SIMON MILLS and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 393
•29 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 393
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1099
2008/1044
2009/0672
GENERAL ADMINISTRATIVE DIVISION ) Re SIMON MILLS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N BELL, Senior Member
DR M E C THORPE, MemberDate29 May 2009
PlaceSydney
Decision The decisions under review are affirmed. ..................SGD...............................
Ms N BELL, Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – claim for permanent impairment in respect of a lower back injury – whether injury arose out of or in the course of his employment with Australia Post – claim for household services – decisions under review are affirmed.
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
29 May 2009 MS N BELL, Senior Member
DR M E C THORPE, Member1. Mr Mills began work with Australia Post in 1993 as a Postal Delivery Officer. Over the period of his employment with Australia Post he reported and claimed incidents of pain back in June 1994, February 1995, August 1995, April 2000, July 2003, August 2005 and finally in January 2006, this last incident occurring while he was on holidays.
2. In September 2006 Mr Mills had surgery to his back and in August 2007 resigned from Australia Post and has since found other employment.
3. Australia Post accepted liability for all of the above incidents of back pain with the exception of those in 2003 and 2006. It denied liability for any ongoing incapacity from January 2006. Mr Mills also claimed for permanent impairment of his lower back and claimed for household services. Both of those claims were denied by Australia Post.
4. The complexion of Mr Mill’s contentions is that throughout his work with Australia Post he sustained a number of insults to his back which resulted in a disc protrusion or nerve root irritation prior to January 2006 and those conditions were aggravated when he was on holidays in January 2006. In the alternative, Mr Mills had degenerative changes in his lumbar spine prior to January 2006 but was asymptomatic at the time he commenced work with Australia Post and became symptomatic because of that work. In the further alternative, Mr Mills contended that his underlying degenerative changes were aggravated by a series of work incidents which caused a disc to be susceptible to the trauma that occurred while he was on holidays in January 2006.
5. Australia Post contends that Mr Mills suffers from a degenerative condition of his lower spine and has done so for some time. There has never been a major insult to his back during his employment with Australia Post. There have, instead, been “flare-ups” of pain that have quickly abated and none of those incidents led to a change in the pathology of his back. Australia Post contends that Mr Mills suffered another “flare-up” in January 2006 when on holiday and this is significant because it resulted in radicular symptoms of pain down his leg. This was a new symptom and since then he has complained of pain in both his lower back and his leg.
6. Our first enquiry must be whether Mr Mills’ lower spine condition after his return from holidays in January 2006 arose out of his employment. The answer to this question will determine whether Mr Mills’ claims for permanent impairment and for household services should be further examined. In considering the question of whether his January 2006 lower spine condition arose out of his employment we must deal with the following questions:
i) Did Mr Mills suffer from a constitutional degenerative spine condition?
ii)If so, did Mr Mills’ employment cause his condition to become symptomatic? or;
iii) Did Mr Mills suffer a disc protrusion before January 2006? or;
iv) If he did not suffer a disc protrusion before that time, did Mr Mills’ employment aggravate his lower spine condition to the extent that the disc was susceptible to the trauma that occurred while he was on holidays in January 2006?
7. After a brief examination of Mr Mills’ history and evidence, we will turn to these questions.
mr mills’ history and evidence
8. During his employment with Australia Post, Mr Mills complained of or claimed in relation to the following incidents of back pain:
June 1994Pain in thoracolumbar region after lifting and lowering a mailbag – off work for three days;
February 1995 Back pain after jarring from motorbike – off work for 11 days;
August 1995 Back pain from delivering mail on a motorbike – off work for 14 days;
April 2000Lower back pain when twisted back while sorting mail – off work intermittently for a total of approximately 25 days over the following period until December 2000;
July 2003Back pain while sorting and delivering mail – off work for three days;
August 2005 Back pain when pulled to feet from the floor by co-worker – off work intermittently for a total of approximately seven days over the next month;
January 2006 Back pain while on holiday’s.
