Sum Thi Huynh and Australian Postal Corporation

[2014] AATA 418

[2014] AATA 418

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4248, 2013/5500, 2014/1918
Re	Sum Thi Huynh
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member Dr M Couch, Member
Date	26 June 2014
Place	Sydney

The Tribunal affirms the decisions under review.

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Ms N Bell, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth Employees – whether applicant continues to suffer the effects of her injury – degenerative condition – whether lower back condition aggravated by incident – whether the nature and conditions of applicant's work significantly contribute to her back condition – decisions under review affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr M Couch, Member

26 June 2014

1. Sum Thi Huynh began working for Australia Post in 1985. By August 2011, she was working as a mail officer at Australia Post premises in Alexandria.

2. Ms Huynh has made three applications to the Tribunal. The first concerns events on 8 August 2011. Ms Huynh was working near a ULD (unit loading device) when the gate of the ULD struck her back. Ms Huynh contends that the blow from the gate caused her continuing pain in her lumbosacral area and later in her left leg. Australia Post accepted liability for this injury, but later decided that its effects had ceased by 10 May 2012.

3. An x-ray taken in April 2010 showed mild changes in Ms Huynh’s lumbar spine. On 9 August 2011, the day after the incident, an x-ray of Ms Huynh’s lumbar sacral spine showed mild multilevel degenerative disc disease. There is no dispute that, prior to August 2011, Ms Huynh had a degenerative spine.

4. The second application made by Ms Huynh concerns a claim of aggravation of her back condition when, on 30 January 2013, she experienced pain and/or stiffness in her lower back when she lifted a parcel with another employee. Australia Post denied liability for this claim.

5. The third application concerns her nature and conditions claim, on 7 February 2014, for her lower back. Australia Post denied liability for this claim.

6. The issues that arise in these applications are:

   (i)Does Ms Huynh still suffer the effects of her injury on 8 August 2011?

   (ii)Was Ms Huynh’s lower back condition aggravated by the incident on 30 January 2013?

   (iii)Did the nature and conditions of Ms Huynh’s work significantly contribute to her back condition?

   DOES MS HUYNH STILL SUFFER THE EFFECTS OF HER INJURY ON 8 AUGUST 2011?

7. Ms Huynh’s evidence was that on 8 August 2011 she was squatting to pick up a bag of mail, with her back to a ULD, when the gate of the ULD, the hinges of which were at about Ms Huynh’s knee height, fell onto her lower back. She said it caused her pain and shock and that it scratched and bruised her back. Her account of events was confirmed by Phan Lin, a co-worker. Ms Huynh said she had experienced no back pain or any problems with her duties prior to this incident. She said “… before the – my accident, I have been completing my job quite happily and without any pain or difficulty.” (Tr. p.14)

8. Ms Huynh said that after completing an incident report she went home. On the next day, she saw her general practitioner, Dr Lam, who certified her for three days off work. Ms Huynh said she continued to have pain in her lumbosacral area and took the medication Dr Lam had prescribed for her. She returned to work after three days with restrictions certified by Dr Ma, general practitioner. She said she continued to work full hours with incrementally decreasing weight restrictions. She said she has never been without pain in her back since the incident in August 2011.

9. Ms Huynh said that she began to experience pain and numbness radiating down her left leg and, while she was unsure of how much time passed after the incident before she first experienced that pain and numbness, she first reported it to Dr Ma in December 2011.

10. We note that in a report dated 16 December 2011 to Ms Huynh’s rehabilitation provider, Dr Robin Chase, occupational physician, said Ms Huynh’s weight restriction of five kilos and restrictions on bending and twisting and allowance for regular postural changes remained appropriate. He considered the degenerative changes in Ms Huynh’s facet joints at L4/5 and L5/S1 or the small disc bulge at L4/5 as possible pain generators and noted radicular symptoms but no evidence of radiculopathy. He estimated a small possibility that Ms Huynh would be left with a need for permanent restrictions in the order of eight or ten kilograms. He also suggested a left sided foraminal injection as a possible remedy for her leg pain.

