Wirth and Australian Postal Corporation (Compensation)

Wirth and Australian Postal Corporation (Compensation) [2017] AATA 784 (31 May 2017)
Division:GENERAL DIVISION
File Number: 2016/1414
Re:Mr Paul Wirth
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Member Regina Perton
Member Anna Burke
Date:31 May 2017
Place:Melbourne

The Tribunal affirms the decision under review.
............................[sgd]............................................
Presiding Member Regina Perton
WORKERS’ COMPENSATION – postal worker – aggravation of degenerative changes in cervical spine - whether ongoing incapacity or entitlement to medical expenses – conflicting medical evidence - decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 6, 7, 14, 16
CASES
Dunstan v Comcare (2011) 125 ALD 362
Re Keenan and Comcare (2009) 114 ALD 268
SECONDARY MATERIALS
REASONS FOR DECISION
Member Regina Perton
Member Anna Burke
31 May 2017
INTRODUCTION

Mr Paul Wirth has been employed by Australian Postal Corporation (Australia Post) since 1996, originally as a postal delivery officer and then promoted to a postal delivery co-ordinator Grade 1. On 1 July 2015 Mr Wirth submitted an incident report noting an injury to his right shoulder and wrist. On 12 November 2015 Mr Wirth first sought medical treatment for the injury and submitted a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on 13 November 2015. On 2 February 2016 the claim for compensation was rejected and this decision was affirmed under reconsideration on 2 March 2016. Mr Wirth is seeking that the decision under reconsideration be set aside and that liability for his injury to his shoulder and right arm be accepted.
A hearing took place on 20 and 21 March 2017. At the hearing, Mr Wirth was represented by Ms Angela Malpas of counsel, instructed by Robinson Gill Lawyers. The Australian Postal Corporation was represented by Mr Mark Seymour, solicitor-advocate, instructed by the Australia Post’s litigation section. Mr Wirth, Mr David de la Harpe, orthopaedic surgeon, Dr Ian Robertson, chiropractor and Dr Peter Stevenson, consultant physician, gave evidence before the Tribunal.
BACKGROUND
Mr Wirth is a full-time postal delivery officer presently employed at the Bundoora Delivery Centre, with over 20 years’ employment with Australia Post.
Prior to working at Australia Post, Mr Wirth worked for the City of Preston for 11 years as a waste collector, taking a redundancy when council amalgamations took place. Before that he was employed as a storeman and truck driver.
Mr Wirth has been in the workforce full-time since leaving school and whilst he has had accepted Workcover/workers’ compensation claims in the past, he has taken limited time off work for his injuries.
Prior to commencing work at Australia Post, Mr Wirth undertook a health status assessment in November 1995, where he advised that he had an existing neck and shoulder condition for which he had submitted a Workcover claim. The report states: “He has a history of neck and shoulder pains related to work injuries in the past. He is fit for his normal duties and does not require any ongoing therapy”.
Mr Wirth has a history of shoulder pain going back to 1981 which was first documented by Dr Roger Sutherland in a medical report of 13 February 1991.
Mr Wirth has had a series of Workcover/workers’ compensation claims in respect of shoulder and neck injuries including:
(a)Preston City Council 1992 – an accepted claim for shoulder pain;
(b)Australia Post 1998 – an accepted claim for bilateral biceps/pectoral tendonitis which ceased to have any activity by March 1999;
(c)Australia Post 2000 – an accepted claim for left AC joint sprain & bicep tendonitis which ceased to have any activity by October 2000;
(d)Australia Post 2006 – a rejected claim for his neck and right arm. He suffered the injury whilst reaching for files at the Diamond Creek Mail Centre and was on modified duties at the time, suffering from a foot complaint;
(e)Australia Post 2009 – an accepted claim for neck and upper thoracic spine, facet joint sprain, and tendonitis suffered whilst on a postal route. He was injured after stretching out to make a delivery to a box blocked by a parked car. Mr Wirth had about two weeks off work, resumed light duties part time and later returned to full time work. The claim ceased in July 2009; and
(f)Australia Post July 2013 – an accepted claim for lower back, right leg muscle strain with possible nerve involvement suffered whilst working as a postman which is still open. As a result of this injury Mr Wirth has developed depression and anxiety; he has been treated for pain management and has returned to work on alternative duties sorting mail.
