Botros and Australian Postal Corporation
[2004] AATA 1152
•5 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1152
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/1109
GENERAL ADMINISTRATIVE DIVISION ) Re RAGAI BOTROS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date5 November 2004
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that:
(1) The Applicant suffered a work-related injury on 18 May 2003 and the effects of that injury are continuing; and
(2) The Applicant is entitled to seek payment of compensation for medical expenses and incapacity payments pursuant to section 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 on and from 16 September 2003; and
(3) The Applicant is awarded costs pursuant to the Tribunal’s Practice Direction for matter N2004/1109.
[Sgd] Dr J Campbell, Member
CATCHWORDS
Compensation – pre-existing condition – injury – aggravation – acceleration – entitlement to compensation for medical expenses and incapacity payments
Safety Rehabilitation and Compensation Act 1988 sections 4, 16, 19, 62
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Martin v Australian Postal Corporation (1999) 29 AAR 420
Darling Island Stevedoring & Lighterage Co Limited v Hankinson (1967) 117 CLR 19
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
REASONS FOR DECISION
5 November 2004 Dr J D Campbell, Member
1. Mr Ragai Botros (“the Applicant”) in this matter, seeks review of two decisions made by Australian Postal Corporation (“the Respondent”), namely:
a)In matter N2003/1644, a decision made by a reconsideration officer dated 8 October 2003 which affirmed a determination dated 16 September 2003, that Mr Botros is no longer entitled to payment of compensation in respect of his back condition as and from 16 September 2003.
b) In matter N2004/1109, a decision made by a reconsideration officer, of own motion dated 20 August 2004 which varied the reconsideration decision of 8 October 2003 and the determination dated 16 September 2003 to the effect that:
(i)The effects of the injury sustained on 18 May 2003 gave rise to payments of compensation pursuant to section 16 and section 19 of the Act; and
(ii)In the period 16 September 2003 to the present date (20 August 2004), Mr Botros has no entitlement to compensation for the injury under section 16 and section 19 of the Act.
2. In dealing with these two matters, the Tribunal, mindful that both matters were founded on the same set of circumstances, concluded that the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) prepared for matter N2003/1644 were the appropriate T - documents for matter N2004/1109. As such, T - documents had been prepared and made available to both parties in accordance with the Tribunal’s practice directions, which, in turn, permitted matter N2004/1109 to proceed to hearing.
3. In observing that the reviewable decision in matter N2003/1644 ceased liability pursuant to section 14 of the Act, the Tribunal further notes that the reviewable decision in matter N2004/1109, being a reconsideration of own motion by the Respondent pursuant to section 62 of the Act, is in effect an attempt by the Respondent to minimise outstanding issues in accordance with principles laid down in Oudyn v Australian Postal Corporation (2003) 73 ALD 659. Nevertheless, the Tribunal concludes that the reconsideration decided on 20 August 2004 does not exclude or extinguish the earlier reviewable decision of 8 October 2003 from consideration by the Tribunal now or at some time in the future.
4. As a consequence of these considerations, the reviewable decision of 8 October 2003 (matter N2003/1644) was settled by arrangement between the parties, with the Tribunal issuing a consent decision pursuant to section 42C of the Administrative Appeals Tribunal Act 1975.
Background
5. Mr Botros lodged a claim for compensation on 27 May 2003 (T10) in which he described an incident at work on 18 May 2003 when he was called to attend to a breakdown of a piece of machinery. Mr Botros stated in his claim that he had to lie underneath the machinery to fix the problem, and while doing this he felt some pain. Mr Botros further noted in his claim that he “did not care” until Wednesday 21 May 2003 when after fixing a breakdown at the CFC area he felt severe pain in his legs and back. The Tribunal also notes the incident report dated 22 May 2003 (T7), which states that Mr Botros was working on a CFC 447 image scanner lamp on 21 May 2003, when he felt pain in his lower back and legs.
6. On 2 June 2003 the Respondent accepted liability under section 14(1) of the Act for Mr Botros’s musculoligamentous back injury, with the date of injury being 18 May 2003 (T15). The Respondent determined that Mr Botros was not entitled to incapacity payments pursuant to section 19 of the Act, but would consider claims for medical expenses pursuant to section 16 of the Act.
