Coles and Australian Postal Corporation - [2001] AATA 997

DECISION AND REASONS FOR DECISION [2001] AATA 997

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N99/1074

GENERAL APPEALS DIVISION          )
           Re      Ronald Coles
  Applicant
           And    Australian Postal Corporation
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date6 December 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes its own decision that the Respondent is liable to pay compensation to the Applicant in respect of aggravation of pre-existing degenerative changes in his lumbar spine resulting from an injury that occurred on 22 December 1998. The Applicant is entitled to costs in accordance with the Tribunal's General Practice Direction.
  ..............................................
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – continuous back pain - ongoing problems from pre existing lumbar degenerative changes – aggravated by work – cervical spine problems - applicant seeking reinstatement of general compensation and employer's liability for incapacity payments – respondent liable to pay compensation for medication and exercise course – loss of wages to be assessed and paid

Safety Rehabilitation and Compensation Act 1988 - ss 4(1) "ailment", "disease", "injury", 14(1), 16(1), 19(2).

REASONS FOR DECISION

6 December 2001 M J Sassella, Senior Member

History of the application/chronology of claims and workplace incidents

On 14 November 1997 Mr Ronald Frederick Coles ("the Applicant"), a postal delivery officer with the Australian Postal Corporation ("the Respondent"), lodged with the Respondent an incident report in respect of an accident on that date where he knocked over an elderly woman on the footpath outside her home. The accident caused her "some fairly serious injuries" according to the Applicant's manager at the Rockdale Delivery Centre (T11). In the resulting supervisor's action report of 18 November 1997 it was recommended that the Applicant attend refresher training in concentrating on hazard avoidance. The Applicant was also counselled on showing every care whilst on duty and not reading mail "on the run".
On 1 June 1998 the Applicant lodged a claim for rehabilitation and compensation in respect of "post traumatic stress disorder and acute anxiety reaction" caused by the incident of 14 November 1997 (T10). The Applicant stated on his claim that he had been suffering severe stress over the last six months following the accident and that his efforts in obtaining information or support from Australia Post had been futile. He had also been summoned to appear in Sutherland Court on 23 June 1998 to defend a charge of negligently driving a vehicle (T11).

On 9 June 1998 the Respondent accepted liability for the period 22 May 1998 to 5 June 1998 for the Applicant's post traumatic stress disorder and acute anxiety reaction (T16, p47).
On 28 July 1998 the Applicant lodged an incident report with the Respondent in respect of a dog attack that occurred while he was delivering mail (T12). He was bitten on the lower part of the right leg and on his right hand. His manager, Mr Skein, completed a witness statement in relation to the injuries (T14).
On 29 July 1998 the Applicant lodged a claim for compensation in respect of the dog attack of 28 July (T13).
On 28 August 1998 the Respondent accepted liability for the medical expenses incurred by the Applicant when he was attacked by a dog (T16, p53).
On 29 December 1998 the Applicant lodged an incident report in respect of continuous upper and lower back pain that he sustained in the course of his duties (T3). He made the following statement on the incident report:
"In the course of my duties, both internal and external, I started experiencing headache and back pain. This prompted me to approach a chiropractor. He advised me to get x-rays, which showed problems in my lower & upper back. I have been receiving treatment for this problem since Feb 98. Due to extended hours required to work, in the lead-up to Christmas, this problem has worsened to the extent that now, I am unable to stand or sit without being in continuous pain"

