Cardwell and Australian Postal Corporation - [2000] AATA 788

DECISION AND REASONS FOR DECISION [2000] AATA 788

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/565

GENERAL ADMINISTRATIVE DIVISION          )
           Re      CHRISTINE CARDWELL
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member) Dr KP Kennedy, OBE (Member) Miss AM Brennan, AM (Member)

Date7 September 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) WJF Purcell
Senior Member
CATCHWORDS
COMPENSATION – Liability – applicant claimed compensation for time off work without pay – time off was due to a back injury – whether injury was a result of an incident that occurred at work
Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

7 September 2000 Miss WJF Purcell (Senior Member)

Dr KP Kennedy, OBE (Member)

This is an application for review of a decision of a Reconsiderations Delegate of the respondent (Australia Post) of 22 April 1999, which affirmed a decision that the applicant was not entitled to payment of compensation for low back pain which she alleged occurred on 24 November 1998.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with exhibits tendered by the parties. The applicant who was represented by Ms Heyworth-Smith of Counsel gave oral evidence, and called Dr J Reid, General Practitioner, Mr Norrie, osteopath, Mr Janz, acupuncturist, Mrs Elkins, physiotherapist, and Miss M Stevenson, a fellow employee of Australia Post. All of these witnesses, with the exception of Miss Stevenson, gave evidence by way of telephone link up. Ms Downes of Counsel, appeared for Australia Post which called Dr Gillett, orthopaedic surgeon, who gave evidence by way of telephone link up, and Australia Post employees Mesdames E O'Brien (formerly Cullen) and A Greenlees, and Mr C Newton, as witnesses.
The applicant who is 47 years of age has been employed by Australia Post as a postal services officer at Kenmore Post Office store since August 1988. She alleges that on the afternoon of Tuesday 24 November 1998 whilst there was electricity rationing and the Post Office was closed, she was working at the counter or table, in the back office which is at approximately hip height. She says that she leant forward, and to the left, bending at approximately 45° to pick up a light packet. She experienced a sharp pain, a spasm in both the right and left lower back, half way between the waist and the tail bone. She says that she told her manager, Mrs O'Brien, that she had hurt her back. She worked for a further hour until Mrs O'Brien asked whether she was continuing to experience pain. When the applicant said that she was in pain, Mrs O'Brien sent her home for the rest of the afternoon.
The applicant said in evidence that her lower back ached that night; and the next morning it was a little better, but still aching. She consulted Mr Janz, the acupuncturist, and by the end of the afternoon she felt better. Next morning, Thursday 26 November 1998, she felt even better and returned to work; but by late afternoon her lower back was so painful that she left work early and rested at home. On Friday 27 November 1998 she consulted her General Practitioner, Dr Lorraine Scott, who prescribed anti-inflammatories and recommended treatment by Mrs Elkins, pysiotherapist.
The applicant did not return to work on modified duties until 29 December 1998. She says that in early January 1999 she experienced pain again by the end of each day, but she would have recovered by the following morning. She was not involved in counter duties, but was working in the back office. The applicant says that by late morning on 7 January 1999, she was experiencing severe low back pain, with pins and needles in both legs and feet, and was finding it difficult to walk without assistance. Mrs O'Brien sent her home, and she did not return to work until 1 February 1999.
On 14 January 1999 the applicant, whilst on sick leave, was referred for fitness for duty assessment, to Dr S Goode, visiting specialist in Occupational Medicine, who reported in part:
"2.       Ms Cardwell gave me a history of lumbar back pain and leg pain.
          Ms Cardwell said she first developed anterior thigh pain in May 1998. This appeared insidiously, without any preceding history of trauma. She saw an acupuncturist, and he told her in September 1998 that she had "sciatica". He treated her for lumbar pain with acupuncture, and this relieved her condition.
          Ms Cardwell said she developed lumbar pain the last Tuesday of November at work. Again, there was no history of acute injury, and I gather this occurred in the course of her usual duties. She went home earlier and was off work thereafter.
          Ms Cardwell saw her General Practitioner three days later, and was certified on a sick leave basis. X-ray dated 27.11.98 of the lumbar spine shows a little demineralisation of the vertebrae which is "unusual for a patient of this age". There was no other pathology identified. Ms Cardwell has been on anti-inflammatories. She has had physiotherapy at her own expense (about 15 visits).
          Ms Cardwell said she returned to work just after Christmas. However, she only lasted about ten days, even doing lighter duties. She has been off work since. She says she is now making a Compensation claim.
Ms Cardwell has ceased physiotherapy and is now trying Osteopathy. She is still seeing her General Practitioner weekly. Her General practitioner has suggested bone Densitomy (sic), considering the X-ray findings.
3.        Ms Cardwell says she has had no lumbar pain before this.
EXAMINATION
1.        There is reduced range of movement of the lumbar spine.
2.        There is tenderness from L2-L5S1
3.        Slump test is negative.
OPINION
Ms Cardwell has lumbar pain. There is no evidence on history to suggest sciatica, and no clinical evidence of this. I cannot identify precipitating factors, although the patient attributes the pain to twisting and manual handling in her work as a Postal Sorting Officer." [T16]

On 1 February 1999 the applicant returned to work for 20 hours per week, 4 hours per day. She was not to lift any mail bags heavier than 5 kgs, use the trolley for conveying mail from the front counter, nor was she to close the front doors of the Post Office store.
On 8 February 1999 the applicant lodged a claim for payment of compensation for "severe lower back pain – either muscle damage or disc damage" which she stated occurred on 24 November 1998 at approximately 2.30pm "as I lent over to pick up small envelope, I experienced several twinges in right lower back. I was in back office at Kenmore Post Office. I believe it was continuous twisting, lifting and bending" [T8]. It appears that the claim was accompanied by a statement dated 15 January 1999 in the following terms:
"TO WHOM IT MAY CONCERN
During May 1988 I first experienced mild front thigh pain as if I had pulled a muscle. Also my right leg ached during the night while sleeping, often waking me. This continued, becoming very annoying, until it gradually worsened & by September I had pain shooting down my right leg & I had developed a slight limp.
I spoke to my acupuncturist, Stephen Janz, who I seen (sic) for a muscle spasm in my neck & he then treated me. The pain then settled down after several treaments.
On the afternoon 24.11.98, while at work I experienced mild lower right back ache while leaning forward to pick something up off the counter. It slowly got worse as the afternoon went on. I rested at home the following day & also received acupuncture treatment that day. By Thursday it had improved so I went back to work. However by late afternoon the pain in lower right back had increased.
On Friday I saw my G.P. Dr Lorraine Scott who prescribed anti-inflammatories, bed rest & physiotherapy with Denise Elkins. I also had acupuncture treatment. My symptoms ranged from:
Lower back ache
Shooting pain in legs, mostly right leg
Pain in buttocks, mostly right
My injury seemed to be very slow to respond to any treatment. However, it was decided that after four weeks treatment, I would resume work on 29.12.98, since I had no back pain for 10 days prior.
I worked at Kenmore doing the back office & banking duties & not lifting any parcels over 5 kg & not moving any mail bags.
By the end of each day my back was aching considerably but it seemed to recover well by the next morning so I preservered (sic) working.
By late morning Friday 8.1.99, I was experiencing severe lower back pain, pins & needles in both legs & feet & I found it difficult to walk without assistance. I advised my manager, Anita Greenlees who allowed me to go to my doctor where I was given an injection for the pain. I have been off work since that day.
I am doing:
Back exercises given to me by physio
Water exercises
Bed rest
I believe that this lower back pain was contributed by:
Continual twisting to the left to serve customers
Continual leaning across the counter to lift parcels
Dragging heavy mail bags
Pushing/pulling crab pot on mail trolley
Pushing up/pulling down roller doors at entrance
I, therefore request that you investigate this claim for Comcare. I will forward a detailed list of expenses. Thanking you for your assistance in this matter."
The Manager Mrs O'Brien, formerly Cullen, completed Part 12 of the Claim Form on 9 February 1999, and in answer to the question as to whether the claim as asserted by the employee was substantially correct, she answered "No"; and in answer to the question whether the claim should be accepted, she answered "No", and attached a handwritten note in the following terms:
"When I first began work at Kenmore in November 1997, I became aware that Chris had a bad back. To the best of my knowledge no specific injury occurred at work. I have sent her home on a number of occasions because she was suffering back or neck pain but as far as I am aware, the condition was pre-existing from causes outside of work or unknown. Her condition has, however, been made worse on occasion from carrying out normal duties when it was already causing her pain." [T8]

