Sellick and Australian Postal Corporation
[2007] AATA 71
•1 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 71
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/376
) A2004/378
GENERAL ADMINISTRATIVE DIVISION ) Re ALLAN SELLICK Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Dr M.D. Miller AO, Member Date 1 March 2007
Place Canberra
Decision 1) The decision of Australia Post in matter A2004/376 made 27 October 2004 is set aside and in substitution it is decided that from 27 October 2004 up to and including the date of this decision, Mr Sellick has suffered and is suffering the effects of an aggravation of a degenerative spine condition and a sprain of the interspinous ligament which arose out of his employment with Australia Post on 25 October 2002.
2) The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Australia Post shall pay Mr Sellick’s reasonable costs in application A2004/376.
3) The decision of Australia Post in matter A2004/378 made 26 October 2004 is set aside and in substitution it is decided that Australia Post is liable to pay compensation to Mr Sellick in respect of an injury being bilateral inguinal hernias suffered by Mr Sellick on 31 May 2004.
4) The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Australia Post shall pay Mr Sellick’s reasonable costs in application A2004/378
..............................................
J.W. Constance, Senior Member
CATCHWORDS
Compensation – Postal worker – Right shoulder and back pain – Bilateral inguinal hernias – Whether Applicant continues to suffer from conditions – Whether nature of sorting mail contributed to conditions – Whether claim properly made – Whether hernia constitutes a disease.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14, 53
Health Insurance Commission v Van Reesch and Another (1996) 45 ALD 302; [1996] 1116 FCA 1
Australian Postal Corporation v Burch (1998) 85 FCR 264; [1998] 944 FCA (5 August 1998)
Abrahams v Comcare [2006] FCA 1829
Re Daly and Australian Postal Corporation [2006] AATA 1510
REASONS FOR DECISION
1 March 2007
J.W. Constance, Senior Member
Dr M.D. Miller AO, MemberINTRODUCTION
A2004/376: claim in relation to right shoulder and upper back
1. Mr Sellick has been employed by Australia Post as a postman since 1986.
2. In the latter half of 2002 Mr Sellick suffered increasing pain in his right shoulder and upper back associated with his work, particularly the use of an item of equipment for sorting mail, known as a VSORT (vertical slot sorting) frame. In November 2002 Australia Post accepted liability for an injury determined to have been suffered on 21 October 2002 and which Australia Post described as "soft tissue injury of the right shoulder girdle musculature." [1]
[1] Exhibit A10.
3. Mr Sellick received compensation in respect of the injury until 15 October 2004 when Australia Post decided that, at that time, it had no liability to pay compensation. The basis for the decision was that the effects of the injury had completely resolved. This decision was affirmed on review by Australia Post. Mr Sellick now seeks a review in this Tribunal.
4. For the reasons which follow we are satisfied that Mr Sellick presently continues to suffer the effects of the injury suffered by him in October 2002, therefore, the decision of Australia Post will be set aside.
A2004/378: claim in relation to bilateral hernias
5. In mid-2004 Mr Sellick was diagnosed as having developed bilateral inguinal hernias. He lodged a claim for compensation for this injury on the basis that the hernias were caused by his working conditions. Australia Post has refused to accept liability.
6. Mr Sellick is seeking a review of this decision.
7. For the reasons which follow we are satisfied that Mr Sellick has suffered an injury, being bilateral inguinal hernias contributed to in a material degree by his employment with Australia Post. The decision of Australia Post will be set aside.
FINDINGS OF FACT
8. Unless otherwise stated the following findings of fact are made on the basis of the evidence of Mr Sellick. We are satisfied of these facts on the balance of probabilities.
9. Mr Sellick is 47 years old. He has worked for Australia Post as a Postal Delivery Officer since 1986. Since 1988 he has worked at the Queanbeyan Delivery Centre.
10. During the whole of his employment he has undertaken similar duties -- sorting mail, bundling the mail and then delivering it, either by motorbike or on foot. In about 1998 or 1999 Mr Sellick commenced using a VSORT frame to sort the mail. Mail had previously been sorted using pigeon holes. At the same time the delivery area for which Mr Sellick was responsible was enlarged which meant he had more mail to sort and deliver. Initially, for an uncertain period of between three and nine months, he was working from five o'clock in the morning until six o'clock in the evening and using the frame for 4 to 5 hours per day. After this initial period, which included a period of training on the use of the frame, the time spent by Mr Sellick in sorting mail on the VSORT frame was reduced to 2 to 3 hours per day.
11. The VSORT frame does not have any moving parts (other than those which allow for adjustment of height by the operator). It does not move while mail is being sorted. The frames used by Mr Sellick consist of two or three sets of shelves placed in accordance with the following diagrams.
2 module 3 module
Each set of shelves contains 4 or 5 shelves. Each shelf is divided into vertical slots, each slot representing one or two delivery addresses.[2] The officer stands or sits facing the shelves and sorts the mail from tubs.
