Ocampo and Australian Postal Corporation (Compensation)

Ocampo and Australian Postal Corporation (Compensation) [2021] AATA 4464 (1 December 2021)
Division:GENERAL DIVISION
File Numbers:2018/1497, 2019/0644
2019/6343, 2020/4140

Re:Princess Ocampo
APPLICANT

Australian Postal CorporationAnd
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:1 December 2021
Place:Sydney

Application 2018/1497
The reviewable decision dated 1 February 2018 is affirmed, pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
Application 2019/0644
The reviewable decision dated 21 January 2019 is affirmed, pursuant to section 43(1) of the AAT Act.
Application 2019/6343
The reviewable decision dated 25 September 2019 is affirmed, pursuant to section 43(1) of the AAT Act.
Application 2020/4140
The reviewable decision dated 8 July 2020 is affirmed, pursuant to section 43(1) of the AAT Act.
...................................[sgd].....................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – applicant employed as parcel post officer at Australia Post – four claims – aggravation of cervical spondylosis – aggravation of neck and shoulder – aggravation of injury (neck and shoulder) plus nature and conditions of employment – secondary psychological condition – whether applicant suffered either injury in the primary sense to, or aggravation of, a pre-existing and underlying disease of both the cervical spine and the left shoulder – decisions under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19
CASES
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468
REASONS FOR DECISION
Senior Member A Poljak
1 December 2021

