Messenger and Australian Postal Corporation
[2005] AATA 864
•5 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 864
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/14
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY MESSENGER Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member L. Hastwell
Dr E. Eriksen (Member)Date5 September 2005
PlaceAdelaide
Decision The Tribunal:
(a) sets aside the decision under review and in substitution for that decision decides that the respondent is liable to pay compensation in respect of the applicant’s condition of “nerve compression neck/left arm”;
(b) reserves liberty to apply within 14 days in relation to costs of the proceedings; and
(c) orders that in the absence of any such application the respondent pay the costs of the proceedings.
..............................................
L. Hastwell
(Senior Member)
CATCHWORDS
COMPENSATION – liability – whether injury arose out of or in the course of employment as postal delivery officer – disc protrusion – disc rupture – acceleration – aggravation - decision set aside
Safety Rehabilitation and Compensation Act 1988 sections 4, 14.
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Casarotto and Australian Postal Corporation (1989) 10 AAR 191
Dibbins v Dibbins (1978) 80 LSJS 165REASONS FOR DECISION
5 September 2005 Senior Member L Hastwell
Dr E. Eriksen (Member)
1. On the 15th December 2003 the Australian Postal Corporation (the respondent) denied liability for nerve compression neck/left arm suffered by Barry Messenger (the applicant) in or around 29th September 2003. Upon reconsideration that decision was affirmed on the 17th January 2004. The applicant has applied to this Tribunal for a review of that decision.
2. Counsel for the applicant was Mr Cocks. Counsel for the respondent was Mr McRae. Various exhibits were received into evidence including the T Documents as exhibit A1 and the Supplementary T Documents as exhibit A2. The applicant gave evidence and Dr Chad Brunner also gave evidence for the applicant. The respondent called Mr Peter Bartolo, Dr G. Graham, Dr G. McCulloch and Dr M. Begg to give evidence.
Background
3. The applicant is an employee of Australia Post. He is 45 years of age. He has worked with Australia Post since 1998 and his position was that of a Senior Postal Delivery Officer Grade 2 at the time that he sustained a discal injury in or around late 2003.
4. It is common ground that the applicant suffered from a left-postero lateral disc protrusion at C6-7 causing left C7 nerve root compression which condition was diagnosed in late 2003. He underwent a C6-7 anterior cervical discectomy fusion in February 2004.
5. The applicant asserts that the duties of his employment with the respondent caused or aggravated or accelerated the disc injury.
6. The respondent asserts that the disc injury was not caused by or aggravated or accelerated by the applicant’s employment but rather that it was the result of natural degenerative processes.
7. The onus lies on the applicant to demonstrate on the balance of probabilities the causal link between the injury and his employment, or that the duties of his employment accelerated or aggravated an existing injury.
Issues
8. The issues for the Tribunal to determine are as follows:
(i)Did the applicant’s injury arise out of or in the course of his employment with the respondent; or
(ii)Did the applicant’s duties of employment aggravate or accelerate the onset of his condition, or did it hasten the progression of his condition.
The relevant legislation is contained in section 4 and section 14 of the Commonwealth Safety Rehabilitation and Compensation Act 1988 (the Act).
Discussion of the evidence
9. The applicant has suffered a genuine injury that has been a cause of suffering and distress to him. He was emotional at times when giving his evidence and it was evident that he genuinely considered that his duties of employment had either caused or aggravated his injury. The Tribunal accepted his evidence insofar as it related to the period from October onwards as his symptoms were developing. The Tribunal did not accept that part of his evidence that went to an incident that supposedly occurred in September of 2003 when he experienced a pain in his shoulder. The Tribunal also formed the view that he exaggerated aspects of his duties of employment. Nevertheless the Tribunal was satisfied that the applicant was essentially an honest witness whose memories, in particular of an incident in late September 2003, were coloured by the pressure put on him to recall a “specific incident“ that could have caused the injury in question. Causation was not a straightforward issue in this case.
10. The applicant ultimately did not rely on an incident of specific trauma as being the cause of the discal bulge and then protrusion and the compression of the C7 nerve root. There was initially some reliance placed on an incident that he alleged occurred in late September 2003 when he felt a minor pinging sensation in his left upper posterior shoulder blade when he reached over his head to pull himself into a delivery van. He was unable to link that incident to the sudden onset of pain or symptoms as would be consistent with the disc protrusion that occurred. He ultimately did not press the assertion that this was a specific work incident that caused contributed to or aggravated the condition. He relied on the duties of his employment as being the aggravating or accelerating factor and in particular the requirement to lift moderately heavy weights and the twisting, reaching and turning involved in his employment.