On 6 January 1999 the Applicant lodged a claim for rehabilitation and compensation with the Respondent in respect of the injury claimed for on 29 December 1998 (T4). He stated that his condition was an injury to the upper and lower back.
On 3 February 1999 the Respondent decided that rehabilitation was inappropriate for the Applicant "because the employee is medically unstable/condition too severe" (T20).
On 15 February 1999 the Respondent accepted liability under s 14 of the Safety, Compensation and Rehabilitation Act 1988 ("the SRC Act") in respect of "an aggravation of pre-existing degenerative changes in cervical and lumbar spine sustained on 22.12.98." Compensation payments were made to the Applicant under s 19 of the SRC Act for the period 29 December 1998 to 16 February 1999 (T24).
In a further determination of 15 February 1999 the Respondent refused liability to pay compensation for chiropractic treatment (T25). The Respondent relied on the report of Dr Vote of 22 January 1999 (T21) where he recommended that the Applicant cease chiropractic manipulative treatment. The Respondent further relied on the report of Dr Wilding of 28 January 1999 (T22) where a properly structured exercise program was recommended.
On 18 February 1999 the Applicant wrote to the Respondent requesting a reconsideration of the refusal to pay for his chiropractic treatment (T27). He asked for two to three weeks of further treatment and included the reports of Dr Nigro of 16 February 1999 (T26) and chiropractor Mr Petinos of 12 February 1999 (T23) in support of his claim.
On 24 February 1999 the Respondent accepted liability in respect of an "aggravation of pre-existing degenerative changes in cervical and lumbar spine sustained on 22/12/98". This liability was for the period 17 February 1999 to 2 March 1999 (T16, p48).
Also on 24 February 1999 a workplace assessment was completed in respect of a graduated return to work for the Applicant (T28). It was recommended that over nine weeks the Applicant would complete a rehabilitative return to work, eventually returning to normal duties at the end of the nine week period.
A further workplace assessment on 24 February 1999 noted the claimed injuries caused by the jarring of the motorcycle while the Applicant was completing his duties (T28). It also noted that the Applicant had not worked since 29 December 1998.
On 9 March 1999 the Respondent accepted liability in respect of an "aggravation of pre-existing degenerative changes in cervical and lumbar spine sustained on 22/12/98". This liability was for 3 March 1999 only (T16, p49).
On 12 March 1999 the Respondent wrote to the Applicant regarding his request for a reconsideration of the decision not to grant payments for chiropractic treatments (T31). Noting the reports of Drs Vote, Nigro and Wilding, the Respondent allowed a further six chiropractic treatments.
On 26 March 1999 the Respondent again accepted liability in respect of an "aggravation of pre-existing degenerative changes in cervical and lumbar spine sustained on 22/12/98". This liability was for the period 11 March 1999 to 17 March 1999 (T16, p50).
On 15 April 1999 the Respondent accepted liability in respect of an "aggravation of pre-existing degenerative changes in cervical and lumbar spine sustained on 22/12/98". This liability was for the period 1 April 1999 to 7 April 1999 (T16, p51).
On 21 April 1999 the Respondent again accepted liability for this condition for the period 8 April 1999 to 14 April 1999 (T16, p52).
In a determination, again of 21 April 1999, the Respondent wrote to the Applicant (T36) notifying him that, based on the report of Dr Wilding of 29 March 1999 (T34), liability had ceased for the "aggravation of pre-existing degenerative changes in cervical and lumbar spine as a result of an injury on 22.12.98."
On 6 May 1999 the Applicant wrote to the Respondent requesting a reconsideration of the 21 April 1999 determination (T37).
The reviewable decision
On 17 May 1999 the Respondent affirmed the delegate's decision of 21 April 1999 (T38). The Respondent noted that Dr Wilding, in his report of 29 March 1999 (T34), had stated that the ongoing problems that the Applicant experienced were due to underlying degenerative changes. The Respondent was not satisfied that the injury was any longer related to the Applicant's employment.
On 22 June 1999 and 5 July 1999 the Applicant was issued with medical certificates in respect of the diagnosis "mechanical back pain" (T15, pp 44-45). Recommended treatment included a bone scan and a gym program of exercise. The Applicant did not take time off work for either the condition or its treatment at these times.
On 15 July 1999 the Applicant lodged with the Tribunal an application for review of the decision of 17 May 1999 (T1).
Background
The Applicant was born on 6 September 1952. He was employed by the Roads and Traffic Authority as a clerk form 1970 until 1992 when he was made redundant (T6). From 1992 to 1996 he was self-employed as a fencing contractor with the Respondent, before taking up a position as a postal delivery officer.
He completed school to year 10, gaining his school certificate (T6).
The Applicant is married with two children.
Medical evidence
On 29 July 1996 the Applicant was given a medical certificate by Dr Nigro, general practitioner, certifying him unfit for work due to "right lumbar strain" (T43, p105).
On 5 February 1998 the Applicant was examined by Dr Berley, radiologist (T9). The x-ray report noted narrowing of the C6/C7 disc space, anterior osteophytes in the lower cervical region and slight scoliosis convex to the right in relation to the cervical spine. In relation to the thoracic spine he found slight dorsal scoliosis convex to the right and some lateral osteophytes. There was a narrowing of the L5/S1 disc space in the lumbo-sacral spine, as well as small anterior lateral osteophytes in the lumbar region.
On 22 May 1998 Dr Nigro certified the Applicant unfit for work due to "post traumatic stress disorder and acute anxiety reaction" (T43, p113).
The Applicant was seen by Dr Berley on 3 September 1998 (T17). His findings were very similar to those of 5 February 1998.
On 29 December 1998 the Applicant was examined by his treating doctor, Dr Nigro (T15). He diagnosed disc protrusions at C4/5 and C5/6 and lower back pain. He found the Applicant unfit for work for the period 29 December 1998 to 5 January 1999.
Dr Berley examined the Applicant again on 30 December 1998 (T15, p34). Once again his findings were very similar to those of 5 February 1998.
On 4 January 1999 Dr Nigro (T19, p35) confirmed his diagnosis of 29 December 1998 (T15). He stated that the conditions were consistent with the Applicant's employment and stated that he was unfit for work from 5 January 1999 to 19 January 1999.
Dr Roberts from the Sydney Imaging Group reported on the Applicant, also on 4 January 1999 (T15, p36). CT scans were taken of the lumbar spine, but apart from degenerative changes at L4-5 and L5-S1, no significant abnormality was found.
On 18 January 1999 Dr Nigro confirmed his diagnosis and found the Applicant unfit for work from 19 January 1999 to 2 February 1999 (T15, p37). He further found him unfit for work for the periods:

2 February 1999 to 16 February 1999
16 February 1999 to 2 March 1999
3 March 1999 to 3 April 1999

Dr Nigro found the Applicant fit for selected duties for four hours a day for the period 24 March 1999 to 14 April 1999. These certificates are at T15, pp38-43.
On 22 January 1999 Dr Vote, orthopaedic surgeon, reported on the Applicant (T21). He noted that the Applicant was in a great deal of discomfort, with "flattening of the lordotic nerve, a lipoma present over L5 and forward flexion 50% of normal. Extension was zero and lateral flexion to right and left was 75%." He recommended anti-inflammatory drugs and that his chiropractic treatment should cease. He stated that the Applicant was unfit for work at that time.
Dr Wilding, orthopaedic surgeon, reported on the Applicant's condition on 28 January 1999 (T22). He examined the Applicant's cervical spine and found a normal range of movement. He further found that thoraco-lumbar extensions were only minimally decreased. Dr Wilding found evidence of a pre-existing degenerative change in the cervical and lumbar spine. Further "it would appear that the nature and conditions of his employment prior to Christmas aggravated the degenerative changes in his neck and lower back." He stated that the symptoms would settle over time and that the work activities themselves were not the cause of the degenerative condition nor did they accelerate the condition. Dr Wilding found the Applicant to be partially incapacitated for work but considered him fit to return to sorting mail as long as his posture could be alternated as required. He found him unfit for delivering mail either by foot or by motorbike. Dr Wilding recommended that it would be appropriate for the Applicant to commence working between three and four hours a day for five days a week with a properly structured exercise program.
On 16 February 1999 Dr Nigro wrote to the Respondent requesting that the Applicant's chiropractic treatments be reinstated because they had "markedly improved his condition" (T26).
On 29 March 1999 Dr Wilding again reported on the Applicant at the request of the Respondent (T34). He stated that the aggravation of the degenerative changes in the Applicant's neck had ceased. There were now no symptoms associated with the neck. He saw no benefit in either chiropractic or ongoing physiotherapy treatment. Dr Wilding considered the Applicant fit for work which didn't require stooping or bending and he restated that he was fit for sorting mail as long as he could alter his posture as required. "I would anticipate that he will ultimately be able to return to working normal hours."
On 14 April 1999 Mr Phillip Richardson, physiotherapist, reported that the Applicant, despite subjective and objective improvements, had shortened his working hours from six to four hours a week (T35). He also noted improved muscle strength. It was his opinion that the Applicant would be able to return to his duty as a delivery postman if he continued with a home program of exercise.
On 7 June 1999 Dr Nigro diagnosed the Applicant as having C4/5, C5/6 and L5, S1 disc protrusions (T39). He found that this was consistent with the Applicant's employment. He found him fit for full duties from 8 June 1999 "with the view of finding an outdoor paved only run."
On 22 June 1999 Dr Jamieson, a sports physician, reported on the Applicant (T40). The Applicant was still complaining of an ache in the lower back. He found that he had residual weakness in the lower back contributing to microtrauma. He recommended a bone scan and then either spinal injections or direct referral to a fit for work program.
On 5 July 1999 Dr Jamieson reported that a nuclear scan was negative for active skeletal or arthritic pathology and that there was no facet joint inflammation (T41). He recommended an appropriate exercise program.
On 22 June 1999 Dr Jamieson reported that the Applicant was suffering from mechanical back pain after landing heavily on his motorbike seat. He recommended a bone scan (T15, p44). He repeated this diagnosis on 5 July 1999 but recommended an extensive gym program for "work hardening" (T15, p45).
On 1 November 1999 Dr Berry, specialist general surgeon, reported on the Applicant (Ex A2). Dr Berry found that the initial onset of pain in the neck and upper thoracic spine came on after the accident with the pedestrian while he was delivering mail. He further stated that the Applicant was unfit for activities involving heavy lifting or bending. He found that the Applicant had a 5% whole person impairment because of his minor restrictions of movement.
On 9 November 1999 Dr Barry Cant, rheumatologist, examined the Applicant at the request of the Respondent's representative (Ex R1). Dr Cant found no evidence of any acute injury relating to the accident of November 1997. He noted that the Applicant was under considerable stress because of legal action relating to the accident, and that the Applicant's headaches and muscle pain could easily have symptomatic of this stress. Dr Cant further noted the pre-existing degenerative pain which also could have contributed to the pain and headaches. He stated that it was likely that the jarring incident of 1998 aggravated this degenerative disease. However he made the following assessment:
"It is my opinion that the symptoms Mr Coles now has are entirely due to pre-existing degenerative disease of a constitutional type involving his cervical spine, his thoracic spine and his lumbar spine. Any aggravation of this disorder caused either by psychological stress resulting from the accident in 1997 or the physical stress resulting from the accident on 22 December 1998 has ceased."

Specifically Dr Cant found that:

The Applicant suffers from a permanent impairment of the function of his cervical and thoracolumbar spine.
The impairment is due to a constitutional degenerative disease which may have been temporarily aggravated by his employment.
Using Table 9.6, the Applicant has a whole person impairment of less than 5% for both the cervical and thoracolumbar spine. Neither of these impairments results from a compensable condition.
No part of either impairment was permanent prior to 1 December 1988.
All of the Applicant's permanent impairments are a result of non-employment factors.