11. Ms Huynh eventually had the suggested cortisone injection, under the care of Dr Simon McKechnie, neurosurgeon, in June 2013. She said she felt improvement in her back and leg. However, she also reported a change in her medication shortly after the injection. Ms Huynh said she still suffers from symptoms in her back and leg and would not be able to perform unrestricted duties.

12. The 2010 x-ray of Ms Huynh’s spine was at the direction of her chiropractor, William Duong. Ms Huynh said she consulted him in relation to her neck and had no complaint about her back at that time. Mr Duong’s notes were incomplete, but they indicated no complaint of back pain.

13. Dr James Bodel, orthopaedic surgeon, considered that the blow to Ms Huynh’s back caused a contusion that would have resolved in six to eight weeks, caused no structural damage and was not responsible for her continuing symptoms. He considered that Ms Huynh’s ongoing symptoms are the result of an abnormal disc which exists independently of the incident in August 2011. He said it was unusual for leg pain to follow some months after the event.

14. Dr McKechnie, Ms Huynh’s treating neurosurgeon, considered that the onset of Ms Huynh’s back and left leg symptoms were due to a combination of the incident in August 2011 and the nature and conditions of her work, although his initial opinion had been that the August 2011 incident had been the cause, on its own, of her symptoms. He said he based this view on the fact that, prior to this incident, Ms Huynh had never complained of any symptoms. He said it was less common but still possible for leg pain to follow from spinal damage some months after the event.

15. However, and in contrast to the opinion of Dr Bodel, Dr McKechnie considered that the incident in August 2011 could have caused not only contusion but also a disc protrusion, depending on the force of the blow. But Dr McKechnie also allowed that a disc protrusion can occur spontaneously or as a result of ordinary day to day movement not associated with work.

16. Dr Neil McGill, rheumatologist, was also of the view that the blow suffered by Ms Huynh in August 2011 would have resolved in six to twelve weeks and caused no structural damage to the spine.

17. The balance of the expert medical evidence is against continuation of the effects of the August 2011 incident. We prefer the opinions of Drs Bodel and McGill that the effects of the August 2011 incident would have resolved by, at the most, twelve weeks later.

    WAS MS HUYNH’S LOWER BACK CONDITION AGGRAVATED BY THE INCIDENT ON 30 JANUARY 2013?

18. Ms Huynh’s evidence was that on 30 January 2013 she was lifting a parcel with another person and her pain increased. She said she took two days off and her pain decreased after taking medication. She said she already had back pain that day before she lifted the parcel. She said that since January 2012, her symptoms in her back and leg would fluctuate regardless of her activity, sometimes being severe and sometimes not being there at all.

19. Some confusion arose from the initial approach to the claim that was taken by Australia Post personnel and by Ms Huynh that Ms Huynh’s back condition, as she experienced it in January 2013, was the result of the incident in August 2011. We have rejected that proposition, in line with the opinions of Drs Bodel and McGill.

20. Dr Bodel and Dr McKechnie offered no opinion on the lifting incident on 30 January 2013.

21. Dr McGill considered that a person could experience discomfort when lifting a heavy or light object, but that discomfort does not mean that the underlying state of the back has been affected. He considered that the lifting of five to seven kilograms would not influence her back. He considered her lifting restriction at that time, five kilograms, to have been excessive. Dr McGill noted the normal fluctuation of symptoms of a degenerate back and concluded that these duties would not cause disc damage.

22. Much was made of the restrictions on lifting that had been placed on Ms Huynh and the fact that she lifted an unspecified weight, described by her as “heavy” with another person when the incident took place.

23. In view of Dr McGill’s evidence, we do not consider that an aggravation, in the sense of a change to the underlying structure of her back, took place.