11. In relation to the issue of when the protrusion and subsequent rupture of the disc occurred, the Tribunal was guided by the medical evidence and in particular the evidence of Drs Begg and McCulloch on that point. Because of the acknowledged underlying degenerative condition of the cervical spine from which the applicant suffers, it is impossible to point to when the disc protrusion began. It is only possible to pinpoint when it became symptomatic.
12. The Tribunal also had the benefit of medical evidence from the applicant’s General Practitioner Dr Brunner. His medical record of consultations with the applicant during the relevant period was a valuable part of the evidence. They provided a contemporaneous record of the unfolding of events in the two months immediately prior to the applicant lodging his claim. They provided direct evidence of the symptoms that the applicant was reporting at the time.
13. Dr Brunner formed the view that the applicant’s duties of employment had contributed to or accelerated or caused the discal protrusion that resulted in the applicant’s subsequent surgery and incapacity. He based that view on his consultations with the applicant and his observation that the condition worsened between an initial presentation for treatment in October 2003 and a progression to more extreme symptoms over the next two months.
14. Drs Begg and McCulloch who gave evidence for the respondent expressed a contrary view to that of Dr Brunner. Dr Begg would not be drawn to link the applicant’s duties of employment with the injury in question. Dr McCulloch was cautious in his evidence but ultimately expressed a view on the balance of probabilities that the duties of employment did not contribute to the injury. He did however express the view that the activities undertaken by the applicant between November 2003 and when he commenced light duties in December of 2003 could possibly have aggravated the cervical spine condition.
15. Dr Graham, an occupational physician, also gave evidence for the respondent. He saw the applicant for assessment in early December 2003 shortly before the acute phase of the applicant’s injury began. His evidence went largely to confirming the information given to him by the applicant at the time and to some speculation about the aetiology of the injury.
16. The Tribunal had to carefully consider all medical evidence available including medical evidence contained in various exhibits.
17. Mr Peter Bartolo, a delivery manager for the respondent, gave evidence as to the tasks of employment involved in the applicant’s position as Postal Delivery Officer. He also gave evidence as to when the first report of an injury was made to the respondent by the applicant.
Findings of Fact
18. Based on all the evidence before the Tribunal, the Tribunal made the following findings.
19. The applicant was employed by the respondent at all relevant times as a Postal Delivery Officer Grade 2 and is a person to whom the Safety Rehabilitation and Compensation Act 1988 applies.
20. In September 2003 the applicant took time off work for an ear operation and he returned to work on the 15th September 2003. At that point the applicant had no prior history of back problems and had generally enjoyed good health throughout his life.
21. On the balance of probabilities the Tribunal is satisfied that the van incident of late September did not contribute to or cause any injury to the applicant’s cervical spine.
22. The applicant returned to van driving duties in September 2003 and he continued undertaking those duties for the next month until mid October and until he received a clearance from his General Practitioner to return to normal mail delivery duties. Thereafter he was a team leader for approximately one month before returning to his normal duties as a Postal Delivery Officer.
23. The duties of being a van driver involved sorting mail, lifting tubs and trays of mail and delivering bundles of postal bags. The tubs sometimes had to be carried some distance and usually weighed 10 to 12 kilograms. The letter trays weighed up to 8 kilograms.
24. There was some conflict in the evidence as to the weight of the trays, tubs and postal rolls that the applicant was required to carry and deliver. The Tribunal was satisfied that on occasions the weight of tubs probably marginally exceeded the desired weight of around 10 to 12 kilograms because of the nature of the material contained in them. There was no formal weighing process to establish the actual weight of containers. The Tribunal can make no precise finding on the evidence as to the frequency of tubs or trays exceeding the desired weight. The Tribunal is satisfied that the respondent was conscious of weight standards and endeavoured to maintain weights at a moderate level.
25. A minor incident may have occurred in late September of 2003 when the applicant felt a jab or a muscle twinge in his left upper posterior shoulder blade when entering the delivery van. The Tribunal is satisfied on the balance of probabilities and based on the medical evidence that this incident if it did occur was not related in any way to the disc protrusion or rupture subsequently suffered by the applicant.
