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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1933 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DR I ALEXANDER, MEMBER

BETWEEN:

THOMAS MELLOR

Applicant

AND:	AUSTRALIAN POSTAL CORPORATION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE:	19 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 From July 1998 to September 2007 the applicant, Mr Mellor, performed the duties of either a mail sorter or a postal delivery officer as an employee of the first respondent (‘Australia Post’). He claimed compensation from Australia Post under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) for various conditions and impairment, including:

· Lower back pain;

· Injury to lower back and thoracic spine;

· Skin cancer;

· Permanent impairment because of a back condition of the thoracic and lumbar spine;

· Permanent impairment due to skin cancer;

· Permanent impairment due to injury to the thoracic spine.

2 Australia Post denied liability under the SRC Act in respect of Mr Mellor’s claims. Mr Mellor applied to the second respondent, the Administrative Appeals Tribunal (‘the Tribunal’), for review of seven reviewable decisions of Australia Post.

3 The Tribunal dealt with a number of issues arising from the decisions of Australia Post. Mr Mellor does not dispute the Tribunal’s findings regarding his claim for compensation with respect to skin cancer. He does not dispute the factual findings made by the Tribunal or its conclusion, based on the medical evidence, that his thoracic and lumbar spine was not made worse by his employment.

4 The conditions that the Tribunal concluded could be considered ailments within the meaning of s 4 of the SRC Act that are relevant to these proceedings relate to Mr Mellor’s kyphoscoliosis of the thoracic spine, degenerative change in the lumbar spine and a congenital anomaly at the lumbosacral junction (at [223]-[224]).

5 Mr Mellor raises issues which, in turn, he relies upon as questions of law for an appeal under the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and as errors of law for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’).

6 The questions of law, as framed in the notice of appeal and at the hearing, are:

(i) Did the Tribunal err at law in:

(a) Having found that [Mr Mellor’s] lower back injury was aggravated by work, not finding [that Mr Mellor] suffered an injury for the purposes of s 4 of the Act;

(b) Having found that [Mr Mellor’s] thoracic back injury was aggravated by work, not finding [that Mr Mellor] suffered an injury for the purposes of s 4 of the Act;

(c) Determining that a material change to the pathology in [Mr Mellor’s] back was required to found injury for the purposes of s 4 of the Act;

7 These same questions form the grounds of review under the ADJR Act.

8 In addition, Mr Mellor submits that the Tribunal failed to apply binding authority regarding the question of and meaning of “injury” in the SRC Act. He also submits that the Tribunal failed to address certain of his submissions, in particular:

· That Mr Mellor’s work activities aggravated the level of his symptoms, including pain and this constituted an injury;

· That it was not necessary for Mr Mellor to prove a material alteration to the underlying pathology of his thoracic or lumbar spine to prove injury;

· That it was sufficient to prove that the symptom of the injury, ‘that is the experience of the injury’, was made worse by work-related duties.

9 The issues that arise for consideration as the case was presented are:

· Did the Tribunal fail to appreciate that an aggravation of a pre-existing condition can constitute an injury for the purposes of the SRC Act?

· Did the Tribunal assume that an aggravation can only be a compensable injury if it affects underlying pathology?

· Did the Tribunal fail to appreciate that pain can constitute a compensable injury?

· Can a work-related aggravation of a pre-existing condition that causes pain leading to incapacity not be compensable because the work did not contribute to the aggravation to a material degree?

· Did the Tribunal fail to consider whether Mr Mellor’s work caused a permanent aggravation by increasing his background level of pain?

FINDINGS OF THE TRIBUNAL

10 At the relevant time, “injury” was defined in s 4 of the SRC Act to include:

(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.

11 “Disease” was, at the relevant time, defined in s 4 to mean:

(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.

12 An “ailment” is defined in s 4 of the SRC Act as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.

13 There is no dispute that an aggravation of a non-symptomatic condition without pathological change can constitute an injury under the SRC Act.

14 The Tribunal stated, at [225], that Mr Mellor claimed that his employment contributed to or aggravated all of his ailments and claimed that the contribution or aggravation was to a material degree so that these ailments constituted an injury within the meaning of the SRC Act. If so, Mr Mellor claimed that he was entitled to compensation pursuant to s 14 of the SRC Act.