[2] Exhibit A47.
12. Ms Prykiel, Postal Delivery Co-ordinator at the Queanbeyan Delivery Centre, gave evidence as to the duties carried out by Mr Sellick. On the basis of her evidence we make the findings in the following two paragraphs.
13. In 2002, as part of his mail sorting duties, Mr Sellick was required to lift bins holding up to (but often less than) 15 kg of mail. The bins were lifted from ankle height to waist height. He was required to lift two or three bins each day. Also in 2002 he was required to lift depot bags which would hold up to 16 kg of mail. These bags have now been reduced in size and hold between 10 and 12 kg of mail. On the busiest days (Mondays) 3 or 4 depot bags are handled each day. On other days there may only be one. After Mr Sellick complained of shoulder and back problems in October 2002 his VSORT frame was lowered. Later he was given a two-module frame in place of a three-module frame.[3]
[3] Exhibit R8, Statement of Ms Priekel, 16 January 2006.
14. On the basis of the oral evidence given by Ms Prykiel we are satisfied that on occasion Mr Sellick has lifted bins of mail weighing up to 25 kg. The evidence does not enable us to decide how often this happens.
15. In 2002 a report on the safety of the VSORT frame was prepared for Comcare to asses its compliance with occupational health and safety legislation.[4] This report made a number of findings and recommendations, but none which assist us in resolving the issues in the applications before us.
[4] Exhibit A47
16. In 1997 Mr Sellick slipped and fell whilst waking down a flight of stairs. As part of a claim for damages arising from this incident Mr Sellick claimed that this fall aggravated early osteoarthritic changes in his spine, hips and socroiliac joints.[5]
[5] Exhibit R1.
Particular findings relevant to A2004/376: claim in relation to right shoulder and upper back
17. In the latter half of 2002 Mr Sellick experienced increasing pain in his right shoulder and upper back. In October 2002 he made a claim for compensation[6] in which he described the injury as “pain in right shoulder”. In the claim form he stated that for the previous two months he had been sorting large volumes of mail at the VSORT frame and that the pain in his right shoulder increased as time went on. Medical certificates provided to Australia Post in October 2002 variously described the injury as “strained muscles R upper back”, “Right Shoulder/upper back pain” and “Interscapular stabilizer strain”.[7]
[6] Exhibit A2.
[7] Exhibit R9.
18. Australia Post accepted liability for a “soft tissue injury of the right shoulder girdle musculature”.[8] As a result, the time Mr Sellick spent at the VSORT frame was reduced to no more than one and a half hours per day and the frame was lowered so that he did not sort mail above shoulder height.
[8] Exhibit A10.
19. Mr Sellick remained on reduced duties for approximately 5 months and then took one months recreation leave. On returning from leave in May 2003 he again experienced pain in his shoulder whilst using the frame and he was again placed on reduced hours. He has continued to use the VSORT frame for approximately one hour per day since that time. He remains on restricted duties which include lifting no more than 10 kg, one hour on bike deliveries and walking deliveries of approximately 90 minutes per day. The remainder of the day he is engaged in light duties at the Delivery Centre.
20. The pain Mr Sellick suffered at the time he made the claim in October 2002 was in his upper back and in his right shoulder. When asked to indicate to us where he currently experiences pain, he indicated his mid thoracic spine. In October 2002 the intensity of the pain would vary depending on the amount of mail he was sorting using the VSORT frame. The more he used the frame, the worse the pain became. He had experienced pain in his shoulder prior to October 2002 which he said would be present for about three days and would then disappear.
21. Mr Sellick did not seek medical advice in relation to his shoulder pain prior to October 2002. When he lodged the claim Australia Post arranged for him to consult Dr Shroot, a general practitioner. He also consulted his own general practitioner, Dr Bills, and sought specialist advice. He has continued to consult Dr Bills every few months for pain relief medication. He has also received physiotherapy treatment to his shoulder and has attended exercise programs in an effort to relieve the pain.
Particular findings relevant to A2004/378: claim in relation to bilateral hernias
22. In May 2004 Mr Sellick experienced pain in his left groin and then, some time later, similar pain in his right groin. The pain in the right side was not as severe as the left. He first experienced the pain whilst he was walking and delivering mail. The pain comes and goes but the intensity of the pain has remained the same since 2004. He has not experienced any swelling in either groin and he has not experienced any association between his groin symptoms and coughing.
Mr Sellick has not had any treatment for his condition apart from restricting the weight he lifts. He has, however, received specialist medical advice that his condition can be cured by surgery. He has not undergone surgery because of the cost involved.
LEGISLATIVE BACKGROUND
23. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) relevantly provides:
“14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in
accordance with this Act in respect of an injury suffered by an
employee if the injury results in death, incapacity for work, or
impairment.”
