Alvarez and Australian Postal Corporation

[2003] AATA 1211

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1211

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2001/1361, Nº V2001/1362,
  Nº V2001/1363, Nº V2001/1364,

GENERAL ADMINISTRATIVE  DIVISION              Nº V2002/1109, Nº V2003/0202

Re:            JOSELITO ALVAREZ

Applicant

And:         AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

Date:             2 December 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

COMPENSATION ‑ plantar fasciitis ‑ lumbar disc condition ‑ shoulders and neck ‑ psychological injury ‑ permanent impairment ‑ whether injuries arose out of or in the course of employment ‑ credit of applicant

Safety, Rehabilitation and Compensation Act1988

REASONS FOR DECISION

2 December 2003  Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

1. These were applications to review six decisions of the Australian Postal Corporation (the respondent) each of which affirmed earlier determinations relating to claims for compensation by the applicant.  The reviewable decisions affirmed earlier determinations to the following affect:

   a.cease liability for compensation in respect of right plantar fasciitis from 1 August 2001;

   b.cease liability for compensation in respect of aggravation of degenerative lower lumbar disc condition from 1 August 2001 and deny liability for incapacity payments for the period from 17 May 2001 to 1 August 2001;

   c.cease liability for compensation in respect of left plantar fasciitis from 1 August 2001;

   d.deny liability for compensation in respect of right shoulder, neck, elbow and shoulder blade;

   e.deny liability for compensation in respect of left shoulder/arm and psychological injuries; and

   f.deny liability for compensation in respect of permanent impairment resulting from all of the above alleged injuries.

2. At the hearing, the applicant, Mr. J. Alvarez, was represented by Mr J. Perry of counsel for the first three days of hearing and by Mr A. Hounslow, a solicitor, for the remaining two days. The respondent was represented by Mr M. Gorton of counsel. Evidence was given by Mr Alvarez; a consultant in occupational health, safety and legal medicine, Dr M. Wallin; the applicant's general medical practitioner Dr D. Dinh; an orthopaedic surgeon, Mr R. Strangward; a consultant psychiatrist, Dr H. New; an orthopaedic surgeon, Mr I. Jones; and a manager with the respondent, Mr J. Baker. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (T39‑T132), the following documents were tendered by the parties:

   Medical Report of Dr M. Wallin dated 19 June 2002  Exhibit A1

   Medical Report of Dr H. New dated 10 September 2002                   Exhibit A2

   Medical Report of Dr D. Dinh dated 15 September 2002                   Exhibit A3

   Medical Report of Dr C. Mitropoulos dated 22 November 2002       Exhibit R1

   Medical Report of Dr N. Strauss dated 27 November 2002              Exhibit R2

   Medical Report of Dr I. Jones dated 20 December 2002                   Exhibit R3

   Further Report of Dr I. Jones dated 20 December 2002  Exhibit R4

   Sample of Anti‑fatigue floor matting  Exhibit R5

   Employee leave history  Exhibit R6

   Clinical Notes of Dr H. New  Exhibit R7

   Clinical Notes of Dr D. Dinh  Exhibit R8

   Photograph of a "colby"  Exhibit R9

3. Mr Alvarez was born in the Philippines on 30 June 1956 and immigrated to Australia in August 1986.  After working for the Victorian Railways and Vic Roads, he commenced working for the respondent in 1996 part‑time.  He moved to full‑time in 1997 on night shift at the Melbourne City Mail Centre in Spencer Street.  He said that the work involved sorting mail into frames with both the frames and his chair adjustable.  The work required him to be seated some 95 per cent of the time and he had no physical difficulties with this job.  Mr Alvarez said he has an ambition to do an Occupational Health and Safety (OH & S) course.  In July 1999 the respondent approved him doing such a course and, to enable him to attend lectures, he was transferred to the General Post Office (GPO) on day shift.  He acknowledged that the transfer was described as temporary but believed that the move to day shift would become permanent.  The duties at the GPO involved sorting junk mail into boxes, tubes or bags.  Mr Alvarez said that the work required him to be standing on a concrete floor some 95 per cent of the time and was divided between three floors involving considerable use of stairs.  He said that, on an average day, he was required to lift some 50 bags of mail from a trolley, known as a "colby," at various heights ranging from waist high to above or below waste high.  He maintained that over 85 per cent of the bags weighed more than the specified maximum weight of 16kg.  He maintained that the ground floor was solely concrete, the mezzanine floor had a hard vinyl covering and although the third floor had carpet he was there only briefly to collect mail.  He denied that any floor had rubber covering.