9. Mr Mills was not a good historian and often gave vague evidence or could not remember the details of the above incidents. At other times his evidence was firm but, in respect of some matters, he modified it in cross-examination. For example, he was initially firm in his evidence that both his lower back pain and leg pain have been constant since 1994. In cross-examination he conceded that his lower back pain would occasionally flare-up and then abate and that his leg pain would also come and go. He also agreed that, despite what he had originally described as constant lower back and leg pain, he undertook renovations on his house, including painting, in 2003. He agreed that, in 2003, he would rise at 5:15 am, commence work at 6:00am, perform office duties for four hours and make mail deliveries for two and a half hours, return home and rest for one hour, or perform renovations or paperwork, prepare the evening meal, then meet his children at school, return home and assist them with homework, clean the house, serve dinner and then performs further cleaning. He also agreed that after each flare-up of pain for which he made a claim he would return to his normal duties.
10. Mr Mills also, in cross examination, confirmed that he had injured his back in May 2004 when he fell over backwards when playing with his son. He had advised Australia Post that he had fractured his tailbone, but said this had been an exaggeration. He did not make a claim for compensation.
11. Mr Mills confirmed, in cross examination, that his back had become sore after driving for two hours on his way to Queensland on a family holiday in January 2006, and he had been unable to drive further. He said that the family stayed at a couple of hotels in Surfers Paradise and that he did not do much there because his back was sore. He said he recalled having leg pain. He said he did nothing more than walk around and was careful in his activities with the children. He finally recalled that he had also slid down a slippery dip which he said may have aggravated his back but not to a great extent. He maintained that it had not been the start of his back problem during that period. When confronted with the clinical notes of Concord Hospital made some two weeks later in which he is recorded as having said he “twisted” his back on the way down a slippery dip and no mention is made of driving, he maintained he had simply forgotten about the incident because it was “insignificant”. We also note that Mrs Mills gave short oral evidence that Mr Mills was unable to continue driving to Queensland after about two hours and she had to take over.
did Mr Mills suffer from a constitutional degenerative spine condition?
12. Professor Sambrook, Rheumatologist, took the view that, Mr Mills suffers from a condition that is two thirds due to age and genetic factors, and one third the result of his employment. He considered that the nature and conditions of his employment, including “vibration, bumping and thumping” from riding a motorcycle were a substantial contributor to disc prolapse. Professor Sambrook also pointed to the 1994 incident in which Mr Mills lifted heavy mail bags with a twisting motion. We note that Mr Mills’ evidence was that he lifted weights of 10 to 25 kilograms only irregularly. In any event, Professor Sambrook considered that an accumulation of incidents, with no major trauma, affected his spine.
13. Dr Robin Chase, Occupational Physician, in his report of 3 March 2008, considered Mr Mills has a long history of back pain with flare-ups performing work activities. He described this as “occupational back pain” and said that Mr Mills probably been getting progressive intervertebral disc degeneration that predisposed him to disc prolapse and the final non work-related incident while on holidays was the “straw that broke the camel’s back”.
14. Dr David Maxwell, Orthopaedic and Spinal Surgeon, in his report dated 25 January 2007, considered that Mr Mills has had a degenerate disc at the L4/5 level for a prolonged period. He also considered Mr Mills has had some congenital narrowing of the spinal canal at L4/5 level and has developed facet joint hypertrophy of the L4/5 facet joints. He said these three non work-related factors have led to some compression on the L5 nerve root.
15. Dr Maxwell also considered, on viewing an MRI scan taken in 2006, that Mr Mills had a congenitally narrow spinal canal.
16. Dr Neil McGill, Consultant Rheumatologist, in his report of 28 August 2008, considered that the changes in Mr Mills’ lumbar spine have been typical of constitutional degenerative disease and there is no radiological or clinical finding that is not commonly seen in constitutional degenerative lumbar spine disease. Dr McGill referred to a study that shows inheritance has been demonstrated to be the most important aetiological factor in the development of degenerative lumbar spine disease. (Sambrook P, MacGregor A, Spector T. Genetic Influences on Cervical and Lumbar Disc Degeneration, A Magnetic Resonance Imaging Study in Twins, Arthritis and Rheumatism 1999; 42:366-372).
17. In his oral evidence, Dr McGill said that substantial trauma has the potential to injure a disc, particularly one predisposed because of constitutional degenerative change. However, none of the incidents complained of by Mr Mills could be described as moderate or severe trauma.
