MELLOR Applicant And AUSTRALIAN POSTAL CORPORATION (Australia Post)

[2010] AATA 502

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 502

ADMINISTRATIVE APPEALS TRIBUNAL      )

)

GENERAL ADMINISTRATIVE DIVISION        )          No

2007/23902008/2902

Re THOMAS MELLOR

Applicant

And AUSTRALIAN POSTAL CORPORATION (Australia Post)

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date6 July 2010

PlaceSydney

Decision

(1)      The decision under review dated 13 April 2007 is affirmed.

(2) The decision under review dated 17 June 2008 is set aside. In substitution thereof the Tribunal determines that Australia Post is liable to pay compensation pursuant to section 14 of the Act in respect of incapacity for work or impairment suffered by Mr Mellor as a result of any temporary aggravation of his spinal conditions.

(3) A decision on the matter of costs is reserved. The parties have 14 days from the date of this decision to advise the Tribunal if they wish to put further argument. If they do not, the Tribunal will make an appropriate order pursuant to section 67(8) of the Act.

.............[sgd]................

Dr I Alexander
  Member

CATCHWORDS

WORKERS COMPENSATION – compensable injuries – pre-existing condition – aggravation of condition – no pathological change caused by employment – material contribution to temporary aggravation of condition by nature and condition of employment – the decision under review is set aside – no material contribution to aggravation of condition by fall incident whist on duty – the decision under review is affirmed. 

Safety, Rehabilitation and Compensation Act 1988, s 4 and s 14

Bowman v Comcare Australia [2000] FCA 88

Casarotto v Australian Postal Commission (1989) 10 AAR 191; 86 ALR 399; 17 ALD 321; [1989] FCA 116

Comcare v Sahu-Khan (2007) 156 FCR 536; 44 AAR 523 ^; [2007] FCA 15; ALMD 4445

Commonwealth of Australia v Beattie (1981) 53 FLR 191; 35 ALR 369

REASONS FOR DECISION

6  July 2010 Dr I Alexander, Member    

Introduction

1.      Mr Mellor is a 61 year old man who worked for Australia Post for just over nine years between July 1998 and September 2007.

2. Mr Mellor had previously claimed that he was entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act1988 (“the Act”) on the grounds that he had suffered various injuries in the course of his employment.

3.      His claims were the subject of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 17 November 2008.

4.      In an order dated 28 May 2009 the Federal Court set aside part of the Tribunal’s decision and remitted two of seven reviewable decisions for review in accordance with the law.

5.      In the current proceedings Mr Mellor seeks review of the two reviewable decisions, namely:  

·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 following an incident at work on 17 April 2003. (Matter Number 2007/2390)

·A determination by Australia Post dated 17 June 2008 denying liability under 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”. (Matter Number 2008/2902)

Legislative provisions and issues

6. Under s 14 of the Act, 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.

7. 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;

…

8. 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.

9. Section 4 defines an ailment as any physical or mental ailment, disorder, defect, or morbid condition (whether of sudden onset or gradual development).

10.     It is not disputed that at the relevant time Mr Mellor suffered various conditions of the spine including osteoporosis of the spine, thoracic kyphoscoliosis (abnormal curvature of the thoracic spine) and a degenerative condition of the lumbar spine.

11. It is agreed that the spinal conditions are ailments within the meaning of s 4 of the Act and that they are constitutional in nature and not caused by his employment.

12.     Mr Mellor’s claims for compensation in these proceedings are based on the following contentions:

(a)the injury he sustained from the fall incident that occurred in April 2003 during the course of performing his duties at Australia Post resulted in an aggravation of his lumbar spine condition and that aggravation was contributed to in a material degree by his employment.

(b)the nature and conditions of his employment at Australia Post caused an aggravation of his thoracic kyphoscoliosis and lumbar spine conditions and that aggravation was contributed to in a material degree by his employment.  

13.     Therefore the issues to be decided in these proceedings are:

(a)did Mr Mellor suffer an aggravation of his thoracic kyphoscoliosis or  his lumbar spine condition?

(b)If so, what was the nature of this aggravation and was it contributed to in a material degree by the fall at work, or by the nature and conditions of his employment?

Evidence

14.     At the outset of these proceedings it was agreed that no additional evidence was to be put before the Tribunal and in making submissions the parties would rely on the evidence presented at the previous hearing supplemented only by the full transcript of that hearing.

