July 3, 2017

Employer Liability & Workers Compensation | QLD

Return to Sender: Postal worker’s appeal dismissed by AAT

Mr Wirth was no stranger to injury, his wrist, shoulder, back and neck had all been subject to numerous working compensation claims. It is no wonder that he described a lengthy list of doctor visits. Four hundred and fifteen visits to a chiropractor over a 23 year period would keep anyone busy. And that’s not even mentioning GP visits and specialist appointments.

Yet still, Mr Wirth had a consistent and tenacious work ethic. Despite being unable to catch a break with his health, he always found the resolve to bounce back from his injuries and continue working.

On 1 July 2015, he reported an accident at work which resulted in an injury to his right shoulder, arm and wrist. He stated that he lifted an overfilled and heavy bag out of the storage shelves and alleged the bag was four foot long and weighed in excess of 16kg.  

By pure coincidence Mr Wirth attended his doctor on 1 July 2015. He did not mention the incident which had occurred earlier that day because “it was not front of mind”.

On 13th November 2015 Mr Wirth submitted a claim for compensation in relation to the 1 July event. Australia Post rejected liability for the injury and this was affirmed by the reconsideration delegate of Australia Post. Mr Wirth sought review by the AAT.

Mr Wirth’s counsel contended that the Claimant’s neck and shoulder condition was an aggravation of physical injury which arose out of employment, that being the 1 July 2015 event. However, counsel for Australia Post argued that Mr Wirth’s condition was of long-standing degeneration and that no physiological change had occurred to cause an injury.

The Tribunal considered the relevant provisions of the Safety Rehabilitation and Compensation Act 1988 (SRC), in particular the definition of “injury” in section 5A and “disease” in section 5B. It found that the Claimant was suffering from a cervical spine condition, however was unable to conclude that there was a factor or event that operated actively to bring about this condition, specifically the alleged 1 July 2015 event.

The Tribunal was particularly troubled by the length of time in which it took Mr Wirth to seek medical attention for the injury and this weighed against a finding that the claim was compensable.

At [54], the Tribunal concluded that the subject event “did not demonstrate a significant degree of impact from [his] work to enliven a compensable ailment or aggravation claim”. It was found that 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.

Three key points to take away from Wirth:

  1. Obtain a thorough medical history. The Tribunal gave significant weight to evidence of Mr Wirth’s long standing cervical spine condition. Australia Post were able to canvas a 20 year history of shoulder and neck complaints through the Mr Wirth’s medical history.
  2. Scrutinise the reporting of injury. Mr Wirth’s case was not aided by his failure to report the injury to his doctor for some 4 months after the incident. In circumstances where there is clear evidence of long standing degeneration, Courts will be critical of the proximity at which specific events alleged to have caused aggravation are reported to doctors. 
  3. Comorbidities and surgery. Despite resolving liability in favour of Australia Post, the Tribunal considered whether the surgery sought was reasonable. It gave weight to the finding of Dr Stevenson (for Australia Post) that surgery was not ideal for individuals suffering from indiscriminate pain. The Tribunal found that there was no conclusive evidence that the surgery Mr Wirth was seeking would resolve his substantial pain issues. When seeking comment from medical experts on such issues, it is critical that experts are made aware of any comorbidity that may be present in a particular claimant and asked to comment on the effect of same on any surgical considerations.