Maloinato and Australian Postal Corporation (Compensation)
[2016] AATA 834
•25 October 2016
Maloinato and Australian Postal Corporation (Compensation) [2016] AATA 834 (25 October 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3601
Re
Gay Maloinato
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member A Poljak
Date 25 October 2016 Place Sydney The Tribunal affirms the decision of Australia Post made on 15 June 2015 denying liability to compensate Ms Maloinato in respect of a claimed back injury.
.......................[sgd].................................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – degenerative changes in lower lumber spine – osteoarthritis and secondary spondylolisthesis – whether spine conditions can be considered separately – no improvement when applicant ceased work – employment did not contribute significantly to the condition or to aggravation of the condition – decision affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14
REASONS FOR DECISION
Senior Member A Poljak
25 October 2016
Gay Maloinato, the applicant, commenced work at Australia Post on 11 February 2003. She suffered from “severe pain in the lower back, right hip & leg” that she claims arose out of, or was aggravated by, her work at Australia Post (“the Condition”). She says Australia Post should accept liability for the condition under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
On 8 May 2015, Australia Post formally denied liability and says the applicant’s work is unlikely to have contributed to a significant degree to her Condition. The decision was reconsidered and affirmed by Australia Post on 15 June 2015. This is the decision under review in these proceedings (“the Decision”).
The applicant claims, in written submissions, that her employment with Australia Post between 26 August 2014 and 19 February 2015 progressively aggravated her degenerative spine at L5/S1 in the form of disc bulges. Alternatively, the applicant relies on the nature and conditions of her employment during 26 August 2014 and 19 February 2015 causing injury. The applicant defines her injury as being a further disc bulge/protrusion of the L5 disc, inside the foramen that impinged the L5 nerve.
The respondent’s position is that the applicants work did not contribute to her underlying degenerative disorder nor did it make any significant contribution to the level of her discomfort, other than momentarily.
At the conclusion of the hearing, the applicant advised that she did not wish to press her alternative argument of injury (other than a disease) and conceded that her degenerative spine disorder was a disease within the meaning of s 5B of the Act. Therefore the following are the only issues to be determined in these proceedings:
(a)Did the applicant suffer from an ailment within the meaning of the Act, or aggravation of such an ailment?; and
(b)Was the ailment or aggravation of such an ailment contributed to, to a significant degree, by the applicant’s employment with Australia Post?
RELEVANT LEGISLATION
Subsection 14(1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In subsection 5A(1) injury is defined to mean, in part:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment…..
Subsection 5B(1) defines disease to mean:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Ailment is defined in subsection 4(1) to mean:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The Applicant’s Account of her Employment at Australia Post
In 2003, the applicant commenced work at Australia Post in the Kingswood retail store. She originally started as a post office box mail sorter for two hours each morning but a few months after commencing work, increased her hours to include an afternoon shift in a customer service role.
She described her morning role as a post office box mail sorter as being quite strenuous. Amongst other things, her role involved unstacking, sorting and restacking parcels of varying sizes and weights from trolleys. The work involved “quite a bit” of bending over and lifting and at times she says she had to move and lift heavy parcels. When starting in the role the designated suitable weight to lift was limited to 20 kilograms. From about 2013, the weight restriction was increased to 22 kilograms.
In 2009, the applicant moved to a retail role which required her to work on the front counter and process transactions. She says that much of the role was relatively easy and involved serving customers; namely selling stamps, books and other items, weighing letters to be sent overseas and making sure the shelves in the shop were neat and tidy. During her five hour shift she was required to stand for the entire time minus a break of twenty minutes.
The applicant says that customers would deliver parcels for shipping over the counter and that this was the part of her job which she described as arduous physical work. The parcels could range in weight from one to twenty kilograms. She claims that the majority of the parcels received weighed between five to ten kilograms but she did receive two or three heavy parcels a day (on average) weighing approximately twenty kilograms. She says that on an odd occasion she would receive many heavy parcels in one shift but this was not the norm. Her role involved stretching forwards and transferring the parcels onto the scales to be weighed and then transferring the parcels onto a trolley for sending. Alternatively, she was required to collect parcels from storage and carry them to the counter for collection by a customer. On an occasion when she thought a parcel was too heavy she would enlist the help of her manager.