7. In response to the Mr Botros’s request for reconsideration of the determination of 2 June 2003, the Respondent on 8 July 2003 determined that that Mr Botros was entitled to incapacity payments for the period 22 May 2003 to 26 May 2003 pursuant to section 19 of the Act (T28).
8. On 16 September 2003 the Respondent determined that Mr Botros was no longer entitled to payment of compensation in respect of his back condition (T54). This determination was affirmed by the reconsideration officer on 8 October 2003 (T63), and in turn both the determination of 16 September 2003 and the reconsideration decision were varied by the reconsideration of own motion pursuant to section 62 of the Act on 20 August 2004.
ISSUES
9. The relevant issued in matter N2004\1109 are:
a)Whether the effects of the injury sustained on 18 May 2003 continue, with Mr Botros being entitled to seek payment of compensation pursuant to sections 16 and 19 of the Act on and from 16 September 2003.
DECISION
10. For reasons nominated later in this decision the Tribunal finds that: :
(a)Mr Botros suffered an injury to his back as a consequence of a work related incident on 18 May 2003; and
(b)The nature of the injury suffered was an aggravation and/or acceleration of a pre-existing back condition; and
(c) The effects of the aggravation and/or acceleration injury are continuing as evidenced by the continuing pain symptomatology; and
(d) Mr Botros is entitled to claim compensation, pursuant to section 16 and 19, on and from 16 September 2003 for such medical expenses and incapacity payments that are relevant to the injury; and
(e)Costs are awarded to Mr Botros pursuant to the Tribunal’s practice direction on costs.
APPLICANT’S EVIDENCE
11. Mr Botros told the Tribunal that he was born in Egypt in 1962, completed schooling and University in Egypt, graduating with a Bachelor of Electrical Engineering. From 1986 to 1988 Mr Botros stated that the worked as a service engineer prior to coming to Australia in 1988. In Australia, Mr Botros, worked as an electronic technician for STC for 20 months and Siemens during the period 1990 to 1999. Mr Botros said that he has been employed by Australia Post since September 2000 as a grade one postal technical officer, which involves technical and administrative duties.
12. On 18 May 2003, between 10.30 and 11.00pm while repairing a piece of machinery, Mr Botros was forced to lie under the machinery and bend to work in a confined space. It was while undertaking this activity that he felt severe pain in his lower back which radiated to his right and left legs. Mr Botros stated that, at the time, he extended his legs and the pain eased. He went home at about 2.00 am on 19 May 2003, and took Panadol to help ease the pain. He told no one about the incident at that time.
13. Mr Botros stated that he returned to work on 19 May 2003 and was able to work on small jobs throughout his shift. He was questioned about his attendance at Dr Sue’s room (general practitioner) on 20 May 2003, at which no mention of any problem with his back was recorded in the doctor’s notes (Exhibit A4). Mr Botros stated that on 21 May 2003, while standing at work, the pain in his back became worse, his legs became weak and pain radiated down both legs, the left more so than the right. On 22 May 2003, he sought treatment from Dr Sue because of his low back pain and sore ear.
14. Mr Botros stated that he continues to experience severe pain in his back every day, albeit mainly at night, as the pain often wakes him up when he moves and for which he takes Panadol. Since 18 May 2003, Mr Botros has visited Dr Sue initially twice a month and then monthly; he has received physiotherapy treatment which has had little benefit; he was taking Vioyx (1 or 2 a week) and Panadol/Panadeine (3 to 5 a day).
15. Dr Sue referred Mr Botros to Dr Sachdev, an orthopaedic surgeon, who eventually referred him for an MRI scan examination. Mr Botros stated that his pain would vary in intensity from time to time; that restrictions had been imposed which involved no repetitive bending, twisting squatting and lifting greater than 10 kilograms in the workplace; that he was to be able to change positions and that he was working five 8 hour days with some occasional overtime per week; that he was unable to do jobs outside his work restrictions and that he took one day off, when he was unable to work in June/July 2004.
16. Mr Botros stated that his continuing back pain was restricting his interactions with his children and was causing some marital problems. He stated that he is able to drive for 30 to 40 minutes, sit for the same period and that walking helps his back pain.
