Pickering and Australian Postal Corporation (Compensation)

Pickering and Australian Postal Corporation (Compensation) [2017] AATA 241 (28 February 2017)
Division:GENERAL DIVISION
File Number: 2014/6052
Re:Linda Pickering
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:28 February 2017
Place:Sydney

The decision under review dated 14 November 2014, which is taken to have decided that the applicant did not continue to suffer the effects of an aggravation of the underlying degenerative changes in the lumbar spine which occurred on 14 August 2014 (the accepted injury) as at 14 November 2014, such that as at 14 November 2014, she was not entitled to compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in relation to the accepted injury, is affirmed.
.........................[sgd]............................
Mrs J C Kelly, Senior Member
CATCHWORDS
COMPENSATION – aggravation of degenerative changes in lumbar spine - whether ongoing incapacity or entitlement to medical expenses – conflicting medical evidence - decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
28 February 2017
INTRODUCTION

The applicant, Ms Linda Pickering, seeks the review of a decision made on 14 November 2014 which, when construed according to law, determined that the effects of the workplace injury she suffered on 14 August 2014 had ceased, and that she suffered no ongoing incapacity or entitlement to medical expenses.
The 14 November 2014 decision purported to revoke a decision made on 7 November 2014 which accepted liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (the Act). The parties agreed that the respondent was not denying liability under section 14 for the accepted injury, but did contend that the applicant was not entitled to compensation for medical expenses and incapacity under sections 16 and 19 of the Act as at 15 November 2014 and to the present.
For the reasons that follow, the Tribunal affirms the decision under review.
THE LAW
Section 16(1) of the Act relevantly provides that where an employee suffers an injury, the respondent is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as the respondent determines is appropriate to that medical treatment.
In summary, section 19 of the Act provides that where an employee is incapacitated for work as a result of an injury, the respondent is liable to pay compensation to the employee in respect of the injury, a weekly amount of compensation worked out using a specified formula.
THE ISSUES
The issues in this case are whether the applicant continued to suffer the effects of the accepted injury as at 14 November 2014 such that she:
(a)Was entitled to medical expenses pursuant to section 16 of the Act at that time; and
(b)If so, is she entitled to medical expenses to date;
(c)Was entitled to compensation for incapacity pursuant to section 19 of the Act at that time; and
(d)If so, is she entitled to medical expenses to date?
BACKGROUND
The applicant began working for Australia Post on 6 September 2000. The depot where she worked became a parcels-only facility in 2013, having previously also processed letters.
The applicant’s accepted claim for compensation, the subject of this decision, is in respect of “aggravation of the underlying degenerative changes in lumbar spine” suffered in an incident on 14 August 2014. She was standing on the back of and “driving” a load shifting equipment (LSE) which can carry two unit loading devices (ULDs). The precise mechanism of injury was hotly disputed at the hearing.
The applicant also had an accepted claim for a workplace back injury sustained on 20 May 2014. Liability was accepted on 9 July 2014 in respect of “damage to SI joint in hip back R side”. The applicant was trying to unfold a ULD, which is a collapsible four-sided cage used to transport parcels within a facility. The side she was trying to lift was stiff and she could not budge it. She suffered the injury. The applicant saw Dr Sherley, her general practitioner, on that day. The applicant performed restricted duties for her full hours until 7 July 2014.
On 10 July 2014, Dr Sherley issued a Certificate of Physical Capacity in respect of the injury suffered on 20 May 2014 in which she certified that the applicant was fit for work for normal hours with no restrictions. Dr Sherley wrote that the applicant “would benefit from core strength training” and that there was no ongoing management.
The applicant returned to work for one week before going on leave. She returned from leave on 4 August 2014. She suffered the injury on 14 August 2014. Dr Sherley certified her unfit for her normal work on that day and the following day. The applicant did not work again until after later November 2014 when she returned on a graduated return to work program.
The report by Dr Morewood of the CT scan of the applicant’s lumbosacral spine dated 13 June 2014 (‘the CT scan’) identified the following changes:
·At the L3/4 level there is early osteoarthritic change in the posterior facet joints. No disc prolapse was demonstrated.
·At the L4/5 level there is gas in a degenerate disc and a little generalised bulging of the annulus.
·At the L5/S1 level there is osteoarthritic change in the posterior facet joints. No disc prolapse was demonstrated.
·The CT scan of the S1 (sacroiliac) Joints demonstrated no abnormality of either joint.
The report by Dr Bramley of the MRI scan dated 15 October 2014 (‘the MRI scan’) identified the following changes to the applicant’s lumber spine:
·At L4-L5 there is a minor loss of disc height with associated desiccation and slight endplate degenerative change, and a flat broad based protrusion with an associated annular tear; no compromise of the existing nerve roots was seen.
·Anterior protrusion at T11-T12 which probably reflects a degree of disc degeneration.
·At L1-L2 level there is a tiny focal protrusion towards the right (no neural compromise).
·The paraspinal soft tissues appear normal. There may be minor facet joint degenerative changes.
The applicant has been unhappy in her job for some time. She would prefer administrative work.
CONSIDERATION
There was a considerable amount of medical evidence before the Tribunal. Dr Bodel, Orthopaedic Surgeon, and Professor McGill, Rheumatologist, gave oral evidence and provided reports. There was evidence before the Tribunal from Dr Sherley, the applicant t’s general practitioner, including referral letters, medical certificates and clinical notes. There was a letter to Dr Sherley from Dr Chan, Staff Specialist, Rehabilitation Medicine, Canberra Hospital, dated 26 February 2015.
The essential argument between the parties was which medical opinion the Tribunal should prefer, that of Professor McGill or that of Dr Bodel. For the reasons that follow, the Tribunal prefers the opinion of Professor McGill.
Dr Bodel, saw the applicant on 18 March 2015 and 22 June 2016. He provided reports dated 30 March 2015, 31 August 2015, 9 November 2015, and 29 June 2016. He appeared before the Tribunal on 28 September 2016.
At the hearing, Dr Bodel maintained the opinions he expressed in his report of 29 June 2016. His opinion was that the applicant suffered at least an internal disc disruption in the lumbosacral region at L4/5 as a consequence of the first injury she suffered on 20 May 2014 and there was some internal disc disruption as a result of the 14 August 2014 injury, a further aggravation of the ongoing pathology. Dr Bodel said: “There is clinical evidence that this aggravation was by a significant material aggravation in this circumstance”. He said that his opinion was a clinical judgment and there was no evidence of neurological compromise.
Professor McGill interviewed and examined the applicant once, on 27 October 2014, and prepared a report on that day (Professor McGill’s first report). Based on the imaging reports, he stated that the applicant “has multilevel mild to moderate degenerative change in the lumbar spine without evidence of nerve compression”. He provided a further report dated 26 June 2015 (his second report) in response to a letter from the respondent’s solicitor which included further documentation for his consideration. In response to a letter from the respondent’s solicitor asking if he wished to see the actual CT and MRI scans, he wrote a letter dated 13 August 2015 in which he expressed the opinion that a comparison between the CT and MRI scans would be most usefully performed by a radiologist.
In Professor McGill’s first report, his opinion was that the applicant’s work duties on 20 May 2014 and 14 August 2014:
…caused a flare of symptoms related to the underlying degenerative changes. It is unlikely that either episode changed the pathology demonstrated on CT and MRI although it is not possible to be certain.
The reason for the prolonged period away from work on this occasion was unclear.
I think the duration of the increase in symptoms attributable to the work incident on 14 August 2014 is most likely to have been in the order of a few weeks and is very likely to have been less than two months. I think the current physical state of her low back is likely to be the same as would have been the case regardless of her work duties. I think her level of concern and attention to her low back remain greater then would have been the case had the work events not occurred.
There was a discrepancy between the objective clinical findings and radiological reports on one hand and the failure of her to return to work duties on the other. She displayed a level of caution that was well above average but that does not necessarily mean that she was voluntarily exaggerating her symptoms or concern.
