Robin Fletcher and TNT Australia Pty Ltd
[2013] AATA 173
[2013] AATA 173
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5408
Re
Robin Fletcher
APPLICANT
And
TNT Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 27 March 2013 Place Sydney Decision Summary
The decision under review is affirmed.
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Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION—Whether back and neck conditions were an injury (other than a disease)—Whether there was an aggravation of an injury—Contribution, to a significant degree, by employment—Causation—Decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4; 5A(1); 5B(1); 5B(2); 14;
CASES
Comcare v Etheridge (2006) 149 FCR 522
Comcare v Sahu-Khan (2007) 156 FCR 536
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
Senior Member A K Britton
27 March 2013
Mr Robin Fletcher was employed as a warehouse operator by TNT Australia Pty Ltd between May 2005 and August 2010. The work was heavy in nature and involved loading and unloading freight. Twelve months after resigning from TNT, Mr Fletcher lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act1988 (Cth) (the Act) in respect of an alleged injury involving his back and neck. TNT refused that claim. Mr Fletcher now seeks review of that decision by the Administrative Appeals Tribunal.
TNT will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Mr Fletcher if it results in impairment or incapacity for work (s 14 of the Act).
TNT became a “licenced corporation” on 1 July 2008. Therefore TNT’s liability (if any) under the Act is confined to Mr Fletcher’s employment after that date. Unless otherwise stated, in these reasons, all references to “Mr Fletcher’s employment” is to the period, 1 July 2008 to the date of his resignation, 13 August 2010.
The principal issues in dispute are whether Mr Fletcher’s long-standing back condition (or any aggravation of that condition) was contributed to, to a significant degree, by his employment with TNT, or arose out of, or in the course of, that employment. With respect to the alleged neck injury, the main issue to be decided is whether Mr Fletcher suffers a neck “ailment” and, if so, whether it was contributed to, to a significant degree, by his employment with TNT.
Did Mr Fletcher suffer “an injury” involving his back and/or neck for which TNT is liable?
The Act defines “injury” to mean (s 5A(1)):
(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;
…
As is apparent from this definition an injury may be characterised in a number of ways. The relevance of these distinctions is that different tests of causation apply. It is therefore necessary to decide on the proper characterisation of Mr Fletcher’s alleged injury.
Did Mr Fletcher suffer an injury (other than a disease)?
The answer to this question turns on whether there has been “a sudden or identifiable physiological change … [including] a change internal to the body” (Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286; per Gleeson CJ and Kirby J at 298 – 299; Comcare v Etheridge (2006) 149 FCR 522). In Petkoska, Gleeson CJ and Kirby J commented (at 299):
[T]he mere fact that a sudden physiological change is in some way connected with an underlying “disease” process does not, of itself, prevent the classification of such a change as an “injury” within the primary statutory provisions that apply to such a case.
In an injury report dated 21 October 2007, Mr Fletcher described experiencing “pain in back while lifting”. This was the sole injury reported by Mr Fletcher while employed by TNT and occurred prior to TNT becoming a licenced corporation. Apart from half a day following that injury, while employed at TNT, Mr Fletcher did not take any time off work on account of either his back or neck.
While evidence of Mr Fletcher complaining of chronic lower back pain from July 2009 to the practitioners who assessed him, there is no evidence and nor is it claimed that he reported any accident or incident at work (or otherwise), involving either his back or neck throughout the period of his employment with TNT.
While some evidence of back pathology revealed on an MRI scan taken in 2011 ― “a slight bulge at the L5/S1 level and a small annular tear” ― there is no evidence to suggest that this pathology emerged suddenly, or, in the course of Mr Fletcher’s employment. Nor is there evidence that the “possible minor degeneration” in Mr Fletcher’s cervical spine (see report of consultant surgeon, Dr Edward Shutz, 3 October 2012) emerged suddenly, or in the course of Mr Fletcher’s employment.