24. “Injury” is defined in section 4 to mean:
“(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…”
25. Section 4 also defines “disease” as:
“(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.”
26. For the purposes of the Act, a reference to an “Ailment” means “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
ISSUES FOR DETERMINATION IN A2004/376 (shoulder / upper back claim)
27. The following issues arise for determination:
1)what was the injury (or injuries) suffered by Mr Sellick in October 2002;
2)is the injury (or injuries) the subject of a claim which can be considered by the Tribunal in these proceedings;
3)if so, does Mr Sellick continue to suffer from the effects of the injury or injuries at the date of this decision?
MEDICAL EVIDENCE IN RELATION TO RIGHT SHOULDER / UPPER BACK
28. Dr Bills has been in general medical practice for approximately 19 years. He is Mr Sellick's general practitioner. Dr Bills provided an extract of his clinical notes [9] and gave evidence. In his opinion Mr Sellick has a right rotator cuff injury and some muscular and ligamentous strain of the upper back which has not settled. He is of the view that the right shoulder injury is a result of Mr Sellick's work with Australia Post and has been caused by repetitive trauma to the muscles and tendons along the rotator cuff. Definitive treatment is probably going to involve surgery and until that occurs it is unlikely that the shoulder will improve significantly. Current treatment involves medication and modification of work tasks. In cross-examination Dr Bills agreed that he could not ascribe a definite precipitating injury, nor could he give a definite cause, in relation to the shoulder condition as it has developed over time.
[9] Exhibit A46.
29. In a report of 11 August 2005 [10] Dr Bills stated that in his opinion the condition of Mr Sellick’s shoulder (which was further injured when he fell at work on 11 July 2005) had not stabilized and had deteriorated. On 24 August 2005 he reported that surgery may be required.[11]
[10] Exhibit A41.
[11] Exhibit A43.
30. Dr Griffith, Consultant Surgeon, examined Mr Sellick in December 2004. This examination was carried out at the request of Mr Sellick's solicitors. Dr Griffith provided a report of 10 January 2004[12] and gave evidence.
[12] Exhibit A14.
31. In the opinion of Dr Griffith, at the time of the examination, Mr Sellick was suffering from four conditions relevant to his claim for an injury to his right shoulder:
1)musculoligamentous strain of the musculature of the shoulder girdles, also involving the right glenohumeral joint (shoulder joint proper), caused by his work-activities;
2)cervical spondylosis with minimal changes in the thoracic region which are of a constitutional origin but which are likely to have been and continue to be, aggravated by his using the VSORT frame;
3)right subacromial bursitis without major impingement caused by work-activities;
4)chronic sprained interspinous ligament caused by work-activities.
32. Further, in the opinion of Dr Griffith, had Mr Sellick ceased to use the VSORT frame after 2002 his symptoms would have improved greatly within 2 - 3 months but whether they would have resolved completely is speculative.[13] In his view, it is likely that the continued use of the frame has continued to aggravate the pathological entities which have been identified as being related to the onset and continuation of the pain he suffers.[14]
[13] Transcript of Proceedings, 2 December 2005, p. 136.
[14] Transcript of Proceedings, 2 December 2005, p. 140.
33. In September 2004 Mr Sellick was examined by Dr Cassar, Consultant Physician, on referral from Dr Bills. Dr Cassar has spent the last 20 years practising in pain management and rehabilitation, mostly in the rheumatologic area.
34. In his report of 6 December 2004[15] Dr Cassar stated:
“…… it is my opinion that persisting work necessitating constant above shoulder work, with neck hyperextended and arm raised as well as work necessitating repeated lifting of full postal bags weighing in excess of 10 kg would substantially aggravate an underlying non-work related Degenerative Spondylosis condition. Such aggravation would not of itself cause any of the degenerative changes mentioned on MRI, but could by inflammatory oedema from aggravation aggravate and cause muscle spasm, also nerve root encroachment of headache, arm and shoulder blade pain and disability, the persistence of which can be prolonged for weeks or even months given inappropriate treatment, specifically if no direct anti-inflammatory treatment such as by steroid was not given."
[15] Exhibit A6.
Dr Cassar agreed with the diagnosis made by Dr Griffith save that he did not agree that Mr Sellick suffered from scapula bursitis.
35. By December 2004 two injections to the spine prescribed by Dr Cassar had freed up Mr Sellick’s neck and shoulder. When advised that Mr Sellick had indicated to us that he now suffers pain in the middle of the thoracic spine in the mid-line, Dr Cassar stated that this localisation was "quite away from the diagnosis of aggravation of cervical spondylosis and it’s more in keeping of the diagnosis...... of the musculoligamentous strain of the spine......"[16] In Dr Cassar’s view if there is a strain injury it will not be permanent.