The thoracic spine condition

15 There is no dispute that Mr Mellor suffers from kyphoscoliosis of the thoracic spine. At issue in the Tribunal was a fall that Mr Mellor claimed that he had in the course of his work in April 2003. Mr Mellor claimed that the fall had caused or contributed to compression fractures of the thoracic vertebrae. The Tribunal commented at [243] that Mr Mellor clearly indicated that he did not experience any thoracic pain at the time of or in the immediate period after the fall. The Tribunal found his evidence with regard to thoracic pain to be ‘somewhat vague and inconsistent’ and commented that he rarely mentioned thoracic pain unless prompted by counsel.

16 Based on the medical evidence which it accepted and preferred, the Tribunal found that Mr Mellor suffers from constitutional kyphoscoliosis and does not have vertebral compression fractures (at [258]). The Tribunal accepted that the pain suffered by Mr Mellor from time to time in the thoracic area constituted a temporary aggravation of Mr Mellor’s constitutional kyphoscoliosis. However, at [260], the Tribunal said that it did not accept that the‘temporary increase in symptoms represented an aggravation of [Mr Mellor’s] thoracic spine condition in a material degree’. It is apparent that, in referring to the “thoracic spine condition”, the Tribunal was referring to the constitutional kyphoscoliosis. Accordingly, the Tribunal found that neither the fall in 2003 nor the nature and conditions of Mr Mellor’s work contributed to or aggravated his thoracic kyphoscoliosis, so that Mr Mellor did not suffer an injury within the meaning of s 4 of the SRC Act and was not entitled to compensation pursuant to s 14 of the SRC Act.

The lumbar spine condition

17 In respect of the lumbar spine condition, the Tribunal made the following findings at [263]-[288]:

· Mr Mellor suffered from various aches and pains even before he started work at Australia Post.

· Mr Mellor’s evidence regarding his pain was somewhat vague and inconsistent.

· A consistent feature of Mr Mellor’s evidence was the onset of back pain in the months following the fall at work in April 2003, but not at the time of the fall or in the following days or weeks.

· The pain was usually present mainly in the course of his work and made worse by work activities.

· Mr Mellor described the pain as ‘generally not severe but merely uncomfortable, and rarely required analgesia’.

· Apart from the opinion of a Dr Bodel, the medical evidence was quite consistent with little or no support for a conclusion that the nature or pathology of Mr Mellor’s underlying lumbar spine condition was either caused by or made worse by his employment.

· Mr Mellor’s recollection is of increased pain during his work and that the nature of the work contributed to that pain. The Tribunal accepted that Mr Mellor did suffer increased pain in the course of his work and that it was likely that the nature of the work contributed to the pain. The Tribunal said that ‘[t]herefore, his work could be considered to have made his underlying [lumbar spine] condition worse, or in other words aggravated the condition’ (emphasis added).

· However, the weight of medical opinion and Mr Mellor’s evidence favours a conclusion that the increased pain was merely a temporary aggravation in the context of his activities while at work and the effects of the aggravation ceased when he stopped these activities or shortly after.

· Mr Mellor continued to suffer pain in his lower back and legs after stopping work in 2007. It was usually related to physical activity. It would settle in the evenings. Since leaving work, Mr Mellor suffers a background level of symptoms, including pain, that can be attributed to his constitutional spinal conditions and that intermittently, his symptoms get worse with physical activity. This is a similar situation to when Mr Mellor was employed.

· Accepting that Mr Mellor’s employment at Australia Post contributed to the aggravation of his lumbar spine condition in the sense that he suffered from pain, the Tribunal found that the contribution resulted in only a temporary aggravation with no lasting effects and did not make the underlying condition worse.

· The Tribunal concluded that the contribution to the lower back conditions by the employment was not sufficiently significant to meet the threshold of “in a material degree”. The lumbar spine condition is not an injury within s 4 of the SRC Act and Mr Mellor is not entitled to compensation pursuant to s 14 of that Act.

MR MELLOR’S SUBMISSIONS ON THE TRIBUNAL’S FINDINGS

18 Mr Mellor contends that the Tribunal did not grapple with the submissions put to it as to the incapacitating nature of the pain that he suffered because of the aggravation of his thoracic and lumbar spine conditions. His evidence was that the pain in his back became worse after his fall in April 2003 and was usually associated with his work activities. Some of this pain was in the thoracic spine, although the bulk of his concern was his lumbar spine. Mr Mellor says that his unchallenged evidence was that, as a result of his back complaint, he often had to leave work early and rest and take paracetamol to treat the increase in symptoms. Since he stopped work in September 2007, his back condition has, he says, ‘waxed and waned’ and physical activity makes it more symptomatic.

