RENEE WILLIAMSON and AUSTRALIAN POSTAL CORPORATION
[2010] AATA 125
•17 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 125
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1355
GENERAL ADMINISTRATIVE DIVISION ) Re RENEE WILLIAMSON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date17 February 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............Signed….................
Deputy President
CATCHWORDS
WORKERS’ COMPENSATION – entitlement to compensation – employment related injury, disability or disease – condition properly characterised as ‘disease’ – not contributed to in a material degree by employment – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 108A
REASONS FOR DECISION
17 February 2010 Deputy President P E Hack SC Introduction
Ms Renee Williamson is employed by Australia Post at its Northgate Mail Centre. She injured her back in the course of that employment in November 2005 and July 2006. Ms Williamson still complains of significant pain in her lower back which she attributes to the earlier incidents. Australia Post says that what presently afflicts Ms Williamson is not an injury related to her employment but is the consequence of the natural progression of a constitutional defect.
Background
Ms Williamson was born in October 1976. She left school after Grade 9 and has been in fulltime employment since then in essentially semi-skilled positions, many in the hospitality industry. In 1994 and 1995, Ms Williamson was employed by a large grocery chain. On two occasions, one in June 1994 and the other in January 1995, Ms Williamson injured her back. Little is known of the precise nature of the injuries on these occasions. Ms Williamson consulted her general practitioner on each occasion but no radiological investigations were undertaken. There are descriptions of “lower back strain” and “lumbar muscle strain” in the medical certificates completed by Ms Williamson’s general practitioner for the purposes of her claims for workers’ compensation.
These certificates indicate that Ms Williamson was totally incapacitated for work for a period of 19 days following the June 1994 incident and for a period of 30 days following the January 1995 incident. The records of her general practitioner also contain a notation of a visit in November 1998 where Ms Williamson is recorded as suffering from “chronic back pain”. There is a further reference to back pain, caused by lifting at work, on 25 July 2004.
It is convenient to say, at this juncture, that Ms Williamson, in both her evidence in chief and in the histories she gave to medical specialists who examined her for the purposes of these proceedings, recounted only one episode of back pain many years ago. I do not regard that as intentional understatement on the part of Ms Williamson; rather I accept that it is, as Ms Williamson said, the result of faulty recollection on her part.
Ms Williamson commenced employment with Australia Post in September 2005. On 9 November 2005 she was undertaking a task that involved her in lifting a tray of mail from a sorting machine and placing it on a trolley immediately behind her. As she undertook that task she felt a sharp, stabbing pain in her lower back on the right side. She was unable to continue working and was taken by car to the St Andrews Hospital Emergency Department. A CT scan was undertaken and she was given pain relief. The report of the CT scan is not available however the report of Dr Steven Goode, a medical practitioner employed by Australia Post who saw Ms Williamson on 10 November 2005, says of it:
“A CT scan of her lumbar spine was reported as showing bilateral L5 pars interarticularis defects without any spondylolisthesis.
Dr Goode reported to Australia Post on 11 November 2005 that Ms Williamson had,
“at least an acute musculoligamentous strain of the lumbar spine, with perhaps a component of aggravation of the pre-existing L5 pars defects, with the associated degenerative changes.”
As I interpret the material before me, Ms Williamson was off work from 10 to 14 November 2005 and then returned to work on light duties for the following week. Her general practitioner certified her as fit to return to work on 25 November 2005. Despite that, Ms Williamson says she continued to experience back pain thereafter and that her back has never returned to the way it was before this incident. There is, however, reason to doubt the accuracy of Ms Williamson’s recall on this point which I deal with in paragraphs 13 to 15 below.
Following this incident Ms Williamson claimed compensation for her back injury. On 29 November 2005 Australia Post accepted liability to pay compensation to her in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for an injury described as a temporary aggravation of a pre-existing L5 pars defect. Ms Williamson was paid compensation for incapacity for the period after the incident.