4. Mr Alvarez said that he first noticed pain in his right foot in August 1999 and started to wear rubber‑soled shoes.  Prior to lodging his claim for the right foot on 8 November 1999, in which he stated the date of the injury was 22 October 1999, Mr Alvarez was told by a female colleague that he may have the same problem of plantar fasciitis from which she suffered and which had been accepted as a work related injury by the respondent.  Mr Alvarez acknowledged that he was upset that her claim had been accepted but his had not.  Mr Alvarez was referred to an orthopaedic surgeon, Mr P. Kudelka on 16 December 1999 by his general practitioner in relation to his right foot pain.  Mr Alvarez said that he told Mr Kudelka of pain in the left side of my bum and pain in the left leg.  Mr Kudelka diagnosed right plantar fasciitis and a degenerative lower lumbar spine disc.  The claim for compensation for the lumbar disc condition and left sciatica condition was made on 9 February 2000.  Mr Alvarez believed that the pain from the condition started in November or December 1999.  He stated that he had not realised until he saw Mr Kudelka that he had a problem with his lower back.

5. On 30 May 2000, Mr Alvarez made a claim for compensation in relation to heel spur, left foot heel, which was first noticed on 17 April 2000.  He said that he ceased work for some four to five months because of pain in his back and both feet.  It is not clear over what period this occurred.  Mr Kudelka provided certificates regularly from 6 April 2000 stating that Mr Alvarez was fit for modified full‑time duties with restrictions on lifting weights over 5kg and alternating sitting and standing each 30 minutes.  Mr Alvarez was unable to recall the restriction on sitting or standing more than 30 minutes and maintained that only a small quantity of mail was below 5kg in weight.  He acknowledged that a return to work program had been established but could not recall the details.

6. On 5 June 2001, Mr Alvarez made a claim for compensation in relation to right shoulder, neck, elbow and shoulder blade said to have been first noticed on 28 March 2001.  He attributed the injury to sorting letters into frames.  He received treatment from his general practitioner, Dr Dinh, on 6 April 2001 for right shoulder strain and was given a medical certificate stating that he was fit for duties not involving sorting with his right arm or hand until 15 April 2001 after which he was expected to be fit for normal duties.

7. On 9 September 2002, Mr Alvarez lodged a claim for compensation in relation to left shoulder/arm first noticed in late 2001 and attributed to over‑use as a result of injury to my right shoulder.  A further claim was made on the same date for psychological injuries said to have been first noticed in August/September 2001 and attributed to stresses arising from previous injuries to my feet, back and shoulders.  On 15 September 2002 a claim for permanent impairment under s.24 and s.27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) was lodged by Mr Alvarez's solicitors in respect of left foot, right foot, back, neck, right shoulder/arm, psychological injuries and left arm.

8. Mr Alvarez maintained that he had no physical or medical problems prior to commencing at the GPO in July 1999.  In cross‑examination he acknowledged that he had suffered an accident when with the Victorian Railways in July 1996 when he received an electric shock and suffered pain in his right elbow.  He was unable to recall seeing a doctor at Sunshine Brimbank Clinic on several occasions in 1997 for a sore arm and elbows nor being referred to a rheumatologist in May 1997 for persistent pain in his right elbow and shoulder.  Also, in cross‑examination, Mr Alvarez was not prepared to respond to questions relating to the clinical notes of the Sunshine Brimbank Clinic relating to concern about excessive consumption of alcohol in 1996.  He did, however, acknowledge that he would drink some twelve beers on a Saturday night usually at a small party and, when he cannot afford beer, he drinks some three casks containing four litres of wine each during a week.

9. Mr Alvarez acknowledged that he had separated from his wife in September 1999 prior to his first claim for compensation.  He believed that his mother‑in‑law had conspired with his wife to arrange the separation and said that they had ruined his plans for the future.  Mr Alvarez acknowledged that he had unsuccessfully applied for OH & S positions with the respondent and felt cheated that he had not been rewarded for his contribution to health and safety matters.  In his evidence he said that I have no wife, no future, nobody would accept me for a job because of my injuries.  Mr Alvarez ceased work in April 2001 and, apart from some apparent brief attempts at rehabilitation, has not worked since.

10. The original claim for compensation for the right foot condition and lumbar disc pathology and left sciatica were denied initially by the respondent.  However, on 11 April 2001, the respondent on its own motion reconsidered the determination and accepted liability in respect of right plantar fasciitis from 22 October 1999 and aggravation of degenerative lower lumbar disc condition from 7 February 2000.  On the same date, the respondent accepted liability for left plantar fasciitis from 30 May 2000.  On 1 August 2001, the respondent made determinations ceasing liability for these three conditions as from that date and denied liability for incapacity payments from 17 May 2001 to 1 August 2001.  On the same date the respondent denied liability for the right shoulder, neck, elbow and shoulder blade.  On 12 September 2001 the respondent denied liability for the left shoulder and arm and any psychological injury.  On 28 November 2002 liability for permanent impairment as a result of any of the claimed conditions was denied.

