Barry and Australian Postal Corporation
[2006] AATA 483
•2 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 483
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos. N2005/505, N2005/823,
) N2005/1246
GENERAL ADMINISTRATIVE DIVISION ) Re DEBRA BARRY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, MemberDate2 June 2006
PlaceSydney
Decision 1. The reviewable decisions in matters N2005/505 and N2005/823 are affirmed.
2. The reviewable decision in matter N2005/1246 is set aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant is entitled to ongoing payments pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
3. The Respondent is to pay the Applicant’s costs as taxed or agreed in matter N2005/1246.
(Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – review of 3 decisions including a claim for permanent impairment of the lower back – Applicant had accident while delivering mail on a motorcycle – later she developed a disc protrusion in her back – whether the injury made a material contribution to the later disc prolapse – decisions in N2005/505 and N2005/823 affirmed – the decision in N2005/1246 is set aside and the Tribunal decides that the Applicant is entitled to ongoing payments with respect to her lumbar nerve root irritation and lumbar disc protrusion.
Safety, Rehabilitation and Compensation Act 1988 s14, 16, 22, 24
Comcare v Canute [2005] FCAFC 262
Suters v Australian Postal Corporation (1992) 28 ALD 320
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
2 June 2006 Senior Member M D Allen
Dr M E C Thorpe, Member1. These proceedings concerned three applications for review lodged by the Applicant namely:
(a) N2005/505 seeking review of a reviewable decision affirming a prior determination that the Applicant was not entitled to the payment of taxi fares for attendance upon treating medical practitioners.
(b) N2005/823 seeking review of a reviewable decision affirming a prior determination that the Applicant was not entitled to compensation for permanent impairment as a result of a lower back condition.
(c) N2005/1246 seeking review of a reviewable decision affirming prior determination that the Respondent was under no present liability in respect of the Applicant’s lumbar nerve root irritation and lumbar disc protrusion.
2. The Applicant made claims relating to her cervical spine and psychiatric condition but these were not the subject of any review in these proceedings. Initially the Applicant made a claim for compensation in relation to her low back resulting from an incident on 20 October 2003 and that claim was accepted on 10 November 2003. The condition was then described as “acute left sided low back pain (mechanical)”.
3. The Applicant’s evidence in these proceedings was that on 20 October 2003, she was carrying out her duties as a postal delivery officer riding a motorcycle. A pannier bag on the right hand side of the motorcycle became snagged on a tree. This caused the bike to come to a sudden stop and as a result she pulled back on the throttle. This caused the bike to accelerate and in so doing it pulled away from the tree but the rear of the bike slid out to the left and hit a fence. The bike then came to a halt, the Applicant’s feet landed on the ground instead of being on the foot peddles. At the same time a box on the back of the bike used to carry registered mail hit her “on the tail bone”.
4. The Applicant regained her balance and settled herself. At the time of the accident when the box hit her she felt a pinprick sensation on the inside, in the area of the coccyx. She was able to finish her shift and return to the depot.
5. That night the Applicant experienced discomfort in her lower back. The symptoms which she experienced that night were different from previous episodes of back pain. On complaint of symptoms at work, she was referred to Dr Ng whom she attended on 23 October 2003.
6. Dr Ng’s Clinical Notes are in evidence as exhibit R3. As at 23 October 2003 they record the Applicant as suffering from acute left sided low back pain over the upper and mid lumbar region. There were no leg symptoms. The notes further record that the range of movement of the trunk was “fairly satisfactory” with forward flexion and extension to ½ normal. Straight leg raise was to 90 degrees both sides.
7. As a result of her consultation with Dr Ng, the Applicant was prescribed physiotherapy. At this time the Applicant did not have any time off work. She continued to see Dr Ng who continued to provide medical certificates. A certificate dated 18 December 2003 recorded that the Applicant remained pain free in her lower back with normal range of movement and was fit for all work duties.
8. On 29 January 2004 the Applicant stopped riding a motorcycle on the advice of her psychiatrist. She was then given a walking beat for the delivery of mail. Prior to that on 11 January 2004 she made a further complaint of low back pain after hitting a gutter on her motorbike. The notes of a Dr Garber record the Applicant stating that pain radiated down to both feet. There is no record of the Applicant having taken any time off work as a result of this incident.
