Mellor and Australian Postal Corporation
[2008] AATA 1026
•17 November 2008
ADMINISTRATIVE APPEALS TRIBUNAL
No: 2007/2390, 2007/6266
General Administrative Division 2008/64, 2008/2902, 2008/2906, 2008/2907, 2008/2908
Re: Thomas Mellor
Applicant
And: Australian Postal Corporation
Respondent
DIRECTION
TRIBUNAL: Dr I Alexander, Member
DATE: 17 November 2008
PLACE: Sydney
Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the Tribunal directs the Registrar to alter the text of the decision in these applications as follows:
Replace the reference to “2007/6260” on page one of the decision with “2007/6266”.
...............[sgd]..............
Dr I Alexander
Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1026
ADMINISTRATIVE APPEALS TRIBUNAL )
)
GENERAL ADMINISTRATIVE DIVISION ) No
2007/2390 2007/6260 2008/64 2008/2902 2008/2906 2008/2907 2008/2908
Re THOMAS MELLOR Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr I Alexander, Member Date17 November 2008
PlaceSydney
Decision The decisions under review are affirmed. ...................[sgd]...................
Dr I Alexander
Member
CATCHWORDS
WORKERS COMPENSATION – claim for lower back injury – claim for skin cancer condition – claim for injury to lower back and thoracic spine due to the nature and conditions of employment – claim for permanent impairment in respect of thoracic spine condition – Applicant’s employment did not contribute in a material degree to his conditions – the decisions under review are affirmed
Safety, Rehabilitation and Compensation Act 1988 – sections 4, 14, 24, 27
Comcare v Sahu-Khan (2007) 156 FCR 536
REASONS FOR DECISION
17 November 2008 Dr I Alexander, Member INTRODUCTION
1. Mr Mellor is a 60 year old man who worked for Australia Post for just over nine years between July 1998 and September 2007.
2. During this time Mr Mellor was diagnosed as suffering from various medical conditions which relevantly for the purposes of these proceedings included skin cancer, osteoporosis and a thoracic spine and lumbar spine condition.
3. Mr Mellor claims that his work at Australia Post contributed sufficiently to these conditions so that he is entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act1988 (“the Act”) on the grounds that these conditions are injuries within the meaning of s 4 of the Act.
4. Mr Mellor also claims that these work related injuries have resulted in permanent impairment and that he is entitled to compensation pursuant to ss 24 and 27 of the Act.
5. In the current proceedings Mr Mellor seeks review of seven reviewable decisions made by Australia Post that have arisen from his various applications for compensation.
6. The decisions for review include the following:
·A determination dated 13 April 2007 that Australia Post was not liable to pay compensation pursuant to section 14 of the Act in relation to a claim for “lower back injury”. The claim, dated 30 October 2006, was in fact for “lower back pain” resulting from an injury that had occurred 3 years earlier, following an incident at work on 17 April 2003. (2007/2390)
·A determination by Australia Post dated 27 November 2007 denying liability pursuant to s 14 of the Act for a compensation claim in respect of a “skin cancer condition affecting the right ear and hands”. (2007/6266)
·A determination by Australia Post dated 2 January 2008 denying liability pursuant to ss 24 and 27 of the Act for a lump sum compensation claim for permanent impairment in respect of a “thoracic spine condition”. (2008/64)
·A determination by Australia Post dated 17 June 2008 denying liability pursuant to s 14 of the Act with regard to a compensation claim for “injury to lower back and thoracic spine due to the nature and conditions of employment since July 1998”. (2008/2902)
·A determination by Australia Post dated 17 June 2008 denying liability pursuant to ss 24 and 27 of the Act with regard to a lump sum compensation claim for permanent impairment because of “a back condition of the lumbar and thoracic spine due to an incident on 17 April 2003 and the nature and conditions of ... [Mr Mellor’s] … work duties”. (2008/2906)
·A determination by Australia Post dated 17 June 2008 denying liability pursuant to s 14 of the Act with regard to a compensation claim for “skin cancer condition – ears (especially left ear), face and hands”. (2008/2907)
·A determination by Australia Post dated 17 June 2008 denying liability pursuant to ss 24 and 27 of the Act with regard to a compensation claim for permanent impairment in respect of “skin cancer condition – ears (especially left ear), face and hands”. (2008/2908)
7. After having considered all the evidence, and for reasons that are set out below, I consider the various conditions suffered by Mr Mellor are not injuries within the meaning of the Act and, therefore, his claim for compensation has not been successful.
ISSUES
8. Section 14 of the Act determines that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
9. Section 4 of the Act defined an injury as :
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
…
10. Section 4 of the Act defined disease as:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
11. Section 4 defines an ailment as any physical or mental ailment, disorder, defect, or morbid condition (whether of sudden onset or gradual development).
12. Sections 24 and 27 provide for compensation where an injury to an employee results in permanent impairment.
13. At the outset of the hearing counsel for the Applicant indicated that Mr Mellor no longer pressed his claim for compensation with respect of skin cancer of the hands or his claim for permanent impairment arising from any skin condition.
14. With regard to skin cancer, Mr Mellor claims that the “basal cell carcinoma” (“BCC”) that was excised from behind his left ear in June 2007 was caused by his exposure to UV radiation in the course of his duties as a postal delivery officer and that he is entitled to compensation.
15. There is no dispute that Mr Mellor had a BCC removed from behind his left ear and that this condition was an ailment within the meaning of the Act. The issue to be decided, therefore, is whether the BCC was contributed to or aggravated in a material degree by his employment.
16. It is also not disputed that Mr Mellor suffers from osteoporosis of the spine as well as a thoracic spine condition that manifests as an abnormal curvature of the spine (kyphoscoliosis). However, the precise nature and cause of the kyphoscoliosis is disputed.
17. Mr Mellor claims that when he slipped and fell at work in April 2003 he suffered thoracic vertebral fractures and that these fractures represent a frank injury that occurred while he was at work.
18. Alternatively, he claims that the current abnormal curvature of his thoracic spine represents an aggravation of either his osteoporosis and/or his pre-existing kyphoscoliosis of the thoracic spine, and was caused by the nature and conditions of his work.
19. He also claims that this work related injury to the thoracic spine has resulted in permanent impairment.
20. The osteoporosis and thoracic kyphoscoliosis are clearly ailments within the meaning of s 4 of the Act and therefore the issues that must be decided are:
·Did Mr Mellor suffer a frank injury to his thoracic spine in April 2003?
·If so, what was the nature of that injury?
·Alternatively, did Mr Mellor suffer an aggravation of his osteoporosis and/or his thoracic kyphoscoliosis?
·If so, what was the nature of this aggravation and was it contributed to in a material degree by his employment?
·If Mr Mellor did suffer an injury or an aggravation of his ailments, did this result in permanent impairment and, if so, what was the degree of impairment.
21. There is no dispute that Mr Mellor has suffered from lower back pain in association with a degenerative condition of his lumbar spine which would be considered an ailment within the meaning of the Act.
22. Mr Mellor claims that the nature and conditions of his work as a postal delivery officer have aggravated his lumbar spine condition such that it resulted in permanent impairment. Therefore the issues that must be decided are:
·Did Mr Mellor suffer an aggravation of his degenerative lower back condition?
·If so, what was the nature of this aggravation and was it contributed to in a material degree by his employment?
·If Mr Mellor did suffer an aggravation of his ailment, did this result in permanent impairment and, if so, what was the degree of impairment.
MR MELLOR’S EVIDENCE
23. Mr Mellor provided a statement dated 20 February 2008 and also gave oral evidence at the hearing.
24. After he left school in 1963 he was employed by Howard Smith Industries in a clerical position until the early 1980s, when he started work as a bookmaker’s clerk, a position he held until 1997.
25. As a bookmaker’s clerk he worked both indoors and outdoors, with his outdoor activity generally restricted to a covered betting ring with asphalt paving.
26. In 1997 he started work as a bus driver and this continued until he was employed by Australia Post in July 1998, where initially he worked as a night sorter, but eventually transferred to a position as a postal delivery officer. The date of the transfer was uncertain, but in his statement Mr Mellor said he worked in this position from about 1999 to 2004.
27. I note that various documents, including the Respondent’s Statement of Facts and Contentions, indicate that Mr Mellor did not start on his postal run until August 2000.
28. During this period Mr Mellor had several different postal runs and for the most part was outdoors for an average of 3 to 4 hours per day from about 8 am for 5 days per week.
29. He usually wore long trousers, a long sleeve shirt and a standard issue “baseball” cap. Australia Post provided sunscreen, but Mr Mellor admitted that he only used it “when he remembered”.
30. Initially Mr Mellor used a backpack that would weigh approximately 10 to 15 kg at the start of the run. Some time later he began to use a push trolley with two saddle bags. On one of the runs he was required to drive his car to the location and then to deliver the mail by backpack.