There is no direct evidence or evidence from which an inference could be drawn, that during Mr Fletcher’s employment with TNT there was a sudden or identifiable physiological change involving his back or neck. Absent such evidence the alleged injury cannot be characterised as an injury (other than a disease) or an aggravation of an injury (other than a disease). It is therefore necessary to decide whether the alleged condition involving Mr Fletcher’s back and/or neck constitutes a disease within the meaning of the Act.
Does Mr Fletcher’s suffer a disease, or an aggravation of a disease, involving his back?
Mr Fletcher’s back condition will constitute a “disease” if he suffers from an ailment, or an aggravation of such ailment, that was contributed, to a “significant degree”, by his employment with the TNT (s 5B(1)).
There is no issue that Mr Fletcher’s back condition for which varying diagnoses have been given, constitutes an ailment as defined by the Act (s 4).
Did Mr Fletcher suffer an aggravation of his back condition?
Mr Fletcher contends that in the course of his employment with TNT he suffered an “aggravation” of a pre-existing back condition.
“Aggravation” is defined by s 4 of the Act to include acceleration or recurrence. An aggravation can also occur where the symptoms of the injury, including pain, increase or intensify: Commonwealth v Beattie (1981) 35 ALR 369. There is no requirement that there be an alteration to the underlying physical condition: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 634; Tippett v Australian Postal Corporation (1998) 27 AAR 40 at [15].
Applying those principles, Mr Fletcher will have suffered an aggravation of his back condition, if the pain experienced as a consequence of that condition, increased or intensified. Mr Fletcher claims that he has suffered intermittent lower back pain since 2001, which has gradually worsened. There is no medical evidence to suggest that there has been a corresponding deterioration in the underlying pathology, indeed there is no agreement between the experts about the nature of the underlying pathology or the cause of Mr Fletcher’s reported pain.
The assessment of whether, as claimed, Mr Fletcher’s experience of pain increased or intensified while employed at TNT, is made difficult because of the scant contemporaneous evidence of a lower back complaint, prior to Mr Fletcher’s referral to rheumatologist, Dr Gregory Carr, in July 2009. The evidence given by Mr Fletcher in these proceedings, and the histories he gave to the practitioners who assessed him in relation to his claim for compensation, is one of a gradual worsening of symptoms throughout the period of his employment with TNT. While this sits somewhat uncomfortably with the dearth of contemporaneous evidence, I accept that since 2001 Mr Fletcher probably experienced a gradual worsening of lower back pain. This increase in symptomology, in my opinion, constitutes an “aggravation” for the purpose of the Act.
Was Mr Fletcher’s back condition, or the aggravation of his back condition, contributed to, to a significant degree, by his employment?
In making this assessment it is necessary to identify all factors which contributed to Mr Fletcher’s back condition (or its aggravation) — employment and non-employment related — and then evaluate whether his employment with TNT did or did not contribute to that condition (or its aggravation), to a degree substantially more than material (Comcare v Sahu-Khan (2007) 156 FCR 536 at 542, 543, per Finn J, commenting on an earlier version of the definition of disease contained in the Act). In undertaking that task it is necessary to take into account the non-exhaustive list of factors at s 5B(2) of the Act.
Duration of the employment (s 5B(2)(a)): Mr Fletcher was employed by TNT from May 2005, initially on a casual basis and, from September 2007, on a full-time basis. He resigned in August 2010. For current purposes the only relevant period of employment is that throughout which TNT was a licenced corporation (i.e. 1 July 2008 to 13 August 2010).
Nature of, and particular tasks involved in, the employment (s 5B(2)(b)): The parties agree that the report prepared by workplace assessor, Recovre dated 7 December 2009, contains a fair description of the type of work undertaken by Mr Fletcher while employed at TNT. The report states that while Mr Fletcher was required to undertake a range of tasks including data entry and other light duties, for the most part the work was heavy and involved loading, unloading and processing freight; the work also involved repetitive lifting (up to 30 kilograms), prolonged standing, frequent bending and twisting; the tasks were rotated on a daily/weekly basis.
