Ortolan and Australian Postal Corporation (Compensation)

Ortolan and Australian Postal Corporation (Compensation) [2020] AATA 3642 (18 September 2020)
Division:GENERAL DIVISION
File Number:2018/2057
Re:Lisa Ortolan
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:18 September 2020
Place:Brisbane

The Tribunal affirms the decision under review.
...................[SGD]..............................................
Member D Mitchell
CATCHWORDS
COMPENSATION – what is correct diagnosis of condition – Scheuermann’s disease – whether condition is an injury (other than a disease) or disease – whether the Applicant’s employment contributed, to a significant degree, to the onset or aggravation of the Applicant’s condition – where Respondent determined no liability for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation [1998] FCA 335
REASONS FOR DECISION
Member D Mitchell
18 September 2020
INTRODUCTION

Ms Lisa Ortolan (the Applicant) is seeking review of a decision of the Respondent dated 8 January 2018.[1]
[1] Exhibit 1, T Documents, T48, page 133, Reviewable Decision.
The reviewable decision affirmed a determination dated 11 September 2017[2] that liability was denied under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for ‘compression factures in the spine, partially collapsed left lung’ (the claimed injury).[3]
[2] Exhibit 1, T Documents, T36, pages 107-109, Determination Decision.
[3] Exhibit 1, T Documents, T48, page 133, Reviewable Decision.
BACKGROUND AND CLAIMS HISTORY
The Applicant commenced her current employment with the Respondent in August 2011.[4]
[4] Exhibit 1, T Documents, T6, pages 35-44, Pre-Employment Medical.
After having been offered a full time position as a postal delivery officer (PDO)[5] she underwent a pre-employment medical examination[6] on 19 April 2016. On examination, the only active condition identified was left wrist pain. The Applicant’s lungs, neck/cervical spine and thoraco-lumbar spine were noted to be normal.[7]
[5]     Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020,    Applicant’s submission.
[6]     Exhibit 1, T Documents, T6, pages 35-44, Pre-Employment Medical.
[7]     Exhibit 1, T Documents, T6, pages 42-43, Pre-Employment Medical.
In completing the pre-employment medical examination form,[8] the Applicant disclosed the following medical history:[9]
(a)Workers’ compensation claim for bone bruising and soft tissues injuries in March 2012 in the course of her employment with APC after being reversed into by a ute;
(b)Right middle finger crush injury and amputation;
(c)Motorcycle injury in 1994 resulting in left knee injury and patellectomy;
(d)Motorcycle injury in 2011 resulting in left forearm, wrist and shoulder injury;
(e)6 operations on left knee between 1995 and 2002;
(f)6 operations on right middle finger between 2005 and 2010; and
(g)Occasional migraines relieved by anti-migraine medication.
[8] Exhibit 1, T Documents, T6, pages 35-44, Pre-Employment Medical.
[9] As summarised in Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, pages 1-2, paragraph 3.2.
The Applicant’s last day at work was 20 March 2017. She provided medical certificates and reports certifying her as unfit to continue her usual occupation.[10]
[10] Exhibit 1, T Documents, T7, T8, T9, T10, T11, T12, T13, T14, T15, T16, T17, T18, T20, T21, T25, T27, T33, T40, Medical Certificates.
In a letter dated 9 April 2017, Dr Chek Chan, General Practitioner provided:[11]
[The Applicant] has wedge fractures of T6 and 7 reported on xray. She has been having chest wall pain.
It is possible that the wedge factures may be causing her pain in the context of her work as a bikie which does tend to keep jarring the spine to a greater or lesser degree.
[11] Exhibit 1, T Documents, T15, page 53, Medical Report of Dr Chek Chan.
On 28 April 2017, a Health and Safety Incident form was completed by the Applicant’s supervisor Ms Lea Brock.[12] Ms Brock recorded that an incident had occurred on 7 December 2016 at 11.00 am while the Applicant was delivering mail.[13] In response to the question what happened during the incident it was recorded that “PDO says she remembers hitting a large hole in the footpath.”[14] In response to the question provide details of injury/illness sustained it was recorded that “PDO says her injury fractures to back and compressed disks may have been due to hitting a large pot hole she did not feel any pain this was due to the pain relief she had been taking. PDO has not provided any time or date.”[15]
[12]    Exhibit 1, T Documents, T19, pages 60-64, Health and Safety Incident Form.
[13]    Exhibit 1, T Documents, T19, page 60, Health and Safety Incident Form.
[14]    Exhibit 1, T Documents, T19, pages 60-61, Health and Safety Incident Form.
[15]    Exhibit 1, T Documents, T19, page 61, Health and Safety Incident Form.
The Applicant completed a Claim for Rehabilitation and Compensation form dated 26 May 2017[16] in relation to “Compression fractures in the spine. Partially collapsed left lung” that she first noticed in “Early to mid Dec 16” and first sought treatment for on 22 March 2017. The Applicant stated that the injury/illness did not result from one specific incident and that she had reported having a sore back several times to Lea Brock and Lyle Banks.
[16] Exhibit 1, T Documents, T22, pages 67-71, Claim for Rehabilitation and Compensation.
On 9 August 2017, the Applicant lodged an amended Claim for Rehabilitation and Compensation form providing that the date of injury was 7 December 2016.[17]
[17] Exhibit 1, T Documents, T22, page 68, Claim for Rehabilitation and Compensation.
On 26 May 2017, the Applicant lodged a Request for Rehabilitation.[18] The Applicant provided:[19]
Injury/Illness: compression fractures of the spine. Partially collapsed left lung. Trouble breathing. Lots of pain.
Incident details – how it occurred: Continuous jolting on postie bike plus extra sharp ones in various places. I knew my back was sore but didn’t realise there was damage or the extent of it.
Comments: Been away on Medical Certificates for every day since the injury was discovered. I went to the doctor thinking I had pneumonia.
[18] Exhibit 1, T Documents, T23, pages 72-74, Request for Rehabilitation.
[19] Exhibit 1, T Documents, T23, page 72, Request for Rehabilitation.
On 30 May 2017, the Applicant sent an email to the Respondent stating that she had worked at the Clontarf Delivery Centre as a PDO for nearly 6 years and that:[20]
Both of my full time delivery runs at Clontarf DC have a reasonable amount of large bumps on them. Last year my back was already hurting before I worked at Northgate Transport. It was nice to drive the trucks for three months and feel very little pain. However, when I returned to Clontarf before Christmas, so did the pain. I'd never thought much about it till then, as I assumed a sore back was part of this job so I just kept going.
