Ahmed and Australian Postal Corporation - [2000] AATA 993

DECISION AND REASONS FOR DECISION [2000] AATA 993

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N1998/1305 and N1999/1719

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MAHAD AHMED
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date14 November 2000
PlaceSydney

Decision      The Tribunal affirms the decisions under review.
  ..............................................
  M T Lewis
  Presiding Member
CATCHWORDS
COMPENSATION – casual employee – whether back condition arising out of, or in the course of employment –claim for incapacity and permanent impairment – credibility of applicant

Safety Rehabilitation and Compensation Act - ss 4, 14, 16, 19, 24, 27 and 29

REASONS FOR DECISION

14 November 2000 Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

This is an application made by Mahad Ahmed ("the Applicant") for review of a reconsideration decision of a delegate of the Australian Postal Corporation ("the Respondent"). The reviewable decision dated 26 October 1999 (N1999/1719, T7) varied a determination of 3 July 1998 (N1998/1305, T10) to disallow a claim for compensation in respect of a back injury as a result of an alleged incident on 20 May 1998.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 in matter number N1998/1305 (exhibit T1) and matter number N1999/1719 (exhibit T2).
The following documents were tendered on behalf of the Applicant:
·Signed statement of Mahad Ahmed dated 11 August 2000 (exhibit A);
·Two medical reports of Dr C Murray Maxwell, consultant orthopaedic surgeon, both dated 23 June 2000 (exhibit B);
·Medical reports of Dr Ian S Collins, one dated 7 July 2000 and one undated (exhibit C).
The Applicant gave oral evidence at the hearing. Mr Steven McLean and Mr John Beque, both employees of the Respondent, were called to give oral evidence.
background
The Applicant was born on 3 November 1968. He came to Australia from Somalia in 1990. He was employed by the Respondent on a temporary contract basis between 17 February 1997 and 30 June 1998. His employment was terminated on 30 June 1998.
On 2 June 1998 the Applicant completed a claim form alleging he had sustained a back injury while at work on 20 May 1998. He completed an incident report on 11 June 1998 alleging that he suffered muscular pain in his back on 20 May 1998 after lifting a bag of heavy parcels up from a ULD (N1998/1305, T3).
On 3 July 1998 an Australian Postal Corporation delegate denied liability on the basis that there was no indication that the Applicant mentioned the injury to anyone, and there was no report of the injury on the day of the incident. The Applicant requested a reconsideration of the delegate's decision, and on 17 July 1998 a Reconsideration Officer for the Australian Postal Corporation affirmed the decision of the delegate. On 16 September 1998 the Applicant lodged an application with this Tribunal for review of the reconsideration decision.
On 24 September 1999 the Applicant made a claim for permanent impairment. On 26 October 1999 a delegate of the Respondent varied the determination of 3 July 1998:
Australia Post is not liable to pay compensation to Mr Ahmed in respect of any injury to the back. Liability is denied under all relevant provisions of the Act, including the provisions of sections 14, 16, 19, 20, 21, 22, 24, 27, 29 and 39." (N1999/1719, T7)

On 5 November 2000, the Applicant lodged an application with this Tribunal for review of the 26 October 1999 reconsideration decision (N1999/1719).
legislation

Section 14(1) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides:
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.

"Injury" is defined in section 4(1) of the Act. Section 4(1), insofar as it is relevant states that "Injury" means:

(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…

Where a person is found to have a compensable injury, various sections of the Act provide for payment of compensation. Section 16(1) of the Act provides for the payment of compensation in respect of medical expenses; section 19 of the Act provides for payment of compensation to a person in respect of injuries resulting in incapacity for work; and section 24 of the Act provides for the payment of compensation for injuries resulting in permanent impairment.
applicant's evidence
The Applicant said he commenced work with the Respondent as a casual labourer under a temporary contract. When each contract ended he was given a new one to sign. His contracts were renewed on this basis until 1 June 1998. He said sometimes he "would take a week or so off" before starting a new contract, but otherwise his employment with the Respondent was continuous until 1 June 1998. He said that he had expected his contracts to be continued as they had hitherto.
The Applicant said that he had no problem with his back prior to commencing work with the Respondent. His work with the Respondent involved labouring work, moving bags of letters and parcels that had been put into containers (ULDs). His job was to move the ULDs in the Parcel Centre. He was not normally required to load the ULDs although sometimes he helped by loading items into the ULDs. He said he used a hand operated trolley-like forklift to move the ULDs. He said he found moving them with the hand forklift "required a bit of effort". He said that although he could cope with the work "I would be a bit sore and tired at the end of the day".
The Applicant said he worked different shifts while at Australia Post including the night shift and the afternoon shift in May 1998. He said that before his accident it was his intention to become a permanent employee of Australia Post. He said he had approached Mr Beque a couple of times during the six months before his accident, requesting to be appointed to a permanent position. He hoped to obtain a position driving a mail van. He had undertaken a driver assessment course on 1 April 1998, referred by the Respondent, which Mr Beque told him he has passed. He had also attended a medical examination in preparation for permanent employment.
The Applicant said that on 20 May 1998 he was working the afternoon shift which started at 2pm and normally finished about 9 pm. He said that on 20 May 1998 he was helping Mr Wilson to fill a ULD. Mr Wilson was using a small machine to open the bags and the Applicant was sorting the mail to be loaded onto separate ULDs. The Applicant said that these bags usually weighed under 16 kilograms, but sometimes they were over that weight. The Applicant said that at about 5 pm. he saw a big bag on the floor that he assumed would weigh less than 16 kilograms. He said he tried to pick it up but on lifting the bag he felt strong back pain in the centre and right side of his lower back just above the belt line.
The Applicant said that the pain was very strong at first, but it went away quite quickly and then came back a couple of minutes later. He said that he rested for a few minutes after the incident, and then called Mr Wilson to ask for assistance to lift the bag. The applicant said that at the time he did not think the injury was serious.
The Applicant said he saw Steve McLean some time after the accident. Mr McLean was located on the other side of the store. The applicant said that he told Mr McLean that he had hurt his back while lifting a bag and wanted to see a doctor. Mr McLean agreed to the Applicant consulting a doctor. The Applicant said that he then left the store without finishing his shift.
In cross-examination the Applicant denied that he had told Mr McLean that he felt "sick" rather than that he had hurt his back. He said he had a good recollection of 20 May 1998 and the day before, but then said that he recalled that he suffered from "stomach problems" on 18 May 1998 and was not sure if he was sick on 19 May 1998. In response to a question from Counsel for the Respondent about whether he had taken a fair amount of sick leave prior to May 1998, the Applicant could not recall. Nor did he recall anyone at Australia Post telling him that they were not happy with the amount of time he was taking off work. The Applicant denied being told that his supervisors were unhappy with his work performance prior to May 1998 and that he was found outside smoking when he was supposed to be working.
The Applicant said that after leaving work on 20 May 1998 he went to see his doctor, Dr Makarie. He said that Dr Makarie examined his back, referred him for an X-ray, prescribed Panadol and provided a medical certificate of unfitness for work until 21 May 1998.
On 21 May 1998 the Applicant said that he had an X-ray and he returned to see Dr Makarie on 22 May 1998. At that time Dr Makarie provided another medical certificate of unfitness for work until 26 May 1998. The Applicant saw Dr Makarie again on 27 May and was given another medical certificate to be off work. The Applicant said that he gave these medical certificates to Mr McLean.
The Applicant was referred by Dr Makarie to Dr Maxwell, orthopaedic surgeon, whom he saw on 1 June 1998. Dr Maxwell arranged a CT scan of the Applicant's back and provided a medical certificate of unfitness for work. He was also referred by Dr Maxwell for physiotherapy. He stopped physiotherapy after about six sessions when the Respondent ceased paying for physiotherapy and the Applicant considered to could not afford the payment himself. In his oral evidence the Applicant said that he had no documentary record of having attended for physiotherapy.
The Applicant said that on or after 22 May 1998 Mr McLean provided accident forms for him to complete. He said he tried to lodge them with the Respondent on 2 June 1998, but as he had not completed all parts of the forms they were returned to him on 4 June 1998. Subsequently he lodged the completed forms again on 11 June 1998.
The Applicant said that he continued to see Dr Maxwell until October 1998 and during that time Dr Maxwell provided medical certificates. The Applicant said that later in 1998 he attended Canterbury Hospital for physiotherapy for about a week and then the physiotherapist gave him a program to do at home.
The Applicant said that he continued to have back pain after August 1998. He said he visited a doctor in Guildford about it on one occasion in late 1999 and that was the last time he had seen a doctor regarding his back. The Applicant said that at the time he attended the doctor in Guilford he "was feeling bad", he was in the district and did not have transport to enable him to see Dr Maxwell. He could not recall the doctor's name and had no documents from that doctor.
The Applicant said that he had not sought any further treatment because he could not afford to see doctors. On cross-examination, when Counsel for the Respondent put it to the Applicant that he could have used his Medicare card, he responded that the doctors he had seen had suggested there was no other treatment for his problem other than taking Panadol.
The Applicant said that he had returned to Somalia for four months from December 1999 to visit his father who was very ill. The applicant told the Tribunal that he paid for this trip by obtaining loans from friends.