19 Mr Mellor does not challenge the Tribunal’s finding, based on the medical evidence, that the underlying pathology of Mr Mellor’s thoracic and lumbar spine was not materially altered for the worse by his work. He submits, however, that the Tribunal considered, incorrectly, that some material change was required in the underlying pathology to found liability and that the experience of the symptoms and pain as found was insufficient.

20 The requirement of materiality is, by reason of the definition of “disease” in s 4, a requirement that the employee’s employment contribute materially to the suffering of the ailment in question (Comcare v Sahu-Khan (2007) 156 FCR 536 at [16] per Finn J) or to the aggravation of the ailment, that is, ‘[i]n a material degree; substantially, considerably’ (the Shorter Oxford English Dictionary cited by Finn J in Sahu-Khan at [15]).

21 Mr Mellor submits that, in his case, the correct question is not whether the underlying pathology of a disease or frank injury had been materially contributed to but whether the aggravation of symptoms, being an injury, had been materially contributed to. The worsening of symptoms of an injury can, he submits, be sufficient to ground liability without any change in the underlying pathology.

22 Mr Mellor relies for that principle on Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626, where the High Court held that there is a compensable exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensification of the symptoms. In that case, the plaintiff was already suffering from a disease but her employment resulted in a new manifestation of it. Justice McTiernan observed at 629 that, for the purposes of the Act then under consideration, the Workers’ Compensation Act 1926-1960 (NSW), manifestations of a disease are relevant only so far as they cause incapacity and where the manifestations are causally related to employment. Justice Kitto, with whom Taylor and Owen JJ agreed, said at 632-633 that employment can be said to be a contributing factor to the aggravation of a disease where it provides an incident or state of affairs to which the worker is exposed in the performance of his (sic) duties and to which the worker would not otherwise have been exposed. There is no requirement that the underlying disease is made worse; it is sufficient if a new manifestation is suffered. Indeed, his Honour noted at 634, “exacerbation” applies to the effects of the disease rather than to the disease itself. Justice Windeyer said at 642 that it was not to the point that the plaintiff might have broken down because of her illness in any event; the precipitating event occurred at work.

23 As was pointed out by the Full Court in Commonwealth of Australia v Beattie (1981) 35 ALR 369, the definitions in issue in Federal Broom were different from those in Beattie (as they are from the definitions in s 4 of the SRC Act). The Full Court said at 377-378 that, notwithstanding differences, Federal Broom establishes that there may be an exacerbation or aggravation, which relevantly mean the same thing, notwithstanding that there is no change in the underlying pathology. Whether there is such an exacerbation or aggravation is a question of fact in each case.

24 The Full Court continued, at 378, to observe that it does not follow in every case that a worker with a pre-existing injury who carries out work and, as a result, suffers pain, will have suffered an aggravation of his or her injury but pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place. Put another way, an injury may be aggravated if the experience of the injury is increased or intensified.

25 The fact that symptoms abate on each occasion that the worker ceases work does not preclude compensation where enhanced susceptibility to the onset of symptoms has been caused by the work. In those circumstances, the enhanced susceptibility constitutes an aggravation of the disease (Asioty v Canberra Abattoir Proprietary Limited (1989) 167 CLR 533at 540).

26 Neither the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act (Federal Broom; Asioty; Beattie).

27 In Asioty, there had been an increased susceptibility to dermatitis caused by the employment of the worker in an abattoir. That constituted the aggravation or exacerbation of the disease. Here, the Tribunal did not find any increased susceptibility but rather that employment resulted in temporary pain from Mr Mellor’s back without any permanent effect.

THE ASSERTED ERRORS IN THE TRIBUNAL’S REASONING

28 At [259] the Tribunal stated that it accepted that increased symptoms in the form of pain constituted a temporary aggravation of the constitutional kyphoscoliosis of the thoracic spine. The Tribunal then turned to consider whether that temporary aggravation constituted an aggravation to a “material degree”. It is at that stage of the reasoning that the Tribunal concluded that the thoracic pain did not fulfil the requirements of an injury under the SRC Act.