It was coming up to Christmas and we were pretty busy. I kept working as I was living alone and had rent and bills to pay. I mentioned my sore back on a number of occasions and was always told to take it easy out there. I never pushed the issue as I didn't realise how bad it was. I do however remember a few serious jolts/bumps which caused a lot of pain at the time they happened, but didn't expect anything ongoing. They seemed to happen when the rear wheel would suddenly fall in a hole, or there were large worn out driveway tracks with no concrete. When these severe jolts happened, it would really hurt between my shoulder blades.
[20] Exhibit 1, T Documents, T24, page 75, Email from the Applicant to the Respondent.
On 12 July 2017, in completing a Queensland workers’ compensation certificate, Dr Scott Ferguson, General Practitioner provided a diagnosis of severe upper back pain secondary to wedge fractures thoracic spine with a date of injury as 21 March 2017 and listed the cause of injury as being postal motorbike travelling over rough terrain with minimal suspension on bike.[21]
[21] Exhibit 1, T Documents, T27, page 91, Medical Certificate.
At the request of the Respondent, on 31 July 2017 an Initial Assessment for Rehabilitation was completed.[22] The Applicant was diagnosed with “Thoracic and Lumbar spine – Severe upper back pain secondary to wedge fractures thoracic spine” with a date of injury listed as 28 April 2017.[23] The Assessor recorded that the Applicant reported the following:[24]
·Returned to postal delivery officer duties at Clontarf Delivery Centre in late November 2016 after doing some work for Northgate Transport (driving trucks). Upon return, experienced onset of low back symptoms however did not associate them with a particular event. [The Applicant] stated the terrain on which she completed her motorcycle deliveries was rough. She said she required a few days off work in early 2017 due to exacerbated symptoms. [The Applicant] advised that she reported her symptoms to her Manager on a number of occasions, however, was not provided with the support she felt she required.
·On 22/03/2017 symptoms were severe and she was unable to finish her shift. [The Applicant] stated that was the last time she was at work and has not returned since.
·Consulted local GP on various occasions, thinking she was experiencing a virus (due to the nature of other additional symptoms such as full body aching).
·Between the months of March and April 2017, underwent a chest x-ray, a bone density scan, MRI, CT scans under the care of local GP's at the Murrumba Downs Medical Centre (a walk in clinic). [The Applicant] received private medical certificates during this period, and remained unfit for work. She said she was diagnosed with "crushed vertebrae" from T5-T10 and an L5 "slipped disc".
·Consulted longstanding GP, Dr Ferguson at Indooroopilly Shopping Centre in late June and again on 12/07/2017 and 19/07/2017 as felt was not receiving optimal care from local GP's. She said Dr Ferguson recommended rest to aid in recovery and deemed [the Applicant] unfit for work until 31/08/2017. [The Applicant] advised treatment was not recommended however that she was encouraged to avoid lifting and ensure regular mobilisation.
·[The Applicant] said she has experienced other health concerns as a result of being immobile for such a lengthy period, including a pressure sore, urinary tract infection, weight gain, deconditioned muscles and severe fatigue.
[22]    Exhibit 1, T Documents, T29, pages 93-98, Initial Assessment for Rehabilitation.
[23]    Exhibit 1, T Documents, T29, page 93, Initial Assessment for Rehabilitation.
[24]    Exhibit 1, T Documents, T29, page 94, Initial Assessment for Rehabilitation.
By determination dated 11 September 2017, the Respondent denied liability under section 14 of the SRC Act in respect of the claimed injury. The Respondent relied on section 53(1) of the SRC Act sighting the delay in reporting the injury. The incident report had a date of injury of 7 December 2016 however, the date the incident was reported was 28 April 2017.[25]
[25] Exhibit 1, T Documents, T36, pages 107-109, Letter to Applicant from the Respondent.
The Tribunal notes that during the review process the Respondent no longer relied upon section 53(1) of the SRC Act as a basis for denying liability for compensation for the claimed injury. This was confirmed by the Respondent at Hearing and as such submissions in relation to the issue were not required to be taken into consideration.[26]
[26] Transcript pages 4-5.
On 11 October 2017, the Applicant sought a review of the determination and a request for an extension of time to provide all information upon which she was seeking to rely.[27] The Applicant provided a letter dated 6 November 2017 enclosing relevant documentation.[28]
[27] Exhibit 1, T Documents, T37, pages 110-113, Email from the Applicant to the Respondent.
[28] Exhibit 1, T Documents, T41, pages 117-120, Letter from the Applicant to the Respondent.
In the letter dated 6 November 2017, the Applicant provided that “there was never one date that the injuries occurred on. It was caused from continuously riding the small work motorcycle, loaded with mail as well as ever more and larger parcels, over rough and uneven ground.”[29]
[29] Exhibit 1, T Documents, T41, page 117, Letter from the Applicant to the Respondent.
The Applicant sought a further extension of time to provide a report from an Orthopaedic Surgeon which was granted by the Respondent to 6 December 2017.[30]
[30] Exhibit 1, T Documents, T42, pages 121-125, Emails between the Applicant and Respondent.
On 8 January 2018, the determination to deny liability in respect of the claimed injury was affirmed on the basis that the Reconsideration Officer was not satisfied that there was a causal nexus between the Applicant’s claimed condition(s) and employment with the Respondent.[31]
[31] Exhibit 1, T Documents, T48, page 133, Reviewable Decision.
On 18 April 2018, the Applicant sought review of the decision by this Tribunal.[32]
[32] Exhibit 1, T Documents, T1, page 6, Tribunal Order providing an extension of time for the Applicant to file her application for review.
ISSUES
The primary issue before the Tribunal is whether the Applicant is entitled to compensation under section 14 of the SRC Act in respect of the claimed injury.
In considering this issue, the Tribunal must consider:
1.what is the correct diagnosis of the claimed injury;
2.did the Applicant suffer a disease, or an aggravation of a disease; if so, was that disease or aggravation of a disease contributed to, to a significant degree, by her employment with the Respondent; or
3.did the Applicant suffer an injury, which arose out of, or in the course of her employment with the Respondent?