[16] Transcript of Proceedings, 2 December 2005, p. 189.
36. Dr Cassar also gave evidence that the investigations which had been carried out indicated that Mr Sellick suffers degeneration in the thoracic spine as well as in the cervical spine, with the degeneration being "fairly substantial" in the cervical spine and “minimal” in the thoracic area.[17] In his opinion the changes seen in 2003 would have taken at least eighteen months to two years to develop and therefore he expected the changes would have been present in October 2002. In his view at that time Mr Sellick suffered a temporary aggravation of the condition of his cervical spine which would have ended by the time Mr Sellick returned to work in May 2003.
[17] Transcript of Proceedings, 2 December 2005, p. 193.
37. Dr McGill, Consultant Rheumatologist, examined Mr Sellick at the request of Australia Post in March 2005 and again in October 2005. In his report of 24 October 2005 [18] he stated :
“I think it has been established that the discomfort that he has experienced near the medial border of the right scapula was referred from his cervical spine. I agree with the others that the degenerative changes seen on his imaging studies are entirely constitutional and unrelated to his work. As I noted in my previous report, I think it is possible that at times his work duties have caused a temporary increase in the level of his symptoms. I think such an increase in symptoms related to work duties could last for a few weeks but I think it would be very unlikely for his work duties to have had an influence on the level of symptoms for any greater period of time. Spontaneous onset and fluctuation of symptoms related to constitutional degenerative change in the spine is characteristic of the natural history of the disorder.................. With respect to his right shoulder, I think it remains appropriate and important for his V sort apparatus to be positioned such that he does not need to elevate his arm above shoulder height on a repetitive basis."
[18] Exhibit R4.
38. Reports from Dr Shroot, Dr Elder, Dr Eaton, Mr Wisdom and Dr Chew were tendered on behalf of Mr Sellick with the consent of Australia Post and without the authors of those reports being required for cross-examination. A summary of the opinions expressed in those reports follows.
39. When Mr Sellick reported the pain in his back to his supervisor in October 2002, he was referred by Australia Post to Dr Shroot , a General Practitioner. Dr Shroot examined Mr Sellick on 23 October 2002 and noted a history of pain in his "right upper back". He also noted pain on the right side of the thoracic spine and around the scapula and that Mr Sellick told him that he had experienced the pain "on and off, for quite a long time". In Dr Shroot's opinion Mr Sellick had suffered a soft tissue injury.[19] The report was written in June 2003 and at that time Dr Shroot referred to a recurrence of the pain after Mr Sellick had returned from holidays. This is consistent with Mr Sellick’s claim to have experienced a resumption of pain on his return to work in May 2003.
[19] Exhibit A11.
40. Dr Elder, Consultant Occupational Physician, examined Mr Sellick on 20 November 2002. This examination was carried out at the request of Australia Post. He diagnosed Mr Sellick as suffering a soft tissue injury of the right shoulder girdle musculature which was probably significantly work related.[20]
[20] Exhibit A9.
41. Dr Eaton, Occupational Physician, examined Mr Sellick in June 2003 on referral from Dr Shroot. Dr Eaton reported that Mr Sellick suffered "right upper back pain at the medial edge of the right scapula." Mr Sellick told Dr Eaton that he had experienced pain in that region for a period of "a few years".[21] In the opinion of Dr Eaton, Mr Sellick had a soft tissue injury which may have been precipitated by, and probably was aggravated by, his repetitive sorting activities and his motorcycle duties.
[21] Exhibit A12.
42. In a report of 25 May 2004 [22] Mr Wisdom, Physiotherapist, noted that Mr Sellick had been receiving physiotherapy treatment for mid thoracic pain since October 2002. The treatment had been focused on reducing symptoms and improving the range of movement of the thoracic spine.
[22] Exhibit A16.
43. On 19 July 2004 Mr Sellick was assessed by Dr Chew, Consultant Occupational Physician, at the request of Australia Post. Dr Chew reported [23] that Mr Sellick had told him that he had experienced a gradual onset of pain in his upper back in October 2002 and that he complained of "pain in his back localised in the mid thoracic spine region". Dr Chew said that Mr Sellick experienced no significant pain in his shoulders. On examination Mr Sellick complained of tenderness in his mid thoracic spine from T8 to T10 level.
[23] Exhibit A22.
44. Dr Chew reported:
“In my opinion, Mr Sellick has sustained a soft tissue injury to his mid thoracic spine pain [sic] while carrying out his postal delivery duties at Australia Post. This is superimposed on constitutional degenerative changes in his thoracic spine………..
However, I believe the accident of 24 October 2002 has completely resolved and no longer serves as a pain generator…
In my opinion, his continuing pain is more than likely to be the result of his pre-accident condition in the form of degenerative spinal disease."[24]
[24] Exhibit A22.
