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Lucas and Australian Postal Corporation [2003] AATA 1238 (9 December 2003)

Last Updated: 9 December 2003

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2002/298

Date 9 December 2003

Place Canberra

Decision

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - cervical disc degeneration -aggravated by motor accident - hand injury - diagnosis not tendonitis -hand symptoms caused by cervical disc degeneration

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) ("ailment", "aggravation", "disease", "injury"), s 14(1), s 16 and s 19.

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Oudyn v Australian Postal Corporation (2003) 73 ALD 659

RESULT

BACKGROUND

1. On 30 April and 28 August 2001 Nicholas Michael Lucas ("the applicant") sustained work injuries. On 9 May 2001 (T23)[1] he sought compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act")[2]

http://www.austlii.edu.au/au/legis/cth/consol_act/sraca1988368[/]

from the Australian Postal Corporation ("Australia Post", "the respondent") because of a tendon strain in his left hand occurring on 30 April 2001. On 30 August 2001 (T38) Mr Lucas claimed compensation from the respondent under the Act because he injured his left shoulder and left side of neck when he lost control of his motor cycle while delivering mail.

2. Australia Post readily admitted liability under s 14(1) of the Act for the neck and shoulder injury (T41).. It eventually admitted liability for the hand injury (T43). However, on 6 May 2002 Australia Post determined (T82) that that it had ceased to be liable to pay compensation in respect of both the hand and upper body conditions. This was confirmed on 17 July 2002 (T92) in the reviewable decision that resulted in this application to the Administrative Appeals Tribunal ("the tribunal"). Australia Post was of the view that any condition Mr Lucas now suffers is constitutional and degenerative.

ISSUES

3. The issues are:

(a) Has Mr Lucas suffered an injury under the Act?

(b) If the answer to (a) is yes, do the effects of that injury persist such as to justify payments of compensation sought by Mr Lucas?

4. It should be noted that recent Federal Court authority, Australian Postal Corporation v Oudyn (2003) 73 ALD 659 held that, with a few exceptions not applicable here, once Australia Post has accepted liability under s 14(1) of the Act Australia Post cannot determine that the effects of the compensable injury have ceased. The respondent can, however, determine that the employee does not qualify for one or more types of compensation under the Act, eg s 16 (for medical expenses) or s 19 (weekly payments to make up for income). I will treat the reviewable decision in this matter as a decision to the effect that Mr Lucas did not qualify for compensation payments under ss 16 and 19 on the dates of the primary and reviewable decisions, and continuing.

5. On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413. While there is strictly no onus of proof in matters before the tribunal an evidentiary onus can arise. This occurs where it is in the interests of a party to have the tribunal accept the wisdom of a state of affairs beneficial to that party. If the interested party does not adduce material favourable to its cause it runs the risk that the tribunal will not be motivated to find in that party's favour. In the present case Australia Post bears such an evidentiary onus in that it has sought to cease paying compensation to Mr Lucas. Australia Post will want to convince the tribunal that it should endorse the position it has taken.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A) Has Mr Lucas suffered an injury under the Act?

6. Australia Post accepted that Mr Lucas had suffered injuries to his left hand, shoulder and neck, all injuries occurring in 2001. All were regarded as frank injuries arising out of or in the course of employment rather than aggravations of underlying disease to which employment made a material contribution. These observations flow from T41 and T43..

7. The answer to (a) would therefore appear to be yes. However, the thrust of the respondent's case before the tribunal was that all of Mr Lucas's symptomatology emanated from problems in his cervical spine that are of a constitutional, degenerative nature unrelated to his work. Mr Whybrow (Mr Lucas's counsel) argued that Mr Lucas suffered from soft tissue injury/tendonitis of the left hand in and after April 2001 and from a neck injury in August 2001.

8. Mr Lucas's evidence regarding the causes and histories of his injuries was as follows. He saw the hand injury of April 2001, which he described as pain in the skin webbing between the left thumb and forefinger, as caused by his use of Australia Post's "V sort frame", more correctly the "vertical slot sorting frame" (ex R3). He said the V sort frame was introduced late in 2000 or in 2001. He described for the tribunal the hand and arm movements required to sort mail in this frame and mentioned that this occupied at least three hours, commonly up to five hours, and sometimes six hours, in a work day. The condition was not assisted by physiotherapy. Mr Lucas was placed on restricted duties.