In respect of the claim under consideration, the following are ‘key dates’:
(a)1 July 2015 – Mr Wirth reported an accident at work which resulted in an injury to his right shoulder, arm and wrist;
(b)12 November 2015 – Mr Wirth consulted his general practitioner, Dr MacDonald, to seek treatment for the pain which he claims was a result of the injury;
(c)13 November 2015 – Mr Wirth submitted a claim for compensation in relation to the injury which occurred on 1 July 2015;
(d)23 November 2015 – Mr Wirth had an X-ray and ultrasound on right shoulder;
(e)16 December 2015 – Mr Wirth had an MRI of his cervical spine;
(f)2 February 2016 – Australia Post rejected liability and did not accept Mr Wirth’s claim. Mr Wirth sought a reconsideration of this decision in accordance with Section 62 of the SRC Act;
(g)2 March 2016 – The reconsideration delegate of Australia Post affirmed the earlier decision of 2 February 2016; and
(h)18 March 2016 – Mr Wirth applied to the Tribunal for a review of the reconsideration delegate’s decision.
Mr Wirth contends that his condition is a result of the workplace injury of 1 July 2015 and that, given his current level of pain, his only option is to undertake surgery as recommended by his consultant orthopaedic surgeon, Dr de la Harpe.
Australia Post contends that the condition is not a result of an injury sustained at the workplace and that surgery is not required.
ISSUES
The Tribunal needs to consider the following relevant issues:
·has Mr Wirth suffered an injury,
·was it in the form of aggravation of a pre-existing injury and
·if so, is Australia Post liable to pay compensation?
RELEVANT LEGISLATION
The relevant provisions of the SRC Act are as follows:
5A Definition of injury
(1)       In this Act:
injury means:
(a)       a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or;
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
...
5B Definition of disease
(1)       In this Act:
disease means:
(a)       an ailment suffered by an employee; or
(b)       an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
6 Injury arising out of or in the course of employment
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
…
7 Provisions relating to diseases
(1)       Where:
(a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;
(b)the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and
(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.
(2)Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.
(3)Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed.
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
(5)The death of an employee shall be taken, for the purposes of this Act, to have resulted from a disease or an aggravation of a disease, if, but for that disease or aggravation, as the case may be, the death of the employee would have occurred at a significantly later time.
(6)An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a)       the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
…
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.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
EVIDENCE BEFORE THE TRIBUNAL
Mr Wirth
Mr Wirth provided a statement dated 3 February 2017 and gave evidence at the hearing.
Mr Wirth told the Tribunal that on 1 July 2015, whilst he was working at the Bundoora delivery centre sorting small parcels, he lifted a white bag out of the Colby and that the bag was overfilled and heavy. He described the bag as being about 4 feet long. At the time he felt numbness in his right shoulder and wrist so he reported the injury but did not seek treatment and returned to his normal duties.
At the time of the incident he was taking strong medication prescribed for his back injury, which was a result of an earlier work place incident for which he had been placed on alternative duties working the 3:00 AM to 11:30 AM shift, sorting mail and doing a local business postal distribution.
Mr Wirth advised the Tribunal that he was happy going to work and that that going to work takes his mind off his pain as it requires a great deal of concentration sorting mail. He said that he did not raise the issue with his doctor in the first instance as he did not want her to place him on sick leave.
Under cross-examination, Mr Wirth:
·Said that he had no recollection of what the parcel looked like other than that he could describe the white bags as all bags are four foot long and that the parcel would have been in excess of 16 kg as he had learnt to weigh things mentally over 18 years of work with Australia Post;
·Said that the pain was significant at the time of the incident otherwise he wouldn’t have bothered to fill in the 10 page incident report forms as they are a pain to fill in;