11. The determinations of 1 August 2001 were based primarily on a report from Mr Jones, who initially examined Mr Alvarez on 23 July 2001.  In that examination Mr Jones considered that there was a marked functional component in the foot symptoms complained of.  He found no clinical evidence of sciatica with age related degenerative changes to the lumbar spine.  He was of the opinion that any contribution by employment to the right shoulder, back or left or right foot had been temporary and had resolved.  Mr Jones considered that long term standing on a hard floor can aggravate plantar fasciitis but such standing was not necessarily the specific reason for its onset being a common condition in the community, frequently without apparent external cause.  Mr Jones re‑examined Mr Alvarez on 18 December 2002 and was concerned at the apparent limitation of movement demonstrated.He stated that his observations of the informal range of movements led him to believe that they were almost normal.  He remained of the view that Mr Alvarez did not then suffer from any condition, which had been caused or significantly contributed to by his employment with the respondent.  Mr Jones was of the view that Mr Alvarez was fit for full‑time work with restrictions on repeated bending or lifting.

12. After his initial referral to Mr Kudelka on 16 December 1999, Mr Alvarez continued to be treated by that orthopaedic surgeon with his last visit on 31 May 2001.  In his report to the respondent of 21 June 2001, Mr Kudelka said at T72 p170:

    This patient has a mechanical back strain associated with degenerative changes in the lower lumbar discs.  These changes are due to the normal ageing process.  His complaint of backache relates to lifting, which I suggested should be avoided.  Secondly the patient had some plantar‑fasciitis and mild calcaneal spurs, which are also due to the ageing process and are aggravated by long hours on his feet.  I have also suggested this be avoided.

    Both these conditions are due to the normal ageing process.

    …

    I do not think his employment with Australia Post either caused or significantly aggravated his condition, but because of his condition I have suggested avoiding lifting excessively or excessive hours on his feet.  My understanding is that both these conditions have been met in that the patient had been on restricted duties for some time.  Any aggravation in my view would cease if the patient avoided lifting and avoided long hours on his feet.

    The patient stated that he strained himself at work on 16.5.2001 but I have no direct evidence as to how or why such a strain might have been caused.  One is entirely reliant on the patient's own complaints.

    …

In this and a subsequent report of 10 July 2001 (T77), Mr Kudelka was concerned at the degree of motivation of Mr Alvarez to continue working and whether factors other than work were relevant to his motivation.

1. Dr Wallin examined Mr Alvarez on 19 June 2002.  He found modest clinical signs consistent with the presence of disability involving his neck, right shoulder, thoraco‑lumbar spine and both heels.  He did not consider that Mr Alvarez had exaggerated his symptoms.  His opinion that these disabilities were aggravated was based primarily on the history given by Mr Alvarez.  We had some reservations on the opinion of Mr Wallin.  In his report he referred to a 1996 injury at Australia Post Parcels Centre of which there was no evidence by Mr Alvarez, who maintained he was injury free until August 1999.  Dr Wallin estimated Mr Alvarez as being 176cm in height although it would appear that no actual measurement was made.  He is clearly considerably shorter than that with Dr Kudelka measuring him at 163cm.  Dr Wallin said that Mr Alvarez's left calf and thigh circumferences were marginally decreased compared to the right side.  In his oral evidence, Dr Wallin acknowledged that his measurements were by hand span only.  Other examining doctors using a tape measure found no relevant difference in leg circumference.

2. Mr Strangward examined Mr Alvarez on 19 June 2001.  In his report dated 26 June 2001 (T73), Mr Strangward said that he found some moderate restriction in movement of head, neck, shoulder, upper limbs and back.  He noted that soreness of both soles of the feet appeared out of proportion to what might be anticipated.  He also commented that Mr Alvarez walked with a slightly strange gait, which seemed contrived.  He took no history of any specific trauma and considered Mr Alvarez suitable for modified semi‑sedentary type duties.  In his oral evidence, Mr Strangward acknowledged that he has not taken any detailed history of weights lifted or the specifics of the duties of Mr Alvarez.  He did not consider that any problem with the feet would contribute to greater strain on and aggravation of a patient's back.  He was of the opinion that calcaneal spurs take many years to develop and usually result from prolonged trauma over many years.  Plantar fasciitis can occur without any identifiable cause but becomes symptomatic from prolonged trauma.

3. The Tribunal had evidence from two psychiatrists, Dr New, who had been treating Mr Alvarez from 18 April 2001 to May 2002, and Dr N.. Strauss, who examined him on 22 November 2002.  Both diagnosed adjustment disorder with depression and both considered that, if Mr Alvarez's physical injuries were established and employment related the psychiatric condition would be also employment related.  Dr New had been given a history of no significant marital discord or alcohol problems prior to his injuries at work.  Dr Strauss was given a history that Mr Alvarez began drinking when his marriage ended.  Both were told by Mr Alvarez of his allegations of being discriminated against.  Dr New found that he exhibited some elements of paranoia.  Dr Strauss found that there was a contribution to the psychiatric condition from the marital problems, a failure to obtain an OH & S position, alleged racial discrimination and difficulties of living in rented accommodation with his mother.