9. In August 2001 Mr Lucas came off his Australia Post 110cc motor cycle. He still had problems in his left hand and arm and was on restricted duties. The pain was from below his elbow to the top of his hand on the top of his arm. As he rode over wet and slippery logs partly submerged in the ground the cycle slid from under him. He did not fall. He held on to the handlebar with his left hand. He said he wrenched his shoulder and felt immediate pain in his shoulder and neck. In the following weeks Mr Lucas says he had pain over the entire left arm with pins and needles down certain fingers.

10. Mr Lucas said that he had suffered from sciatica before these incidents but that he had had no neck problems.

11. At the time of the hearing Mr Lucas was performing his full pre-injury duties but he was doing no overtime. He has restrictions affecting lifting and repetitive actions. He has no current treatment but has constant pain in the left shoulder, neck and hand.

12. In cross-examination Miss Henderson (counsel for Australia Post) established it as unlikely that Mr Lucas's left hand pain had commenced shortly after introduction of the V sort frame. Mr Lucas's first medical treatment for his left hand tendon strain was on 8 May 2001 (T23). Miss Henderson advised the tribunal that her instructions were that the V sort frame was introduced in July 1999.

13. As regards the neck and shoulder conditions, Miss Henderson put to Mr Lucas that he had reported these symptoms to his general practitioner, Dr Buczynski, on 16 and 23 May 2001 (ex R5), whereas the motor cycle event occurred on 28 August 2001. Mr Lucas conceded that he probably did have these symptoms at that time.

14. Miss Henderson also asked Mr Lucas about inconsistencies relating to the site of his hand pain in April 2001. He told Dr Buczynski his index, middle and ring fingers were affected (T22) whereas he had told the tribunal that it was the webbing between the thumb and index finger. Mr Lucas explained that the pain in the webbing was the worst, that the pain in the fingers was intermittent and that the webbing pain fluctuated but never disappeared.

15. Mr Lucas told the tribunal that the pain he attributes to the motor cycle accident has never disappeared, although the injury settled. Miss Henderson indicated the history he gave Dr C J Andrews, a neurologist (T79), where he said that his shoulder injury had settled. Mr Lucas replied that the left shoulder pain he now has differs from the earlier pain. He now has pain across the top of the left shoulder, into the left side of the neck, down his left arm and into his left hand. Mr Lucas had two weeks off work after the cycle accident. The pain remained regardless of work.

16. As regards current medications Mr Lucas takes Panadeine Forte infrequently. He takes Tramal with 20 tablets lasting two months. He had last taken medication for pain two weeks before the hearing. Mr Lucas said he finds that no particular activity brings on pain and that the onset and severity of pain varies. Pain can come on during sleep. He said he is never without some pain.

17. Turning to the available medical evidence I note that Dr Andrews referred Mr Lucas for an MRI scan which was carried out on 18 December 2001 (T69) and showed a large disc protrusion and nerve root entrapment at C6-7 in the cervical spine. He considered in oral evidence that the motor cycle accident could have contributed to these findings. There were, however, no indications of any shoulder injury - there had been no rotator cuff tear affecting the shoulder as the ultrasound dated 28 September 2001 (T45) revealed no tear. Dr Andrews understood Mr Lucas not to have fallen to the ground in this incident. He thought Mr Lucas had strained his left shoulder and neck by "saving" the motor cycle. Dr Andrews told the tribunal that C6-7 nerve entrapment affects the arm and central fingers and a C5-6 entrapment would affect the front of the arm to the thumb. He thought it unusual to hear of thumb-forefinger web pain as related to nerve root irritation and he had no explanation for these symptoms. Mr Lucas's reported paraesthesia was consistent with C6-7 pathology. He said that the degenerative changes indicated by the MRI were very mild.