Ms Princess Ocampo, the applicant, is employed as a Parcel Post Officer by Australian Postal Corporation (Australia Post). The applicant commenced employment with Australia Post in November 2013 initially as a Christmas casual and became a permanent employee in November 2014 working at the Sydney West Letter Facility at Strathfield. In January 2016 the applicant was transferred to Sydney Parcel Centre, Chullora.
A Health and Safety Incident Form dated 6 April 2017 recorded the applicant’s report of pain in the shoulders extending down the left arm and into the left thumb after carrying a heavy parcel weighing 10-15 kilograms.
The applicant completed a claim for rehabilitation and compensation dated 27 April 2017 alleging she had suffered “left shoulder impingement” on 6 April 2017. Liability was accepted in respect of “aggravation of cervical spondylosis” pursuant to section 14 of the Safety, Rehabilitationand Compensation Act 1988 (Cth) (SRC Act) with a deemed date of injury of 6 April 2017. Liability was accepted to pay compensation in respect of medical treatment expenses and incapacity for work for a closed period from 6 April 2017 to 2 July 2017. It was further determined that the “aggravation of cervical spondylosis” had resolved, and the respondent was not currently liable to pay compensation under sections 16 and 19 after 2 July 2017. The applicant requested a reconsideration of the decision and it was affirmed by the reviewable decision made on 1 February 2018, which is the subject of application 2018/1497 (2018/1497).
A Health and Safety Incident Form dated 21 February 2018 indicated that the applicant had reported feeling pain in her neck and both shoulders that day because of sorting small parcels into Unit Loading Devices (ULDs) and always looking down. The applicant worked restricted duties up until 31 May 2018 when her medical restrictions tightened, and they could no longer be accommodated by the respondent. Since that time the applicant’s general practitioners have certified her as being totally unfit for work.
The applicant submitted a further claim for compensation in respect of “aggravation of neck and shoulder” on 20 November 2018.
A Onesafe Investigation Report dated 27 November 2018 indicated an event date of 21 February 2018 and that the applicant claimed that the sorting of small parcels into the ULD had caused pain in her neck and into her shoulders.
By determination dated 20 December 2018, liability in respect of “aggravation of neck and shoulder” claimed to have been sustained on 21 February 2018 was denied pursuant to section 14 of the SRC Act. The determination was affirmed by reviewable decision dated 21 January 2019, which is the subject of application 2019/0644 (2019/0644).
A further claim by the applicant for “aggravation of injury (neck and shoulder) plus nature and conditions of employment” was made on 8 March 2019. The applicant alleged that she first noticed her symptoms on 21 February 2018 and first sought medical treatment for them on 7 April 2017.
By determination dated 6 September 2019, the claim for “aggravation of injury (neck and shoulder) plus nature and conditions of employment” was denied by the respondent pursuant to section 14 of the SRC Act. That determination was affirmed by reviewable decision dated 25 September 2019 and is subject of application 2019/6343 (2019/6343).
The applicant completed a fourth claim for rehabilitation and compensation dated 9 December 2019 alleging that she has sustained a “psychological condition” on 6 April 2017.
On 19 June 2020, a determination was issued by the respondent denying liability pursuant to sections 14, 16 and 19 of the SRC Act for “secondary psychological condition”. The applicant requested a reconsideration on 29 June 2020 and on 8 July 2020 a reviewable decision was issued affirming the determination dated 19 June 2020. This decision is subject of application 2020/4140 (2020/4140).
Issues
The issues for determination in these proceedings are as follows:
2018/1497
(a)Whether the applicant’s “aggravation of the cervical spondylosis” sustained on 6 April 2017, for which liability was accepted, continues to result in an incapacity for work or need for medical treatment after 2 July 2017.
2019/0644
(b)Whether the applicant is entitled to compensation pursuant to section 14 of the SRC Act in respect of “aggravation of neck and shoulder” sustained on 21 February 2018.
2019/6343
(c)Whether the applicant is entitled to compensation in respect of “aggravation of injury (neck and shoulder) plus nature and conditions of employment” pursuant to section 14 of the SRC Act with a deemed date of injury of 7 April 2017.
2020/4140
(d)Whether the applicant is entitled to compensation in respect of a “psychological condition” secondary to her alleged neck and left shoulder symptoms pursuant to section 14 of the SRC Act.
Relevant Aspects of the Applicant’s Evidence
The applicant provided a written statement in these proceedings dated 5 March 2021. The applicant described her pre-injury duties as follows:
“My duties involved scanning parcels on the conveyor belt, and then picking up the parcel and putting it into the appropriate ULD. I also worked at the Direct Chute and in the Manual Bull Ring. All the work I did would involve parcel handling and usually working in this area meant that you could not estimate the parcel weight. The parcel could weigh up to 20 kilograms.”
The applicant stated that on 6 April 2017, she developed an “onset of pain symptoms in my neck and left shoulder and the fingers on my left hand” while she was “lifting a heavy parcel which weighed between 10 and 15 kilograms”. The pain and symptoms did not resolve the next day or after a couple of days of rest.
On 25 April 2017, the applicant returned to work on suitable duties in accordance with medical restrictions. The applicant stated that her duties involved, “pushing parcels inside a ULD direct chute”. She said she was required to stand and push parcels with a stick but was not required to lift, bend or twist. The applicant describes in her statement that she experienced sharp pain in her shoulders and neck because of the repetitive nature of the task. On 21 February 2018, the applicant claimed she suffered an aggravation to her neck and left shoulder. On or about 31 May 2018, the applicant was advised that she could not return to work due to her restrictions. The applicant described that soon after, she realised that she was “not coping mentally and emotionally as I was in constant pain and feeling physically restricted”.