She requires a graduated upgrade in her physical activities at work and elsewhere so that she returns to her normal activities. There is nothing on clinical examination or in the radiological reports to suggest that she should not be able to resume all normal activities including her work activities. She needs reassurance that the experience of some pain in the low back is not dangerous and that it is appropriate for her to gradually upgrade her physical activities. A gym based supervised program may assist in that regard. I think it is also important that a graduated work based program occurs.
Professor McGill set out a “reasonable approach” to that graduated work-based program. He concluded:
Psychological factors are almost always important in regard to the rate of recovery of normal function after an episode of pain. Dr Sherley noted that Ms Pickering felt that her work place was not supportive and, regardless of the truth or lack of truth of that perception, the fact that she has the perception I think is likely to be relevant to the prolonged period that she has remained away from work following a minor incident.
Her physical prognosis is good. Although she has multilevel degenerative change in the low back and thus is likely to experience further episodes of low back pain. The findings reported are very common in the general community and would not be expected to prevent her from doing full activities.
In his second report, Professor McGill had considered additional information, including 47 pages of clinical records from the applicant’s general practitioner’s practice and the report of Dr Chan, rehabilitation specialist, to Dr Sherley, dated 26 February 2015. He concluded:
The further documentation supports the conclusion that psychological factors, potentially including lack of motivation to return to normal duties, depression and other factors, have been playing a major role in her presentation. I confirm that she has degenerative changes in her low back, but I believe it is unlikely that either episode in 2014 changed the CT or MRI appearances although it is not possible to be certain. I confirm the view that there has been a major discrepancy between the objective clinical findings and radial logical reports on one hand and her failure to return to normal work duties on the other.
At the hearing, Professor McGill disagreed with Dr Bodel’s opinion that there had been structural damage to the disc in the two work incidents in 2014. Professor McGill said that the imaging studies do not identify that any disc injury occurred at any stage in 2014. He said that the CT scan showed chronic degenerative change, including gas in the disc. He did acknowledge that it did not prove that there had not been an injury to the disc. Professor McGill said that the MRI and CT findings were sufficiently similar, although they were different modalities.
Professor McGill denied being of the school of thought that holds that if there is no clearly identifiable pathology, any pain will be transient. He said that he assesses whether the person is suffering pain, taking into account the person’s history. He accepts that patients can have pain without pathology, such as in the case of fibromyalgia, if they are emotionally upset, are having a tough time in their life, and where there is no secondary gain.
“Secondary gain” is an indirect benefit, usually obtained through an illness or debility. Such gains may include monetary and disability benefits, personal attention, or escape from unpleasant situations and responsibilities.[1]
[1] Mosby's Medical Dictionary, 9th edition. © 2009, Elsevier
Professor McGill also disagreed with Dr Bodel over how long the events at work had influenced the applicant’s symptoms. He maintained the opinion he expressed in his report.
The Tribunal has carefully considered the evidence of both Dr Bodel and Professor McGill. The Tribunal finds that Dr Bodel’s opinion that there was additional structural damage at the L4/5 level of the spine as a result of the 2014 injuries is based on his misreading Professor McGill’s report.
In his report dated 30 March 2015 (Dr Bodel’s first report), Dr Bodel summarised parts of Professor McGill’s first report. Critically, Dr Bodel’s summary states:
He (Professor McGill) reviewed the investigations and noted the degenerative process at the lumbosacral junction and the central disc bulging at the L4/5 level but no nerve root compromise and unfortunately I have not had the opportunity to view the films but he records that it does tend to protrude slightly to the right hand side of the L4/5 level but there is no definite nerve root compromise and I would accept that that is the case. (Emphasis added.)
Professor McGill does not make the statement in his report of 27 October 2014 “that it does tend to protrude slightly to the right hand side at the L4/5 level”. Such a statement does not appear in either of the reports of the CT scan or the MRI scan. The Tribunal can find no evidence to support that statement. It appears from Dr Bodel’s first report that he had reviewed copies of the reports of both the CT and MRI scans when he prepared that report.