31. Mr Mellor described an incident that occurred on 17 April 2003, when while delivering the mail he slipped on a wet metal manhole cover and fell forward onto his knees and elbows. He got up and despite feeling a bit sore in the hands and knees he finished his run and when he got back to the delivery centre he reported the incident to his supervisor. When asked if he wanted to see a doctor he said “no.” He did not mention anything about back pain.
32. In his statement Mr Mellor indicated that in the months following this fall he gradually developed pain in his back, principally in the low back, but occasionally in the mid back.
33. In his oral evidence he said that he started to have some pain in his lower back and sometimes in both legs and at the top of his shoulders.
34. With prompting from counsel, Mr Mellor also agreed that sometimes he had pain in the thoracic area of his back.
35. Mr Mellor said that lower back pain was the most persistent and usually not severe, but merely uncomfortable, and would resolve with rest overnight. His other pains would come and go with no particular pattern.
36. As a result of the pains his wife prompted him to consult his GP, who arranged an x-ray which was done on 16 July 2003.
37. In his statement Mr Mellor indicated that the x-ray showed mid thoracic vertebral fractures and minor thoracic kyphoscoliosis and because of these findings he was subsequently referred to Dr Howard, Endocrinologist, who diagnosed osteoporosis.
38. He agreed that he had suffered back pain prior to the fall in 2003, but that this pain had been diagnosed as muscular and had improved gradually with physiotherapy.
39. Mr Mellor claimed that his pain got worse over time and was usually associated with activities at work. His description of the pain was somewhat vague, particularly with regard to the location of the pain. When pressed, he usually indicated pain in his lower back and legs and in fact did not refer to thoracic pain again during his evidence in chief.
40. In his statement Mr Mellor claimed that in late 2004, as a result of ongoing back pain, he was unable to continue as a postman and was transferred to night mail sorting duties. In his oral evidence he described the pain as uncomfortable but tolerable and confined to the lower back and legs.
41. Also In his statement Mr Mellor indicated that in 2004 he had a large skin cancer removed from his left ear.
42. In his oral evidence Mr Mellor described his activities as a night duty sorter in some detail, including walking, bending, lifting, turning and twisting.
43. He claimed that over the next two years he suffered constant pain in his lower back and legs while at work so that he would leave work early and rest, but said that he did not need to take any analgesic medication apart from an occasional “Panadol”.
44. In 2006 he was put on half shifts with lifting restrictions, but did not cope and eventually stopped work in September 2007. Since leaving work he has good and bad days and he said that walking appears to aggravate his lower back pain and the pain in his legs, particularly the calves.
45. On 30 October 2006 Mr Mellor submitted a claim for compensation, and I note that the claim states the condition was “lower back pain“ as a result of an injury that occurred on 17 April 2003.
46. During his oral evidence Mr Mellor claimed that except for playing sport at school he had not participated in any outdoor leisure activities and that he had never been a swimmer.
47. During cross examination Mr Mellor agreed that he had been trained for his duties in the delivery centre and that he had generally obeyed instructions, particularly about twisting and bending safely when carrying loads. He also agreed that apart from the incident in 2003 he had not filled out any other incident reports during his employment at Australia Post.
48. Mr Mellor conceded that when he consulted his GP in July 2003, prior to his x-ray, he had complained of lower back pain, but when challenged as to why he had not mentioned the fall to his GP until he had made his compensation claim in 2006, Mr Mellor said he could not remember.
49. He agreed that in late 2004 he consulted Dr Carr, Rheumatologist, because of pain in his hands calves, neck and shoulder, and he was worried that he may be ‘rheumatic’. Dr Carr diagnosed “cramping”, arranged for a bone scan and prescribed “quinine tablets”.
50. When asked about his back after returning to work as a night sorter, Mr Mellor said that the pain was “sometimes middle back, sometimes shoulders, sometimes lower back. It moved around a bit. Mainly lower back”.
51. When asked about various entries in the clinical notes of his GP and treating endocrinologist between late 2004 and mid 2006 that referred to various complaints of pain in parts of the body other than his back, and where he had said that his lower back pain was intermittent and not as much of a problem as these other pains, Mr Mellor said that he could not recall any of these consultations.
MEDICAL EVIDENCE
Radiology reports
52. The report of an x-ray of the thoracic spine dated 16 July 2003 noted that “there appear to be osteoporotic compression fractures in the mid thoracic vertebral bodies“ as well as “minor thoracic kyphoscoliosis convex to the right.“ I note that the report did not mention any clinical history.
53. The report of a CT scan of the lumbosacral spine dated 19 November 2004 noted osteoarthritis in the right L4/5 and in both L5/S1 apophyseal joints, but no other abnormalities. The report also noted that the cause of the patient’s claimed sciatic symptoms had not been demonstrated.
54. The report of a CT scan of the lumbosacral spine dated 22 August 2006 noted “mild degenerative changes in the right L4/5 and in the left L5/S1 facet joints”, and no other significant osseous, nor soft tissue lesions.
55. Two reports dated 5 September 2006 and 4 October 2006 noted CT guided injections of corticosteroid into the right L4/5 and left L5/S1 facet joints.
56. The report of a chest x-ray dated 26 October 2006 noted “wedging of several of the mid thoracic vertebrae with loss of 20-30% of vertebral body height presumably on the basis of osteoporosis”, with an additional comment that this had not changed since December 2004.
57. The report of a thoracic spine x-ray dated 21 November 2006 noted “anterior wedging of the T7 and T8 vertebral bodies consistent with mild compression fractures similar though less marked findings noted at T6”, as well as “a minor midthoracic curve convex right noted and the thoracic kyphosis is increased.”
58. The same report noted, regarding an x-ray of the lumbar spine, “transitional anatomy at the lumbosacral level with a transitional S1 vertebra”, and described an apparent anomaly of “the posterior elements on the left at L5 with possible hypoplasia”. The report also noted some disc space narrowing at L5/S1 level and some small osteophytes at several levels.
Dr Howard’s letters
59. In a letter dated 29 July 2003 Dr Howard, Endocrinologist, noted that Mr Mellor had been recently diagnosed with osteoporosis following an x-ray on 16 July 2003 that showed mid thoracic vertebral fracture.
60. She noted that she understood that this had followed an episode of acute chest pain that resolved quickly and had not recurred, but nevertheless had been extensively investigated, including a stress test. She also commented that Mr Mellor had admitted to a one month history of lower back pain at work that had been associated with difficulty bending over, but there was no mention of any thoracic pain.
61. On physical examination she noted an obvious thoracic kyphoscoliosis but no vertebral tenderness.
62. Dr Howard concluded that Mr Mellor’s risk factors for osteoporosis included his history of smoking, excess alcohol intake on weekends and minimal dietary calcium intake.
63. She continued the drug treatment started by the GP and recommended physiotherapy review to assess appropriate occupational modifications so that Mr Mellor could continue to work as a postman. She commented that retirement would not be desirable as immobility can worsen osteoporosis.
64. In a letter to Australia Post dated 16 October 2003 Dr Howard certified that Mr Mellor was fit for all duties with the exception of a back pack and that this would be long term.
65. In a follow up letter dated 28 April 2006 Dr Howard noted that it was 14 months since she last saw Mr Mellor and that he was now working as a night sorter and had intermittent lower back pain.
66. She added, however, that he suffers from “side pain” that is more bothersome than his back pain and that no cause for this pain has been diagnosed.
67. Dr Howard also noted that Mr Mellor’s bone mineral density scan had improved to a stable value.
Dr Carr’s letters and report
68. In 2004 Mr Mellor was referred by his GP to Dr Carr, Rheumatologist, with regard to concerns about “polymyalgia rheumatica”.
69. In a letter dated 2 December 2004 Dr Carr noted that he had obtained a history from Mr Mellor that while working as a postman in “2002” he had a heavy fall when he slipped on a covered manhole onto his knees and developed some back pain “in a thoracic spine”, but as the pain was not “particularly excruciating“ he continued to work. He added that Mr Mellor told him that one month later x-rays of his thoracic spine showed compression fractures and that he was diagnosed as suffering from osteoporosis.
70. I note that this history is not consistent with Mr Mellor’s own evidence.
71. Dr Carr also commented that even prior to the fall Mr Mellor had complained of postural backache with prolonged standing, which was understandable in view of his thoracic kyphosis.
72. Dr Carr noted that following some x-rays showing “compression fractures” Mr Mellor was referred to Dr Howard, who started him on treatment for osteoporosis that had increased his bone density over the ensuing twelve months.
73. Dr Carr obtained a further history of a 6 week period of feeling listless and tired with dull aching pain in the calves, left neck and shoulder, particularly when getting out of bed in the morning.