Mr Mellor’s evidence

15.     Mr Mellor provided a statement dated 20 February 2008 and also gave oral evidence at the previous hearing on 23 September 2008.

16.     After he left school, Mr Mellor was employed in a clerical position until the early 1980s, when he started work as a bookmaker’s clerk, a position he held until 1997.  Between 1997 and 1998 he worked as a bus driver.

17.     In July 1998, Mr Mellor commenced working in Australia Post, initially as a night sorter, and 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.  I note, however, 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.

18.     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.

19.     In his oral evidence Mr Mellor described an incident involving a fall that occurred during his employment at Australia Post.  During a postal run on 17 April 2003, 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.  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 to his supervisor.  Mr Mellor agreed during cross examination 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 this incident, he had not filled out any other incident reports during his employment at Australia Post.

20.     In the months following the fall, Mr Mellor indicated in his statement, he gradually developed pain in his back, principally in the low back, but occasionally in the mid back.  In his oral evidence he said that he started to feel pain in his lower back and sometimes in both legs and at the top of his shoulders.  Mr Mellor also indicated, with prompting from counsel, that he sometimes had pain in the thoracic area of his back.  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. 

21.     Mr Mellor gave evidence that the lower back pain was the most persistent and usually not severe, but merely uncomfortable.  He said that the pain “would last for a while and subside when I stopped“, and that its severity varied from day to day.  He did not take any “painkillers” and the pain would resolve with rest overnight.  Pains he felt in the other parts of the body would come and go with no particular pattern.   Mr Mellor consulted his GP about his pains, including the lower back pain.  On 16 July 2003 he underwent an x-ray .  In his statement Mr Mellor indicated that the x-ray showed mid thoracic vertebral fractures and minor thoracic kyphoscoliosis.  He was subsequently referred to Dr Howard, Endocrinologist, who diagnosed osteoporosis.  

22.     Mr Mellor claimed that his pain got worse over time and was usually associated with activities at work.  As a result of ongoing back pain, Mr Mellor alleged in his statement, by late 2004 he was unable to continue as a postman and was transferred to night mail sorting duties.  His activities as a night duty sorter, according to Mr Mellor’s description, included walking, bending, lifting, turning and twisting.  I found that his description of the pain was somewhat vague, particularly with regard to the location of the pain.  When asked about his back condition 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”.  He described the pain as uncomfortable but tolerable.  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.  

23.     During 2005 and 2006 he stated that he had constant pain in lower back and legs while at work and would often leave work early.  During this period he was forced to take more sick leave.  In 2006 Mr Mellor was put on half shifts with lifting restrictions, but did not cope and eventually stopped work in September 2007.

24.     I note, however, that Mr Mellor’s employee leave history included in the s 37 documents indicated that during 2005 he had approximately 10 days of sick leave with none of those days appearing to be related to any spinal problem or back pain.  It was not until May 2006 that he had 2 days of sick leave for “sciatic pain”.  

25.     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 responded that he could not recall any of these consultations.  For example, Mr Mellor was asked to explain why he had made no mention of the fall to his GP in relation to his lower back pain until he lodged the compensation claim in 2006.  Mr Mellor said he could not remember.  Regarding his consultation in late 2004 with Dr Carr, Rheumatologist, because of pain in his hands, calves, neck and shoulder, he explained that he was worried he might be ‘rheumatic’.  Dr Carr diagnosed “cramping”, arranged for a bone scan and prescribed “quinine tablets”. 

26.     Mr Mellor said that since leaving work, he has had good and bad days with regard to his pains.  He said that walking appears to aggravate his lower back pain and the pain in his legs, particularly the calves.  He is usually pain free in the morning and only suffers pain with physical activity.  The pain usually settles in the evening and only occasionally requires some “panadol”.

Dr Howard’s letters

27.     In a letter dated 29 July 2003 Dr Howard, Endocrinologist, noted the following information regarding Mr Mellor’s condition:

·Mr Mellor had been recently diagnosed with osteoporosis following an x-ray on 16 July 2003 that showed mid thoracic vertebral fracture.  In Dr Howard’s understanding this had followed an episode of acute chest pain that resolved quickly and had not recurred, but nevertheless had been extensively investigated, including a cardiac stress test.  

·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. 

·An obvious thoracic kyphoscoliosis but no vertebral tenderness was noted on physical examination.

28.     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.  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.

29.     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 carrying backpacks, and that this would be long term.

