Smith and Australian Postal Corporation
[2008] AATA 291
•11 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 291
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1079
GENERAL ADMINISTRATIVE DIVISION ) Re SUSAN SMITH Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, MemberDate11 April 2008
PlaceSydney
Decision The decision under review is affirmed. .....................[sgd].........................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
COMPENSATION – Australian Postal Corporation – claim for back pain - spondylolisthesis at vertebrae L5/S1 – accepted as constitutional – previously accepted claims for medical expenses - whether condition materially contributed to by employment – whether asymptomatic condition made symptomatic by employment – whether temporary aggravation of spondylolisthesis - medical evidence considered – condition structural – back pain caused by spondylolisthesis - held no material contribution by employment - no temporary aggravation of condition – condition not made symptomatic by employment – reviewable decision affirmed – no order for costs proposed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Martin v Australian Postal Corporation (1999) 29 AAR 420
REASONS FOR DECISION
11 April 2008 Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, Member1. Ms Susan Smith has been employed by Australian Postal Corporation (“Australia Post”) as a mail sorter since 1983. She is seeking the review of a decision made on 26 June 2006 declining liability for lower back pain on 23 March 2006 claimed to have been caused by general work duties (Proceedings N2006/1079). Proceedings relating to a permanent impairment claim were withdrawn on the first day of the hearing (2007/2366).
THE ISSUE
2. It is not in dispute that Ms Smith has spondylolisthesis at vertebrae L5/S1, which is a constitutional or developmental condition that she has had since early adulthood.
3. The issue in these proceedings is whether Ms Smith’s employment had contributed to that condition in a material degree as of 23 March 2006.
THE CASE FOR MRS SMITH
4. We understood Mr Richards to put Ms Smith's case as follows. The original determination refers only to liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in relation to a nature and conditions claim, however claims pursuant to s 16 of the Act (medical expenses) and s 19 of the Act (incapacity) are before the Tribunal in respect of earlier "accepted conditions" as well as the injury in March 2006.
5. The earlier "accepted conditions" to which Mr Richards referred were on 23 September 1999 when Ms Smith filled out an incident report for pain in the lower back which started when she was opening and emptying parcel bags and which then got worse. The other incident was an injury on 10 February 2000 described as low back pain.
6. Mr Richards also mentioned an injury which occurred after the injury that is the subject of these proceedings. On 28 August 2007 Australia Post accepted liability pursuant to s 14 of the Act for an aggravation of constitutional spondylolisthesis which occurred on 26 June 2007, but the decision-maker was not satisfied that there was current liability to pay compensation pursuant to ss 16 and 19 of the Act.
7. In summary, Mr Richards argued as follows. Ms Smith had been employed doing heavy manual work for 25 years. She suffers symptoms in her back and takes pain killers to stay at work. She is not a malingerer, but a loyal hard working employee who does her full duties. Liability for aggravations of her constitutional condition has previously been accepted in 2000 and 2007. It is easy to accept that that she has a work related back condition. Her work has caused her condition to become symptomatic.
8. He said that if we find against Ms Smith, she would be "non-stat", that is, she will not be entitled to compensation under the Act, and if she is unable to perform unrestricted duties she will be terminated and end up on a disability support pension.
9. In relation to the lower back pain referred to in the compensation claim form signed by Ms Smith on 31 March 2006, Mr Richards said that Ms Smith went to work on the Wednesday night of 23 March 2006. It was a very busy night. She would normally empty the small and large parcels until nine or 9.30 pm, but on that particular night she did not finish that task until 10.25 pm. At the end of her shift at 2.40 am she went home or she went to her boyfriend’s house. She went to sleep somewhere around about three or 3.15 am and she woke up at 6.10 am. She could not feel her legs. She has been in pain every day since March 2006. At worst her pain is 6.5 out of 10, and at least 1 out of 10.
10. Mr Richards said that Ms Smith was a poor historian. She saw a chiropractor for neck and headaches. She did not recall back pain prior to 1999.