17. Mr Botros said that he has no history of back pain and when he consulted Dr Sue in January 2003 he was seeking advice only concerning the issue of back ache/stiffness arising from standing on concrete surfaces at work for long periods. He stated that he may have experienced occasional aches as opposed to pain in his back in such circumstances, but at the time of consultation in January 2003 he had no pain. Mr Botros strongly disagreed with Dr Sue’s file notation of 22 May 2003, which states that he had back pain in January 2003 and that it had been intermittent until 22 May 2003, when it got worse with standing.
MEDICAL EVIDENCE
Dr Lee
18. In a report dated 17 November 2003 (Exhibit A11), Dr Lee, general practitioner, detailed that he had first seen Mr Botros on 22 May 2003 “at which time he had complained of the onset of lower back pain radiating down both legs over the period of one week, becoming worse the night of the 21st May 2003”. Dr Lee concluded upon examination that Mr Botros was suffering from lumbosacral muscle spasm. Dr Lee ordered a CT scan which was undertaken on 23 May 2003 and reported upon by Dr Devadason, consultant radiologist, as showing broad based small posterior L3-4 and L4-5 annulus bulge and a slight spinal canal narrowing (T8, p27). Dr Lee prescribed Mr Botros Voltaren and together with Dr Sue organised a graduated return to work program commencing from 23 May 2003, and which involved work related restrictions and reduced hours.
Dr Pierides
19. Dr Pierides, consultant occupational physician, in his report dated 3 June 2003 (T16, p41) details a history of the incident which is consistent in most aspects with what Mr Botros detailed to the Tribunal. Dr Pierides concluded that Mr Botros suffered a low back strain and noted that the physiotherapist, to whom Mr Botros had been referred by Dr Sue, attributed the back pain to the facet joints. Dr Pierides concluded that Mr Botros’s work has substantially contributed to his current presentation. However, he noted that it is unlikely that the work circumstances and activities are “responsible for anything more than a strain on a temporary exacerbation of a pre-existing degenerative condition which will settle to its pre-aggravation state in the next few weeks”. Dr Pierides concluded that Mr Botros is able to work normal hours and that he should avoid prolonged awkward postures, change his posture regularly and not stand or sit for more than 15 minutes without stretching or moving for two to three minutes or slightly longer.
Dr Sue
20. In two reports dated 11 July 2003 (Exhibit A1) and 15 December 2003 (Exhibit A5) Dr Sue details the history of and treatment given to Mr Botros as a consequence of the work-related incident of 18 May 2003 and thereafter. A review of Dr Sue’s clinical notes (Exhibit A3) reveals a history of Mr Botros seeking advice concerning back pain in January 2003 and a notation, relating to a visit on 27 May 2003, that his back pain was intermittent until 21 May 2003, when it got worse.
21. Dr Sue opined that following the incident of 18 May 2003 (Exhibit A5):
“Mr Botros was able to work, fit for suitable duties. When last seen on 10.11.03 he still complained of low back pains, radiating to his right leg. He was working 8 hr 10 min a day, 5 days a week, lifting to a maximum of 10kg and to avoid excessive bending, squatting, twisting and over-reaching and to work between knee and shoulder height only. He was fit to do overtime.
OPINION:
Mr Botros has sustained a musculo-ligamentous back injury from which he has fully recovered. As a result of the aggravation of his pre-existing degenerative and congenital lumbar spine disease he is still suffering discomfort. In the short term he is doing suitable duties as mentioned earlier (with no problems). In the longer term he should be re-trained for other work eg forklift driving”.
Dr Schatz
22. Dr Schatz, consultant radiologist, concluded, after examination of a MRI scan performed on 29 August 2003, that (Exhibit A8):
“There are developmentally short pedicles causing congenital canal stenosis. At L3-4 and L4-5 there are mild annular disc bulges and there is also mild facet joint degeneration. This, in combination with the underlying congenital canal stenosis, causes moderate central canal stenosis at L3-4 and mild stenosis at L4-5”.