THE LAW
The Respondent is a licensed authority for section 98A of the SRC Act and as such references made below to Comcare can be taken to be a reference for the purpose of this matter to the Respondent.
Section 14 of the SRC Act deals with compensation for injuries and 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.
Section 5A of the SRC Act defines “injury” to mean:
(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.
Section 5B of the SRC Act defines “disease” to mean:
(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 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.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
Section 4 of the SRC Act defines ailment as any physical or mental ailment, disorder, effect or morbid condition (whether of sudden onset or gradual development).
EVIDENCE
Applicant’s Evidence
On 17 April 2020, the Applicant submitted to the Tribunal a statement setting out a timeline of events.[33] At Hearing it was decided that the information provided after the timeline entry dated 26 June 2015 would be admitted as evidence for consideration by the Tribunal. The Tribunal notes that it is clear from the Applicant’s timeline, other submissions that form part of the T-Documents[34] and her oral evidence at Hearing, that her employment with the Respondent had been quite difficult, she had experienced an earlier workplace accident and conflict with her supervisors. The Tribunal acknowledged these difficulties and while not discounting that they occurred or how they impacted upon the Applicant, explained that it does not have jurisdiction to consider any matters outside of the reviewable decision which relates to the claimed injury.
[33] Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020, Applicant’s submissions.
[34] Exhibit 1, T Documents.
In the Applicant’s statement, she outlined that from June 2015 onwards she had reported back pain to her supervisors and to the doctor when she underwent her pre-employment medical examination. She said that once she started using the new postal bike her back hurt more and became progressively worse until she was no longer able to perform her duties. Her last day of work was in March 2017.[35]
[35] Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020, Applicant’s submissions.
Throughout the Tribunal process, the Applicant provided further medical evidence from Dr Ferguson and Dr John Albietz.
In a report dated 6 November 2017, Dr Ferguson provided that:[36]
The above patient has crush fractures in a number of vertebrae in her back. This may well have resulted from riding long hours on a small motorbike on uneven terrain.
[36] Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020, Report of Dr Scott Ferguson dated 6 November 2017.
The Applicant provided a report of Dr Albietz, Adult and Paediatric Spinal Surgeon dated 28 November 2017 addressed to Dr Ferguson.[37] Dr Albietz provided:[38]
Between December 2016 and March 2017 [the Applicant] developed progressively worsening mid thoracic back pain through repeated jolting through her spine riding over speed bumps whilst delivering mail. This culminated in the development of severe thoracic pain in March 2017. [The Applicant] continues to experience mid thoracic pain, lower back pain, and left sciatica. She hasn’t been able to return to any work activity since that time. [The Applicant] place a claim through the Worker’s Compensation for the symptoms/injury which was denied and unfortunately not received any treatment other than analgesic medication. ……
…..
Imaging of [the Applicant’s] spine includes a CT Scan, bone scan and recent MRI scan. The changes in her thoracic spine have been reported as fractures though in my opinion are consistent with thoracic Scheuermann’s disease with wedged vertebrae, discogenic deterioration, corrugated endplates and Schmorl’s nodes from T5 to T10. There is also discogenic deterioration at the L4/5 and L5/S1 levels. There is no neural compression to explained referred leg symptoms.
Through work activity [the Applicant] has suffered repetitive strain to her thoracic spine aggravating thoracic Scheuermann’s disease/spondylosis. She was harshly dealt with to have her Workcover claim rejected. The report of thoracic fractures has and will continue to create significant psychological and potentially medicolegal problems. Early formalised therapy potentially may have provided significant benefit. [The Applicant] now has chronic pain, considerable dysfunction and an uncertain future. She requires input from a chronic pain physician and treatment through a formalised rehabilitation program including hydrotherapy. [The Applicant] is uninsured though I understand is engaging a lawyer which will hopefully allow her to obtaining appropriate medical treatment. ……
[37] Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020, Report of Dr John Albietz dated 28 November 2017.
[38] Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020, Report of Dr John Albietz dated 28 November 2017.

At Hearing the Applicant appeared by telephone and gave evidence under affirmation. She told the Tribunal that:[39]
[39] Transcript, pages 27-32.
·Her manager was aware of her back pain since as early as 2015.
·Her injury did not happen on 7 December 2016, she was bullied to put a date on the forms.
·She was extremely fit and healthy before the claimed injury occurred, when she started working at Post she was cycling 30 kilometres a day before work and then once her back started hurting she could not ride her pushbike or motorcycle.
·She has X-rays that state she has fractures and from what she had read Scheuermann’s disease does not cause fractures, so why are they telling her she has fractures.
·The accident in 2010 was very minor and she walked out of the car after it happened. She said if the reports are real she had never heard of Scheuermann’s disease before, if she had of known she would have done something about it. This accident was minor compared to the one she had in 2012. She said that the reports from 2010 were not bought to her attention at the time and that the first time she knew about Scheuermann’s disease was after the imaging that was done in 2017.
·She did not have a back problem after the 2010 accident, she did not get physio or treatment, she was riding her own motorcycle and cycling 30 kilometres before work.
·Her back pain developed over time and got worse and worse as she continued to ride her postal bike.
·Since she had not been working the pain has improved a little, especially since November 2019 as she had lost about 6 kilograms. It still flairs up before she tries to do anything like washing a few dishes or sweep the wooden floors. She cannot do much.
·She is normally an artist but she has hardly been able to touch it because she can not sit for that long.
·It would be much better if she had, of had treatment of some sort, some physio and an idea of what she can and cannot do. She has not been able to cycle at all or do anything, she thinks it has dragged on because of being given no treatment at all.
·When asked what, her view was in relation to the diagnosis of the claimed injury, that:
Well, I’m not a professional in any field but, from what I feel and have been told in various reports, I have a number of compression fractured vertebrae. …It’s vertical – vertical impact that has caused this. I was told recently that, that rib is no longer attached to my spine because of wear and tear, a slipped disc at L5 and just a lot of pain associated with those – those areas but I’ve never had in my back before from anything I did and it was also – it started after got those new NBC110s, which were quiet quickly gotten rid of again because of safety issues.
·When asked what, her view was in relation to Scheuermann’s disease, that:
I have never heard of it in my life to be honest. I don’t know enough about it to say, yes, that’s what I’ve got and I’m no medical expert but the way this happened, and how fit I was before I started at Post, the reports I’ve got now of fractures certainly explain it much better than anything I’ve heard about Scheuermann’s. Apparently, it’s a teenage disease and I never had anything like that.