18. Dr McGill said that an episode of pain does not automatically mean that a disc has been traumatised. An episode of pain does not mean an episode of damage – even if the pain is consistently in the same place over years. One can only make that determination on the basis of the degree of force involved in the incident. People with degenerative disc disease will have pain regardless of what they are doing or what is done to them.
19. We prefer the opinions of Drs McGill and Maxwell on this question because we find their analysis more logical and convincing. We also note that Professor Sambrook considers constitutional degeneration to have played the major role in Mr Mills’ back pain over the years and we consider this lends force to the opinions of Drs McGill and Maxwell.
20. We therefore find that Mr Mills suffered from a congenital degenerative spine condition.
did Mr Mills’ employment cause his condition to become symptomatic?
21. We have encountered no medical opinion to this effect. Neither Dr McGill nor Dr Maxwell was of this opinion. Professor Sambrook did not articulate this relationship between Mr Mills’ underlying condition and incidents in his employment and Dr Chase did not allow for an underlying condition at all.
did Mr Mills suffer a disc protrusion before January 2006?
22. There is no dispute that an MRI scan taken in 2006 shows a posterior disc protrusion at L4/5 level. This is a distinct change in the pathology of Mr Mills’ spine, taking it beyond mere degenerative change. If it occurred prior to the non work- related holiday events, then there may be an argument that it was related to one of the incidents of his employment. However if it did not, then that conclusion becomes remote.
23. We also note the evidence of numerous medical witnesses, including Professor Sambrook and Drs Maxwell and McGill, that the development of radicular leg pain (as opposed to referred leg pain) is an indicator of disc prolapse.
24. We note Mr Mills’ evidence (later qualified by him) that he has experienced mild leg pain, in both legs, from the buttock down the back of the thigh, since the incident in 1994. We also note that the longest continuous period he had off work after an incident prior to January 2006 was some 14 days. In addition, we note that he has continuously performed his delivery duties – walking or by motor cycle until after his January 2006 holiday.
25. We note that leg pain is only contemporaneously recorded on a few occasions by the many doctors who have examined Mr Mills over the ten or so years leading up to Mr Mills’ 2006 claim.
26. Of particular interest was Mr Mills’ evidence that his symptoms in January 2006 were brought on after driving for approximately two hours on his trip to Queensland. In cross-examination, the clinical notes of Concord Hospital made on 10 February 2006 were put to him. Those notes recorded that:
“Patient slide (sic) down a slippery dip and felt he twisted his lower back on the way down 2 weeks ago. Able to get up and mobilise … slight lower back pain. Pain persisted and worsened over 2 weeks. Relieved by lying flat and use of analgesia. Pain for past 3 days has radiated down his left thigh. Denies loss of bladder and bowel control, weakness in limbs or pins and needles.”
27. Mr Mills confirmed the notes as correct and offered no plausible explanation as to why he had not mentioned that incident in his evidence in chief or to any of the other doctors who had examined him. This incident is significant because, in contrast with the simple act of driving, it could be characterised as a trauma and may be posited as an event that disturbed the normal course of constitutional degeneration of his spine. Certainly that was the opinion of Professor Sambrook and Drs Maxwell and McGill. Coupled with the development, shortly afterwards, of significant back and leg pain leading to surgery later in the year, this event could suggest itself as a cause of Mr Mills’ disc protrusion.
28. Dr McGill considered that Mr Mills had some somatic referred pain in his leg prior to 2006 but not radicular pain. His view was that it is the position of the pain and not the quality of the sensation (burning or dull) that is a signifier of radiculopathy. In his view, radicular pain would be more likely to be felt from the knee down to the sole of the foot. He noted that most of the reported leg pain was in his thigh.
29. Dr McGill also considered that the earlier incidents could not have been significant traumas because Mr Mills always resumed his normal duties and would not have been able to do so if he had had a disc protrusion. His symptoms did not become substantially problematic until January 2006.
30. Dr Maxwell considered that the slippery dip incident suggests that Mr Mills’ disc protrusion was not spontaneous and he regarded it as a very significant incident. He agreed that the leg pain experienced by Mr Mills prior to Jan 2006 was referred pain rather than radicular pain. He noted that for three years prior to his holiday Mr Mills was doing a walking delivery route of up to 15 kilometres with no history of back or leg pain from that activity. If he had radicular pain from a degenerative lesion he would experience it on walking long distances because of claudication. If he had some sort of damage to the disc then his back would be continuously painful. Some leg pain is not inconsistent with a back condition but it is not necessarily indicative of radiculopathy. Dr Maxwell said it is common to have referred pain to the thigh, but radicular pain would cause pain below the knee. This is so even though there is a record of leg pain by a doctor and physiotherapist over six months in 2000.
