1. In a report dated 30 May 2016, Dr Pillemer opined:

"If as suggested he does have bilateral thoracic outlet syndromes, there is invariably an underlying anatomical cause for this, but in my opinion the various accidents described as well as the nature and conditions of his work would certainly need to be regarded as aggravations of an underlying condition.

Similarly, as far as his cervical spine is concerned, he does have evidence of degenerative change which could well be constitutional for him, but once again noting his history and the number of injuries, in my opinion the nature and conditions of his work would again be described as aggravations of an underlying condition and in my opinion a substantial contributing factor to his ongoing symptoms.

As noted he has physical signs in keeping with bilateral SLAP lesions, and if this is the case then once again in my opinion the accidents and natural conditions of his work would need to be regarded as either a substantial contributing factor to the development of these lesions or aggravation of an underlying condition...

Taking everything into consideration, in my opinion the nature and conditions of [the applicant's] work would need to be regarded as substantial contributing factors to his presentation at the moment by way of causation and/or aggravation of underlying conditions..."

1. On 5 July 2016, A/Prof McGill provided a supplementary report commenting on the summons records of IOC, PHC Dapto Medical Centre, Dapto Health Care and the medical report of Dr Roger Pillemer dated 30 May 2016. In his report A/Prof McGill concluded:

"The documentation provided by his general practitioners did not suggest that he suffered any significant neck injury in the 2004 motorbike accident, nor in the incidents which he recalled occurring in 2006, 2007 and late 2009 or early 2010.

As noted above, the history upon which Dr Pillemer reached his conclusions, was not supported by the documentation (with respect to neck injury at work).

I think it would be reasonable for the possibility of the thoracic outlet syndrome to be clarified. I continue to believe that it is more likely that his neck and upper limb symptoms have been due to degenerative change in the cervical spine which has developed on a constitutional basis. I do not think that his work has caused any harm to his neck. I confirm the other conclusions which I provided in my report dated 23 March 2016."

1. In a report dated 15 August 2016, Dr Arthur Stanton, vascular surgeon, reported to Dr Noonan that the applicant's symptoms were 'almost certainly musculoskeletal in nature, and probably related to his cervical spine stenosis'.
2. Following receipt of Dr Stanton's report dated 15 August 2016, A/Prof McGill provided a report dated 6 March 2017, in which he stated the following:

"The letter by Dr Arthur Stanton, vascular surgeon, following the bilateral upper limb venous and arterial duplex studies indicated that thoracic outlet syndrome was unlikely to account for [the applicant's] symptoms. The views expressed by Dr Stanton did not support the possibility raised by Dr Pillemer in regard to thoracic outlet syndrome as an explanation for [the applicant's] symptoms. The further records provided by Dapto Health Care and Dapto Medical & Dental Centre did not provide substantial information above that which was already available to me.

I confirm the conclusions expressed in reports of 23 March 2016 and 5 July 2016. In brief, I think the neck and upper limb symptoms which he has experienced have occurred due to degenerative change in the cervical spine which developed on a constitutional basis. I do not think that his work caused any harm to his neck." [Emphasis added]

1. At hearing, Dr Pillemer and A/Prof McGill gave evidence concurrently.
2. Initially, Dr Pillemer advised that the applicant has had symptoms since 2004 as a result of aggravations of an underlying condition. He said that in 2015 the applicant suffered another aggravation but it was not significant. He said it was just a "flare up" and that there was nothing significant in his injuries to make work a significant contributing factor. He said it was "just a further aggravation". In regards to the nature and conditions of work, Dr Pillemer stated that he related them to the original injury in 2004 and that the applicant had problems since.
3. A/Prof McGill stated that it was possible that the applicant's duties influenced the onset of pain and led to the development of symptoms however he said that he would not expect the nature of the work to aggravate his condition. He stated that regardless of the activities undertaken by the applicant, "flare ups" were a normal part of the disorder.
4. In regards to bilateral thoracic syndrome, both doctors said they defer to the vascular surgeon's opinion.
5. The applicant's prior history was put to the doctors at hearing. Dr Pillemer conceded that it was not the history given to him by the applicant and he stated that based on the information, he would not attribute the applicant's injury to the 2004 incident. Dr Pillemer also agreed at hearing with A/Prof McGill that SLAP tears were incredibly common and that the shoulder pathology was not significantly contributing to the applicant's symptoms.