11. Mr Richards relied on Martin v Australian Postal Corporation (1999) 29 AAR 420. At 432, Burchett J said:
In my opinion, Casarotto should not be understood as trenching upon the well accepted principle stated by Barwick CJ in Darling Island, but as an instance of minor injuries that did not produce any acceleration or significant aggravation of the underlying condition. …. Casarotto was quite a different case from the present case where Mr Martin’s asymptomatic condition was made symptomatic, not just for a time, but so as to continue increasingly to cause pain and disability thereafter.
12. In his submission, Ms Smith's asymptomatic condition was made symptomatic by her work duties. Further, Mr Richards said that it is an irrelevant consideration that the condition would have become symptomatic in any event. He referred to the extract from Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 at 26 - 27 (per Barwick CJ), which was cited in Martin at 431 and 432:
An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of the employment becomes in itself an injury within s 9 of the [Workers' Compensation Act, 1926]. ... If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker would have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease.
13. Mr Richards criticised Dr McGill and Dr Maxwell, who gave evidence at the request of Australia Post. He said that they appeared "in every Australia Post" matter. He criticised Dr Maxwell's opinion that physical activity or heavy work does not contribute to back conditions.
14. Mr Richards relied on the following medical evidence, as he summarised it. Dr Isaacs said that quite a lot of heavy manual work at night materially contributed to her lower back condition. Dr Browne said that there was an exacerbation of the underlying disease at the time of injury and that it was not unusual not to have symptoms at time of exertion but they normally occur within 24 hours. Professor Ghabrial said it was most likely that the symptoms and pain she suffered the morning after she had been working were related to the work the night before and over a period of 23 years. Without that contribution she may have remained asymptomatic for life.
CONSIDERATION
15. We agree with Mr Richards that Ms Smith is a not a good historian, although we accept she gave her evidence honestly. Consequently we consider that the contemporaneous records are the most useful evidence we have of what happened in March 2006.
Australia Post Records
16. From a contemporaneous email and file notes made by Australia Post officers, it is apparent that on the day that Ms Smith suffered the back pain and the next day, she said that she would not attend work for two days because she had woken up with a sore back and attended hospital. She intended to take sick leave. When asked if it was work related, she said that she was not sure because she could not pinpoint any incident. She had felt back pain for some months and it was only when she woke up that she experienced back pain. As the day went on she improved. She had changed her mattress without much success. She had not done anything to her back, only waking in pain in the morning. Ms Smith claimed that the hospital stated that it was most likely her work duties were causing the pain. When Ms Smith filled out a "P400" form, she said that she could not complete a number of sections because she did not know how the injury occurred, how it related to her duties, or when it occurred.
Mater Hospital Records
17. Records from the Mater Hospital in Newcastle show that Ms Smith presented at that hospital at 13.21 on 23 March 2006 with:
backache / unspecified, for 2-3 months, seeing chiropractor for same, last seen Thursday. States pain is much worse today.
She was ambulant, and unable to lie down without pain. She had lumbar back pain with occasional sciatica down right side which was associated with occasional stress incontinence. She had no history of injury. She was given panadeine forte.
18. An interim imaging report dated 23 March 2006 reported grade 2 spondylolisthesis of L5/S1 with a centimetre anterior migration of L5. A report dated 27 March 2006 - CT scan lumbrosacral spine – relevant findings bilateral pars interarticularis defects at L5/S1 and anterior displacement of L5/S1 for about 8.6 mm, i.e. spondylolisthesis – no prolapsed disk at L1 to L5.
19. The hospital records also record that Ms Smith had reported getting aches into the thighs and bladder control problems the previous year. Exercises for trunk stability and other exercises were recommended by a physiotherapist.
20. The clinical notes from the medical practice she was attending between 2004 to 2006 show that on 24 March 2006 Ms Smith had had low back pain problems for some months and had been seeing a chiropractor with little benefit.
21. Similarly, Ms Smith told Dr Beiers, the Australia Post facility nominated doctor, on 28 March 2006 that her back had been sore for several months, especially when she was working. That is the first time in the contemporaneous records that her work is mentioned in relation to her back pain. She also told Dr Beiers that she fell on stones in a creek in about August 2005 and her boyfriend fell on top of her.
