Quinn and Australian Postal Corporation (Compensation)
[2024] AATA 3004
•23 August 2024
Quinn and Australian Postal Corporation (Compensation) [2024] AATA 3004 (23 August 2024)
Division:GENERAL DIVISION
File Number(s): 2022/5030
2023/7789
Re:Mr Stephen Quinn
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:23 August 2024
Place:Melbourne
The Tribunal sets aside the decision of 20 April 2022 and decides that Australia Post continues to be liable to pay compensation for Mr Quinn injuries, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Tribunal remits the matter to Australia Post to assess Mr Quinn’s compensation in accordance with sections 16 and 19 of the SRC Act, in respect of reasonable medical expenses and incapacity for work.
The Tribunal affirms the decision of 18 August 2023.
...............................[sgd].........................................
Ms A E Burke AO, Member
Catchwords
WORKER’S COMPENSATION – mail sorter - Australia Post – no present liability – whether injury was work related – conflicting medical evidence – whether pre-existing condition – whether degeneration – whether acute physiological change occurred – whether injury occurred whilst undergoing treatment – 2 separate determinations – first decision set aside; second decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Australian Postal Corporation v Burch (1998) 85 FCR 264
Bis Industries Limited v Dale [2017] FCA 789Canute v Comcare (2006) 226 CLR 535
Szabo v Comcare [2012] FCFCA 1829
Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263Secondary Materials
Michele C Battié et al, ‘The Twin Spine Study: Contributions to a changing view of disc degeneration’ (2009) 9(1) The Spine Journal 47
Rahman Shiri et al, ‘The Association Between Obesity and Low Back Pain: A Meta-Analysis’ (2009) 171(2) American Journal of Epidemiology 135
Vini G Khurana, ‘Adverse impact of smoking on the spine and spinal Surgery’ (2021) 12 Surgical Neurology International 118REASONS FOR DECISION
Ms A E Burke AO, Member
First Application 2022/5030
Mr Stephen Quinn (the Applicant), applied for review of a decision by Australia Postal Corporation (Australia Post) (the Respondent) dated 7 June 2022, which found no present liability for compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of Mr Quinn’s accepted claim for “Mechanical Lower Back Strain” sustained on 4 January 2021. The decision was based on the 25 February 2022 report of consultant neurosurgeon, Dr Ashish Jonathan, which concluded that Mr Quinn’s current condition related to the pre-existing degenerative changes in his lumbar spine rather than his employment or the incident on 4 January 2021.
On 7 June 2022, Mr Quinn sought review of that decision by the General Division of the Administrative Appeals Tribunal (the Tribunal), stating that he disagreed with the decision as: The Respondent has given inadequate consideration to the Applicant’s medical evidence.
Second Application 2023/7789
Mr Quinn applied for review of a decision by Australia Post dated 9 October 2023 which denied liability under section 14 of the Act in respect of Mr Quinn’s claimed “ruptured disc” condition reportedly sustained on 4 January 2021. This new claim was in respect of further injury Mr Quinn sustained whilst undergoing physiotherapy treatment on 13 October 2021 for his previously accepted claimed condition.
On 22 October 2022, Mr Quinn sought review of that decision by the General Division of the Tribunal, stating that he disagreed with the decision as: The Respondent has given inadequate consideration to the Applicant's medical evidence.
BACKGROUND
Mr Quinn was employed by Australia Post from 16 December 2019 as a Postal Delivery Officer at Bentleigh East; he was redeployed on 15 October 2020 to the Dandenong South Parcel Delivery Centre (PDC) as a mail sorter and terminated on 14 February 2022 on the grounds of serious and wilful misconduct.
Mr Quinn is currently 52 years old and at the time of his injury was working as a Parcel Officer at the Dandenong South PDC. Mr Quinn commenced and completed a plumbing apprenticeship upon leaving school, has since worked as a plumber, truck driver, self-employed courier and in an administrative role in a plumbing supply business. Mr Quinn has been an active and keen sportsman, playing competitive football and cricket until his thirties. After Mr Quinn left Australia Post he undertook casual warehouse work, coached football in schools through an AFL program, and is currently employed as a part time sports coach/supervisor at Mentone Grammar.
On 11 January 2021, Mr Quinn’s supervisor Mr Andrew Friend submitted a Safety Event/Investigation – Output Form which recorded the following details in respect of Mr Quinn:
Title Hurt back while lifting dog food
Event Date 04.01.2021
Event Time 03:30
Description While sorting the non machinable cages I went to lift a box of dog food and when I tried to come back up I felt a pop in my lower back. The box was not marked as heavy. Sorter recalls bending his knees when attempting to lift the box.
Immediate Actions Sorter went to tea break after this event and sorters back started to stiffen right up during the break. Sorter was taken off any lifting duties and asked just to scan any parcels. Doctors appointment was offered but sorter would prefers to go to their own doctor. This will be around 9am today.
Event Classification Incident - Something happened which
Severity Minor-No hospitalisation / <5
Potential Severity Minor-No hospitalisation / <5 days lost
Event Type
Event Location
Dandenong South PDC
147-153 Greens Road
Dandenong South VIC 3175
Australia
On 12 January 2021, Mr Quinn submitted a claim for compensation under the SRC Act, as he had injured his lower back whilst on duty. Mr Quinn claimed he had lower back strain sustained while sorting parcels, with the injury occurring on 4 January 2021 and reported on 5 January 2021.
On 22 January 2021, Australia Post accepted liability for Mr Quinn’s "Mechanical Lower Back Strain" pursuant to section 14 of the SRC Act with the date of injury determined as 4 January 2021.
On 14 February 2022, Australia Post terminated Mr Quinn on the grounds of serious and wilful misconduct in relation to an incident which occurred on 23 November 2021. Mr Quinn was observed on a forklift truck carrying two fully laden unit load devices, this resulted in a near miss incident with a pedestrian working in the same area which he reported to management. Australia Post described the incident as Mr Quinn driving a forklift travelling in a forward motion, however, he should have been travelling in reverse to have vision of any personnel on foot in his direction of travel.
On 20 April 2022, Australia Post determined Mr Quinn was no longer entitled to compensation for medical expenses and incapacity payments under sections 16 and 19 of the SRC Act in respect of his accepted claim for “Mechanical Lower Back Strain” sustained on 4 January 2021.
On 30 June 2023, Mr Quinn submitted a second claim for compensation under the SRC Act, as he had been injured during a physio session where he felt and heard a pop and pain in his back. Mr Quinn was receiving physiotherapy treatment at Chelsea Longbeach Physiotherapy Clinic for his ruptured disc at L4/L5 which he sustained whilst lifting a parcel at Dandenong South Parcel Facility on 4 January 2021.
On 18 August 2023, Australia Post rejected Mr Quinn’s claim for compensation under section 14 of the SRC Act for a further lower back injury. Australia Post determined:
Following a review of the entirety of information provided along with your claim form, I must determine that at present there is insufficient medical evidence to suggest that you have suffered an injury which has arisen out of or in the course of your employment with Australia Post, as is required by section 5(a) of the SRC Act 1988.
This decision was affirmed under reconsideration on 9 October 2023.
The hearing was heard in person on 24, 25 & 26 July 2024. Mr Quinn was represented by Mr Leo Grey of counsel, instructed by Mr Michael Hyland of LHD Lawyers. Australia Post was represented by Mr Roy Seit of counsel, instructed by Mr Pietro Nacion of Sparke Helmore Lawyers.
LEGISLATION
Section 14(1) of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4 of the SRC Act defines an ailment to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. Relevantly, the interpretative provision at section 4(1) provides that the words injury and disease have the meanings detailed in sections 5A and 5B respectively of the Act, as follows:
5A Definition of injury
(1)In this Act:
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.
...
5B 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.
Compensation under the SRC Act can be provided for medical expenses, being treatment that was reasonable for the employee to obtain in the circumstances (section 16), and for incapacity for work (section 19). Compensation can also be provided for injuries resulting in permanent impairment (section 24) and for non-economic loss (section 27).
ISSUES
The key issues for determination are:
(a)Has Mr Quinn suffered an injury (disease) and, if so, has his employment at Australia Post contributed to that condition(s) or the aggravation of that condition(s) to a significant degree?
(b)Has Mr Quinn suffered an injury (other than a disease) and, if so, did it arise out of, or in the course of, his employment with Australia Post?
(c)If the answer is yes to either of the above, is Australia Post liable to pay compensation?
EVIDENCE BEFORE THE TRIBUNAL
Medical
On 3 April 2014, Practitioner JN at the Parkdale Chiropractic Clinic recorded that Mr Quinn had presented with a complaint of “spinal subluxation joint complex with associated HTT MM” and recorded:
Subjective Response: Muscle feel tight & ache
Clinical Impression
General Spinal Check Up
Purpose of consult to maintain health with a focus on spinal mobility
Encouraged to increase stretching and mobility as employment requires long periods of sitting
LX and THX CAV moderate
MTT degree of CAV
On 10 July 2014, Practitioner JN recorded that Mr Quinn had presented with a complaint of “spinal subluxation joint complex with associated HTT MM” and recorded:
Subjective Response: Muscle feel tight & ache
Clinical Impression
Spinal tightness improving less restricted
Tends to spasm around THX on spinal STT
Groin pulling BI
Goal to improve spinal mobility
Focus on maintaining function and strength
Australia Post’s pre-employment medical assessment report completed on 2 December 2019 assessed Mr Quinn’s back function as normal and that Mr Quinn demonstrated a normal range of motion for his age.
On 26 November 2019, Practitioner JN recorded that Mr Quinn had presented with a complaint of left lower lumbar strain sprain and recorded:
Subjective Response: Muscle feel tight & ache
Clinical Impression
L leg hip pain
Big toe numbness
SLR – VE BI
No specific incident
No red flags
Sleeping ok
Stress ok
On 25 June 2020, Practitioner JN recorded that Mr Quinn had presented with a complaint of “spinal subluxation joint complex with associated HTT MM” and recorded:
Subjective Response: Muscle feel tight & ache
Clinical Impression
L leg hip pain
Big toe numbness
No neuro radiculopathy
Heel and toe walking normal L4/5 L5/S1
Ballet standing exercise normal
On 27 October 2020, Practitioner JN recorded that Mr Quinn had presented with a complaint of “acute lower lumbar strain sprain work injury” and recorded:
Clinical Impression
Changed jobs
Fell off post bike landed on R forearm and leg 3 weeks ago
Tender LAT area of back
Pulling in R arm
L glut tender seized up
Shoulder scan required if no improvement
Reported to work as injury
On 11 November 2020, Practitioner JN recorded that Mr Quinn had presented with a complaint of “acute lower lumbar strain sprain work injury” and recorded:
Clinical Impression
L glut into hami nerve pain locking
A couple days deteriorating
Got off forklift
LX mild tightness
SP mobilisation and fascial release light TX AS high degree of P and MM spasm
On 16 November 2020, Practitioner JN recorded that Mr Quinn had presented with a complaint of “acute lower lumbar strain sprain work injury” and recorded:
Clinical Impression
L glut into hami nerve pain locking
A couple days deteriorating
Got off forklift
LX mild tightness
THX tightness
Feels ok at the moment but getting up causes LBP
SP mobilisation and fascial release light TX
On 4 January 2021, Practitioner JN recorded that Mr Quinn had presented with a complaint of “acute lumbar spine work injury” and recorded:
Clinical Impression
THX spine LX tightness into L hip
No neuro radiculopathy ATM
Waking stiff after sleeping
Doesn’t know what he has done-noi specific incident noted
Foam roller used to assist in tight MM
Deteriorating during work
Hami cramped on TX 2 day off work
On 6 January 2021, Dr Andre McMahon, General Practitioner at JobFit, provided a work ready medical certificate for Mr Quinn which recorded:
Diagnosis: Mechanical Lower Back Strain +/- L Facet Joint irritation
The patient described condition caused by: Bending to lift
…
Treatment, investigation and referrals: Advice, analgesia, review, Physio referral
No capacity for any type of duties to 15/01/2021
In your opinion, the worker’s employment is a contributing factor to this injury? Yes
On 11 April 2021, Dr Anil Gupta, Radiologist, reported on an MRI of Mr Quinn’s Lumbar Spine dated 9 April 2021 and recorded:
Clinical History: Work related low back injury since 4th January. No significant improvement despite physiotherapy and graduated suitable duties. Examination to exclude underlying back condition.