·Was asked why he did not discuss this incident with his doctor whom he saw on 1 July 2015, the date of injury. Mr Wirth described “an entertaining life of going to see doctors” and that he has numerous medical conditions which require significant medical attention. Mr Wirth had an appointment with his doctor on this day, possibly to receive updated prescriptions for pain management, but did not mention the incident to his doctor at the time as it was not front of mind;
·Conceded that he was upset with Australia Post at the time, that he had a love-hate relationship with Australia Post, saying that he “loves work but does not like management”. He did concede that, on the date of the incident, he advised Dr MacDonald that he was frustrated with sitting around doing nothing during his shifts as this was having an adverse impact on his mental health;
·Reiterated under cross-examination that he did not advise his doctor on the date of the injury as he did not want her to put him off work;
·Said that he finally went to see his GP on 12 November 2015 as the pain by this stage was becoming unbearable and that he could not sleep or swim. He described the pain as different from previous episodes and that it originally started out causing pins and needles but was now an unbearable pain. The pain was aggravated by doing anything;
·Was asked at length about why he had not indicated on his compensation claim that he had a pre-existing injury for which he had sought compensation. Mr Wirth asserted forcefully that he had not disclosed this on his form as he did not perceive the injury as being similar to his previous claim.
Medical evidence
Dr Roger Sutherland
Numerous medical reports from Dr Roger Sutherland, orthopaedic surgeon, from 1991, 1992 and 1995 were provided by Mr Wirth. During cross-examination Mr Wirth was asked about his extensive shoulder pain for which he had first sought the advice of Dr Sutherland in 1991. The numerous reports all indicate bilateral shoulder pain, which Mr Wirth first noted when playing water polo some ten years prior to consulting Dr Sutherland in 1991.
Dr IIeene MacDonald
Dr IIeene MacDonald, Mr Wirth’s long-standing GP, who has subsequently retired from practice, was not called to give evidence. The respondent made some contention of this, arguing that perhaps Dr MacDonald would not corroborate the injury as described by Mr Wirth. The Tribunal does not accept this assertion by Australia Post. Mr Wirth had sought to call Dr MacDonald and this request was opposed by Australia Post on the grounds that she had not provided a statement and therefore could do no more than speak to her notes which had already been provided under summons.
Dr MacDonald in a work ready report dated 12 November 2015 diagnosed right shoulder impingement syndrome, as a result of a work injury which occurred on 1 July 2015 and opined that Mr Wirth was fit for work on modified duties.
Dr Ian Robertson
Dr Ian Robertson, chiropractor, in a report dated 2 May 2016, stated he has been seeing Mr Wirth since 1994 for various conditions. He opined the incident of 1 July 2015 had caused or aggravated spinal level complexes involving C4-5 disc osteophyte complex, a right C5-6 broad based disc bulge and right C6-7 disc osteophyte complex. Dr Robertson indicated that Mr Wirth is in constant pain, that there is little or no relief and that his condition is getting worse. Dr Robinson concludes that something needs to be done and fears for Mr Wirth’s wellbeing as his life has been greatly compromised by the injury.
During Dr Robertson’s evidence at the hearing, he described how he does not perform any high velocity application to Mr Wirth and that he does no manipulation or mobilisation. He further described that whilst he is treating Mr Wirth, he sits him on a bench with his arms resting on a pillow so that there is no aggravation of his existing condition. The majority of his treatment on Mr Wirth is massage and ergonomic advice.
Dr Robertson was taken at length to numerous notes of his consultations with Mr Wirth over 23 years which amounted to some 415 visits. Dr Robertson advised that he had shared rooms with Dr MacDonald, Mr Wirth’s GP who had referred him for treatment.
Since 1994 Dr Robertson had seen Mr Wirth on numerous occasions for neck and shoulder injuries. It had been some time since he had seen Mr Wirth before he sought treatment on 27 November 2015 for unresolved right shoulder pain and numbness. Mr Wirth had advised that the pain component was increasing from shoulder to arm and that it had not resolved by itself. Dr Robertson identified a 21 day timeframe he usually hopes to see for such resolution of an injury but, in this instance, the numbness had become pain and that had not gone away.