22. We had evidence before us from a number of other doctors.
Dr Issacs
23. Ms Smith was referred to Dr Isaacs, orthopaedic surgeon, by her general practitioner. Dr Isaacs saw Ms Smith on 6 July 2006. He took a history of right thigh pain for six months when she had to stand for long periods, and that she developed pain in her lower back in January. He took no history of the March incident the subject of these proceedings. He considered that her symptoms were related to a structural type of lower lumbar instability with referred pain to the thighs. When he saw her again on 27 July 2006, he had an X-ray and an MRI study which confirmed pars defect and spondylolisthesis at L5/S1. Dr Isaacs concluded: “Obviously she is suffering from structural type of lower lumbar instability”. Ms Smith told him that the pain in her back and radiating pain into both thighs still bothered her. She "works as a mail officer and does quite a lot of heavy manual work at night". He recommended that she lose weight and continue with regular abdominal muscle strengthening exercise and regular swimming and observed: “With all this there is a good chance her symptoms will improve.” Contrary to Mr Richards' assertion, Dr Isaacs made no comment relating her symptoms to her work.
Professor Ghabriel
24. Ms Smith was referred to Professor Ghabrial, orthopaedic and spinal surgeon, for a medico-legal opinion. Ms Smith saw Professor Ghabrial on 18 October 2006. He provided two reports and gave oral evidence. In his opinion there was a probable connection between Ms Smith's symptoms in March 2006 and her work. He believed that, because Ms Smith's spondylolisthesis was long-standing, it would have remained "silent" if she had not developed the aggravation, although he had taken a history of previous incident relating to her back at work in October 1999 and February 2000, as well as symptoms increasing in late 2005. He said people doing heavy activities tend to develop symptoms or increased symptoms as a result of heavy activity. Further, in his opinion, it was not uncommon that people develop symptoms the day after an activity or within a few hours.
25. His notes had been destroyed in a flood in June 2007 and he had no recollection of how long after Ms Smith finished work the symptoms came on. He said that he understood what postal workers do, including working long shifts. Otherwise he could not answer the question what had Ms Smith told him at the referral. He said that he dictates reports while the patient is present.
26. During his oral evidence Professor Ghabrial said that there were two possible causes of pain: a stress fracture where there has been a weak attempted repair which can be subject to re-fracture, and the second possibility was disc protrusion on top of spondylolisthesis because the disc is vulnerable. As the MRI scan did not show disc protrusion, the pain was probably an injury to a fibro cartilage repair of a fracture.
27. In cross-examination it was put to him that her work on the day preceding the onset of pain was similar to her normal work except that the lifting component went for an additional 45 minutes. Professor Ghabrial responded that it had probably been building up and that was the last straw. He referred to a 12 hour shift. The clicking or clunking Ms Smith described was the catching of unstable vertebra.
Dr Browne
28. Dr Browne, rheumatologist, saw Ms Smith on 9 October 2006 for a medico-legal opinion and prepared two reports dated 26 October 2006 and 19 February 2007. He also gave oral evidence. In cross-examination he said that on the balance of probabilities one extra hour's work caused a slip or a progression of a slip in Ms Smith's spine. He did not have access to imaging reports before 2006. He also said that it may have occurred at any time, even if Ms Smith was doing nothing unusual in a shift. He did not have details of her work that night other than that she had worked longer hours doing heavy work. Although she said that she was opening parcels, he also assumed that she was also engaged in lifting mail bags and loading and unloading. He did not think it was the work relating to the parcels that had caused the back pain but rather other activities including handling mail bags and loading and unloading. He thought that there could sometimes be a delay in reporting symptoms within 24 hours.
Dr Maxwell
29. Dr Maxwell, orthopaedic and spinal surgeon, saw Ms Smith on two occasions for medico-legal opinion and prepared reports dated 29 March 2007 and 26 July 2007. He also gave oral evidence. When Dr Maxwell first saw Ms Smith on 29 March 2007, that is, a year after the incident the subject of these proceedings, she told him that she was working her normal hours doing normal duties. She saw him again in July 2007 following a flare up of pain on 26 June 2007 after she emptied a bag containing gold express mail. At that time, Ms Smith clarified the history taken by Dr Maxwell in March 2007, saying that the feeling she had when she pulled her right knee up in bed in March 2006 was a "clunk", that she was only off work for a few weeks at the time rather than two months, and that she was then on light duties for two months. When Dr Maxwell saw her in July 2007 she had been on reduced hours following the June 2007 incident and was gradually increasing from 4 hours for 2 days, 6 hours for 5 days and then 8 hours 10 minutes.