Findings:
L4/5:
Focal disc protrusion causing significant indentation of the thecal sac noted. There is inferiorly extruded disc fragment measuring approximately 9 x 8 mm size noted which is impinging the exiting left nerve root.
Right nerve root is clear of disc.
L5/S1:
Moderate generalised disc bulge with stenosis of neural foramina bilaterally with potential for impingement of exiting nerve roots bilaterally.
Remaining spine demonstrate no significant disc herniation.
Conus medullaris lies at L1 level.
Disc space between L5/S1 is reduced and disc desiccation at L4/5 and L5/S1 present. Moderate changes of facet joint arthropathy and spondylosis in the spine.
Impression:
L4/5 central disc with inferior extrusion. Left nerve root is impinged.
Potential for intermittent impingement of nerve roots bilaterally at L5/S1 level.
Diffuse spondylosis particularly prominent at L3/4 to L5/S1 level.
On 5 May 2021, Mr Reece Sher, Neurosurgeon and Spine Surgeon, provided a report to Jobfit in which he opined:
Diagnosis: Axial low back pain and L > R sciatica
• L4/5 extruded disc fragment compressing left L5 nerve root and L5/S1 > L4/5 DDD
Management
1. Activity modification and modified duties at work – avoid heavy lifting, sudden twisting/ turning
2. Analgesic program from LMO
3. Core strengthening physiotherapy and clinical pilates program – I would recommend Kieser with an advanced spinal physiotherapist.
4. CT guided L4/5 epidural injection
5. CT SPECT lumbar spine + standing flexion / extension x-rays (I will arrange)
6. Follow up in 6-8 weeks
…
Stephen reports that in January 2021, he was sorting large delivery parcels at work. He lifted a large box, weighing approximately 20kg when he heard a ‘pop’, resulting in back pain. This along with low back stiffness progressively got worse. He reported the incident at the time. He went to see a chiropractor the next day and the treatment helped about 75% for a brief period. Later that night the pain flared up again. He struggled to walk and was unable to work.
Stephen reports that the back pain radiates to the buttocks. The pain also intermittently radiated to bilateral lateral thighs and knees. On the left, the pain further radiated down to the foot (dorsum and plantar) in a predominantly L5 distribution. This is associated with altered sensation. Over the last month, his leg pain has been progressively getting worse and now affects him daily. He reports that his leg and back are equally bad now but may vary in that some days the leg pain may be worse whilst other days the back will be worse. The pain improves with lying down and is worse with standing and walking. He denies any weakness or sphincter dysfunction.
…
To examination, Stephen had limited range of motion to 80° flexion at the hips, 15° extension and lateral flexion bilaterally (limited by stiffness). He has reduced muscle bulk in the left calf and to a mild extent in the left tibialis anterior relative to the right. There was no focal weakness, extensor digitorum brevis muscle wasting or trendelenburg lurch. Sensation was reduced to light touch in the right lateral thigh and lateral leg. KJ and AJ reflexes were preserved at 2+ bilaterally. His gait including standard gait, tip toe gait and heel gait was normal within the boundaries of the consulting room.
Stephen’s MRI lumbar spine (Marina Radiology, PID 266254) kindly arranged by you demonstrates a focal L4/5 disc protrusion with inferior extrusion impinging the left L5 nerve root. At the L5/S1 there is advanced disc desiccation with disc height loss and disc bulge without apparent neural compromise on the current scan. There is also evidence of some facet joint arthropathy at these levels.
On 18 June 2021, Dr Gupta reported on an X-ray of Mr Quinn’s Lumbosacral Spine:
Clinical notes: ?instability. L4/5 disc prolapse. L5/S1 and L4/5 degeneration and facet joint arthropathy.
Findings: Spondylosis and degeneration in the spine particularly at L4/5 and L5/S1 level. Disc space between L5/S1 is reduced. No spondylosis or listhesis. S1 joints appear congruent. Mild faecal retention in bowel. No lytic or destructive bone lesion.
Conclusion: Degeneration spondylosis with reduced disc space L5/S1. No vertebral wedging.
On 18 June 2021, Mr Quinn underwent a CT guided L4-L5 lumbar epidural injection, and the notes recorded:
At 30 minutes post-procedure, immediately prior to discharge, the patient had experienced no new headache, no new lower limb weakness and was walking well.
On 19 June 2021, Dr Raef Boktor, Nuclear Medicine Physician and Sonologist, reported on Mr Quinn’s Bone Scan:
Clinical details: Mechanical low back pain, ? facet joint arthropathy/discopathy.
Technique: Triple phase bone scan and SPECT CT have been performed after intravenous administration of 840 Mbq technetium 99m HDP.
Findings: The blood flow and blood pool images of the lumbar vertebrae are normal. The delayed SPECT CT images of the lumbar vertebrae and pelvis show no abnormal osteoblastic activity in the lumbar facet joints, lumbar disc space or vertebral body. There is mild osteoblastic activity mapping to the acetabular articular surface of the left hip in keeping with degenerative changes. Mild osteoblastic activity in bilateral shoulders and sternoclavicular joints is also likely related to degenerative changes.
Conclusion: 1. No scintigraphy evidence of osteoblasticalIy active facet joint arthropathy or discopathy. 2. Left hip and bilateral shoulder degenerative changes,
On 23 June 2021, Mr Sher provided a report to Jobfit in which he opined:
Diagnosis: Axial low back pain and L > R sciatica
• L4/5 extruded disc fragment compressing left L5 nerve root and L5/S1 > L4/5 DDD
Management
1. Activity modification and modified duties at work - avoid heavy lifting, sudden twisting/ turning
2. Core strengthening physiotherapy and clinical pilates program - I would recommend Kieser with an advanced spinal physiotherapist …
3. Pain physician review, I will refer to Dr Guy Buchannon at METRO Pain
4. Follow up in 3 months
I followed up with Stephen today by a face-to-face consultation. He reports a 40% improvement in his leg pain after the CT-guided epidural injection. The paraesthesia and numbness have also improved to some extent. However, he is more aware of his back and posterior thigh pain now.
…
To examination, Stephen is able to mobilise independently with a normal gait. Tip toe and heel gait are also preserved and there is no evidence of Trendelenberg Lurch.
On 1 August 2021, Mr Sher provided a report to Jobfit in which he opined:
I followed up with Stephen after receiving recent correspondence from his physiotherapist that he has had a recurrence of his symptoms.
We spoke on the telephone today and Stephen reported that he has been having a recurrence of his bilateral (left > right) neuropathic leg pain and paraesthesia radiating down to the foot and toes. This is associated with patchy numbness which has remained unchanged, however, both of these symptoms are not as bad as they were prior to his last epidural injection.
He is awaiting a pain physician review which is scheduled for August. He has requested a further epidural injection to help him to continue with his physiotherapy and recovery. As such, I will email him a script for a CT-guided L4/5 epidural injection. Hopefully, this will be enough to help him until his review with the pain physician.
On 27 August 2021, Dr Guy Buchanan, Specialist Anaesthetist and Pain Management Physician, provided a report to Mr Quinn’s General Practitioner in which he opined:
Mr Quinn's height is 178 cm and weight 80 kg. The gait appeared reasonable and the heel and toe walking was preserved. The left leg appeared thinner than the right and also possibly shorter. The left calf circumference was 1.5 cm less than the right calf circumference and the left quadriceps circumference was 6 cm less than the right quadriceps circumference when measured equally distant from the patellae.
Lumbar flexion was relatively well preserved at the mid shins. Lumbar extension was about 50% of normal range and both of these movements were pain provocative. Deep tendon reflexes in the bilateral lower extremities were preserved and plantar reflexes were downqoing. There is decreased sensation to light touch in the left lateral foot and calf, compared with the right. Straight leg raising on the right was tolerated to 80° with tight hamstrings. Straight leg raising on the left was also tolerated to 80° but provoking symptoms below the knee and into the foot. Examination of the pelvis demonstrated no instability. There was mild lumbosacral tenderness to palpation in the paravertebral regions.
Imaging disclosed disc protrusion at L4/5 with inferiorly extruded disc fragment and also a moderate generalised disc bulge at L5/S1. The extruded fragment at L4/5 is reported to impinge the exiting left nerve root. The disc bulge at L5/S1 is reported to potentially impinge exiting nerve roots bilaterally. Other findings are noted including disc degenerative changes at the L4/5 and L5/S1 segments, associated with moderate changes of facet joint arthropathy and spondylosis.
The likely primary diagnosis is left L5 nerve irritation secondary to the L4/5 disc extrusion in association with degenerative changes to the L4/5 and L5/S1 discs. There is probably a mechanical axial factor for the back pain as well.
I recommend consideration of a trial of left L4/5 transforaminal epidural injection.
I have asked Mr Quinn to seek your care and attention regarding dyspepsia symptoms. I consider it more important that this be sorted out prior to a trial of transforaminal epidural injections.
On 28 August 2021, Dr Benadict Chen, Mr Quinn’s General Practitioner, recorded the following consultation note:
In January
hurt back at work
saw work doctor
MRI shows disc hernaiation
and saw pain specialist
had some ?epidural injections
but pains continued
had another recetnly
but now also c/o some abdo pains
not sure if related
not had review on diabetes for ages
will get some bloods
and see in surgery F2F
Reason for visit:
Abdominal pain
On 1 September 2021, Mr Adrian Raso, Physiotherapist, provided an update to Australia Post Injury Management:
Unfortunately Stephen's recovery from his back injury has been slow to date. I saw him yesterday and he mentioned the pain specialist wanted to do another round of injections however I'm not sure exactly what that involves, from what Stephen was saying it was quite an invasive injection he wanted to trial. He did mention the stomach pain so hopefully the hospital/GP tests can clear up whatever that is.