There was a further work incident on Friday 7 July 2006. On this occasion Ms Williamson was required to lift a mailbag up in front of her with both hands for the purposes of emptying it out. It was not particularly heavy – she estimated 5 to 6 kilograms – but as she did so she experienced the same right-sided lower back pain. She was very near the end of her shift and was able to go home shortly after the incident. She rested at home over the weekend and consulted her general practitioner on the following Monday. She was off work for the ensuing week and then returned on light duties, starting at one hour per day. She underwent various rehabilitation programmes.
Ms Williamson claimed, and was paid, compensation for incapacity. Australia Post accepted liability on the basis of a reoccurrence of the temporary aggravation of a pre-existing L5 pars defect. Compensation for incapacity and medical expenses continued to be paid until September 2007. On 19 September 2007, Australia Post refused Ms Williamson’s claim for incapacity payments pursuant to s 19 of the SRC Act for the period 14 to 17 September 2007. On 12 November 2007, Australia Post determined that there was no present liability to pay compensation under ss 16, 19, 24 or 27 of the SRC. These decisions were informed by a report from Dr Alison Reid, a consultant neurologist, who examined Ms Williamson on 10 September 2007 and concluded that Ms Williamson’s ongoing pain was a reflection of the natural progression of an underlying constitutional condition.
The two decisions were affirmed by Australia Post on reconsideration on 30 January 2008. It is that decision which is the subject matter of these proceedings.
Legislative framework
No detailed consideration of the legislation is required. By a combination of ss 14 and 108A of the SRC Act Australia Post is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity or permanent impairment. At the material time the term “injury” was defined in s 4 of the SRC Act in these terms:
“injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
The term “disease” was defined thus:
“disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
Finally, an “ailment” is “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
The medical evidence
A number of specialist medical practitioners have examined Ms Williamson. Unfortunately all have expressed their opinions by reference to a history of back pain that Ms Williamson concedes is inaccurate. Thus Dr Tony Blue reported in March 2007 that Ms Williamson “denies any previous back problems prior to the incident of November 9, 2005 …” In September 2007, Dr Reid was informed of past “minor low back pain, just pulled muscles”. Dr Terry Coyne, a consultant neurologist, recorded in December 2007:
“Ms Williamson said her only previous history of low back symptoms was approximately 15 years ago, when she ‘pulled a muscle’ when working in a supermarket. She said she cannot remember details of this incident. She said she recalls having low back pain for approximately a week. She said she had a week off work. She said she did not see a medical practitioner. She said low back pain resolved, and she reported no further lumbar spine symptoms until her incident of 09.11.05”.
In July 2008, Dr Peter Steadman, an orthopaedic surgeon, reported having been told of “a strain to her low back but she returned to things readily without difficulties”.
There is a further, and quite significant, aspect where Ms Williamson’s evidence must be regarded as inaccurate and that is the extent to which she returned to good health following the November 2005 incident. Her evidence was to the effect that her back never fully recovered following that incident. Yet Dr Blue recorded:
“Following [November 2005] incident she rested over the subsequent weekend with some improvement in her symptoms which eventually subsided and caused her no further problems until some 6 months later on July 7, 2006.”
Dr Reid noted that Ms Williamson’s pain “settled” and that she had been cleared for normal duties by 25 November 2005. It is not clear whether Dr Reid was there reporting what she had been told by Ms Williamson or what she had learned from the briefing letter from Australia Post.
But it is the case that Ms Williamson was certified fit for normal duties on 25 November 2005 and that she did not thereafter consult with her doctor complaining of back pain until after the July 2006 incident.
These matters lead me to conclude that Ms Williamson is mistaken in her present recall of continuing pain between November 2005 and July 2006.
Dr Blue was not called as a witness and did not have the opportunity to express an opinion informed by an accurate account of Ms Williamson’s history of back pain. In those circumstances I do not propose to have regard to his opinions about the cause of Ms Williamson’s continuing back pain.