30. In Dr Maxwell's opinion, Ms Smith's peripheral nerve pain had nothing to do with her back. Rather, she also had mild meralgia paraesthetica involving her right thigh. That is also a constitutional condition. In his opinion, Ms Smith is subject to aggravation of the spondylolisthesis because she “is overweight, has poor tone of the trunk muscles and stands with a hyperdotic lumbar spine”. In July 2007 Dr Maxwell considered that Ms Smith's work caused an aggravation in June 2007 which had ceased. He agreed with a weight restriction of 15 kgs but did not consider that she should avoid excessive bending or twisting because physical activity was beneficial for her and helps to maintain muscle strength.
31. Dr Maxwell said that quite often people wake up with back discomfort. Ms Smith has done heavy work for 23 years with no real problems. Intermittent episodes are characteristic of the condition. In his opinion, it is fallacious that hard work wears out the spine. Rather, the spine is constantly healing. There are regenerative processes caused by physical activity.
Dr McGill
32. Dr McGill, rheumatologist, prepared two reports and gave oral evidence. He saw Ms Smith on 29 March 2007 for a medico-legal opinion. At that time she was not using any analgesic or anti-inflammatory medication, apart from the very occasional Nurofen. She sometimes applied Voltaren gel to her lateral thighs. He obtained from Ms Smith a history including that her chiropractor had obtained a back X-ray approximately 15 years ago and that he mentioned to her that she had "a spondylo".
33. Dr McGill said that he had not heard of the concept put forward by Professor Ghabrial that spondylolisthesis attempts repair by accumulating fibro cartilage and that Ms Smith's pain in 2006 was attributable to injury to that tissue. He did not know of fractures to fibrous tissue. In his experience, fracture is reserved for hard tissue. He said that it was a common circumstance in the case of mechanical problems in backs that there are acute flares of back pain.
34. He said that the proposition that the inflammation in pars defect of a spine accounts for severe pain is a largely untestable theory. In the case of mechanical problems in the spine, including spondylolisthesis, it is a common clinical story that a person feels fine and then has a sudden onset of pain. It commonly occurs when a person wakes up in the morning. Medical experts do not know what happens to cause those flares, but clinically, they settle down. He cannot be sure of the physiological process in mechanical back pain, but his preference was that it is movement that causes pain. Dr McGill did not consider that the sensation she had experienced in the proximal thighs was related to the spondylolisthesis.
35. During cross-examination Dr McGill said that he thought it unlikely that there was an association between Ms Smith's pain in March 2006 and her duties, on the basis of the history he had been given. He said that it was possible that, while doing physical activity, there is a slight movement at pars defect, but noting that there was no traumatic episode in this case, there would not have been a change in the structure of the back. In his view, most times flare-ups occur without any specific cause. It was suggested to him that Ms Smith did additional heavy work for a longer period the night before she suffered pain. Dr McGill repeated his opinion that the history he got was that Ms Smith was tired when putting mail bags onto a table or conveyor belt but not that there had been a substantial event. He did not believe it plausible that the activity she described caused an ongoing change in symptoms.
36. He also did not accept that 23 years of heavy physical work would have aggravated her condition. In his opinion, physical activity helps maintain muscle strength. Ms Smith’s work involved lifting 16 kg bags, not 75 kg bags, and had the potential to benefit her. Each of the two episodes in 1999 and 2000 would not have had any influence on subsequent symptoms, assuming that they were related to the pars defect and were not muscle strain.
1995 X-ray
37. Towards the end of the hearing, the X-ray report of Dr Wierna dated 20 April 1995 was tendered. This is apparently the X-ray Ms Smith told Dr McGill about. Relevantly, it reported:
An anterior spondylolisthesis by 1 cm is present at L5 on S1 and this is associated with a bilateral pars defect at L5. Degenerative disc space narrowing is noted at the L5/S1 level.