The hope has been that with the previous injections that he has had that they would take a lot of the nerve pain away so that we could work on getting Stephen stronger in a more pain-free and confident manner. However, they have only taken a minor amount of pain away to date.
We are still working twice a week at the physio with Stephen going through targeted supervised exercise and pilates. The stronger we can get the muscles surrounding the spine the less load has to go through the injured structures.
Talking to Stephen he is quite stressed about his injury because of the slow progress. He has mentioned to me that work is quite busy and stressful currently so there may be potential to have a chat directly with Stephen to see if there is anything specifically that can help. From my point of view I think it's great that Stephen is still working, as long as he is doing work that doesn't involve too much lifting or twisting then I am more than ok with that, as moving little and often will help his back.
On 8 November 2021, Dr Edward Roberts, Radiologist, reported on an MRI of Mr Quinn’s Lumbosacral Spine:
Clinical Notes:
Lower back pain and sciatica after fall.
Report:
Standard non-contrast sequences
No previous imaging available for comparison at the time of reporting.
Alignment: Normal.
Lateral curvature: Normal.
Vertebral body height: Normal.
Intervertebral discs: 11 x 5 x 12 mm left posterior paracentral disc extrusion at L4-L5 level extending behind the superior endplate of L5. It resulting contacting the traversing left L5 nerve root in the subarticular recess. More chronic degenerative changes at L5-S1 level with minor posterior disc bulge
Vertebral canal: Normal.
Exit foramina: Normal.
Facet joints: Normal.
Spinous processes: Normal.
SI joints: Normal.
Aorta: Normal.
Abdominal soft tissues: 10 mm right upper pole renal cortical cyst.
Lung bases: Not seen.
Conclusion:
Left L/L5 disc extrusion contacting the traversing left L5 nerve root in the subarticular recess.
On 22 February 2022, Mr Quinn underwent a Lumbar Trans-foraminal Epidural Injection Left L4/5 (intraneural) and L5/S1 (supraneural) performed by Dr Buchanan.
On 25 February 2022, Dr Ashish Jonathan, Consultant Neurosurgeon, opined in a medico-legal report for Australia Post:
Current Status:
Mr Quinn current symptoms include:
1. Nerve pain. This is more prominent on the left than on the right. The distribution of pain extends from the back to the buttocks to the posterior thigh and foot. It is present all the time. At its worse it is a 10/10 and at its best it is 3/10. It is worse on walking, standing and lying down. It is better with stretching and application of heat.
2. Weakness of the left leg. Mr Quinn said he is unable to bear weight on the left leg and on doing so, he develops pain. The leg feels as though it may collapse but it has not actually collapsed. He complains of shooting pain up through the neck and the back of the neck.
On coughing, Mr Quinn experiences soreness in the shoulder blade area.
Mr Quinn said that he on average sleeps six hours a night and has a 45-minute nap in the afternoon.
…
PHYSICAL EXAMINATION:
On examination, Mr Quinn was 174 cm tall and weighed 87 kg.
He was able to walk on his heels and toes and perform a half squat.
On examination of a straight leg raise test, the right was normal, the left was limited to 70° with no radicular symptoms reported.
There was normal power in the lower limbs.
There was decreased sensation in the left L2/3/4/5 and S1 dermatomes.
The knee jerks and ankle jerks were normal. The plantar response was down going bilaterally.
…
In my opinion, the radiological imaging shows multi-level degenerative changes in the lumbar spine characterised by disc degeneration and facet arthropathy. There is a L4/5 disc prolapse which compressed the left L4 nerve root. The L5/S1 disc prolapse potentially compresses the L5 nerve roots bilaterally.
These changes are degenerative in nature and are indicative of a long standing pre-existing degenerative disease of the lumbar spine.
…
In my opinion the current diagnosis is degenerative disease of the lumbar spine with left lumbar radiculopathy.
The degenerative change in the lumbar spine includes disc degeneration (at L4/5 and L5/S1) and facet arthropathy. There is evidence of nerve compression caused by the disc degeneration affecting the left L4 nerve root and potentially the L5 nerve roots bilaterally. The degenerative change is long standing and predates the reported incident.
Mr Quinn reports that he has undergone chiropractic treatment in the past. This leads me to believe that he has been symptomatic with degenerative disease of the lumbar spine prior to the reported incident.
In my opinion the reported incident has caused an exacerbation of the pre-existing degenerative disease of the lumbar spine. l use the term exacerbation as there were no new symptoms and there was no new pathology. The reported incident did not materially contribute to the pre-existing condition.
Mr Quinn after a period of time following the incident reported progressive neurological symptoms in his lower limbs. There is a temporal separation between the reported incident and the onset of lower limb symptoms. This progression of symptoms is unrelated to the reported incident and is attributable to the natural progression of the degenerative disease of the lumbar spine.
…
In my opinion Mr Quinn's current symptoms are not consistent with an acute injury they are caused by the degenerative disease of the lumbar spine.
…
In my opinion Mr Quinn's current condition does not arise as a result of the reported incident it arises as a result of the degenerative disease of the lumbar spine.
…
In my opinion, Mr Quinn's current condition is not related to his employment or the reported incident but rather due to the pre-existing degenerate disease of the lumbar spine. The main causative contributor to this condition is his genetics. Degenerative disease of the lumbar spine is a pathological entity and not a part of the normal ageing process.
…
In my opinion Mr Quinn's clinical presentation and examination findings are not consistent with an acute injury, they are consistent with limitation of lumbar mobility and Iumbar radiculopathy caused by the degenerative disease of the lumbar spine.
…
In my opinion Mr Quinn's employment does not contribute to the pre-existing degenerative disease of the lumbar spine.
I bear this opinion as following the reported incident did not result in a new pathology. The reported incident did not materially contribute to the pre-existing condition. The progression of symptoms temporally separated from the reported incident are attributable to the neural progression of the pre-existing degenerative disease of the lumbar spine.
…
In my opinion the reported incident has caused an exacerbation of the pre-existing degenerative disease of the lumbar spine. l use the term exacerbation and not aggravation as there were no new symptoms and there was no new pathology. The reported incident did not materially contribute to the pre-existing condition.
Mr Quinn a week following the incident reported progressive neurological symptoms in his lower limbs. This a temporal separation between the reported incident and the onset of lower limb symptoms indicates the progression and persistence of symptoms is unrelated to the reported incident and is attributable to the natural progression of the degenerative disease of the lumbar spine.
…
In my opinion the exacerbation which did not result in a new pathology and made no material contribution to the pre-existing condition has resolved. The expected period of resolution of such an exacerbation is 6-12 weeks following this period the persisting and progressing symptoms as re attributable to the natural progression of the degenerative disease of the lumbar spine.
…
In my opinion there has not been another episode. With degenerative disease of the lumbar spine, it is common to have a period of worsening of symptoms which a patient may attribute to activities such as work and exercise.
In the absence of a definite bio-mechanical or neurological change I would attribute these events to the nature of the disease rather than a new "episode". In my opinion Mr Quinn has not suffered another “episode”.
…
In my opinion Mr Quinn's exacerbation has ceased. His current condition is degenerative disease of the lumbar spine. This is a pre-existing condition. It has not been aggravated or accelerated by his employment. It is not a work-related condition.
On 16 March 2022, Dr Buchanan provided a review report to Mr Quinn’s General Practitioner in which he opined:
Lumbar spondylosis with L4/L5 disc extrusion impinging the L5 nerve root.
Lumbar Trans-foraminal Epidural Injection Left L4/5 (infraneural) and L5/S1 (supraneural) 22/02/2022 – very positive.
History/Discussion: Nerve pain is 90% relieved, Mr Quinn is very happy with the result and related a better quality of life.
ODI 6/45 (was 18/45)
Pain severity 2/10 (was 6-7/10), pain interference 2/10 (was 6-8/10)
Clinical Assessment: N/A
Recommendations: The injection treatments do not cure the underlying spondylosis, the clinical reasoning is to decrease pain severity and support paced functional improvement. Return to work should incorporate activity that recognises that the condition has been managed, not cured.
Continue gentle exercise reconditioning approach including neural glides, I recommend a programme that avoids loading the discs excessively
On 3 April 2022, Mr Raso sent an email to Jobfit in which he advised:
Stephen is doing a lot better since his most recent lot of spinal injections. His movement is much more fluent and he now only has some low level general lower back pain and very minimal nerve pain.
On physical examination he can bend to his ankles without worsening pain, can extend with good range of motion and no increased pain and can squat well.
He does have limited range of motion of his left hip so potentially in the future it may be worth considering an XR to determine if there are any hip joint limitations that cause Stephen any stiffness.
Today I tested him on some functional capacity measures and these are my recommendations for work:
• Sit for 60minutes continuous
• Stand for 60minutes continuous
• Walk for 60minutes continuous
• Drive for 60minutes continuous
• Able to complete steps for 60minutes
• Able to lift 16kg up steps if holding at waist height
• Able to bend to the toes repeatedly without weight
• Able to get down to the floor to kneel and get back up without issues
• Able to pick up 16kg (x10 repetitions) from the ground to his waist
• Able to pick up 16kg and transfer it to a table without concerns
• Able to pick up 16kg from waist height and lift it overhead without issues
• Anything regarding hand use (grasp, manipulation, keyboard) all no issues
• Completed x10 bodyweight pulls (leaning at a 45° angle) without issues
On 6 September 2022, Dr Ales Aliashkevich, Neurosurgeon and Spine Surgeon, opined in a medico-legal report for Mr Quinn:
On examination, Stephen had a normal gait and posture. He could stand on his heels and toes and squat halfway. His left thigh muscle bulk was reduced. The mid-thigh circumference on the right side was 38 cm, and 36 cm on the left. Both calves were 34 cm. The deep tendon reflexes were symmetrical. The diminished pinprick sensation was reported in the left leg, consistent with predominantly L5 more than L4 dermatomal distributions. Lumbar flexion was possible to 75°, the extension to 15°, and lateral tilting to 15° on both sides (see photographs below). Moderate tenderness was noted on palpation in the left lumbosacral region without muscular guarding.
…
Main diagnosis
- Chronic lower back and left leg pain
- Left paracentral L4/5-disc protrusion
- History of a workplace incident on 4/1/2021
- L4/5 epidural injection on 18/6/2021
- L4/5 epidural injection on 12/8/2021
- Left L4/5 and L5/S1 transforaminal injections on 22/2/2022
Other relevant conditions
- Left hip and bilateral shoulder degenerative changes
- Smoking 25 tobacco cigarettes a day
- Diabetes mellitus type 2
…
I consider his employment in general and the stated incident in particular as materially contributing factors to a significant exacerbation of a pre-existing degenerative lumbosacral spine condition. The workplace incident on 4/1/2021 appeared to significantly contribute to the development of the left paracentral L4/5 disc protrusion.