On 6 December 1999 Dr Harvey-Sutton, consultant occupational physician, provided a report on the Applicant after a consultation on 4 November 1999 (Ex R2). She found that the Applicant was fit for the full duties of a postal delivery officer and that the aggravation of the injury would cease within 12 months. She further found that the Applicant was entitled to a three to six month formal program and then a self-managed exercise program to alleviate his symptoms. She offered a "good" prognosis, although she predicted remissions consistent with the underlying constitutional condition. Dr Harvey-Sutton (Ex R3) produced a further report on this date in response to specific questions for the Applicant. She found the following:

That the Applicant's impairment was temporary.
That the Applicant had a normal range of movement of the head and neck and thoraco-lumbar spine.
That if the Applicant has a permanent impairment from his back condition, it is as a result of non-employment factors.

On 1 February 2000 Dr Davis, occupational medicine specialist, provided a medical report on the Applicant (Ex A3). Like Dr Berry, he reported that the development of thoracic and cervical pain started after this accident. Dr Berry found that the pain did in fact commence after the motorcycle accident of November 1997 and that, on 22 December 1998, the Applicant suffered an axial compression trauma when he landed heavily whilst coming down from a gutter.
"This resulted in an onset of lower back pain consistent with aggravation of pre-existing degenerative changes to the lumbosacral disc where I believe there has been further internal disc derangement…There has also of course been aggravation and acceleration of degenerative changes within the lower facet articulations."

Dr Davis considered that the injuries were consistent with the employment history of the Applicant. He further considered that chiropractic treatment and remedial massage was appropriate and beneficial. Dr Davis found a 10% whole person impairment in relation to the neck and the same level of impairment for the thoraco lumbar spine. This equated to a finding of 19% total impairment.
On 2 August 2000 Dr Wolfenden, consultant neurologist, provided a report on the Applicant (Ex A1). He found it likely that the workplace incidents caused soft tissue changes in muscle and ligament in both the neck and the back, with the possibility of disc disturbance. He found that the Applicant was not suited to postal delivery work and that mail sorting would be difficult for him. He found a 10% whole person impairment in regard to the cervical spine and the same for the thoraco-lumbar spine.

On 24 August 2000 Dr Hodgkinson, orthopaedic surgeon, reported on the Applicant (Ex R4, R5). He noted inconsistencies in the Applicant's behaviour during the consultation in regard to lifting of the arms above shoulder level and his neck movements. He made the following findings:

The Applicant's condition was a transient aggravation of constitutional changes which may have lasted, at most, three months after both accidents. His condition may have been aggravated by protracted chiropractic treatment.
The Applicant has no condition which has been caused or materially contributed to by his employment.
The Applicant does not suffer from any compensable condition.
The Applicant has abnormal focal disability illness behaviour.
The Applicant is fit for employment and his pre-injury employment.
The Applicant has no ongoing serious medical condition in his cervical, dorsal or lumbar spine.
The Applicant is not entitled to any ongoing medical treatment. Chiropractic treatment would not be of any benefit.
Dr Hodgkinson found a 5% permanent impairment which has not arisen from the Applicant's employment.

Relevant legislation

The relevant legislation is the SRC Act ss 4(1) "ailment", "disease", "injury", 14(1), 16(1), 19(2).
Safety, Rehabilitation and Compensation Act 1988
…
SECT 4
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect
or morbid condition (whether of sudden onset or gradual
development);
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a
material degree by the employee's employment by the Commonwealth or
a licensed corporation;
…
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee,
being a physical or mental injury arising out of, or in the course
of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a
disease) suffered by an employee (whether or not that injury arose
out of, or in the course of, the employee's employment), being an
aggravation that arose out of, or in the course of, that
employment;
but does not include any such disease, injury or aggravation
suffered by an employee as a result of reasonable disciplinary
action taken against the employee or failure by the employee to
obtain a promotion, transfer or benefit in connection with his or
her employment;
…
Division 1 - Injuries, property loss or damage, medical expenses
SECT 14
Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay
compensation in accordance with this Act in respect of an injury
suffered by an employee if the injury results in death, incapacity
for work, or impairment.
…

Hearing and appearances

The Tribunal convened a hearing in Sydney in this matter on 24 October 2000. Mr L Grey of counsel represented Mr Coles. Mr N Polin of counsel represented the Respondent.
The Tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and associated documents, 16 May 2000.

Exhibit A1 – Report by Dr W H Wolfenden, neurologist, 2 August 2000.

Exhibit A2 – Report by Dr N Berry, surgeon, 1 November 1999.

Exhibit A3 – Report by Dr J F Davis, occupational medicine specialist, 1 February 2000.

Exhibit A4 – Applicant's undated statement of facts and contentions.

Exhibit R1 – Report by Dr B R Cant, rheumatologist, 9 November 1999.

Exhibit R2 – Eight-page report by Dr P L Harvey-Sutton, occupational physician, 6 December 1999.

Exhibit R3 – Two-page report by Dr Harvey-Sutton, 6 December 1999.

