Coles and Australian Postal Corporation

[2003] AATA 1157

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1157

ADMINISTRATIVE APPEALS TRIBUNAL      )              No             N2002/1312 and

)  N2003/1392

GENERAL ADMINISTRATIVE DIVISION )

Re RONALD COLES

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr J Campbell, Member

Date4 November 2003

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL   )         Nos        N2002/1312 and
  )  N2003/1392
GENERAL ADMINISTRATIVE DIVISION     )  

Re:                RONALD COLES

Applicant

And:              AUSTRALIAN POSTAL

CORPORATION

Respondent

DECISION

Tribunal              Senior Member M D Allen;
  Dr J Campbell, Member

Date  4 November 2003

Place                   Sydney

DecisionN2002/1312:

(1)FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is

SET ASIDE and the Tribunal remits this matter to the Respondent with the direction that the Applicant continues to suffer a work caused disability of the lower back

AND THAT there is a Permanent Impairment of the lower back calculated at 10% on the Comcare Guide to the Assessment of the Degree of Permanent Impairment.

(2)The Respondent is to pay the Applicant’s costs.

N2003/1392:

The decision under review is affirmed.

(Sgd)  M.D. Allen

..............................................

Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – Whether aggravation of a pre-existing condition had ceased or whether a previously asymptomatic condition had been made symptomatic and permanent – pain is a compensable condition.

Safety Rehabilitation and Compensation Act 1988 – sections 14; 24

Re Gray and Commonwealth Banking Corporation and Anor (unreported Tribunal decision no. 5168; 21 June 1989)

Commonwealth Banking Corporation v. Percival (1988) 20 FCR 176

Glavinas v. Holden Motor Co Ltd (unreported Supreme Court of South Australia no.61/90; 25 November 1991)

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Signed:         
          ....................................................................................……………………………….

Associate

Dates of Hearing  3 and 4 November 2003

Date of Decision  4 November 2003

Counsel for Applicant                  Mr L. T. Grey

Solicitor for Applicant                   Tony Mannah, Carrol & O’Dea Solicitors

Counsel for Respondent             Mr N. Polin

Solicitor for Respondent              Miss L. Figurka, Sparke Helmore Solicitors

DRAFT DECISION

ADMINISTRATIVE APPEALS TRIBUNAL

Matter Nos N02/1312 and N03/1392

By MR M.D. ALLEN, Senior Member, DR J. CAMPBELL, Member

COLES and AUSTRALIAN POSTAL CORPORATION

SYDNEY, THURSDAY, 4 NOVEMBER 2003

MR ALLEN:   This matter concerns two applications, the first numbered  N2002/1312 was lodged on 9 September 2002 respecting a reviewable decision which read “that from 7 June 2002 Australia Post ceased to be liable to pay compensation to the applicant under all of the benefits provisions of the Safety and Rehabilitation and Compensation Act, including provisions of sections 14, 16, 19 and 24 in respect of the back injury which he sustained on 22 December 1998.”

The second matter bearing number N2003/1392 lodged on 29 August 2003 refers to a reviewable decision dated 26 August 2003 refusing what is basically and is referred to as a nature and conditions claim. A prior claim by this applicant was heard by the Tribunal on 24 October 2000 and its decision of 8 December 2001 is at document T61 commencing at page 183 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 in matter N2002/1312.

We consider that the majority view of the Federal Court is that neither issue estoppel or cause of action estoppel apply in the Administrative Appeals Tribunal, therefore, we are free to consider matters in evidence dealt with in the previous hearing before the Administrative Appeals Tribunal and are not bound by any findings of fact of that Tribunal.  At the outset we can state that we are satisfied on the balance of probabilities that none of the evidence before us in any way supports a case that the nature and conditions of the applicant's employment led to any incapacity from which he is now suffering.

On the material adduced before us, it is clear that any incapacity suffered by the applicant results from the incident of 22 December 1998 when the motor cycle he was riding in the course of his duties as a postman. It appears he crossed a gutter on his motor‑cycle, he had raised himself on his foot pegs but sat down heavily on the bike as the rear wheel came over the gutter and he experienced a jarring of the spine.  The applicant's evidence before us was that prior to that incident he had not experienced back pain of the type he then experienced and that he has continued to suffer back pain from that time to the present.