Dr Reid’s opinion of Ms Williamson’s condition was as follows:
“Ms Williamson has radiological evidence of bilateral L5 pars defects with a Grade 1 spondylolisthesis. This is a congenital condition originating with a developmental defect in the pars interarticularis of L5 and subsequent development of a forward slip of the vertebral body of L5 on the sacrum.
This condition gives rise to frequent occurrences of low back pain, and there is a natural progression over a period of time. The condition can be aggravated by heavy lifting and frequent bending.
On 9 October 2005 and 7July 2006 Ms Williamson reported exacerbation of back pain related to her normal workplace activities. On the first occasion her pain settled promptly. However, following the second occasion she has continued to report pain.
I believe that any exacerbation of pain specifically attributable to the second occasion when she picked up a mailbag and tipped it upside down would have been temporary and would have settled and ceased within a few days. It is my view that Ms Williamson’s ongoing pain is a reflection of the natural progression of her underlying constitutional condition being regularly exacerbated by other activities of normal daily living.”
Dr Reid’s opinion was that the history of back complaint over the years made it even more likely that Ms Williamson’s present complaint was constitutional and quite unrelated to the events of November 2005 and July 2006. These events, she confirmed, were transitory in nature.
Dr Coyne had a contrary view. His initial opinion was expressed in this way:
“Ms Williamson’s imaging has demonstrated the pre-existing structural abnormalities of bilateral L5 pars defects, a mild L5/S1 spondylolisthesis, and degenerative changes involving the L4/5 and L5/S1 discs. These pre-existing changes may be playing a role in the ongoing duration and severity of Ms Williamson’s symptoms. However, she does not report any pre-existing lumbar spine symptoms of significance, and the two subject work related incidents would be considered the most significant factors in her current condition. Had these incidents not occurred there is no particular reason to expect that Ms Williamson would be experiencing her current lumbar spine symptoms. There is no convincing scientific evidence that a person with developmental L5 pars deficits is at a greater risk than the normal population of developing low back pain.”
Dr Coyne was able to review the general practitioner’s clinical notes before giving evidence and thus had a more accurate picture of the extent of earlier back problems. That history, he said, would cause him to attribute greater weight to the presence of the underlying condition as a factor contributing to Ms Williamson’s back condition. But he remained of the opinion that, on balance, it was the work incidents that were the most significant factors in her condition.
Dr Steadman was of the opinion that Ms Williamson’s present condition was not attributable to the incidents in her employment. Having been informed of the history of low back pain he expressed the view that the frequency and severity of the episodes of back pain pointed to a pattern of increasing back degenerative disease.
Ultimately, I am not satisfied that Ms Williamson’s present complaints have any relationship to her employment. Her condition is properly described as “a disease” rather than as “an injury (other than a disease)”. Thus there is required to be a contribution “in a material degree” by her employment. Dr Coyne’s evidence would satisfy that requirement however I am unable to place any reliance upon Dr Coyne’s opinion. I do not, by that, intend any criticism of Dr Coyne. But the reality is that his initial opinion was informed by an inaccurate, and significantly understated, history both as to the frequency and severity of past episodes and as to the recovery post November 2005. His subsequent opinion, revised after being informed more reliably of the history, remained founded upon a continuing history of back pain after the November 2005 incident.
The view of Dr Reid and Dr Steadman, albeit with slight differences of emphasis, seem to me to present a more reasoned and logical explanation for the extensive history of back pain. I need not reach any conclusion about the cause of Ms Williamson’s present pain and discomfort; it is enough for me to say that I am well short of being satisfied that it was caused or contributed to, by her employment.
Conclusion
It follows that I would affirm the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .............Signed.......................................................
AssociateDates of Hearing 3 – 4 February 2010
Date of Decision 17 February 2010
Counsel for the Applicant Ms S McNeil
Solicitor for the Applicant Urban Lawyers
Counsel for the Respondent Mr C J Clark
Solicitor for the Respondent Sparke Helmore Lawyers
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