24. We were urged in the alternative to view the lifting incident in January 2013 as a new injury – an injury simpliciter. In view of Ms Huynh’s evidence that she was already experiencing pain in her back on that day before she lifted the object and that the pain in her back would fluctuate, sometimes being severe and sometimes not being there at all, we do not regard the pain she experienced on 30 January as a new injury or injury simpliciter.

    DID THE NATURE AND CONDITIONS OF MS HUYNH’S WORK SIGNIFICANTLY CONTRIBUTE TO HER BACK CONDITION?

25. In a supplementary statement Ms Huynh detailed her pre-August 2011 duties in relation to opening and upending bags of mail of up to 16 kilograms each, working on the BCS automated sorting line, dealing with Express Post duties and mail processing. After some clarification of the duties concerned with Express Post, it was apparent that Ms Huynh’s duties required her to bend, twist, and lift up to 16 kilograms at a time.

26. At the close of her supplementary statement, and in some contrast to her oral evidence, Ms Huynh said:

    All of the above work was very physically demanding and at times cause [sic] me to feel discomfort in my back, but apart from telling my husband, I simply endured it and got on with work until the incident when I was struck with the ULD door.

27. Dr Bodel’s opinion was that if there was a contribution by work activities to the abnormality of Ms Huynh’s disc then it was more likely to be due to the nature of her day to day work than to the event in August 2011 which caused a contusion. However, Dr Bodel also allowed that the disc is influenced by the ageing process. He noted that Ms Huynh’s degenerate back was asymptomatic until “an event” at work. Having excluded the August 2011 event as a cause, he was pressed as to what event was the culprit. In answer, he referred to a “bending/lifting/twisting event”. At the same time, Dr Bodel agreed that a person with a degenerate disc could go through life with no symptoms or, on the other hand, could begin to be symptomatic spontaneously. When taken in detail through each of the activities described by Ms Huynh in her supplementary statement, Dr Bodel did not identify any one of them as particularly problematic, but said that the issue is a complex one.

28. Dr Bodel considered that Ms Huynh’s duties, which he had not been apprised of in detail but knew involved bending and twisting, were a probable contributor to her back and leg symptoms. His opinion seemed to rest on a temporal connection – but with no reliance on the August 2011 incident.

29. Dr McKechnie provided little assistance in relation to the nature and conditions of Ms Huynh’s work. He maintained his position that the August 2011 incident caused the disc damage. He said nothing in his reports and little in oral evidence about the nature and conditions of her work.

30. Dr McGill considered that the type of work Ms Huynh was performing would not influence her lumbar disc. He said:

    There’s certainly no evidence from the literature that that sort of work makes any difference to the development or progression of degenerative disc disease. …[T]hese sorts of disc changes are extremely common in the general community, including disc protrusion. The factors that influence the likelihood of people developing – the most important two by far are inheritance and age.

    (Tr. p.117)

31. Dr McGill allowed that extremely heavy lifting may make a difference to the progression of a degenerate spine.

32. We are not assisted by the evidence of Dr McKechnie. Dr Bodel’s opinion in relation to the role of the nature and conditions of Ms Huynh’s work did not persuade us that, on the balance of probabilities, rather than as a mere possibility, Ms Huynh’s back condition was significantly contributed to by her employment. He did not point to any particular aspect of her duties, as described by her, that caused him concern. We prefer the view of Dr McGill who supported his opinion that such a contribution was unlikely by reference to studies and the prevalence of age and inheritance as factors influencing the progression of degenerative disc disease.

33. We do not consider that the nature and conditions of Ms Huynh’s employment significantly contributed to her back condition.

    DECISION

34. The Tribunal affirms the decisions under review.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr M Couch, Member.

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Associate

Dated 26 June 2014

Date(s) of hearing	27 November 2013, 22-23 April 2014
Counsel for the Applicant	Mr P Stockley
Solicitors for the Applicant	Carroll & O'Dea Lawyers
Counsel for the Respondent	Mr M Gollan
Solicitors for the Respondent	DLA Piper