Dr Robertson had undertaken proactive testing of reflexes and grips to ascertain the impact of the nerve damage on Mr Wirth. He opined that Mr Wirth’s injury was the result of the workplace accident, that it had exacerbated an underlying injury and had occurred when he rotated to lift the bag out of the Colby to prevent the bag from falling. The incident as described by Mr Wirth to Dr Robertson was consistent with the pain described and symptoms detected under examination.
Dr Robertson was of the opinion that surgery was an option as it would relieve the underlying chronic pain that Mr Wirth was experiencing, which is also having a detrimental impact on his mental health.
Mr David de la Harpe
Mr David de la Harpe, orthopaedic surgeon, provided a report to the hearing and gave evidence.
Mr de la Harpe opined in a report dated 7 June 2016 that Mr Wirth’s lifting injury has aggravated a pre-existing degenerative change in the cervical spine causing radiculopathy in the C6 and C7 distribution down the right arm. The nature of Mr Wirth’s injuries is that of foraminal stenosis in the cervical spine predominantly C5/6 and C6/7 causing most likely two radiculopathies in the C6 and C7 distribution. Mr de la Harpe opined the condition may improve with conservative treatment or surgery, and that Mr Wirth is significantly incapacitated by his injuries as he cannot drive or return to any work involving manual labour or the use of upper limbs for heavy lifting. He further opined that Mr Wirth’s injuries would have compromised his personal and recreational activities.
During Mr de la Harpe’s evidence, he asserted the incident described would have caused the injury and that, as conservative treatment has failed, surgery should be considered. He also stated that, whilst long-standing degeneration was present, the symptoms had been aggravated by the workplace injury.
Mr de la Harpe did agree that there were always risks to undertaking surgery such as wound infection, nerve or spinal cord damage, or undertaking an anaesthetic. Furthermore, Mr de la Harpe stated that fine nerves can be stretched causing impacts on vocal cords and the patient would obviously need to be fit for surgery. Mr de la Harpe noted that this would obviously need to be considered in light of Mr Wirth’s recent open heart surgery. However, given the long-term impact of the nerves under pressure, surgery would need to be considered to ensure permanent nerve damage was avoided.
Dr Peter Stevenson
Dr Peter Stevenson, consultant physician, provided a report to the hearing and gave oral evidence.
Dr Stevenson saw Mr Wirth at the request of Australia Post on 1 February 2016. He opined that there was no clear evidence of injury but there did appear to be age related degenerative disc disease of the cervical spine and no evidence of an underlying condition substantially aggravated by employment with Australia Post. Dr Stevenson opined that Mr Wirth’s work is repetitive but not forceful as most of his work is done at or below shoulder height, where there is no potential to injure the neck or cause or aggravate cervical degenerative disc disease. That injuries identified in MRIs and CT scans were conditions both caused by genetic disposition and the ageing process. In a second report dated 17 November 2016 he opined that nothing has changed, that he still does not support surgery and that Mr Wirth is capable of doing all his duties.
During Dr Stevenson’s evidence he reiterated there was no evidence that Mr Wirth’s work activities would have applied enough force on his neck to cause the disc pathology, that degeneration would have occurred regardless and that surgery was not warranted for this injury.
Dr Stevenson advised that surgery was most unwise, that cervical disease was present at the time of injury, and that the incident could not have caused the injury. He also stated that numerous studies have demonstrated surgery is not ideal for individuals who are seeking compensation and are suffering from indiscriminate pain.
CONSIDERATION
Mr Wirth’s counsel, Ms Malpas, contends that Mr Wirth’s condition meets the requirements under s 5A(1)(c) of the SRC Act, as it was an aggravation of physical injury which arose out of his employment.