1. At hearing, the applicant provided details about his duties with Australia Post and provided details about a major accident he had in June 2004, an incident in August 2009 and the event that occurred on 16 September 2015. In cross-examination the applicant denied a range of matters, arising from the clinical history which is outlined above in this decision. For example, the applicant denied injuring himself while playing golf, playing sport and riding a skateboard. This is despite the clinical notes from his long-term treating practitioners recording such matters contemporaneously. The applicant appeared to accept matters in his history which included references to his employment but could not recall his neck and shoulder complaints when those complaints arose in a non-work-related context. This raises doubt as to the accuracy of the applicant's evidence. In saying that, I do accept that over the passage of time, the applicant's recollection of events may have faded. To the extent to which the applicant's oral evidence is inconsistent with the contemporaneous clinical history, I prefer the latter evidence. Medical practitioners are obliged to record accurate clinical notes which include, among other things, a patient's reason for consultation.
2. It is plain from the applicant's evidence that he describes a noticeable onset of symptoms while doing his work in 2015. This does not necessarily mean that the applicant suffered an aggravation. The law in relation to claims involving an alleged aggravation was recently summarised by the Tribunal in the decision of Re Blasco and Australian Postal Corporation [2017] AATA 1222 (7 August 2017) at [125]-[132], where it relevantly was observed as follows:

[125] Pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place: Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369 at 378. It is not necessary that any pre-existing condition itself be an injury (or a disease) within the meaning of the Act. The question is whether any pre-existing condition was aggravated and, if so, whether the employment contributed to a significant degree to that aggravation.

...

[127] It is not enough that an employee feel pain while at work. In Beattie (above), Evatt and Sheppard JJ said (at 378):

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 injury.

[128] Nor does it follow, merely because an employee feels pain on return to work after a period away during which symptoms abate, that she has suffered an injury within the meaning of the Act. In Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40, Finkelstein J said:

What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable...Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176 at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment (emphasis added).

...

[130] For Ms Blasco it is submitted that the experience of pain itself constitutes an injury. Pain brought on by work may constitute an aggravation: Commonwealth of Australia v Beattie (1981) 235 ALR 369 at 378. That is so, but there must still be a causal connection to employment...

[131] In Comcare v Reardon [2015] FCA 1166, Mortimer J agreed with the observations of Finkelstein J in Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40, where he observed of Beattie:

This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.

[132] The mere fact that Ms Blasco felt pain when she returned to work is insufficient to find there was a causal connection with her employment. For the reasons we have given, we are not satisfied that a connection existed.

1. Taking into account all of the relevant information, A/Prof McGill diagnosed the applicant as suffering from neck and upper limb symptoms due to degenerative changes in his cervical spine which developed on a constitutional basis. Dr Pillemer agreed that the applicant's condition may well be constitutional however based on the history given by the applicant and the nature and conditions of his work, Dr Pillemer opined that the applicant's work was a substantial contributing factor to his ongoing symptoms. I don't place much weight on Dr Pillemer's opinion in this regard as at hearing, it was evident that he was not provided a complete and accurate history from the applicant and that in arriving at his decision in his written report, he relied on events that are not the subject of the claims that are before this Tribunal, such as the motorcycle accident of 2004. Dr Pillemer also conceded at hearing that there was nothing significant in the injuries allegedly suffered by the applicant in 2015 which would make work a significant contributing factor.
2. In regards to bilateral thoracic outlet syndrome, the letter of Dr Stanton following the bilateral upper limb venous and arterial duplex studies raises significant doubt about whether the applicant suffers from this condition. A/Prof McGill is of the opinion that this evidence indicates that thoracic outlet syndrome was unlikely to account for the applicant's symptoms.
3. For the above reasons, I am of the opinion that the expert witnesses are unanimous in that the applicant's work was not a significant contributing factor to his claimed condition; instead the applicant's symptoms were a reflection of degenerative changes in his cervical spine.
4. I am satisfied, on the weight of the evidence, that the applicant has not suffered an "ailment" or an "aggravation" of an ailment that was contributed to, to a significant degree, by his employment. It follows that the respondent is not liable to pay compensation under section 14 of the Act as the applicant has not suffered an "injury" resulting in incapacity for work or impairment.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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