45. X-rays and an ultrasound of the right shoulder carried out on 20 September 2004 did not indicate any abnormality in the shoulder.[25]
[25] Exhibit A27.
46. The injections required by Dr Cassar were carried out by Dr Price on 22 November 2004. Right C5/6 and C6/7 intra-articular facet joints injections were performed together with a right C6/7 foraminal injection.[26]
[26] Exhibit A33.
47. Further X-rays and ultrasound of Mr Sellick’s right shoulder were carried out on 23 August 2005. The X-rays showed early degenerative changes within the acromioclavicular joint and the ultrasound showed minor degenerative changes within the same joint. No full-thickness cuff tear was identified.[27]
[27] Exhibit A42.
48. Dr Whittaker, Consultant Rheumatologist, assessed Mr Sellick at the request of Australia Post on 18 August 2003. Dr Whitaker was not required for cross-examination and did not give evidence.
49. In his report of 29 August 2003 [28] he stated:
“Mr Sellick is a 44 year old man with recurrent episodes of right medial scapular margin pain. This pain is entirely consistent with the degenerative changes which have been documented on X-ray of his thoracic spine, dated 25 June 2003……….
Mr Sellick has thoracic spondylotic changes, maximal to the right in the mid to lower thoracic spine. This condition is degenerative. It is unrelated to his work.”
[28] Exhibit R10.
50. Australia Post also arranged for Mr Sellick to be examined by Dr Burke, Surgeon. This examination took place on 13 July 2004. Dr Burke was not required for cross-examination and did not give evidence. In the opinion of Dr Burke, Mr Sellick suffers possible degenerative changes at both shoulders. However, without seeing X-rays of the shoulders, Dr Burke was not prepared to comment upon possible causes of the symptoms described by Mr Sellick.
ASSESSMENT OF THE MEDICAL EVIDENCE IN RELATION TO THE RIGHT SHOULDER AND UPPER BACK
51. In assessing this evidence we have noted that when describing the areas in which he experienced pain, Mr Sellick has referred to both his right shoulder and his thoracic spine. Both Dr Shroot and Dr Eaton have recorded complaints of pain in the right upper back as well as the area of the right scapula. Mr Wisdom referred to treatment for mid thoracic pain. Dr Chew recorded a complaint of pain localised in the mid thoracic spine region and of complaints of tenderness in the thoracic spine. When Mr Sellick was asked, whilst giving evidence, to identify where he now suffers pain, he identified his mid thoracic spine.
52. Having considered the evidence of Mr Sellick and all of the medical evidence we are satisfied on the balance of probabilities that in the period of several months prior to and including October 2002 Mr Sellick suffered a soft tissue injury to his shoulder but that at present he does not suffer the effects of this injury. However, we are satisfied on the balance of probabilities that as a result of his duties as a Postal Delivery Officer employed by Australia Post he has suffered, and at the date of this decision continues to suffer, pain in the mid-upper back as a result of an aggravation of the condition of degenerative cervical spondylosis and/or a chronic sprained interspinous ligament.
53. Dr Griffith diagnosed Mr Sellick as suffering from muscular ligamentous strain of the right shoulder girdles and cervical spondylosis which has been, and continues to be, aggravated by use of the VSORT frame. He also diagnosed the condition of chronic sprained interspinous ligament caused by work-activities. Dr Cassar agreed with these diagnoses and was of the view that the strain injury to the shoulder would not be permanent. The injections arranged by Dr Cassar provided relief of the shoulder condition. Dr Cassar was of the view that if Mr Sellick was now experiencing pain in the thoracic spine this was indicative of musculoligamentous strain rather than an aggravation of cervical spondylosis. Nevertheless he accepted that the musculoligamentous strain could be ongoing, even if not permanent.
54. The diagnosis of a shoulder strain which has now resolved is also supported by Dr Shroot who was of the opinion in October 2002 that Mr Sellick has suffered a soft tissue injury to the shoulder. This was also the view of Dr Eaton, Dr Chew and Dr Elder.
55. The various X-rays and ultrasounds do not indicate there is an ongoing problem in the shoulder but do confirm the degenerative condition of the spine. Having observed Mr Sellick give evidence we are satisfied he is an honest witness and we accept his description of the nature and location of the pain he has suffered in the past and that he now suffers. These descriptions are consistent with his having suffered a shoulder injury which has resolved. They are also consistent with his continuing to suffer pain arising from an aggravation of his degenerative spine and/or a sprained interspinous ligament. When Mr Sellick indicated the site of the pain to us he indicated his mid spine, not his right shoulder
56. The evidence which does not support our conclusion was given by Dr McGill who was of the opinion that Mr Sellick's work duties would only cause a temporary increase in the level of symptoms for a few weeks at a time. However, Dr McGill does not explain why he believes Mr Sellick would only suffer an increase in symptoms for a few weeks at a time even though he is continuing to use the VSORT frame on a regular basis and is continuing to engage in his other duties involving the lifting and delivery of mail.