A handwritten statement in similar terms was signed by Mrs O'Brien on 18 January 1999 and reads in part:
"I have instructed her on many occasions not to lift heavy articles or to undertake any jobs which would set off her pain" [T7]
On 15 February 1999 Mr Allan Day, the Human Resources Manager forwarded the claim to Mr Hoffman, Australia Post's Claims Manager, with a covering letter in the following terms:
"Dennis, Just a bit of a covering note on the attached claim for Compo by Ms Cardwell and a bit of history on her.
Ms Cardwell had some time off from 3rd Dec – 19th Dec 1997 with neck and shoulder pain. However, this was not attributed to work as she supposedly hurt herself at home doing some heavy work in the yard with her husband. As I recall, it had something to do with lifting heavy pot plants and some rocks for landscaping purposes.
Ms Cardwell has mentioned to her fellow workers on occasions that she had sore neck or back and consequently they didn't allow her to do any lifting work that might make the problem worse. What made her fellow workers very unhappy was that Chris would continually complain of the problem and they would go easy on her and then lo and behold she would come to work on Monday and tell them of some of the physical type of things she had done on the weekend. They could not understand how a person with her injuries supposedly aggravated by counter duties could possibly cope with doing the heavy work she claimed to be doing outside work….
Chris recently went to a physio and was told her problems were from "twisting at the counter" and suggested she would benefit from sitting on a high stool. A stool was supplied, however, Chris had gone on sick leave by the time it had arrived.
Chris mentions in her statement that she suffered the pain from continually twisting to her left to serve customers. I advised the Postal Manager that maybe we should move Chris to the other side of the counter so that the she would then turn to her right to serve customers. I was advised that Chris did not want to move to the other side "as she preferred the drawers the other way around".
No one disputes the fact that Chris has back problems as she sometimes appears to be in extreme pain, however, it would seem that the injury occurred outside of work and may be exacerbated by her actions at the counter.
Chris is presently working 4 hours a day after seeing Dr Steven Goode for a fitness for duty examination. On speaking to Chris this morning she claimed she was struggling to do the four hours so I suggested maybe she should be on sick leave. Her reply to this was that "she didn't have much sick leave left". This indicates to me that either the pain is not that unbearable, or, she is coming to work for the wrong reason eg money
Should you wish to discuss this matter further, please give me a ring." [T9]

On 23 February 1999 Mr Hoffman decided to reject the applicant's claim, and in his letter of advice stated in part, as follows:
"It is recognised that you have experienced and reported low back pain on occasion in association with your various work activities. However, to establish a compensation entitlement under the Safety Rehabilitation and Compensation Act 1988, it would be necessary for you to show that you the pain or symptoms result from work related injury or a disease contributed to by your work.
Dr Steven Goode's reports and the relevant X-ray and pathology results have been obtained for consideration with your claim. These indicate that you had undergone investigations to assist diagnosis as the nature and source of your condition had not been clear.
There has been no specific accident or strain or actual injury to your back at work that has been reported by you or that can be other wise identified. Nor do reports by Dr Goode indicate there is a process that would be identified with your work. I have included a copy of Dr Goode's report of 15 January 1999.
Consequently I could not find that you have an entitlement to compensation in respect of your back condition and formal determination in this respect as required by the Safety Rehabilitation and Compensation Act 1988 follows. [T10]

On March 1999 the applicant upgraded her working hours to 25 hours per week, 5 hours per day; and she continues to work those hours at Kenmore Post Office Store. On 18 March 1999 the applicant requested reconsideration of Mr Hoffman's decision, and on 31 March 1999 her solicitors forwarded four additional medical reports. On 22 April 1999 the Reconsiderations Delegate affirmed the determination, and stated in part:
"I believe that Dr Goode's definitive opinion on the Applicant's condition is contained in his report of 26 February (after viewing test results) when he stated "there is no evidence of an anatomical or rheumatological pathology of the lumbar spine ….. this probably represents simple musculo-ligamentous mechanical back pain". I note Dr Reid's opinion that there is tenderness of the soft tissue of the back and that this can be caused by repeated minor injuries or stresses.
I have taken particular note of the report from the Postal Manager Kenmore PO, that the Applicant suffered from back pain on numerous occasions prior to the incident of November 1998. Some of these were to such an extent that she had to be sent home.
Overall, I am of the opinion that the Applicant's employment has not caused or aggravated her underlying back condition. I believe that she does experience pain in her back, despite the lack of hard medical evidence to pinpoint the exact cause. However I also believe that no causal nexus has been established between her employment and the back pain. Her previous history of this condition also supports this view" [T14]