…
In my opinion, your client's prognosis is guarded. Since the work-related incident, he has suffered chronic back and left leg pain. He requires further treatment, as outlined below. He has several prognostic red flags and predictors of unfavourable long-term outcome:
- failed response to previous conservative treatment,
- only incomplete benefit after multiple injections,
- smoking,
- involvement in a work-related matter, and
- litigation.
I am uncertain whether he will achieve full functional recovery in the reasonably foreseeable future.
On 27 September 2022, Dr Gareth Phillips, Radiologist, reported on an X-ray of Mr Quinn’s Full Spine and Pelvis:
X-RAY FULL SPINE AND PELVIS
Clinical Details: Chronic neck and back pain. Chiropractic assessment.
Findings:
In the cervical spine, there is reversal of the mid cervical lordosis associated with disc degenerative change. There are disc degenerative changes from C2 to C7 with predominantly anterior osteophytic lipping. There is associated disc space narrowing at the C3/4, C4/5 and C5/6 levels, more marked at the C3/4 level. There are facet joint degenerative changes at the C7/T1 level. There is no evidence of instability on the flexion or extension views. In addition to the anterior osteophytes, posterior osteophytes are noted at the C3/4, C4/5 and C5/6 levels. On the frontal x-ray, lateral osteophytes are more marked at the C3/4 level and likely encroach on the exit foramina. No other abnormality of the cervical spine is seen. No cervical rib is demonstrated. Unerupted distal molars are noted in each mandible.
In the thoracic spine, there is no abnormality of alignment. There are disc degenerative changes with anterior and lateral osteophytes in the mid and lower thoracic region most marked on the right at the T8/9 and T12/L1 levels and on the left at the T10/11 level. No other abnormality of the thoracic spine is seen.
In the lumbar spine, there is no significant abnormality of alignment. There are disc degenerative changes with marginal osteophytes throughout the lumbar spine most marked at the L5/S1 level where there is additional posterior osteophyte formation. There is disc space narrowing from L2 to L5, most marked at the L4/5 and L5/S1 levels. No other abnormality of lumbar spine is seen.
The sacroiliac joints appear normal. There are extensive degenerative changes at the left hip. No other abnormality of the bony pelvis is seen.
On 26 April 2023, Dr Jonathan opined in a supplementary medico-legal report for Australia Post:
In my opinion Mr Quinn’s physical and repetitive nature of long-term employment as a post and parcel sorter does not contribute to his current condition. Dr Aliashkevich’s opinion that the nature and duration of Mr Quinn’s employment has contributed to his condition is not supported by medical literature which indicates that environment and employment are not correlated with degenerative change.
In my opinion Dr Aliashkevich’s statement that Mr Quinn had no evidence of previous back problems is false. Mr Quinn reported pre-existing stiffness and soreness in the back and had been attending regular chiropractic sessions before the reported incident.
I have reviewed the notes documented by Dr Mc Mahon who examined him 2 days following the alleged work incident. The notes indicate that Mr Quin experienced tightness and soreness in the lower back. The notes clearly document there were no limb symptoms. The notes do not record any back pain.
In my opinion –
• The absence of significant back pain and any limb pain on initial presentation.
• The presence of degenerative change with the absence of any acute change on the radiological investigation.
• The past history of back symptoms as reported to me during my assessment.
These indicate that the reported incident did not materially contribute to the pre-existing symptomatic degenerative disease of the lumbar spine.
In my opinion Mr Quinn’s current symptoms arise due to the degenerative disease of the lumbar spine and not as a result of the reported incident that did not materially contribute to the pre-existing degenerative disease of the lumbar spine.
On 23 June 2023, Dr Aliashkevich, opined in a supplementary medico-legal report for Mr Quinn:
There was no evidence of pre-existing back problems. Mr Quinn denied back or leg pain before the accident on 4/1/2021.
On 4 September 2023, Mr Sher opined in a medico-legal report for Mr Quinn:
Mechanical low back pain, left greater than right sciatica due to work related injury with MRI evidence of L4/5 disc prolapse compressing left L5 nerve root resulting in L5 radiculopathy, and L5/S1 greater than L4/5 degenerative disease.
…
Mr Quinn’s spinal injury occurred at work and it is directly related to his work.
…
At the time of my last review on 17 November 2021, Mr Quinn was suffering from a recurrent or further L4/5 disc prolapse at the prior injured site with aggravation of symptoms. This is despite a protracted multimodal rehabilitation program with ongoing intermittent aggravations of symptoms causing setbacks. In consideration of his progress from April 2021 to March 2022, I suspect that Mr Quinn will experience periods of improved symptom control and work productivity, but that he will likely suffer repeat flareups and progressive symptomatic degenerative disease. This is in keeping with the natural history of this problem. Therefore, I do not anticipate Mr Quinn being able to return to his pre-work duties, at least not without definitive management of his symptomatic spinal disease.
On 28 November 2023, Dr Jonathan opined in a supplementary medico-legal report for Australia Post:
In my opinion the further documentation, in particular the chiropractic records, indicate a significant history of backache, back stiffness, groin pain, big toe numbness, left hip pain, pain in the buttocks and radicular symptoms in the left leg that precede 4 January 2021.
The notes cause me to believe that Mr Quinn has not been forthright regarding the incident and the symptoms attributed to it, as the Chiropractor who examined him on the very same day states that Mr Quinn was unable to attribute the symptoms to a specific incident. This causes me to believe that Mr Quinn’s symptoms are unrelated to an incident on 4 January 2021.
…
In my opinion Mr Quinn has not been forthright and has underplayed his pre-existing symptoms. I have therefore had to rely on the clinical records provided.
In my opinion the Parkdale Chiropractic records indicate that Mr Quinn attended this clinic on 28 April 2014 with “lumbar and pelvic spinal tightness”. There is mention of improving range of movement, reduction of pain. Stretching of the glutes and “hamis”.
These notes indicate that Mr Quinn was symptomatic with lumbar symptoms as early as 28 April 2014.
An undated report from Mr Raso provided in respect of Mr Quinn’s Comcare pain:
2. Finding on initial examination
Stephen described pain across his lower back that radiated into his glute and hamstrings, worse on the left side. It was a constant pain unless he was lying down. Sitting, twisting, fast & jerky movements would aggravate his pain. He described it at as 5-6/10 pain (VAS score). Objectively he was able to bend forward to his shins, limited by lumbar pain. Lumbar extension was not painful. He was stiff and tender on palpation throughout all lumbar facets bilaterally, and stiff throughout his thoracic spine.
3. Diagnosis
My initial diagnosis was an acute disc injury causing Stephen’s pain, based off the mechanism of action and subsequent pain pattern. Subsequent MRI at Marina Radiology (PID 266254) revealed L4/5-disc protrusion with inferior extrusion impinging the exiting left L5 nerve root, as well as L5/S1 disc height loss without apparent neural compromise.
…
5. Your opinion as to whether our client's condition can be reasonably attributed, either by way of cause or aggravation, to the accident
My opinion is that the initial incident at work on the 4/1/21 can be attributed to Stephen’s lower back pain.
6. Prognosis
Typical prognosis for an acute disc-related lower back injury would be recovery in a 6-12 month period. With the radicular leg pain that Stephen was experiencing we typically see recovery times take longer to get the nerve to settle but would still expect good outcomes, potentially with medical involvement in the form of epidural or cortisone injection which Stephen had to calm his nerve pain down. When I last saw Stephen in March 2022 he had just undergone another round of injections into the lumbar spine which had helped a lot with the nerve pain and only pain around the left hip and groin remained. Stephen was confident with returning to work and at our final appointment 26/3/22 Stephen completed 20kg lifting, 20kg lift and walk, 20kg suitcase carry, repeated squats, overhead press with 20kg and 2x20kg weight lift and walk 10 metres. He completed all these well without lumbar pain. Based off this I would have expected Stephen to have a good prognosis following his time with me.
Factual Evidence in Respect of the Injury
Mr Quinn provided a written statement dated 6 March 2024 in which he attested:
As best I can recall, I had been going to Parkdale Chiropractic Clinic since around 2014. I would go for adjustments when I would get sore muscles in the middle of my back from time to time. I would also do it for management and therapeutic relief. I believe I would visit 4 times per year, sometimes more when I was doing my driving role because I found sitting for long periods of time made me feel uncomfortable. He would give me a crack and a massage and send me on my way. The issues that I have raised with the chiro prior to my work injury are certainly different, and not as serious, as those which I experienced on 4 January 2021.
I am informed that there are records of complaints in the notes towards the end of 2019 of lower back and left hip pain. I cannot recall those complaints specifically but believe they did resolve because I did not persist with treatment or need time off work because of them.
In 2020, to the best of my recollection, I did see the chiropractor complaining of pain after I experienced pain in my back whilst getting out of a forklift. The symptoms resolved shortly after, and I believe I returned to work and was unaffected by it.
Subject Accident
I believe that I commenced work on 3 January 2021 around 11:00PM and was rostered to finish work at 7:00AM the following day.
Sometime between 5:30AM and 6:00AM, while I was sorting the non-machinable cages, I went to lift a box of dog food and when I tried to come back up, I felt a pop in my lower back. I then felt sharp back pain. I believe the box weighed approximately 20 to 25 kilograms.
After this incident, I tried to continue working for the next 5 to 10 minutes before going on my 30- minute break.
After my break, I found it hard to stand up straight because of the pain and stiffness in my lower back. I reported this to my supervisor at the time, Andrew Friend, and left to go home a little earlier than I was scheduled to finish work.
Treatment and Return to Work
I cannot recall whether I went straight to the chiro or went home and slept first. However, the pain was pretty bad, so I went and saw my chiropractor. I recall him asking me what I thought I had done, and I remember saying that I was not sure.
For the next couple of days or so, I did not go to work. I was in a lot of pain.
…
As a result of the subject accident, I suffer from the following symptoms which are ongoing:
• Pain, stiffness and restriction of movement in lumbar spine;
• Referred pain from my lower back into my left leg all the way down to my toes;
• Numbness in lower legs from nerve pain;
• Difficulty bending, twisting and turning;
• Inability to run;
• Difficulty climbing stairs and ladders;
• Inability to lift more than 16 kilograms;
• Difficulty carrying heavy items;
• Difficulty standing for more than an hour;
• Difficulty sitting for more than an hour;
• Difficulty sleeping;
• Difficulty driving for prolonged periods of time due to lower back pain;
• Difficulty carrying out pre-injury employment;
• Difficulty carrying out pre-injury domestic tasks; and
• Difficulty carrying out pre-injury social activities such as cricket, golf and AFL.
Mr Quinn provided the following evidence:
·There is considerable difference between prior to and after the injury; he experiences pain and hardship in completing the activities he previously undertook.
·He has not returned to his pre-injury capabilities.
·He had undertaken general maintenance for the body with a chiropractor since about 2014 to have adjustments and massaging; to help ensure he could continue to work and enjoy his lifestyle.
·He did not recall telling the chiropractor he was suffering from back pain; he could not account for the chiropractic notes as he had not written them; he had attended the chiropractor for general stiffness and soreness but never acute back pain and had never taken pain killers for back pain.