Exhibit R4 – Five-page report by Dr A Hodgkinson, orthopaedic surgeon, 24 August 2000.

Exhibit R5 – One-page report by Dr Hodgkinson, 24 August 2000.

Exhibit R6 – Report by Dr Hodgkinson, 17 October 2000.

Exhibit R7 – Dr T Nigro's clinical notes.

Exhibit R8 – Chiropractor A Petinos's clinical notes.

Exhibit R9 – Respondent's statement of facts and contentions, 10 January 2000.

What the Applicant seeks

The Applicant is seeking reinstatement of the Respondent's general compensation liability under s 14(1) of the SRC Act. According to Ex A4 the Applicant earns less as a postal transport officer than he did as a delivery officer. He therefore seeks incapacity payments under s 19 of the SRC Act. However, Mr Grey said that, at the time of the hearing, the Applicant was earning more than he had as a postal delivery officer. Additionally he considers that he should be covered under s 16 of the SRC Act for medical treatment he will require.
Findings on material questions of fact with reference to the evidence and other material in support of those findings
Mr Grey for the Applicant suggested that the reviewable decision (T38) was against the available evidence. It and the primary decision (T36) were ostensibly based on a report by Dr K Wilding (T34), an orthopaedic surgeon, which the Respondent's decision-makers were said to have misinterpreted. Dr Wilding's opinion was summarised at paragraph 41, above. The gist seems to the Tribunal to be that the Applicant's neck, by late March 1999, was asymptomatic. The aggravation of degenerative changes, that aggravation resulting from his employment in December 1998, had ceased. He still had lower back discomfort stemming from underlying degenerative changes in the lumbar spine. He saw no benefit in ongoing chiropractic treatment or regular physiotherapy except for fortnightly attendance associated with a spinal exercise program which should include swimming. He was unfit for duties involving prolonged stooping, bending or heavy lifting. He was fit for work sorting mail provided he could alternate posture as required. He seemed prepared to accept Mr Coles's own assessment that work for more than four hours a day aggravated his symptoms. He finished up by saying:
"I would anticipate that he will ultimately be able to return to working normal hours. His current work restrictions are due to the fact that he has a symptomatic lower back and in the absence of any other history his symptoms are attributable to the nature and conditions of his employment in December, 1998" (emphasis added by Tribunal).

The primary decision says:
"In his report, Dr Wilding has stated that the aggravation of the degenerative changes in your neck as a consequence of the nature and conditions of your employment in December 1998 has ceased.
"He also stated that the ongoing discomfort in your lower back is due to the underlying degenerative changes in your lumbar spine."
The delegate did not address Dr Wilding's opinion that the Applicant's lower back symptoms, which generated work restrictions, were attributable to the Applicant's employment.
The review officer concluded that "[w]hilst the medical evidence supports the fact that you have an injury to your back, I am not satisfied that the injury is any longer related to your employment with Australia Post" (T38, p96).
The Tribunal suspects that the review officer may have considered that the ongoing back injury was attributable to the Applicant's activities outside Australia Post but, if he did, he did not say so. Mr Grey's assertion seems on its face correct. Dr Wilding appears to be saying that the Applicant in March 1999 had back pain caused by an aggravation of an underlying degenerative problem which was work-related.
This is relevant to the Tribunal's inquiry which is whether the decision that employment effects had ceased was the correct or preferable decision. However, it is not necessarily decisive, especially if it is established that it is more likely that the Applicant's problems are related to work done other than for the Respondent.
Applicant's oral evidence