The applicant has applied to this Tribunal for review of that determination, and submits that she suffered a musculo-ligamentous injury to her back, on 24 November 1998, which arose out of or in the course of her employment with Australia Post. The injury gave rise to a temporary incapacity. The Tribunal should be satisfied on the evidence that the applicant's work caused the back injury, and that she did not have pre-existing back pain. The applicant argues in the alternative, that the repetitive motions she undertook on a daily basis, whilst serving at the counter, led to soft tissue damage/muscle strain.
We have summarised the applicant's assertions in a brief and general way. What we have said is by no means a complete account of the applicant's case, all aspects of which we have taken into account in our deliberations.
Australia Post maintains that although the applicant suffers pain in her back, there was no material contribution to the back pain from her employment with Australia Post. The applicant, it argues, despite her denials, has had a history of back pain which included significant incidents of pain occurring outside of her work and is an unreliable witness who has exaggerated her symptoms and provided inconsistent versions of events to the examining medical practitioners, and to this Tribunal. Australia Post submits that any conclusion that the applicant's pain or condition was caused or aggravated by her employment, or arose out of her employment, would be no more than speculative.
The applicant gave oral evidence. She was cross-examined at length. The cross examination was fair but searching. She was a pleasant witness but the short comings in her evidence-in-chief became more apparent when tested under cross examination. Her credibility is a central issue; and it is significant, in our view, that prior to the lodgment of her claim on 8 February 1999, none of the medical or allied health professionals from whom the applicant sought treatment, had recorded the alleged incident, which she maintains now, occurred on 24 November 1998 (the November incident). No specific incident was identified by Dr Goode, Mr Janz, the accupuncturist who saw her on 24 November 1998, Mr Norrie, the osteopath, nor the physiotherapist in Mrs Elkins' practice, who treated the applicant from 30 November 1998. In the reports from the medical practitioners who saw the applicant subsequent to the lodgment of the claim, the alleged November incident was recorded by all.
In relation to the Applicant's credibility, we consider it significant also, that she has consistently denied any previous history of back pain. In her examination-in-chief she stated that on a couple of occasions when a parcel was too heavy she had experienced slight twinges, but that her first experience of back pain was on 24 November 1998. It was not until she was faced with documentary evidence which she could not refute, namely Mr Janz's clinical notes, that the applicant conceded that she had suffered some back pain before 24 November 1998. Mr Janz had recorded that on 8 September 1998 the applicant woke with back pain of such severity that it was hard for her to move; on 7 November 1998 she reported suffering back pain, and on 16 November 1998 she awoke again with low back pain. On 25 November 1998 when she presented to Mr Janz with back pain, no precipitating event was recorded. We find it hard to accept that the applicant would have so quickly forgotten those episodes which occurred such a short time before 24 November 1998. In addition they were of sufficient severity that she sought treatment. In the light of these inconsistencies, we cannot accept her claim that the back pain was precipitated by a specific incident, at work, on 24 November 1998.
The applicant called one lay witness, Miss Stephenson, whose memory of events was very limited. She remembered the applicant wearing a neck brace, some time in the period 1996 to April 1997. We found her evidence of little assistance. Australia Post called three lay witnesses, Mr Newton and Mesdames O'Brien and Greenlees who gave careful and objective evidence. We accept them as witnesses of truth, and prefer their evidence to that of the applicant in any area of dispute in the evidence. The remaining witnesses were medical practitioners and allied health professionals, all of whom gave evidence by telephone. We prefer the opinions and evidence of Dr Gillett in any area of conflict in the medical evidence.