29 In considering the lumbar spine, the Tribunal accepted that the pain constituted an aggravation of Mr Mellor’s condition but found that it was a temporary aggravation that ceased when he stopped his work activities or shortly thereafter. The Tribunal found that this did not fulfil the requirement that Mr Mellor’s employment contribute to his lower back conditions in a material degree.

30 Accordingly, the Tribunal did not fail to appreciate that:

1. an aggravation of an existing ailment may constitute an injury;

2. that an aggravation can be a compensable injury without any change in the pathology of the ailment; or

3. that pain can constitute a compensable injury.

31 A complicating factor is the Tribunal’s observations at [284] that Mr Mellor suffers a background level of symptoms, including pain, that can be attributed to his constitutional spinal conditions and that intermittently his symptoms get worse with physical activity so that, currently, he finds himself in a similar situation to when he was employed. However, the Tribunal reiterated at [286] its finding that the employment at Australia Post did contribute to the aggravation of the lumbar spine condition in causing pain.

32 Mr Mellor criticises the Tribunal for not following binding authority ‘in relation to pain causing incapacity’. The Tribunal is not obliged to cite in its reasons the cases which establish this proposition. The question is whether the Tribunal appreciated and applied the principles from those cases. In my view, the Tribunal did not fail to appreciate that aggravation, in the form of pain, of a pre-existing ailment can constitute a compensable injury without the need for any change in the underlying pathology.

33 Mr Mellor also argues that the Tribunal failed to consider his submissions that his employment resulted in permanent aggravation by increasing his background level of pain. The Tribunal dealt with this issue and concluded that in the case of both the thoracic and lumbar conditions, the aggravation was temporary with no lasting effects.

34 The Tribunal’s reasoning appears to be as follows:

· The employment at Australia Post did result in pain in the thoracic and lumbar spine.

· That pain constituted an aggravation of the underlying conditions that existed in each of those areas of Mr Mellor’s back, but the aggravation was temporary.

· A temporary increase in symptoms does not represent an aggravation of the underlying condition in a material degree.

· In the case of the lumbar spine, the pain was usually present in the course of Mr Mellor’s work and was made worse by his work activities, in that it was likely that the nature of the work contributed to the pain but the pain was not severe but merely uncomfortable, rarely requiring analgesia.

35 That is, the Tribunal concluded that the employment was the cause of the aggravation represented by the pain but that the effect of that aggravation was not material because it was temporary and not severe. Is the requirement of materiality directed to the cause of the aggravation or its effect? “Disease” means an ailment or aggravation of an ailment ‘that was contributed to in a material degree by the employee’s employment’. “Injury” means, relevantly, a disease or an aggravation of an injury other than a disease. In Sahu-Khan, Finn J traced the legislative history of and judicial consideration of the requirement of materiality, including the decision of the Full Court in Comcare v Canute (2005) 148 FCR 232. In Canute at [67], French and Stone JJ said that the term “material” ‘imposes an evaluative threshold below which a causal connection may be disregarded’. Justice Finn in Sahu-Khan adopted that analysis at [13]. It is the nature of the contribution that is necessarily material (Sahu-Khan at [15]).

36 The Tribunal correctly summarised the principles in Sahu-Khan at [227]. It appreciated that there was a requirement of materiality for a causal connection to be found. However, at [286]-[287], in considering the lumbar spine, it said that because there was no lasting effect of the aggravation and no underlying change in the condition, the contribution by the employment to the lower back conditions was not material. With respect to the thoracic spine, the Tribunal stated at [260] that it did not accept that the temporary increase in Mr Mellor’s symptoms represented an aggravation of his condition in a material degree. This was to confuse the requirement that the employment be a material cause of the aggravation with a requirement that the effect of the aggravation be material.

37 The confusion on this point is also evident from [225] of the Tribunal’s decision, where the following statement is made:

Mr Mellor claims that his employment contributed to or aggravated all of these ailments, and that the contribution or aggravation was to a material degree so that these ailments constituted an injury within the meaning of the [SRC] Act, and therefore he is entitled to claim compensation pursuant to s 14 of the [SRC] Act.