57. Dr Chew also supported the view that the effects of the incident in October 2002 had completely resolved and that the continuing pain experienced by Mr Sellick is more likely to be the result of the degenerative spinal disease. However Dr Chew did not consider the likelihood of there being ongoing aggravation of the underlying degenerative condition. In addition, Dr Whittaker was of the view that Mr Sellick suffers from a degenerative condition unrelated to his work. This is not in dispute. However, Dr Whittaker did not consider, nor state why he rejects, the view that Mr Sellick’s work may be aggravating the underlying condition.
58. We prefer the evidence of Dr Griffith and Dr Cassar. Their diagnoses are supported by Mr Sellick's description of the pain he now suffers and that which he has suffered in the past and by the results of the X-rays and ultrasounds. Although Dr Bills differed in his diagnosis, he supports the view that Mr Sellick’s ongoing problems are associated with the nature of his work duties.
DETERMINATION OF THE ISSUES IN RELATION TO THE SHOULDER AND UPPER BACK CONDITIONS
What was the injury or injuries suffered by Mr Sellick in October 2002?
59. For the reasons already stated we are satisfied that in the months leading up to October 2002 Mr Sellick suffered a soft tissue injury to his right shoulder, an aggravation of a pre-existing condition of degenerative cervical spondylosis and a chronic sprained interspinous ligament.
60. The soft tissue injury to the right shoulder and the sprain of the interspinous ligament are both injuries, other than diseases, within the definition of "injury" in section 4 of the Act as each stemmed from an external stimulus not constituting an aggravation or recurrence of a disease: Health insurance Commission v Van Reesch and Another (1996) 45 ALD 302; Australian Postal Corporation v Burch (1998) 156 ALR 483. As indicated earlier, we accept the evidence of Dr Griffith and Dr Cassar that both these injuries have arisen out of Mr Sellick's employment with Australia Post.
61. In relation to the aggravation of the degenerative cervical spondylosis we are satisfied this is a “disease” within the meaning of the Act in accordance with the principles set out in the preceding paragraph. We are also satisfied, on the basis of the evidence of Dr Griffith and Dr Cassar, that this aggravation was contributed to in a material degree by Mr Sellick's employment. In accordance with subsection 7(4) of the Act Mr Sellick is taken to have sustained this injury when he first sought medical treatment for it. We are satisfied that this was on 25 October 2002 when he first consulted Dr Shroot.
Are the injury or injuries the subject of a claim properly before this Tribunal?
62. The decision of Australia Post which is under review is a decision affirming a determination of 15 October 2004 that Australia Post was not then liable to make further payments of compensation “in relation to the compensable injury, viz. soft tissue injury to the right shoulder girdle musculature, sustained on about 24 October 2002”.[29] It is therefore necessary to consider whether it is proper that we take into account the effects of the aggravation of the degenerative condition of the spine and the ligamentous strain in deciding whether Mr Sellick has ceased to suffer the effects of the injury (as defined in the Act) suffered in October 2002 and the preceding months.
[29] Exhibit A32.
63. We are satisfied that the injury in respect of which Mr Sellick claimed compensation was not limited to a soft tissue injury to the right shoulder. This was the description given to it by Australia Post when accepting liability to compensate Mr Sellick. We have found that the medical certificates provided to Australia Post at the time, or very soon after, the claim form was lodged, referred to strained muscles of the right upper back, upper back pain and interscapular stabiliser strain. In addition, we have found that when describing his injury Mr Sellick informed some of the medical practitioners who examined him that he suffered pain in the upper back including the area of the mid-thoracic spine. This was reported to Australia Post by Dr Chew in July 2004.[30]
[30] Exhibit A22.
64. Although the Federal Court was dealing with the rejection of a claim under section 14 of the Act rather than a refusal of ongoing liability to make payments, the principles stated by the Court in Abrahams v Comcare [2006] FCA 1829 are applicable in determining the question under consideration. In Abrahams, His Honour Justice Madjwick stated:
“There is not always a bright dividing line available to assist in the decision whether powers of that kind mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the change noted is sufficiently fundamental as to indicate the different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration." [31]
[31] At paragraph 18.
The powers referred to by the learned Judge were the powers exercisable by this Tribunal in considering a claim.
65. In relation to the requirement of a notice of injury Madjwick J stated:
“In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice." [32]
[32] At paragraph 18.
Although the discussion in Abrahams concerned a notice of injury under section 53 of the Act there is no reason why these principles should not be equally applicable to the interpretation of a claim, bearing in mind that a claim form can also constitute the notice required by section 53.