The applicant has asserted in the alternative that the repeated twisting motion required when serving at the counter, has been responsible for the back pain. On the evidence, there has been little change in her counter duties over the 10 year period up to November 1998. These duties included attending up to 150-200 customers per day, processing agency payments, receiving cash and cheques, stapling receipts to dockets, weighing parcels, putting computer labels on parcels, and processing passport applications. The applicant said that she was required to place all parcels received onto a trolley which was situated between her workstation and that of her colleague. This trolley would then need to be pushed or pulled to the back office, the parcels lifted out and placed into one of four mailbags. The applicant said in evidence that the parcels could weigh up to 16 kilograms, and one could not tell how heavy a particular parcel was, until it was actually lifted; there were no scales to weigh the parcels. The applicant also stated that she was required to empty the "drop box" at the front of the Post Office store.
The applicant and her husband have been renovating their home for over ten years since 1990. Their first undertaking was the installation of a swimming pool. She said in evidence that she suffered a neck injury in 1995, as a result of painting ceilings in the home, over a period of time, with a roller and paint brush. She had picked up a pot and put it on a shelf some 6 feet off the ground, and she experienced neck pain immediately. She sought treatment from Mr Janz, but continued painting. She painted 5-6 walls and 1 ceiling, over a period of years until about the end of 1997. The neck pain, she said, had resolved by February 1998; but she experienced right leg and thigh pain in May 1998. The pain gradually worsened. She had some absences from work because of the neck pain, but says that she did not suffer neck pain after February 1998. She says also, that she has continued to perform normal household duties, but not been involved in any of the house renovations since November 1998.
Mr Newton was Acting Manager at Kenmore Post Office store between June and August 1997, and gave evidence that on one occasion the applicant complained of feeling sore, with pain in the back, neck and shoulders after pulling out trees and plants on the weekend. He said that he arranged with the other staff that the applicant not lift any heavy objects. On another occasion, the applicant complained to Mr Newton that she had been helping her husband with his part-time cleaning work, and had bent down to pick up an object and hurt her back, her neck and her shoulders, which were all sore. Mr Newton was adamant that the applicant complained of back pain in addition to neck and shoulder pain. We accept Mr Newton's evidence.
Mrs O'Brien has been the manager of the Kenmore Post Office store since November 1997. She gave evidence that within a couple of weeks of her arrival she became aware that the applicant suffered back pain. She suggested that the applicant not perform mail duties or heavy lifting, and not take mail from the counter to the back office in the trolley. Mrs O'Brien said also, that she had to reinforce this direction on a number of occasions.
Mrs O'Brien related a conversation when the applicant said that she had a sore back because she had been painting the ceiling from a stepladder. Mrs O'Brien says that she commented that this appeared unwise when the applicant had a back problem. Mrs O'Brien gave evidence that on one occasion subsequent to November 1998, the applicant said that she and her husband were building a pergola, and that her back was sore because she had been pushing pieces of concrete in a wheelbarrow. Mrs O'Brien said that she commented to the applicant again, that it seemed silly to be doing such work when she had back problems. The applicant replied, to the effect, that it was not a problem.
Mrs O'Brien gave evidence that over a period of years the Applicant complained regularly of back pain. She was "not a well person", who often had time off work, which was not always noted on attendance records. She said that the applicant worked to the best of her abilities. Mrs O'Brien said in evidence also, that on the morning of 24 November 1998, the applicant complained of back pain. As far as she was aware, there was no specific event which occurred during working hours that day, and certainly she did not witness the alleged event in the afternoon. She said that as the applicant had complained of pain, and the power cuts ensured that the Post Office store would not reopen, she was able to send the applicant home early. It became clear in the course of Mrs O'Brien's evidence, that she does not keep a meticulous record of events. She was at times vague as to the history of events, but we are satisfied that in relation to the events surrounding 24 November 1998, her evidence is to be preferred to that of the applicant. We accept Mrs O'Brien's evidence.
Mrs Greenlees has worked with the applicant since 1989. She said in evidence that she gathered from conversations over the years that the applicant had suffered quite a deal of ill health, neck and back trouble, and various other illnesses. The applicant and her husband had been renovating their home over a number of years, and the applicant complained of being sore and uncomfortable at various times such as after painting, sanding and lime coating a wall. She recalled the applicant telling her that she and her husband had removed a deck, and remade the garden. Mrs Greenlees did not think that the applicant had anything to do with dismantling the deck, but that she did carry some of the broken concrete from the slab. The applicant had said that she was very sore and sorry. Mrs Greenlees said in evidence, that as this event had occurred subsequent to the incident in November 1998, both she and Mrs O'Brien expressed their astonishment that the applicant had undertaken such an enterprise when she had already hurt her back. The applicant said words to the effect that they were only small pieces of concrete, which would not harm her back.
Mrs Greenlees said in evidence that from 1997 through to November 1998, the applicant, in accordance with Mrs O'Brien's request, was not required to perform the mail duties of clearing the mail boxes and lifting heavy parcels. She said that the applicant did in fact perform those duties from time to time, usually when Mrs Greenlees herself was unable to perform the duties because of her own back problems. We accept Mrs Greenlees' evidence.
The applicant and Mesdames O'Brien and Greenlees continue to work together at Kenmore Post Office store, and it was noteworthy that there appeared to be no animosity or recrimination existing in the group, and that they continue to work in a harmonious environment.
The applicant called Dr Reid, who examined her on 9 March 1999. Dr Reid is a general practitioner, with an interest in pain control. In his report of 15 March 1999, Dr Reid recorded that the applicant had told him that low back pain had first commenced on 24 November 1998, when she had bent forward to pick up a small object. She had also reported pain in her right thigh in May 1998, and some groin pain, which settled over time. Dr Reid found a lot of soft tissue tenderness and formed the opinion that the findings were consistent with soft tissue injury of her back. During cross-examination, Dr Reid said that as far as he was concerned the major repetitive movements at work were the important factor in the causation of the applicant's symptoms. Dr Reid said that he was aware of the fact that she had been involved in house renovations, but still attributed the symptoms to her work. He agreed that he was completely dependent on the applicant as far as the history was concerned.
Mr Janz who is a Registered Nurse, is also in practice as an Acupuncturist. Mr Janz had provided a written report and his clinical notes were also before the Tribunal. On 12 January 1999, Mr Janz reported that the applicant had presented on 1 September 1998 with a 4 month history of intermittent right leg pain, and during the two weeks prior to presentation, the pain had progressed to a right hip ache which would ache at night as well. Those symptoms had improved with treatment over a 4 week period. She had presented again on 25 November 1998, with a 24 hour history of backache. Mr Janz did not record any precipitating factor, but he recorded aggravation of the symptoms, after return to work. He stated:
"A discussion of Mrs Cardwell's workplace work practices raises concerns over occupational health and safety issues, especially regarding back care. It is clear that the workplace work practices are a source of aggravation for her back complaint and may well be implicated in its origin" [T31C]
Mr Janz gave evidence that he had recorded on 8 September 1998 that the applicant had presented with a history of waking that morning with back pain of such severity that she found it hard to move. When he examined her he noted the straight leg-raising test to be positive. On 14 September 1998 he recorded "leg – on and off – but the worst pain has resolved". His notes also recorded that the applicant woke with low back pain again on 16 November 1998. When the applicant presented to him on 25 November 1998 with back pain, no precipitating incident was recorded, and Mr Janz said in evidence that the applicant had talked with him about all the factors that might aggravate her backache, such as painting too long or landscaping activities which he told the applicant to avoid. His concern was the workplace, the prolonged standing, lifting and twisting in particular. He agreed that his notes did not include any specific event as a precipitating factor in relation to her back symptoms.
Mrs Denise Elkins provided a written report, and she also gave evidence by telephone. Her evidence related to notes made by physiotherapists at her practice, and were not based on her personal examinations. In her report dated 12 January 1999, Mrs Elkins stated that the applicant had presented at her practice with low back and bilateral buttock and leg pain on 30 November 1998, with the history that the pain was aggravated by lifting parcels and standing all day at work. That report made no reference to any precipitating factor, such as the incident later reported as having occurred on 24 November 1998.
The applicant consulted an Osteopath, Mr Norrie, on 7 January 1999. His report of 14 January 1999 recorded that she had told him that her work required a continual twisting left motion. In the course of his oral evidence he said that he understood the symptoms to have been primarily leg pain which then moved to the back. He said also, that he was unaware of any single incident which could have been responsible. The applicant did not tell him about her previous work history or any activities she undertook outside work.
The documentary evidence includes a report from Dr David White, orthopaedic surgeon dated 23 August 1999 [T32]. Dr White did not see the applicant until 17 August 1999. He recorded that she had told him that the leg pain had come on at work in May 1998. Subsequent to that she had a low back pain described as a "twinge". Dr White had recorded the onset of low back pain after leaning across the counter to pick up a piece of paper in November 1998. He stated that the applicant had denied any prior problems. Dr White expressed the opinion that the pain was suggestive of musculo-ligamentous strain with possible intradiscal disruption consistent with her work duties. Dr White made no mention of her activities outside the work environment.
Australia Post called Dr Gillett, orthopaedic surgeon, who examined the applicant on 8 November 1999. Dr Gillett again referred to the November incident and to the earlier thigh pain in May 1998. Dr Gillett said that the applicant denied any previous problems related to her injured areas. She had been involved in a motor vehicle accident in 1973, and had had some back problems at that time which had resolved. He recorded that she had worked as a newsagent for 10 years prior to commencing with Australia Post. Dr Gillett diagnosed the applicant's discomfort as relating to mechanical low back pain, probably related to chronic muscular strain or some early degenerative process occurring within the lumbar spine. In his view, X-rays had shown normal ageing process of minimal nature. Dr Gillett stated that the normal MRI scan indicated well-preserved discs and hydration.
In the course of his cross-examination, Dr Gillett said that the normal human body twists a great deal during the course of the day, and he did not believe that repeated twisting, of itself, would result in specific injury. He said that he accepted that repeated muscular movement could result in fatigue of muscles in the unfit, but not muscular damage. Muscle fatigue he said quickly recovers, and appropriate management involves muscle-strenghtening exercises.
We note that the possibility was raised in the course of the medical evidence, that the leg pain, first noted in May 1998, might have been related to back pathology. Such an association remained only a possibility with Dr Gillett, who considered that the leg pain might not be related to the applicant's back. It was Dr Reid's belief that repetitive movements at work were the important factor in the causation of the applicant's symptoms, but he conceded that he was completely dependent on her history in making his assessment. Dr Gillett, on the other hand, referred to the fact that the normal human body twists a great deal during the course of the day, and he did not believe that repeated twisting of itself would result in specific injury. The Tribunal prefers the opinion of Dr Gillett.
In relation to Dr White's report, we note that his recorded history related only to the period from May 1998, and most of the emphasis of his report was directed to the November 1998 incident and subsequent course. He expressed the opinion that the applicant's symptoms were consistent with her work duties. Dr White made no reference to the nature of these duties, other than to state that her work "involved being mostly on her feet at the counter". He therefore provided no basis to link her work with his findings, except for his recording of the November incident. Overall the Tribunal considered the report of Dr White to have been very superficial and incomplete, and it was unfortunate that Dr White had not been available to give evidence. Dr Gillett on the other hand had provided a very comprehensive report, and in our view, a logical basis for his opinion. The Tribunal prefers the opinion of Dr Gillett.
We have examined the whole of the evidence carefully and in detail and we have taken into account the parties' carefully prepared written and oral submissions. It is not in dispute that the applicant experiences varying levels of back pain from time to time, and that the degree of pain has been greater since November 1998. Dr White had expressed the opinion that the pain was suggestive of musculo-ligamentous strain with possible intradiscal disruption. Dr Gillett diagnosed mechanical low back pain, which he considered related probably to chronic muscular strain or some early degenerative process occurring within the lumbar spine. Dr Gillett said also, that the normal MRI scan had indicated well preserved discs and hydration. We accept Dr Gillett's view therefore, that there is no intradiscal disruption, as Dr White suggested. The preponderance of the medical opinion is that the pain is due to musculo-ligamentous strain.
We are satisfied on the whole of the evidence that the applicant suffers from episodes of low back pain which may be temporarily aggravated by activities at work or away from work. We are satisfied however, that such episodes are of a temporary nature, and that her underlying back problem is not related to any single event or series of events associated with her work. During the course of the Hearing other possible causes outside her work were canvassed, but this is speculation and speculation is not proof. In any event, we are satisfied on the evidence that any incapacity the applicant suffered as a result of her back pain did not arise out of, or in the course of her employment with Australia Post. Her claim must fail.
For these reasons the Tribunal affirms the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member) and Dr KP Kennedy, OBE (Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 June 2000
Date of Decision  7 September 2000
Counsel for the Applicant        Ms Heyworth-Smith
Counsel for the Respondent    Ms Downes