…..
Also, in the reports the X-ray - the X-ray - the radiologist, I beg your pardon, didn’t say it is Scheuermann’s. She asked had I possibly previously had Scheuermann’s. If she asked me that, I’d say no, I’ve never heard of it but the Post doctor, and other doctors, jumped, yes, it’s Scheuermann’s, they just jumped on it and didn’t even actually look at the X-rays properly but I’ve had other X-rays from 2009, before I started working at Post, and then another one in 2014 and neither of those ever mention anything about Scheuermann’s or fractures, so how can they just decide on this one X-ray that, yes, that Scheuermann’s, not fractures, when everyone else is saying it’s fractures. It makes much more sense to my condition and how it happened, the timeline and everything.
….
And then my question would be, if it is Scheuermann’s, is this caused by Post’s negligence in their treatment of me? If they’d treated it first up, I would have been a lot fitter, hopefully again by now, instead of still lying in bed, which, excuse me, is where I am.
·She did not have back pain growing up, she had never been to hospital for anything growing up and hardly ever went to the doctors.
On cross-examination, the Applicant told the Tribunal:[40]
[40]    Transcript, pages 33-40.
·That her back pain started off in the forward section of her right shoulder, which is where it felt like it was burning from overuse, around the ribs it was causing problems and feeling like it was stuck out, if she tried to lean forward it would cause cramps in the front, the fracture pain is in-between her shoulder blades which is where she had been told that is where the nodes are and the slipped disc is on the left-hand side closer to the lower section of her back.
·That now her pain is right in the centre like where the vertebrae are themselves. It does not seem to go out all over, like it did when she was working. Since she stopped working and has lost some weight it feels less troublesome. The slipped disc at the bottom seems to be still causing a lot of trouble, it locks up and she struggles to walk and that causes a lot of discomfort.
·Her rib seems to have settle down in the last 6 to 12 months. She still feels it on occasions and the cramp in the front but nowhere near as many times as she was earlier on.
·She can not drive and can not go to the supermarket because she cannot walk that far.
·It is fair to say that everything she does other than lying in bed causes her to experience pain.
·In relation to her personal hygiene she has a chair in the shower as she cannot have a shower standing up because if she tries to stand up for 10 minutes onwards her body starts to shake, she is not strong enough. There have been times where she had not had a shower in weeks or brushed her hair or done anything because she is just so down and stuck. She just cannot do it.
·She does not use crutches around home because she goes from the bedroom to the lounge room or the kitchen and there is hardly any distance there. She does not do anything at home that requires her to use her crutches, she uses them when she goes out.
·It is the pain that stops her from doing normal daily activities, but it is her mind state that stops her from having a shower.
·That she had a motorcycle accident in 2000 that was a very minor one at low speed. She fell down off the side of the bike and hit her head on the road and spent 10 days in hospital because they did surgery on her stomach looking for internal bleeding that they thought they had seen on an x-ray. She had a bit of a sore neck and shoulder after that but never anything that inhibited her employment, activities, showering or anything.
·When asked if she had actually suffered from a crushed cervical spine in that motor vehicle accident, that not as far as she knew, she fell off down to the side and hit her head on the road.
·When taken to page 10 of Exhibit 7[41] and referred to the page dated 2 April 2010 where it says PMHX (past medical history) – MVA 2000 – crush C spine with ongoing neck pain, exploratory laparotomy, that she confirmed that is what happened after the car accident with the motorcycle.
[41]    Exhibit 7, Extract of summonsed documents from Royal Brisbane and Women’s Hospital, page 10,        Emergency Department Patient Record entry dated 2 April 2010.
·When asked if she had experienced ongoing neck pain after 2000, that:
For a while after that, yes, I hit my head on the road but it didn’t stop me from doing any jobs or any daily stuff after that. I healed form it and kept going.
·When taken to page 21 of Exhibit 7[42] and referred to a progress note dated 12 June 2008 taken by Dr Ferguson that said “Right peri-scapular pain since 2000 MBA. Headaches most days and pain radiating to lower back and around right sub-mammary area.” and it was put to her that it appears from this report that she was complaining of right peri-scapular which is the neck and into the right shoulder since that motorbike accident in the year 2000, and it was reasonable to infer that she was continuing to experience pain in those areas in June of 2008, she said that by going by the report it is what it says she reported, but at this point in time it had not stopped her from working or doing anything else the way that her current injury has.
[42]    Exhibit 7, Extract of summonsed documents from Dr Scott Ferguson, page 21, Progress notes dated      12 June 2008.
·That she would not have reported anything to Dr Ferguson if it was inaccurate, she would have told him the truth.
·When taken to page 5 of Exhibit 7[43] and referred to a Queensland Ambulance Report – hospital copy dated 2 April 2010 where she had been taken to hospital following a MVA, and it says “Sharp c-spine pain on palp (which means palpation, touch) Patient has history of c-spine fractures and chronic neck pain (chronic meaning longstanding)” and asked if she accepts that she was continuing to experience the chronic neck pain into April 2010, that she has never complained of neck pain at Post. It is not neck pain she is complaining about or what her claim is about. She does not deny that she was experiencing both neck pain and thoracic spine pain (which is about the middle of the back) as a result of a 2010 MVA but it is not something that has been ongoing ever since. She said she could not continue to cycle 30 kilometres a day while she was working at Post if that was still a problem.
·When taken to page 13 of Exhibit 7,[44] being a hospital discharge report after she was admitted to hospital on 2 April 2010 following a low speed MVA which said “[the Applicant] did have midline C-spine tenderness and tenderness over the thoracic spine between her shoulder blades,” that she confirmed that it was the thoracic area between the shoulder blades as well as her neck that she was experiencing pain in. She said it was a general ache and was not the same as the pain she got from the fractures at Post.
·When taken to page 20 of Exhibit 7[45] being progress notes dated 24 March 2014 where it says, “Still having fevers and reports upper and lower back pain”, that was correct and was when she was working at Post and complaining of back pain.
·When asked if she accepts that she was experiencing upper and lower back pain in 2014 which is prior to when she said that stuff started to happen in 2015, that: “On the bike, yes.”