Dr Sachdev
23. Dr Sachdev, consultant orthopaedic surgeon, saw Mr Botros on 16 July 2003, following a referral by Dr Sue. In his report, (T32 p79), Dr Sachdev detailed the following opinion:
“This patient suffers from musculoligamentous sprain super-imposed on a pre-existing degenerative disc disease of his lumbar spine as a result of the abovementioned accident. I do feel that conservative treatment should be continued and hence, I have shown him progressive strengthening exercises to his abdominal as well as back muscles. In the meanwhile, he can continue with light duties, avoiding heavy lifting and undue bending. I have suggested that he come for review in one month’s time. However, if he continues to have ongoing symptoms and they are not settling down, consideration should be given to having an MRI scan of his lumbar spine done”.
24. On 18 August 2003, Dr Sachdev reviewed Mr Botros’s condition and in the light of his findings sought approval from the Respondent for an MRI scan examination (T38, p94). This request was declined and Mr Botros proceeded to pay for the examination himself. On 3 September 2003, Dr Sachdev detailed to the Respondent the findings of the examination as well as advice as to a continuing conservative management program for Mr Botros’s condition (T48, p108).
Dr Endrey-Walder
25. Dr Endrey-Walder, consultant surgeon, in a report dated 10 November 2003 (Exhibit 1, p6) detailed Mr Botros’s history after the incident of 18 May 2003 and his findings at examination. In detailing his opinion, Dr Endrey Walder voiced the following issues:
“Mr Botros suffered an injury to his lower back when having to work underneath a machine in mid May this year.
He gave no history of any previous back injury or indeed any back symptoms of consequence in his past, having remained with chronic symptoms of variable intensity since the incident in question.
I believe that this gentleman has indeed suffered a significant injury to his lower back in the said incident, and I also believe that such an injury was superimposed on a previously silent, completely asymptomatic, congenital narrowing of the spinal canal. It is much more likely than not that a small amount of disc bulge subsequent upon the injury in question had precipitated symptoms which are now gong to remain with him in the long term.
I have little doubt that this gentleman does remain with ongoing functional impairments as a consequence of the injury, and he should remain with certain restrictions in his job at Australia Post, amongst these a lifting restriction of no more than 10 to 12 kg, avoidance of repetitive bending and sustained flexion at the torso, prolonged standing or sitting in the one place”.
26. In oral evidence before the Tribunal, Dr Endrey-Walder explained with clarity his opinion of the underlying pathology and the probable consequences of the 18 May 2003 incident. Dr Endrey-Walder, in concluding that Mr Botros was suffering from acquired spinal canal stenosis, disagreed with the opinions expressed by Dr Maxwell in his report of 7 August 2003 (T36, p91), and in his report of 17 June 2004 (Exhibit R2). In so stating, Dr Endrey-Walder was of the opinion that the work related incident of 18 May 2003 had aggravated a non symptomatic pre-existing condition of the lumbar spine and that the pre-existing canal stenosis has been made both symptomatic and worse.
Dr Gliksman
27. In his report dated 9 December 2003 (Exhibit R3), Dr Glicksman, consultant occupational physician, detailed a clinical history of Mr Botros not dissimilar in fact to that recorded by other clinicians in this matter. At examination Dr Glicksman did not detect any attempt by Mr Botros to exaggerate signs, with pain being a feature when testing extreme range of movements of the lumbar spine, and when conducting straight leg raising (50 degrees left leg; 60 degrees right leg). Dr Glicksman also found a 1.5 cm muscular wasting affecting the left thigh.
28. Dr Glicksman provided the following medical advice
“1. The diagnosis is of a significant progressive congenital and degenerative condition affecting the lumbar spine, now resulting in symptoms and signs of mild to moderate left-sided sciatica.
2. Mr Botros advised me that the first date on which he experienced any symptoms related to the lumbar spine or lower limbs was 18 May 2003.
3. The condition diagnosed represents the inevitable effect of the underlying congenital/degenerative condition. These symptoms would have emerged irrespective of the type of work duties undertaken by Mr Botros either on 18 May 2003, or at any other time.
4. The restrictions described in the text above are reasonable and may be required in the long-term.
5. (a) As advised above, the symptomatic condition would have arisen irrespective of work duties.
