr Mohammed’s notes refer to sudden onset of “right shoulder weakness”. He also recorded that Mr Grace “presents with pain and restricted right shoulder movements” and that Mr Grace was “putting mail up in the frame above the shoulder for 2 hrs” and felt pain in his back and shoulder. His referral to St Vincent’s Hospital refers only to “weakness”. We have not heard from Dr Mohammed, so these apparent inconsistencies are not explained.
Mr Grace strenuously denies telling Dr Mohammed he was sorting mail at the time of his injury. We accept his evidence and prefer it to Dr Mohammed’s notes. Even allowing for Mr Grace’s lack of precision in recounting events, Dr Mohammed’s report appears to be incorrect. We note that Dr Edward Kremer also referred to an injury “while sorting mail” but, as set out below, we place no weight on his evidence.
Dr Green at St Vincent's Hospital saw Mr Grace saw at 4pm on 9 September 2010. He recorded “Noticed weakness first when delivering post yesterday afternoon. Difficulty reaching high post box” and “Painless (mild ache [posterior] shoulder)”. Dr Morris, neurological registrar, recorded on 10 September 2010 a sudden onset right shoulder weakness and “mild weakness when reaching up”. Mr Grace gave evidence he thought, but he “could not be 100 per cent sure”, that he told Dr Morris he had felt sharp pain.
A physiotherapist at the hospital noted on the afternoon of 9 September 2010 that Mr Grace had “weakness, nil trauma, nil pain in neck or upper limbs, nil medication, pins and needles last few months”. It is not clear whether “nil pain” meant at that time on 9 September, or on the previous day while delivering mail.
Dr Edward Kremer, a general practitioner and the first doctor Mr Grace saw after his discharge from hospital, reported that Mr Grace felt “severe pain in his neck radiating down his right arm on 8th September 2010 while he was sorting mail”. Mr Grace gave evidence that Dr Kremer must have misunderstood what he told him and that is a plausible explanation for what appears to be an error in Dr Kremer’s report.
Considering all of the evidence, in particular the absence of reference to sharp or severe pain in contemporaneous records, we are not satisfied that Mr Grace described what he felt on 8 September in those terms at the time. We accept that he felt pain but not what most people would describe as “sharp pain”. We take this to reflect on his imprecise use of language generally and not on his honesty.
In the end, little turns on precisely how Mr Grace described his pain or just how severe it was. We accept he felt some pain, that he had restricted movement and weakness, and had to finish his beat with his left hand. We accept he had not previously experienced these symptoms. There is no doubt that he suffered a sudden onset of symptoms and severe loss of function in the right arm that required a double decompression to relieve the nerve roots. Importantly, the medical evidence is that the presence or absence of pain is not a critical factor in determining the cause of his motor radiculopathy on 8 September 2010.
MEDICAL EVIDENCE
There is no dispute that Mr Grace had advanced multilevel degenerative change in his cervical spine on 8 September 2010. A CT scan on 9 September 2010 and an MRI on 10 September 2010 showed narrowing of the bony neural exit foramina from a combination of osteophytes and facet joint hypertrophy. Narrowing was severe on the right side at C4/5 and C5/6, and moderately severe at the C3/4 level and on the left at C4/5 and C5/6. There was also severe narrowing at C6/7 on the left, and moderately severe on the right side.
With some variation in their opinions, all the medical witnesses agreed that these radiological changes would have developed gradually over a period of years and would have been present prior to the incident on 8 September 2010.
There is also clear documentation of the rapid onset of severe and disabling right C5 and C6 motor radiculopathy on 8 or 9 September 2010. Several doctors at St Vincent’s Hospital recorded marked abnormal findings and weakness in the C5 and C6 innervated muscles. The radiculopathy was mainly motor, with little or no sensory loss and little reported pain.
Evidence of Dr Bentivoglio, orthopaedic surgeon
Dr John Bentivoglio saw Mr Grace in October 2011 for assessment. He has provided written reports and gave oral evidence.