9. The Applicant complained of a “tight” feeling in her left leg with pain from her hip down to her ankle following her walking beat on 2 February 2004. This was her first day walking to do postal deliveries instead of being on a motorcycle. On 10 February 2004 she told Dr Ng that although she felt better in her back walking and was happy and relaxed, the pain in her left calf had worsened with a stabbing sensation in her left buttock and gastrocnemius muscles.
10. Soreness and paraesthesia continued in her left leg. Having commenced riding a motorcycle again, she ceased in March, April 2004 and has not ridden one since then.
11. Due to the pain in her left leg and back the Applicant has difficulty using public transport. In July 2004 Dr Ng recommended she not use public transport over the next month to avoid total body vibration which could potentially aggravate her low back condition. By August 2004 the Applicant was in alot of pain but considered she could have returned to work on light duties. The Applicant claims that state still continues and she cannot use public transport to travel to work. In a report dated 10 February 2005, Dr Khor, a Specialist in Pain Management, supported her avoidance of public transport stating “radicular symptoms can be aggravated by sudden jarring”.
12. On 6 October 2004 the Applicant consulted Dr Zicat at the request of her then solicitors. Dr Zicat took a history of localised back pain in the lower back, extending from the sacrum to the thoracolumbar junction. He also recorded the Applicant as having pain in both legs and stated:
“As a result of these problems, Ms Barry has difficulty with many of her usual activities. Sleep is restricted to less than six hours a night, of broken sleep. She has difficulty showering and drying, as well as bending over the sink to brush her teeth and do her hair. She has difficulty donning and doffing shoes, socks and pants. She has difficult {sic} cooking and cleaning, and has been unable to return to vacuuming. She has difficulty washing up, and has been unable to return to mowing the lawn or gardening. She is unable to drive a car. She is unable to go shopping. She has been unable to return to driving, riding her motor bike or riding a push bike, as she did previously…”
At page three of his report Dr Zicat states under the heading”Investigation”
“I have reviewed the results of her lumbar spine radiographs performed in April 2004, that demonstrated no abnormality. CT scan of the lumbar spine performed at the same time demonstrated gross disc prolapses at L4/5 and L5/S1, with likely neural compromise given the extent of the prolapsed disc. MRI examination performed later in April 2004 demonstrated evidence of injury to the L4/5 and L5/S1 disc, with loss of disc height at L4/5, and loss of normal hydration signal at both levels. There was evidence of extruded disc protrusion at both levels, consistent with compromise of the L5 roots bilaterally at L4/5, worse on the right than the left, and predominantly central and left paracentral extrusion at the L5/S1 levels.”
There has been no dispute as to the findings on imaging.
13. The Applicant has continued to experience pain in her back and paraesthesia. She cannot drive a motor vehicle because of sciatic pain in her left leg. She finds however that walking gives relief to her back pain. She has attended a pain clinic but although offered a Return to Work Programme in January 2005, stated to Dr Ng she was too emotional and stressed to carry it out. She has not worked since May 2005.
14. Complicating the Applicant’s presentation is her psychiatric illness. Her treating Psychiatrist, Dr Thompson, diagnosed her as suffering from an adult attention deficit hyperactivity disorder. We prefer the diagnosis of Dr Lovric of bipolar disorder. The psychiatric illness howsoever described, does not however have any relevance as to the pathology of injury.
15. Dr Vonau, Neurosurgeon, saw the Applicant in April 2004 on referral from Dr Ng. She took a history of the Applicant suffering back pain and buttock pain following the October 2003 incident and then experiencing pain and paraesthesia in her left leg from early February. No mention is made of any incident of the Applicant’s motorcycle striking a gutter in January 2004. On examination Dr Vonau noted:
“…there was no significant back tenderness. She could bend down to reach the lower shin experiencing no leg pain. Extension gave back pain, lateral flexion to either side gave a sensation in the left buttock. She could walk on her toes and heels without difficulty. Straight leg raising was 45 degrees bilaterally, power was normal as was reflexes and sensation.”
No comment was made in Dr Vonau’s report regarding causation.