·When put to her that there was no mention of the bike or motorbike or work, that:
Until I had the X-rays in 2017 in April, I had no clue what was wrong with my back. I kept complaining of pain that the bike was hurting me but I didn’t know what it was. My doctor thought it was pneumonia because the symptoms of a fractured spine are very similar to that of pneumonia. That’s the only way they found them by trying to do an X-ray to see what the pneumonia was like. The bike hasn’t caused …
·There was no reference to her reporting work or the bike because she did not know it was the bike doing it, she did not know what was wrong with her.
[43]    Exhibit 7, Extract of summonsed documents from Royal Brisbane and Women’s Hospital, page 5,           Queensland Ambulance Service Report dated 2 April 2010.
[44]    Exhibit 7, Extract of summonsed documents from Royal Brisbane and Women’s Hospital, page 13,        Discharge Letter dated 8 March 2019.
[45]    Exhibit 7, Extract of summonsed documents from Dr Scott Ferguson, page 20, Progress notes dated      24 March 2014.
Respondent’s Evidence
Evidence of Dr Peter Steadman
By way of letter dated 20 February 2019, the Respondent’s solicitors requested that Dr Peter Steadman, a Consultant Orthopaedic Surgeon examine the Applicant and provide an Independent Medico-Legal Report.[46]
[46] Exhibit 4, Briefing letter to Dr Peter Steadman dated 20 February 2019.
Dr Steadman examined the Applicant on 14 October 2019 and provided a report dated 22 October 2019.[47] Having examined the Applicant and reviewed the supporting medical material provided to him, Dr Steadman provided that in his opinion the Applicant suffers from Scheuermann’s disease of the thoracic spine and suffers from pain as a consequence of that. He also opined that the Applicant suffers from severe kyphosis as the physical finding.
[47] Exhibit 5, Report of Dr Peter Steadman dated 22 October 2019, pages 1-12.
In the report dated 22 October 2019, in response to a series of questions, Dr Steadman provided the following:[48]
Current condition
3.3What injury or disease, if any, does the applicant currently suffer from?
In my opinion she suffers from Scheuermann’s disease of the thoracic spine.
[48] Exhibit 5, Report of Dr Peter Steadman dated 22 October 2019, pages 8-10.
3.4Given the applicant’s history and after review and consideration of the enclosures, when do you consider that the described injury or disease arose?
In that I cannot account for the lung condition without considering that there has been a much more severe injury at or around that time but I cannot find any clinical history nor can I get her to volunteer any clinical history about any other severe event.
3.5Is the applicant’s current injury or disease an aggravation, acceleration or recurrence of any pre-existing or underlying condition?
I am not of the opinion, based upon either the mechanism of injury or the findings on the spine around that time, that she has had an injury to her spine.
3.6If it is your opinion that the condition the applicant suffers is an injury, did the diagnosed injury arise out of or in the course of the applicant’s employment at Australia Post? If so, please explain how.
Please Note: Where you are able to do so, please identity the events by reference to timeframes/dates and any relevant people involved in the events by reference to the names of the people etc.
In my opinion the findings radiologically do not reflect upon an injury because the radiology and the features of the radiology do not support that. In relation to the complaints they appear to be multifactorial and have other non-physical reasons behind them that are beyond the scope of my speciality.
3.7 If it is your opinion that the condition the applicant suffers the onset or aggravation of a disease, do you consider that the claimed incident on 07.12.2016 or any other aspect of the applicant’s employment at Australia Post contributed to the applicant’s condition in a significant degree? If so, please explain how.
Please Note: The term “significant degree” is defined in the SRC Act as “a degree that is substantially more than material”. The term “material” is not defined in the SRC Act, but “material contribution” has been interpreted by the Courts as imposing an evaluative threshold below which a causal connection may be disregarded. Therefore, for a “significant contribution” to exist there needs to be a very strong connection between the employment and the condition.
Therefore, I conclude based upon the radiology that there is no support for the idea that she has had either a fracture or suffers from some lumbar spine problem as a direct consequence of any work related event.
3.8Are there any non-work related factors which have caused or contributed to the applicant’s current condition/s? Is so, please state those factors.
I think her thoracic spine represents a constitutional condition while her low back pain is most likely to be the consequence of a malalignment disorder due to her severe kyphosis and her corrective posture of her lumbar spine.
3.9If you consider the applicant has suffered or does suffer from an injury that arose out of or in the course of her employment at Australia Post, or a disease that was significantly contributed to by her employment at Australia Post:
(a) Have the effects of the work related condition ceased, and if so, when did they cease?
In my opinion this is not work related.
(b) If they have not ceased what current symptoms continue to be contributed to by her employment?
The conditions continue but are not employment related.
(c) Did any aspect or incident of the applicant’s employment at Australia Post accelerate the natural progress of the applicant’s condition, such that her condition would not be in its current state if not for the work related aggravation? In other words, do you consider that the applicant’s condition would be the same today, regardless of any aspect or incident of her employment?
In my opinion the work with Australia Post, based upon the mechanistic discussion that I had with her today, is unlikely to have contributed to her condition either by way of twisting and delivering post with her right arm or the consequences of riding over the driveways which are shown in the photos.
(d) If you do not consider the work related effects of the condition have ceased, when do you consider they will cease?
In my opinion they have therefore ceased.
3.10 What is your prognosis in relation to the applicant’s condition?
The prognosis is poor for multifactorial reasons but I suspect also for physical reasons due to the severity of the thoracic kyphosis. In the longer term she is likely to suffer from progressive cardiorespiratory compromise which is due to the constitutional condition.
At the Hearing, Dr Steadman gave evidence by telephone, under affirmation. In response to questions asked by Counsel for the Respondent, Dr Steadman:[49]
[49]    Transcript, pages 42-51.
·Confirmed that he is an Orthopaedic Surgeon and that his report dated 22 October 2019 accurately reflect the options truly held by him.
·Explained that Scheuermann’s disease is an orthopaedic spinal condition and essentially it effects people at the thoracic spine. The definition of Scheuermann’s disease is that there are more than three vertebrae that have more than five degrees of wedging. So, wedging meaning that the anterior part of the vertebrae does not look like a rectangle or a square anymore, it looks like a slightly angled wedge and it is a radiological definition but a condition which they do not necessarily understand the ideology of but they know that it begins in teenage years and in people in the community who have a sort of kyphosis which is a hunched over spine. It is a common finding.
·Explained the various scans and imaging of the Applicant’s spine.