(b) However it is medically credible that the nature of the work entailed has accelerated the onset of the condition. Given the current duties, the aggravation has ceased but this may not equate to a symptomatic resolution.
(c) The partial incapacity for work is as referred to above.
6. Conservative treatments only are recommended, as have been received to date. It is unlikely that the potential benefits of surgery will outweigh its risks, unless Mr Botros’ symptoms deteriorate substantially”.
Dr Maxwell
29. In his report dated 7 August 2003, (T36 p89), Dr Maxwell, a consultant orthopaedic surgeon, detailed a clinical history from Mr Botros not dissimilar in material fact from that recorded by other clinicians in this matter. Dr Maxwell detailed at examination discomfort at the extremes of movement of lumbar spine, but found no evidence of neurological compromise. As a consequence of his clinical examination Dr Maxwell expressed the following opinion:
“Mr Botros claims to have developed low back pain in the course of his work. He attributes this to an incident on 18/5/2003 when he was bending in an awkward position. He feels his back pain has been aggravated by prolonged standing. There is really little to find in the way of abnormal pathology. Despite his complaint of right leg pain there is no evidence to suggest this is a true radiculopathy and this is confirmed by the relatively normal CT scan. He had a perception that he is gradually getting worse and he has a serious problem which nobody has told him about. Despite this he appears to be functioning at a reasonably normal level.
It is possible that he may have sustained a mild musculo-ligamentous strain in the course of his work. The effects of this which would have expected to have settled after 2-3 weeks.
I no longer consider that he suffers from the effects of any work related injury. He may have some low back discomfort which is due to his hyperlordotic spine and poor tone of his stomach muscles.
I do not consider that he is suffering from any condition of his back which has been substantially contributed by his employment.
I do not consider that there has been any worsening of any underlying pathology.
I do not consider that he is partially unfit and consider that he should be able to upgrade his duties from now.
I consider he is fit to do his normal hours including overtime.
I do not consider that he suffers from any underlying condition or susceptibility of a physical nature which renders him unsuitable for his present employment.
I would not recommend any continuing passive physiotherapy. He needs to undergo an intensive exercise programme and continue to build up his trunk muscles and this can be done as a home programme.
He also needs to lose some weight.
The only other pertinent issue I should mention is that Mr Botros seems somewhat concerned about his condition and psychological factors including anxiety may be playing a part with regard to his continuing symptom complex.”
30. In a further report dated 11 September 2003, (T52, p112), Dr Maxwell, having been advised of the results of the MRI scan, concluded that “[i]t is possible that Mr Botros is suffering from some nerve root irritation due to a congenitally narrow spinal canal. This is a constitutional condition and has not been caused by his employment”.
31. In a third report dated 17 June 2004 (Exhibit R2), Dr Maxwell, having reviewed Mr Botros’s clinical history and conducted a further clinical examination, expressed the following opinion:
“Mr Ragai Botros continues to complain of back pain with some radiation into the legs but mainly the left leg. A repeat MRI scan does show some congenital narrowing of the spinal canal and this associated with some degenerative changes, particularly facet joint enlargement is leading to some relative spinal canal stenosis at the L3/4 level. His symptoms, however, are not entirely typical of those suffering with canal stenosis in which prolonged standing and walking leads to increased leg pain and sitting relieves the pain. Mr Botros tends to feel quite good while he is walking and he is able to walk for half an hour. There is some wasting of his left calf, which may indicate some decreased function of the L5 and S1 nerve roots on the left.
Although he alleges his symptoms commenced after bending at work I consider that he does have some underlying developmental and degenerative changes, which are narrowing the lateral recesses and causing intermittent nerve irritation. He seems to be working steadily and I consider that physical activity is beneficial to him. I consider the main treatment is to continue to lose weight and undergo and intensive flexion exercise programme to improve the posture of his lumbar spine.
I consider the MRI scan report does show some pathology but I do not consider this pathology has been caused by the nature and conditions of his work nor any specific work related injury. The MRI scan describes slight asymmetry of the L4/5 disc with a bulge to the right but it should be noted that his pain is worse on the left”.