Other physical aspects of her role involved pushing trolleys full of parcels, emptying and/or restacking trolleys, receiving undelivered parcels from the parcel contractors, sorting and placing parcels in storage.
In the later stages of working in the retail role, the applicant says that the number of parcels received each day increased, which she attributes to an increase in online shopping.
The Applicant’s Condition, Medical Evidence and Findings of Fact
The applicant has experienced back symptoms from about 2006 which were previously mentioned as “arthritis”. She treated the pain in her lower back with analgesia as needed. In the latter half of 2014, the applicant states that she experienced increased pain in her lower back which she originally thought was attributed to arthritis; however the pain did not subside or lessen with her usual pain medication. In around late 2014, the applicant says the pain radiated down her right buttock and leg with occasional minor paraesthesia of the right foot.
There is no specific work related incident to which the applicant could attribute her symptoms or increase in symptoms.
Counsel for the applicant contends, in his outline of written submissions, that the aggravation of the applicant’s degenerative condition became symptomatic as the “parcel traffic increased, the maximum weight the applicant was required to lift increased and yet no additional time was allowed to do the work and no additional resources were provided, either in equipment or manpower”. I do not accept this contention. While the applicant gave evidence that the number of parcels received each day increased in the latter stages of working in her retail role with Australia Post, there is no objective evidence before me to show an increase in parcel traffic (in either size, weight nor number) or that additional time was not allowed to do the work and no additional resources were provided. Such circumstances are speculative at best.
Comcare relies on the evidence of Professor McGill, who gave evidence orally at hearing and provided two reports dated 4 May 2015 and 20 May 2016.
The applicant relies on the report of Dr Ellis dated 4 December 2015, the report of Dr Khawaja dated 20 April 2015, the reports of Dr Khalil dated 25 and 26 February 2015 and a number of imaging reports which were tendered at hearing, all of which I have read and considered. Counsel for the applicant did not call any witnesses to give evidence at hearing as Dr Ellis and Dr Khawaja were unavailable. Their reports were tendered into evidence without objection; subject to weight.
Dr Ellis opines in his report dated 4 December 2015, that as a result of the applicant’s work, she “suffered progressive aggravation of degenerative change in her lumbar spine” particularly at the L5/S1 disc. Since Dr Ellis was unable to give evidence at hearing, his opinion was unable to be tested and he was unable to provide further clarification for reaching his conclusions beyond what he says in his reports.
The applicant concedes that she suffers from degenerative changes in her lower spine at L5/S1, however claims in written submissions that such degenerative changes were progressively aggravated by her work at Australia Post.
At hearing, Counsel for the applicant sought to confine the issues to the L5 nerve which he submitted was impinged inside the lateral recess of the foramen of the disc as a result of a disc bulge. This is a considerably narrow argument and seeks to isolate the nerve impingement from the raft of other issues the applicant has with her lower spine. Namely, osteoarthritis and secondary spondylolisthesis. I am not satisfied that it is possible to isolate the nerve impingement in the way that is suggested for the following reasons.
On 4 May 2015, the applicant was examined by Professor Neil McGill, consultant rheumatologist. In his report dated 4 May 2015, he opined that:
her back symptoms are due to osteoarthritis of the facet joints, particularly at L5/S1 and to a lesser extent at L4/5. The gradual degeneration of those facet joints has resulted in compromise of the neural exit foramina leading to symptoms in the lower limbs, worse on the right.
In a CT scan of the lumbosacral spine performed on 25 February 2015, it was reported that at L5/S1:
there is a disc bulge that abuts the nerve roots within both lateral recesses and compressing the S1 nerve roots within the right lateral recess. There is uncovering of the intervertebral disc with narrowing of both foramen…and possible irritation to the nerve roots as they leave the foramen. There is severe bilateral facet joint arthrosis.
In conclusion it was reported that there was lumbar spondylosis and spondylolisthesis at L5/S1 and “compression of the S1 nerve roots within the right lateral recess at L5/S1 and possible irritation to the L5 nerve root within the foramen and as it leaves the foramen on the right side.”