Dr Bentivoglio obtained a history from Mr Grace of sudden neck pain and right shoulder pain while putting mail into a box above shoulder height, and “gross weakness” in his shoulder the following day. He concluded that, as a result of that action, Mr Grace developed an acute nerve root compression when his C5 and C6 nerve roots “became entrapped on the right side”. He noted that Dr Maxwell, orthopaedic surgeon, had offered a similar opinion in a report on 9 February 2012. (As set out below, Dr Maxwell subsequently revised this opinion.)
Giving oral evidence, Dr Bentivoglio said that movement of Mr Grace’s right upper limb and neck while delivering mail would have been sufficient to cause nerve entrapment, although he could not say why, other than that “the nerve must have been jammed - and then it swelled up and that made it worse”.
Dr Bentivoglio conceded that he did not appear to have asked about, or recorded, how Mr Grace actually moved his neck at the time. He agreed that similar movements earlier in that day, or at home, such as hanging out washing, could have produced the same entrapment but, in his view, the evidence was they had not done so.
Dr Bentivoglio thought the presence of pain on 8 September 2010 would strengthen the argument for causation by Mr Grace’s employment because it is unusual for profound motor radiculopathy to develop so quickly in the absence of obvious trauma, but he said he would have reached similar conclusions even in the absence of pain.
Evidence of Dr McGill, rheumatologist
Dr Neil McGill saw Mr Grace for assessment in February 2011. He has provided a written report and gave oral evidence.
Dr McGill noted that Mr Grace became aware of “a problem in his right shoulder/arm” while delivering mail on 8 September 2010 but that he “did not think it was any major problem”. He agreed that Mr Grace had “severe widespread degenerative change in the cervical spine” and that he developed a right C5 radiculopathy in September 2010. He agreed that pain is usually, but not invariably, associated with acute radiculopathy, and some patients present with radiculopathy but without pain.
Dr McGill agreed that Mr Grace had developed nerve root impingement but, in his view, its cause was the natural progress of his degenerative condition and not the activities at work on 8 September 2010.
Asked whether a sudden increase in symptoms indicated a traumatic cause, Dr McGill said this was “an understandable perception” but an acute presentation of cervical radiculopathy with a gradual degenerative process was not unknown: it was less common than a gradual progression, but it was not rare, and was something that clinicians did encounter.
Although Dr McGill did not inquire as to the specific action Mr Grace performed at the time, he noted there was “nothing strenuous” in what he described of putting mail in the mail box, and no fall, twist or heavy lifting was involved. Dr McGill thought it unlikely that putting mail into the mail box on 8 September 2010 made any contribution to the development of Mr Grace’s radiculopathy. In particular, he did not think that, by elevating his arm to shoulder height for whatever purpose, Mr Grace would have stretched the nerve. He believes Mr Grace “noticed a problem putting a letter in a box, but it did not cause the problem.”
Dr McGill gave evidence that he would conclude a traumatic cause of acute cervical radiculopathy in the presence of pre-existing bony foraminal stenosis where, for example, there was prolonged abnormal posture, significant impact or deceleration as in a motor vehicle accident, or a fall or direct blow. He agreed that someone with Mr Grace’s cervical spine pathology was more vulnerable than someone with a normal spine to develop radiculopathy following a minor insult, but he felt there had been no such insult in his case.
Dr McGill did not agree with Dr Bentivoglio about the mechanism of Mr Grace’s injury. He gave evidence that it is principally cervical spine movements that may affect the nerve roots rather than the sort of upper limb movement described by Mr Grace. He noted that, in photographs showing Mr Grace simulating the action of placing mail into the mail box, his neck was in an approximately neutral position.
Evidence of Professor Beran, neurologist
Professor Roy Beran saw Mr Grace for assessment in November 2011. He provided a written report and gave oral evidence.
Professor Beran obtained a history from Mr Grace that he became “acutely aware of a sharp pain in the right shoulder” as he put mail into the mailbox on 8 September 2010. On physical examination, he found less marked changes of persisting C5 and C6 radiculopathy than other doctors, but agreed that Mr Grace had developed C5 and C6 radiculopathy requiring surgery.