The only material issue in dispute between the parties about the nature of the work performed by Mr Fletcher was whether he was required to lift more than 30 kilograms. Mr Fletcher reported to Recovre in 2009 that he handled freight weighing anywhere between one and 40 kilograms. In these proceedings he testified that the freight he handled sometimes weighed up to 60 kilograms. Mr Fletcher’s supervisor, Mr Normy Chamoun, testified that the section in which Mr Fletcher worked handled small cartoons weighing up to 30 kilograms and heavier items were dealt with by another section. He conceded however that occasionally, possibly once a month, heavier items found their way into Mr Fletcher’s section.
Any predisposition to a back condition (s 5B(2)(c)): There is no issue that Mr Fletcher’s back problems pre-dated his employment with TNT. Mr Fletcher commenced treatment with chiropractor, Andrew Iggo, in June 2007 for left foot and back problems and that treatment continued on a regular basis until a month after he left TNT.
As noted, in mid-2009 Mr Fletcher was referred to rheumatologist, Dr Carr. In a report dated 16 July 2009, Dr Carr recorded that Mr Fletcher reported “some nuisance discomfort in the low back” for the past five years which has slowly worsened; he does not feel pain when lying down (except when turning) and generally once warmed up, while working he can tolerate any symptoms which are minimal. Dr Carr reviewed Mr Fletcher on a regular basis until October 2011.
At one stage Mr Fletcher thought that his back pain was linked to a 2000 injury involving his left foot. The symptoms of that injury took some time to resolve; a stress fracture was not diagnosed for about 12 months and despite surgery in 2002, symptoms continued. Mr Fletcher reported to workplace assessor, Recovre, in December 2007 that he thought his back pain might have been the result of his body having to counteract the reduced weight bearing ability of his injured left ankle. His treating chiropractor, Mr Andrew Iggo, was also of that opinion (see report of 27 June 2007). None of the medical experts who have assessed Mr Fletcher share that opinion.
Any activities of Mr Fletcher not related to the employment (s 5B(2)(d)): Throughout the course of his employment with TNT Mr Fletcher was extremely fit and remains so to this day. He runs long-distance and swims regularly. There is no evidence to suggest that these activities might have contributed to his back problems.
Any other matters affecting Mr Fletcher’s health (s 5B(2)(e)): Mr Fletcher suffers from a number of urological conditions, which he believes are caused by his employment with TNT. There is no medical evidence to suggest that these conditions contributed to Mr Fletcher’s back problems or were in any way related to his employment.
Medical opinion about the cause of Mr Fletcher’s condition
Mr Fletcher’s back has been assessed by a number of practitioners in the context of his claim for compensation. Opinion is divided about the nature, severity and cause of Mr Fletcher’s back problems. On examination none of the practitioners found any restriction in the range of movement of Mr Fletcher’s lower back or any other abnormalities. Some found slight tenderness over the lower back region. None stated that Mr Fletcher’s employment with TNT contributed to his back condition although Dr Carr, GP, Dr Thompson, and orthopaedic surgeon, Dr Vijay Panjratan recommended that he avoid heavy work. In his most recent report of 24 October 2011, Dr Carr stated that Mr Fletcher was “clearly unfit to continue working as a Dock Hand with his back pain, because the prolonged standing would aggravate his low back”.
Initially Dr Carr thought that Mr Fletcher’s back problems might have been caused by a one centimetre leg length disparity but apparently ruled it out as a possibility after an unsuccessful orthotic sole trial bought no relief. In his most recent report, Dr Carr wrote that Mr Fletcher’s lower back pain was possibly the result of an internal disc disruption but did not suggest that this was caused by work. He had previously stated that the problem might have been the result of “mild central disc bulge of the L5/S1 disc” (see report of 14 September 2011). Orthopaedic surgeon, Dr Christine Castle, who assessed Mr Fletcher in October 2011, thought Mr Fletcher’s back problems were minor and their cause unknown. Dr Panjratan who saw Mr Fletcher around the same time was of the opinion that Mr Fletcher had a fully functioning back, there was no impairment, and, at the time of examination, it appeared normal, consistent with the radiology. He did not offer an opinion about the cause of Mr Fletcher’s reported pain.