18. Dr R D Whittaker, a rheumatologist, considered in oral evidence that the C6-7 pathology explained the spread of Mr Lucas's symptoms. He allowed that the motor cycle event in August 2001 could have worsened the shoulder and neck symptoms. However, he said that any aggravation was minor. There would have been a "tractional" force on the nerve when he saved the motor cycle. He regarded pain in the thumb-finger webbing as significant in indicating nerve root impingement. As regards Mr Lucas's cervical disc degeneration, an x-ray dated 8 August 2001 had shown a small amount (T72/185) whereas the MRI scan had demonstrated significant degeneration. The C6-7 disc protrusion was consistent with there being disc degeneration predating the August 2001 trauma. Degenerated discs can herniate spontaneously without the need for a frank injury. In cross-examination Dr Whittaker agreed that there can be a frank injury involved when a cervical spine disc protrudes. However, he said that a spontaneous protrusion is more likely where the degeneration is more extensive. Here the MRI showed a considerable degeneration even if the x-ray did not. Further, he said that only certain types of frank injury can affect the cervical spine. These could involve examples such as a rapid deceleration in a motor vehicle accident, a rugby tackle where the head is wrenched and rotated suddenly or a diver hitting his or her head on the bottom of a pool.

19. Mr Lucas's history for Dr Whittaker suggested that his left hand symptoms had a gradual onset from March 2001 (T72/189). Dr Whittaker was quite firm in his evidence that the hand symptoms stemmed from nerve root entrapment. He said that Dr Andrews' description of pain spreading up the arm and into the shoulder girdle and neck (T33) was consistent with cervical spine disease and not tendonitis, a diagnosis suggested by Dr Andrews (T33).

20. Dr R Schellenberger, a general surgeon, disagreed with Dr Whittaker. She thought that the motor cycle accident could produce a cervical disc injury generating Mr Lucas's symptoms. She said that Dr Whittaker's examples of events that could cause cervical disc injury were incomplete (see [18] above). There are other instances where "maximal force to the neck" can occur. She said that much can depend on what the victim does in response to the injury, eg whether he or she turns. She said that there are always "multiple forces" and movements involved in any accident. She agreed that the imaging studies showed degenerative changes in Mr Lucas's cervical spine that were present before the motor cycle injury.

21. Dr Schellenberger had in her first report (T40) thought Mr Lucas may have had a rotator cuff tear in the shoulder. A later ultrasound had shown this not to be so. He has bursitis but, as Dr Whittaker said in T72, that abnormality was irrelevant to the matter currently before us. Dr Schellenberger saw the bursitis as possibly causing pain when the arm is lifted to 90 degrees.

22. Dr J M Matheson, a neurosurgeon, differed from Dr Whittaker in his interpretation of the MRI scan done on 18 December 2001 (ex R2). He saw no C6-7 disc prolapse. He did see a minor abnormality at C5-6, disc degeneration consistent with Mr Lucas's age (42). He diagnosed no significant neck or back condition. He agreed in oral evidence with Dr Whittaker that thumb-finger web pain would emanate from the C6 nerve root. In oral evidence he agreed also with Dr Whittaker that the motor cycle accident could not have affected Mr Lucas's neck. He said that there was no way he could see how the neck could be wrenched in the accident as described to him by Mr Lucas. He agreed with Dr Whittaker that C6-7 pathology would cause paraesthesia in the middle three fingers with possible involvement of one of the other fingers. He explained that the nerves affecting the fingers are from C6 as regards the thumb and index finger, from C7 as regards middle finger and from C8 as regards the ring and little fingers.

23. The tribunal finds that Mr Lucas suffers from disc degeneration in the cervical spine and from a disc prolapse involving nerve entrapment at the cervical C6-7 level. Dr Whittaker was an impressive witness who presented to the tribunal the most comprehensive, best conceived set of explanations for Mr Lucas's symptoms. He was able to explain how Mr Lucas's account of the symptoms affecting his left hand and arm were consistent with pathology at the C6-7 level and how they were inconsistent with the diagnosis of tendonitis. He was also able to explain credibly that Mr Lucas's cervical disc condition would not have been caused by the motor cycle accident.

24. These findings involve dismissing aspects of the evidence of some of the medical experts.

* We considered that Dr Whittaker's view regarding the link between C6-7 nerve problems and pain in the thumb-finger webbing should be accepted in preference to Dr Andrews' view that there was no link. Dr Andrews was unable to suggest any origin for that pain. Dr Matheson, on the other hand, supported Dr Whittaker in his view that it was consistent with a C6-7 lesion.