Ms Malpas contends that this submission is supported by Mr Wirth’s long-term history of neck and shoulder pain as documented by his chiropractor, Dr Robertson, and his general practitioner, Dr MacDonald. The neck injury is identified at the C6 nerve root which is irritating the nerve fibres and producing pain. Mr Wirth made Australia Post aware of his neck and shoulder injuries before he commenced work with the organisation. Counsel noted that Mr Wirth has an excellent work history and has always returned to work post-injury and undertaken alternative duties.
Ms Malpas further contends that Mr Wirth’s condition could be assessed under s 5B(3) of the SRC Act as his ailment has been significantly impacted by his employment with Australia Post.
Ms Malpas contends that this submission is supported by Mr Wirth continuing to attend work before he sought treatment as he was used to going to work as a coping mechanism to deal with his underlying injuries. Mr Wirth had reported no pain for five years prior to this incident and did not consult a doctor until he was unable to cope with the pain.
Ms Malpas cited the case of Re Keenan and Comcare (2009) 114 ALD 268, in which the Tribunal found that Comcare was liable for Ms Keenan’s disc protrusion, stating at 282-283 that:
The tribunal finds that; either Ms Keenan’s disc protrusion is an injury which arose out of, or in the course of, her employment as a bus driver; or that her neck condition is a disease, being an ‘ailment’ an ‘aggravation of an ailment’… and the tribunal is satisfied that Ms Keenan’s employment contributed to that condition to a significant degree.
Ms Malpas suggested similarities between the Keenan case and Mr Wirth’s claim, in that Ms Keenan’s injury was of long-standing and the disc bulge had occurred without much force being applied to her neck.
The advocate for the respondent, Mr Seymour, said Mr Wirth’s condition was of long-standing degeneration and that no physiological change had occurred to cause an injury. As such, the injury could not be defined under s 5A of the SRC Act. Section 5B of the SRC Act could be considered if it were not for the long-standing history of Mr Wirth’s neck and shoulder injuries, dating back some 30 years. He contended that Keenan’s case was not applicable in Mr Wirth’s circumstances as Ms Keenan’s injury was only of three years standing. Furthermore, the evidence in Keenan’s case was that the action was continual, not a one-off incident as in Mr Wirth’s case and that continual violent moving of the bus contributed to her injury.
Mr Seymour submitted that it would take a big assumption that the injury was due to work aggravation and that there was no evidence to support that work contributed to the injury. Further, he contended that Mr Wirth had compounded the situation by not consulting his doctor for several months after the injury.
Mr Seymour took issue with Mr Wirth’s recollection of events, citing that he had not disclosed his long-standing issues of shoulder and neck pain, nor his previous compensation claims in the claim under consideration. He highlighted that Mr Wirth had seen his doctor on the date of the injury and that he had not mentioned the incident to his doctor. Mr Wirth had failed to seek treatment for the injury and did not submit a claim for several months after the incident. Mr Seymour did not go as far as indicating section 7(7) of the SRC Act did apply but the implication from the respondent was evident.
FINDINGS
The medical evidence clearly indicates that Mr Wirth is suffering cervical spine injury causing radiculopathies in the C6 and C7 distribution. The clinical presentation of this is pain and numbness in the right shoulder, arm and wrist. The Tribunal finds that this is the appropriate diagnosis of Mr Wirth’s condition.
For Mr Wirth’s spinal condition to fall within the definition of an ‘injury’ in section 5A of the SRC Act, it must have arisen out of his employment with Australia Post, that is to say, there must be a causal relationship between the injury and the workplace.
For Mr Wirth’s spinal condition to fall within the definition of a ‘disease’ in section 5B of the SRC Act, the ailment or aggravation of an ailment must have been contributed to a significant degree by his employment with Australia Post. Section 5B(3) of the SRC Act defines ‘significant degree’ as a degree that is substantially more than material. The Full Court of the Federal Court in Dunstan v Comcare (2011) 125 ALD 362 at 371 found material contribution of employment to the disease requires the employee to be “able to point to his or her employment as a factor that operated actively to bring about the condition.”