Professor Beran gave evidence that it was:
hard to believe that the delivering of a letter to a mailbox at or above shoulder height was the outright source of the patient’s C5 and C6 radiculopathy as there was nothing in the history provided to indicate any form of insult, other than simple movement at that time.
He concluded, given the changes seen on imaging, that it was reasonable to assume that Mr Grace’s problems were the inevitable consequence of his degenerative disease.
Professor Beran was shown the photographs of the simulated mail delivery by Mr Grace on the day in question. He observed there seemed to be no movement of Mr Grace’s neck, and he did not think it likely that the movement shown would have affected the position of nerve roots within the foramina. For a causal connection to be established, he said he would have expected a sudden sharp neck movement.
In Professor Beran’s view, the onset of Mr Grace’s symptoms was due to the slow progression of the degenerative spondylosis. He thought it likely it was the result of a previously quiescent gradual degenerative process that become noticeable at a certain point in time, and that it was human nature to look for a cause. He found no convincing history of trauma or insult that would have precipitated it.
Evidence of Dr Maxwell, orthopaedic surgeon
Dr David Maxwell saw Mr Grace for assessment in February 2012. He has provided written reports and gave oral evidence.
In a report dated 9 February 2012, Dr Maxwell noted that Mr Grace reported he developed tingling along the ulnar border of his right arm, mainly at night or when resting, prior to 8 September 2010. Dr Maxwell concluded this was “almost certainly” due to mild ulnar nerve irritation at the elbow and was a constitutional condition. He noted that Mr Grace did not report any symptoms in relation to his right shoulder or neck before the incident on 8 September 2010.
In the same report, Dr Maxwell noted Mr Grace’s pre-existing foraminal stenosis at the C5 level. He concluded Mr Grace suffered acute C5 nerve root impingement on 8 September 2010 when the action of raising his shoulder, and probably laterally flexing his neck, decreased the diameter of the foramen, entrapping the nerve which became swollen and dysfunctional, and affecting the function of the surrounding muscles. He thought that swelling and deterioration overnight was not unusual with such an injury.
Following this report, Australia Post’s solicitors provided Dr Maxwell with additional material including the clinical notes from St Vincent’s Hospital, and asked him to comment in particular on whether there was evidence of a “sudden or identifiable physiological change”, or whether Mr Grace’s condition was “the inevitable consequence” of his degenerative disease.
In a report on 8 May 2012, Dr Maxwell said the additional information had caused him to alter his opinion. Whereas previously he had believed Mr Grace had developed a “sudden onset of weakness and pain while delivering to one specific telephone [sic] box”, the history taken by the doctors who saw him initially indicated otherwise.
Dr Maxwell referred to Dr Mohammed’s report, the clinical notes, and a letter from Dr Stephen Tisch, head of neurophysiology, who wrote that Mr Grace developed “sudden neck pain and right shoulder discomfort” while posting mail, and “marked weakness in the right arm” by the following day which, Dr Maxwell noted, “did not accord with the contemporaneous notes”. He referred also to the incident report form which indicated “there was no specific incident when the pain and weakness commenced.”
Dr Maxwell agreed with Professor Beran that it was difficult to see how placing mail above shoulder height could cause Mr Grace’s cervical pathology identified and agreed it was constitutional and “not related to the nature and conditions of his work.” He agreed with Dr McGill that there was “nothing strenuous” about the action described by Mr Grace; it was “no different to his normal duties and would have been unlikely to have made any significant contribution to the development of his radiculopathy.”
Dr Maxwell thought the fatigue in Mr Grace’s upper right arm leading up to September 2010 was significant, and probably indicated the onset of mild nerve root irritation. He said symptoms of cervical radiculopathy usually come on gradually without an identifiable precipitating incident, but radicular symptoms from foraminal stenosis can develop rapidly. He thought the rapid onset of profound motor radiculopathy unusual in the absence of acute trauma but he apparently accepted it could occur spontaneously without trauma.