* We considered that we should accept Dr Whittaker's views regarding the relatively minimal effect of the motor cycle accident on Mr Lucas's cervical spine. Dr Whittaker was supported in this by Dr Matheson. Dr Schellenberger disagreed. She considered that such an accident could injure the cervical spine. We prefer the evidence of Drs Whittaker and Matheson because of its consistency and because of their particular expertise. Dr Schellenberger's specialty is more general. We noted that Dr Schellenberger could speak only in generalities in suggesting the mechanics of such a cervical disc injury whereas Dr Whittaker was able to give concrete examples of events liable to cause such injury. Dr Andrews saw a possible connection between the accident and the cervical spine condition. However, he was not required to enlarge on this in his evidence and it was not central to his evidence.

* We noted that Dr Matheson had his own views on the correct interpretation of a quite crucial MRI scan. However, he confirmed in his answers that Mr Lucas's reported symptoms were those one finds where the C6-7 related nerve is compromised. The tribunal considers that the evidence regarding Mr Lucas's sites of pain makes it likely that the C6-7 disc was implicated.

25. The tribunal therefore answers (a) as follows. Mr Lucas suffers from degeneration of the cervical spine unrelated to his employment. This is an ailment under the Act. In August 2001, but not in April 2001, he experienced a temporary aggravation of this condition when his motor cycle slid out from under him. This means that he suffered then from a disease under the Act which, also under the Act, constituted an injury. However, relying on evidence from Drs Whittaker and Matheson, this aggravation did not cause any permanent or ongoing pathology in Mr Lucas's cervical spine. The effects of the injury lasted for only a period and were not affecting Mr Lucas when the decisions dated 6 May 2002 (T82) and 17 July 2002 (T92) were made.

(B) IF THE ANSWER TO (A) IS YES, DO THE EFFECTS OF THAT INJURY PERSIST SUCH AS TO JUSTIFY PAYMENTS OF COMPENSATION SOUGHT BY MR LUCAS?

26. We have decided that the answer to (b) is no. See [25] above.

CONCLUSION

27. These findings mean that the decisions taken by Australia Post, to the extent that they mean that at the time of the reviewable decision, and at the current time, Mr Lucas did not, and does not, qualify for compensation under any of the provisions of the Act were correct.

DECISION

28. The decision under review is affirmed. The applicant qualifies for no costs associated with this application.

SCHEDULE 1 - RELEVANT LEGISLATION

The following provisions of the Safety, Rehabilitation and Compensation Act 1988 are relevant:

Mr Lucas must have suffered an injury, as defined in s 4(1) of the Act, if he is to receive any compensation under the Act. An injury is defined in s 4(1) as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee,

being a physical or mental injury arising out of, or in the course of,

the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a

disease) suffered by an employee (whether or not that injury

arose out of, or in the course of, the employee's

employment), being an aggravation that arose out of, or in

the course of, that employment;

but does not include any such disease, injury or aggravation

suffered by an employee as a result of reasonable disciplinary

action taken against the employee or failure by the employee to

obtain a promotion, transfer or benefit in connection with his or

her employment;

Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a

material degree by the employee's employment by the

Commonwealth or a licensed corporation;

The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or

morbid condition (whether of sudden onset or gradual

development);

An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(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.

If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

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.

SCHEDULE 2 - EXHIBITS

The tribunal had access to the following documentary evidence:

Exhibit TD1 - Section 37 statement and attached documents (exhibits T1 - T93) provided by the respondent.

Exhibit A1 - Applicant's statement of facts and contentions, 13 January 2003.

Exhibit A2 - Medical certificate signed by Dr L Buczynski, general practitioner, 25 March 2003.

Exhibit A3 - Report by Dr C J Andrews, neurologist, 21 December 2001.

Exhibit A4 - Rehabilitation progress reports.

Exhibit R1 - Respondent's statement of facts and contentions, 8 January 2003.

Exhibit R2 - Report by Dr J M Matheson, neurosurgeon, 15 November 2002.

Exhibit R3 - Australia Post material on vertical slot sorting frame, 7 June 2001.

Exhibit R4 - Mr Lucas's training record.

Exhibit R5 - Dr Buczynski's clinical notes.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member and Dr M D Miller AO, Member

Signed: .......................................................................................

Associate

Dates of hearing 10 - 11 July 2003

Date of decision 9 December 2003

Counsel for the applicant Mr Steven Whybrow

Solicitor for the applicant Pamela Coward & Associates, Lawyers

Counsel for the respondent Miss Rhonda Henderson

Solicitor for the respondent Sparke Helmore Solicitors

[1] A list of exhibits is in Schedule 2.

[2] [. Statutory extracts are in Schedule 1.