74. On physical examination Dr Carr found no abnormality apart from the thoracic kyphosis, and was unable to explain the cause of Mr Mellor’s symptoms.
75. In a letter dated 9 December 2004 Dr Carr wrote that he was not sure what was going on with Mr Mellor as he could find no abnormality from “the physical point of view”, and noted that when he was active Mr Mellor found that his calves were painful and cramping.
76. Dr Carr also reported the results of various investigations including a bone scan that showed some minor arthritis in both hips and a CT scan of the lumbar spine that provided no explanation for Mr Mellor’s pain.
77. Dr Carr did not make a diagnosis and indicated that he had nothing else to offer apart from trying “Quinate to see if this stops the cramps”.
78. In a medico-legal report dated 16 August 2007 Dr Carr noted that he had seen Mr Mellor on two occasions in 2004 and provided a summary of previous consultations.
79. Dr Carr stated that he could find no association between Mr Mellor’s employment and his aches and pains, and that his “thoracic pain” was largely related to degenerative changes in his thoracic spine and lumbar spine. He also commented that it was possible that prolonged standing and Mr Mellor’s work as a postal officer and mail sorter could aggravate postural mechanical backache and make him feel more uncomfortable, but this could not be attributed to the fall in April 2003.
Dr Maxwell’s evidence
80. In a medico-legal report dated 23 November 2006 Dr Maxwell, Orthopaedic and Spinal Surgeon, noted that Mr Mellor gradually started to suffer back pain following a fall in 2003 and was subsequently diagnosed with osteoporosis and “fractures”. Mr Mellor confirmed that at the time of the fall he had not experienced any back pain.
81. Mr Mellor told Dr Maxwell that he suffered mainly from lower back pain and sometimes neck pain and thoracic pain. When sitting or standing the pain radiated to the front of the thighs but was not associated with numbness or pins and needles in his legs.
82. Dr Maxwell reviewed all the available x-rays and disagreed with the report of 16 July 2003. He expressed the opinion that the wedging of the thoracic vertebrae was due to the “normal wedging consistent with the thoracic kyphosis”, and that there was no evidence of a compression fracture.
83. Dr Maxwell also stated that the CT scan of the lumbar spine done on the 19 January 2004 was normal with no evidence of nerve root compression.
84. He also stated that the thoracic spine x-ray done on 21 November 2006 showed smooth kyphosis of the thoracic spine with mild wedging of the T7 and T8 vertebral bodies, with no evidence of compression fracture. He added that there was no acute change in the anterior heights of any of the thoracic vertebrae and no associated buckling, and again expressed the opinions that the x-ray showed physiological wedging associated with idiopathic kyphosis.
85. Dr Maxwell was of the opinion that radiologists often over-diagnose thoracic compression fractures in the elderly, and particularly in osteoporotic patients, in order to assist with Government subsidy for expensive medication used to treat osteoporosis.
86. Dr Maxwell also commented that the bone scan done on 7 December 2004 showed no evidence of a compression fracture, either recent or in the previous six months. He added that the bone density study done on 31 March 2006 suggested mild osteopenia.
87. I note that this study was performed about three years after Mr Mellor started treatment for osteoporosis and clearly demonstrated a significant improvement in bone mineral density from the time of diagnosis. In his oral evidence below, Dr McGill confirmed that the measurement recorded on this occasion was consistent with osteopenia and not osteoporosis.
88. On physical examination, Dr Maxwell noted an increased thoracic kyphosis associated with increased lumbar lordosis and poor tone of the trunk muscles. He found no other significant abnormalities, and in particular found no restriction of movement.
89. Dr Maxwell concluded that there was no evidence of work related injury to either the thoracic or lumbar spine and that Mr Mellor’s back pain was constitutional with mild facet joint overload as a result of poor posture and poor tone of the trunk muscles.
90. Dr Maxwell recommended an intensive exercise program.
91. In a subsequent report dated 23 August 2007 Dr Maxwell noted that Mr Mellor told him that he had first had physiotherapy in 2001 and 2002 because of low back pain and had been given exercises to build up his stomach muscles.
92. Dr Maxwell also noted that Mr Mellor’s current symptoms were discomfort in the mid and lower back with the lower back being worse, and that he normally felt good when he started at work, but then felt discomfort after an hour and by the end of the shift he had “had it”.
93. Dr Maxwell again reviewed the available x-rays and noted that the thoracic spine x-ray done on 16 July 2003 showed increased physiological wedging of the mid thoracic vertebrae due to a combination of kyphosis and scoliosis. He also commented that the L5 vertebra is transitional, which is a congenital abnormality of no significance.
94. With respect of the spine x-rays done on 21 November 2006, Dr Maxwell noted increased but consistent physiological wedging at T6, T7 and T8 and added that the “posterior border of T6 measures 30mms and the anterior 23mms and the posterior border of T7 measures 30 mms and the anterior 23 mms. There is no acute change in the height of these vertebrae to suggest that there is a compression fracture of one or either vertebrae. There is no buckling of the anterior cortex. The wedging is physiological”.
95. Dr Maxwell expressed the opinion that thoracic kyphosis is a physiological condition that has a standard distribution with some individuals having an increased kyphosis, and that associated with this increased thoracic kyphosis there is increased wedging of the vertebrae, particularly those at the apex of the kyphosis at T6,T7 and T8.
96. Dr Maxwell stated that compression fractures of the thoracic vertebrae are usually caused by a fall on the buttocks causing a compression force transmitted through the axial skeleton and that the forces on the thoracic spine with a fall where you land on your hands and knees are extension forces and would not cause compression fractures. Also, he noted that Mr Mellor had not suffered any pain at the time of the fall and that in a man of his age compression fractures would always be associated with bleeding and inflammation and incapacitating pain.
97. Dr Maxwell concluded that Mr Mellor had thoracolumbar kyphoscoliosis that may alter the mechanics of his spine, causing some increased facet joint loading and discomfort, and that his lower back pain is secondary to minor degenerative changes and is constitutional, and not due to the nature and conditions of his work.
98. Dr Maxwell added that Mr Mellor was suffering from predominantly low back discomfort, a common symptom that he stated got worse with physical activity, but there was no indication that the physical activity was harming him or altering the pathology.
99. In a supplementary report dated 23 August 2007 Dr Maxwell assessed the degree of WPI according to Table 9.16 of the Comcare Guide as 0%.
100. In another supplementary report dated 14 July 2008 Dr Maxwell stated that in his opinion there was no evidence that Mr Mellor had a spine injury or that the nature and conditions of his employment caused or aggravated his symptoms.
101. He added that Mr Mellor had increased postural kyphosis, that had been present all his life, and very minimal degenerative changes in his x-rays for a man of his age.
102. Dr Maxwell stated that the incidence of chronic back pain in the general community is high, that the cause is often obscure and psychosocial factors may be more important than physical ones. X-rays may not be relevant as the x-rays of asymptomatic and symptomatic individuals may be identical.
103. Dr Maxwell was of the opinion that Mr Mellor’s complaint of lower back pain was constitutional and probably related more to his personality than any underlying pathological process.
104. In his oral evidence during cross examination Dr Maxwell confirmed that, notwithstanding the opinion of the radiologist and Professor Sambrook, in his opinion the x-ray appearance of the thoracic vertebrae in Mr Mellor’s spine on 16 July 2003 did not represent compression fractures, and that his opinion was based on his own examination of the films.
105. He stated that in his many years of experience as a spinal surgeon he has noted that in patients with osteoporosis who have wedging of the thoracic vertebrae, radiologists have tended to over-diagnose compression factures of the thoracic spine in order to assist these patients to meet the requirements for various government and other subsidies for the treatment of their osteoporosis.
106. Dr Maxwell went on to provide a comprehensive description of the various pathological processes that on an x-ray may produce the appearance of wedging of the thoracic spine and that need to be distinguished from compression fractures. Relevantly, he stated that the appearance of a compression fracture of a vertebra is fairly typical with significantly reduced anterior height of the vertebral body compared to the adjacent vertebrae, often with buckling of the anterior cortex. He added that compression fractures are associated with haemorrhage, acute pain and disability.
107. When questioned about the circumstances of Mr Mellor’s fall in April 2003, Dr Maxwell confirmed his previously stated opinion that a fall forward onto the knees causes an extension and not a compression force on the spine, and that one cannot get a compression fracture through extension. He added that to get anterior wedging as a result of a compression fracture significant flexion of the thoracic spine would be required and that this typically occurs with a fall onto the buttocks.
Dr Sew Hoy’s letter
108. In a letter to Mr Mellor’s GP dated 15 February 2007 Dr Sew Hoy, Orthopaedic Surgeon, noted that Mr Mellor presented with a 3 year history of activity related lower back pain with “gradual deterioration in his symptoms”. On occasion the pain radiated to the anterior aspect of both thighs above the knees.