·When read the following:[50]
[50]    Exhibit 7, Extract of summonsed document from Royal Brisbane and Women’s Hospital, pages 12(A)     and 12(B).
CT scan findings of the c-spine taken on 2 April 2010 that said:
C-spine is in a hard collar. No evidence of fracture, dislocation or subluxation identified. Prominent Schmorl’s node present involving the right anterior-lateral aspect of the C7 superior end plate. Degenerative change seen as end plate osteophytic change and sclerosis at C6/C7 levels. No spinous process widening or evidence of paraspinal soft tissue abnormality.
The corresponding report of the same date that said:
Note is made of wedging of the bodies of T8, T9 and T10. There is a Schmorl’s node present on the inferior border of T8. Change is likely to be of longstanding probably due to previous Scheuermann’s disease rather than being due to acute compression fractures but if there is further clinical concern further views or limited CT examination of this region could be performed.
In response to the question what did he say the significance of these findings are in relation to the Applicant’s present pain and symptoms provided:
Well the first thing it does is it definitively diagnoses Scheuermann’s disease because you might recall the definition that I spoke about where you have more than three vertebrae that have more than five degrees of wedging. The second thing is that that’s combined with another slight radiological abnormality called a Schmorl’s node. It’s a German word. S-c-h-m-o-r-l node. Basically, that’s where there’s a little perforation of the disc through the endplate of the vertebrae and in essence the combination of the Schmorl’s node and the three sequential vertebrae showing wedging fits exactly with the radiological criteria of Scheuermann’s disease. So that scan diagnoses Scheuermann’s disease. I think the second part of the question was then how does that relate to the current?
…….
So, when I examined her, she told me that she had two problems. She had a sore lower back and she had pain between her shoulder blades. So, the pain between her shoulder blades combined with the clinical kyphosis which was getting more severe is largely due then to the Scheuermann’s disease because Scheuermann’s disease is a cause of thoracic back pain. Thoracic back pain is very unusual but this is a common cause of thoracic back pain. Lumbar back pain is much more common and often due to some spinal degeneration and various other issues to do with weight and fitness. So, in this case the presence of the clinical features of the kyphosis, the CT scan features combined with the subsequent clinical examination really fits with progression of the Scheuermann’s disease since the 2010 scan.
·Confirmed that the X-ray taken on 3 April 2017[51] and CT scan taken on 18 April 2017,[52] bone scan taken on 11 May 2017,[53] and MRI scan[54] taken in November 2017 indicated that the Applicant suffers from Scheuermann’s disease.
[51]    Exhibit 1, T Documents, T4, page 23, X-Ray report dated 3 April 2017.
[52]    Exhibit 1, T Documents, T4, page 31, CT Scan report dated 18 April 2017.
[53]    Exhibit 7, Extract of summonsed documents from Queensland Diagnostic Imagining, page 4, Bone         Scan dated 11 May 2017.
[54]    Exhibit 7, Extract of summonsed documents from Dr John Albietz, pages 2-3, MRI Scan report dated      17 November 2017.

In responses to questions asked by the Applicant, Dr Steadman:[55]
[55] Transcript, pages 51-56.
·Said that Scheuermann’s disease does not come and go, it develops at a certain point in time and then it either remains static or it just gradually progresses with time, due to various biomechanical factors.
·When asked if there is anything that person would do that would cause Scheuermann’s disease in the first place, said that:
…… it’s not a disease. It sounds like it, you know, it’s got a name like a disease but it’s not a contagious disease. … And, it’s not passed – it’s not a genetic disease either ….
·When asked if whether there were activities or anything that a person who has Scheuermann’s disease that would make it worse or bring it out, said:
…. Yes and no. Under normal circumstances if it’s severe enough it will just gradually progress in life and in the background of osteoporosis basically adds to that picture. And, yes, an injury itself of one of those vertebrae in there, that can dramatically lead to the wedging to increase and then make the condition progress more rapidly, but it’s not multiple vertebrae often that fracture.
·Explained osteoporosis and the effects it can have.
When asked by the Tribunal to expand on the view expressed in his report of 22 October 2019 that the Applicant’s work with the Respondent was not an aggravation of the disease, Dr Steadman said that his opinion was based largely on radiology. Dr Steadman told the Tribunal:[56]
So, the radiology, to me, is telling the story, and that’s how I’m developing that opinion. And then, you know, to – when I consider causation in this setting, causation being has she done something or been involved in something which has made the condition worse, in many ways this case shows that this sort of sequential progression of radiology that shows that there’s a longstanding problem and the longstanding problem is gradually getting worse, but it doesn’t show in any of the sensitive investigations, like the bone scan or the MRI, any acute features that indicate that at some juncture that there has been an acute injury that led to it. And the other important point is that the collapse of the vertebra are symmetrical, so we’re not dealing with a situation where let’s say there’s three or four vertebrae that are all wedged, but one of them is more severely wedged than the other one. So that pattern, if you like, is sort of, you know, part of the pattern of the Scheuermann’s disease, because everything looks very similar in terms of the wedging in the mid-thoracic area ……. So, we know that it’s just sort of like in a pattern recognition process, just part of that disease process. So I – in reaching that conclusion of 3.5, I’ve largely considered the radiology which I’ve got which shows a pattern and then I’ve listened to [the Applicant’s] story about the various events and, you know, I think we looked at the – aside from the accident we looked at the motorbike situation with the suspension and various things, and, you know, the 4 to 5 centimetre drops going over the driveways and various other things. But again, in that context, because the radiology maintained this clear pattern of the underlying disease process without showing any asymmetrical change in any single vertebra or any of the high-level radiology showing any features of fracture, that led me to believe that although I listened to her story and recorded it, it led me to believe that there wasn’t enough evidence, in my mind, to relate the findings in the spine to a potential accident that had occurred. And by accident I don’t mean like a severe car accident, I just mean any of the events which you describe.
[56] Transcript, pages 57-58
When asked by the Tribunal if this all meant that regardless of the Applicant’s employment she already had Scheuermann’s disease and it was going to continue to progress, Dr Steadman said that was exactly the case.[57]
CONTENTIONS
[57] Transcript, page 60.