66. Applying these principles, we are satisfied that the proper interpretation of the claim made by Mr Sellick is that it was a claim for an injury which caused pain in the upper back, which included, but was not limited to, pain in the area of the right scapula. It is therefore proper that we consider whether Mr Sellick continues to suffer the effects of the aggravation of the degenerative condition of his spine and the sprain of the interspinous ligament. As previously indicated we have decided that Mr Sellick does not presently suffer the effects of the soft tissue injury to the right shoulder.
As at the date of this decision does Mr Sellick continue to suffer the effects of the injuries?
67. For the reasons already stated we prefer the views of Dr Griffith and Dr Cassar. On this basis we are satisfied that, at present, Mr Sellick continues to suffer the effects of the aggravation of his degenerative spine condition and of the sprain of the interspinous ligament. We have taken into account that Mr Sellick continues to use the VSORT frame and continues to undertake the lifting associated with mail sorting and delivery. We accept the evidence of Dr Griffith and Dr Cassar that these duties are likely to continue to aggravate the conditions from which Mr Sellick suffers and to make the conditions symptomatic.
ISSUES FOR DETERMINATION IN A2004/378 (bilateral hernias claim)
68. The following issues arise for determination:
1)does Mr Sellick suffer from right and/or left inguinal hernias;
2)if so, is the condition he suffers an injury within the meaning of the Act?
MEDICAL EVIDENCE IN RELATION TO BILATERAL HERNIAS
69. On 31 May 2004 Mr Sellick consulted Dr Bills concerning the pains in his groins. Dr Bills referred Mr Sellick to Dr Tran, Consultant General Surgeon. Ultrasounds of both groins were arranged. These revealed “a small direct left inguinal hernia”[33] and “a small inguinal hernia on the right side.” [34].
[33] Exhibit A17.
[34] Exhibit A20.
70. On of 3 February 2005 Dr Tran reported:
“Clinical examination revealed a left inguinal hernia which was mildly tender. In addition, he has an early hernia on the right-hand side, which has been confirmed on ultrasound." [35]
[35] Exhibit A37.
71. Dr Bills also referred Mr Sellick to Dr McMahon, General Surgeon. He examined Mr Sellick on 2 December 2004. Dr McMahon reported that "on examination he has small bilateral indirect inguinal hernias with the left being slightly larger than the right………. Elective repair is indicated.” [36]
[36] Exhibit A34.
72. When he gave evidence Dr Bills said that whilst he was satisfied of the presence of the hernias he was unable to ascribe a cause to them.[37]
[37] Transcript of Proceedings, 2 December 2005, p. 207.
73. When Dr Griffith examined Mr Sellick in December 2004 he diagnosed him as suffering from bilateral hernia which he said were "quite small".[38] On examining Mr Sellick he determined there was definitely a cough impulse bilaterally and this observation, together with the ultrasound findings, led him to the opinion that hernias were definitely present. He explained why the hernias were not obvious in Mr Sellick's case and said that the symptoms of which he complained, including pain while walking, were typical of a person with a hernia. When he gave evidence Dr Griffith gave a detailed statement of the manner in which a hernia develops.
[38] Transcript of Proceedings, 2 December 2005, p. 140.
74. On the question of whether Mr Sellick's employment caused or contributed to the hernias Dr Griffith gave evidence that the most important factor in developing a hernia is a predisposition to do so. However, he explained that strenuous and repeated lifting requirements, which caused recurrent raising of intra-abdominal pressure in a predisposed individual "is consistent with developing a hernia as a consequence of activities in the workplace………… the activities of…. a postal delivery officer are consistent with those which would produce aggravation and precipitate a hernia in an individual who is predisposed, as Mr Sellick is. "[39]
[39] Transcript of Proceedings, 2 December 2005, pp 141-142.
75. At the request of his solicitors, Mr Sellick was examined by Dr Endrey-Walder, Surgeon, in January 2005. Dr Endrey-Walder was unable to find clinical evidence of herniation in either groin but he acknowledged that small hernias such as identified by the ultrasounds may not be identified on clinical examination. He also was of the opinion that ultrasound examination is also fairly unreliable, especially when the hernia is of a very small size.[40] In a report of 29 August 2005, Dr Endrey-Walder expressed the opinion that “……….the nature and conditions of this gentleman's work with Australia Post would have to be considered as having materially contributed to the development of his inguinal hernias." [41]
[40] Exhibit A40.
[41] Exhibit A44.
76. When Dr Endrey-Walder examined Mr Sellick he diagnosed him as suffering from “fairly advanced osteoarthritic changes at the hip joints" [42] which in his view may account for the pain suffered by Mr Sellick when walking. He recommended that further investigation of this condition be undertaken. So far as we are aware this has not happened.
[42] Exhibit A35.
77. On 13 July 2004 Dr Burke also examined Mr Sellick in relation to his claim that he had bilateral hernias. In the opinion of Dr Burke there was no evidence of herniation at either groin but he was unable to identify any other cause of Mr Sellick’s symptoms. He was of the opinion that even if hernias had developed there is no evidence of their being causally related to Mr Sellick’s work.[43]
[43] Exhibit R11.