At hearing, the applicant said that before moving to Australia Post, Chullora, she was able to complete her duties without any problem. She discussed her duties at Australia Post, Chullora. She said that looking at the Facility Task Analysis document (Facility Task Analysis), indirect load duty made up 75% of her shifts. Looking at the physical demands of the task and the frequency with which they are carried out; walking and carrying parcels to ULDs was required constantly; bilateral upper limb movements was required constantly; lifting up to 10 kilograms was required constantly; lifting up to 16 kilograms occurred frequently and fine motor manipulation to grasp and grip was required constantly. The applicant agreed with the duty description however stated that sometimes the weight of the parcels was heavier. In cross examination, the applicant agreed that if a parcel weighed more than 16 kilograms, and were required to be lifted, they were to be lifted by two employees or with mechanical assistance.
On 6 April 2017, the applicant described that while undertaking her indirect load duties she had “shooting pain from [her] neck down to the two fingers in [her] left hand”. After a short period of time, the applicant said she returned to work on “less hours” and “some light duties” as per restrictions. The applicant said her lighter duties were using a scanner which “required flexing my head downwards” and after about 10 or 15 minutes she would experience pain in her neck and shoulders and the “shooting pain starts”.
On 21 February 2018, the applicant said her manager moved her to a new section with a task description in the Facility Task Analysis as Out of Spec Loop. The applicant explained that on that day, she felt pain, starting from the neck to the lower back, she described it as the “worst feeling that I have”. After seeing her GP, specialists and being referred for an MRI, the applicant submitted an incident report in relation to the aggravation. She said that since 6 April 2017, up to 31 May 2018, the pain in both of her arms never went away.
The applicant said that her mental health was affected because it was her first job in Australia, and she didn’t know if it was going to be the last job that she had. She said, “it feels like it’s all my fault because I worked so hard trying to – I work trying to help my husband. And then this work give me this kind of injury and it’s really painful to have this kind of injury, you don’t know if you – I don’t know what’s my worth now. Because since I had this injury, I can’t do anymore work, even my house chores, I can’t do it anymore. Even my me time, my groceries, I can’t do it by myself now, everything is taken away”.
Key Aspects of the Medical Evidence
On 7 April 2017, a CT scan of the cervical spine showed no significant spondylotic disease, minor chronic looking disc protrusion posteriorly at C5/6 is not associated with any central canal or foraminal stenosis of concern. On the same date, an X-ray of the left shoulder showed restricted movements of the left shoulder which suggested capsular distraction of the glenohumeral joint, given the subtle crescentic gas in the joint on x-ray.
An MRI of the cervical spine and left shoulder was performed on the applicant on 1 June 2017. The MRI of the cervical spine showed a small broad-based posterior disc protrusion causing mild central canal stenosis at the C5/6 level with subsequent foraminal narrowing and potential impingement of the left C6 nerve root. The MRI of the left shoulder showed supraspinatus tendinosis with a tiny intrasubstance tear. Infraspinatus tendinosis to a lesser extent without a tear, subacromial bursitis and labral tear/SLAP lesion with a paralabral cyst inferiorly.
Associate Professor Ian Dickinson, orthopaedic surgeon, examined the applicant on 30 June 2017. In a report dated 2 July 2017, he recorded a history that the applicant had been working sorting parcels when she developed pain in her left shoulder region, she thought that it had come on over a couple of days and she noticed this on the overnight shift on 5 April. He notes that the applicant said “she felt a pain around the left shoulder and down into the left arm and also had pain in her left thumb. Her shoulder felt bruised and heavy.” Associate Professor Dickinson noted that the applicant reported her shoulder felt better but said it felt heavy with tingling or pins and needles over her left shoulder. Associate Professor Dickinson recorded that on his examination on 30 June 2017, the applicant’s shoulder moved comfortably through a full range of motion and none of the motions reproduced her symptoms. He opined that the applicant’s residual symptoms in her shoulder at the time of his examination were a result of an aggravation of an underlying degenerative change of her cervical spine. As such, she required no treatment for her shoulder. Following examination and review of available radiology, Associate Professor Dickinson diagnosed the applicant as suffering from an aggravation of cervical spondylosis. He reported the applicant had pre-existing degenerative change in the cervical spine which had been exacerbated by her work and that the work contribution had by then ceased. Associate Professor Dickinson opined that it was the pre-existing condition which was now causing the applicant symptoms. He said her prognosis is good and the condition that she has will naturally resolve itself with time. He anticipated that the applicant’s symptoms would settle within a further six weeks and she would be able to return to her full activities; normal working hours and normal duties.