30.     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.  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.  Dr Howard also noted that Mr Mellor’s bone mineral density scan had improved to a stable value.

Dr Carr’s letters and report

31.     In 2004 Mr Mellor was referred by his GP to Dr Carr, Rheumatologist, with regard to concerns about “polymyalgia rheumatica”.

32.     In a letter dated 2 December 2004 Dr Carr described the history gathered from Mr Mellor regarding his condition:

·Mr Mellor suffered from a heavy fall when he slipped on a covered manhole onto his knees while working as a postman in “2002”.

·As a result he developed back pain “in a thoracic spine” but as the pain was not “particularly excruciating“ he continued to work.  

·One month later x-rays of Mr Mellor’s thoracic spine showed compression fractures and that he was diagnosed as suffering from osteoporosis. 

33.     I note that this history is not consistent with Mr Mellor’s own evidence.

34.     Dr Carr also made note of the following information:

·Even prior to the fall Mr Mellor had complained of postural backache with prolonged standing which he stated was  understandable in view of Mr Mellor’s thoracic kyphosis.  

·Following the 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.

·Mr Mellor provided 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. 

35.     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.

36.     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”.  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.  He noted that Mr Mellor found that his calves were painful and cramping with movement.  Dr Carr did not make a diagnosis and indicated that he had nothing else to offer apart from trying “Quinate to see if [it] stops the cramps”.

37.     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.  Dr Carr stated the following opinions:

·He could find no association between Mr Mellor’s employment and his aches and pains.

·Mr Mellor’s “thoracic pain” was largely related to degenerative changes in his thoracic spine and lumbar spine.

·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 that he suffered in April 2003.

Dr Maxwell’s evidence

38.     In a medico-legal report dated 23 November 2006 Dr Maxwell, Orthopaedic and Spinal Surgeon, noted the following history and information from Mr Mellor regarding his condition:

·Mr Mellor gradually started to suffer back pain following a fall in 2003 and was subsequently diagnosed with osteoporosis and “fractures”.  At the time of the fall he had not experienced any back pain. 

·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.

39.     Dr Maxwell reviewed all the available x-rays and stated the following opinion:

·In disagreement with the x-ray report of 16 July 2003, the wedging of the thoracic vertebrae was due to the “normal wedging consistent with the thoracic kyphosis”, and there was no evidence of a compression fracture.   

·The CT scan of the lumbar spine done on the 19 January 2004 was normal with no evidence of nerve root compression.

·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.  Additionally, there was no acute change in the anterior heights of any of the thoracic vertebrae and no associated buckling and the x-ray showed physiological wedging associated with idiopathic kyphosis.

·A bone scan done on 7 December 2004 showed no evidence of a compression fracture, either recent or in the previous six months. 

40.     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.

41.     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.

42.     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.  Dr Maxwell recommended an intensive exercise program.

43.     In a subsequent report dated 23 August 2007 Dr Maxwell noted the following further information obtained from Mr Mellor regarding his condition:

·Mr Mellor had first had physiotherapy in 2001, and again in 2002 because of low back pain.  He had been given exercises to build up his stomach muscles.

·Mr Mellor felt discomfort in the mid back and more predominantly in the lower back.  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”.

44.     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.

45.      He concluded that Mr Mellor‘s lower back discomfort was due to constitutional factors and commenced spontaneously in 2001.  He added that Mr Mellor’s “thoracolumbar scoliosis and kyphosis” 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.  With regard to Mr Mellor’s low back discomfort, a common symptom that he stated got worse with physical activity, there was no indication in Dr Maxwell’s view that the physical activity was harmful for the condition or altering the pathology.

46.     In a supplementary report dated 14 July 2008 Dr Maxwell stated there was no evidence in his opinion that Mr Mellor had a spine injury or that the nature and conditions of his employment caused or aggravated his symptoms.  He added that Mr Mellor’s increased postural kyphosis had been present all his life, and that he had very minimal degenerative changes in his x-rays for a man of his age.

47.     Dr Maxwell stated that the incidence of chronic back pain in the general community is high.  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.

48.     Dr Maxwell concluded that Mr Mellor’s complaint of lower back pain was constitutional and probably related more to his personality than any underlying pathological process.

Dr Sew Hoy’s letter

49.     In a letter to Mr Mellor’s GP dated 15 February 2007 Dr Sew Hoy, Orthopaedic Surgeon, noted down the following information:

·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. 