31. Professor Sambrook considered it significant that Mr Mills had experienced leg pain earlier than 2006 and maintained that this was indicative of disc prolapse, regardless of what incidents took place in January 2006. He referred, in particular, to a history recorded by Dr Timothy Steel, Mr Mills’ treating Neurosurgeon and Spine Surgeon, of Mr Mills experiencing 10 years of left leg pain. However, he conceded in cross examination that the 1994 lifting incident was reported by Canterbury Hospital as having produced pain in the thoracolumbar region, more thoracic than lumbar. He placed emphasis, however, on the history Mr Mills gave in 1995 of riding a motorbike and feeling bumping and vibration to his spine but agreed that the history recorded by Dr Hammond, Consultant Orthopaedic Surgeon, in his report of 13 November 1995, was that he had no leg pain.
32. Professor Sambrook agreed that it is important to distinguish between referred pain and radicular pain. He agreed that Mr Mills appears to have been symptom free during much of 2003, when he maintained a very busy schedule of work and home renovation and household tasks, and in 2004. After first regarding the 2005 incident of being pulled from the floor as involving some twisting, he thought that it probably involved a forceful “yanking” instead and considered that might amount to a trauma.
33. We again find the evidence and opinions of Drs Maxwell and McGill more persuasive. Their analysis is more thorough and convincing and is less speculative than that of Professor Sambrook.
34. We consider it more likely that Mr Mills’ disc protrusion and the heightened symptoms that followed it, were caused by the twisting incident he suffered on a slippery dip while on holidays in January 2006.
did Mr Mills’ employment aggravate his spine condition to the extent that the disc was susceptible to a trauma that occurred while he was on holidays in January 2006?
35. Dr Chase, who had examined Mr Mills for Australia Post in 2000 and 2002 as well as in 2008, posited the “straw that broke the camel’s back” theory. His opinion appears to be based on the premise that Mr Mills’ spine degeneration was caused by his work rather than by constitutional factors. We have already found to the contrary. We also note that Dr Chase was not made aware by Mr Mills of the slippery dip incident which, according to the opinions of Professor Sambrook and Drs Maxwell and McGill would be sufficient trauma to cause disc protrusion..
36. Professor Sambrook’s opinion was that Mr Mills’ degenerative spine condition was caused, in the proportion of one third, by incidents in his employment. He considered that, although none of the employment incidents were major, their cumulative effect would be traumatic and would produce an abnormal spine.
37. We remain persuaded by the opinion of Dr McGill that an episode of pain does not automatically mean that a disc has been traumatised or of damaged or that there has been a change to the pathology of the spine. We also remain persuaded by the opinion of Dr Maxwell, on the basis of the 2006 MRI scan, that Mr Mills has congenital narrowing of the spinal canal and that this, together with other congenital features, determined any susceptibility to damage from trauma.
38. On this basis we cannot be satisfied that Mr Mills’ employment aggravated his degenerative spine condition to an extent that made it susceptible to trauma in January 2006.
CONCLUSION
39. Given our findings that Mr Mills suffered from a congenital degenerative spine condition, that it was not made symptomatic by his employment, that it was most likely caused by the twisting incident he suffered on a slippery dip while on holidays in Queensland in January 2006, and that his spine was not made susceptible to trauma by employment related aggravation, we find that Australia Post is not liable for Mr Mills’ lumbar spine condition.
DECISIONS
40. The decisions under review are affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member
DR M E C THORPE, MemberSigned: ...................................SGD.............................................
Associate: Felicia DanieleDate/s of Hearing 17, 18 &19 February 2009
Date of Decision 29 May 2009
Counsel for the Applicant Mr P Sternberg
Solicitor for the Applicant Mr J Restuccia, Pelosi & Associates
Counsel for the Respondent Mr P Jones
Solicitor for the Respondent Ms C Tirado, Australia Postal Corporation
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