Botros and Australian Postal Corporation
[2008] AATA 881
•3 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 881
ADMINISTRATIVE APPEALS TRIBUNAL ) N 2006/2518; N 2006/2519; ) 2007/1102; 2007/1104;
) 2007/1448; 2007/2942;
) 2007/3807; 2007/3809;
) 2007/4145; 2007/447; ) 2008/208 & 2008/1931.
GENERAL ADMINISTRATIVE DIVISION ) Re RAGAI BOTROS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal MS N BELL, Senior Member
DR M E C THORPE, MemberDate3 October 2008
PlaceSydney
Decision The Tribunal affirms the decisions under review. .....................SGD.........................
Ms N Bell, Senior Member
CATCHWORDS
WORKER’S COMPENSATION – Does the Applicant suffer from a Permanent Impairment as a result of a musculo-ligamentous sprain to the lumbar spine sustained at work – entitlement to compensation for medical expenses and incapacity payments – pre-existing condition – Does Applicant suffer from a psychiatric condition attributable to his employment – Decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1988; sections; 8, 16, 19 14(1) and 5A
REASONS FOR DECISION
3 October 2008 MS N BELL, Senior Member
DR M E C THORPE, Member1. Mr Ragai Botros began work with Australia Post as a Technical Officer in 2000. In May 2003 he lodged an Incident Report Form stating that on 18 May 2003, after lying on his back repairing machinery, he experienced pain in his legs and back.
2. Australia Post accepted liability under section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for Mr Botros’ musculo-ligamentous back injury. Limited incapacity payments and payments for treatment expenses were made until 16 September 2003, when Australia Post determined that the effects of the injury had ceased. In November 2004 the Tribunal set aside that decision and decided instead that Mr Botros had suffered an aggravation of his pre-existing back condition and the effects of that aggravation were continuing.
3. In 2007, Australia Post again determined that the effects of the incident had ceased and also made a number of consequential determinations. Mr Botros seeks a review of those determinations by this Tribunal.
issues
4. The essential question for us to consider is whether Mr Botros continues to suffer from the effects of the incident of 18 May 2003. The answer to this will determine the majority of the other issues that arise out of the 12 applications made by Mr Botros. Those issues may be summarised as whether Mr Botros:
a) has a permanent impairment of his lower back;
b) should be paid compensation for the periods for which he claims he was incapacitated for work;
c) should be paid treatment expenses, in particular, for a massage cushion;
d) suffers from a psychiatric condition attributable to his employment with Australia Post; and
e) is prevented by his medical condition from working night shift.
5. In relation to the second last issue, if we find Mr Botros’ psychiatric condition is attributable to his employment, we will consider whether the exclusionary provisions in the definition of “injury” in the Act operate to preclude liability.
does mr botros CONTINUE TO suffer FROM the effects of the 18 may 2003 incident?
6. There is no dispute that Mr Botros suffers from pre-existing, underlying degenerative facet joint disease of the lumbar spine and congenital spinal canal stenosis. The question for us to consider is whether the incident of 18 May 2003 had a continuing aggravating effect on that condition.
7. We note that the clinical notes of Dr Richard Sue, Mr Botros’ General Practitioner, and his report of 15 December 2003 reveal a history of Mr Botros complaining of low back pain as early as January 2003. Mr Botros told Dr Sue that “bending and prolonged standing” made the pain worse. Dr Sue also suggested a history of intermittent back pain until it became worse in May 2003.
8. We also note Mr Botros’ evidence that, in January 2003, he had been complaining of occasional lower back ache with pain radiating down the back of his legs at the same site he complains of now, although not nearly as severe as his current pain. This evidence is in contrast to his previous evidence to the Tribunal in 2004, when he said he had no history of back pain and when he consulted Dr Sue in January 2003 he was simply seeking advice about future possible back pain or stiffness from standing on concrete floors and how he might prevent it. Although Mr Botros was eager to explain that his later pain was far more severe than his symptoms in January 2003, his evidence was, at its heart, inconsistent with the evidence he gave to the Tribunal in 2004. We note that Mr Botros initially adopted, as part of his evidence in this hearing, the summary of his evidence set out in the reasons for decision of the previous Tribunal. When these contrasting versions of events were put to him in cross examination, he appeared to be evasive.
9. This evasiveness contributes to our inability to accept his evidence that he suffered no further pain in his back or legs, after January 2003 and up until the incident of May 2003. We note he gave this evidence despite Dr Sue’s report of 15 December 2003 that he had been experiencing some back pain at work since January 2003.
10. We also note the clinical note from the Halven Street Medical Clinic on 31 May 1998 which records pain in Mr Botros’ left leg from his buttock. He was prescribed Feldene. Mr Botros maintained he had no memory of this consultation.