The Applicant said that after finishing with Australia Post he was looking for work, but not heavy work. He did not find work before June 1999, at which time he started driving taxis. In the interval between leaving Australia Post and commencing to drive taxis, the Applicant said he received unemployment benefit that he applied for about one month after leaving work with Australia Post. He said he continued to receive social security until he got his taxi licence about June or July 1999. He said he started driving taxis for Mr Mohammed Abdillah two days a week, but more recently he has occasionally worked four days a week. However, in cross-examination he said that he had probably not worked more than ten days since the beginning of July 2000. When Counsel for the Respondent alerted the Applicant to the inconsistency in his evidence he said that only Mr Yosef and Mr Abdillah had that information.
The applicant now drives taxis for Mr Bukned Yosef with whom he shares a house. He said that he finds driving taxis hard. He usually drives for about nine to ten hours and then he needs to have a break. He would usually have a break every hour by getting out of the taxi and walking around "to stretch (his) legs". He said that after a nine hour shift he feels pain in his back that "comes and goes".
The Applicant considered he could not work full time because of back pain. Mr Yosef, the owner of the car, drives the car when the Applicant is not driving it to make up the days. The Applicant said that he currently drives for Mr Yosef, but if he needs an extra day he calls Mr Abdillah. The Applicant said he could get work driving a taxi seven days a week if he wanted to.
The Applicant said he usually makes on average around $100 from a nine hour shift, and he usually gets paid in cash. He does not have a bank account. He said that the bank closed his account "for lack of funds" just before he went overseas. The Tribunal put it to the Applicant that to receive social security payments he would need a bank account into which the payments would be made. He replied "every fortnight you have to fill a form… explaining how many works you look for and this kind of thing. So if you don't fill that form they won't send you any money."
A summons was issued on the Applicant to produce documents returnable on 14 July 2000. The summons required him –
To produce all passbooks, cheque books, copies of statements of account or any other records held by you in respect of any account, any bank, savings bank, building society, credit union or any other financial institution from 1 July 1997 to date.
All income tax returns, group certificates, pay slips, invoices, accounts, rent receipts or any other records held by you in respect of all monies received by you over the period 1 July 1997 to date.
Name and address of all employers from 1 January 1990 to date.
All passports current and past, whether issued by the Australian Government or not, issued to you.
No documents were returned on 14 July 2000, but on the day of the hearing the Applicant produced some documents consisting largely of old bank account records and pay slips. In cross-examination the Applicant maintained that the only bank accounts he had had were with the Commonwealth Bank and Westpac, and those accounts were now closed. The Applicant said that the Westpac account had been used for his Social Security payments. He said that he did not keep his bank statements.
On cross-examination the Applicant said that he did not have any records of income from working as a taxi driver. He said that he had recently been keeping records for taxation purposes. However at another point in his evidence he said he did not keep records but he intended to do so once he received his Australian Business Number (ABN) for which he has made application. He also said that he gave extra money to the owner of the taxi every night that he worked and that taxation is taken from the owner on the Applicant's behalf. He also said that he intended lodging an income tax return.
The applicant was unsure when he got his taxi licence, but thought it might have been in the middle of 1999. He also said that he attended a three month course from June 1999 through to approximately August/September 1999 in order to get his licence. He said he had left his licence, and any papers he received from the course he did, at home on the day of the hearing. The Tribunal notes that such records were not included in the summons to the Applicant.
The Applicant said that he was "scared" to start driving taxis after completing his course in September 1999. He said that "it was Christmas and New Year and all the taxis were very busy". When Counsel for the Respondent pointed out that September is not Christmas time, the Applicant said that it was "the booming time..." and that taxis were very busy. He said that he used to believe that driving taxis was very risky, that he was "scared for his life" and he also had back pain. He said that he undertook the taxi driving course because it seemed like the only job he could do.
The Applicant said that he sometimes wakes with back pain. He also said that when he picks something from the floor he feels strong pain which gets so bad he can scarcely walk. He said that it is not continuous pain. He said that prior to the accident he would play soccer socially but since 20 May 1998 he can no longer do that. He said that his back is the same now as it was on 20 May 1998. The treatment of Dr Maxwell and the physiotherapy treatment has not improved his back at all. He said that he did not think he could go back to his job with Australia Post. He believes he can only do light jobs.
evidence of steven mc lean
Mr McLean is employed by the Respondent as a Senior Parcel Post Officer Grade 2. He said he was aware of an incident involving the Applicant on 20 May 1998. On the day of the incident he was the Applicant's afternoon shift supervisor.
Mr McLean said that the Applicant approached him near the end of the day on 20 May 1998 and said that he was sick but did not specify what his sickness was. Mr McLean said that he then said to the applicant, "Well, you may as well go home". Mr McLean was sure that the Applicant did not say that he had hurt his back. He said that whenever someone approaches him with an "injury" he requests that they complete an injury form. He denied that the Applicant demonstrated to him what he was doing when the accident occurred.
Mr McLean said that the first time he had to recall what the Applicant had said to him on 20 May 1998 was three or four days after the alleged incident when the Applicant returned to work with a Workcover form. Mr McLean said that he was surprised at the time and questioned the Workcover form immediately because if he had known about the injury he would have given the Applicant the form on the day of the incident.
On cross-examination Mr McLean said that the Applicant came to him and said that he was sick and wanted to go home. Mr McLean insisted that the Applicant completed a P66 sick leave form. Although Mr McLean's evidence was that the Applicant completed the leave form at the time he first approached him, eventually he said he could not remember when it was completed but he was sure that it had been completed. That leave form is not before the Tribunal, nor are the sick leave records.
Mr McLean said that the alleged accident was then investigated. He said that he did not speak with Mr Wilson, with whom the Applicant nominated he had been working on the day of the incident. Mr McLean said that after preparing a supervisor's accident report, he then proposed some changes to the system of work for manual handling of bags. He agreed that if the accident had occurred, as alleged by the Applicant, then further manual handling instructions were required. Mr McLean said that the average bag is supposed to be kept to 16 kilograms or less. If they are more than 16 kilos, they have a "two man" tag on them.