Dr Maxwell agreed that the severely narrowed intervertebral foramina in Mr Grace’s cervical spine had the potential to compress the nerve roots, the effect of which would be pain and loss of function in the area supplied by the nerves. He agreed it was not unusual after a nerve impingement for the nerve to swell up overnight and for function to deteriorate overnight, and he thought Mr Grace’s rapid deterioration overnight could have been secondary to the interruption of blood supply to the affected nerve roots.
A difficulty with Dr Maxwell’s revised opinion is that it was based on a reading of notes and reports the accuracy of which is not at all clear. As we have noted, even allowing that Mr Grace did not report “sharp pain” at the time, he experienced something which he likened to a pulled muscle at the point of placing mail in the mail box. As a result, given the significance which Dr Maxwell attached to the initial reports, we place less weight on his revised opinion.
Evidence of Dr Shnier, radiologist
Dr Ronald Shnier reviewed Mr Grace’s previous imaging films in April 2012. He provided a written report dated 24 April 2012 and gave oral evidence.
Dr Shnier agreed that Mr Grace’s radiculopathy could have developed from his known degenerative pathology alone but it was not uncommon for patients with cervical spondylosis similar to Mr Grace’s to have stable symptoms, then do something to “irritate the nerve” following which the nerve root becomes inflamed and symptoms become worse and do not settle without surgery.
Dr Shnier gave evidence that the correlation between radiological abnormality and symptoms varies; a patient with very narrowed foramina may have no symptoms while another with less foraminal narrowing may have severe symptoms.
It was put to Dr Shnier in cross-examination that, if putting mail into the letterbox caused Mr Grace’s symptoms, one would have expected similar symptoms previously. He agreed with the logic of that proposition but said, in practice, small nuances in movement can make the difference. For example, a person may do the same exercise in the gym for months without difficulty, then a subtle difference in movement on one occasion causes them to “put their back out”.
Dr Shnier agreed that the presence or absence of pain associated with the incident on 8 September 2010 was not critical. He said nerve pain can be caused by the inflammatory response in the compressed nerve without necessarily causing acute pain at the time of a precipitating incident. He agreed that pain is commonly, but not always, associated with acute radiculopathy and that motor radiculopathy with little or no sensory loss, could correlate with little or no accompanying pain.
Evidence of Professor Doust, radiologist
Professor Bruce Doust reported on 13 February 2012 that he had reviewed the scans of Mr Grace’s cervical spine. He noted severe chronic degenerative disc disease and widespread facet joint arthropathy of the cervical spine, with no evidence of an acute event such as a fracture, dislocation or acute disc prolapse.
Giving evidence, Professor Doust said he thought it unlikely that right upper limb movements would pull a nerve root against an osteophyte and, having seen the photograph of Mr Grace simulated movements on the day, he did not believe that movement would have any effect on a nerve root in a foramen.
Professor Doust gave evidence he could not see any evidence on the radiological scans which might cause sudden radiculopathy; there was “nothing positive to suggest an acute event … and a lot that suggests that there’s a great deal of chronic disease”.
Evidence of Dr Kremer, general practitioner
Mr Grace consulted Dr Kremer, whom he knew from his delivery rounds, when his own doctor advised he did not handle workers compensation claims. Copies of Dr Kremer’s correspondence with Australia are in evidence and Dr Kremer gave oral evidence.
Consistent with the other medical witnesses, Dr Kremer diagnosed Mr Grace as having nerve root compression. However, in his opinion, Mr Grace’s pre-existing degenerative changes were “entirely irrelevant” and his condition was due solely to his employment.
Dr Kremer’s evidence is troubling in several respects. He apparently disregards or dismisses any evidence or views contrary to his own. For example, he diagnosed Mr Grace as having disc protrusions and would not be swayed from his opinion even though scans did not show any protrusions.