The Applicant mentioned that he had a lump on his back before he joined Australia Post but it had caused no problems. He discussed what had occurred in December 1998. He was working extremely long days, from 5.00 am until 7.00 pm, on Christmas mail. He was completing two deliveries a day. He was tired and fatigued. On 22 December 1998 he was on a motor cycle delivering mail when he crossed a gutter. He experienced a jarring of the spine. He had raised himself on the footpegs but came down on the seat of the bike as the rear wheels fell into the gutter. He lodged an accident report (T3) on 29 December 1998. He was away from work over Christmas. He had expected the disability to lessen or disappear over Christmas. When it did not, he decided to report the incident.
On 29 December 1998 he was in pain, having difficulty moving and walking. He saw Dr Nigro (T15, p32). He saw his chiropractor on 30 December 1998 and several days following (T15, p33; T23, p65) and x-rays were also taken (T15, p34; T18). A CT scan was done (T15, p36). He saw the chiropractor up to 11 January, only weekly after the first few days. He was referred to Dr Vote, an orthopaedic surgeon, on 21 January 1999 (T21). The Applicant retained his chiropractor despite Dr Vote's view that he should not. He took anti-inflammatory drugs as prescribed by Dr Vote.
The back improved through January and February so that he returned to work on 3 March 1999 on a graduated basis. He was assigned to fairly menial tasks in the post office. He coped well enough. He worked four hours a day for five days and six hours a day for five days, as recommended by an occupational therapist (T28). He told Dr Wilding that his hours were then reduced because he could not cope (T34).
By the time he saw Dr Wilding on 29 March 1999 he was not improving. He had trouble squatting. He had difficulty rotating his neck. He had miscellaneous other problems.
This account does not tally with Dr Wilding's examination. In T34 Dr Wilding recorded that the Applicant told him his neck was "okay" and he no longer had neck pain. He had a dull ache in the lower back but no radiated pain into the lower limbs. Various activities and postures would aggravate these symptoms. On examination there was no tenderness in the cervical spine. He had a normal range of movement. There was no neurological deficit in the upper limbs. He had tenderness in the lower lumbar spine. There was no erector spine spasm. Extension was within normal limits but elicited pain in the lower back. He could place his fingertips within three inches of the floor. Rotation and lateral flexion were within normal limits. Straight leg raising was to 80 degrees but elicited lower back discomfort. This was eased by knee flexion. There was no neurological deficit in the lower limbs.
When the Respondent decided to cease liability in April 1999 the Applicant felt that he could not return to work. At the same time he had been told he had to return to full duties.
The Applicant returned to normal duties on 27 May 1999 (after the reviewable decision had been made and communicated). He attempted mail delivery by cycle but he took too long. He required six hours to do about four hours' work. His back was aggravated. His need for medications rose. He was taking Panadeine Forte, Voltaren and Disprin. He used heat packs, cold packs, back massage and lying recumbent as tactics for relief.
His work at this time involved wheeling 16 kilogram bags of mail in a trolley to the cycle. He lifted them onto the motor bike. He worked on and got worse. He said that he was aware of Dr Nigro's report of 7 June 1999 (T39) in which he says that the Applicant is "fit for full duties (as per Australia Post guidelines for delivery) from : 08/06/99 with a view to finding an outdoor paved only run". He considers the opinion in that report to be fallacious. He had approached Dr Nigro for assistance to return him to work because he was under threat of losing the job if he did not return. The Applicant never regained his pre-injury effectiveness. He had pain and had lost flexibility.
He then sought different work in Australia Post as he was threatened by Mr R Skein with forced leave without pay if he could not improve. His deliveries were too slow. He looked in the transport division for work, found some, and commenced there in early November 1999. After an induction course he drove a Transit van. The work was manageable. There was less jarring than on a motor cycle. The vehicle's suspension was soft. The only problems occurred with collecting large bags of mail from letterboxes. He decanted the mail into smaller bags to get around this problem.
He saw several doctors in November 1999. This was when he had had some time off work and was on medications as mentioned earlier, the inference being that he should have presented better upon examinations undertaken at that time.
At the end of 1999 he began driving trucks. He was carrying ULDs, large wire cages. He would deliver empties and collect full ULDs. He had some difficulties where a vehicle was defective. There were adjustable gas shocks in the seats which he could adjust to suit his requirements. Some trucks lacked these and this could aggravate the condition.
Mr Coles said that he had paid for his medications himself since 21 April 1999, about $30 to $40 a month. He saw a chiropractor up to November 1999, paying for it himself for the second half of the year. Mr Polin later put to the Applicant that he saw the chiropractor only four times at his own expense, as indicated by Ex R8.
The Applicant reported as his current symptoms, constant pain in his neck, head and lower back. The Applicant agreed that a number of doctors had seen him as relatively unrestricted in his movements. He suggested that they had physically held and turned his head. Dr Davis (Ex A3), Dr Cant (Ex R1) and Dr Hodgkinson (Ex R4) had not done that. He aims to stay in work. He enjoys work. However, he cannot say whether he will be able to continue. He finds some duties attended by pain and extremely difficult.