Respondent’s Contentions
At Hearing in closing submissions,[58] the Respondent contended that Dr Steadman’s diagnosis of the disease should be preferred because it is actually the same opinion that Dr Albietz gave, noting that in the third paragraph of his report Dr Albietz provided:[59]
The changes in her thoracic spine have been reported as fractures, though in my opinion are consistent with thoracic Scheuermann’s disease with wedged vertebrae, discogenic deterioration, corrugated endplates, and Schmorl’s nodes from T5 to T10.
[58] Transcripts, pages 64-68.
[59] Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020, Report of Dr John Albietz dated 28 November 2017.
The Respondent contended that essentially Dr Albietz and Dr Steadman are at one on diagnosis and most importantly the most sensitive radiology report, the MRI and the bone scans, both taken in 2017 identified Scheuermann’s disease.
The Respondent contended that the Tribunal should prefer Dr Steadman’s opinion in relation to references to crush fractures that were made by Dr Ferguson as Dr Ferguson was not called to give evidence at Hearing and as such the Tribunal does not have the benefit of a fuller explanation of what his opinion might be.
The Respondent contended that the Tribunal should accept the opinion of Dr Steadman which it says leads to the conclusion that there is a disease process in the background and that the Applicant’s condition is a disease for the purpose of section 5B of the SRC Act and not one caused by her employment.
In relation to whether there is a compensable aggravation of the Applicant’s disease the Respondent referred to the evidence of Dr Steadman that the Applicant’s thoracic spine represents a constitutional condition and that her work with the Respondent is unlikely to have contributed to her condition. The Respondent submitted that Dr Steadman acknowledged that while the Applicant suffers from symptoms in her spine due to malalignment, the malalignment is causing straightening of the lordosis of the lumbar spine, which can cause pain, so he is accepting that pain arises from it.
The Respondent referred the Tribunal to the report of Dr Albietz who opined that: “Through work activity [the Applicant] has suffered repetitive strain to her thoracic spine, aggravating thoracic Scheuermann’s disease/spondylosis.”[60] The Respondent contended that it is unclear what context Dr Albietz is using the word ‘aggravating’ as he does not use the words ‘significantly contributed to be her employment’. The Respondent contend that there is no opinion provided by Dr Albietz or any medical practitioner to support a finding that her work with the Respondent had significantly contributed to an aggravation. Rather Dr Albietz might be using the word ‘aggravation’ in the same way that Dr Steadman refers to there being the presence of pain. It is unclear and Dr Albietz was not called to give evidence.
[60] Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020, Report of Dr John Albietz dated 28 November 2017.
The Respondent contended that leaves the Tribunal to consider whether pain alone can constitute an aggravation and whether or not there is a structural aggravation. The Respondent drew the Tribunal’s attention to the decision of the Full Federal Court in Commonwealth v Beattie (1981) 35 ALR 369 at 378 (Beattie) where Evatt and Shepard JJ said:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case, any incapacity for work arises only by reason of the pre-existing injury.
The Respondent further referred the Tribunal to the decision of Finkelstein J in Tippett v Australian Postal Corporation [1998] FCA 335 (Tippett) who after citing the above passage from Beattie said:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work, and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
The Respondent submitted that the Tribunal ought to find that the Applicant’s case falls into the first category referred to by Finkelstein J and thus that there has been no work-related aggravation of the Applicant’s Scheuermann’s disease because:
(i)Scheuermann’s disease had previously been identified in 2010 as wedging at L8 to L10 which establishes it is a longstanding process. As a result, of the Scheuermann’s disease the Applicant’s back was symptomatic prior to this injury because:
(a) there was a purpose in the Applicant getting the radiology that revealed the Scheuermann’s disease in the first place;
(b) the Applicant had been reporting some chronic neck pain as seen in the summons material; and
(c) it is possible that the Applicant had spine injuries in 2000 after a motorbike accident.
(ii)The Applicant has continued to experience pain, despite not working for well over two years and that gives rise to the inference that the pain occurs irrespective of the work she is performing. Which is precisely the case that the Full Court were referring to in Beattie. It says if – the analogy is that the Scheuermann’s disease is the leg encased in plaster. Every time the man who had the leg encased in plaster put his foot down, he experienced pain, wherever he was, whatever activity he was doing, whether he was at work or not. The same circumstances apply to the Applicant. Whenever she does anything except lie flat in bed, she experiences pain. It is not relevant or related to only the tasks she performs at work.
(iii)There is no evidence that there is an aggravation that was contributed to by a significant degree by her work.
The Respondent contends that the Applicant does not suffer from a ‘disease’ being an aggravation of an underlying constitutional disorder, and therefore does not suffer from an ‘injury’ under section 5A of the SRC Act, and as such it is not liable to pay compensation to the Applicant for the claimed injury under section 14 of the SRC Act.[61]
Applicant’s Contentions[62]
[61] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, page 6, paragraphs 4.8-4.9.
[62] Transcript, pages 68-69.
The Applicant contends that the Respondent’s decision is wrong. She told the Tribunal that she had repeatedly advised her supervisor that her back was sore over a number a years however she feels she was left in that position, with her job threatened and being bullied and that she was forced to ride the bike with no consideration of her situation. She said gradually it got worse and worse and worse and that ended up with her having to leave work. The Applicant said she agrees with Dr Albietz that the Respondent has treated her extremely harshly.
The Applicant said that the progress notes referred to by the Respondent and mentioned back pain were after a 2012 work place accident. She said that in 2000 she was not suffering with back pain and if her condition was as bad as has been stated how was she able to work. The Applicant contended that Dr Steadman said that activities and trauma can make the progression of Scheuermann’s disease more obvious and that in her opinion you cannot say that vertical compression on the bike did not do that, or at least contribute to it happening much faster than if she had not been doing the job.
CONSIDERATION
It should be noted from the outset that there is no dispute that the Applicant experiences back pain which has impacted on her ability to undertake daily living and work activities. This matter turns on the medical evidence in relation to diagnosis of the Applicant’s condition and the underlying pathology of that condition.
Having considered the documentary medical evidence before the Tribunal and the evidence provided at Hearing by Dr Steadman the Tribunal considers that the opinion of Dr Steadman is the authoritative view, noting that on the face of the report provided by Dr Albietz the medical views put forward by the two specialists are not in conflict.
The Applicant has provided medical certificates and reports from her general practitioner, Dr Ferguson and a report from Dr Albietz, however they were not called by the Applicant to give evidence at the Hearing and as such their opinions were not explained beyond that provided in writing, nor was the Respondent able to cross examine them. Consequently, the Tribunal accepts the contentions made by the Respondent in relation to the medical evidence before the Tribunal.