CONCLUSION
38. On the evidence, we find that the back pain Ms Smith suffered when she awoke on the morning of 24 March 2006 was caused by the spondylolisthesis. All the medical evidence supports that finding. She had been suffering back pain for some months before that, which was also caused by the spondylolisthesis. However, we do not accept that on 24 March 2006 there was an aggravation of that condition contributed to in a material degree by her employment. There was no temporary aggravation of her spondylolisthesis at that time caused by the nature and conditions of her employment, and no permanent worsening or acceleration of that condition caused by the nature and conditions of her employment.
39. Ms Smith did not have an asymptomatic condition that was made symptomatic by her work. She had been suffering from back pain for some months before the incident in March 2006, mostly when she woke up, and which got better during the day. Ms Smith's history of temporary aggravations caused by her work in 2000 and 2007 supports our findings. On each of those occasions something occurred when she was at work which caused pain. What occurred on 24 March 2004 was quite different.
40. The first time Ms Smith made a connection with her work was when she saw Dr Beiers, the Australia Post facility nominated doctor, on 28 March 2006. It is significant, in our opinion, contrary to Mr Richards' assertion, that Ms Smith's treating orthopaedic surgeon, Dr Isaacs, made no connection between Ms Smith's back pain and her work and no recommendations in relation to her work hours or duties. His suggested treatment was weight loss, regular abdominal muscle strengthening exercises every day, and some regular swimming. He thought that with those measures “there is a good chance her symptoms will improve”.
41. This opinion supports the views expressed by Dr McGill and Dr Maxwell that the back pain suffered in March 2006 was not work related. We prefer their evidence to that of Professor Ghabrial and Dr Browne. We also accept their evidence that Ms Smith's peripheral thigh pain is not related to the spondylolisthesis and is a constitutional condition.
42. The histories taken by Professor Ghabrial and Dr Browne were not detailed or accurate. We were not persuaded by Professor Ghabrial's explanation of the cause of pain in spondylolisthesis, preferring the evidence of Dr McGill on that question. We did not find the consideration carried out by Professor Ghabrial and Dr Browne convincing. The contemporaneous evidence, summarised above, shows that Ms Smith had been suffering back pain for some months before March 2006 and had been treated by a chiropractor. There is no evidence that, during that time, she herself made any connection between her work and her back pain. Professor Ghabrial's opinion was based on the spondylolisthesis having been “silent” before March 2006, which is not accurate. Dr Browne's opinion was based on some movement of the spine caused by Ms Smith's work. The 1995 X-ray showed the same degree of movement or displacement as those taken in 2006.
43. Given our findings, it follows that there is no compensation payable pursuant to s 16 and s 19 of the Act in relation to the back pain suffered in March 2006. In relation to an incident in September 1999, the only evidence before us is an incident report dated 23 September 1999 which refers to pain in the lower back which started while Ms Smith was opening and emptying mail bags, and which then got worse. There is no record of a compensation claim or acceptance of liability. There is evidence that liability was accepted in relation to low back pain on 10 February 2000 until 29 February 2000. It may be that Mr Richards was not pressing the claim in relation to the 1999 incident at the end of the case. In any event, we do not consider that there is any evidence before us that Ms Smith is entitled to compensation pursuant to s 16 and 19 in relation to the back pain suffered in 1999 and 2000, assuming we had power to make such findings.
DECISION
44. For the reasons set out above, the decision under review is affirmed.
COSTS
45. Given our decision, in our opinion there should be no order as to costs. The parties have 7 days from the date of this decision to advise if they wish to argue the question of costs. Otherwise, the order will be no order as to costs.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and, Dr MEC Thorpe, Member.………………[sgd]…………………
Signed: Steven Mulipola, Associate
Dates of hearing: 29 and 30 November 2007
Date of decision: 11 April 2008
Counsel for the Applicant: Mr D Richards
Solicitor for the Applicant: Slater & Gordon
Counsel for the Respondent: Miss R M Henderson
Solicitor for the Respondent: Graham Jones Lawyers
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