Dr David Duckworth, orthopaedic surgeon, examined the applicant at her general practitioner’s request in respect of the complaints of pain affecting her left shoulder. He reported on 17 July 2017 that the applicant had vague pain around her shoulder, a lot of which appeared to be coming from the neck. He organised for her to undergo a cortisone injection under ultrasound and subsequently reported on 10 August 2017 that the applicant’s symptoms had decreased 75%.
In a second MRI report of the applicant’s cervical spine dated 21 September 2017, it was recorded, “comparison has been made with the prior MRI cervical spine of 01/06/17”, then in the comments section of the report it said, “Posterocentral disc protrusion is again noted at C5/6, similar in size to 01/06/17.”
In a report dated 28 September 2017, Dr Bhisham Singh, the applicant’s treating orthopaedic and spinal surgeon, opined that the repetitive nature of the applicant’s work was responsible for causing her current condition being a C5/6 disc herniation and for limiting her ability to work and also manage her activities at home. Dr Singh reported that if the applicant was unable to manage her symptoms by non-operative means, that she may be a candidate for therapeutic injections in the cervical spine or decompressive surgery.
In a supplementary report dated 29 January 2018, Associate Professor Dickinson advised that he had reviewed Dr Singh’s opinion and re-reviewed the CT and MRI scans. He said, “combining the information from the CT scan where the disc protrusion is chronic with calcification, and the MRI scan findings, it is considered that these are not work related but are degenerative in nature”. He could not relate the pathological changes in the applicant’s neck to any work-related event that would cause symptoms of the type which she complained of and confirmed his opinion had not altered.
At hearing, Associate Professor Dickinson confirmed that the applicant had aggravated a pre-existing and underlying condition of cervical spine degenerative disc disease, but that as at the date of his examination, the work-related contribution to that aggravation had ceased. He said there was no structural change and that “ in terms of terminology we could call this exacerbation of her underlying condition, or we could call it a temporary aggravation, but whatever had happened to her was temporary”. Regarding the radiology, Associate Professor Dickinson said:
“…on the CT scan the disc protrusion shows the calcification, and the calcification means that the condition has been there for long enough for the tissues to become calcified as opposed to just being inflamed and bulged, and there's no likelihood that a disc that has been calcified is going to reduce in size, because it's solid material. The MRI scan does not readily differentiate calcified material. So, the MRI scan images, and the first and the second images, there won't be any comment regarding calcification in those discs, and so it's more readily able to be seen that the disc protrusion is chronic on the CT scan, and that it is unlikely to change in size. So, if the change in size is considered by an observer to be minor then it may well not exist at all, and the resolution of the disc may or may not be occurring…”
Dr Singh reviewed the applicant in a follow-up on 13 March 2018. In a report of the same date, he noted that the applicant continued to have periscapular and interscapular pain secondary to her C5/6 disc injury. He noted that the applicant’s left shoulder had been injected but that had only resulted in a temporary relief of her symptoms. He believed that the applicant’s symptoms of neck pain and stiffness which were giving her referred pain in the shoulder girdle on both sides, were coming from the C5/6 disc bulge and is a result of her repetitive workplace injury. He recommended that the applicant undergo surgical decompression.
Dr Lim, general practitioner at Workers Doctors, provided an initial consultation assessment dated 21 March 2018. It was his view that the applicant had developed a neck and shoulder injury. He diagnosed “Cervical Spine Radiculopathy… L [left] shoulder tear, supraspinatus tendinosis and intrasubstance tear. Labral tear/SLAP lesion. Bursitis”. He also diagnosed a right shoulder “overcompensation” injury and chronic pain with psychological barriers. He advised it was likely that the applicant would benefit from a multi-disciplinary pain management programme.
On 2 August 2018, Dr James Bodel, orthopaedic surgeon, examined the applicant and provided a report of the same date. He recorded a history that the applicant suffered injury to her neck and left shoulder at work on 6 April 2017 and continued to work with pain in her neck which steadily worsened and began to radiate all the way down the arm to the thumb. Dr Bodel recorded that the applicant last worked on 31 May 2018, and since ceasing work, there has been a slight improvement in her clinical condition, but the applicant still reported significant ongoing pain.
Dr Bodel diagnosed the applicant with a soft tissue injury to the neck and noted that the disc pathology at C5/6 was pre-existing. He felt that the nature and conditions of the applicant’s work, in particular when they were short staffed or working on two to three conveyor belt lines, “may have caused material aggravation to the underlying pathology at the C5/6 level but there was no clinical indication that she has nerve root tension in the left upper limb. There were nonverifiable radicular complaints on testing here today”. Dr Bodel reported that the applicant had some mild rotator cuff pathology in the region of the left shoulder which he felt could also have been materially aggravated by the nature of her work. He anticipated that the applicant would further improve with conservative care and did not believe that spinal surgery was warranted and that there were no definite clinical signs of radiculopathy in the upper limbs. Dr Bodel opined that the cause of the injury is the nature and conditions of the applicant’s work. He said there is underlying pathology in the cervical spine and probably in the rotator cuff of the left shoulder which has been materially aggravated rendering it symptomatic. He recommended that the applicant be retrained and redeployed into alternative duties.