109. Dr Sew Hoy noted that Mr Mellor was reluctant to take analgesia and that he was diligent in performing exercises at home that have helped his symptoms.
110. On physical examination he noted increased thoracic kyphosis and some reduced range of movement of the lumbar spine and commented that Mr Mellor reported that his abnormal spinal alignment had been present since adolescence.
111. Dr Sew Hoy noted that the CT scan of the lumbar spine done on 22 August 2006 showed some mild lower facet joint degenerative changes and no disc protrusion or foraminal stenosis.
112. He also commented on the spine x-rays done on 21 November 2006 and noted that they demonstrated thoracic kyphosis “with Schmorl’s nodes present to the variable end plates consistent with Scheuermann’s disease”, as well as minor L5/S1 disc space narrowing. He made no mention of thoracic compression fractures.
113. Dr Sew Hoy concluded that Mr Mellor had non-specific longstanding lower back pain with symptoms that are exacerbated with upper body activity, but no features to suggest nerve root compression.
114. He also noted that Mr Mellor’s increased thoracic kyphosis with anterior wedging of a number of thoracic vertebrae is possibly associated with increased lumbar lordosis and subsequent lumbar degeneration and facet degenerative change.
115. Dr Sew Hoy advised Mr Mellor to treat his back pain symptomatically and to persevere with his core strengthening physiotherapy directed exercises.
Dr Ryan’s report
116. In a brief report dated 22 May 2007, Dr Ryan, GP, noted that Mr Mellor had first come to the attention of the practice in mid 2003 with back pains and muscle aches.
117. Dr Ryan stated that while working as a postman Mr Mellor had a fall and that x-rays showed wedging of the thoracic vertebrae suggestive of a “crush fracture” associated with osteoporosis.
118. Dr Ryan then stated that Mr Mellor found walking tiring and that ”lugging the heavy postbag was a chore” but that the accident was “the defining event in his inability to continue”.
119. He also noted that Mr Mellor often complained of musculoskeletal pains that forced him to give up his postal run and return to mail sorting, but that he now finds this too onerous because of persistent back pain and “neuropathic pain into his thighs and buttocks”.
Professor Sambrook’s evidence
120. In a medico-legal report dated 19 July 2007 Professor Sambrook noted that Mr Mellor had worked for Australia Post for about 9 years both as a postal delivery officer and night sorter.
121. The Professor stated that Mr Mellor told him that he had experienced some low back discomfort when carrying his postman’s back, but that he felt that his back problems largely started around 2003 after an incident where he slipped and fell on a wet manhole cover. Mr Mellor described falling forward on his knees and elbows, but denied any acute back pain.
122. The Professor noted that Mr Mellor’s current symptoms included occasional thoracic pain, but predominately low back pain that is mainly present at work with minimal symptoms at home and improved by rest. Occasionally the pain radiated to the thighs or calves, but without any paraesthesia.
123. Professor Sambrook reviewed the various radiological investigations and commented that the x-rays of the thoracic and lumbar spine performed on 16 July 2003 showed mid thoracic wedging with a measured height loss of 44% of T6, consistent with a vertebral fracture.
124. On physical examination Professor Sambrook noted increased thoracic kyphosis and mild scoliosis with thoracolumbar movements in various directions.
125. Professor Sambrook concluded that Mr Mellor suffers from osteoporosis with mid thoracic wedge fractures and this explained his thoracic pain.
126. I note that it was not clear from the Professor’s report whether he considered that Mr Mellor had suffered multiple thoracic wedge fractures or a single fracture at T6.
127. The Professor also concluded that Mr Mellor had degenerative changes in the lower lumbar spine with a transitional vertebra of the lumbosacral level and narrowing of the disc, and that this condition was the primary cause of his low back pain.
128. Professor Sambrook stated that osteoporosis is a constitutional condition unrelated to Mr Mellor’s work, although he may have aggravated his thoracic fractures in the fall in April 2003. The Professor commented that as no x-rays were done for 3 months after the incident it would be “difficult to be specific about their actual date of onset“, but added that the fact that Mr Mellor did not develop pain until months later did not mean that he may not have aggravated the wedge fractures in the fall.
129. In considering Mr Mellor’s work conditions in regard to his lumbar degenerative condition, Professor Sambrook noted that transitional vertebrae are primarily constitutional and are associated with increased disc degeneration. He added that although there is a temporal relationship between Mr Mellor’s lower back pain and his work duties, the worsening of symptoms may be temporary and, on balance, it was not clear that work had significantly worsened his underlying condition.
130. Professor Sambrook assessed Mr Mellor as having 18% whole person impairment (WPI) according to Table 9.16 of the Comcare Guide in regard to the thoracic spine on the basis that he had a compression fracture of at least one vertebral body of 25-50%.
131. Also, Mr Mellor had no significant impairment rating according to Table 9.1.7 of the Comcare Guide in regard to the lumbar spine as he had no radicular symptoms, no alteration of motion segment integrity or fractures in this region.
132. In a supplementary report dated 8 August 2007 Professor Sambrook answered various questions in response to a letter from the Applicant’s solicitor.
133. He confirmed his earlier opinion that although there was a temporal relationship between Mr Mellor’s symptoms and his work activities, he did not think that the work conditions worsened permanently or accelerated the underlying degenerative condition, but may have caused a temporary aggravation.
134. With reference to osteoporosis, Professor Sambrook commented that this is a constitutional condition that does not normally cause problems until a fracture occurs and expressed the opinion that the fall in 2003 was likely to be the “onset of the fractures complicating the osteoporosis” and that the fall caused or aggravated the thoracic vertebral fractures.
135. In his oral evidence Professor Sambrook stated that it was not his opinion that the mid thoracic wedge fractures were caused by the fall in 2003, but rather that Mr Mellor had “wedging or fractures” in his thoracic spine and, as there were no x-rays available done prior to the fall, he could not be sure when this had occurred. He went on to say that his view was that it was possible that the thoracic spine change had occurred as a consequence of the fall, and if it had been present to some extent, it was possible that it was made worse by the fall.
136. In response to a question from the Tribunal, the Professor conceded that the fall may have had no bearing on the fractures at all, but added that because Mr Mellor had told him that three months after the fall he had developed mid thoracic pain and that it seemed likely that “the fall had something to do with that region becoming symptomatic”.
137. After considering these various possibilities, Professor Sambrook concluded that, on the basis of Mr Mellor’s thoracic spine symptoms, the more likely scenario was that the fall had caused some worsening of the pathology because “if there had been a fracture caused by the fall you would have expected the pain would come on pretty soon after that”. The Professor said that the worsening referred to the wedging and not to the osteoporosis itself, which was a constitutional disorder that remains asymptomatic until there is a fracture. He also added that in an individual with severe spinal osteoporosis, like Mr Mellor, any sudden jar to the spine could cause or worsen a fracture.
138. I note that the Professor appeared to suggest that in a person suffering from osteoporosis a fracture would usually be associated with pain that would be expected to occur soon after the fracture, which appears to be consistent with the evidence of Dr Maxwell above and Dr McGill below.
139. On the matter of Mr Mellor’s lower back symptoms, Professor Sambrook indicated that he had considered them to be of a temporary nature as Mr Mellor had told him when he saw him in July 2007 that the pain was present mainly at work and was minimal.
140. On an assumption put by counsel for the Applicant that Mr Mellor’s symptoms had persisted, and perhaps even got worse after he had stopped work in September 2007, the Professor agreed that if any worsening was no longer temporary and of a more permanent nature it was possible that work had been a contributing factor.
141. In response to a question from the Tribunal, Professor Sambrook indicated that individuals with osteoporosis can suffer small wedge fractures of the spine without suffering symptoms and remain asymptomatic for years until the wedging progresses sufficiently to cause symptoms. He also commented that Mr Mellor’s original bone density was such that his condition would have been present for a number of years.
Dr McGill’s evidence
142. In a medico-legal report dated 30 August 2007 Dr McGill, Consultant Rheumatologist, noted that Mr Mellor had been aware of a curvature of his thoracic spine since he was a young man in his twenties or early thirties, but did not recall experiencing any pain in association with this condition. He added that the description provided by Mr Mellor was consistent with a thoracic kyphosis.
143. Dr McGill confirmed that Mr Mellor had told him that he did not experience any back symptoms at the time of the fall or immediately thereafter and that when he consulted his GP in July his complaint was low back pain.
144. Mr Mellor told Dr McGill that the low back pain was most troublesome and that when resting or sitting watching television he was okay but that his back would play up with prolonged walking. He also complained of low back pain at work and described it as uncomfortable, but not bad enough to require analgesic medication.