·Mr Mellor was reluctant to take analgesia and he was diligent in performing exercises at home that have helped his symptoms.

·Increased thoracic kyphosis and some reduced range of movement of the lumbar spine were noted in physical examination. Mr Mellor reported that his abnormal spinal alignment had been present since adolescence.

·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.

·The spine x-rays done on 21 November 2006 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. 

50.     I note that Dr Sew Hoy made no mention of thoracic compression fractures.

51.      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.  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.  Dr Sew Hoy advised Mr Mellor to treat his back pain symptomatically and to persevere with his core strengthening physiotherapy directed exercises.

Professor Sambrook’s evidence

52.     In a medico-legal report dated 19 July 2007 Professor Sambrook noted down the following information regarding Mr Mellor’s condition:

·Mr Mellor had worked for Australia Post for about 9 years both as a postal delivery officer and night sorter.  He had experienced some low back discomfort when carrying his postman’s backpack, but he felt that his back problems largely started around 2003 after the fall incident (referred to throughout these Reasons).  Mr Mellor fell forward on his knees and elbows, but denied any acute back pain.

·Mr Mellor’s current symptoms included occasional thoracic pain, but predominately low back pain present mainly at work with minimal symptoms at home and improved by rest.  Occasionally the pain radiated to the thighs or calves, but without any paraesthesia.

·Increased thoracic kyphosis and mild scoliosis with thoracolumbar movements in various directions were noted in physical examination.

53.     Professor Sambrook stated the following opinion:

·Mr Mellor suffers from osteoporosis with mid thoracic wedge fractures and this explained his thoracic pain.  Osteoporosis is a constitutional condition unrelated to Mr Mellor’s work. 

·Mr Mellor had degenerative changes in the lower lumbar spine with a transitional vertebra of the lumbosacral level and narrowing of the disc. This condition was the primary cause of his low back pain.

·Considering Mr Mellor’s work conditions in regard to his lumbar degenerative condition, transitional vertebrae are primarily constitutional and are associated with increased disc degeneration.  Further, 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.

54.     In a supplementary report dated 8 August 2007 Professor Sambrook, in response to a letter from the Applicant’s solicitor, 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.

55.     In his oral evidence given on the matter of Mr Mellor’s lower back symptoms, Professor Sambrook explained that he had considered them to be of a temporary nature on the basis of Mr Mellor’s description provided to him in the medical appointment in July 2007 that the pain was present mainly at work and was minimal. However, when put by counsel for Mr Mellor that the symptoms had persisted, and perhaps continued to deteriorate after he had stopped work in September 2007, Professor  Sambrook 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.

Dr McGill’s evidence

56.     In a medico-legal report dated 30 August 2007 Dr McGill, Consultant Rheumatologist, noted the following information and observation about Mr Mellor’s condition:

·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.  The description provided by Mr Mellor was consistent with a thoracic kyphosis.

·Mr Mellor did not experience any back symptoms at the time of the fall or immediately thereafter.  When he consulted his GP in July 2003, his complaint was low back pain.

·The low back pain was most troublesome and when resting or sitting watching television Mr Mellor felt okay; but 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.

·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.

·A moderate thoracic kyphosis with minor rotatory scoliosis and normal lumbar lordosis was noted on physical examination, as well as a restricted range of movement of about 50% of normal in all regions.

57.     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 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.  Although the gradual change in the degree of wedging throughout the thoracic region favoured the long standing kyphoscoliosis rather than fracture, either cause could account for the appearance. After further reviewing various medical reports, Dr McGill 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”.  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.

58.     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.

59.     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.  With regard to the lower back symptoms, Dr McGill was of the view that Mr Mellor’s 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.

60.     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.

61.     In oral evidence Dr McGill gave the following opinion:

·Mr Mellor’s work activities could have caused lower back symptoms at the time of doing the activities.  The onset of these symptoms could be seen as temporary aggravation of his lower back condition, but not an aggravation of the underlying pathology.  Certain activities can cause pain if the person has an abnormal spine, but this does not automatically indicate that the activity is causing harm to the back or changing the pathology.

·Certain postures may put strain on the spine, but this is not necessarily harmful.  Further, physical activity is considered to be beneficial in the treatment of degenerative spinal disease.

62.     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

63.     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’s condition deteriorated with increasing back pain and that in July 2003 x-rays showed evidence of “probably osteoporosis as well as longstanding kyphoscoliosis“.