At hearing, Dr Bodel said he had the opportunity to view the MRI scans of the cervical spine on 1 June 2017 and then a further set of MRI scans of the cervical spine on 21 September 2017, the first of which was about two months after the date in question and the second five months after the date in question. It was his view that the first MRI scan showed a significant central disc bulge at C5/6. He said the fact that the second scan done three months later showed that that bulge was smaller implied that there had been some structural change in a probably pre-existing degenerative disc at C5/6, therefore, an acute change which is often called an internal disc disruption. Dr Bodel further explained that as the healing process is ongoing, the amount of swelling associated with that bulging disc had slowly decreased making the second set of films appear back to a less aggravated situation. He said that that was the reason why he thought that something happened at around about the time of the injury that’s described and has caused a change in the pathology which may have been present previously.
In his experience as an orthopaedic surgeon, Dr Bodel said it would it be unusual to find that the applicant was complaining of symptoms to do with the neck, shoulder, and occasionally down the arm, for years afterwards. At the time of his assessment, being two and a half years ago, the applicant had complaints down the left arm, but he found no signs of nerve compression. He said he was happy to call those non-verifiable radicular complaints. At the beginning it was a more intense, constant, sort of experience and after that he understood it to be more intermittent experience, referred pain, non-verifiable, down to the thumb. Assuming that some kind of aggravating process connected with the applicant’s work had taken place, Dr Bodel said that, as implied by Professor McGill and Professor Dickinson, within a certain number of weeks, the applicant would return to a less symptomatic state, but not necessarily to an asymptomatic state. He agreed that it was difficult to compare a CT scan with an MRI scan, “as they’re totally different modality of investigation”. He said, “I believe taking into consideration the CT scan, yes, there is a definite element of pre-existing pathology. The fact that in the scan that I saw two and a half months later there was a significant bulge that appeared to be acute or new is new pathology on top of the underlying chronic pathology”.
Dr Bodel agreed that if mild rotator cuff pathology has been symptomatically aggravated by work, he would have expected an improvement once that work ceased. He said, “the symptoms of pain and stiffness and weakness in the shoulder should slowly settle down once the instigating factor has stopped, particularly if there is no major structural tear in the rotator cuff and my view of what I saw was there was some tendonitis, which is inflammation, rather than a tear in the rotator cuff itself”.
Dr Neil McGill, consultant rheumatologist, examined the applicant on 8 August 2018. In a report of the same date, he recorded that the applicant reported she was performing her usual duties and there was no particular incident which led to her experiencing pain radiating from the left side of the neck to her left thumb, associated with paraesthesia. Over a period of two weeks, she experienced heaviness in her “shoulders” (upper trapezius muscles extending to base of neck). The symptoms were bilateral and essentially symmetrical. The applicant reported that a change to light duties made no difference to her symptoms. Dr McGill advised that the history given was not suggestive of a shoulder source of pain and advised that her shoulder examinations were normal. He said the imaging studies demonstrated symmetrical findings in the shoulders and degenerative change in the cervical spine. He did not believe the applicant had a left shoulder injury but rather referred pain from the cervical spine. He reported that the applicant had degenerative changes in the cervical spine which existed prior to April 2017 and were part of the normal ageing process. He felt that the fact that they did not resolve when the applicant ceased work supported his conclusion that these symptoms were not substantially influenced by her work duties. Dr McGill reported that there was no evidence to verify that the applicant’s duties working with the respondent between February 2014 and April 2017 would have made any difference to the degenerative changes in the cervical spine. He saw no physical reason why the applicant could not return to her pre-injury duties and concluded that there was no role for surgery in the absence of neurological symptoms.
Dr McGill re-examined the applicant and provided a report dated 28 August 2019. He noted that since he last examined the applicant, she had undergone an injection to the right shoulder area which provided no benefit, not even briefly, and a neck injection which was also of no benefit, not even briefly. Dr McGill reported that on 23 July 2019 the applicant had undergone cervical spine surgery being fusion with disc replacement performed by Dr Peter Khong at St George Hospital. The applicant told Dr McGill that she was pleased with the outcome of the surgery and although she still had “post-operative pain” around the neck, particularly if she attempted neck movement such as tilting to each side or when riding on a bumpy road, she no longer had symptoms radiating into either of her upper limbs.
Dr McGill repeated his opinion that the applicant had degenerative changes in the cervical spine and symmetrical minor rotator cuff and labral changes in both shoulders. He felt that the applicant’s symptoms were derived from her cervical spine degenerative disease which was constitutional and unrelated to her work. He said it was possible that the applicant’s work duties in May 2017 influenced the level of symptoms that she experienced from her cervical spine, but the symptoms would have improved/resolved within two weeks of a modification to work duties. Based on the history provided by the applicant, a cessation of work in April 2018 did not result in any improvement in her symptoms. He opined that there was no specific injury at or away from work and that the degenerative cervical spinal disease was not caused or aggravated to significant degree by her work duties at Australia Post. Dr McGill advised that the applicant was able to return to her full normal duties once the surgical healing process had occurred. He added that although he felt it clinically appropriate for the applicant to return to her duties with the respondent, he had the strong impression from the comments that the applicant made that she did not intend to seek further work of that nature.
At hearing, Dr McGill was asked to explain his view that if the work the applicant was doing in April 2017 had influenced her symptoms at that time, they would have resolved within two weeks. He said, there was no event at work or away from work with the potential to change the structure of her spine. Any effect of physical activity should subside rapidly within a couple of weeks. That was not what the applicant reported. He said, “She reported that modifying her work duties and then subsequently stopping her work duties, did not result in any improvement. And there’s nothing inconsistent about that, it just indicates that the underlying problem was not really influenced by her work duties”.
Dr Chase, occupational physician, examined the applicant and provided a report dated 18 December 2019. He recorded that the applicant said that on 6 April 2017, she was lifting parcels and felt a sharp pain down her left arm. She could not say when symptoms commenced in both arms. Dr Chase confirmed that the applicant had cervical spondylosis, which was degenerative in nature, particularly at C5/6 and noted that the upper limb radicular pain had resolved following the spinal surgery performed by Dr Khong. Dr Chase noted that on examination the applicant had a restricted range of motion of the cervical spine and “tenderness to light palpation of the central neck with only mild mid cervical articular pillar tenderness. She had full range of movement in both shoulders with crepitus but negative impingement signs. There was no shoulder tenderness”. Regarding diagnosis, Dr Chase said “[t]he underlying etiology is that this is a degenerative condition. She did not suffer from shoulder injuries and indeed the findings in the shoulders on imaging are basically degenerative also”.