26. The applicant completed van driving duties on the 13th October 2003 and thereafter he assumed the position of relief team leader for the next month. In that role he supervised a group of 7 postmen. He sorted parcels and he assisted with motor cycle deliveries whenever required to make sure all rounds were completed by his team of postmen. It appears that he returned to his normal postal delivery duties for the latter part of November.
27. Motorcycle delivery work involved use of his left arm and shoulder and it required him to twist and look behind to take mail out of the basket. On occasions he had to reach or move in awkward ways to place letters in a letter box because the box was not appropriately placed. Sorting work involved reaching and turning his head and the upper part of his body to sort mail into a VSORT workstation.
28. The applicant saw his GP on the 10th October 2003 with a complaint of a sore left shoulder. It is possible that this was the first sign of a disc protrusion becoming symptomatic.
29. On 8th November the applicant presented to his GP once more with tennis elbow symptoms and in addition he was exhibiting the symptoms of nerve root irritation in that he was complaining of pain radiating into his hand. Dr Brunner tested for tennis elbow and administered a steroid injection. The Tribunal is satisfied on the balance of probabilities that this was the first clear indication of the bulging disc becoming symptomatic and irritating the nerve root. It is more likely than not that the disc protrusion was becoming more pronounced.
30. Between 10th November and the 1st of December 2003 the applicant continued to carry out the normal duties of his employment including doing motorcycle delivery rounds and sorting. He sought no medical assistance during that time.
31. The applicant presented to Dr Brunner on the 1st December 2003 complaining of worsening symptoms including continued sore left shoulder and elbow and some paresthesia into his forearms. The doctor diagnosed that it was likely that the applicant was exhibiting symptoms of a cervical spine nerve root entrapment problem. The Tribunal accepts that was a correct diagnosis.
32. The applicant reported the injury to the Respondent on the 2nd of December 2003. The respondent referred him to see an occupational physician, Dr Graham, on the next day. Dr Graham was uncertain as to the cause of the arm pain complained of by the applicant and he referred the applicant for physiotherapy and gave him a certificate for light duties until the 8th December.
33. Based on the medical evidence as to the pain that is experienced when a disc rupture occurs the Tribunal is satisfied that the disc rupture had not occurred at the time that the applicant saw Dr Graham. The symptoms of the disc protrusion remained symptomatic and it is likely that he had symptoms of nerve root irritation from a disc protrusion without a frank rupture.
34. From the 2nd December the applicant remained on restricted duties until he ceased work for the Christmas break on the 24th December 2003. He did not return to work until several months after his surgery in February of 2004.
35. While on restricted duties between the 2nd and the 24th December the applicant did not do any mail deliveries and he was required to do his sorting at a reduced pace.
36. The applicant had physiotherapy treatment as part of the respondent’s early intervention programme on several occasions between the date that he saw Dr Graham on the 3rd December and the 12th of December.
37. A CAT scan carried out on the 5th December noted degenerative changes at multiple levels in the applicant’s cervical spine giving rise to a diagnosis of cervical spondylosis. This is a constitutional degenerative condition that tends to be progressive. The scan failed to show a disc protrusion at C6/7 level. It appears likely that the disc protrusion was visible on the scan but not reported in the CAT scan report as per the observations of Dr McCulloch reported in his report of the 4th May 2004 (Exhibit A2/T2).
38. The applicant lodged a claim for compensation on the 8th December 2003. In that claim he related the injury to van driving duties in September of that year but did not refer to any specific incident.
39. On the 13th December the applicant presented to Dr Brunner complaining of significantly worsening pain levels. He was suffering sleep disturbance because of the pain and he reported having had trouble changing gears on his vehicle because of the level of pain in his left arm. Dr Brunner prescribed strong pain killing medication and shortly thereafter referred him to a neurosurgeon Dr McDonald. The applicant suffered significant and disabling pain thereafter which continued until he had surgical intervention in February 2004.
40. The Tribunal finds based on all the evidence and the very specific evidence of Dr McCulloch on this point, that that on the balance of probabilities the actual rupture of the disc occurred between the 5th and the 13th of December 2003. At all times during this time the applicant was undertaking restricted duties.