145. Dr McGill also noted that Mr Mellor intermittently experienced pain in both thigh and legs and occasional soreness in the region of the scapulae and upper trapezius but no paraesthesia or numbness.
146. On physical examination Dr McGill noted a moderate thoracic kyphosis with minor rotatory scoliosis and normal lumbar lordosis. He also found restricted range of movement of about 50% of normal in all regions.
147. Dr McGill reviewed the relevant x-rays and noted that the thoracic spine x-ray of 16 July 2003 showed what he considered to be a moderate thoracic kyphosis with minor scoliosis. He also noted a wedged appearance of several of the mid thoracic vertebrae and added that this could be explained on the basis of osteoporotic fracture or long standing constitutional kyphoscoliosis. Also, that although the gradual change in the degree of wedging throughout the thoracic region favoured the long standing kyphoscoliosis rather than fracture, but that either cause could account for the appearance.
148. Dr McGill commented that a chest x-ray of 26 October 2006 demonstrated wedging of several mid thoracic vertebrae and that there had been no change from previous films in December 2004.
149. Dr McGill’s assessment of the other radiological studies was similar to other reports, but he did note that although the bone scan of 7 December 2004 showed no evidence of thoracic fracture, this did not exclude a fracture having occurred in April 2003.
150. Dr McGill noted three bone density measurements over a three year period that showed significant improvement from an initial lumber T score of -3.8 in July 2003 to a lumbar T score of -2.3 in March 2006. In his oral evidence Dr McGill stated that a T score of less than -2.5 defines osteoporosis and a T score between -1 and -2.5 is called osteopenia.
151. Dr McGill reviewed various medical reports and concluded that the x-ray appearance of Mr Mellor’s thoracic spine was a reflection of long standing kyphoscoliosis, but agreed with Professor Sambrook that it was “not possible to exclude the possibility that he has also had some vertebral fractures”.
152. However, he clarified his opinion by stating that although it was possible that there had been minor additional wedging due to fracture, the gradual progression of the consistent degree of wedging throughout Mr Mellor’s thoracic spine was against the possibility of a superimposed fracture.
153. Also, Dr McGill expressed the opinion that as Mr Mellor did not have back pain at the time of, nor in the few weeks after, the fall, it was unlikely that he had suffered a thoracic spinal fracture at that time. However, he appeared to contradict himself by saying that people with osteoporosis can suffer vertebral fracture without experiencing major back pain at the time.
154. I note that he explained this apparent contradiction during his oral evidence as set out below.
155. On the issue of Mr Mellor’s lower back condition, Dr McGill diagnosed non specific long standing lower back pain in association with degenerative changes in the lumbar facet joints, a congenital anomaly at the lumbosacral junction and probably some mild degeneration of the lumbosacral disc.
156. Dr McGill concluded that neither of Mr Mellor’s thoracic or lumbar spine conditions were likely to have been influenced by the fall in April 2003.
157. With regard to Mr Mellor’s lower back symptoms, Dr McGill said his work activities, such as bending and prolonged standing, would not aggravate his underlying pathology or influence the level of the symptoms other than at the time of doing the activities and for a brief period thereafter.
158. In a supplementary report dated 19 July 2008 Dr McGill again reviewed various medico-legal reports and concluded that he did not believe that the nature and conditions of Mr Mellor’s employment have materially aggravated either his thoracic or lumbar spine conditions.
159. In his oral evidence Dr McGill agreed that the condition of osteoporosis does not cause pain until a fracture occurs and added that when a fracture occurs an individual would normally experience a sudden onset of substantial pain.
160. He also explained that if the fracture in the front of a vertebra is badly wedged, particularly with multiple fractures, the fracture may heal in an abnormal position and this may result in ongoing pain.
161. On the issue of asymptomatic wedge fractures, Dr McGill explained that in severe osteoporosis it was known that people will sometimes have radiological evidence of fracture despite a lack of any major episodes of pain that they can recall. He expressed the opinion that it was possible for people with osteoporosis to have fractures without experiencing much pain, but that in his experience this was exceptionally rare. He described a scenario in which, because of some event, a person with osteoporosis may have an x-ray which shows a fracture that was not present on previous x-rays, but that the person does not complain of pain at the time. Dr McGill indicated that in this situation it was impossible to know whether the particular event leading to the x-ray was the event that had caused the fracture or whether the fracture had occurred at another time and the person simply was unable to recall an episode of pain.
162. In cross examination Dr McGill agreed that the fact that Mr Mellor did not complain of back pain at the time of his fall in April 2003 did not exclude the possibility that a vertebral fracture had occurred at that time, but added that it made it unlikely.
163. Dr McGill agreed that in addition to the wedging resulting from Mr Mellor’s longstanding kyphoscoliosis, the possibility of some additional minor wedging as a result of fracture could not be excluded, but added that this was not the most likely explanation for the x-ray appearance. He explained that the x-ray shows a gradual progression in the degree of wedging and if there had been a fracture one would expect to see an abrupt change. He also explained that with longstanding kyphoscoliosis the wedging occurs at multiple levels with a gradual progression from one vertebra to the next as was evident in Mr Mellor’s case.
164. Dr McGill agreed that the type of fall Mr Mellor had could have caused a fracture but emphasised that if a fracture had occurred it was very likely to have caused pain immediately or within the next few days, and that a painless fracture, although possible, was rare. He said that an interval of three months between the fall and the onset of symptoms made a relationship between the fall and the symptoms very unlikely, even if he had an asymptomatic fracture, because most osteoporotic fractures heal within six weeks and it would not make sense to have an onset of pain three months later.
165. Dr McGill revisited his earlier evidence that a healed fracture may result in later pain and explained that this may occur if the fracture had caused an angular deformity which could produce ongoing mechanical symptoms. He added that this was clearly not the situation in Mr Mellor’s case as he had a smooth kyphoscoliosis with no angular deformity.
166. In response to a question from the Tribunal, Dr McGill agreed that Mr Mellor had wedging in several thoracic vertebrae and expressed the opinion that minor acute fractures occurring at all levels of the thoracic spine at the same time “never happens”.
167. Dr McGill accepted that Mr Mellor’s work activities could have caused lower back symptoms at the time of doing the activities and that the onset of these symptoms could be seen as temporary aggravation of his lower back condition, but not an aggravation of the underlying pathology. He added that when you have an abnormal spine certain activities can cause pain, but that does not mean that the activity is causing any harm to the back or changing the pathology.
168. He agreed certain postures may put strain on the spine, but that this is not necessarily harmful, and added that physical activity is considered to be beneficial in the treatment of degenerative spinal disease.
169. Finally, after having considered the nature of Mr Mellor’s work, the history given by him, the physical examination and the radiological findings, Dr McGill did not agree with the proposition that his work activities had caused an aggravation of the pathology of Mr Mellor’s spine or had any effect on his spine symptoms or structure other than at the time of actually doing the activities.
Dr Bodel’s evidence
170. In a medico-legal report dated 19 December 2007 Dr Bodel, Orthopaedic Surgeon, noted that Mr Mellor had a gradual onset of pain at work “in mid 2002“, which he associated with ”the nature and conditions of work in general as there was no specific accident or injury”, and was treated with some physiotherapy. He then noted that following a fall in April 2003 Mr Mellor deteriorated with increasing back pain and that in July 2003 x-rays showed evidence of “probably osteoporosis as well as longstanding kyphoscoliosis“.
171. Dr Bodel also stated that Mr Mellor reported that he knew that he had suffered from kyphoscoliosis for some years, which had been asymptomatic, but that he now had “widespread thoracolumbar pain” that was aggravated by any bending, twisting or lifting.
172. On physical examination Dr Bodel noted increased kyphoscoliosis in the mid thoracic region associated with increased lumbar lordosis and reduced range of movement in some directions that was associated with pain.
173. Dr Bodel reviewed the relevant x-rays and listed brief comments about each. Relevantly he commented on all the spine x-rays and noted kyphosis with multilevel wedging, but no acute fracture.
174. With reference to the CT scan of the lumbosacral spine of 19 November 2004 he commented that there was “minor degenerative change in the facet joints at L4/5 and L5/S1”.
175. After reviewing various medical reports Dr Bodel diagnosed “soft tissue aggravation of longstanding kyphoscoliosis and degenerative change in the thoracic spine and in the lumbar spine as a result of the episodes of injury that have occurred at work and his work in general”.
176. He then added that the increasing symptoms in the back are causally linked “to the episodes of injury at work but the underlying pathology is primarily constitutionally based on the basis of osteoporosis and a longstanding kyphoscoliosis”.
177. On the matter of vertebral fracture Dr Bodel stated that Mr Mellor did “indeed have mid-thoracic wedge fractures but these have not been caused by the fall”, and noted that the bone scan had shown no increased uptake.