CATCHWORDS
COMPENSATION – Liability – applicant claimed compensation for time off work without pay – time off was due to a back injury – whether injury was a result of an incident that occurred at work
Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

7 September 2000 Miss AM Brennan, AM (Member)

This is an application for review of a decision of a Reconsiderations Delegate of the respondent (Australia Post) of 22 April 1999, which affirmed a decision that the Applicant was not entitled to payment of compensation for low back pain which she alleged occurred on 24 November 1998.
The evidence before the Tribunal comprised the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with exhibits tendered by the parties. The Applicant who was represented by Ms Heyworth-Smith of Counsel gave oral evidence and called Dr J Reid, General Practitioner, Mr S Janz, acupuncturist, Mrs Elkins physiotherapist and Miss Stevenson a fellow employee of Australia Post. In addition there was a medical report but not oral evidence from Dr D White an orthopaedic surgeon. These witnesses with the exception of Dr White and Miss Stevenson gave evidence by way of telephone link up. Ms Downes of Counsel appeared for Australia Post and called as witnesses Dr Gillett, orthopaedic surgeon, who gave evidence by way of telephone link up and Australia Post employees Mesdames E O'Brien (formerly Cullen) and A Greenlees, and Mr C Newton.
The Applicant who is 47 years of age has been employed by Australia Post as a postal services officer at Kenmore Post Office since August 1988. She alleges that on Tuesday 24 November 1998 there was electricity rationing during the afternoon and the Post Office was closed. She was working at the counter or table in the back office which is at approximately hip height when she leant forward and to the left bending at approximately 45° to pick up a light packet. She experienced a sharp pain, a spasm in both the right and left lower back, half way between the waist and the tail bone. She says that she told her manager, Mrs O'Brien, that she had hurt her back. She worked for a further hour until Mrs O'Brien asked whether the Applicant was continuing to experience pain. When the Applicant said that she was in pain Mrs O'Brien sent her home for the rest of the afternoon.
The Applicant said in evidence that her lower back ached that night; and the next morning it was a little better, but still aching. She consulted Mr Janz the acupuncturist and by the end of the afternoon she felt better. Next morning, Thursday 26 November 1998, she felt even better and returned to work; but by late afternoon her lower back was so painful that she left work early and rested at home. On Friday 27 November 1998 she consulted her General Practitioner, Dr Lorraine Scott, who prescribed anti-inflammatories and recommended treatment by Mrs Elkins, pysiotherapist.

The Applicant did not return to work on modified duties until 29 December 1998. She says that in early January 1999 she experienced pain again by the end of each day but she would have recovered by the following morning. She was not involved in counter duties but was working in the back office. The Applicant says that by late morning on 7 January 1999 she was experiencing severe low back pain, with pins and needles in both legs and feet, and was finding it difficult to walk without assistance. Mrs O'Brien sent her home and she did not return to work until 1 February 1999.
On 14 January 1999 the Applicant, whilst on sick leave, was referred for fitness for duty assessment, to Dr S Goode, visiting specialist in Occupational Medicine, who reported in part:
"2.       Ms Cardwell gave me a history of lumbar back pain and leg pain.
          Ms Cardwell said she first developed anterior thigh pain in May 1998. This appeared insidiously, without any preceding history of trauma. She saw an acupuncturist, and he told her in September 1998 that she had "sciatica". He treated her for lumbar pain with acupuncture, and this relieved her condition.
          Ms Cardwell said she developed lumbar pain the last Tuesday of November at work. Again, there was no history of acute injury, and I gather this occurred in the course of her usual duties. She went home earlier and was off work thereafter.
          Ms Cardwell saw her General Practitioner three days later, and was certified on a sick leave basis. X-ray dated 27.11.98 of the lumbar spine shows a little demineralisation of the vertebrae which is "unusual for a patient of this age". There was no other pathology identified. Ms Cardwell has been on anti-inflammatories. She has had physiotherapy at her own expense (about 15 visits).
          Ms Cardwell said she returned to work just after Christmas. However, she only lasted about ten days, even doing lighter duties. She has been off work since. She says she is now making a Compensation claim.
Ms Cardwell has ceased physiotherapy and is now trying Osteopathy. She is still seeing her General Practitioner weekly. Her General practitioner has suggested bone Densitomy (sic), considering the X-ray findings.
3.        Ms Cardwell says she has had no lumbar pain before this.
EXAMINATION
1.        There is reduced range of movement of the lumbar spine.
2.        There is tenderness from L2-L5S1
3.        Slump test is negative.
OPINION
Ms Cardwell has lumbar pain. There is no evidence on history to suggest sciatica, and no clinical evidence of this. I cannot identify precipitating factors, although the patient attributes the pain to twisting and manual handling in her work as a Postal Sorting Officer." [T16]