Having misquoted Professor McGill, Dr Bodel relies on the misquotation for his diagnosis:
He (Professor McGill) confirmed that this lady has suffered injury to the back. He felt that there was no definite evidence that additional structural damage has occurred as a consequence of either of these two episodes but I would hold a contrary view. The reported abnormalities at the L4/5 level do show some slight right-sided predominance and that fits with her clinical history of referred pain into the right leg. She was certainly asymptomatic prior to this event. She had had some psychological issues prior to this but no physical injury and she is now quite severely incapacitated by her pain. I am satisfied to accept that some additional structural damage has occurred in that abnormal area of the lumbosacral spine leading to her current status.
Dr Bodel concluded in his first report that “The diagnosis here is a disc rupture at the lumbosacral junction”.
Thereafter Dr Bodel viewed the CT scan and the MRI scan and provided a report dated 31 August 2015 (Dr Bodel’s second report). He stated that the CT scan “shows a significant central disc bulge at the L4/5 level but no definite nerve root compromise” and that the MRI scan “confirms that there is that same dehydration and degenerative change with bulging of the disc at the L4/5 level but no definite nerve root compromise”. The additional information in regard to the investigations did not cause Dr Bodel to alter the assessments given in the previous report.
Notably, having viewed the images, Dr Bodel did not mention any “slight right-sided predominance” at the L4/5 level.
In the report of 29 June 2016, prepared after examining the applicant on 22 June 2016, Dr Bodel answered specific questions. In response to being asked if his diagnosis of the applicant’s condition had changed since his previous report, and if so to what, Dr Bodel stated:
The diagnosis of this lady’s condition is an aggravated disc injury at the L4/5 level.
In answer to a question about the causal nexus between the applicant’s diagnosed condition and her employment, Dr Bodel wrote:
There is a causal link between the episode of injury that occurred at work and the ongoing complaints. The causal link is that the mechanism of injury has caused internal disc disruption at the lumbosacral junction in the second episode of injury also caused a further a version of the underlying pathology. There is clinical evidence that this aggravation was by a significant material aggravation in this circumstance.
The Tribunal does not accept that Dr Bodel had a well-founded basis for holding a view that was “contrary” to Professor McGill about additional structural damage having been suffered as a consequence of the two incidents in 2014. Dr Bodel’s initial diagnosis was based on a misreading of Professor McGill’s report and Dr Bodel maintained that diagnosis throughout his reports and evidence. He did say that it was a clinical opinion, but given its origin as described above, the Tribunal did not find that statement persuasive.
The Tribunal notes that during submissions, counsel for the applicant said that Dr Bodel could not identify on the MRI or CT objective pathology that would result in the pain the applicant was suffering.
For the above reasons, the Tribunal does not accept Dr Bodel’s diagnosis and prefers the opinion of Professor McGill.
The Tribunal’s preference for Professor McGill’s analysis and opinion is reinforced by an inaccuracy in the history of the 20 May 2014 incident taken by Dr Bodel which was not corrected until his fourth report.
In his first report dated 30 March 2015, Dr Bodel stated that the injury on 20 May 2014 occurred when ‘she was bending to lift parcels when she “froze up”’ and later in the report, “when she was bending forward lifting up parcels in a ULD”. That is not an accurate history.
As stated above, in his first report, Dr Bodel referred to Professor McGill’s first report in some detail.
In his first report, Professor McGill set out the following description of the 20 May 2014 incident:
The weather was cold and she was in the process of setting up the ULDs in the bull ring. The ULD cages were folded and she needed to unfold them. She bent at the knees and pulled on one of the cages. At that time she felt a “twang” in the low back”.
Despite that history being quite different from the history he had taken, Dr Bodel commented in his first report that Professor McGill confirmed the 20 May 2014 injury occurred “when simply bending in to the ULD to pick up parcels”.
It is not clear from Dr Bodel’s fourth report of 29 June 2016 whether his inaccurate history of the 20 May 2014 injury was brought to his attention by the applicant’s solicitors or from his discussion with the applicant on 22 June 2016. However, Dr Bodel corrected the history and concluded that the applicant “did suffer at least an internal disc disruption in the lumbosacral region at L4/5 as a consequence of that event”.