·He recalled the incident bending to lift a heavy object, feeling pain, continuing to work until he couldn’t, advising his supervisor on the day of the incident that he had suffered back pain and attended the chiropractor; he could not recall if he did this on the way home or later that day.
·The pain from the incident was significant; the pain is ongoing and at a level he had not experienced before.
·He does not take pain killers; prefers to stay active and deal with his pain through movement such as walking and swimming but can no longer afford hydro sessions.
·He had been placed on light duties, such as paperwork with no lifting or bending, and was down to only 4 hours a day.
·He had been a smoker for many years, consuming 20 – 30 tobacco cigarettes a day.
·He had been overweight and had worked hard to reduce his weight, suffered from type 2 diabetes and had given up drinking alcohol.
·He had not been able to afford treatment for his injury since his payments had been cut off.
·He had found it very difficult to get work as he had to declare he had a WorkCover claim from a back injury, and this prevented him getting work he would normally seek in a warehouse or as a driver.
·He was primarily after payments so that he could resume treatment to be able to have a generally happy ongoing life. Prior to the injury, he was involved in many activities but is physically and financially unable to do many of those things anymore.
·The mental and emotional cost has been incredibly difficult to deal with in this whole process; he feels he has lost his quality of life and cannot do half of what he could prior to the incident.
CONTENTIONS
Mr Quinn
Counsel contended that the decisions under review should be set aside as Mr Quinn had suffered an injury that arose out of or in the course of his employment, and the evidence clearly indicated his injury was an “injury simpliciter”.
Counsel contended Mr Quinn’s continuing incapacity for work and ongoing requirements for medical treatment resulting from the compensable injury, was a question of fact. Counsel contended that Mr Quinn suffered a compensable injury, and that this injury continues to cause him incapacity for work and the ongoing need for medical treatment.
Counsel contended that credibility was fundamental in this case and the Tribunal could comfortably rely upon the truth and accuracy of the evidence given, particularly that of the Applicant Mr Quinn. Counsel submitted that the Tribunal should find he was a comprehensive witness of truth. Counsel contented that Mr Quinn had been tight, concise and constructive in his evidence, and that he had conceded to facts put to him when appropriate but had also rejected appropriate claims put to him during cross examination. Counsel contended that the Tribunal would be assisted by Mr Quinn’s evidence, as he had provided an honest account of himself throughout the whole process.
Counsel contended that if the Tribunal accepted Mr Quinn as a witness of truth, then the Tribunal must find he has a genuine injury.
Counsel contended that the irrefutable factual evidence of Mr Quinn’s MRI of 11 April 2021 indicated he had suffered an injury simpliciter as his disc had been fragmented, with part of his disc protruding (breaking off) and impinging his nerve root resulting in significant pain. Counsel contented that this was the result of the injury he suffered on 4 January 2021, when he lifted a heavy bag of dog food from the bottom of the cage.
Counsel contended that there was a clear causal connection between Mr Quinn’s injury and the resulted physiological change he experienced with the damage to his disc. Counsel contended that the Tribunal should rely upon the determination in Australian Postal Corporation v Burch (1998) 85 FCR 264 (Burch), a case he noted Australia Post lost, which clearly determined it was sufficient to show that an injury had arisen out of the course of the employment. Their Honours determined in Burch on page 268:
The matter can be approached in this way. In lay terms, injury and disease are different concepts, notwithstanding that there may be some instances where the appropriate categorisation is problematic. But one would unhesitatingly speak of cancer or influenza as a disease and a broken leg or concussion as an injury.
Since both injury and disease are misfortunes which may have a relationship to employment, workers' compensation legislation has long provided for compensation in each case. But the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury.
The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease, there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment - there need not be a causal connection.
Thus an employee seeking compensation, like Mr Burch, will naturally enough try first to show that he or she has suffered an injury (in the ordinary sense) because it will only be necessary then to establish that the injury arose in the course of employment.
In respect of Mr Quinn’s second claim for an injury arising from his physiotherapy treatment on 13 October 2021, Counsel contended Mr Quinn continued to press this claim.
Counsel contended that the Tribunal should place limited weight on the chiropractic notes and treat with caution the assumptions that Australia Post and Dr Jonathan had interpolated from the notes. Counsel submitted that the Tribunal could not assess the full veracity of the chiropractic notes as Australia Post had chosen not to call the chiropractor to provide evidence of their assessment of Mr Quinn or to explain in detail what the notes meant.
Counsel contended that Australia Post’s assessment of Mr Quinn’s claim had been coloured by Dr Jonathan’s view that Mr Quinn had been lying throughout his claim based on Dr Jonathan’s assessment of the untested chiropractic notes.
Counsel contended that the chiropractic notes were very interesting and in fact supported Mr Quinn’s evidence and claim that he had not suffered a back injury prior to the incident on 4 January 2021, but he had been attending the chiropractor as he asserted for ongoing maintenance to preserve his mobility to deal with muscle aches and pains associated with his lifestyle involving heavy work and competitive sport.
Counsel contended that the evidence did not support a finding that Mr Quinn had been suffering for years from the development of disc disease. Counsel submitted that the evidence indicated a frank injury occurred because it was only at this stage of Mr Quinn’s pain being so severe that his treaters had determined it was necessary to undertake a radiological investigation of his spine.
Counsel submitted that the evidence before the Tribunal did not support Dr Jonathan’s assessment of the chiropractic notes, as the chiropractic notes did not identify Mr Quinn as presenting with L5 radiculopathy until the incident. Counsel submitted that the notes generally detailed no presence of radiculopathy to have been found.
Counsel contended that the evidence did not support a finding that a person could be asymptomatic if they had suffered from disc herniations and submitted that the Tribunal should prefer the evidence of Mr Sher on this point.
Counsel submitted that the three medical experts called to give evidence had distinct and very different styles:
·Mr Sher was a very impressive witness; was polite, to the point, coherent and helpful in his answers; his evidence made perfect sense; and he had not altered his opinion on the additional evidence provided.
·Dr Aliashkevich was prepared to entertain other views of how Mr Quinn’s injury had arisen based on additional information provided, but remained supportive of his original opinion and on balance was supportive of Mr Quinn’s claim that his back condition had arisen from an injury at work.
·Dr Jonathan had allocated too much weight to the chiropractic notes, had simply asserted that Mr Quinn’s condition was degenerative without being able to explain how he had arrived at this conclusion, had accused Mr Quinn of being untruthful and had taken a partisan position.
Counsel submitted that the Tribunal should prefer the evidence of Mr Sher as he had been treating Mr Quinn for some time, was undoubtfully an expert in his field, and had made concessions that Mr Quinn was suffering from degeneration of the spine but contended that Mr Quinn’s injury had arisen from the disc protrusion, which was a result of an injury and not degeneration.
Counsel submitted that Mr Sher’s interpretation of the MRI evidence should be preferred as he had not arrived at on oversimplified view of a complex problem; that his opinion had not changed over time; that he worked specifically in spinal injuries and saw a great deal of spinal trauma; and that his evidence had clearly been that disc herniation is most common amongst 20-40 year olds, usually caused by a traumatic event such as heavy lifting, with Mr Quinn being a classic case of such an injury.
Counsel submitted that Mr Quinn’s evidence clearly indicated that Mr Quinn continues to be in significant pain which requires ongoing medical treatment, that his injuries continue to place significant limitations on his ability to return to his pre-injury employment levels, and that Mr Quinn was entitled to compensation payments as he was no longer able to earn what he had previously earned at Australia Post.
Counsel submitted the matters of Szabo v Comcare [2012] FCFCA 1829 (Szabo) and Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263 (Hannaford) had no bearing on the current case before the Tribunal.
Counsel contended that the Tribunal should set aside the decision, as this was a very simple open-and-shut case of a frank injury that Mr Quinn had sustained while at work for Australia Post.
Australia Post
Australia Post contended that Mr Quinn:
(a)suffered from pre-existing degenerative changes affecting the lumbar spine which pre-existed the index incident which allegedly occurred on 4 January 2021.
(b)was symptomatic with pre-existing degenerative changes of the lumbar spine prior to the alleged index incident on 4 January 2021.
(c)did not suffer from a frank “injury” of the lumbar spine which arose out of or in the course of the alleged index incident which occurred on 4 January 2021.
Australia Post submitted that in support of the abovementioned contentions it relied upon:
(a)The treatment entries contained in the clinical notes of the Parkdale Chiropractic Clinic.
(b)The opinion of Mr Jonathan – most notably his evidence at hearing and his report dated 23 November 2023 – who, after considering the clinical notes of the Parkdale Chiropractic Clinic, expressed the opinion that the clinical notes disclosed a prior history of mechanical lower back pain with left sided radiculopathy which pre-dated the index incident on 4 January 2021.
Australia Post did not dispute that it had accepted threshold liability under section 14 of the SRC Act in respect of Mr Quinn’s injury identified as “mechanical lower back strain” sustained on 4 January 2021.
Counsel contended that the decisions under review should be affirmed as Mr Quinn had not suffered from an injury that arose from his employment at Australia Post. Fundamentally, Counsel contended that any incapacity for work or need for medical treatment experienced by Mr Quinn were not due to a compensable injury and, therefore, Australia Post had no present liability under section 14 of the SRC Act.
Counsel contended that Mr Quinn had not been a witness of truth. Counsel contended Mr Quinn’s evidence at the hearing was self-serving, evasive and the Tribunal could place little weight upon it as it was unreliable.
Counsel submitted that Mr Quinn had failed to provide both Mr Sher and Dr Aliashkevich with a full medical history; had failed to disclose any previous history of back pain, or that he had seen a chiropractor for many years prior to the injury; had repeatedly denied any left hip complaint; had been unable to recall seeking medical treatment in relation to an assault; had conflated the period for which he had been undertaking the role as a mail sorter; and had not advised that he had undertaken casual work between January and June 2021.
Counsel contented that Australia Post is entitled to challenge the findings expressly or impliedly underpinning the initial acceptance of threshold liability under section 14 of the SRC Act for Mr Quinn’s first claim.
Counsel submitted that Mr Quinn had never suffered from a compensable injury, and relied upon the opinion of Dr Jonathan who opined that Mr Quinn’s lumbar spine symptoms were a result of the natural progression of underlying and pre-existing degenerative changes attributable to genetics/familial pre-disposition. Counsel referred to and relied on the decision in Hannaford.
Counsel submitted that the evidence before the Tribunal clearly demonstrated that Mr Quinn had been suffering from back pain from as early as 2014, as established by the treatment notes of Mr Quinn’s chiropractor. Counsel submitted that the Tribunal should prefer and rely upon Dr Jonathan’s interpretation of the chiropractic notes. Counsel submitted that they demonstrated that Mr Quinn had been suffering from radiculopathy for a considerable period of time, and his MRI clearly showed significant degeneration of his spine over many years. Counsel took the Tribunal to Dr Jonathan’s supplementary report of 28 November 2023 where he had opined:
In my opinion the further documentation, in particular the chiropractic records, indicate a significant history of backache, back stiffness, groin pain, big toe numbness, left hip pain, pain in the buttocks and radicular symptoms in the left leg that precede 4 January 2021.