64.     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 bending, twisting or lifting.

65.     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.

66.     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.

67.     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”.

68.     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”.

69.     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”.

70.     Dr Bodel stated that he agreed with the overall assessment by Dr McGill in regards to Mr Mellor’s spinal pathology.

71.     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”.

72.     I note that Dr Bodel’s opinions appeared to rely on a relatively superficial history provided by Mr Mellor and I found his analysis somewhat incomplete with little meaningful explanation.  

73.     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”.

74.     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.

75.     I note at this point that I found Dr Bodel’s oral evidence to be confusing and internally inconsistent.

Dr Jander’s Report

76.     In a medico-legal report dated 12 March 2008 Dr Jander stated that he had seen Mr Mellor on five occasions between October 2006 and May 2007.

77.     Dr Jander focussed primarily on the fall that had occurred on 17 April 2003 and noted that at the end of the shift on that day Mr Mellor started developing progressive back pain that was quite severe, burning in nature and radiated to the back of his legs and thighs.  I note that this history is clearly not consistent with Mr Mellor’s own evidence.

78.     Dr Jander claimed that he was 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.

79.     In my view Dr Jander’s report provided little assistance to the Tribunal as he appeared to have relied on a history inconsistent with other evidence and provided insufficient explanation for his opinions.

Consideration

Mr Mellor’s pain symptoms

80.     There is no dispute that during the time of his employment at Australia Post Mr Mellor suffered from constitutional spinal conditions.  On the basis of the evidence given before the Tribunal, however, I find that Mr Mellor has suffered from various aches and pains for many years, before he was employed at Australia Post, and that not infrequently the cause of his pain had remained unexplained.  There was also evidence that he had suffered from intermittent back pain from as early as 2001. 

81.     One consistent feature of Mr Mellor’s evidence 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 appears that Mr Mellor has focused on this incident as the sentinel event with regard to most of his subsequent problems.

82.     The most consistent feature 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.

83.     The pain was usually present mainly in the course of his work and made worse by his work activities. The pain was described as not severe but merely uncomfortable, and rarely required analgesia.  In his oral evidence Mr Mellor described the pattern of pain in his back as coming on soon after starting work, getting worse during the day but settling with rest after work.  The pain subsided overnight and was usually not present when getting up in the morning and did not disturb his sleep.

84.     In his written statement Mr Mellor indicated that during 2004 he managed his pain with physiotherapy, but that during 2005 and 2006 he suffered increasing pain at work such that he was forced to take time off from work.  In 2006 he was placed on work place restrictions.  In September 2007 Mr Mellor stopped work because “every shift made the pain worse”

85.      With regard to his symptoms since stopping work in 2007, Mr Mellor indicated in his oral evidence 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.

86.     The impression I have formed from his evidence was that since leaving work, Mr Mellor has suffered a background level of symptoms, primarily pain that can be attributed to his constitutional spinal conditions, and that intermittently his pain get worses with physical activity.  It appears that he currently finds himself in a similar situation to when he was employed.

“aggravation” of Mr Mellor’s spinal condition

87.     In respect of the issue of “aggravation of a disease” I am guided by the following authorities.

88.     In Commonwealth of Australia v Beattie (1981) 53 FLR 191; 35 ALR 369 Evatt and Sheppard JJ considered the meaning of the word “aggravation” in the context of the Act, where the claimant had pre-existing non-compensable injury. The Full Court reformulated the relevant question as whether “incapacitating pain brought on by activity undertaken in the course of employment constitute[s] an aggravation of a physical injury, notwithstanding that such pain is not brought about by any further pathological change‘’: (1981) 53 FLR 191 at 197. Their Honours concluded at 201, with Kelly J agreeing:

… each case must depend on its own facts.  For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.

89.     In Casarotto v Australian Postal Commission (1989) 10 AAR 191; 86 ALR 399; 17 ALD 321; [1989] FCA 116, Hill J stated that the word ‘aggravation’ “connotes the disease setting becoming more severe”, distinguishing it from the word ‘acceleration’ which “connotes the hastening of the normal underlying disease“: at [23]. Hill J subsequently added that ”[i]t would be necessary in each case, be it one of aggravation or acceleration to have regard to the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue.”: at [39].