Professor McGill advised at hearing that it was necessary to look at the applicant’s spine as a whole. He said this was necessary because the degeneration and osteoarthritis of the facet joints at L5/S1 of the applicant’s spine had resulted in secondary spondylolisthesis. Secondary spondylolisthesis is a condition in which one bone in the back (vertebra) slides forward over the bone below commonly resulting in disc bulges and protrusions. The condition significantly narrows the foramen space causing nerve irritation and possible impingement. The condition can cause back pain and numbness or weakness in one or both legs; which is consistent with the applicant’s symptoms. He said that it was not possible to distinguish whether the nerve was impinged inside the foramen at L5 or was irritated as it exited the foramen. This was because of the small space available in the foramen due to the degenerative condition and the proximity of the possible areas of irritation on the nerve itself.
An MRI of the lumbar spine was performed on 14 April 2015, it was reported that the applicant had degenerative anterolisthesis of L5 on S1 and mild-to-moderate mid to lower central spine canal stenoses due to mild-to-moderate disc degenerative change. Bilateral L5 exit nerve impingement, worse on the right side was present.
Professor McGill confirmed at hearing that his opinion was not altered due to the findings of the MRI. He said that the findings and conclusions contained within the MRI report were typical of degenerative spinal disease and that the imaging results did not suggest two points of nerve compression. He said that due to the narrowing of the foramen the distinction between points of compression was difficult. In regards to the imaging available he said a MRI was a much better way of identifying nerve compression compared to a CT scan.
Professor McGill helpfully explained the process of examination and tests he carried out during his examination of the applicant on 4 May 2015. Relevantly, he explained the results and difference between plantar flexion and dorsiflexion of the foot and ankle. During examination, the applicant reported dorsiflexion somewhat relieved her symptoms and plantar flexion somewhat aggravated her symptoms. Professor McGill opined in his report that this was the reverse of what he would expect for lumbar nerve root irritation. Additionally, he advised that during examination, the applicant reported discomfort when stressing her sacroiliac joints; however her level of discomfort was “not impressive”. In conclusion Professor McGill opined at hearing that the results he obtained on examination of the applicant were not indicative of nerve impingement.
On 26 February 2015, the applicant had a CT-guided epidural injection (Cortisone) on the right side of the L5/S1 epidural space. It was unsuccessful. When questioned about the lack of efficacy of the CT injection, Professor McGill stated that there could be a number of reasons for example, the injection was poorly done or it was in the wrong nerve. He stated that cortisone does not fix degenerative changes.
On 22 June 2016, the applicant underwent another CT-guided injection (Dexamethasone) at L5/S1. It is noted that the procedure was uncomplicated. The applicant claims that the injection settled her pain and is still working.
Professor McGill opined in his report that, “Osteoarthritis of the facet joints and secondary spondylolisthesis are relatively common constitutional disorders. There is no evidence (of which I am aware) linking the development or progression of those disorders with physical activity” (emphasis added). He thought:
…it would have been possible for her work duties, particularly lifting of heavier parcels, to increase symptoms at the time and for a short period thereafter. Had her work duties been a substantial contributing factor to her symptoms I would have expected a substantial improvement in the month that she has been away from work. She reported that there had been further deterioration during that period. I conclude that her employment has not contributed to the underlying disorder nor made any significant contribution to the level of discomfort.(emphasis added)
At hearing, Professor McGill said that factors relevant to the development or progression of the disorders suffered by the applicant were inheritance and age. He said that that they were relatively common constitutional disorders and employment would have no impact on inheritability (development).
Professor McGill reiterated at hearing that if work was an important factor, he expected the applicant would have reported substantial improvement since ceasing work with Australia Post. In his report dated 4 May 2015, he stated that it was not uncommon for degenerative changes to cause fluctuating symptoms. He said at hearing that the progression of her symptoms was consistent with degenerative changes. Each ache and pain experienced was not a minor trauma in itself. In other words, experiencing the symptoms did not indicate injury been caused. He opined that any effect of work on the injury was insignificant. When questioned in cross examination about the basis of this opinion, Professor McGill advised that it was based on extensive literature. This literature was not provided to the Tribunal. However, as submitted by the respondent, I accept that Professor McGill’s opinion is also supported by his extensive experience and expertise. The applicant’s evidence supports Professor McGill’s opinion. She says in her statement dated 22 August 2016, that shortly after returning to work, in about September 2014, without any specific trauma that she could remember, her back pain returned. In around late 2014, she said she started feeling not only the back pain, but also pain running down to the back of her right buttocks and down the side and back of her right leg with occasional pins and needles in her right foot. Initially, the pins and needles settled down with rest, however the low-grade pain remained.