Dr Chase revealed that a week prior to his examination of the applicant, he had conducted a literature review of whether there is a link between cervical spondylosis and occupational activity. He included in his report a discussion of the literature on the topic and stated that for many years there had been an assumption that cervical spondylosis was related to work. He was surprised to find in the literature a lack of evidence to support that contention. On balance he could see no clear link between the applicant’s degenerative disease and cervical spondylosis and her employment with the respondent. He stated:
“It is true that she reports that the symptoms developed during the course of her work so there is a temporal relationship but it is more likely that her cervical spondylosis would have become symptomatic at some time regardless of whether she was at work. In short I can find no clear relationship between the development of Mr Ocampo’s (sic) cervical spondylosis which subsequently became symptomatic and her work”.
Dr Chase further added that “it is likely that there was no specific incident but that her arms became symptomatic at that time and could just as plausibly become symptomatic performing other activities of daily living such as hanging out the washing or other home duties”. Dr Chase reported the applicant had a good result from surgery and her prognosis was excellent.
The applicant was referred to Dr Kumagaya, consultant psychiatrist, for psychiatric assessment. Dr Kumagaya has provided numerous reports. In a report dated 13 February 2020, he diagnosed the applicant with major depressive disorder. He noted that the applicant’s symptoms had developed in 2018. He advised that on examination, “her thought content reflected a preoccupation regarding her workplace injury, and the impact this was rendering on her quality of life”. He recommended that the applicant have weekly psychological counselling and recommended a change in anti-depressant medication.
Dr Ventura, consultant psychiatrist, examined the applicant and provided a report dated 1 September 2020. She diagnosed the applicant with major depressive disorder and somatic symptom disorder with predominant pain. Dr Ventura reported that the applicant’s symptoms developed into a diagnosable condition after she stopped work in May 2018. She noted that the applicant’s perception of pain appeared to be aggravated by her mood. Dr Ventura felt that the applicant’s depression was caused by her inability to continue working for the respondent because of her pain and noted the differences in opinion on the cause. Dr Ventura recommended that the applicant continue with psychiatric treatment for the next year but noted that the applicant had not been fully compliant with taking her prescribed antidepressant medication. Dr Ventura felt that the applicant would benefit from psychological treatment to address pain management. In addition, she reported that the applicant’s capacity for work was affected by her psychiatric symptoms stating “…her poor motivation, poor energy and heightened experience of pain prevent her from undertaking alternative duties”.
Dr Dinnen, consultant psychiatrist, examined the applicant and provided a report dated 21 October 2020. He reported that the applicant’s psychological state had deteriorated after Dr Lim declined to treat her further due to mounting costs and an argument with her husband. The applicant was found wandering the streets in the early hours of the morning and taken to Blacktown Hospital. Dr Dinnen opined that the applicant’s symptoms warrant a diagnosis of major depressive disorder which “appears to have developed following the work injury and the prolonged inability to resume employment”. He indicated that the applicant required psychiatric and psychological treatment and antidepressant medication and he felt that she was totally incapacitated for work.
Dr Dinnen provided a further report dated 10 March 2021 in which he reviewed the report from Dr Ventura of 1 September 2020. Dr Dinnen said:
“I do not believe the patient’s responses to pain are worthy of a separate diagnosis. I do not agree with Dr Ventura’s diagnosis of somatic pain disorder.
I do not agree with Dr Ventura that the pain alone, consequent to the injury, is causing the major depressive disorder. In my view, the disability consequent to the injury, is causing the major depressive disorder, combined with pain, leading to the major depressive disorder.
The opinion and comment given in my report 21 October 2020 is therefore unchanged.”
Consideration
It is alleged that the applicant suffered either injury in the primary sense to, or aggravation of, a pre-existing and underlying disease of both the cervical spine and the left shoulder.
Section 14 of the SRC Act relevantly provides:
(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.
‘Injury’ is defined in s 5A(1) of the SRC Act as follows:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
‘Disease’ is defined in s 5B of the SRC Act as follows:
Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
In Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 (May), at [50] to [52], the plurality set out the questions that the Tribunal must resolve in determining whether the applicant suffered from a disease or an injury other than a disease. The first question of course is whether the applicant suffers from an ailment that is defined in the SRC Act. The second is, if so, was that state contributed to in a material degree by the employee’s employment by the respondent. In this case however, the contribution is to a “significant degree”.
The High Court held in May that subjectively experienced symptoms such as pain without an accompanying physiological change are not sufficient to amount to either an ailment or an injury for the purposes of the SRC Act. Under the heading, ‘Not sufficient for an employee merely to feel unwell’, the plurality went on to identify the error in the decision of the Full Federal Court, which was the subject of the appeal before them at [57] to [62]:
The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind". To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on "an injury".
Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions.
Third, as seen earlier, the word "injury" in "injury (other than a disease)" has a different meaning from the defined term "injury" in s 4(1) – it means "injury" in its primary sense. That necessarily requires consideration of the "precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change".
Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged.
The "nature and incidents of the physiological [or psychiatric] change" will determine whether there was an "injury (other than a disease)". The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell. [Emphasis added]
If the applicant suffered any symptoms or pain on 6 April 2017 or 21 February 2018, or during her employment, as she alleges, the available evidence does not objectively show that this resulted in a physiological change to the underlying pre-existing pathology in her left shoulder or neck/cervical spine. Dr McGill, Dr Chase, and Dr Dickinson reported that the applicant’s claimed symptoms and restrictions resulted from pre-existing underlying degenerative pathology of the applicant’s cervical spine which has not resulted in physiological change nor been caused or contributed to, to a significant degree, by the performance of the applicant’s duties with the respondent.
Firstly, looking at the applicant’s left shoulder, Dr Bodel noted that the applicant had some mild rotator cuff pathology in her left shoulder which he thought could have been materially aggravated by the nature of her work. At hearing, he elevated materially contributed to significantly contributed to, which is the test that must be applied in this case. However, the bulk of the medical evidence does not support this assertion.
Dr Dickinson accepted an aggravation of an underlying degenerative change in the applicant’s cervical spine and opined that the applicant’s left shoulder complaints were related to this underlying condition in the applicant’s neck. He recorded that on his examination on 30 June 2017, the applicant had a full range of motion of her shoulders and none of the motions reproduced her symptoms. He recommended no treatment for the shoulder as the issue was with the applicant’s neck.