In a prior incident, namely, on 14 November 1997 the applicant fell

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from his motor-cycle after striking an elderly woman who had suddenly walked into his path.  From this incident he claimed neck pain but exhibit R4, the clinical notes of Dr Vote, orthopaedic surgeon, make it clear that the applicant had pre-existing degenerative changes in his neck as observed on radiology in 1995, and on 29 March 1999 the applicant told Dr Wiley, orthopaedic surgeon "his neck was okay and he no longer experienced neck pain," see T34 in N2002/1312.

We are therefore affirmatively satisfied that that part of the applicant's claim dated 24 February 2003 relating to cervical spine should be affirmed.  As stated above, there is no evidence that would support the acceptance of that claim in relation to the lower and upper back.  The applicant was questioned as to his experiencing back pain prior to the incident of 22 December 1998.  We accept his evidence that what he did experience as a fencing contractor was muscle ache and tiredness but not pain of the sort experienced after the motor-cycle accident.

Exhibit A3 is the transcript of the previous AAT proceedings, at page 43 of that transcript the following passage appears, question:

You say before working with Australia Post manual work generally would aggravate your back?

Answer:

It would aggravate everything, I - physically muscle work, it was all, yes, muscle stiffness and soreness, like, if you go to the gym and do a work out, after your work out in the gym you feel stiff and sore and you know, you ache a bit, that's what manual work is about.

That passage is in the same terms as the applicant's evidence to this Tribunal, in other words, his evidence on this point has been consistent..  There is objective evidence in the form of radiological investigations that the applicant had narrowing of the L4, 5 and L5 S1 disc spaces prior to 22 November 1998, see document T17.  On 22 January 1999 Dr Vote, orthopaedic surgeon in a report to the applicant's general practitioner stated:

Examination reveals a man in some discomfort, he walks slowly with a back which is quite stiff;  forward flexion is 50 per cent of normal, extension is zero and actually increases his pain.  Lateral flexion to the left and right is three‑quarters.  His x-rays show degenerative changes at the two lumbar levels and mild degenerative bulging at L5 S1.  There is no evidence in his x-rays or on clinical examination or history of neural compromise.

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On 28 January 1999 in a report to the respondent T22 in N2002/1312 Dr Wilding, orthopaedic surgeon stated inter alia:

An x-ray of the lumbo-sacral spine dated 30.12.98 revealed a slight narrowing of the L5 S1 disc space.  A CT scan of the lumbar spine was available from L3 to the sacrum dated 4.1.99, this revealed slight degenerative bulging of the L5 S1 disc.  There were also degenerative changes in the affaseal joints at L4-5 and L5 S1. 

Under the heading of Opinion Dr Wilding went on to state:

Mr Coles has evidence of pre-existing degenerative change in his cervical and lumbar spine.  On the balance of probabilities, it would appear that his work activities had aggravated the underlying degenerative conditions.  I would anticipate his symptoms would resolve in time.

Interestingly enough he concluded his report by stating:

As far as further treatment is concerned, a properly structured exercise programme would be beneficial.

Refer also to Dr Harvey-Sutton's comment on the advisability of this programme.  A report from a physiotherapist to the applicant's general practitioner dated 14 April 1999, see document T35 states, inter alia:

Originally Mr Coles stated he could not sit or stand for longer periods than approximately 10 to 20 minutes.  He now states that he can stand for 45 minutes and sit for 30 minutes before becoming uncomfortable. 

This would indicate that originally the applicant did have postural difficulties which can be compared to the oral evidence of Dr Harvey-Sutton today who stated that:

A major change in the applicant's symptomatology was that he was now reporting postural, namely sitting difficulties.

In a report dated 9 September 1999 Dr Cant found that the applicant's disability was due to pre-existing degenerative disease and estimated a permanent incapacity of 5 per cent.  Dr Harvey‑Sutton first saw the applicant on 4 November 1999, in her report of 6 December 1999, T51, she noted that:

The CT scan showed a slight bulging at L5 S1.