11. Added to this is Mr Botros’ delay of some four days before consulting his General Practitioner after the incident on 18 May 2003.
12. We are mindful of the decision and reasoning of the Tribunal in 2004, to the effect that Mr Botros’ attendance on Dr Sue gave rise to no adverse inference and was sufficiently met by Mr Botros’ explanation that he was merely “seeking advice only concerning the issue of backache/stiffness arising from standing on concrete surfaces at work for long periods” and that “there was no intermittent back pain between (the January consultation with Dr Sue) and 18 May 2003, the date on which the back pain commenced”. However, Mr Botros conceded, in the current applications, that he did have symptoms in his back as at January 2003. This casts a different light on events. We also understand the 1998 clinical notes were not available to the earlier Tribunal.
13. There is also the matter of the mechanics of the alleged injury - Mr Botros lying on his back and working on machinery above him. Dr Bentivoglio, Mr Botros’ treating Orthopaedic Specialist, in his oral evidence to the Tribunal, considered it is more probable than not that this activity would not cause structural damage to the spine. Dr McGill, Rheumatologist, in his oral evidence, considered there is no plausible way the activity could give rise to mechanical damage to the spine.
14. As to any continued effect of the incident, in December 2003 Dr Sue reported:
Mr Botros has sustained a musculo- ligamentous back injury from which he has fully recovered.
15. This statement is followed by these words:
As a result of the aggravation of his pre-existing degenerative and congenital lumbar spine disease, he is still suffering from some discomfort.
16. We were urged to adopt an interpretation of these apparently inconsistent statements that has Dr Sue saying that Mr Botros has fully recovered from the effects of the musculo-ligamentous back injury but still suffers the continuing symptoms of his degenerative constitutional lumbar spine disease. We adopt this interpretation as the only one that makes sense of that part of Dr Sue’s report.
17. Mr Botros’ representative submitted that his pre-existing condition had been aggravated by the 18 May 2003 incident. We note Dr Bentivoglio’s evidence that spinal canal stenosis proceeds on a slow and steady course of worsening and that disc bulging gives rise to flare ups that can be precipitated by normal events in daily life. Dr McGill gave evidence that, given Mr Botros had experienced symptoms prior to 18 May 2003, and given there is no plausible mechanism by which lying on his back in an awkward position for two hours could have altered the structures that are responsible for his pain, any aggravation of his symptoms would only have lasted for a few days at the most and more likely for only a few hours. Dr McGill also noted that Mr Botros had reported to him that, after May 2003, his symptoms came and went and, over time, became progressively more persistent.
18. On the basis of Mr Botros’ undisputed pre-existing condition, his now acknowledged symptoms in January 2003 and those documented in 1998, the opinions of Drs Bentivoglio and McGill about the plausibility or likelihood of the activity of 18 May 2003 causing structural change to his pre-existing condition, Dr Bentivoglio’s description of the progressive nature of canal stenosis and the tendency to flare ups of disc bulging, and the view of Dr Sue that Mr Botros had recovered, by December 2003, from his musculo-ligamentous injury, we find that Mr Botros no longer suffers from any effects of the incident on 18 May 2003 and did not suffer from those effects at the date of the earliest of the decisions under review (19 July 2007). It may be that Mr Botros suffered some temporary aggravation of his pre-existing condition, but we consider that it had ceased to have effect well before 19 July 2007, the date when Australia Post determined that Mr Botros had ceased to suffer from a compensable condition.
19. It flows from this conclusion that the reviewable decision as to permanent impairment of Mr Botros’ back must be affirmed. Similarly, the decisions concerning Mr Botros’ claims for incapacity payments and his claim for treatment expenses must be affirmed.
20. We turn now to the decision concerning Mr Botros’ psychiatric condition.
does mr botros suffer from a psychiatric injury?
21. Both of the Psychiatrists whose opinions were before us considered Mr Botros to have a psychiatric condition. Dr Christopher Canaris, Consultant Psychiatrist, diagnosed Major Depressive Disorder, attributable to Mr Botros’ distress over his conflict with his employer. Dr Inglis Synnott, Consultant Psychiatrist, diagnosed Adjustment Disorder attributable to his physical symptoms and exacerbated by the respondent’s denial of liability and the requirement that he work the night shifts.
22. The issue arises as to whether the provisions in the definition of “injury” in the Act operate to exclude Mr Botros’ psychiatric condition from that definition – and thus to preclude liability for that condition.