Mr McLean said that the Applicant had been under his supervision for approximately twelve months. He was not aware of any plans to terminate the Applicant's employment at the beginning of June 1998. At no time had he spoken to the Applicant about his employment contract coming to an end.
evidence of john darius beque
Mr Beque was employed by the Respondent as a PPC3 (shift manager). He said he was Mr McLean's supervisor and that Mr McLean would relieve him when he was off duty.
Mr Beque said that he employed the Applicant who had worked under his control on a temporary contract from 1997 until 1998. He was the person who decided whether the Applicant's contract would be continued.
Mr Beque said that when the Applicant was working on night shift his supervisors complained about his performance because he would leave work early. Mr Beque said that he told the supervisors that he would bring the Applicant back to day shift. Mr Beque said that he asked the Applicant to explain what was going on during night shift and the Applicant told him "because the others were doing it I thought I can do it too". Mr Beque said that the Applicant was going home in the middle of the shift.
Mr Beque said that he continued to have problems with the Applicant after he brought him back on to the day shift. He later conceded that the Applicant returned to afternoon shift. He said that at one point he told the Applicant that if he improved his performance there was a possibility that he would be sent to training school. Mr Beque said that he never sent the Applicant to training school.
Mr Beque said that the Applicant's work performance did not improve. He said that during the Applicant's shifts people would have to go looking for him and often could not find him. Mr Beque said that during work hours the Applicant would be in the toilet, smoking outside, or would want to move his car in the car park. He told the Applicant that this behaviour could not continue and that he did not think he was going to renew the Applicant's contract. In cross-examination Mr Beque agreed that he told the Applicant that he was not going to renew his contract during the counselling period and before he returned to the afternoon shift. Mr Beque said that he had a good recollection of this as he remembers the Applicant accepted that he was having some problems with the night shift.
Mr Beque said that he did not record any of his conversations with the Applicant as he does not keep written counselling records for casual employees. Mr Beque agreed that he was asked to provide a statement about not renewing the Applicant's contract "a fair way back" and he was not sure whether he had ever provided such a statement. Mr Beque said that it was on the Applicant's first day on afternoon shift that he told the Applicant that he was going to terminate his contract if he did not improve. Mr Beque then said that he did not ever mention the contract again. He agreed that he had not warned the Applicant that his job was in jeopardy after he had gone onto day shift because the Applicant was off work sick.
Mr Beque said that a decision to renew a contract was usually made on the same day as the contract came to an end. When prompted by Counsel for the applicant, Mr Beque agreed that he probably made the decision not to renew the Applicant's contract on 1 June 1998. Mr Beque agreed that he had renewed the Applicant's contract on about 12 previous occasions and found him to be a good worker until the time of the last contract.
Mr Beque said that he was not aware of the applicant's back injury or claim until he saw the Workcover form. He said that attempts had been made to call the Applicant for three or four days. When the Aplicant came back to work with the Workcover certificate he told Mr Beque that he was injured at work. Mr Beque asked the Applicant when he was injured and referred him to Steve McLean, the Applicant's supervisor on the day of the incident. Mr Beque said that he asked Mr McLean what had happened to the Applicant and Mr McLean had said that, "he went home sick… he's coming with the Workcover. I don't know what happened". In the course of cross-examination Mr Beque could not remember when the Applicant came to work with the Workcover certificate.
Mr Beque told the Tribunal that the Applicant had come to him on a number of occasions seeking appointment to a permanent position. Mr Beque said that he had sent the Applicant to Drake Personnel for a driver assessment test and medical examination to see if he was fit to drive light trucks. Mr Beque could not remember if the Applicant had approached him after the test and asked how he had performed. However Mr Beque agreed it was possible that the Applicant did approach him in relation to his performance in the driver assessment test.
Mr Beque said that he was not aware that the Applicant did not attend work on 18 May 1998 and possibly 19 May 1998. He did not know the Applicant was on sick leave until he asked Mr McLean to tell him what had happened.
medical evidence
Medical Certificates
A number of medical certificates are included in the section 37 documents. In a medical certificate dated 22 May 1998 (N1998/1305, T7), Dr W Y Makarie diagnosed the Applicant's condition as "musula-ligamotus (sic) Sprain/Strain of the lower back. Back Injury". He noted that the Applicant was unfit for work from 20 May 1998 up until 21 May 1998. Similar diagnoses appear in medical certificates dated 27 May 1998, 1 June 1998, 17 June 1998 and 27 July 1998.
X-ray Report
X-ray of the lumbosacral spine taken on 21 May 1998 was reported as follows (N1998/1305, T8) –
Clinical information: Lifting injury.
The alignment of the spine is normal. The disc spaces are preserved. There are some small marginal osteophytes at the L4/5 level. No bony injury has been demonstrated.
The facet joints appear normal.
The sacroiliac joints appear normal.
A CT of the lumbar spine dated 29 July 1998 was reported as follows (N1998/1305, T13) –
Scans were performed from L3 to S1. No disc lesion can be seen and there is no canal or lateral recess narrowing. No bony lesion can be seen.