90.     In Bowman v Comcare Australia [2000] FCA 88, Wilcox J determined that paragraph (b) in the definition of disease in s 4 of the Act “is not confined to a permanent aggravation; it includes a temporary aggravation.”: at [17].

91.     After having considered all the medical evidence before the Tribunal I have formed the view that the weight of the evidence does not support a conclusion that there was any pathological change in Mr Mellor’s spinal conditions that can be attributed to either his fall in 2003 or the nature and conditions of his employment.  In a written report Dr Bodel did express the opinion that Mr Mellor suffered a “material soft tissue aggravation” that caused ongoing work related pathology but in my view did not provide a satisfactory explanation to support this opinion.

92.     I am however satisfied that there is sufficient medical evidence to support Mr Mellor’s contention that the nature and conditions of his employment caused him to suffer increased symptoms in the form of pain and that this constituted an aggravation of his underlying spinal conditions. Dr Bodel gave evidence that the nature and conditions of Mr Mellor’s work were a material aggravating factor with regard to his “complaint of pain”; Dr McGill agreed that Mr Mellor’s work activities could have caused an increase in symptoms, namely pain, at the time of doing the activities and that the increase in symptoms could be seen as a temporary aggravation of the his spinal conditions.

93.     Professor Sambrook considered Mr Mellor’s lower back symptoms to be temporary as he had been told that the pain in the lower back was present mainly at work and was not very severe.  Further, although Dr Maxwell’s opinion was directed mainly at the question of pathological change, he did comment that Mr Mellor was suffering from predominantly low back discomfort that got worse with physical activity. Also Dr Sew Hoy concluded that Mr Mellor had non-specific longstanding lower back pain with symptoms that are exacerbated with upper body activity.

94.     I am satisfied that both the medical evidence and Mr Mellor’s own evidence points to a conclusion that any aggravation of his spinal conditions was temporary and closely associated with his work activities and that the effect of any aggravation should have ceased after he stopped work in September 2007.

95.       As the increase in symptoms occurred at work and settled after work, I am satisfied that the threshold for the aggravation being “contributed to in a material degree by his employment”, as outlined by Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536; 44 AAR 523 ^; [2007] FCA 15; ALMD 4445 at [56], has been met.

96. I therefore find that Mr Mellor did suffer an injury within the meaning of section 4 of the Act in that at various times he suffered temporary aggravation of his constitutional spinal conditions that was contributed to, in a material degree, by the nature and conditions of his employment at Australia Post.

97. This means that Australia Post is liable to pay compensation pursuant to s 14 for incapacity for work or impairment resulting from any temporary aggravation of Mr Mellor’s spinal conditions

Mr Mellor’s lower back pain condition and the fall incident

98.     In respect of Mr Mellor’s claim for compensation for “lower back pain” caused by his fall at work in April 2003 I am not persuaded that either the medical evidence or Mr Mellor’s evidence is sufficient to support this claim.  It is quite clear from Mr Mellor’s own evidence that at the time of the incident, and immediately thereafter, he did not complain of lower back pain.  He described his lower back pain as coming on some months later.

99. Therefore I find that in respect of this incident Mr Mellor did not suffer an injury to his lower back within the meaning of section 4 of the Act. This means that Australia Post is not liable to pay compensation pursuant to s 14 in respect of “lower back pain” following his fall in April 2003.

Decision

100.   After having considered all the evidence, and for reasons set out above, I have decided:

(a)      The decision under review dated 13 April 2007 is affirmed.

(b) The decision under review dated 17 June 2008 is set aside. In substitution thereof the Tribunal determines that Australia Post is liable to pay compensation pursuant to s 14 of the Act in respect of incapacity for work or impairment suffered by Mr Mellor as a result of any temporary aggravation of his spinal conditions.

(c) A decision on the matter of costs is reserved. The parties have 14 days from the date of this decision to advise the Tribunal if they wish to put further argument. If they do not, the Tribunal will make an appropriate order pursuant to section 67(8) of the Act.

I certify that the 100 preceding paragraphs are a true copy of the Reasons for the decision herein of Dr I Alexander, Member.

Signed:         ................[sgd]................................................................
  Associate

Dates of Hearing  3 June 2010
Date of Decision  6 July 2010
Counsel for the Applicant         Mr D Shoebridge
Solicitor for the Applicant          Ms E Hutchen, Turner Freeman Lawyers
Counsel for the Respondent     Miss R Henderson

Solicitors for the Respondent    Mr G Jones, Graham Jones Lawyers