In considering what is the correct diagnosis of the Applicant’s condition, the Tribunal accepts the Applicant’s submission that she was not aware prior to her present compensation claim what Scheuermann’s disease was or that she in fact suffers from it herself. The Tribunal accepts the diagnosis of Dr Steadman that the Applicant is suffering from Scheuermann’s disease of the thoracic spine as being the correct diagnosis of the Applicant’s claimed injury, noting that Dr Steadman provides that he could not account for the lung condition. This diagnosis is consistent with the imaging report dated 2 April 2010,[63] the 2017 suite of imagining[64] and the opinion provided by Dr Albietz.[65]
[63]    Exhibit 7, Extract of summonsed documents from Royal Brisbane and Women’s Hospital pages 12(A)      and 12(B).
[64]    Exhibit 1, T Documents, T4, page 23, X-Ray report dated 3 April 2017 and page 31, CT Scan report       dated 18 April 2017; Exhibit 7, Extract of summonsed documents from Queensland Diagnostic        Imaging,            page 4, Bone Scan dated 11 May 2017 an Extract of summonsed document from Dr John Albietz,         pages 2-3, MRI Scan report dated 17 November 2017.
[65]    Exhibit 6, Various medical information and compensation forms filed by the Applicant on 17 April 2020,    Report of Dr John Albietz dated 28 November 2017.
There is no evidence before the Tribunal that the Applicant’s Scheuermann’s disease is a condition that arose as a result of a particular event or injury. The Applicant gave evidence that the symptoms came on gradually and got worse over time, she said that she thought back pain was part of her job and that she thought she had pneumonia. Dr Steadman’s evidence was he was not of the opinion that the Applicant has had an injury to her spine based upon either the mechanism of injury or the findings on the spine around that time. He also provided that the Applicant did not indicate that there was any clinical history of a severe event. The medical information subsequent to motor vehicle accidents that occurred in 2000 and 2010 also indicate that the Applicant’s back pain has been ongoing.
Consequently, the Tribunal agrees with the Respondent’s contention that the Applicant’s Scheuemann’s disease should be considered as a disease. This view is consistent with Dr Steadman’s evidence that Scheuermann’s disease is a constitutional condition that is usually present from teenage years and that there is no known cause. As such the test in section 5B of the SRC Act applies to determining whether the Applicant has a disease for the purpose of meeting the definition of injury in section 5A of the SRC Act required for liability for compensation to be accepted under section 14 of the SRC Act.
Section 5B of the SRC Act defines disease to mean an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.
In considering whether the Applicant has suffered an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment the Tribunal notes that significant degree means a degree that is substantially more than material. Further the relevant matters that must be taken into account are set out in section 5B(2) of the SRC Act.
In accepting the diagnosis of Scheuermann’s disease, the Tribunal also accepts the evidence provided by Dr Steadman in relation to it being a condition for which the ideology or cause of is not known and that it usually begins in teenage years and in people in the community who have a sort of kyphosis which is a hunched over spine.
The Tribunal accepts the Respondent’s contention that the evidence of Dr Steadman that the Applicant’s employment did not contribute to, to a significant degree the onset of the Applicant’s Scheuermann’s disease. The Tribunal notes that the opinions provided by Dr Ferguson and Dr Albietz did not address such a connection in any material way.
The Tribunal further accepts the evidence of Dr Steadman that the Applicant’s employment with the Respondent did not contribute to, to a significant degree any aggravation of the Applicant’s Scheuermann’s disease.
Of particular relevance, the Tribunal notes that Dr Steadman provided in his report dated 22 October 2019:[66]
[66] Exhibit 5, Report of Dr Peter Steadman dated 22 October 2019, pages 8-10.
3.6If it is your opinion that the condition the applicant suffers the onset or aggravation of a disease, do you consider that the claimed incident on 07.12.2016 or any other aspect of the applicant’s employment at Australia Post contributed to the applicant’s condition in a significant degree? If so, please explain how.
…..
Therefore, I conclude based upon the radiology that there is no support for the idea that she has had either a fracture or suffers from some lumbar spine problem as a direct consequence of any work related event.
3.8Are there any non-work related factors which have caused or contributed to the applicant’s current condition/s? If so, please state those factors.
I think her thoracic spine represents a constitutional condition while her low back pain is most likely to be the consequence of a malalignment disorder due to her severe kyphosis and her corrective posture of her lumbar spine.
3.9….
(c) Did any aspect or incident of the applicant’s employment at Australia Post accelerate the natural progress of the applicant’s condition, such that her condition would not be in its current state if not for the work related aggravation? In other words, do you consider that the applicant’s condition would be the same today, regardless of any aspect or incident of her employment?
In my opinion the work with Australia Post, based upon the mechanistic discussion that I had with her today, is unlikely to have contributed to her condition either by way of twisting and delivering post with her right arm or the consequences of riding over the driveways which are shown in the photos.
At Hearing Dr Steadman explained Scheuermann’s disease, the progression of the disease for the Applicant based on the available imaging, and impact of her work upon her condition. Dr Steadman told the Tribunal that based on the medical evidence before him that his opinion was that regardless of the Applicant’s employment she already had Scheuermann’s disease and it was going to continue to progress.
The Tribunal agrees with the Respondents application of the Beattie and Tippett cases and the contention that there had been no work-related aggravation of the Applicant’s Scheuermann’s disease. The evidence before the Tribunal shows that the Applicant’s Scheurmann’s disease was identified in at least 2010, had been symptomatic prior to the claimed date of injury and the Applicant’s pain has continued despite having ceased work for a considerable period.

As such the Tribunal finds that the Applicant does not meet the tests outlined in section 5B of the SRC Act.
Consequently, the Applicant’s ailment, being Scheuermann’s disease is not a disease for the purpose of sections 5A or 5B of the SRC Act.
CONCLUSION
For the purpose of section 14 of the SRC Act, the Tribunal finds that the Applicant did not suffer a section 5A injury in relation to the claimed injury.
Accordingly, the decision under review is affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........[SGD]...............................
Associate
Dated: 18 September 2020

Date of Hearing: 6 May 2020

Applicant:

Counsel for the Respondent:

By phone

Ms Kate Slack

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 3642

18 September 2020

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