Dr Murray Maxwell, Consultant Orthopaedic Surgeon

Dr Maxwell saw the Applicant on six occasions between 1 June 1998 and 22 June 2000. In his clinical notes for the first consultation on 1 June 1998 Dr Maxwell reported (exhibit B):
He is suffering from low back strain. He is unfit for work for two weeks and requires physiotherapy.
Dr Maxwell saw the Applicant again on 17 June 1998, when he noted:
Back movements are still restricted by about 25%. There is pain at the extremes of movement.
He is unfit for work as a labourer.
On 27 July 1998 Dr Maxwell ordered a CT scan. At the next consultation on 25 August 1998 Dr Maxwell wrote:
Mr Ahmed is still complaining. He appears to be suffering from a lumbo sacral strain. X-rays and CT scan are normal.
He requires physiotherapy…
I have given him a referral to St George Hospital for physiotherapy.

Dr Maxwell saw the Applicant again on 12 October 1998 when he recorded that the Applicant said his back was the same and he had no physiotherapy as yet. On examination the Applicant's back was still stiff. Dr Maxwell noted that the Applicant was on a waiting list for physiotherapy and would be contacted, and that he should continue taking Panadol tablets.
On 22 June 2000 the Applicant consulted Dr Maxwell who opined:
Mr Ahmed is suffering from a strained lumbo sacral spine. It has not responded in two years and some disability must be considered permanent.
His leg trouble – sciatica does not seem very significant. He does not complain of it very much and it does not occur very often and there are no confirming signs of left sciatica.
The lumbar back strain probably indicates a commencing intervertebral disc lesion. It is unlikely to show up in x-rays or CT scans for some period.
The history of injury is reasonable and consistent with the clinical findings.
There is no suggestion of previous injury or degenerative changes in his back.