The notes cause me to believe that Mr Quinn has not been forthright regarding the incident and the symptoms attributed to it, as the Chiropractor who examined him on the very same day states that Mr Quinn was unable to attribute the symptoms to a specific incident. This causes me to believe that Mr Quinn’s symptoms are unrelated to an incident on 4 January 2021.
…
In my opinion the further documents bring to light several inconsistencies in the history provided by Mr Quinn on 8 December 2021.
On 8 December 2021 Mr Quin said - following the alleged incident on 4 January 2021, on the way home he called in to see a Chiropractor whom he had consulted before a few years prior for soreness and stiffness throughout the body. The Chiropractor performed a limited manipulation as he was tender and sore. Mr Quinn has not consulted the Chiropractor since. Mr Quinn said in the past he has experienced soreness and stiffness in the back due to work and life. He would see a Chiropractor once every six months.
The further documents, in particular the chiropractic records indicate that Mr Quinn has not been forthright regarding his past history. The records show –
Mr Quinn has consulted his Chiropractor, 6 times in 2014, 9 times in 2015, 4 times in 2016, once 2017, 2 times in 2018, 3 times in 2019, 4 times in 2020 and 3 times in 2021. This is inconsistent with frequency reported by Mr Quinn.
Mr Quinn consulted his Chiropractor on the day of the injury, 4 January 2021. The Chiropractor has recorded that Mr Quinn did not know what has caused the symptoms and no specific incident was noted. This indicates that the symptoms reported by Mr Quinn are not attributable to the reported incident. They are attributable to the pre-existing condition for which Mr Quinn had been receiving chiropractic treatment.
Mr Quinn consulted his Chiropractor on 6 January 2021 and 8 January 2021. Thus, Mr Quinn’s assertion that he did not see the chiropractor after 4 January 2021 is not true.
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26 November 2019:
Mr Quinn presented to the Chiropractor with muscle ache and tightness, left leg, hip pain and numbness in the big toe with no specific causative incident. He was diagnosed to have left lumbar strain/sprain.
In my opinion the clinical picture is consistent with mechanical back pain and left lumbar radiculopathy. This is caused by the degenerative disease of the lumbar spine.
25 June 2020:
Mr Quinn presented to the Chiropractor with muscle ache and tightness, left leg, hip pain and numbness in the big toe. I disagree with the Chiropractor’s impression that there was no “neuro radiculopathy”, as in my opinion in the combination of left leg pain with numbness in the big toes is indicative of a left L5 radiculopathy. He was diagnosed to have “Spinal Subluxation Joint Comlpex (sic) With Associated HTT MM”. In my opinion this is a pseudoscientific diagnosis of no clinical significance.
In my opinion the clinical picture is consistent with mechanical back pain and left lumbar radiculopathy. This is caused by the degenerative disease of the lumbar spine.
11 November 2020:
Mr Quinn presented to the Chiropractor with nerve pain from the left gluteus into the hamstrings with “locking”, which was deteriorating over a couple of days. There is mention that Mr Quinn “got off forklift”, however its relevance is unclear.
In my opinion the clinical picture is consistent with mechanical back pain and left lumbar radiculopathy. This is caused by the degenerative disease of the lumbar spine.
16 November 2020:
Mr Quinn presented to the Chiropractor with symptoms he had reported earlier - nerve pain from the left gluteus into the hamstrings with “locking”, which was deteriorating over a couple of days. There is mention that Mr Quinn “got off forklift”, however its relevance is unclear.
In my opinion the clinical picture is consistent with mechanical back pain and left lumbar radiculopathy. This is caused by the degenerative disease of the lumbar spine.
Counsel further contended that any initial lumbar spine symptoms that Mr Quinn experienced were a result of the natural progression of underlying and pre-existing degenerative changes, which are attributable to the following recognised risk factors for the early development of degenerative changes of the lumbar spine, namely:
(a)Leg length discrepancy/pelvic tilt issues; and
(b)Previous history of obesity; and
(c)Long term heavy smoking; and
(d)Type 2 diabetes; and
(e)Psoriasis.
Counsel contended that liability should never have been accepted under section 14 of the SRC Act for the accepted back injury, relying upon the opinion of Dr Jonathan contained in his reports dated 30 August 2022, 26 April 2023 and 28 November 2023. In support of their contention, Counsel took the Tribunal to several medical journals which they submitted corroborated their claim and Dr Jonathan’s findings that degenerative changes in Mr Quinn’s spine were genetic and related to smoking and obesity:
The Twin Spine Study: Contributions to a changing view of disc degeneration
CONCLUSIONS: The once commonly held view that disc degeneration is primarily a result of aging and ‘‘wear and tear’’ from mechanical insults and injuries was not supported by this series of studies. Instead, disc degeneration appears to be determined in great part by genetic influences. Although environmental factors also play a role, it is not primarily through routine physical loading exposures (eg, heavy vs. light physical demands) as once suspected.
The Association Between Obesity and Low Back Pain: A Meta-Analysis
This meta-analysis assessed the association between overweight/obesity and low back pain.
…
In summary, this meta-analysis shows that overweight and obesity are associated with an increased risk of low back pain. The association is strongest for seeking care for low back pain and chronic low back pain. Our study suggests that obesity is a potentially modifiable risk factor for low back pain. However, well-conducted prospective studies, including intervention studies, are needed to confirm our findings.
Adverse impact of smoking on the spine and spinal surgery
The nutritional supply of intervertebral discs, which are nonvascular tissues, depends on diffusion from adjacent vertebral bodies. That supply is compromised by smoking-induced vascular atherosclerosis in both local arteries and arterioles, thus promoting generalized tissue ischemia. Smoking also induces a hypoxic and low pH state in intervertebral discs, leading to a reduction in normal cellular activity that impairs collagen and proteoglycan production, while enhancing enzymatic proteolysis. Smoking’s disruption of cells, extracellular matrix, and the ordered histological architecture in spinal discs contributes to fissures/tears and fibrotic macroscopic hardening of the nucleus pulposus. Together, these adverse factors advance the loss of disc height/hydration (desiccation) and promote the onset of earlier and more severe symptomatic lumbar spondylosis. In studies of identical twins where one smoked and the other did not, the smoker was found to have higher disc degeneration and lower bone mineral density (BMD) scores.
…
Through a multitude of pathophysiological mechanisms, smoking negatively impacts the structure of the spine and the results of spinal surgery. Patients anticipating undergoing spinal procedures should therefore quit smoking immediately and permanently.
Counsel contended that the Tribunal did not have jurisdiction in the context of Mr Quinn’s first claim to consider or treat the initial accepted injury on the alternative basis that it was a “disease”.
Counsel contended that Mr Quinn’s accepted claim was submitted and subsequently determined by Australia Post on the basis that it related solely to a frank “injury” arising out of or in the course of employment on 4 January 2021. Counsel submitted that the Tribunal was dealing with an injury claim as a result of the index incident and not a “disease”, being an ailment that was contributed to in a significant degree by the nature and conditions of Mr Quinn’s employment generally over time. Counsel relied upon the decision of the Full Court of the Federal Court in Szabo.
Counsel contended that if the Tribunal disagreed with them on jurisdiction and found that it could consider Mr Quinn’s claim as a disease type, then in the alternative, they contended that any contribution by employment generally over time to Mr Quinn’s degenerative changes of the lumbar spine were not “significant” so as to constitute a “disease” within the meaning of section 5B of the SRC Act.
Counsel contended in the alternative that if the Tribunal accepted that Mr Quinn’s back injury was a “disease”, which Australia Post denies, then they submitted that Mr Quinn made a false representation, as he denied on his claim for compensation dated 12 January 2021 that he had ever suffered from a similar condition when answering “No” to the question “Have you ever experienced the same, or a similar condition, injury or illness, work related or otherwise?”
Counsel contended that this representation was “false” and “wilful” and would preclude Mr Quinn from an entitlement to any compensation for the disease by virtue of the operation of section 7(7) of the SRC Act.
Counsel contended in the alternative that if the Tribunal accepted that Mr Quinn sustained a frank “injury” which arose out of the index incident on 4 January 2021 (which Australia Post specifically denied), then they submitted that the frank “injury” constituted a temporary “exacerbation” of symptoms, the effects of which ceased to exist after 6 to 12 weeks. Counsel submitted they relied upon the opinion of Dr Jonathan contained in his reports dated 30 August 2022, 26 April 2023 and 28 November 2023 to support this contention.
Counsel submitted that a conclusion that Mr Quinn had suffered a prolapsed disc at work was entirely dependent on the story he had given, and that he had suffered no back pain prior to that event. Counsel therefore contended in respect of the three medical witnesses, that the Tribunal should prefer Dr Jonathan’s opinion as he was the only expert who had a full picture of Mr Quinn’s medical history, given that Dr Jonathan’s opinion was based on his clinical review of Mr Quinn and that this was of greater importance than the review of Mr Quinn’s scans.
Counsel submitted that the Tribunal should place limited weight on Mr Sher’s opinion as he had not seen Mr Quinn since April 2022 and could provide no comment on Mr Quinn’s current work capacity or requirement for medical treatment.
Counsel submitted that Mr Sher’s report was inaccurate as it was based on false evidence, and that his assessment of the details of the chiropractic records were provided as an advocate for his patient and not as an independent expert. Counsel submitted that Mr Sher was simply unwilling to concede to any other explanation for Mr Quinn’s pathological courses; that Mr Sher’s evidence had been disputed by the other medical experts, who had both agreed that the constellations of systems in the chiropractic records were clinical evidence of L5 radiculopathy; and that Mr Sher’s evidence that patients suffering disc perforation were never asymptomatic was refuted by the other experts, who clearly indicated that no patient presents to a neurosurgeon if they are not suffering pain.
Counsel submitted that Dr Aliashkevich’s report had also been based on an inaccurate history that Mr Quinn had no prior back pain, and that he had been undertaking his repetitive activities as a mail sorter for a considerable period of time. However, Counsel submitted that Dr Aliashkevich had altered his opinion during his oral evidence when advised that Mr Quinn had only been parcel sorting for 2 and half months and had a prior history of back pain. Counsel submitted that Mr Aliashkevich retracted his opinion that employment had made a contribution to Mr Quinn’s condition.
Regardless, Counsel submitted that the Tribunal had no jurisdiction to deal with Mr Quinn’s application as a “disease” because of the following factors::
·Mr Quinn application for compensation had not been made as nature and conditions claim.
·his history of back pain was consistent with L5 radiculopathy based on the chiropractors’ clinical findings.
·That all the medical experts had attested that clinical findings are more important of radiology findings and
·at best the incident on 4 Jan 2021 was an exacerbation of an existing condition.
Relying upon Dr Jonathon's opinion, Counsel contended that if Mr Quinn had suffered an injury, the impact of that injury has ceased, and any ongoing issues had been overtaken by his genetics and adverse impact of smoking.