178. However, Dr Bodel subsequently stated that he could see no hard evidence that any wedge compression fracture had occurred either at the time of the fall in April 2003 or at any other time.
179. Dr Bodel also stated that he agreed with the overall assessment by Dr McGill in regards to Mr Mellor’s spinal pathology.
180. In a supplementary report dated 26 February 2008, in response to questions raised by the Applicant’s solicitor, Dr Bodel confirmed that Mr Mellor has “suffered a material soft tissue aggravation of long standing kyphoscoliosis and degenerative change in the thoracic region and in the lumbosacral area and that material aggravation is causing ongoing work related pathology” and that the “material aggravation will continue indefinitely”.
181. I note that Dr Bodel’s opinions appeared to rely substantially on a somewhat superficial history provided by Mr Mellor and in my view his analysis and explanation for his opinions was incomplete.
182. In his oral evidence Dr Bodel confirmed his opinion that the nature and conditions of Mr Mellor’s work were a material aggravating factor with regard to his “complaint of pain”.
183. Dr Bodel indicated that he believed that Mr Mellor’s work activities and the fall had caused additional damage to the underlying constitutional ailments and stated that “historically there … [has been] … some material change in his bodily functions that have led to increasing pain in that region, and that’s the material aggravation of the underlying pathology”, but agreed that there had no been change in the x-rays or underlying pathology itself.
184. Dr Bodel’s opinion was based on Mr Mellor’s claims of increasing and persistent symptoms since the fall in 2003 and clinical findings that showed pathology that could be associated with these symptoms.
185. Dr Bodel confirmed that he did not believe that Mr Mellor suffered an acute fracture at the time of the fall, but that the fall had aggravated “the whole abnormal spine” and not any one particular pre-existing fracture.
186. I note at this point that I found Dr Bodel’s oral evidence to be confusing, somewhat internally inconsistent and therefore not particularly helpful.
Dr Jander’s report
187. In a medico-legal report dated 12 March 2008 Dr Jander, Consultant Occupational and Environmental Physician, stated that he had seen Mr Mellor on five occasions between October 2006 and May 2007.
188. Dr Jander noted that following his fall in April 2003, Mr Mellor started to have progressive pain in the back localised to the lower thoracic spine and that this pain was quite severe, burning in nature and radiated to the back of his legs and thighs.
189. Dr Jander did not clearly indicate how soon after the incident the severe thoracic pain occurred, but gave the impression that although it had not occurred at the time of the fall he thought that it had occurred soon after the end of the shift.
190. On physical examination Dr Jander noted increased thoracic kyphosis and lumbar lordosis with reduced range of spinal movement in all directions.
191. He also noted tenderness in the back muscles and reduced strength in the upper and lower limbs, but provided no opinion as to the significance of these findings, or on which occasion he had performed the physical examination.
192. Dr Jander then reviewed various x-ray reports, listed a number of work restrictions that should have been in place on “26th October”, and then expressed the opinion that the incapacity he found on examination was a direct result of the injury that Mr Mellor had sustained at work on 17 April 2003.
193. Dr Jander then stated that it is important to note that “a patient can have osteoporosis and that they may experience an acutely painful vertebral collapse following an apparently minor activity”. Therefore, he concluded that on balance Mr Mellor’s work was a “substantial contributing factor to his injuries”.
194. Dr Jander’s report appears to be based on a history that is not consistent with Mr Mellor’s evidence and he does not, in my view, provide a satisfactory explanation for his opinions. Therefore I have placed less weight on this report.
195. Also, I note that in his report Dr Jander stated that his qualifications are such that he is a Consultant Occupational & Environmental Physician with a background in musculoskeletal medicine, but provided no Curriculum Vitae and no indication on his letterhead as to his qualifications.
Histopathology report
196. On the 19 May 1998, prior to his employment at Australia Post, Mr Mellor had a biopsy of a skin lesion on the back of his right hand.
197. The histopathology report dated 21 May 1998 noted:
Sections of sun-damaged skin show hyperkeratosis, areas of parakeratosis, areas of hypergranulosis and acanthosis of psoriasiform pattern. Focal collections of vacuolated cells are also noted in the upper rete.
The features of this psoriasiform epidermal hyperplasia are suggestive of lichen simplex chronicus although a viral aetiology cannot be excluded.
It is also possible that the virus induced changes may be superimposed on a lichen simplex lesion.
The epidermal changes extend to the lateral margins.
There is no evidence of malignancy.
198. The relevance of this report is that it demonstrates that Mr Mellor clearly had significant sun exposure prior to being employed at Australia Post.
Dr Harper’s Letter
199. In a letter dated 22 June 2007, with an attached pathology report, Dr Harper, Plastic Surgeon, confirmed that on 15 December 2004 he re-excised a skin cancer lesion from the back of Mr Mellor’s left ear. He noted that he had made a “wider and deeper re-excision” that had to be repaired “by means of a small transposition flap”.
200. He stated that the pathology report indicated that the lesion was a deeply invading basal cell cancer and that it had been completely and adequately excised.
Associate Professor Haertsch’s evidence
201. In a medico-legal report dated 10 August 2007 Associate Professor Haertsch, Plastic Surgeon, noted a 3 1/2 year history as a postman and that Mr Mellor had developed a deep BCC in sun damaged skin behind his left ear.
202. The Professor also noted that Mr Mellor was fair skinned and had actinic sun damage of the face, hands and ears, and that a deeply invading BCC had been completely and adequately excised from the left ear.
203. The Professor then stated that Mr Mellor’s “skin cancer condition is a direct consequence of exposure to ultra violet light and therefore his employment has been a substantial contributing factor”, but provided no analysis or explanation.
204. During oral evidence Professor Haertsch was asked by counsel for the Applicant whether there was any basis in the medical literature, or otherwise, to suggest that later exposure to the sun of pre-damaged skin can have some material impact upon the development of skin cancer. His answer was somewhat discursive and did not answer the question. Instead he referred to his experience in his own clinical practice where at the end of each summer “patients with susceptible skin have more irritation, their solar keratoses are worse, they have developed BCCs”. He also referred to a single case report of a cancer arising in a burn scar within a 12 month period, the relevance of which was not entirely clear.
205. Professor Haertsch went on to say that in his opinion, on the basis of his clinical experience, the development of the BCC suffered by Mr Mellor “may well in all probability” have been caused by the exposure to the sun while he was working outdoors as a postal worker.
206. When asked by the Tribunal how, in the context of decades of sun exposure, he could determine that a particular period of such exposure caused the cancer, Professor Haertsch said that he believed that a short period was sufficient, but really did not know as he was “not sufficiently experienced in those matters to make an informed statement.”
207. In response to a proposition put by counsel for the Applicant, the Professor agreed that the exposure to sun at Australia Post was a material contribution to the development of Mr Mellor’s BCC.
208. During cross examination Professor Haertsch was asked whether his stated clinical practice of asking his patients, who have a history of BCC, to come back at the end of summer for a clinical examination meant that these patients had actually sustained damage during the summer that caused them to develop a BCC. He answered by saying that on a background of chronic damage to the skin continuing exposure to sunlight will cause further irritation, but conceded that he could not determine whether any particular period of sun damage could turn a pre-cancerous lesion into cancer.
209. When asked what he had understood the word “material” to mean when he had agreed to a proposition put to him by counsel for the Applicant with regard to Mr Mellor’s sun exposure while employed by Australia Post, the Professor conceded that he had not understood the significance of the meaning of the word. He clarified his opinion by saying that “I can’t say that that caused it, but it would have exacerbated damage on a chronic background”.
Dr Shumack’s evidence
210. In a medico-legal report dated 4 March 2008 Dr Shumack, Consultant Dermatologist, noted that Mr Mellor had worked as a postman for a period of four years between August 2000 and August 2004, and that in November 2004 he had a BCC removed from behind his left ear.
211. Dr Shumack noted that during the four years of delivering mail Mr Mellor would be outdoors on an average of 3 1/2 hours per day for five days per week.
212. He also noted that in May 1998 Mr Mellor had skin excised from the back of his right hand and that the pathology report had showed skin with evidence of sun damage as well as a condition called lichen simplex, but no evidence of skin cancer.
213. On physical examination Dr Shumack noted the excision scar behind Mr Mellor’s left ear and described a number of solar keratoses (pre-malignant skin lesions) scattered over his ears, temples and forehead, as well as a few minor lesions on the dorsal aspect of his forearms and hands.
214. Dr Shumack expressed the opinion that the BCC was related to accumulated sun exposure and that Mr Mellor’s exposure during his employment at Australia Post would account for approximately 5% of his lifetime accumulated sun exposure. He based his conclusion on the assumption that childhood and teenage sun exposure normally accounts for 50-70% of an individual’s lifetime sun exposure in Australia. He added that there is normally a long period between the sun exposure and the development of skin cancer and that therefore it would be difficult to relate Mr Mellor’s BCC to the sun exposure between 2000 and 2004.