Dr Ian S. Collins

Dr Collins examined the Applicant and prepared a report dated 16 April 1999 (exhibit C):
…In my opinion he has musculo-ligamentous strain but he may have a disc injury despite the normal CT scan. It is impossible to exclude a rupture of the annulus and he may need an MRI examination…
He is not fit for any employment which requires bending and lifting… In my opinion the patient's condition is the result of the accident as described…
…I believe that he needs to be followed up and to have further investigations to exclude disc injury…
….
Dr Collins saw the Applicant again and prepared a report on 7 July 2000 (Exhibit C). He opined:
The patient has had a lifting injury to the lower back. Although he has a normal CT scan, it is impossible to exclude a rupture of the annulus. I believe that he needs an MRI examination and I feel in any case that he should have a consultation with an orthopaedic surgeon with a special interest in back injuries. At the moment he does not appear to be getting anywhere…
He is not fit for any form of employment which requires bending and lifting…
In my opinion the patient's condition is the result of the accident as described. It is my opinion that his employment was a substantial contributing factor to the injury…
I feel that it is unlikely that he will be able to return to a manual occupation...
….

Dr Anthony Hodgkinson, Orthopaedic Surgeon

Dr Hodgkinson examined the Applicant on 30 March 1998. In his report (N1999/1719, T2) he said:
1. The diagnosis clinically is difficult to assess in this man without x-ray evidence. According to the report of the x-rays and CT scan, he had no significant pathology. He appeared to resist all forms of passive examination, which I do not feel is completely indicative of his ability to move about at the time of this interview.
2. He stated that the first onset of discomfort occurred on the 20th May 1998…
3. His current symptoms are essentially subjective. Clinical examination did not convincingly confirm any evidence of significant pathology in the lower back. His resistance to passive examination did not seem completely authentic and typical of intervertebral disc irritation of related nerve roots in the lower lumbar spine…
5. The extent to which the patient's employment or accident contributed to:
a) the development of the condition which the patient may be suffering is doubtful. He may have had transient aggravation of his lower back from some soft tissue irritation with the lifting strains;
b) there does not appear to be an aggravation, acceleration or exacerbation or deterioration of any pre-existing condition as far as one can determine clinically. I did not have the advantage of reviewing x-rays. I do not think that the aggravation is continuing however;
c) I am unable to determine whether this man has any permanent disability without assessing his spinal anatomy with the help of x-rays, CT scans or MRI scans;
d) I believe that he has some capacity for work and that the employment has not made him incapable of working.
6. As mentioned previously, I do not believe his working activities previously contributed to his present series of complaints…
9. Orthopaedically, I feel the prognosis is satisfactory. His general motivation however, is rather doubtful.
In a letter dated 20 July 1999 (N1999/1719, T4) Dr Hodgkinson stated:
I have viewed Dr Makarie's and Dr Maxwell's reports together with the CT scans of this man's spine.
As outlined in my report of 30th March 1999 I was unable to find conclusive clinical evidence of continuing pathology in this man's lumosacral spine which could be related to the lifting incident 20th May 1998.
The plain x-rays of the lumbosacral spine 21 May 1998 show slight constitutional narrowing of the L4-5 inter vertebral disc. There is no other evidence of instability of pathology which could have resulted from his employment with Australian Postal Corporation.
In another letter, again dated 20 July 1999 (N1999/1719, T5), Dr Hodgkinson opined:
Referring to Table 9.6 of the Guides this man has a Whole Person Impairment of 5%. This I believe is of a constitutional nature. There may have been a temporary aggravation following the incident 20 May 1998, however one would expect this to have resolved within three months.