Counsel contended that Dr Jonathan’s oral evidence supported his written opinion, which had been based on the knowledge that Mr Quinn had a pre-existing condition of L5 radiculopathy. Counsel submitted that Dr Jonathan’s oral evidence was clear in that he had assessed no sign of a new injury on Mr Quinn’s MRI, and that his evidence had been that the MRI showed wrinkles in the disc, indicative of degeneration over time and not a fresh injury.
Counsel submitted that Dr Jonathan had also observed that Mr Quinn’s L4/5-disc protrusion was evident in Dr Sher’s notes, as he had found that Mr Quinn was suffering reduced muscle bulk and atrophy in the left lower limb, which could not have occurred a mere 4 months after the injury – observed wasting like this had a longer time of onset.
Counsel submitted that Dr Jonathan rejected that Mr Quinn’s L4/5-disc protrusion arose out of an injury, that records indicated significant improvement in Mr Quinn’s condition and that Jobfit had cleared Mr Quinn to return to his preinjury duties.
Counsel contended that the evidence indicated that Mr Quinn was no longer unfit to carry out his preinjury duties, and that had he not been dismissed, he would have returned his previous work and work hours.
Counsel submitted that evidence clearly indicated that disc perforation can be asymptomatic.
Counsel contended that the chiropractic notes on the day of the alleged injury indicated that there had not been a reported injury. Counsel submitted that the clinical notes indicated that Mr Quinn advised the chiropractor that he had woken stiff and sore and could not identify what had triggered the pain. Counsel submitted that as Mr Quinn had seen the chiropractor at 9am on the way home from work after the alleged injury, the notes clearly indicated he was already suffering from lower back pain and therefore it had not arisen from the alleged work incident.
Regardless, Counsel contended that the evidence would now indicate that the effects of Mr Quinn’s accepted back injury sustained on 4 January 2021 no longer result in a reasonable necessity for medical treatment, or an incapacity for work as at 20 April 2022. Therefore, Counsel contended that Australia Post was no longer liable to pay compensation to Mr Quinn for medical treatment and incapacity for work under sections 16 and 19 of the SRC Act in relation to the accepted back injury as at 20 April 2022 and presently.
In respect of Mr Quinn’s second claim for an injury arising from his physiotherapy treatment on 13 October 2021, Counsel contended that section 5A(1)(c) of the SRC Act has no application to the treatment injury as there was no temporal or causal connection between the treatment injury and employment.
Counsel further contends that section 6(1)(f)(ii) of the SRC Act has no application in a situation where the alleged treatment injury is suffered by an employee as a result of the medical treatment, and in that situation section 4(3) of the SRC Act governs the issue of whether the treatment injury constitutes a further new “injury” for the purposes of the SRC Act.
Counsel submitted that in order to invoke section 4(3) of the SRC Act to establish a further new “injury”, Mr Quinn must establish:
(a)A continuing compensable “injury”; and
(b)That the medical treatment was obtained in relation to that continuing compensable “injury”; and
(c)That it was reasonable to obtain that medical treatment in the circumstances; and
(d)That the further new “injury” was suffered as a result of that medical treatment.
Counsel contended that there was no continuing “injury” at the time Mr Quinn obtained the physiotherapy treatment on 13 October 2021, and consequently section 4(3) of the SRC Act does not apply. Counsel relied upon the medical opinion of Dr Jonathan.
Counsel submitted that the medical experts called by Mr Quinn had made no submissions in respect of the second claim, and there was no evidence before the Tribunal which indicated that the physiotherapy session had resulted in a new injury or aggravation of pre-existing injury.
Further, Counsel contended the evidence before the Tribunal of Dr Jonathan and Mr Raso demonstrated Mr Quinn had not suffer a new “injury” as a result of the physiotherapy treatment obtained on 13 October 2021, and
(a)At the appointment on 13 October 2021, Mr Quinn “had described a lot of left sided nerve pain that had started the day prior” to the appointment.
(b)During the performance of an exercise believed to be a “donkey kick”, Mr Quinn reported hearing a “pop” in his back and was reassured that the “pop” sound would have been due to a spinal cavitation.
(c)They did not believe that an exercise of this low intensity could have caused any significant damage to Mr Quinn’s back.
(d)As Mr Quinn already had a lot of left sided nerve pain prior to the physiotherapy session on 13 October 2021, it is difficult to say if the ‘pop’ itself directly aggravated his symptoms.
(e)By mid-November 2021, Mr Quinn’s symptoms had settled back to what they were prior to the physiotherapy session on 13 October 2021.
Counsel submitted that evidence indicated that Mr Quinn had no current compensable injury, was undertaking no treatment and had been found fit for pre-injury duties.
CONSIDERATION
The Tribunal notes (like numerous Tribunal Members before) the following observations of the High Court in Canute v Comcare (2006) 226 CLR 535 at 540 about the concept of an “injury”:
…First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of 'the injury'. Secondly, the term 'injury' is not used in the Act in the sense of 'workplace accident'. The definition of 'injury' is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term 'injury' is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to 'disease' or 'physical or mental' injuries and, at least to that extent, it assumes that an employee may sustain more than one 'injury'. The use in s 24(1) of the indefinite article in the expression 'an injury' reinforces that conclusion.
The distinction between sections 5A(1)(a) and 5A(1)(b) of the SRC Act is an important one, given that the classification of a condition as either a disease or an injury (other than a disease) will determine the applicable test for determining the contribution of work to an injury.
Specifically, for there to be an injury (other than a disease) (often referred to as an “injury simpliciter”), the injury must arise out of, or in the course of employment (section 5A(1)(b) of the SRC Act).
An injury simpliciter (within the meaning of section 5A(1)(b) of the SRC Act) can be contrasted with a “disease” which, according to section 5B(1), must be contributed to, to a significant degree, by the employee’s employment. Thus, a “disease” requires a stronger causal connection between the employment and the ailment (Burch at 268) than that required for an injury simpliciter.
The Tribunal found that there was evidence that Mr Quinn had suffered a precipitating incident which arose out of the course of his employment. The Tribunal relied upon the Safety Event/Investigation – Output Form completed by Mr Quinn’s supervisor, which clearly outlines immediate action was taken by Australia Post following the incident on 4 January 2021.
Description While sorting the non machinable cages I went to lift a box of dog food and when I tried to come back up I felt a pop in my lower back. The box was not marked as heavy. Sorter recalls bending his knees when attempting to lift the box.
Immediate Actions Sorter went to tea break after this event and sorters back started to stiffen right up during the break. Sorter was taken off any lifting duties and asked just to scan any parcels. Doctors appointment was offered but sorter would prefers to go to their own doctor. This will be around 9am today.
The Tribunal then must determine if the evidence before it demonstrated a causal connection between Mr Quinn’s claimed condition of mechanical lower back strain and the precipitating incident to satisfy the statutory definition of injuries in accordance with the SRC Act.
Both parties contended that this was a simple matter for the Tribunal. Mr Quinn’s counsel submitted that it was a straightforward frank injury, as Mr Quinn had an accident at work which resulted in an injury as identified by the MRI. Whilst Australia Post’s counsel submitted that it was unclear that Mr Quinn had an accident, regardless, they submitted that it did not result in an injury as the MRI clearly demonstrated that Mr Quinn suffered from degenerative disease of the lumbar spine. Both parties contended that the Tribunal had medical evidence on which to base its determination, however they did not agree on the interpretation of those medical opinions, and both submitted that the Tribunal should prefer one medical expert over the other.
The Tribunal was not persuaded by Dr Jonathan’s report of 28 November 2023 in which he determined that Mr Quinn was suffering from a constitutional condition caused by his genetics:
In my opinion Mr Quinn was symptomatic with back and left leg radicular symptoms caused by degenerative disease of the lumbar spine before the alleged work incident on 4 January 2021. This is a constitutional condition caused by his genetics. It has not been caused, aggravated or accelerated by Mr Quinn’s employment. It has followed the natural course of progression.
The Tribunal concurred with Mr Sher’s oral evidence that:
·This was an oversimplification of a very complex problem.
·Whilst it is well established that degenerative changes happen to the majority of the population, not all individuals will suffer from a disc herniation.
·Whilst lumbar spine complaints can arise from degenerative changes, they can also occur as a result of trauma.
·It is common between the ages of 20-40, usually after a traumatic event caused by heavy lifting, for individuals to suffer a disc herniation.
The Tribunal found that Mr Quinn had suffered from an injury simpliciter described as a mechanical lower back strain, which has arisen in the course his employment. The Tribunal relied upon Mr Sher’s report of 5 May 2021:
To examination, Stephen had limited range of motion to 80° flexion at the hips, 15° extension and lateral flexion bilaterally (limited by stiffness). He has reduced muscle bulk in the left calf and to a mild extent in the left tibialis anterior relative to the right. There was no focal weakness, extensor digitorum brevis muscle wasting or trendelenburg lurch. Sensation was reduced to light touch in the right lateral thigh and lateral leg. KJ and AJ reflexes were preserved at 2+ bilaterally. His gait including standard gait, tip toe gait and heel gait was normal within the boundaries of the consulting room.
Stephen's MRI lumbar spine (Marina Radiology, PID 266254) kindly arranged by you demonstrates a focal L4/5 disc protrusion with inferior extrusion impinging the left L5 nerve root. At the L5/S1 there is advanced disc desiccation with disc height loss and disc bulge without apparent neural compromise on the current scan. There is also evidence of some facet joint arthropathy at these levels.
The Tribunal also placed weight on Mr Sher’s oral evidence where he described his clinical assessment of Mr Quinn and assessment of his MRI. Mr Sher advised that the description Mr Quinn gave of his injury and pain was a very common presentation in his experience. Mr Sher assessed that Mr Quinn had suffered a tear in the disc based on the history given and the MRI. Mr Sher noted:
Bending over to lift up a heavy object would put significant strain on the disc. It’s not uncommon for the disc to gradually wear out over time. It’s often these events with some awkward task in an awkward position that results in a tear.
Mr Sher advised that when a tear reaches the surface of the disc, people feel a pain in their back and experience stiffness, as described by Mr Quinn.
The Tribunal was not persuaded by the Respondent’s contention that Mr Quinn had not suffered from a frank “injury” of the lumbar spine as he had been suffering from back pain from as early as 2014, as evidenced in the chiropractic notes.
The Tribunal did not consider that the chiropractic notes were a smoking gun which proved that Mr Quinn had been suffering L5 radiculopathy prior to the injury, mislead treaters or lied on his claim form. The Tribunal was also not persuaded that Mr Quinn’s disc herniation was asymptomatic.
The Tribunal found it could not place significant weight on the chiropractic notes as the Respondent had not sought to call Mr Quinn’s chiropractor to explain their notation. The Tribunal found that the notes were not self-explanatory, that the various medical experts called could not attest to what the notes actually meant, and that it did not have enough information to find that Dr Jonathan’s interpretation of the notations was correct.