Dr Schutz was of the opinion that Mr Fletcher’s back problems, which he described as “trivial” and “not outside the range of symptoms commonly experienced by person his age”, were not caused by work. He thought the most likely explanation was minor spinal degeneration which was not work related. Dr Schutz stated that Mr Fletcher’s reported symptoms were “far in excess” of his high level of physical capability, as demonstrated in his recent participation in Sydney’s City to Surf run (some 14 kilometres).
Radiological findings
A number of scans have been taken of Mr Fletcher’s lower back. An X-ray and CT scan taken in July 2009 were reported as showing no abnormalities. The findings of an MRI of Mr Fletcher’s lumbar spine taken in October 2011 were reported to be normal showing no evidence of disc bulge or protrusion. A report of an MRI taken a month later in Brazil stated there was evidence of an annular tear in the right posterior aspect of the L5/S1 disc but no significant disc protrusion.
All experts apart from Dr Carr were of the opinion that the 2009 X-ray and CT scan revealed no abnormalities. Dr Carr, who had examined the film of that CT scan, thought it showed a “mild central disc bulge”. Drs Castle and Panjratan endorsed the reported finding of no abnormalities made by the radiologist who took the October 2011 MRI scan. Drs Carr and Shultz on the other hand were of the opinion that it showed a slight bulge at the L5/S1 level and a tiny annular tear. Dr Schutz was of the opinion that those findings were evidence of nothing more than degeneration and minimal disc bulging, “practically invariable in this age [Mr Fletcher is 40]”.
Dr Schutz is the only expert to have seen the Brazilian films. In his opinion they merely confirmed his interpretation of the October 2011 scans and were of “no significance”.
Findings and conclusions
The weight of medical evidence is that the degree of symptoms reported by Mr Fletcher is inconsistent with the findings on clinical examination and the radiological evidence.
Drs Castle and Panjratan were unable to identify the cause of Mr Fletcher’s reported symptoms; Dr Carr thought an internal disc was possibly to blame; Dr Schutz thought the most likely cause was mild disc degeneration. While there is a range of medical opinion about the underlying cause of Mr Fletcher’s symptoms, none of the experts have stated that employment with TNT was a contributory factor. Dr Carr, who thought an internal disc disruption might be the cause of Mr Fletcher’s symptoms, did not suggest that that pathology was work related.
While I do not accept as claimed by Mr Fletcher for the first time in these proceedings that on occasion he was required to lift parcels of up to 60 kilograms unaided, I accept as conceded by his manager that from time to time parcels weighing more than 30 kilograms found their way into his section. It is not implausible that work of the nature undertaken by Mr Fletcher, which was heavy in nature and involved, among other things, repeated lifting, bending and prolonged standing, could have aggravated Mr Fletcher’s long-standing back problems. While some of the experts thought work of this type made Mr Fletcher vulnerable to back injury and was therefore best avoided, none suggested that this type of work contributed to Mr Fletcher’s underlying back pathology (however described).
Mr Fletcher has given a consistent history of intermittent back pain that has gradually worsened since 2001. He did not report any easing of symptoms after leaving TNT, to any of the practitioners who assessed him after that date. The sole evidence to suggest that there may have been some abatement of symptoms, is the questionnaire completed by Mr Fletcher a month after leaving TNT. In that questionnaire he rated his experience of pain as three (out of ten), a reduction from previous ratings of six and seven. The questionnaire in my opinion is not a reliable indicator of the history of Mr Fletcher’s back pain because the answers he gave were not specifically related to his back but but rather to his neck, lower back, leg, upper back and foot. In my opinion the history given to the practitioners is probably a more reliable account of the progress of Mr Fletcher’s back symptoms.