He was cross-examined by Mr Polin. He told Mr Polin that in his work as a fencing contractor before joining Australia Post he had some routine muscular aches and that the work would aggravate his back at times. He said he had occasional sore backs and agreed that fencing work was more physically demanding than postal duties.
The Applicant denied any neck problems prior to 1997, however Mr Polin identified that he had a CT scan of the neck in 1995 (Ex R7 – the scan was assessed by Dr Nigro on 14 August 1995). Dr Nigro recorded that the Applicant had collapsed on his neck when performing a handstand at school.
Mr Polin asked the Applicant about his claim in respect of his collision with a pedestrian in November 1997 (T10). This claim was lodged more than six months after the collision and related only to stress and anxiety. He claimed for no physical injury but in responding to Mr Polin insisted that headaches, neck pain and pain in the inter-scapular area of the thoracic spine emerged from that incident later. He agreed that he had not lodged a claim relating these conditions to that incident. When he later saw CT scans showing neck problems he related these to his work at Australia Post.
Mr Polin suggested that the neck problems may have resulted from some house renovations he was doing. The Applicant responded that they came on only when he was working for the Respondent. In the final analysis the Applicant conceded to Mr Polin that he could not say why he connected these symptoms to the collision with the pedestrian. He agreed that the symptoms started in November 1998 when he saw Dr Nigro.
Mr Polin noted that Dr Nigro first referred in his notes (Ex R7) to the collision incident on 22 May 1998. There was nothing there about headaches, neck or back pain. This prompted the Applicant to say that he had not had back pain resulting from the November 1997 incident. He had neck and shoulder pain, and headaches. He had not sought compensation because Mr Petinos had told him the conditions were degenerative.
Mr Polin queried whether the Applicant had ever ridden his motor cycle over a gutter. He referred to T3, the relevant incident report, which makes no mention of a gutter. The Applicant said that he completed this form a week after the incident and that must be why he neglected to mention it.
Mr Polin referred to the answer to question 9 in T3, where the Applicant said his back pain was not "a recurrence of a previous injury or type of illness". The Applicant replied that the new work problem had "reaggravated" an earlier problem. He agreed when Mr Polin asked whether the real problem was heavier work. He did not agree, however, when Mr Polin suggested that it was like when he did fencing work. Fencing caused muscular aching and soreness in the back, arms and legs. This was confined to the spine. When Mr Polin put that the pain would be less extensive because the postal work was lighter, the Applicant protested that the pain in his spine was out of the ordinary. It was not just muscle soreness.
The Applicant stated that the T3 incident report was intended to relate to his general working conditions, not a specific incident. There was some discussion as to whether he had shifted his focus to suggest an incident as a cause because that would improve his chances at the Tribunal. He said that he did not intend that.
Mr Polin referred the Tribunal to the answers to questions 34 and 35 in T3 where the Applicant said that there was no equipment or vehicle involved and the incident was not notifiable to Comcare.
Mr Polin took the Applicant to his claim form (T4) relating to the jarring of his back. The Applicant referred to "constant jarring" whilst delivering mail on his motor cycle. He did not refer to one incident.
Mr Polin observed that Dr Vote was told nothing about any jarring on 21 January 1999 (T21). The cause was said to be busy work over the 1998 Christmas period. The Applicant saw Dr Wilding on 28 January 1999 (T22). There was no mention of a particular incident of jarring. At page 62 of the T documents the Applicant is quoted as saying that he did not know how his symptoms began. There is a general suggestion by the Applicant that "his run involved driving on a number of grass verges with furrows and this jarred his back". Mr Polin suggested that a particular incident of jarring caused by crossing a gutter occurs only later in medical reports, notably that of Dr Jamieson on 22 June 1999 (T40).
The Applicant denied that he had decided to concentrate on an alleged specific incident only well after the event.
The Applicant told Mr Polin that Dr Wilding misquoted him in his report of 29 March 1999 (T34). He denied telling Dr wilding that his neck was "okay" and no longer caused him pain. He denied telling Dr Wilding that no pain radiated to his lower limbs.
Mr Polin asked the Applicant about his time with Dr Berry (Ex A2). The only back problems he mentioned to Dr Berry were those he attributed to Australia Post. He did not mention anything deriving from his fencing work. The Applicant said that he was not prevented from working by the aftermath of fencing.
Mr Polin asked the Applicant about his current situation. The Applicant said that he relies on anti-inflammatory drugs. He accepted that he had taken no sick leave since August 1999. The Applicant responded that he does not take time off work for his back but he will for other conditions. Mr Polin observed that he has not taken even the five days of sick leave for which no certificate is required. The Applicant said that he was worried he would lose his job if taking time off for his back. He would, however, take time off if totally unable to attend work.
The Applicant described transport work as heavy. It can require the lifting of heavier weights than delivery work. It involves more static work. It is not a light job. He agreed that he had done the job for 18 months with no time off.
Mr Polin put to the Applicant that he has exaggerated his symptoms to doctors he has seen since the end of 1999. The Applicant denied this. He said he had told Dr Berry the truth. Mr Polin observed that the Applicant had been able to lean forward and touch the ground for Dr Berry (Ex A2, p2), something he had not done for any other doctor. The applicant said that he saw Dr Berry when he was at a good stage in the history of his condition.