4. Mr Baker was the manager of the GPO when Mr Alvarez was working there.  He had been requested to provide Mr Alvarez with a temporary position so that OH & S studies could be pursued.  Mr Baker acknowledged that the work involved a considerable amount of standing but much less than the 95 per cent alleged by Mr Alvarez.  The duties were spread over three floors with the first floor fully carpeted, the mezzanine floor having vinyl tiles over concrete and the ground floor having a mixture of concrete and vinyl with a large proportion having cork anti‑fatigue matting.  Mr Baker said that Mr Alvarez would be on the first floor on Monday of each week processing paper work and checking the contents of the colby.  Most of the time involved seated work.  The contents of the colby were then transferred to the mezzanine or ground floor for sorting.  Mr Baker maintained that it was rare for there to be more than two colbies on a Monday and one more later in the week.  He strongly denied Mr Alvarez's assertion of 10 to 12.  He disagreed that many of the bags in the colby weighed more than 16kg.  He said that a colby had two gates, upper and lower and it was unnecessary to lift bags over the top of the colby.

5. It should be said that we found Mr Alvarez an unsatisfactory witness.  While denying initially any prior physical problem before 1999, he was somewhat evasive in his responses to questions relating to medical notes in relation to the accident in 1996 and regular treatment for sore arms and elbows in 1997.  He gave both psychiatrists a history of no alcohol problems prior to his 1999 injury or his separation from his wife notwithstanding medical references to concerns relating to excessive consumption of alcohol in 1996.  To the psychiatrists, he blamed the separation from his wife on his injury, but the separation took place in September 1999 and he stated that the foot problems commenced in August 1999.  It would appear most unlikely that one foot problem commencing in August could be a cause of marital problems culminating in separation one month later.  In any event, this alleged cause of the separation conflicts with the oral evidence of Mr Alvarez attributing the separation to a conspiracy between his wife and mother‑in‑law.  While the medical evidence confirms that Mr Alvarez has mild plantar fasciitis and calcaneal spurs in both feet, that evidence also demonstrated that these conditions take considerable time to develop and it is not feasible that such a condition could have developed in the right foot within a few weeks of commencing duties at the GPO.  The evidence of Mr Alvarez was not at all clear as to any specific work related reason for his alleged back condition but the claim appeared to have been made after Dr Kudelka discovered that he had a back problem.  We were left in no doubt from the evidence of Mr Baker that Mr Alvarez exaggerated the volume of mail to be dealt with, the amount of time spent on his feet and the condition of the floor on which he worked.  He was clearly resentful that his claim for plantar fasciitis had been denied initially and then accepted for a limited period only, while a fellow worker's claim had been accepted.  He was resentful also, that he had not been accepted for an OH & S position and was facing a return to night shift work.  There were also other difficulties with Mr Alvarez's life with marital problems, difficulties of living with his mother and excessive drinking for many years.

1. We are satisfied that Mr Alvarez sought to exaggerate both the severity of his physical complaints and the working conditions which were alleged to have caused or aggravated those complaints.  This view was supported by Mr Jones's evidence and the evidence of Mr Strangward, particularly in relation to the effects of problems with Mr Alvarez's feet.  While accepting that he has plantar fasciitis of both feet and degenerative changes to his lumbar spine we are satisfied on the balance of probabilities that any employment related contribution to the conditions had ceased by 1 August 2001.  As indicated earlier, it is not probable that a short period of standing on a hard floor could have caused the plantar fasciitis and we have no evidence to satisfy us that any injury or aggravation of injury to his back, shoulders or neck arose out of, or in the course of, his employment with the respondent.  In view of these findings, it follows that the claim for psychological injury arising from such physical injuries did not arise out of, or in the course of, such employment.  In any event, we prefer the evidence of Dr Strauss that a major contribution to any psychiatric condition was the non‑employment‑related matters.  Again given the findings, the claim for permanent impairment arising from the alleged injuries cannot succeed.  It should be added that all of the medical evidence was that Mr Alvarez is capable of working full‑time with likely minor restrictions to avoid aggravation of his degenerative back condition. 

2. It follows from the foregoing that the decision under review should be affirmed.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Dates of Hearing:  25 October 2002; 27 March 2003; 17 June 2003;

16‑17 September 2003

Date of Decision:  2 December 2003
Counsel for the applicant:            Mr J. Perry and Mr A. Hounslow
Solicitor for the applicant:            Hounslow & Associates

Counsel for the respondent:         Mr M. Gorton

Solicitor for the respondent:        Sparke Helmore