32. In oral evidence Dr Maxwell confirmed this opinion expressed in the report of 17 June 2004.
CONSIDERATION AND FINDINGS
33. The Tribunal observed that during the course of the hearing Mr Botros appeared to find it necessary to emphasis particular aspects of his evidence. While initially this caused concern for the Tribunal, it became evident that such emphasis reflected both his appreciation of what he thought was important to say and a desire to prolong an answer to ensure adequacy of information provision.
34. The Tribunal, upon reflection of the history provided at hearing, and upon reflection of the many histories given to the various clinicians and documented by them in their reports, concludes that there is both a general and particular history consistent in all such reports and that given to the Tribunal.
35. There is however one exception and that relates to a previous history of back pain in January 2003, as recorded in Dr Sue’s clinical notes and further a history of intermittent low back pain until 21 May 2003, at which time it became worse, this again being recorded in Dr Sue’s clinical notes at the entry for 22 May 2003. The Tribunal notes Mr Botros’s explanation that he only sought advice from Dr Sue over the general issue of back ache arising from prolonged standing on hard surfaces during the consultation in January 2003 and that there was no intermittent back pain between then and 18 May 2003, the date on which the back pain commenced.
36. The Tribunal considers that it is inappropriate to draw an adverse inference from such a discrepancy for various reasons which include Mr Botros’s explanation, an inability to seek clarification from Dr Sue and a clear indication in the clerical notes that Mr Botros did not seek treatment for any back problem from Dr Sue between the visit in January 2003 and the visit on 22 May 2003. Further, the Tribunal does not draw any adverse inference from the notation in Dr Sue’s clinical notes that on the 20 May 2003 visit, Mr Botros did not make any complaints of back pain. The Respondent argued that if Mr Botros’s back pain commenced following the incident on 18 May 2003, one would have expected him to make such a complaint to his doctor at the first opportunity, namely 20 May 2003. That the clinical notes do not record such a complaint on 20 May 2003 is evident, but in turn, the Tribunal accepts the absence of complaint on 20 May 2003 as being consistent with the nature of his low back condition as described by himself at that time.
37. Further the Tribunal notes the generally consistent clinical history given by Mr Botros to the many clinicians involved in this matter and to the Tribunal and the absence of any comment by any of the clinicians as to exaggeration of symptoms at examination. Further the Tribunal observes the comments as to Mr Botros’s cooperative attitude during such consultations. As a consequence of such considerations the Tribunal concludes that Mr Botros is a credible witness and has presented his evidence in a manner consistent with his beliefs.
38. In addressing the clinical issues raised in this matter, the Tribunal concludes that Mr Botros had a pre-existing condition of his lumbar spine, namely a congenital canal stenosis and mild facet joint degenerative changes. The Tribunal also notes the presence of developmentally short lumbar pedicles which have been a causation factor in the development of the congenital canal stenosis. In so finding the Tribunal relies upon the MRI scan of the lumbar spine dated 23 August 2003, the report thereof by Dr Schatz, and the clinical opinions of Doctors Sachdev, Endrey-Walder, Glicksman and Maxwell.
39. In addressing the evidence in relation to the incident of 18 May 2003 and thereafter, the Tribunal is reasonably satisfied that the incident did occur and that the symptomatology thereafter described by Mr Botros has occurred. In particular the Tribunal accepts the clinical history of symptoms in relation to the back and lower limbs that Mr Botros described as occurring on 21 May 2003. Further, the Tribunal concludes that the subsequent clinical history as described by Mr Botros as regards the continuance of his symptomatology is a valid rendition of his circumstances.
40. As a consequence of these findings, the Tribunal further concludes that there was a pre-existing condition of his lumbar spine, namely congenital canal stenosis, with facet joint degenerative changes, which was essentially asymptomatic prior to the incident of 18 May 2003. In nominating the word essentially, the Tribunal reflects upon the clinical notes of Dr Sue, which are possibly indicative of some early but intermittent symptoms, albeit of a minor nature. The Tribunal further concludes that there was a significant change in the pain symptomatology following the incidence of 18 May 2003 and that this changed level of pain symptomatology in the lower back and radiating to both legs continues to this time. In so finding the Tribunal relies on the evidence of Mr Botros and the clinical opinion of his treating general practitioner (clinical notes), and the opinion of Doctors Sachdev, Endrey Walder, Glicksman and Maxwell.