Dr McGill said in evidence that he would accept the relationship to her work if her work had involved highly repetitive work with her arms at or above shoulder height, but there was no evidence in the medical or scientific literature to suggest that repetitive use of arms between waist and chest height, loaded or unloaded, would be likely to cause rotator cuff pathology. He also said that on his initial examination of the applicant in August 2018, tenderness of the shoulders had not been suggestive of specific shoulder pathology. Although she had reported to Dr Duckworth an improvement in symptoms following injection of the left subacromial bursa, Dr McGill noted that Dr Duckworth's clinical findings prior to the injection did not suggest the shoulder was a substantial cause of her symptoms and that the reported improvement did not lead to a change in either her work capacity or the overall pattern of her symptoms reporting subsequently. Dr Singh however, noted that the applicant’s relief following cortisone injections was temporary and he believed that the applicant’s symptoms of neck pain and stiffness were giving her referred pain in the shoulder girdle on both sides.
On his second examination of the applicant in August 2019, Dr McGill recorded that she demonstrated a full range of shoulder movement bilaterally in all directions, he recorded that it caused no discomfort and again, passive impingement tests were negative bilaterally. Neither Dr Dickinson nor Dr Chase thought that the applicant’s shoulder symptoms were suggestive of rotator cuff pathology and Dr Chase recorded that on his examination of her, he found a full range of motion of the shoulders and although there was some crepitus in both shoulders, all impingement tests were negative and there was no tenderness of the shoulders themselves.
For completeness, considering the evidence, the only way the applicant could have suffered an overcompensation injury to the right shoulder was if she had carried out very repetitive work with the right arm at or above shoulder height, which she did not.
Despite the applicant continuing to complain of pain affecting the shoulders since her surgery, she has not been referred to, or seen, any appropriately qualified medical practitioners for further treatment. It appears on the available evidence that the only treatment that she has had in relation to her shoulders is, an injection to her left shoulder in 2017, analgesia and ongoing physiotherapy, which she has reported to be of no help. Dr Chase specifically addressed in his report that the applicant should cease physiotherapy as it was not doing her any good.
Considering the cervical spine, Dr McGill said that one could never necessarily identify any measurable or quantifiable physiological change that rendered an asymptomatic degenerative disc symptomatic in the absence of either a clear injury at the time, or a clear radiological trial before and afterwards. Dr Dickinson also said that the natural history of the degenerative condition of which the applicant suffers is that her temporary symptoms would resolve. It would not result in any structural change to her cervical spine.
As to the cause of the alleged injury, Dr Dickinson recorded that the applicant said her symptoms came on over a couple of days. And Dr McGill said in his evidence that he was in no doubt that she had told him no incident occurred on 6 April 2017. Considering this evidence, it would appear that the applicant’s symptoms came on gradually, while she was working and worsened with time, but they did not commence as a result of one particular lift or series of lifts. Dr Bodel even agreed that having regard to the various histories recorded, it was difficult to form a clear opinion as to whether or not there was any particular incident on 6 April 2017.
I do not accept the evidence given by Dr Bodel that the second MRI scan performed which he said shows a slightly smaller bulge in the disc than was apparent in the first scan, and that this indicated some acute event had caused the disc to bulge at some time shortly before the first MRI scan was performed. Although Dr Bodel made the bear observation of the change in size in his initial report, he did not advance in that report that it was a reason for concluding that there had been some injury on 6 April 2017, nor in his report of 23 February 2021, where he stated his disagreement with the opinions of Dr Dickinson, Dr McGill and Dr Chase.
Contrary to Dr Bodel’s opinion, Dr McGill said at hearing he had examined the scans himself and not just the reports, and he did not think there was any change. When questioned about whether he could tell anything about the date at which the pathology shown in the MRI scan dated 1 June 2017 occurred, Dr McGill said he could not. He said that there were multi-level changes which are typical of degenerative change which indicated that the process has been going on for some time. He said the calcification seen on the CT scan was better proof of chronicity, which was back in April 2017. Dr Dickinson also disagreed with Dr Bodel’s reasoning in this regard and said that it did not fit with the combined CT scan and MRI findings. Like Dr McGill, he explained that the calcification in the CT scan indicated that the condition had been there for a long time as opposed to just being inflamed and bulged, and that there was no likelihood that a disc that had been calcified was going to reduce in size. Dr Dickinson stated that if Dr Bodel was in fact correct that there was an acute disc bulge present on the first MRI which was shown to be resolving on the second one, which he did not concede, he would expect resolution of symptoms as well. Significantly, in the second MRI report of the applicant’s cervical spine dated 21 September 2017, the disc protrusion at C5/6 was similar in size to the earlier MRI scan performed on 1 June 2017. I have no reason to accept that Dr Bodel is more skilled than a specialist radiologist, Dr Dickinson, and Dr McGill in reading and interpreting the MRI scans.