215. Dr Shumack concluded Mr Mellor’s accumulated sun exposure prior to his work with Australia Post was the predominant reason for the development of his BCC and that the sun exposure during his work at Australia Post did not contribute in any significant degree.
216. The Tribunal had the benefit of Dr Shumack’s Curriculum Vitae in evidence, and I note that for several years he had participated in research directed at non surgical treatment of sun affected skin and BCC. Also he had published in various International Journals and presented at International Forums on matters relating to sun affected skin and BCC.
217. In his oral evidence Dr Shumack stated that it was known that in the development of BCC the lag period between the causative agent, which in most cases is ultra-violet light (UV) irradiation, can be counted in decades.
218. After lengthy cross examination on the issue of sun exposure, Dr Shumack agreed that in terms of lifetime sun exposure, the contribution of Mr Mellor’s exposure during his employment by Australia Post was between 5 and 10 percent.
219. Dr Shumack was then asked to consider Professor Haertsch’s evidence that Mr Mellor’s sun exposure during his time as a postman had “accelerated or exacerbated” the onset of his BCC in the sense that it had triggered the BCC in susceptible precancerous skin.
220. Dr Shumack did not accept this proposition and explained that he was not aware of any published evidence to support the view that BCC could develop after relatively short periods of modest intensity UV light. He added that it is known that the relationship between BCC and UV irradiation was not linear and restated his opinion that there is a lag period between the damage to the skin and the development of the BCC, a period measured in many years or decades.
221. Although Dr Shumack accepted that there was a positive relationship between accumulated sun exposure and the development of BCC, he did not accept that the sun exposure suffered by Mr Mellor while at Australia Post contributed to the development of his BCC.
222. Dr Shumack explained that the large size of Mr Mellor’s BCC, as evidenced by the need for re-excision and a flap repair, meant that it would have been present for several years and that it was likely to have been present in 2000, when Mr Mellor started his postal run, or at least shortly thereafter. He subsequently added that there was no evidence in the medical literature that a single period of two to three years of fairly modest UV exposure will produce a BCC. Furthermore, he said that in the course of his practice over more than 20 years where he treats BCCs on a daily basis, he has never seen such a case.
CONSIDERATION
223. It is clear from the evidence that during the 9 years that Mr Mellor was employed by Australia Post he was diagnosed as suffering from several medical conditions that could be considered ailments within the meaning of s 4 of the Act.
224. The various conditions include skin cancer, osteoporosis, kyphoscoliosis of the thoracic spine, degenerative change in the lumbar spine and a congenital anomaly at the lumbosacral junction.
225. Mr Mellor claims that his employment contributed to or aggravated all of these ailments, and that the contribution or aggravation was to a material degree so that these ailments constituted an injury within the meaning of the Act, and therefore he is entitled to claim compensation pursuant to s 14 of the Act.
226. Mr Mellor also claims that following a fall in the course of his work in April 2003 he suffered an injury to his thoracic spine in the form of a vertebral compression fracture, and that this injury represented both an acute injury and an aggravation of his osteoporosis to a material degree.
227. In deciding the issues in this case I am mindful of the decision of Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 (“Sahu-Khan”) where his Honour referred to the dictionary definition of the word “materially” as meaning “substantially, considerably”, but went on to say that the s 4 definition requires a stronger causal relationship than the one required by the Compensation (Australian Government Employees) Act 1971, and “in a material degree” requires a threshold evaluation of all the relevant contributing factors, and the answer in a given case will be a matter of fact and degree.
Skin Cancer (BCC)
228. In November 2004 Mr Mellor had a BCC excised from behind his left ear that, because of its size, required a wider and deeper re-excision one month later.
229. From the evidence it is not disputed that UV irradiation from sun exposure is a significant factor in the development of BCC.
230. Mr Mellor claims that the BCC was contributed to in a material degree by the sun exposure he experienced during the period of work as a postman between August 2000 and November 2004, and relies on the opinion of Associate Professor Haertsch.
231. Professor Haertsch’s opinion was essentially in the form a hypothesis that, on a background of pre-existing sun damaged skin, the additional sun exposure experienced by Mr Mellor over the four years working as a postman had contributed to the development of the BCC.
232. A significant problem with this hypothesis is the fact that there was no evidence before me to indicate when the BCC actually was first present. The evidence does demonstrate that the BCC was of a significant size and deeply penetrating which, according to Dr Shumack, suggests that in November 2004 it had already been present for several years and had been caused by accumulated sun exposure prior to Mr Mellor’s time as a postman.
233. Furthermore, I found Professor’s Haertsch’s evidence to be inconsistent and at times confused, and his opinion appeared to be based largely on his experience in the context of his own clinical practice as a plastic surgeon rather than on established scientific knowledge.
234. I prefer the opinion of Dr Shumack who, in my view, demonstrated a greater understanding of the relevant scientific evidence with regard to BCCs and provided a more coherent explanation for his opinions.
235. Therefore, while I accept that Mr Mellor did experience additional sun exposure during his employment as a postman, on balance I am not satisfied on the evidence before me that this additional sun exposure contributed to his BCC. Furthermore, if there had been some contribution when compared with his sun exposure prior to his employment at Australia Post, the additional exposure, in my view, would not meet the threshold of significance referred to by Finn J in Sahu-Khan and, therefore, would not have contributed in a material degree.
236. Therefore I have decided that the BCC suffered by Mr Mellor was not an injury within the meaning of s 4 the Act and that he is not entitled to compensation pursuant to s 14 of the Act.
Osteoporosis
237. There is no dispute that Mr Mellor suffers from osteoporosis and that this is a constitutional condition that was not caused by his employment.
238. Leaving aside for the present the question of the thoracic vertebral fractures, there is no evidence before me to support a conclusion that Mr Mellor’s employment contributed to or aggravated this condition.
239. In fact, the evidence is that, as a result of appropriate treatment, Mr Mellor’s osteoporosis had actually improved during the period of his employment with Australia Post on the basis that by March 2006 the measurement of his bone mineral density had shown significant improvement.
Thoracic spine condition (kyphoscoliosis – compression fractures ?)
240. There is no dispute that Mr Mellor suffers from kyphoscoliosis of the thoracic spine and, although he did not mention it in either his statement or oral evidence, it would appear from the various medical reports that Mr Mellor had suffered from a curvature of the spine for many years prior to his employment at Australia Post.
241. Although it is agreed that Mr Mellor’s x-rays demonstrate “wedging” of several thoracic vertebra, the nature and cause of this wedging is disputed.
242. Mr Mellor claims that the wedging represents compression fractures of the thoracic vertebrae and that these fractures were caused by his fall in the course of his work in April 2003, or alternatively were contributed to or aggravated by either the fall or the nature and conditions of his work. In support of his claim he relies on the opinions of Professor Sambrook and Dr Bodel.
243. In his evidence Mr Mellor clearly indicated that he did not experience any thoracic pain either at the time of or in the immediate period after the fall. In fact, I found his evidence with regard to thoracic pain somewhat vague and inconsistent and during his oral evidence it was clear that his predominant complaint was pain in the lower back and in the thighs and calves. He rarely mentioned thoracic pain unless prompted by counsel.
244. Apart from the untested opinions of various radiologists and Professor Sambrook, the remainder of the expert medical opinion supports the proposition that the x-ray appearance does not represent compression fractures, but rather physiological wedging as a result of longstanding kyphoscoliosis.
245. In his first written report Professor Sambrook stated that Mr Mellor suffered from osteoporosis with mid thoracic wedge fractures and then in a supplementary report expressed the opinion that in view of Mr Mellor’s osteoporosis it was likely that the fall in April 2003 had caused or aggravated the thoracic vertebral fractures.
246. In his oral evidence he retreated from this opinion and said that it was only possible that the fall had contributed to or aggravated the fractures on the basis that he was unable to indicate with any certainty when the fractures had actually occurred. He appeared to base his opinion solely on the fact that Mr Mellor developed mid thoracic pain more than three months later.
247. On this issue I found Professor Sambrook’s evidence ambivalent and somewhat inconsistent with insufficient explanation and therefore I have placed less weight on his opinion.
248. In his written report Dr Bodel diagnosed “soft tissue aggravation of longstanding kyphoscoliosis” and commented that the spine x-ray showed multilevel wedging, but no evidence of acute fracture.
249. He appeared to base his opinion largely on Mr Mellor’s reported symptoms and did not in my view provide sufficient and meaningful explanation and therefore I have placed less weight on his opinion.
250. In his written reports Dr Maxwell consistently expressed the view that Mr Mellor suffered from constitutional kyphoscoliosis and that the wedging seen on x-rays represented physiological wedging and not compression fractures.