41. In addressing the clinical issues underpinning the symptomatology as described by the Tribunal, the Tribunal observes that; clinical opinion formed within a few weeks of increased symptomatology centred around the concept of an injury causing lumbosacral muscle spasm (Dr Lee); low back strain (Dr Pierides), temporary exacerbation of a pre-existing degenerative condition in the lumbar spine (Dr Pierides); musculo ligamentous back injury from which he has fully recovered and aggravation of his pre-existing degenerative and congenital lumbar spine condition from which he is still suffering discomfort (Dr Sue); musculo ligamentous sprain superimposed on pre-existing disc disease (Dr Sachdev).
42. The Tribunal notes that with the exception of Dr Sue’s second report dated 15 December 2003 which referred to aggravation of a pre-existing disease, that the reports referred to in the previous paragraph were opinions given prior to the MRI scan examination being performed. Similarly and in fairness to Dr Maxwell, his report of 7 August 2003 also falls into that category. At that time Dr Maxwell considered that Mr Botros may have sustained a mild musculo-ligamentous strain.
43. More importantly, however, each of the doctors referred to in the previous two paragraphs stated in their opinions that Mr Botros’s low back condition had occurred during the course of his work; (Dr Maxwell, Dr Sachdev, Dr Lee) or work had substantially contributed to Mr Botros’s presentation (Dr Pierides).
44. Following the MRI examination performed on 23 August 2003, Dr Maxwell commented in his report of 11 September 2003, that Mr Botros had a constitutional condition, namely a congenitally narrow spinal canal, and that it is possible that he is suffering from some nerve root irritation. In his report dated 17 June 2004, Dr Maxwell concluded that Mr Botros does have some underlying developmental and degenerative change which are narrowing the lateral recesses and causing nerve roof irritation. Dr Maxwell is of the opinion that Mr Botros’s symptomatology arises from these underlying conditions and that such pathology has not been caused by either the nature or conditions of his work nor any specific work related injury.
45. The Tribunal notes that Dr Gliksman, in his report of 9 December 2003, concluded that Mr Botros suffers from a significant progressive congenital and degenerative condition affecting the lumbar spine. Dr Gliksman concluded that the symptoms of which Mr Botros complained after the incident of 18 May 2003 represent the inevitable effect of the underlying congenital/degenerative condition. Dr Gliksman believes such symptoms would have emerged irrespective of the type of work duties undertaken by Mr Botros, but that it is medically credible that the nature of the work entailed has accelerated the onset of the condition.
46. Dr Endrey-Walder in his report of 10 November 2003 concluded that on 18 My 2003 Mr Botros suffered a significant injury to his lower back; that this was superimposed on a previously silent, completely asymptomatic, congenital narrowing of the spinal canal and that the injury, more likely than not, has created a small disc bulge, which in turn has precipitated symptoms which are going to remain in the long term.
findings
47. The Tribunal concludes that the incident of 18 May 2003 resulted in an aggravation/acceleration of Mr Botros’s pre-existing ailment of congenital narrowing of the lumbar spinal canal with degenerative changes in associated facet joints. Further, the Tribunal concludes that the effects of the aggravation and/or acceleration of the pre-existing ailment continue. The Tribunal with reference to the definitions of injury, disease, aggravation and ailment under section 4 of the Act, concludes that Mr Botros suffered an injury as a result of the incident of 18 May 2003.
48. In finding, that the incident resulted in aggravation/acceleration of Mr Botros’s pre-existing ailment, the Tribunal took into consideration the following:
·The distinction between aggravation (connotes the disease becoming more severe) and acceleration (connotes the hastening of the normal underlying disease) as discussed by Hill J in Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 405:
“However the in normal usage of the word, it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease”.
·The concept of acceleration as discussed in Martin v AustralianPostal Corporation (1999) 29 AAR 420, in which Burchett J quoted from Barwick CJ in Darling Island Stevedoring and Lighterage Co Limited vHarkinson (1967) 117 CLR 19, at pp 26-27.