The Tribunal was unable to conclude that Mr Wirth’s condition met the requirements of section 5A or 5B of the SRC Act, as the evidence before the Tribunal did not conclusively indicate a factor or event that operated actively to bring about his cervical spine condition.
The Tribunal finds Mr Wirth to be a credible and reliable witness who is dedicated to his work with Australia Post. The Tribunal did not find that Mr Wirth had wilfully or falsely represented that he did not suffer from an existing neck or shoulder injury.
The Tribunal was troubled by the length of time Mr Wirth took to seek medical attention for the injury he sustained on 1 July 2015 and this did give rise to a question of whether his disease was exacerbated by this one instance.
The Tribunal also finds Mr Wirth’s description of the actual injury sustained on 1 July 2015 has not been consistent. Mr Wirth did not report the injury to his general practitioner, Dr MacDonald, when he saw her on 1 July 2015, nor did her notes of 12 July 2015 indicate that Mr Wirth observed he had twisted in the act of lifting the bag out of the Colby. However, Dr Robertson did testify at the hearing that Mr Wirth had described a twisting action when he lifted the bag out of the Colby. These inconsistencies were not reconcilable and gave weight to the view expressed by Dr Stevenson that the injury Mr Wirth reported on 1 July 2015 could not have resulted in a workplace injury for which Australia Post is liable to pay compensation.
The Tribunal accepts that Mr Wirth is suffering from a disease which is causing excessive pain and he believes his only option is to undertake surgery to alleviate these ongoing symptoms. There was insufficient evidence before the Tribunal that demonstrated surgery would provide Mr Wirth with relief from his pain.
On the balance of probabilities taking account of the factors cited above and on the available evidence, the Tribunal is not satisfied that Mr Wirth’s injury on 1 July 2015 contributed to a significant degree to his current neck and shoulder disease. The evidence of Mr Wirth’s long standing cervical spinal condition, of which he had complained of neck and shoulder pain for over 20 years and for which he had sought medical assistance prior to his employment with Australia Post, weighed against the conclusion that the incident of 1 July 2015 was compensable.
There was insufficient evidence to demonstrate that the one-off act of lifting an overfilled bag out of the Colby could have produced such extreme force on Mr Wirth’s neck to cause significant disc bulge. The incident reported on 1 July 2015 did not demonstrate a significant degree of impact from his work to enliven a compensable ailment or aggravation claim.
Whilst Mr Wirth’s duration of employment with Australia Post and the nature of his work may have been factors which could give rise to such an injury, Mr Wirth’s predisposition, his previous sporting activities and his other underlying health complaints could also have contributed to the aggravation of an already existing condition.
Further there is no conclusive evidence that the surgery Mr Wirth is seeking will resolve his substantial pain issues.
The Tribunal finds that Mr Wirth’s work at Australia Post was not a significant contributor to the aggravation of his cervical spine condition, presenting as neck and shoulder pain.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 58 paragraphs are a true copy of the reasons for the decision herein of Member Regina Perton and Member Anna Burke

.............................[sgd]...........................................
Associate
Dated: 31 May 2017

Dates of hearing: 20 - 21 March 2017

Counsel for the Applicant:

Solicitors for the Applicant:

Solicitor-Advocate for the Respondent:

Solicitors for the Respondent:

Ms Angela Malpas

Robinson Gill

Mr Mark Seymour

Australian Postal Corporation Litigation Section

[2017] AATA 784

31 May 2017

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Appeal