Ms Maloinato further reported that by early 2015 the pain in her lower back and the pain running down her right leg would not let up with rest at work. She said that eventually the pain in her back turned constant, albeit that it would increase with activity. It developed so that she always had, at best, pain in her lower back that would get worse with work but returned to a low level of pain with rest and stretching.
The applicant has been off work since about February 2015. At hearing, the applicant said that since ceasing work at Australia Post her back hurts on and off and she still suffers from symptoms in her right leg. She reported sometimes suffering from extreme pain in the tailbone and couldn’t move until she had pain relieving medication. She said that in March 2015 her back pain “got worse”.
In her statement dated 22 August 2016, she said that she continues to suffer from constant low back pain and sciatica ranging from 3 to 4 out of 10 with Panadol or Panadeine and up to 7 or 8 out of 10 when she had no medication. Sometimes she gets extreme pain in her tailbone and can’t move until she has pain relieving medication. The applicant said that the pain could refer into her groin and genital area and that the pins and needles were less frequent. About two months ago (June 2016), she started having pain radiating down her left buttock and into her left thigh and down the outer aspects of her left leg.
It is plain on the evidence before me, in regards to the applicant’s reporting of symptoms, that her symptoms are progressively getting worse despite her being off work since early 2015. I am not convinced that her symptoms are relieved with rest from work; in fact they appear to be progressively more constant and have extended to her left leg. This is consistent with the evidence of Professor McGill that her symptoms are referable to osteoarthritis and secondary spondylolisthesis and not from her work. I accept Professor McGill’s evidence and am satisfied that the effects of work related activities only temporary aggravated the applicant’s symptoms.
CONSIDERATION
As already stated, Counsel for the applicant conceded at hearing that the applicant experienced a disease within the meaning of s 5B of the Act. Section 5B(1) says a disease includes an ailment (or aggravation of…an ailment):
…that was contributed to, to a significant degree, by the employee's employment…
Sub-section (3) adds that “a significant degree” means “a degree that is substantially more than material”. It is possible a number of factors might make a contribution that is “substantially more than material”.
When assessing whether the applicant’s employment made a significant contribution to the onset of her condition, I may consider a non-exhaustive list of factors referred to in sub-section (2). As it happens, I think the following factors are particularly important to my decision:
(a)The applicant worked for Australia Post since 2003 and ceased employment in about February 2015. It is fair to say, and I accept, that her duration of employment is lengthy;
(b)The nature of the tasks involved in her employment with Australia Post involved physical work. It involved repetitive bending and lifting. I accept her evidence in this regard;
(c)However, there is no identifiable incident at work (or otherwise) to which the applicant can attribute her symptoms or increase in symptoms; and
(d)The applicant suffers from osteoarthritis and secondary spondylolisthesis; particularly at L5/S1 (underlying degenerative disorder).
On balance, for the reasons already given and taking into account these factors, having careful consideration of all the evidence before me, particularly the evidence of the degenerative disorders suffered by the applicant, her evidence as to the progression of her symptoms, and the evidence of Professor McGill, I am not satisfied that the applicant’s employment with Australia Post contributed , to a significant degree, to the aggravation of, or to the Condition suffered by the applicant. It follows that Australia Post has no present liability to pay the applicant compensation for her Condition in accordance with section 14 of the Act.
DECISION
The decision under review is affirmed
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak .......................[sgd]................................................
Associate
Dated 25 October 2016
Date(s) of hearing 30 and 31 August 2016 Counsel for the Applicant Mr J de Greenlaw Solicitors for the Applicant Mr B Adams, Adams & Co Lawyers Pty Ltd Solicitors for the Respondent Mr B O’Brien, Moray & Agnew Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Statutory Construction
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Remedies
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Duty of Care
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