The Tribunal considered the evidence demonstrating that Mr Quinn for many years had sought the help of a chiropractor to manage aches and pains in his life arising from physically demanding work and playing competitive sport. The Tribunal was not persuaded that Mr Quinn was an exceptional witness, as he often responded saying that he could not recall, and his evidence was inconsistent in many places; but the Tribunal accepted his consistent evidence that he had not experienced the level of pain he did following the incident on the 4 January 2021.
The Tribunal relied upon the following evidence in arriving at a determination that Mr Quinn experienced an incident on 4 January 2021, which resulted in a compensable injury:
Dr Aliashkevich’s oral evidence that:
·Symptoms of people with back injuries can be highly variable – sometimes patients will present with back and leg pain – but there was no general view to say what is a classic scenario.
·The fact Mr Quinn had not had an MRI scan prior to 2022.
·Mr Quinn had scans taken after the incident in 2021(this indicated that Mr Quinn’s pain had intensified, that he previously was managing any issues and responding to treatment, but at some point, this changed)
·There was clear evidence of fragmentation of the disc.
·The majority of people have symptoms if they had acute disc herniation.
·Disc protrusions on the other hand can present with no symptoms.
Mr Sher’s oral evidence that:
·he was yet to encounter a disc herniation that was asymptomatic,
·he agreed that a disc bulge can be, but not a protrusion or herniation.
The Tribunal found that Mr Quinn was suffering from degenerative disc disease as reported on MRI findings and concurred by all the medical experts. However, the Tribunal was not persuaded by Dr Jonathan’s oral evidence that this could account for the injury Mr Quinn experienced after the incident of 4 January 2021.
A – there must be a process you’re attempting to identify?
The process is degenerative disease of the lumbar spine, and that manifests in compression of nerves and it presents with mechanical backpain…most neurosurgeons would run the symptoms and the clinical findings, and the radiological findings through a diagnostic sieve.
…
R – were there any aspects of that history that were significant in you forming your opinion?
…not that he had pre-existing symptoms but that he had attended chiropractic treatment in the past. He has described what he alleges is the injury which occurred on 4 January 2021. Mr Quinn also reported that the nerve pain started a week after the reported injury.
…
R – what opinion did you reach in relation to the diagnosis of causation of Mr Quinn’s back problem?
Mr Quinn had pre-existing symptoms and the reported incident had exacerbated the symptoms of back pain…It was my opinion that Mr Quinn had pre-existing degenerative disease of the lumbar spine, which was exacerbated…this was corroborated by his radiological investigation, his imaging, which showed a long-standing degenerative disease of the lumbar spine. I did not find any evidence of acute injury.
…
The Tribunal found that the evidence indicated that Mr Quinn suffered an injury on 4 January 2021 as a result of the reported incident and relied upon his Statement:
Subject Accident
I believe that I commenced work on 3 January 2021 around 11:00PM and was rostered to finish work at 7:00AM the following day.
Sometime between 5:30AM and 6:00AM, while I was sorting the non-machinable cages, I went to lift a box of dog food and when I tried to come back up, I felt a pop in my lower back. I then felt sharp back pain. I believe the box weighed approximately 20 to 25 kilograms.
After this incident, I tried to continue working for the next 5 to 10 minutes before going on my 30- minute break.
After my break, I found it hard to stand up straight because of the pain and stiffness in my lower back. I reported this to my supervisor at the time, Andrew Friend, and left to go home a little earlier than I was scheduled to finish work.
Treatment and Return to Work
I cannot recall whether I went straight to the chiro or went home and slept first. However, the pain was pretty bad, so I went and saw my chiropractor. I recall him asking me what I thought I had done, and I remember saying that I was not sure.
For the next couple of days or so, I did not go to work. I was in a lot of pain.
The Tribunal did not concur with the Respondent or Dr Jonathan’s conclusion that Mr Quinn had lied about not having a previous back issue or seeking chiropractic treatment. As clearly evidenced from Dr Jonathan’s report of 25 February 2022, Mr Quinn provided him with this information.
Past History:
Mr Quinn said in the past he has experienced soreness and stiffness in the back due to work and life. He would see a chiropractor once every six months. He has not undergone scans or treatment. He has not suffered a motor vehicle accident, sports injury to his spine.
The Tribunal accepted Mr Quinn’s evidence that he had sought treatment from a chiropractor over many years to deal with pain associated with everyday life. The Tribunal also accepted Mr Quinn’s evidence that his previous soreness and stiffness in the back was not at the pain level he experienced after the incident on 4 January 2021, which led to him to seek significant medical intervention and radiological imaging to identify the underlying issues he was experiencing. The Tribunal relied upon Mr Sher’s opinion that Mr Quinn’s incident resulted in a tear in his disc and therefore was a compensable injury.
The Tribunal did not find that the chiropractic note of 4 January 2021 demonstrated that Mr Quinn had not suffered an incident on 4 January 2021, as the note clearly identifies that Mr Quinn attended the chiropractor for a complaint of acute lumbar spine work injury.
The Tribunal, on the evidence, did not concur with the Respondent’s view that the chiropractic entries of Waking stiff after sleeping / Doesn't know what he has done-not specific incident noted demonstrated that Mr Quinn had attended for a pre-existing complaint. In the first instance, the chiropractic note does not record the time Mr Quinn attended for treatment. The Respondent asserted that Mr Quinn had attended at 9am on the way home from his shift, based on the incident report completed by Mr Friend which stated: “Doctors appointment was offered but sorter would prefers to go to their own doctor. This will be around 9am today”. Mr Quinn’s evidence was that he could not recall if he had gone straight to the chiropractor or home to sleep prior to the visit – in any case, the Tribunal does not think its determination turns on this one entry. Mr Quinn certainly could have woken stiff and sore, however, the Tribunal did not consider this to have indicated that he had not had an incident at work which resulted in an injury. The Tribunal could not decipher what the chiropractor meant by the entry not specific incident noted – it seemed at odds with the reason for the attendance at the chiropractor, and the incident report which noted Mr Quinn had advised his supervisor of the incident when it occurred. The Tribunal did not consider this anomaly to have demonstrated that no incident had occurred.
Whilst the Tribunal will remit the determination to Australia Post for consideration of Mr Quinn’s entitlements under section 19 of the SRC Act for compensation for injuries resulting in incapacity, it concurred with the Respondent that the evidence indicated that Mr Quinn had capacity to return to his preinjury duties. The Tribunal relied on Mr Raso’s assessment of 3 April 2022:
recommendations for work:
• Sit for 60minutes continuous
• Stand for 60minutes continuous
• Walk for 60minutes continuous
• Drive for 60minutes continuous
• Able to complete steps for 60minutes
• Able to lift 16kg up steps if holding at waist height
• Able to bend to the toes repeatedly without weight
• Able to get down to the floor to kneel and get back up without issues
• Able to pick up 16kg (xl0 repetitions) from the ground to his waist
• Able to pick up 16kg and transfer it to a table without concerns
• Able to pick up 16kg from waist height and lift it overhead without issues
• Anything regarding hand use (grasp, manipulation, keyboard) all no issues
• Completed xl0 bodyweight pulls (leaning at a 45° angle) without issues
And Mr Quinn’s statement:
In or around early February 2022 I saw Dr Teu who advised I had capacity for suitable duties from late January 2022. I was not receiving any allocation of overtime during this period. I was mostly performing administrative duties and operating a forklift.
For clarity of any confusion the Tribunal may have created in respect of payments payable to an employee post-termination, the Tribunal notes the determination of Rangiah J in Bis Industries Limited v Dale [2017] FCA 789 at [79]:
It must be remembered that the object of s 19(2) of the Act is to provide for compensation for an injured employee’s loss of earnings due to incapacity for work as a result of injury. An injured and incapacitated employee remains injured and incapacitated following the termination of his or her employment. An uninjured employee whose employment is terminated retains his or her full capacity to earn income by obtaining other employment. An injured employee whose employment is terminated for wilful misconduct is not better off than an uninjured employee terminated for wilful misconduct in any relevant sense. The employer is correct to say that termination of an employee’s employment may be a relevant matter. However, the employer’s argument that termination of employment for wilful misconduct must result in the amount the employee is able to earn in suitable employment being taken to be the amount earned in his or her employment before the termination, with the consequence that no compensation is payable under s 19(2), must be rejected.
The Tribunal, on the evidence, did not find that Mr Quinn had suffered an aggravation of his injury or a further lower back injury arising from his physiotherapy session on 13 October 2021. The Tribunal relied upon the undated report of Mr Raso submitted for the purposes of this application. The Tribunal noted that Mr Quinn had not called Mr Raso to challenge his report where he opined:
7. We have been instructed that in October 2021, our clients sustained a further aggravation of his injury to his back in the course of undertaking physiotherapy sessions
In our appointment 13/10/2021 Stephen had described a lot of left sided nerve pain that had started the day prior. During our session we completed manual therapy throughout the left posterior hip, erector spinae, calf and hamstring, as well as supervised exercises including bird dogs, donkey kicks and nerve gliders. I believe it was during the donkey kick exercise that Stephen heard a ‘pop’ in his back. I reassured Stephen this would have been a spinal cavitation that caused the ‘pop’ sound. I don’t believe an exercise of this low intensity could have caused any significant damage to Stephen’s back. When I saw Stephen next he did describe that his left sided neural pain was quite bad. In my opinion, as Stephen already had a lot of left sided nerve pain prior to the physio session it is difficult to say if the ‘pop’ itself directly aggravated his symptoms. By mid-November Stephen’s symptoms had settled back to what they were prior to the 13/10/2021 physio session.
The Tribunal did not find any evidence to support Mr Quinn’s claim in respect of permanent impairment arising from his injury.
CONCLUSION
The Tribunal finds that Australia Post, in accordance with section 14 of the SRC Act, continues to be liable to pay Mr Quinn compensation in respect of the injuries suffered by him in the course of his duties.
The Tribunal remits the matter to Australia Post to assess Mr Quinn’s compensation in accordance with sections 16 and 19 of the SRC Act, in respect of reasonable medical expenses and incapacity for work.
The evidence before the Tribunal did not demonstrate that Mr Quinn had sustained a permanent impairment. Therefore, the Tribunal determined that Mr Quinn was not entitled to permanent impairment and non-economic loss compensation in accordance with sections 24 and 27 of the SRC Act, with respect to his lower back condition.
The Tribunal did not find that Mr Quinn had suffered an aggravation to his lower back injury as a result of the medical treatment he had undergone on 13 October 2021 for his injuries related to the work accident of 4 January 2021.
DECISION
The Tribunal sets aside the decision of 20 April 2022 and decides that Australia Post continues to be liable to pay compensation for Mr Quinn’s injuries, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal affirms the decision of 18 August 2023.
140. I certify that the preceding 139 (one-hundred-and-thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
...................[sgd].....................
Associate
Dated: 23 August 2024
Date of hearing: 24 – 26 July 2024 Counsel for the Applicant: Mr Leo Grey Solicitors for the Respondent: LHD Lawyers Counsel for the Respondent: Mr Roy Seit Solicitors for the Respondent: Sparke Helmore Lawyers
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