On 1 February 1999 the Applicant returned to work for 20 hours per week, 4 hours per day. She was not to lift any mail bags heavier than 5 kgs, use the trolley for conveying mail from the front counter, nor was she to close the front doors of the Post Office store.
On 8 February 1999 the Applicant lodged a claim for payment of compensation for "severe lower back pain – either muscle damage or disc damage" which she stated occurred on 24 November 1998 at approximately 2.30pm "as I lent over to pick up small envelope, I experienced several twinges in right lower back. I was in back office at Kenmore Post Office. I believe it was continuous twisting, lifting and bending" [T8]. It appears that the claim was accompanied by a statement dated 15 January 1999 in the following terms:
"TO WHOM IT MAY CONCERN
During May 1988 I first experienced mild front thigh pain as if I had pulled a muscle. Also my right leg ached during the night while sleeping, often waking me. This continued, becoming very annoying, until it gradually worsened & by September I had pain shooting down my right leg & I had developed a slight limp.
I spoke to my acupuncturist, Stephen Janz, who I seen (sic) for a muscle spasm in my neck & he then treated me. The pain then settled down after several treaments.
On the afternoon 24.11.98, while at work I experienced mild lower right back ache while leaning forward to pick something up off the counter. It slowly got worse as the afternoon went on. I rested at home the following day & also received acupuncture treatment that day. By Thursday it had improved so I went back to work. However by late afternoon the pain in lower right back had increased.
On Friday I saw my G.P. Dr Lorraine Scott who prescribed anti-inflammatories, bed rest & physiotherapy with Denise Elkins. I also had acupuncture treatment. My symptoms ranged from:
Lower back ache
Shooting pain in legs, mostly right leg
Pain in buttocks, mostly right
My injury seemed to be very slow to respond to any treatment. However, it was decided that after four weeks treatment, I would resume work on 29.12.98, since I had no back pain for 10 days prior.
I worked at Kenmore doing the back office & banking duties & not lifting any parcels over 5 kg & not moving any mail bags.
By the end of each day my back was aching considerably but it seemed to recover well by the next morning so I preservered (sic) working.
By late morning Friday 8.1.99, I was experiencing severe lower back pain, pins & needles in both legs & feet & I found it difficult to walk without assistance. I advised my manager, Anita Greenlees who allowed me to go to my doctor where I was given an injection for the pain. I have been off work since that day.
I am doing:
Back exercises given to me by physio
Water exercises
Bed rest
I believe that this lower back pain was contributed by:
Continual twisting to the left to serve customers
Continual leaning across the counter to lift parcels
Dragging heavy mail bags
Pushing/pulling crab pot on mail trolley

10. Pushing up/pulling down roller doors at entrance

I, therefore request that you investigate this claim for Comcare. I will forward a detailed list of expenses. Thanking you for your assistance in this matter."

The Manager Mrs O'Brien, formerly Cullen, completed Part 12 of the Claim Form on 9 February 1999, and in answer to the question as to whether the claim as asserted by the employee was substantially correct, she answered "No"; and in answer to the question whether the claim should be accepted, she answered "No", and attached a handwritten note in the following terms:
"When I first began work at Kenmore in November 1997, I became aware that Chris had a bad back. To the best of my knowledge no specific injury occurred at work. I have sent her home on a number of occasions because she was suffering back or neck pain but as far as I am aware, the condition was pre-existing from causes outside of work or unknown. Her condition has, however, been made worse on occasion from carrying out normal duties when it was already causing her pain." [T8]

A handwritten statement in similar terms was signed by Mrs O'Brien on 18 January 1999 and reads in part:
"I have instructed her on many occasions not to lift heavy articles or to undertake any jobs which would set off her pain" [T7]
On 15 February 1999 Mr Allan Day, the Human Resources Manager forwarded the claim to Mr Hoffman, Australia Post's Claims Manager, with a covering letter in the following terms:
"Dennis, Just a bit of a covering note on the attached claim for Compo by Ms Cardwell and a bit of history on her.
Ms Cardwell had some time off from 3rd Dec – 19th Dec 1997 with neck and shoulder pain. However, this was not attributed to work as she supposedly hurt herself at home doing some heavy work in the yard with her husband. As I recall, it had something to do with lifting heavy pot plants and some rocks for landscaping purposes.
Ms Cardwell has mentioned to her follow workers on occasions that she had sore neck or back and consequently they didn't allow her to do any lifting work that might make the problem worse. What made her fellow workers very unhappy was that Chris would continually complain of the problem and they would go easy on her and then lo and behold she would come to work on Monday and tell them of some of the physical type of things she had done on the weekend. They could not understand how a person with her injuries supposedly aggravated by counter duties could possibly cope with doing the heavy work she claimed to be doing outside work….
Chris recently went to a physio and was told her problems were from "twisting at the counter" and suggested she would benefit from sitting on a high stool. A stool was supplied, however, Chris had gone on sick leave by the time it had arrived.
Chris mentions in her statement that she suffered the pain from continually twisting to her left to serve customers. I advised the Postal Manager that maybe we should move Chris to the other side of the counter so that the she would then turn to her right to serve customers. I was advised that Chris did not want to move to the other side "as she preferred the drawers the other way around".
No one disputes the fact that Chris has back problems as she sometimes appears to be in extreme pain, however, it would seem that the injury occurred outside of work and may be exacerbated by her actions at the counter.
Chris is presently working 4 hours a day after seeing Dr Steven Goode for a fitness for duty examination. On speaking to Chris this morning she claimed she was struggling to do the four hours so I suggested maybe she should be on sick leave. Her reply to this was that "she didn't have much sick leave left". This indicates to me that either the pain is not that unbearable, or, she is coming to work for the wrong reason eg money
Should you wish to discuss this matter further, please give me a ring." [T9]

On 23 February 1999 Mr Hoffman decided to reject the Applicant's claim, and in his letter of advice stated in part, as follows:
"It is recognised that you have experienced and reported low back pain on occasion in association with your various work activities. However, to establish a compensation entitlement under the Safety Rehabilitation and Compensation Act 1988, it would be necessary for you to show that you the pain or symptoms result from work related injury or a disease contributed to by your work.
Dr Steven Goode's reports and the relevant X-ray and pathology results have been obtained for consideration with your claim. These indicate that you had undergone investigations to assist diagnosis as the nature and source of your condition had not been clear.
There has been no specific accident or strain or actual injury to your back at work that has been reported by you or that can be other wise identified. Nor do reports by Dr Goode indicate there is a process that would be identified with your work. I have included a copy of Dr Goode's report of 15 January 1999.
Consequently I could not find that you have an entitlement to compensation in respect of your back condition and formal determination in this respect as required by the Safety Rehabilitation and Compensation Act 1988 follows. [T10]

On March 1999 the Applicant upgraded her working hours to 25 hours per week, 5 hours per day; and she continues to work those hours at Kenmore Post Office.
On 18 March 1999 the Applicant requested reconsideration of Mr Hoffman's decision, and on 31 March 1999 her solicitors forwarded four additional medical reports.
On 22 April 1999 the Reconsiderations Delegate affirmed the determination, and stated in part:
"I believe that Dr Goode's definitive opinion on the Applicant's condition is contained in his report of 26 February (after viewing test results) when he stated "there is no evidence of an anatomical or rheumatological pathology of the lumbar spine ….. this probably represents simple musculo-ligamentous mechanical back pain". I note Dr Reid's opinion that there is tenderness of the soft tissue of the back and that this can be caused by repeated minor injuries or stresses.
I have taken particular note of the report from the Postal Manager Kenmore PO, that the Applicant suffered from back pain on numerous occasions prior to the incident of November 1998. Some of these were to such an extent that she had to be sent home.
Overall, I am of the opinion that the Applicant's employment has not caused or aggravated her underlying back condition. I believe that she does experience pain in her back, despite the lack of hard medical evidence to pinpoint the exact cause. However I also believe that no causal nexus has been established between her employment and the back pain. Her previous history of this condition also supports this view" [T14]