16. At the request of the Respondent the Applicant was examined by Dr Maxwell, Orthopaedic and Spinal Surgeon, on 8 April 2004. He took a history of the Applicant having no previous back problems. This history is contrary to fact and there are two incidences of prior back pain recorded, one in August 2003 in Dr Ng’s Clinical Notes and a prior incident on 11 May 2002. No history was obtained of her motorcycle hitting a gutter in January 2004.
17. In his report Dr Maxwell opined:
“Given the history of her previous work related injury I consider the likely scenario is that she tore some of the posterior fibres of the annulus in the twisting injury at work and has subsequently developed a prolapse of the nucleus pulposus in February.”
18. That opinion regarding causation was adopted by Dr Pierides, Occupational Physician in his report to the Respondent dated 18 August 2004. At page two of his report Dr Pierides states:
“She saw Dr Maxwell who stated that he felt Debra’s back injury occurred as a result of initial rents to the 2 low lumbar discs as a result of the motor bike accident which then developed into disc protrusions with the passage of time. Given the nature of the injury I agree with Dr Maxwell that this is what happened.”
19. Dr Maxwell has reconsidered his opinion regarding causation. In his most recent report dated 9 November 2005, Dr Maxwell states that the history of the incident as first related to him was somewhat different to what he now understood it to be, plus he now had a history of back pain prior to the October incident. At page two of his report he stated:
“In my Opinion on page 3 of my original report dated the 8/4/2004 I felt that the motorcycle incident in October 2003 (which she described more graphically to me) she may have injured her disc which subsequently prolapsed. The fact that she had almost recovered from this episode by 6/11/2003 as noted by Dr Ng indicates this is unlikely. There was a period when she became asymptomatic until February 2004. I now consider it is unlikely that the incident of October 2003 is related to her disc protrusion which appeared to have occurred spontaneously without further injury in February 2004.”
20. Dr Maxwell adhered to this opinion during his evidence before the Tribunal. He explained that the significance of the October 2003 injury was minimal in that the Applicant had made a recovery and had she damaged the annulus of the disc at that time she would have experienced more discogenic back pain. His opinion was that the Applicant had a degenerative back condition and that the October 2003 incident caused some temporary aggravation from which she recovered but that a spontaneous prolapse was suffered in February 2004.
21. Dr Zicat who was called by the Applicant, considered that Dr Maxwell’s original opinion was the correct one. In particular the sequence of events namely a significant back injury in October 2003 followed by another back injury in January 2004 and then the development of a significant disc prolapse in February 2004, fitted in with his and Dr Maxwell’s original opinion.
22. The opinion of Dr Zicat can be summed up by stating that he saw the injury of October 2003 as causing an injury to the spinal disc which healed to some extent but which remained injured and contributed to the protrusions which occurred in February 2004.
23. Both Dr Zicat and Dr Maxwell were of the opinion that the pain the Applicant complained of in February 2004 was consistent with her developing a disc protrusion.
24. Neurologist, Dr Milder, saw the Applicant on two occasions. In evidence he also opined that the Applicant had been subjected to stresses in her back in October 2003 which had resulted in damage namely, a tear to the annulus of the discs and this in turn caused her to be at risk to further damage such as a spontaneous protrusion.
25. Rheumatologist, Dr McGill, examined the Applicant at the request of the Respondent on 28 July 2005. His opinion was that the incident in October 2003 produced a temporary aggravation of symptoms relating to a pre-existing degenerative lumbar disc disease which then resolved. The October 2003 incident played no part in her later disc prolapse. It was most unlikely that the disc had prolapsed in October 2003 not only because of her recovery, but because if she had had a prolapse then she would have been quite disabled in the days immediately thereafter, which was not the case.
26. Although it is not his belief, Dr Maxwell was prepared to concede that the opinion of Dr Zicat as to the October 2003 incident contributing to the disc prolapse in February 2004 was a possibility. We note that Dr Maxwell originally implicated the October 2003 incident as causative of the subsequent prolapse and although we accept the earlier back symptoms complained of by the Applicant are indicative of degenerative disc disease, we do not regard the difference in description of the October 2003 incident as significant. To our mind both scenarios, that is to say the original scenario described to Dr Maxwell and that described in evidence, show a significant twisting motion and degree of impact.