(emphasis added)

38 The Tribunal may have been led to take this course because of the way in which the cased was argued by Mr Mellor.

39 For present purposes, the relevant part of the definition of “injury” is the reference to “disease”, which, in turn, is defined as an ailment or an aggravation of an ailment to which the employee’s employment contributes in a material degree. On the Tribunal’s findings, Mr Mellor’s employment did not affect the underlying pathology of his back conditions but, in causing pain, it rendered the back conditions temporarily symptomatic, or irritated them (Macquarie Dictionary, definition of “aggravate”). Pain may constitute an aggravation of an ailment or injury (Beattie).

The Tribunal’s conclusions on aggravation and materiality

40 In the case of each of Mr Mellor’s thoracic kyphoscoliosis and lumbar spine, the Tribunal concluded that the requirement of materiality was not satisfied. This was because the Tribunal did not accept that a temporary increase in symptoms represented an aggravation of the thoracic spine condition in a material degree and found that the temporary aggravation of the lumbar spine condition meant that the contribution to the lower back condition was not sufficiently significant to meet the threshold of “in a material degree”.

41 Australia Post submits that the requirement of materiality qualifies the word “ailment” in the expression ‘the aggravation of any such ailment; being … an aggravation [of any such ailment] that was contributed to in a material degree by the employee’s employment’. I do not accept this to be the case. It is also inconsistent with the discussion of materiality in Canute and Sahu-Khan, although neither of those cases directly considers the issue raised in the present case. Australia Post submits that Parliament would not have intended that the Commonwealth be liable for any aggravation of disease regardless of how insignificant that aggravation might be. However, s 4 does not give effect to such an intention.

42 Further, Australia Post points out that the Tribunal was referred to Tippett v Australian Postal Corporation (1998) 27 AAR 40, which inaccurately summarised the joint judgment of Evatt and Sheppard JJ in Beattie as stating that an injury will be aggravated if the experience of the injury is increased or intensified. In fact, their Honours said that ‘it is enough to say that pain brought on by work activity may constitute an aggravation’ (emphasis added). Australia Post submits that this may well have influenced the Tribunal to make findings that pain and discomfort in Mr Mellor’s thoracic and lumbar regions constituted temporary aggravations, notwithstanding its reservations made apparent by the qualifications indicating that the Tribunal was not persuaded that the pain in each case actually amounted to aggravations of the underlying ailments.

43 Australia Post submits that I should draw the conclusion that, had the Tribunal been aware of the correct statement in Beattie, it would have concluded that no aggravation had occurred and that Mr Mellor was not suffering from work-aggravated diseases in his thoracic and lumbar spines. It follows, in Australia Post’s submission, that I should come to that conclusion and not remit the matter to the Tribunal.

44 I see the force of the submission but I do not accept that the conclusions that the Tribunal would make in applying Beattie are so clear from its reasons. The Tribunal expressed its conclusions in terms of a requirement that the aggravation be material. The Tribunal did not correctly address the question whether or not the pain that Mr Mellor felt, being only temporary but experienced when he returned to work, constituted an aggravation of an ailment to which his employment contributed in a material degree and which, in turn, constituted a disease and thereby an injury for the purposes of the Act.

45 It may be that the Tribunal will conclude that the symptoms suffered by Mr Mellor do not amount to an aggravation but that is not conclusive from the reasons.

46 The matter should be remitted to the Tribunal to enable it to make findings in accordance with law.

CONCLUSION

47 The question of law that arose from the Tribunal decision was whether the requirement for materiality in the definition of disease applied to the causal link between employment and the disease or to the effect of the employment on the disease. The Tribunal accepted that the employment caused temporary pain from Mr Mellor’s constitutional thoracic and lumbar back conditions. In concluding that, because the pain was temporary, the requirement of materiality was not satisfied, the Tribunal erred in law in applying the test of materiality to the effect of the aggravation of the ailments.

48 The Tribunal therefore determined that the threshold requirement, that Mr Mellor did suffer an injury, was not met. It does not necessarily follow from the Tribunal’s error that Australia Post is liable to pay Mr Mellor compensation. It seems to me that the appropriate course is to remit the matter to the Tribunal to be determined according to law. I will hear from the parties as to appropriate orders, including orders as to costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 19 May 2009

Counsel for the Applicant:	Mr D Shoebridge

Solicitor for the Applicant:	Turner Freeman Lawyers

Counsel for the First Respondent:	Miss R M Henderson

Solicitor for the First Respondent:	Graham Jones Lawyers

Date of Hearing:	23 March 2009

Date of Final Written Submissions:	3 April 2009

Date of Judgment:	19 May 2009

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