251. In my view, both in his reports and in oral evidence, Dr Maxwell provided a clear and logical explanation for his opinion.
252. He described the appearance of the thoracic vertebrae in some detail and indicated the features that were not present but would be expected with a fracture. He also addressed the mechanism of injury and the fact that Mr Mellor did not suffer any pain at the time of the fall, which was not consistent with an acute fracture.
253. I found Dr Maxwell’s analysis of the issues persuasive and therefore have placed more weight on his opinion.
254. Dr McGill, in a comprehensive written report, concluded that the x-ray appearance of Mr Mellor’s thoracic spine was a reflection of longstanding kyphoscoliosis, but conceded that it was not possible to exclude minor additional wedging due to fracture. He added, however, that the gradual progression of the wedging of Mr Mellor’s thoracic spine was against the possibility of superimposed fracture. This observation was consistent with Dr Maxwell’s opinion.
255. Dr McGill also noted that the lack of pain at the time of the fall made it unlikely that a fracture had occurred at the time, and in his oral evidence provided a comprehensive explanation for his opinion.
256. Dr McGill’s evidence was also persuasive, particularly as he was prepared to acknowledge alternative opinion, but was able provide a well reasoned explanation for his own conclusions and I have therefore placed more weight on his evidence.
257. In my view the evidence of Drs Carr, Ryan and Jander did not add anything and the evidence of Dr Sew Hoy was consistent with that of Drs Maxwell and McGill.
258. For the above reasons, I prefer the evidence of Drs Maxwell and McGill and find that Mr Mellor suffers from constitutional kyphoscoliosis and does not have vertebral compression fractures.
259. Notwithstanding Mr Mellor’s unconvincing evidence, I accept that from time to time he suffered increased symptoms in the form of pain in the thoracic area of the spine, and that that pain constituted a temporary aggravation of his constitutional kyphoscoliosis.
260. However, I do not accept that this temporary increase in symptoms represented an aggravation of his thoracic spine condition in a material degree.
261. Therefore, I also find that neither the fall in April 2003 nor the nature and conditions of his work contributed to or aggravated Mr Mellor’s thoracic kyphoscoliosis.
262. It follows that in relation to his thoracic spine Mr Mellor has not suffered an injury within the meaning of s 4 of the Act, and is not entitled to compensation pursuant to s 14 of the Act.
“Lumbar spine condition” (lower back pain)
263. It is clear from the evidence that Mr Mellor has suffered from various aches and pains for many years, even before he started work at Australia Post, and that not infrequently the cause of his pain has remained unexplained.
264. I have already noted above that I found Mr Mellor’s evidence regarding his pain somewhat vague and inconsistent. The inconsistency is also seen in the variation of the histories obtained by the various medical specialists.
265. A consistent feature of Mr Mellor’s evidence, however, is the onset of back pain in the months following his fall at work in April 2003 despite having suffered no back pain at the time of the fall or in the following days or weeks. It is clear that Mr Mellor has focused on this incident as the sentinel event with regard to most of his subsequent problems.
266. The most consistent aspect of Mr Mellor’s description of his pain, both in his own evidence and in the medical reports, was that the pain was located predominantly in his lower back and in his thighs and calves.
267. The pain was usually present mainly in the course of his work and made worse by his work activities. Mr Mellor described the pain as generally not severe but merely uncomfortable, and rarely required analgesia.
268. In respect of Mr Mellor’s lower back there is radiological evidence of mild degenerative change in the lumbosacral spine and a congenital anomaly at the lumbosacral junction. There is no evidence of disc protrusion or of nerve root encroachment.
269. In 2004 Dr Carr was unable to find any explanation for Mr Mellor’s pain and in a subsequent report concluded that Mr Mellor suffered from postural backache probably related to the degenerative changes in his spine.
270. Dr Maxwell concluded that Mr Mellor’s symptoms were related to posture as a result of his kyphoscoliosis and minor degenerative changes in the spine.
271. Dr Sew Hoy concluded that Mr Mellor had non-specific long standing lower back pain exacerbated with upper body activity and probably associated with his kyphoscoliosis lumbar degenerative changes.
272. Dr Ryan, GP, noted that Mr Mellor often complained of musculoskeletal pain and that that he finds mail sorting too onerous because of persistent back pain and “neuropathic pain into his thigh and buttocks”.
273. I note that Mr Mellor’s evidence was that the pain was in the front of the thighs and in the calves and not associated with numbness or paraesthesia. Also, as noted above, there was no radiological evidence of nerve root compression.
274. Professor Sambrook attributed the lower back symptoms to the lumbar degenerative changes and suggested that although there was a temporal relationship between Mr Mellor’s back pain and his work, this was likely to be temporary, and that there was no worsening of the underlying condition.
275. Dr McGill diagnosed non specific long standing lower back pain in association with degenerative changes in the lumbar facet joints, a congenital anomaly at the lumbosacral junction and some mild degeneration of the lumbosacral disc.
276. Dr Bodel diagnosed “soft tissue aggravation of longstanding kyphoscoliosis and degenerative change in the thoracic spine and in the lumbar spine as a result of the episodes of injury that have occurred at work and his work in general”.
277. Dr Bodel also expressed the opinion that the nature and conditions of Mr Mellor’s work was a material aggravating factor on the basis of a continuing complaint of pain.
278. The medical evidence in respect of this issue is quite consistent and, apart from Dr Bodel’s opinion, there is little or no support for a conclusion that the nature or the pathology of Mr Mellor’s underlying “lumbar spine condition” was either caused by or made worse by his employment.
279. There is evidence, albeit largely based on Mr Mellor’s own recollections, that he suffered increased pain during his work and that the nature of his work contributed to that pain.
280. I note, however, that apart from the incident in April 2003, Mr Mellor did not report any other incidents or make any claims with respect of his spine or lower back pain until his claim for compensation in 2006.
281. Nevertheless I accept that Mr Mellor did suffer increased pain in the course of his work and that it was likely that the nature of the work contributed to the pain. Therefore, his work could be considered to have made his underlying condition worse, or in other words aggravated the condition.
282. However, in my view, the weight of medical opinion and Mr Mellor’s own evidence favours a conclusion that the increased pain experienced was merely a temporary aggravation in the context of his activities while at work and that the effects of the aggravation ceased when he stopped these activities or shortly thereafter.
283. Furthermore, in his oral evidence with regard to his symptoms since stopping work in 2007, Mr Mellor claimed that he continued to suffer pain predominantly in his lower back and legs and that he would get the pain when doing household duties such as sweeping. He also said that the pain would settle in the evening, and did not interfere with his sleep, and in the morning he was often a little stiff but generally pain free. He said that the pain in his back comes and goes while sitting, but was usually related to physical activity, particularly walking, which caused discomfort in his thighs and calves.
284. The distinct impression I formed from his evidence was that since leaving work Mr Mellor suffers a background level of symptoms including pain that can be attributed to his constitutional spinal conditions and that intermittently his symptoms get worse with physical activity. It appears that he currently finds himself in a similar situation to when he was employed.
285. As already noted above, in order to satisfy the definition of an injury within the meaning of s 4 of the Act, Mr Mellor’s employment must have contributed “in a material degree” to his underlying lumbar spine condition.
286. In Mr Mellor’s case, although I accept that his employment at Australia Post did contribute to the aggravation of his lumbar spine condition in the sense that he suffered from pain, I find that the contribution resulted in only a temporary aggravation with no lasting effects, and did not make his underlying condition worse.
287. I conclude therefore that the contribution to Mr Mellor’s lower back conditions by his employment was not sufficiently significant to meet the threshold of “in a material degree”, as referred to in Sahu-Khan.
288. It follows that Mr Mellor’s lumbar spine condition is not an injury within the meaning of s 4 the Act and, therefore, he is not entitled to compensation pursuant to s 14.
Permanent Impairment
289. As I have decided that Mr Mellor has not suffered any injuries within the meaning of s 4 of the Act, it is not necessary for me to consider his claims for permanent impairment.
DECISION
290. After having considered all the evidence, and for the above reasons, I have decided that conditions suffered by Mr Mellor are not injuries within the meaning of section 4 of the Act and his claim for compensation has been unsuccessful.
291. Therefore the decisions under review dated 13 April 2007, 27 November 2007, 2 January 2008 and 17 June 2008 are affirmed.
I certify that the 291 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.
Signed: ...................[sgd].............................................................
Mr T Aviram, AssociateDates of Hearing 23 and 25 September 2008
Date of Decision 17 November 2008
Counsel for the Applicant Mr D Shoebridge
Solicitor for the Applicant Ms S Ryan, Turner Freeman Lawyers
Counsel for the Respondent Ms R HendersonSolicitors for the Respondent Mr S Matthews and Ms D Hatton, Australian Postal Corporation
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