41. The Tribunal is satisfied on the balance of probabilities that the applicant was suffering from a long standing degenerative condition of the cervical spine that ultimately gave rise to a soft tissue injury namely a spontaneous disc bulge that lead to a protrusion and nerve root irritation followed by a rupture. It is not possible to point to any specific incident that occurred in the course of his employment that caused the disc protrusion.
42. The applicant underwent C6/7 anterior cervical discectomy fusion on the 26 February 2004. He remained incapacitated for work for some months after the surgery.
43. The Tribunal is satisfied that his usual work activities were more than the usual activities of daily living in the period from early October until 1st December 2003.
Legislation
44. Section 14 of the Act provides:
“Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
45. Injury is defined in section 4 of the Act in the following terms:
“injury means:
(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;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
Aggravation is also specifically defined in section 4 to include an “acceleration or recurrence.”
Application of the Law
46. Ultimately the applicant relied on the third limb of the definition of injury, namely:
“An aggravation of a…physical injury …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.”
47. Given that the Tribunal is satisfied that it is not possible to link the actual disc protrusion with any particular incident or aspect of the applicant’s employment the issue becomes one of whether the applicant’s work has caused, aggravated or accelerated the disc rupture and the consequent incapacity.
48. The concept of “aggravation” has been judicially considered on numerous occasions In OgdenIndustries Pty. Ltd. v. Lucas (1967) 116 CLR 537 at p 593. Windeyer J, in considering the workers compensation legislation of Victoria which defined injury by reference, inter alia, to the "recurrence, aggravation or acceleration of any pre-existing injury or disease", said at p.593:
"’Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ’Acceleration’… “probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested but susceptible of being hastened by external stimuli":
49. In Casarotto and Australian Postal Corporation (1989) 10 AAR 191, Hill J considered the authorities on this point and commented at p.197:
“These quotations illustrate what appears in any event from the ordinary English meaning of the words "aggravation and acceleration", namely that "aggravation" connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.”
50. The medical opinions before the Tribunal focused mainly on when the disc ruptured and the Tribunal accepts the evidence of Dr McCulloch in particular on that point. The remaining issue for the Tribunal is whether the duties of employment between late October and the 1st December 2003 hastened in any way the progression of the disc abnormality which led from a bulge to a protrusion to a rupture. The cases support the view that if in the Tribunal’s opinion, the protrusion that led to the rupture was hastened by the applicant’s duties of employment, then the applicant succeeds.
51. The applicant pointed to the fact that his duties involved moderately strenuous activity at times and in particular a significant amount of neck mobility was involved. He had to lift moderate weights and when sorting and delivering mail he had to reach, to twist his body in awkward positions and look over his shoulder. Dr Brunner was of the view that the applicant’s employment had contributed to a worsening of his injury.
52. The applicant was on restricted duties after the 2nd December and he described his modified duties which cannot be described as more than a variation on the activities of daily living.
53. The relevant period to consider when considering whether an aggravation or acceleration of his condition occurred is the period from late October until the 1st December. For most of that time the applicant was undertaking normal duties with a condition that was worsening such that he had to seek further medical attention on the 1st December because of worsening pain.
54. The Tribunal refers to the comments of Bright J in Dibbins v Dibbins (1978) 80 LSJS 165 at 165.9 to 166.3:
“…Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient’s account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.”
55. Overall the applicant was a credible witness. The medical evidence differs as to whether the applicant’s duties could have contributed to his injuries. The Tribunal accepts that the applicant’s condition was progressing throughout October and November of 2003 with the disc protrusion worsening the nerve root compression.
56. After considering all the evidence the Tribunal is satisfied to the requisite degree that the nature of the duties of the applicant’s employment between late October and early December 2003 hastened the progression of the disc protrusion from which the applicant was suffering. The Tribunal finds on the balance of probabilities that the duties of his employment during that period exceeded the normal activities of daily living and constituted an external stimulus that hastened the progression of the disc protrusion that ultimately lead to the rupture.
57. The Tribunal accordingly sets aside the decision under review and in substitution for that decision decides that the respondent is liable to pay compensation in respect of the applicant’s condition of “nerve compression neck/left arm.”
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Dr E. Eriksen (Member)
Signed: ...............................................................
AssociateDates of Hearing 1-3 June 2005
Date of Decision 5 September 2005
Counsel for the Applicant Mr C. Cocks
Solicitor for the Applicant David H Wilson
Counsel for the Respondent Mr T. McRae
Solicitor for the Respondent Thomson Playford
0
2
0