27. Dr Maxwell’s original opinion has been endorsed by Drs Milder, Pierides and Zicat. Whereas Dr McGill’s opinion is to the contrary we find that the most probable cause of injury is that the Applicant had degenerative disc disease in her back but that the twisting type injury experienced in October 2003 damaged the discs so as to make them more susceptible to a later prolapse which was either spontaneous or contributed to by further injury in January 2004.
28. For the injury sustained in October 2003 to be compensable it must have been a “material contribution” to the ultimate disc prolapse in February 2004. As was pointed out by the Full Court of the Federal Court in Comcare v Canute [2005] FCAFC 262, the use of the word “material” in the definition of “disease” in s 4 of the Safety, Rehabilitation and Compensation Act 1988 must be given its effect and an Applicant must show that the employment is more than a mere contributing factor.
29. As to what is “material”, the Court said at paragraph 66 referring to Suters v Australian Postal Commission (1992) 28 ALD 320, that the exposition of the meaning of the term “material” in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 was relevant.
30. In this matter we are satisfied that the incident on 20 October 2003 did make a contribution to the ultimate prolapse and that contribution was a material one, in that it was of significance and real.
31. Considerable doubt has been raised regarding the degree of impairment suffered by the Applicant as a result of her disc prolapse. As early as February 2005 when seen by Dr Maxwell, he was of the opinion that the disc protrusion at L4/5 was reabsorbing. He also noted straight leg rising was 90 degrees bilaterally and she was able to flex and reach her mid calf level. Extension was 70 per cent of normal.
32. Drs Maxwell and McGill both stated that a disc prolapse would over a period reabsorb to some degree.
33. Dr Ditton in June 2005 also noted spinal flexion to 90 degrees and the reasonable level of spinal extension. Lateral flexion allowed the Applicant to touch her knees.
34. More significant were video films taken of the Applicant. These films had been shown to Drs McGill and Maxwell and although Dr McGill entered the caveat that such films cannot be used in isolation, both doctors were satisfied that in the films the Applicant showed no degree of incapacity.
35. Some of the activities the Applicant was observed performing on the video film were put to Dr Zicat. He was asked “that’s certainly not the sort of person who presented to you back on 6 October 2004. That’s right isn’t it?” to which he replied “that’s correct”.
36. Further, when one has regard to the description in Dr Zicat’s report of 6 October 2004 of the Applicant’s complaints and compares that recitation of inability to function with the person shown on the video film it is quite clear that the Applicant has made a considerable improvement in her physical abilities.
37. The most recent medical report dealing with the degree of impairment is that of Dr McGill on 28 July 2005. After a full examination of the Applicant he concluded that so far as the Applicant’s lumbar spine is concerned, her degree of impairment is nil. This has been confirmed by viewing the video evidence.
38. We are thus satisfied that the Applicant has minimal impairment from her lumbar disc prolapse. Further, any current impairment is not permanent as the prolapse will reabsorb albeit not completely but this partial reabsorption will in turn affect the range of movement available to the Applicant.
39. So far as the Applicant’s claim for taxi fares to her place of employment are concerned we know of no specific provision of the SRC Act which creates in the Respondent a liability to meet such expenses.
40. In coming to the above conclusion we accept that if the Applicant is subject to a Return to Work Programme or a Rehabilitation Programme pursuant to s 37 SRC Act, taxi fares could be paid as an incidence of those activities. Similarly if further medical reports are requested, it will be a matter for judgement at the time if taxi fares are to be made available to the Applicant.
41. For the reasons above, the decisions in matters in N2005/505 and N2005/823 are affirmed. The reviewable decision in matter N2005/1246 is set aside and the Tribunal substitutes its decision namely, that the Applicant is entitled to ongoing payments pursuant to sections 16 and 19 of the SRC Act 1988.
42. The Respondent is to pay the Applicant’s costs, as taxed or agreed, in matter N2005/1246.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member
Signed: E.Pope .....................................................................................
AssociateDates of Hearing 10, 11 and 12 May 2006
Date of Decision 2 June 2006
Counsel for the Applicant Mr David Richards
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr Paul Jones
Solicitor for the Respondent Forners Solicitors
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