78. On the basis of the evidence of Dr Bills, Dr Tran, Dr Griffith and Dr McMahon we are satisfied, on the balance of probabilities, that Mr Sellick has developed bilateral hernias. This diagnosis is supported by the results of the ultrasound. Whilst Dr Endrey-Walder has raised some doubt as to the diagnosis, he does not exclude it and merely raises the possibility of an alternative cause of the pain complained of by Mr Sellick. At the same time Dr Endrey-Walder acknowledged the difficulty of diagnosing small hernias. We prefer the evidence of the four practitioners referred to above to that given by Dr Burke. Unlike these four practitioners Dr Burke was not prepared to consider any evidence as to Mr Sellick’s work activities as relevant but did not explain his reason for this view. On the other hand Dr Griffith provided us with detailed reasoning in support of his view.
DETERMINATION OF ISSUES IN RELATION TO THE BILATERAL HERNIAS CLAIM
Does Mr Sellick suffer from right and/or left inguinal hernias?
79. For the reasons already stated we are satisfied that Mr Sellick does suffer bilateral inguinal hernias.
Is the condition of bilateral inguinal hernias an injury within the meaning of the Act?
80. For the purposes of the Act, the definition of “injury” (set out earlier in these reasons) includes a disease suffered by an employee which was contributed to in a material degree by the employees’ employment. Although the existence of a hernia may not commonly be regarded as a disease in our view it does come within the definition of "disease" in the Act. The hernia is properly described as a physical disorder or defect of sudden onset or gradual development. On the evidence before as we are satisfied that a hernia is usually a condition of gradual development. Thus a hernia is an ailment and an ailment, or the aggravation of such an ailment, satisfies in part the definition of "disease". To treat the development of a hernia (without strangulation) as a "disease" rather than an injury simpliciter is in accordance with other decisions of the Tribunal: Re Daly and Australian Postal Corporation [2006] AATA 1510.
81. We are satisfied, on the balance of probabilities that Mr Sellick’s employment with Australia Post has contributed to the development and aggravation of his bilateral hernias. We have reached this conclusion on the basis of the evidence of Dr Bills, Dr Tran, Dr McMahon and in particular Dr Griffith (to which we have already referred) and the evidence as to the lifting and other duties Mr Sellick undertakes as part of his employment.
82. For an ailment, or the aggravation of an ailment, to be a disease within the meaning of the Act it must be shown that the employee’s employment contributed to the ailment or aggravation “in a material degree.”[44]
[44] See definition of “injury” in section 4.
83. As was pointed out by this Tribunal in the decision in Daly:
“material is a common English Word and if one goes to the Oxford English Dictionary, in this case the 1970 Clarendon reprint, meaning five of the word material is given as:
Of serious or substantial import; of much consequence; important.
Paragraph (d), meaning 5, then goes on to say under this subheading Law:
Applied to evidence of facts, which are of such significance as to be likely to influence the determination of a cause, to alter the character of an instrument
-- etcetera. We see no reason to depart from that meaning in this matter."
We agree with the approach adopted in Daly, the relevant facts of which were almost identical with the matter before us.
84. In view of the evidence of Dr Griffith and taking into account that Mr Sellick has been involved in lifting tubs and bags of mail weighing up to 25 kg as a regular part of his work-duties over many years we are satisfied on the balance of probabilities that his employment has contributed in a “material” degree to the development and aggravation of his bilateral hernia condition.
85. We are satisfied that the date of the injury is 31 May 2004, being the date on which Mr Sellick first consulted Dr Bills in relation to the condition.
DECISION
Matter A2004/376
86. The decision of Australia Post in matter A2004/376 made 27 October 2004 is set aside and in substitution it is decided that from 27 October 2004 up to and including the date of this decision, Mr Sellick has suffered and is suffering the effects of an aggravation of a degenerative spine condition and a sprain of the interspinous ligament which arose out of his employment with Australia Post on 25 October 2002.
87. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Australia Post shall pay Mr Sellick’s reasonable costs in application A2004/376.
Matter A2004/378
88. The decision of Australia Post made 26 October 2004 is set aside and in substitution it is decided that Australia Post is liable to pay compensation to Mr Sellick in respect of an injury being bilateral inguinal hernias suffered by Mr Sellick on 31 May 2004
89. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Australia Post shall pay Mr Sellick’s reasonable costs in application A2004/378.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M. Miller AO, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 1 & 2 December 2005, 9 & 10 March 2006, 10 November 2006
Date of Decision 1 March 2007
Counsel for the Applicant Mr D RichardsSolicitor for the Applicant Slater & Gordon Incorporating Gary Robb & Associates
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Forners Solicitors
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