submissions
Applicant

It was submitted for the Applicant that the issues to be considered by the Tribunal were threefold. Firstly, whether the Applicant suffered an injury at work on 20 May 1998; whether the Applicant suffered any incapacity as a result of that injury; and thirdly, whether the Applicant suffered a permanent back impairment as a result of that injury.
It was submitted that it was irrelevant to those three issues whether the Applicant mentioned his back injury to his supervisor, Mr McLean. Clearly the Aplicant said something to Mr McLean on the afternoon of 20 May 1998. It was submitted that the conflict between the evidence of Mr McLean and that of the Applicant is irrelevant to the fundamental issues before the Tribunal. If the Applicant told Mr McLean merely that he was sick, why then did he go to his doctor that night, tell him about a back problem, have an x-ray taken of his back on 21 May 1998, and obtain a certificate (1998/1305, T7)? There are medical certificates that certify the Applicant unfit for work.
It was submitted for the Applicant that it was irrelevant whether or not Mr Beque gave some warning to the Applicant that his contract may not be renewed unless his performance improved. It would be unfair to rely upon Mr Beque's evidence as the Applicant was not given a chance to answer Mr Beque's allegation. The other conclusion the Tribunal could draw was that no such warning was ever given. It was submitted that ultimately this was not a matter on which the Tribunal was required to make a finding.
It was submitted that the Applicant has suffered a back injury, had sought medical treatment and had been referred to a specialist. It was submitted that the evidence established on the balance of probabilities that the Applicant injured his back on 20 May 1998 as alleged.
There is no evidence to suggest that the Applicant has not injured his back. Although there were a few suggestions that the Applicant must have known his contract was coming to an end, it was submitted that these suggestions do not amount to any proof that the Applicant had not been injured.
In addressing the medical evidence and the issue of incapacity, it was submitted that on the evidence of Dr Makarie and Dr Maxwell, and the X-ray report, there was clinical evidence of a "lifting injury" consistent with the Applicant's evidence. Dr Maxwell on examination on 5 June 1998 and 28 August 1998 observed that the Applicant had muscle spasm and that movement was very restricted. It was submitted that muscle spasm is an objective clinical sign that the Applicant could not have contrived.
Mr Smith submitted that the Applicant was totally incapacitated for a short period, but thereafter there was and is an ongoing effect as a result of the injury, and on the evidence of Dr Maxwell (N1998/1305, T9) the Applicant is "unfit for work as a labourer". On the basis of Dr Maxwell's medical certificates it was submitted that the Applicant was unfit for work until 20 August 1998. However, on the basis that the Applicant was by then receiving Newstart Allowance, it was submitted that it could be concluded from the report of Dr Maxwell dated 22 June 1998, where he opined that the Applicant "is unfit for work as a labourer" that he was saying that the Applicant should not be doing labouring work but that there was probably some other work he was capable of doing at the time.
It was submitted that after 20 August 1998 the Applicant completed a taxi-driving course. The inference to be drawn from Dr Maxwell's medical certificates is that the Applicant had a capacity to work as a taxi driver from 20 August 1998.
It was the Applicant's evidence that his back condition is now the same as when he had the injury and that it has always been the same. The Applicant finds it difficult to drive taxis because sitting all day aggravates his back, and this prevents him from working more than four days a week. The Applicant's anecdotal evidence supports this. It was submitted that working as a taxi driver for four days a week returns about $400 to the Applicant, which is $50 less per week than he was receiving when employed by the Respondent. Hence there is a "minor ongoing partial incapacity".
Returning to the medical evidence, it was submitted for the Applicant that on the evidence of Dr Collins (exhibit C) the Applicant had a soft tissue injury to his back as a result of lifting; and that in the absence of an MRI, it is impossible to exclude rupture of the annulus. It was conceded for the Applicant that there is little evidence of any more significant discal injury.
It was conceded for the Applicant that Dr Collins' assessment of permanent impairment was not made by reference to the Comcare Guide to the Assessment of the Degree of Permanent Impairment. In referring to the Comcare Guide it was conceded that the Applicant had "minor restrictions of movement" which accounts for a 5 per cent level of impairment. As this is less than the 10 per cent minimum required by section 24 of the Safety Rehabilitation and Compensation Act 1988, it was conceded for the Applicant that the reviewable decision insofar as it related to permanent impairment should be affirmed.
Respondent
It was submitted for the Respondent that the credibility of the Applicant was at issue on a wide range of his evidence, and that very little of his evidence has been corroborated. The Applicant denied that he had been counselled about his work behaviour, yet this was contrary to the evidence of his supervisor, Mr Beque, who had cause to warn the Applicant on a number of occasions.
It was submitted that it was an important issue that the Applicant's employment contract was not going to be renewed, and one would think that the Applicant was smart enough to realise that. If the case was to be taken to its extreme: only days before his contract is about expire, when the Applicant might suspect that it is not going to be renewed, a critical incident occurred. At the same time, the Applicant's evidence about that incident is inconsistent with that of Mr McLean. While this evidence is not conclusive it is a reason why the Applicant's evidence should be treated with caution.
It was submitted for the Respondent that Mr Wilson, the only witness who could have supported the Applicant's case, was not called to give evidence. The inference to be drawn from this is that nothing that Paul Wilson could say would assist the Applicant. It was submitted that in respect of the conflicting evidence the Tribunal should in effect prefer that of Mr McLean.
It was submitted for the Respondent that the Applicant has exaggerated and misrepresented his case. It was submitted that the Applicant has got "next to nothing wrong with him". That the Applicant said his back has never got any better was highly unusual for what, at its highest, is described as a muscular strain.
It was submitted that the Tribunal should distinguish between the subjective and objective parts of Dr Maxwell's evidence. The subjective history given to Dr Maxwell does not correlate with the objective parts of his report.
Inconsistencies in the Applicant's evidence were raised in relation to his work history, in particular why he did not work as a taxi driver after becoming qualified. It was submitted that the Tribunal should have grave reservations about the Applicant's evidence and the lack of corroboration. The Tribunal should find that on balance that it was not satisfied that the Applicant hurt his back at work on 20 May 1998. In particular the Tribunal's attention was drawn to the evidence of Mr Beque in relation to the non-renewal of the Applicant's contract; the evidence of Mr McLean that he does not accept that there was an injury or that it occurred in the way that the Applicant says it did; and the lack of medical evidence. The only corroborating evidence was that of Dr Makarie and Dr Maxwell, which has no substance in relation to any objective pathology and which comes to unrealistic conclusions. It was submitted that the Tribunal should affirm the decision under review.
consideration of evidence and findings of fact