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She opined that the applicant had aggravated his back but that the aggravation would cease in 12 months, as stated, she recommended a gymnasium programme.  Dr Davis in a report to the applicant's solicitor dated 1 February 2000 stated inter alia:

On 22 December 1988 he suffered an axial compression trauma when he landed heavily on the seat of is bike whilst coming down from a gutter.  This resulted in a onset of lower back pain consistent with aggravation of pre-existing degenerative changes to the lumbo-sacral disc.  I believe his injuries are consistent with his history, as described in the body of this report and that work was a substantial contributing factor.

He estimated that the applicant had a 10 per cent permanent impairment to the lumbar spine.  Dr Wolfenden, neurologist, in his report of 2 August 2000 stated:

On examination Mr Coles appeared tense, he could bend to get his fingertips only to mid-shin level but straight leg‑raising was fairly full.  CT scans of the lumbar spine appear to me to show some posterior protrusion at L5 S1 and some general bulging at L4-5. 

He opined that it would seem likely on the basis of the story, that the incidents described at work with Australia Post have been instrumental in producing soft tissue changes in muscle and ligament in both the neck and back and there is the possibility of some disc disturbance as well, particularly as there is tingling or pins and needles in the fingers of both hand and also, radiation of back pain to the buttocks.  He also estimated a 10 per cent permanent impairment.

Dr Hodkinson in a report dated 24 August 2000 to the respondent's solicitors, see T58 stated inter alia:

At this stage I feel he has demonstrating a significant abnormal focal disability illness behaviour pattern.

We would interpose that that's a phrase which seems to have been picked up by Dr Harvey-Sutton, influenced her opinion.  He said:

I do not believe the applicant has any condition which has been caused or materially contributed to by his employment.

An opinion which seems to be out of kilter with other opinions given.  In a further report of that date, he says

I feel the applicant suffers a constitutional degenerative change

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in his cervical and lumbar spine which amounts to 5 per cent of the permanent impairment of his back compared to a most severe case.

Just what that means we do not know and it would have been helpful if the doctor had applied the Comcare tables.  In a later report he purports to do so and again, comes in at 5 per cent whole person on those tables.  We do not know how much that latter report has been influenced by the former.  Dr Maxwell has given some four reports in this matter, his evidence can be summed up by stating that he does not regard the applicant as suffering from any incapacity resulting from the 1998 incident and that any aggravation has now ceased.

In his report of 2 May 2002 T65 he says under the heading, Diagnosis and Opinion that:

The applicant did not appear to sustain any significant injury in either work-related incidents and any aggravation of his lumbar and cervical spine due to the accident of 22.12.98 has now ceased.

That opinion can be contrasted with Dr Maxwell's later opinion of 28 October 2003, exhibit R2 where he said:

Based on my examination of 7.3.02 I do not consider Mr Coles as suffering from any pathological condition.  The changes on his x-ray are typical of the changes seen in the normal population. 

In evidence Dr Maxwell stated that:

As the incident of 22 November 1998 was relatively minor and unlikely to cause any pathological condition to the spine, any symptoms were irrelevant.

Cross-examined he stated:

I think we have symptoms and not much else.

He repeated his view that symptoms are not the most important factor.  We find this evidence difficult to understand.  On the applicant's evidence which evidence was corroborated by his wife, prior to 22 November 1998 he was relatively pain-free in this lower back.  Since then he has been in constant pain from his lower back.  The incident on 22 November 1998 may not have caused the pathology but if a previously Asymptomatic condition is made symptomatic, then that constitutes a compensable injury.