The Applicant applied to this Tribunal for review of that determination and claimed that she suffered an injury to her back on 24 November 1998 which arose out of or in the course of her employment with Australia Post. The Applicant also argued that the repetitive motions she undertook at work on a daily basis serving at the counter led to back problems.
Australia Post maintained that although the Applicant suffers pain in her back there was no material contribution to the back pain condition from her employment with Australia Post.
The Tribunal should be satisfied beyond a mere possibility that the Applicant's work with Australia Post caused the back injury/problems.
THE EVIDENCE
Evidence In Support Of The Applicant's Claim
The Applicant Christine Cardwell
The Applicant gave oral evidence and although she was cross-examined at length the cross-examination appeared to be fair but searching. In the Applicant's early phase of giving evidence she said that her first experience of severe back pain was on 24 November 1998 when she leant forward across a counter/table to pick up a light object. Prior to that date the Applicant said that she had experienced slight twinges of pain on a couple of occasions when she was undertaking work at Australia Post eg lifting a heavy parcel. The Applicant's history of her back pain changed after she was faced with Mr Janz's clinical notes. She conceded that she had suffered some back pain before 24 November 1998. Mr Janz had recorded that on 8 September 1998 the Applicant woke with back pain of such severity that it was hard for her to move; on 7 November 1998 she reported suffering back pain; and on 16 November 1998 she awoke again with low back pain.
Following the incident at work on 24 November 1998 the Applicant went to Mr Janz for treatment of back pain on 25 November.
Irrespective of the Applicant's inconsistencies in evidence which related to the time when she had first experienced severe back pain, the Applicant continued to hold the view that the repeated twisting motion required when serving at the counter had also contributed towards her back pain.
The Applicant's unreliable reporting about the history of her back pain did not appear to arise from any psychological and/or health problem.
On the evidence, it seems there had been little change in the Applicant's counter duties over the 10 year period up to November 1998. These duties included attending up to 150-200 customers per day, processing agency payments, receiving cash and cheques, stapling receipts to dockets, weighing parcels, putting computer labels on parcels, and processing passport applications. The Applicant said that she was required to place all parcels received onto a trolley, which was situated between her workstation and that of her colleague. This trolley would then need to be pushed or pulled to the back office, the parcels lifted out and placed into one of four mailbags. The Applicant said in evidence that the parcels could weigh up to 16 kilograms and one could not tell how heavy a particular parcel was until it was actually lifted; there were no scales to weigh the parcels. The Applicant also stated that she was required to empty the "drop box" at the front of the Post Office store.
The Applicant and her husband have been renovating their home for over ten years since 1990. Their first undertaking was the installation of a swimming pool. The Applicant said in evidence that she suffered a neck injury in 1995 as a result of painting ceilings in the home over a period of time with a roller and paint brush. She had picked up a pot and put it on a shelf some 6 feet off the ground and she experienced neck pain immediately. She sought treatment from Mr Janz, but continued painting. She painted 5-6 walls and 1 ceiling over a period of years until about the end of 1997. The neck pain, she said, had resolved by February 1998; but she experienced right leg and thigh pain in May 1998. The pain gradually increased in intensity. She had some absences from work because of the neck pain but says that she did not suffer neck pain after February 1998. She says also that she has continued to perform normal household duties but not been involved in any of the house renovations since November 1998.
Dr Reid – General Practitioner
The Applicant called Dr Reid, who examined her on 9 March 1999. Dr Reid is a general practitioner with an interest in pain control. In his report of 15 March 1999, Dr Reid recorded that the Applicant had told him that low back pain had first commenced on 24 November 1998, when she had bent forward to pick up a small object. She had also reported pain in her right thigh in May 1998 and some groin pain which settled over time. Dr Reid found a lot of soft tissue tenderness and formed the opinion that the findings were consistent with soft tissue injury of her back. During cross-examination, Dr Reid said that as far as he was concerned the major repetitive movements at work were the important factor in the causation of the Applicant's symptoms. Dr Reid said that he was aware of the fact that she had been involved in house renovations but still attributed the symptoms to her work. He agreed that he was completely dependent on the Applicant as far as the history was concerned.
Mr Janz – registered nurse and acupuncturist
Mr Janz who is a Registered Nurse is also in practice as an Acupuncturist. Mr Janz had provided a written report and his clinical notes were also before the Tribunal. In his report of 12 January 1999, Mr Janz stated that the Applicant had presented on 1 September 1998 with a 4 month history of intermittent right leg pain and during the two weeks prior to presentation the pain had progressed to a right hip ache which would ache at night as well. Those symptoms had improved with treatment. She had presented again on 25 November 1998, with a 24 hour history of backache. Mr Janz did not record any precipitating factor, but he recorded aggravation of the symptoms after return to work. Mr Janz recorded that on 8 September 1998 the Applicant had presented with a history of waking that morning with back pain of such severity that she found it hard to move. When he examined her he noted the straight leg-raising test to be positive. On 14 September he recorded leg – on and off – but the worst pain had resolved. His notes also recorded that the Applicant woke with low back pain again on 16 November 1998.
Mrs Denise Elkins - physiotherapist
Mrs Denise Elkins provided a written report and she also gave evidence by telephone. Her evidence related to notes made by physiotherapists at her practice and were not based on her personal examinations. In her report dated 12 January 1999, Mrs Elkins stated that the Applicant had presented at her practice with low back and bilateral buttock and leg pain on 30 November 1998 with the history that the pain was aggravated by lifting parcels and standing all day at work. That report made no reference to any precipitating factor, such as the incident later reported as having occurred on 24 November 1998.
Mr Norrie - osteopath
The Applicant consulted an Osteopath, Mr Norrie on 7 January 1999. His report of 14 January 1999 recorded that she had told him that her work required a continual twisting left motion. In the course of his oral evidence he said that he understood the symptoms to have been primarily leg pain which then moved to the back. He said also that he was unaware of any single incident which could have been responsible. The Applicant did not tell him about any activities she undertook outside work.
Dr David White – orthopaedic surgeon