Pursuant to s14(1) of the Act, and the definition of "injury" in s4(1) of the Act, in order for the Tribunal to find that the Respondent is liable to pay compensation pursuant to the Act, the Tribunal must first be satisfied that the Applicant's injury arose out of, or in the course of, his employment with the Australian Postal Corporation.
The Tribunal is not reasonably satisfied, that on all the evidence before it, the Applicant has established that on 20 May 1998 he suffered an injury arising out of, or in course of his employment. On the medical evidence, any back condition suffered by the Applicant is very mild. The Tribunal finds that the Applicant is grossly exaggerating any disability that he has. The Tribunal notes that the medical evidence relies on the Applicant's subjective history and reports of his symptoms. The Tribunal does not find the Applicant to be a credible witness, and therefore his case is not assisted by the lack of corroborative evidence. His evidence was peppered with inconsistencies.
In respect of the alleged incident on 20 May 1998, the Tribunal notes the Applicant's evidence in relation to the alleged accident is inconsistent in its detail with the written statements of Mr Wilson, who notably has not been called to give evidence. The Tribunal was not reasonably satisfied that all reasonable efforts had been made to secure Mr Wilson's attendance at the hearing. Moreover, the evidence of Mr McLean is at odds with that of the Applicant about the incident and his reporting of the incident. While the Tribunal has some difficulty in some aspects of Mr McLean's evidence, and also that of Mr Beque, the fact remains that when the evidence is considered as a whole, the Tribunal cannot be reasonably satisfied that the Applicant injured his back while picking up a bag of mail on 20 May 1998. In the context of the Applicant's vulnerable contract prospects at the time, which the Tribunal finds the Applicant was aware of, it was certainly open to him to contrive details of the incident in order to make a claim for compensation. Putting aside the x-ray findings, which on their own are not significant, the Tribunal finds that all the medical evidence to support the Applicant's injury is based on the history provided by the Applicant. For the reasons already stated, without corroborative evidence or objective findings, the Tribunal is not reasonably satisfied about the truth of that history.
On this evidence the Tribunal is not reasonably satisfied that an injury arising out of, or in the course of, the Applicant's employment with the Respondent occurred on 20 May 1998. Therefore the Tribunal does not need to consider whether compensation is payable pursuant to sections 16, 19, 24, 27 and 29 of the Act. The Tribunal notes that Counsel for the Applicant correctly acknowledged the permanent impairment claim could not be sustained on the available evidence and agreed that that part of the decision under review should be affirmed.
For these reasons the Tribunal affirms all aspects of the decision under review.

I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr Thorpe, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  14 August 2000
Date of Decision  14 November 2000
Counsel for the Applicant        Mr E. Smith
Solicitor for the Applicant         Mr M. Berenger, Taylor & Scott Solicitors
Counsel for the Respondent    Mr N. Polin
Solicitor for the Respondent    Mr G. Jones, Graham Jones Lawyers