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The question of pain per se was dealt with by this Tribunal in a matter of  Gray and Commonwealth Banking Corporation and Another, Tribunal decision no. 5168 (21 June 1989), unreported on this point.  The Tribunal presided over by Purvis J, as he then was said:

“The failure to observe pathology or the perception of different

pathology is also irrelevant in determining in incapacity. In Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179-180 Full Bench of the Federal Court presided over by Davies J referred to a submission in Commonwealth of Australia v Beattie (1981) 53 FLR 191 had been wrongly decided and that the disease of which the old Act spoke was constituted by its underlying pathological condition and not by the symptoms thereof. The court referred to this as ‘a brave submission.’ It went on to say:

‘No doubt for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. For some legal purposes, for example, section 104(2) of the Act the distinction is also pertinent, see Johnson v The Commonwealth (1982) 150 CLR 331 at pages 341-3. But that is not to say that the symptoms of the disease are not part of the disease, it is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease, it is equally the most common factor leading to compensable incapacity.’”

We would also refer to the currently unreported decision of the Supreme Court of South Australia, Bollen J in Glavinas v Holden Motor Co Ltd (unreported Supreme Court of South Australia no.61/90; 25 November 1991), where his Honour held that:

“The mind temperament and character of a man or woman does not move and have its being only in areas capable of strict characterisation as physical or psychiatric.  If there be something about a victim of a tort which makes him or her feel pain and thereby be incapacitated, he or she is entitled to adequate damages in compensation for the effects of that tort, even though the symptoms cannot be defined by any traditional labels.”

The respondent also called Dr Harvey-Sutton, we found her evidence

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both confused and contradictory and have found great difficulty in ascertaining just what her opinion was.  In the end it would appear to be that her opinion was that the applicant's pain arose because he was focusing on pain and that it did not arise from any aggravation of his underlying condition. 

Professor Sambrook in evidence said that a person can often get muscular pain from doing heavy physical activity.  In his opinion, the bulging of the disk was related to the motorbike incident and the CT scan of the applicant's lumbar spine shows more than what would be seen from normal age degeneration.  In his report, of 18 December 2002, which is found as document T7 in matter N2003/1392, after reviewing the various radiology reports, Professor Sambrook continued:

The changes in the lumbar spine similarly preceded the onset of lower back pain in December 1998, however they have been largely asymptomatic prior to the two episodes described and most of the consultant doctors agree there has been an aggravation of these injuries by his employment.  The only argument is to whether the aggravation was permanent or temporary.  It is difficult to be dogmatic about this, but the pre-existing lumbar spine x-ray changes in February 1998 indicated there was only minor narrowing of the L5 S1 disk.  Whereas by the time of the CT scan twelve months later, there was definite bulging, suggesting that the history of acute onset of back pain was closely linked in time and precipitated by the jarring activity Mr Coles described on this motorbike.  In these circumstances I think it reasonable to attribute the lumbar spine condition to his employment at Australia Post. 

We find the opinion of Professor Sambrook supported as it is by Doctors Wolfenden, Berry and Davis and indeed to an extent, in her original report by Dr Harvey-Sutton to be the more persuasive, given that we accept the evidence of the applicant and his wife as to the lack of pre-existing pain in the lower back.  There is also a claim for permanent impairment.  The loss of range of movement has been assessed by various medical practitioners, some have found no restrictions and others minor, for example, 5 per cent. 

We consider that the more up to date reports are the more accurate in this regard and note that Professor Sambrook found a 10 per cent impairment on the Comcare tables.  Dr Maxwell found no impairment, but given the tenor of his reports, that is to be expected.  In the year 2000, Dr Davis found a 10 per cent impairment.  Dr Wolfenden, 10 per cent.  Compare Dr Hodkinson at 5 per cent and the much later report in June 2003 of Dr Wallace who found 20 per cent.  Having regard to

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what we've heard, we've considered that the better view is that there is a 10 per cent impairment as found by Professor Sambrook. 

The decision therefore will be, first of all that the reviewable decision of 26 August 2003 is affirmed.  However, the reviewable decision of 11 July 2002 is set aside and this matter remitted to the respondent with the direction that the applicant continues to suffer ongoing incapacity in his lower back and has a permanent impairment as a result thereof which amounts to 10 per cent on the  Comcare tables. 

RECORDED   :   NOT TRANSCRIBED

The applicant is entitled to his costs in matter N2002/1312.

_

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