“If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases the award will for that reason be terminable? But that incapacity does not cease, because it is demonstrable, that, without the injury, the worker have endured from another cause at the same state of incapacity. Its seems to me nothing to the point that that of the cause would have been the pre-existing disease in its own unaided progression, where the incapacity results from the acceleration is permanent, the award is not terminable, because that incapacity would have in any case have been the end result of the pre-existing disease”.
In Martin’s case Burchett J at p 43 concluded that Mr Martin’s asymptomatic condition was made symptomatic, not just for a time, but so as to continue increasingly to cause pain and disability thereafter.
·That in terms of the definitional requirement under section 4 of the Act the employee’s employment must make a contribution in a material way to the ailment suffered by an employee or the aggravation which by definition includes an acceleration of that ailment.
49. Further in so finding that the aggravation and/acceleration of Mr Botros’s pre-existing ailment amounts to an ‘injury’ as defined under section 4 of the Act the Tribunal considered the following issues:
·All the medical opinions given before the MRI examination on 23 August 2003 detail that Mr Botros experienced a defined set of symptoms as a consequence of the work related incident of 18 May 2003.
·Opinions given subsequent to the conduct of the MRI examination recognise and accept the clinical history as given by Mr Botros, including onset and continuance of symptomatology.
·The opinions given by Doctors Maxwell, Glicksman and Endrey-Walder accept that the symptoms are continuing, with the difference between each being:
ØDr Maxwell believes the continuing symptoms are the consequence of the natural progression of the pre-existing congenital and degenerative disease of the lumbar spine.
ØDr Glicksman is of a similar view, but contemplates that acceleration of the pre-existing disease may have occurred as a consequence of the incident of 18 May 2003.
ØDr Endrey Walder is of the opinion that the continuing symptomatology is a consequence of the incident aggravating and/or accelerating the pre-existing condition, with there being evidence that an asymptomatic pre-existing condition has been made symptomatic as a consequence of the work-related incident of 18 May 2003.
·That the nature of the symptomatology after the work related incident of 18 May 2003 and the continuance of these symptoms clearly detail, in the light of other clinical findings, a circumstance in which an asymptomatic pre-existing condition has been made symptomatic.
·That the continuing symptomatology is a consequence of the natural progression of the pre-existing ailment and there is no clinical evidence on which to conclude that the continuance of such symptomatology points to aggravation and/acceleration of the pre-existing ailment.
·The Tribunal prefers the opinion of Dr Endrey Walder as it is consistent with the evidence before the Tribunal, while Dr Maxell’s opinion asserts a clinical process that is founded in theory and based on possibilities that have no evidentiary signposts in the matter. The Tribunal notes that Dr Glicksman’s opinion is that it is probable that the continuing symptomatology is the result of the natural progression of the pre-existing condition but accepts that there is a possibility that the incident of 18 May 2003 has caused acceleration of the pre-existing condition. The Tribunal would make similar comments as to his preferred opinion as it did for Dr Maxwell.
50. In summary the Tribunal concludes that Mr Botros suffered an aggravation of the pre-existing condition, namely lumbar congenital canal stenosis and degenerative facet joint changes. The Tribunal concludes that the aggravation was contributed to in a material way by his employment (incident of 18 May 2003) and that the symptomatology arising as a consequence of this aggravation is continuing to this time.
51. Consequently the Tribunal finds that Mr Botros suffered an injury as a result of the incident of 18 May 2003, and the effects of that injury are continuing.
DETERMINATION
52. The Tribunal sets aside the decision under review and in substitution therefor determines that:
(a)Mr Botros suffered a work-related injury on 18 May 2003 and the effects of that injury are continuing; and
(b)Mr Botros is entitled to seek payment of compensation for medical expenses and incapacity payments pursuant to section 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 on and from 16 September 2003; and
(b)Mr Botros is awarded costs pursuant to the Tribunal’s Practice Direction for matter N2004/1109.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed: A. Krilis
AssociateDate/s of Hearing 1 & 2 September 2004
Date of Decision 5 November 2004
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Ms R James
Counsel for the Respondent Mr Polin
Solicitor for the Respondent Mr G. Jones
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