Our principal difficulty with Dr Kremer’s evidence is that, despite finding the suggestion offensive, in our view he blurred the lines between doctor and advocate. He apparently has strong views about the respondent as an employer but the intemperate tone of his correspondence with the respondent discloses a lack of objectivity. We appreciate that he thought Mr Grace needed help with his claim but, in helping, he assumed the role of advocate and representative.
Dr Kremer was alone in his view as to the role of Mr Grace’s pre-existing degenerative condition. Taking these matters into account, we attach no weight to his evidence.
CONSIDERATION
It is not in dispute that Mr Grace had long-standing degenerative changes in his cervical spine. We are satisfied that he suffered no more than minor symptoms prior to 8 September 2010. We accept his evidence that, other than the sensation of pins and needles and tiredness at the end of the day, his symptoms did not interfere in his work other than to make him decline the offer of overtime several times because of fatigue.
We accept that, on the day in question, Mr Grace had carried out his duties without difficulty until close to the end of his beat when delivering mail at the Bondi address. Despite his various descriptions of what he felt at the time, there is nothing seriously to suggest he did not feel something at that point – which he identified at the time as possibly a pulled muscle – that stopped him using his right arm for the remainder of his round. Nor is there any dispute that the movement in his right arm was reduced the following morning such that Mr Grace could barely raise his arm from his side.
There is no question that, when Mr Grace was examined the following day, there was evidence of acute C5 and C6 motor radiculopathy. For Mr Grace it is submitted that the action of lifting his right arm to deliver a letter on 8 September 2010 was “the last straw”, causing insult to an already potentially compromised nerve root, followed by inflammation and swelling of the nerve root overnight, resulting in the marked weakness the following day.
For the respondent it is submitted that what occurred was a natural development in the course of Mr Grace’s progressive cervical spondylosis, that he noticed weakness when he went to deliver mail on 8 September 2010, but that neither this nor any other activity at work was a causative factor. In particular, the respondent submits, there is no evidence of trauma-based pathology.
Injury for the purposes of the Act includes, relevantly, an injury suffered by an employee that is a physical or mental injury arising out of, or in the course of, the employee's employment: s 5A(1)(b). Whereas the expression “arising out of” employment connotes a causal connection, the expression “in the course of” employment does not, and a causal connection is not necessary: Australian Postal Corporation v Burch (1998) 85 FCR 264 at 268.
If Mr Grace suffered a disturbance of his physiological state, or a “sudden or identifiable physiological change” while carrying out his duties, he will have suffered an injury in the course of his duties. It need not be a change brought about by external forces, and the mere fact that it is caused, or provoked by, an underlying “disease” does not, of itself, prevent it being classified as an “injury”: Kavanagh v Commonwealth (1960) 103 CLR 547; Kennedy Cleaning v Petkoska (2000) 200 CLR 286; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310.
The weight of the medical evidence supports the conclusion that, on 8 September 2010, Mr Grace suffered a nerve impingement which led to his severe symptoms the following day. There are differing views as to whether the particular movement he described could cause such impingement but even those who did not think such movement could lead to nerve root entrapment would rule out the possibility. Nor did the weight of the evidence lead to the conclusion that the impingement was a necessary or inevitable consequence of the disease.
The weight of the evidence is that the nerve impingement led to the sudden onset of severe radiculopathy with resulting loss of function. We are satisfied it was a disturbance of Mr Grace’s physiological state, or a sudden physiological change in the course of his employment and an injury for the purposes of the Act. The fact that it occurred in the context of an underlying degenerative condition does not alter that conclusion.
We set aside the decision under review and substitute for it a decision that the respondent is liable under s 14 of the Act to compensate Mr Grace for the injury sustained in the course of his employment on 8 September 2010.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey, Dr M Couch. .....[sgd]...................................................................
Associate
Dated 30 July 2013
Date(s) of hearing 25 - 28 February & 1 March 2013 Counsel for the Applicant Mr L Grey Solicitors for the Applicant LHD Lawyers Counsel for the Respondent Mr P Jones Solicitors for the Respondent Sparke Helmore
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