The documentary evidence includes a report from Dr David White, orthopaedic surgeon dated 23 August 1999 [T32]. Dr White did not see the Applicant until 17 August 1999. He recorded that the Applicant had told him that the leg pain had come on at work in May 1998. Subsequent to that she had a low back pain described as a "twinge". Dr White had recorded the onset of low back pain after leaning across the counter to pick up a piece of paper in November 1998. He stated that the Applicant had denied any prior problems. Dr White expressed the opinion that the pain was suggestive of musculo-ligamentous strain with possible intradiscal disruption consistent with her work duties. Dr White made no mention of her activities outside the work environment.
Miss Stephenson – former work associate
The Applicant called one lay witness and former work associate Miss Stephenson. Miss Stephenson's memory of events was limited but recalled that the Applicant wore a neck brace some time in the period 1996 to April 1997.
Evidence in support of Respondent's case
Dr Gillett – orthopaedic surgeon
Australia Post called Dr Gillett, orthopaedic surgeon, who examined the Applicant on 8 November 1999. Dr Gillett referred to the November 1998 incident and to the earlier thigh pain in May 1998. Dr Gillett said that the Applicant denied any previous problems related to her injured areas. She had been involved in a motor vehicle accident in 1973, and had had some back problems at that time which had resolved. He recorded that she had worked as a newsagent for 10 years prior to commencing with Australia Post. Dr Gillett diagnosed the Applicant's discomfort as relating to mechanical low back pain, probably related to chronic muscular strain or some early degenerative process occurring within the lumbar spine. In his view, X-rays had shown normal ageing process of minimal nature. Dr Gillett stated that the normal MRI scan indicated well-preserved discs and hydration.
In the course of his cross-examination Dr Gillett said that the normal human body twists a great deal during the course of the day and he did not believe that repeated twisting, of itself, would result in specific injury. He said that he accepted that repeated muscular movement could result in fatigue of muscles in the unfit, but not muscular damage. In Dr Gillett's opinion muscle fatigue quickly recovers and appropriate management involves muscle-strenghtening exercises.
In the course of the medical evidence the possibility was raised that the leg pain first noted in May 1998 might have been related to back pathology. In Dr Gillett's opinion such an association was only a possibility and added that the leg pain might not have been related to the Applicant's back condition.
Mr Newton – Acting Manager Kenmore Post Office Store June-August 1997
Mr Newton was Acting Manager at Kenmore Post Office store between June and August 1997, and gave evidence that on one occasion the Applicant complained of feeling sore with pain in the back, neck and shoulders after pulling out trees and plants on the weekend. He said that he arranged with the other staff that the Applicant not lift any heavy objects. On another occasion, the Applicant complained to Mr Newton that she had been helping her husband with his part-time cleaning work and had bent down to pick up an object, and hurt her back, neck and shoulders, which were all sore. Mr Newton said that the Applicant complained of back pain in addition to neck and shoulder pain.
Mrs O'Brien – Manager Kenmore Post Office November 1997-2000
Mrs O'Brien has been the manager of the Kenmore Post Office store since November 1997. She gave evidence that within a couple of weeks of her arrival she became aware that the Applicant suffered back pain. She suggested that the Applicant not perform mail duties or heavy lifting, and not take mail from the counter to the back office in the trolley. Mrs O'Brien said also that she had to reinforce this direction on a number of occasions.
Mrs O'Brien related a conversation when the Applicant said that she had a sore back because she had been painting the ceiling from a stepladder. Mrs O'Brien says that she commented that this appeared unwise when the Applicant had a back problem. Mrs O'Brien gave evidence that on one occasion subsequent to November 1998 the Applicant said that she and her husband were building a pergola and that her back was sore because she had been pushing pieces of concrete in a wheelbarrow. Mrs O'Brien said that she commented to the Applicant again that it seemed silly to be doing such work when she had back problems. The Applicant replied, to the effect, that it was not a problem.
Mrs O'Brien gave evidence that over a period of years the Applicant complained regularly of back pain. She was "not a well person" who often had time off work which was not always noted on attendance records. She said that the Applicant worked to the best of her abilities. Mrs O'Brien said in evidence that on the morning of 24 November 1998, the Applicant complained of back pain. As far as Mrs O'Brien was aware there was no specific event which occurred during working hours that day and certainly she did not witness the alleged event in the afternoon. She said that as the Applicant had complained of pain, and the power cuts ensured that the Post Office would not reopen, she was able to send the Applicant home early.
mrs greenlees – work associate since 1989
Mrs Greenlees has worked with the Applicant since 1989. She said in evidence that she gathered from conversations over the years that the Applicant had suffered quite a deal of ill health - neck and back trouble and various other illnesses. The Applicant and her husband had been renovating their home over a number of years and the Applicant complained of being sore and uncomfortable at various times after painting, sanding and lime coating a wall. She recalled the Applicant telling her that she and her husband had removed a deck, and remade the garden. Mrs Greenlees did not think that the Applicant had anything to do with dismantling the deck but that she did carry some of the broken concrete from the slab. The Applicant had said that she was very sore and sorry. Mrs Greenlees said in evidence that as this event had occurred subsequent to the incident in November 1998 both she and Mrs O'Brien expressed their astonishment that the Applicant had undertaken such an enterprise when she had already hurt her back. The Applicant said words to the effect that they were only small pieces of concrete which would not harm her back.
Mrs Greenlees said in evidence that from 1997 through to November 1998, the Applicant, in accordance with Mrs O'Brien's request, was not required to perform the mail duties of clearing the mail boxes and lifting heavy parcels. She said that the Applicant did in fact perform those duties from time to time, usually when Mrs Greenlees herself was unable to perform the duties because of her own back problems.
The Applicant and Mesdames O'Brien and Greenlees continue to work together at the Kenmore Post Office.
THE DECISION
The Applicant has been examined by two orthopaedic surgeons, Dr White for the Applicant, and Dr Gillett for the respondent.
It was unfortunate that Dr White was not available to give evidence and to be cross-examined. His assessment appeared to be more limited than that which had been undertaken by Dr Gillett and Dr Gillett's findings did not support Dr White's provisional diagnosis of musculo-ligamentous strain with possible intradiscal disruption consistent with her work duties. In Dr Gillett's assessment x-rays had shown normal ageing process of minimal nature and an MRI Scan had indicated well preserved discs and hydration. Furthermore Dr White's assessment appears to have been restricted to the Applicant's history of her back pain because he recorded that the onset of her low back pain was linked to the incident at work on 24 November 1998. On the basis of the Applicant's evidence in this case and Mr Janz's records this no longer appears to be the case.
Dr Reid's assessment is of a different order to that which was undertaken by Dr Gillett. It was Dr Reid's opinion that repetitive movements at work were the important factor in the causation of the Applicant's symptoms. Dr Reid is a general practitioner with an interest in pain control and his observations of the Applicant's symptoms roughly corresponds to Dr Gillett's statement that repeated muscular movement may result in fatigue of muscles in the unfit. However, whereas Dr Reid formed the opinion that the Applicant's symptoms were consistent with soft tissue injury Dr Gillett was of the opinion that repeated muscular movement did not result in muscular damage. As this matter rests squarely in Dr Gillett's area of expertise his opinion is preferred.
The other witnesses who dealt with health (pain and back) issues tended to reveal more about the history of the Applicant's pain problems than establishing any link between her work activities and back condition.
The work associates informed the Tribunal about the nature of the work which had been undertaken by the Applicant as an officer employed by Australia Post and provided perspectives on the way the Applicant and Australia Post dealt with her disabilities in the work situation. When the work associates were giving evidence matters concerning the Applicant's activities outside the work situation which may have had some relevance to her back condition were canvassed but these matters remain in the realms of speculation and are not proof of any events.
Again the evidence given by the work associates did not point to any causal links between the Applicant's back condition and her work with Australia Post.
It is not in dispute that the Applicant experiences varying levels of back pain from time to time and that the degree of pain has been greater since 1998. The evidence indicates that the Applicant suffers from episodes of back pain which may be temporarily aggravated by activities at work or away from work.
In my opinion the weight of evidence is insufficient to show any causal link between incidents or activities at work and a back injury and/or disease. For these reasons I affirm the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Miss AM Brennan, AM (Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 June 2000
Date of Decision  7 September 2000
Counsel for the Applicant        Ms Heyworth-Smith
Counsel for the Respondent    Ms Downes