There is no doubt that the applicant had degenerative disc disease in the cervical spine which pre-existed the date of claimed injury. This is supported by the CT scan performed on the day following the pain incident where the C5/6 disc was showing calcification. Dr Bodel, along with Dr McGill, accepted that this indicated that the pathology was longstanding. Liability was accepted for an aggravation of the applicant’s underlying cervical degenerative disc disease on the basis of the reports of Dr Dickinson who accepted that the work she was doing either on 6 April 2017 or perhaps over a longer period of time, may have caused a symptomatic aggravation but not any structural damage.
The applicant’s symptoms that appeared on 6 April 2017, did not persist thereafter up until she underwent surgery on 23 July 2019, as the applicant contends. Having regard to the medical notes and reports in evidence, there are large gaps between the applicant’s reports of radicular symptoms resulting from aggravation and some inconsistencies in reports given to medical practitioners on the same date.
I accept that the symptomatic aggravation Dr Dickinson identified had ceased as at the date of his examination of the applicant on 30 June 2017 as confirmed in his report dated 2 July 2017. He was quite clear in his evidence that it was the radiation of the symptoms down the left arm and into the left thumb that was caused by the aggravation and that the feeling of heaviness and tingling around the left shoulder that remained when he saw her was attributable to the underlying condition itself, namely the underlying degenerative changes in the applicant’s cervical spine. He stated that “[a]ny work component from the injury would have resolved by now”. This is also supported by the evidence of Dr McGill that any symptoms suffered by the applicant on 6 April 2017 would have resolved within two weeks.
Since 30 June 2017, there are numerous medical notes of the applicant complaining of shoulder pains however, there is no evidence that the applicant complained about any arm pain or hand pain or thumb pain until 12 September 2017, when she attended on Dr Singh. Dr Singh recorded that since the applicant had been in altered duties her pain and pins and needles had improved to a certain extent.
No further complaint of either pins and needles or arm pain was recorded prior to the aggravation claimed on 21 February 2018. It is only on 21 March 2018 when the applicant attends on Dr Lim for the first time, that there is again a record of neck pain and stiffness radiating to bilateral shoulders and arms and intermittent pins and needles in bilateral hands. Contrary to Dr Lim’s report, on the same day, 21 March 2018, Mr Heuston, physiotherapist, recorded, “Complaints of pain in the neck and bilateral cervico-scap, right side worse, pain left shoulder, superior aspect - resolved since cortisone. Pain right shoulder, posterior cuff. And pain and tingling from left shoulder to back of thumb – dormant*.”
On 4 April 2018 Mr Heuston recorded that the applicant had “noticed tingling in fingertips when driving last week”. On 4 May 2018 Dr Soo recorded that the applicant had complained of bilateral pins and needles to the lateral two and three fingers of both hands and had had one session of physiotherapy which had made it worse, so she ceased. It is not clear however, when that complaint had been, however since he went on to note under the heading "Currently"; “Pain improved to left shoulder, no pins and needles”. Further, towards the end of his notes its recorded, “She does not currently complain of any radicular symptoms anymore”. On the same date Mr Heuston recorded; “Intermittent tingling in digits 1 to 3 in right hand, vague aggravating activities”.
On 18 May 2018 Mr Heuston recorded, Right hand symptoms been okay, getting same symptoms into left hand. On 25 May 2018 he recorded: Going well, no tingling in hand lately. No further complaints of arm or hand pain or paraesthesia until 2 August 2018, when Dr Bodel listed amongst the applicant’s current complaints, “… numbness and tingling that radiates down the left arm to the left thumb. This is also intermittent.”
For these reasons, I find that on 6 April 2017, the applicant suffered an aggravation of “cervical spondylosis” which has since resolved. The respondent is liable to pay compensation for a closed period from 6 April 2017 to 2 July 2017. Additionally, I am satisfied that the applicant did not suffer an “aggravation of neck and shoulder” on 21 February 2018 nor “aggravation of injury (neck and shoulder) plus nature and conditions of employment” on 7 April 2017.
Regarding the psychiatric claim, liability stands or falls on the outcome of the physical injury claims. As I have found that there is no present liability, from 2 July 2017, for the applicant’s claimed conditions, it follows that there is no causative relationship between the applicant’s employment and any claimed secondary psychological condition.
In any event, for completeness, I prefer the evidence of Dr Ventura as to the additional diagnosis of Somatic Symptom Disorder, although, this makes no difference to liability. Of relevance, is the date on which the applicant's symptoms reached the threshold for a psychiatric disorder. The evidence of Dr Ventura is that this date was when she ceased work in May 2018. This was supported by the evidence of Dr Kumagaya and also ultimately supported by Dr Dinnen.
Decision(s)
Application 2018/1497
The reviewable decision dated 1 February 2018 is affirmed, pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
Application 2019/644
The reviewable decision dated 21 January 2019 is affirmed, pursuant to section 43(1) of the AAT Act.
Application 2019/6343
The reviewable decision dated 25 September 2019 is affirmed, pursuant to section 43(1) of the AAT Act.
Application 2020/4140
The reviewable decision dated 8 July 2020 is affirmed, pursuant to section 43(1) of the AAT Act.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

...............................[sgd].........................................
Associate
Dated: 1 December 2021

Dates of hearing: 19, 20, 21, 22 April 2021

Counsel for the Applicant: Mr L Grey

Solicitors for the Applicant: Ms B Elmasri, Turner Freeman Lawyers

Counsel for the Respondent: Mr B Kelly

Solicitors for the Respondent: Ms S Johnson, HBA Legal

[2021] AATA 4464

1 December 2021

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Remedies

Judicial Review

Dates of hearing:	19, 20, 21, 22 April 2021
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Ms B Elmasri, Turner Freeman Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Ms S Johnson, HBA Legal