If Dr Bodel had read Professor McGill’s report carefully and understood it, he would not have based his diagnosis and disagreement with Professor McGill’s opinion, on a “slight right-sided predominance at the L4/5 level”. He may also have inquired and obtained an accurate history of the 20 May 2014 injury when he prepared his first report, rather than correcting that history in his fourth report.
Counsel for the applicant argued that because the rehabilitation program Professor McGill suggested ended at the end of December 2014, the applicant was entitled to compensation pursuant to sections 16 and 19 until at least that date.
The Tribunal does not accept that argument. Professor McGill made it clear in his oral evidence that, in his opinion, when he saw the applicant she was physically capable of performing her normal duties. He said that a gradual return to work program improves the chances of a person successfully getting back to work. Often people are fearful and concerned and will not do what they are being asked to do.
The Tribunal does not accept the argument that it should accept the applicant’s evidence that she continued to be incapacitated for work because of her August 2014 injury because she was not cross-examined about the continuing impact of her injury, but only about the mechanism of the injury. The issues of whether the applicant was as incapacitated as she claimed by the August 2014 injury and whether she needed medical treatment as she claimed were central to this case.
The applicant’s evidence about her capacity and need for medical treatment have to be considered together with all the evidence before the Tribunal about those issues, including the medical evidence. Counsel for the applicant cross-examined Professor McGill on the issue. There was substantial evidence, including from the clinical notes of the applicant’s general practitioner, Professor McGill and Dr Chan, that the applicant had various difficulties in her life which were impacting upon her adversely. The Tribunal accepts Professor McGill’s opinion in his second report “…that psychological factors, potentially including lack of motivation to return to normal duties, depression and other factors, have been playing a major role in her presentation”. Further, Professor McGill accepted that patients can have pain without pathology, such as in the case of fibromyalgia, if they are emotionally upset, are having a tough time in their life, and where there is no secondary gain.
In making the above findings, the Tribunal accepts that the applicant’s general practitioner has referred the applicant for further treatment, specialist attention, hydrotherapy and physiotherapy and that the applicant’s evidence is consistent with the general practitioner’s notes. However, the Tribunal prefers the opinion of Professor McGill who has carefully considered all the material and information available to him and who was cross-examined by counsel for the applicant, that the effects of the 14 August 2014 injury had ceased before 14 November 2014.
As stated at the beginning of this decision, the mechanism of injury was hotly disputed and the respondent tendered a considerable amount of evidence seeking to establish that the LSE did not stop because of a “huge eroded pothole” as the applicant described it to Dr Bodel. However, it is not necessary or useful to consider that evidence further because Dr Bodel and Professor McGill recorded similar accounts as to what happened to the applicant when the LSE did stop, which is the critical matter. She told Professor McGill the LSE abruptly stopped such that that she was lucky not to have been thrown off. Dr Bodel recorded that she was “jerked severely and she had to hold on vigorously to stop herself from falling and as she did so she jarred her back again”. Professor McGill said that his opinion did not change if the cause of the LSE stopping was a giant pothole. He said that the history he had been given was not that different from that given to Dr Bodel. Both doctors noted that the applicant continued working for half an hour after the LSE stopped abruptly.
In any event, based on the contemporaneous evidence, the Tribunal finds that the applicant was not sure what had caused the LSE to stop. The incident form for the injury on 14 August 2014 described the LSE “stopping suddenly on a few occasions”. The medical certificate issued on the day of the incident recorded: “Driving LSE – reversing when LSE stopped suddenly, nearly throwing her off”. The “Workers Compensation – Manager’s Recommendation – supporting evidence” prepared by Mr Santos, the Manager of the facility, states that the applicant “stated that the LSE kept stopping in reverse and jerking her back, at the time Linda was unsure if the sudden stopping was due to the LSE or the cracks in the floor”. Ms Cropper’s statement, which accompanied the applicant’s workers compensation claim form, reported that the applicant came into her office and “stated that she had re aggravated her sore back, … she had been on the LSE for 3 hours on her own and it was unfair … the LSE kept stopping in reverse and jerking her back. She wasn’t sure if it was the LSE or cracks in the concrete”. The applicant and Ms Cropper went to the floor area where the applicant pointed out “a particular hole in the concrete expansion joint that she claimed was probably the cause of the most severe jerk to her back”.
At the end of his submissions, counsel for the applicant invited the Tribunal to redefine the applicant’s injury as permitted by Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829 and Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136. The Tribunal understood this submission to be confined to non-physical factors Professor McGill talked about when he explained why he recommended a return to work program that extended beyond the time when he found the effect of the applicant’s injury had ceased.
The Tribunal does not accept that invitation. The Tribunal does not accept that the factors Professor McGill talked about were a result of the 14 August 2014 injury. It does not accept that any medical treatment the applicant obtained after 14 November 2014 was “in relation to the injury” as required by section 16 of the Act or that she was incapacitated for work as a result of the injury, as required by section 19 of the Act.
DECISION
For the above reasons, the Tribunal affirms the reviewable decision dated 14 November 2014, which is taken to have decided that the applicant did not continue to suffer the effects of an aggravation of the underlying degenerative changes in the lumbar spine which occurred on 14 August 2014 (the accepted injury) as at 14 November 2014, such that as at 14 November 2014, she was not entitled to compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in relation to the accepted injury.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

........................[sgd].............................
Associate
Dated: 28 February 2017

Dates of hearing: 28 and 29 September 2016

Counsel for the Applicant: Mr K Pattenden

Solicitors for the Applicant: Mr P Hansen, CommComp Lawyers

Counsel for the Respondent: Ms A Bortone

Solicitors for the Respondent: Ms K Miller, Sparke Helmore

[2017] AATA 241

28 February 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Remedies

Dates of hearing:	28 and 29 September 2016
Counsel for the Applicant:	Mr K Pattenden
Solicitors for the Applicant:	Mr P Hansen, CommComp Lawyers
Counsel for the Respondent:	Ms A Bortone
Solicitors for the Respondent:	Ms K Miller, Sparke Helmore