While Dr Carr is not of the opinion that work contributed in some way to Mr Fletcher’s pathology, he is of the opinion that work aggravated his condition (see for example his report of 28 September 2009). The absence of evidence of any easing of symptoms after leaving TNT, suggests that Mr Fletcher’s condition falls within the first of the categories referred to by Finkelstein J in Tippett at [21] :
[A] pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
While none of the experts are entirely confident about the exact cause of Mr Fletcher’s reported symptoms, in my opinion the most likely cause is, as Dr Schutz believes, minor disc degeneration. There is no evidence to indicate that that degeneration was contributed to, or accelerated or worsened by, Mr Fletcher’s employment. Given the history of a gradual worsening which continued after he left TNT, I could not be satisfied that employment was a significant contributory factor to the symptoms of that condition, or the gradual worsening of the symptoms experienced.
Not being satisfied that Mr Fletcher’s back condition or any aggravation of either the condition itself, or its symptoms, were contributed to, to a significant degree, by his employment with TNT, I am unable to find that he suffered a disease, or an aggravation of a disease, for the purpose of s 5B of the Act.
Did Mr Fletcher suffer a disease involving his neck?
Mr Fletcher will have suffered a disease involving his neck, if: (i) he suffers, or did suffer, “an ailment”, and (ii) that was contributed to, to a significant degree, by his employment by TNT.
There is limited evidence about Mr Fletcher’s neck. The initiating referral made in 2009 to Dr Carr was in respect of low back pain and the earlier left foot injury, and not in respect of any neck complaints. The five progress reports prepared by Dr Carr between July 2009 and October 2011 made no mention of any neck symptoms. Nor is there any reference to neck symptoms in the histories taken by Drs Panjratan and Castle. Similarly the assessment reports prepared by Recovre (on 21 December 2007, 7 December 2009, and 7 January 2010), made no reference to any neck complaint.
The only evidence of Mr Fletcher complaining of any neck symptoms is the history given to Dr Schutz in 2012, the questionnaires completed at the request of the chiropractor between October 2007 and September 2010, and the compensation claim form submitted by Mr Fletcher in June 2007. In his report of 3 October 2012 Dr Schutz recorded that Mr Fletcher became aware of neck symptoms and sought treatment while travelling in Brazil in 2009. In the questionnaires, in answer to the question “where do you have pain”, Mr Fletcher ticked the box for the neck as well as other body parts. In the compensation claim form submitted in 2007, he described his symptoms as being“sore foot, back and neck”.
While as Mr Fletcher concedes his back has been the focus of his concerns he nonetheless has not provided a satisfactory explanation for failing to mention any neck symptoms to either the assessors from Recovre, his GP and four of the five practitioners who assessed him in relation to his compensation claim. The limited evidence of reports of neck symptoms raises doubts about the reliability of Mr Fletcher’s claim to have suffered neck problems. Coupled with the absence of a diagnosis, I cannot be satisfied that he suffered an “ailment”. In reaching that conclusion I am mindful of the broad definition given by the Act to that term: any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
In case I am wrong, I will proceed to consider whether Mr Fletcher’s employment contributed to a neck ailment, which for current purposes I will treat as being occasional neck pain and/or minor cervical spine degeneration.
As noted none of the experts who have examined Mr Fletcher made a diagnosis of anyneck condition. On clinical examination Dr Schutz found Mr Fletcher’s neck to be normal. In his opinion the results of the X-ray of the cervical spine taken in Brazil were also normal. He thought the reference in the report of that X-ray to “straightening of the cervical spine” was not suggestive of any abnormality. At its highest he thought it possible that Mr Fletcher might suffer minor degeneration of the cervical spine.
Even if accepted that Mr Fletcher experienced neck pain from time to time while employed by TNT, there is no evidence to suggest that that pain or any cervical spine degeneration, was contributed to, in some way, by his employment. Having regard to the matters listed in s 5B(2) and the medical evidence I am not satisfied that employment was a significant contributory factor to any neck ailment Mr Fletcher might suffer.
Summary
Not being satisfied that Mr Fletcher suffered an injury within the meaning of the Act, the correct and preferable decision is to affirm the decision under review.
I certify that the preceding 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.
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Associate to Senior Member Britton
Dated 27 March 2013
Date(s) of hearing 13 March 2013 Date final submissions received 14 March 2013 Applicant In person Counsel for the Respondent Peter Woulfe Solicitors for the Respondent Moray & Agnew Solicitors
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