23. Mr Botros’ claim on 21 June 2007 for compensation for his psychiatric condition cites a telephone call from his supervisor late at night as the incident that gave rise to his symptoms. Mr Botros expanded on this in a statement attached to his claim form and he recited a number of events, beginning on 30 May 2007 with a request for leave and culminating on 6 June 2007 when he sought treatment from his General Practitioner. In particular, we note that Mr Botros initially saw Dr Suraj Vij who diagnosed him with depression and anxiety and prescribed Luvox On 7 June 2007 Mr Botros saw Dr Sue who confirmed the above diagnosis.
24. The exclusionary provisions in the definition of “injury” in the Act were amended in 2007 to widen the range of the exclusion. The amendments took effect from 13 April 2007 and apply to injuries sustained from that date. Mr Botros’ representative urged on us the view that Mr Botros’ injury took place well before the date he sought treatment for his condition (6 June 2007) or the date of injury noted by Mr Botros in his own claim form (4 June 2007). We cannot accept this interpretation. It is supported by neither the evidence before us nor by Mr Botros’ own claim. It follows that the amended provisions apply.
25. Section 5A of the Act (as amended) defines “injury” as
(1) In this Act:
Injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
26. The precipitating matters cited by Mr Botros in his claim form and the annexure to it include a failure to grant leave at short notice and telephoning him on his mobile phone to inquire about his absence from the night shift on which he had been rostered. There is nothing before us to indicate that the failure to grant leave (applied for just a few days prior to the first day of the proposed leave) was unreasonable. There was nothing before us to indicate that it was unreasonable to telephone Mr Botros on his mobile phone to inquire as to his whereabouts when he was rostered on for work, but absent. We consider that these actions amount to reasonable administrative action and consequently enliven the exclusion.
27. It follows that Mr Botros did not suffer an “injury” within the meaning of section 5A of the Act. The reviewable decision is therefore affirmed.
reviewable decision concerning ability to earn penalty rates
28. At the outset of the hearing, the representative for Mr Botros submitted that, notwithstanding that an application for review of the decision had been made by Mr Botros, the Tribunal had no jurisdiction to review the decision the subject of application 2007/1448 because it did not concern a decision made under section 60 of the Act. The decision sought to be reviewed affirmed the original decision that “deemed” Mr Botros able to earn the penalty rates that shift work attracts. The decision was expanded upon by the Reconsideration Officer who said that Mr Botros is not prevented by his medical restrictions from working rotating shifts.
29. There was some discussion of the meaning of the decision and the way it might fall under the scheme of the Act. Counsel for Australia Post submitted that it went to the calculation of Mr Botros’ compensation payments, if any, and to the question of whether he was prevented, by a compensable condition, from earning an amount commensurate with the amount he would earn if he were not injured. Any loss of penalty rates, he submitted, arose out of a reluctance by Mr Botros to work the night shifts rather than from any incapacity from his medical condition.
30. We consider that the decision is either consequential on other decisions made under section 19 of the Act or is made under section 8 of the Act which concerns calculation of normal weekly earnings. We conclude, taking a practical and broad view of the determination, and keeping in mind the statutory objective of the Tribunal to provide a review mechanism that is fair, just, economical, informal and quick, that we have jurisdiction to review the decision. If we are wrong, and the decision is not one over which the Tribunal has jurisdiction, then we are at a loss as to why the application for review was not simply withdrawn by Mr Botros’ representatives, given the submissions made by them. For the reasons that follow, the outcome would be the same in any event.
31. Dr McGill said, in his oral evidence, that there is no reason why Mr Botros could not re-arrange his medication and massage schedule to accommodate working on the night shift. Dr Bentivoglio gave similar evidence.
32. Mr Botros asserted that the nature of the work on the night shift is qualitatively different to other shifts. He said the work is heavier, because breakdowns are repaired, whereas during the day maintenance work is done. However, his evidence in this regard was unspecific and scant. There was no evidence of this qualitative difference beyond his assertions. None of his treating doctors had given the heaviness of night shift work as a reason for an inability to work that shift. We note that Mr Botros is now working night shift and does not assert any inability to do so, although he asserts that his condition is aggravated by it. He presented no evidence to support these assertions.
33. We affirm the decision.
decisions
34. The Tribunal affirms the reviewable decisions in the following applications:
N 2006/2518; N 2006/2519; 2007/1102; 2007/1104; 2007/1448;
2007/2942; 2007/3807; 2007/3809; 2007/4145; 2007/447; 2008/208 & 2008/1931.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member
DR M E C THORPE, MemberSigned: ......................................sgd.............................................
Associate: Felicia DanieleDate/s of Hearing 7, 8 & 9 May 2008
Date of Decision 3 October 2008
Counsel for the Applicant Mr. D Richards
Solicitor for the Applicant Ms. S Lepage
Counsel for the Respondent Mr. N Polin
Solicitor for the Respondent Mr. L Forner
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