Mr Polin suggested that he had also been able to do a good deal for Dr Harvey-Sutton in December 1999 (Ex R2, p6). The Applicant said he has deteriorated since then and has "tightened up". He said it could be because chiropractics had ceased.
Mr Polin referred to Dr Hodgkinson's examination (Ex R4, p3) where he presented inconsistently in relation to his neck and where a superficial touch produced an exaggerated response. The Applicant was adamant that he is growing worse. He said it could be his job or the cessation of chiropractics. Whatever the cause he is less flexible.
In re-examination the Applicant explained that his pains when doing fencing work did not occur daily. In Australia Post they did occur every day. He repeated that the quality and location of the pain differed as between when he worked at fencing and when working in Australia Post.
The Applicant was referred to T5 where a supervisor thought that the Applicant was still working at fencing as late as early 1999. The Applicant explained that he had continued fencing after joining Australia Post but for only about six months (that would be to August 1996).
Final submissions

The final submissions helpfully digested the evidence and are summarised below.
Applicant's final submissions

Mr Grey suggested that there must be doubt about the theory that the Applicant had advanced lumbar spine degeneration in early 1999 on the basis of the CT scan of 4 January 1999 (T15, p36). The disc outline was normal and the spinal canal diameters were normal.
Mr Grey suggested that following the collision with the pedestrian in November 1997 the Applicant experienced problems with his neck, even if not his back.
Mr Grey suggested that the Applicant's lower back problems appear to have arisen in the course of his heavy pre-Christmas 1998 workload. Mr Grey suggested that it does not matter whether or not there was a specific incident of travelling over a gutter and jarring his spine. If the jarring occurred repetitively in the course of his duties it is nevertheless a work-related injury. Mr Grey suggested that, if the account given on the compensation claim or injury report form seemed incomplete it was up to Australia Post to approach the Applicant for more particulars. Mr Polin later rebutted this by suggesting that there was no reason why this would appear necessary. Australia Post read the claim as a nature of working conditions claim and decided to pay compensation. Australia Post saw no issue as regards whether there had been a single incident of jarring.
Mr Grey criticised Australia Post's handling of Mr Coles's return to work in 1999. T28, an occupational therapist's workplace assessment, provided for a graduated return to work on 3 March 1999. It was based partly on Dr Wilding's opinion (T22). This was to run from 3 March 1999 for eight weeks. It provided for two weeks on four hours a day doing indoor work with alternate sitting and standing every 30 minutes; two weeks on six hours a day with similar duties but alternating posture every 45 minutes; two weeks full-time with similar duties and hourly postural alteration; two weeks on indoor duties and half delivery duties and, in week nine, a full return to normal duties. The full return would have occurred on 28 April 1999. Mr Grey put the date as 5 May 1999. However that may be, the determination to cease liability to pay compensation occurred on 21 April 1999 (T36) during the return to work program.
Mr Grey addressed Dr Nigro's certificate of 7 June 1999 (T15, p43) that the Applicant was fit for full duties with deliveries confined to paved routes. He echoed the Applicant's explanation for this which was that he asked Dr Nigro to so certify in order to protect his job. Mr Grey suggested that Dr Jamieson (T40) on 22 June 1999 recorded that the Applicant still had pain in his lower back. He favoured a bone scan and possible work hardening program. The Tribunal notes, however, that he certified on that same date (T15, p44) that the worker did not require time off work. Dr Jamieson knew that Mr Coles was on full duties.
Australia Post did not arrange the work hardening program.
Mr Grey then addressed the medical reports commissioned in association with the current proceedings. Some of these followed examinations that occurred after the Applicant had had a period of some weeks leave and while he was on medication.
Dr Berry (Ex A2) saw Mr Coles on 28 October 1999. He had pain in the neck and upper and lower back.
Dr Cant (Ex R1) seemed on 4 November 1999 to accept the Applicant had lower and upper back pain but he attributed it to degenerative disease of the cervical, thoracic and lumbar spine which had been aggravated but the aggravation had ceased. The Applicant was unfit for motor cycle work. He had a degree of permanent impairment. Mr Grey queried how Dr Cant could be confident that the condition was degenerative. He allowed a 10% permanent impairment.
Dr Harvey-Sutton (Ex R2) wrote on 6 December 1999 that the Applicant has back pain of mechanical origin which should respond to a work hardening program. He has also underlying degenerative constitutional spondylosis and will vary in his symptoms in the future. The effects of the work incidents are not permanent. She accepted that he fell of his cycle in November 1997 and mildly jolted his back in December 1998 while riding his cycle. He was fit for full duties as a postal delivery officer in November 1999. The effects of the aggravation of his degenerative disease would cease within 12 months. She supported the provision of a work hardening program for three to six months. She saw him as having a good prognosis but with remissions and exacerbations of discomfort and pain in his neck and lower back based on his constitutional condition.
Dr Davis (Ex A3) recorded pain symptoms in all relevant areas in February 2000. He favoured a return to chiropractic treatment and the work hardening program. He thought there was likely a contribution by way of nature and conditions in the Applicant riding up and down gutters while delivering mail. In his work he requires permanent restrictions in lifting, carrying, bending, twisting, static posturing, running, climbing and working in confined or awkward spaces. He found a 19% permanent impairment.
Dr Hodgkinson (Ex R4) said on 24 August 2000 that the Applicant's cervical and thoracic spine problems were constitutional and had been aggravated, but that the aggravation had ceased. Mr Grey queried how the aggravation had ceased seeing the Applicant was reporting soreness in the lower back, pain in the buttocks at times, constant occipital headaches, constant upper interscapular neck pain and pins and needles in both hands and given that his problems followed work incidents or conditions. The doctor suggested that his neck movements indicated voluntary restrictions in all passive ranges of movement. At the same time, Dr Hodgkinson said he could undress without restriction. The Applicant demonstrated relatively free movements but Mr Grey queried whether Dr Hodgkinson had forced some of these movements.
Mr Grey criticised in general medical opinions that say that an employee has a constitutional condition which is aggravated by work but that the aggravation has ceased despite the continuation of symptoms.
Mr Grey made a possibly misconceived point when he said that as at 12 April 1999 the Applicant was still having problems and should have been allowed to finish the return to work program. He was not fit for the work he was required to return to. He should have had the work hardening program. He was denied that or any other rehabilitation since April 1999. In fact the Applicant did not return to normal duties until 27 May 1999. The gym program for work hardening was not recommended by Dr Jamieson until 5 July 1999 (T15, p45).
Mr Grey submitted that a decision in the Applicant's favour should give him access to medical expenses for medications under s16 of the SRC Act and possibly incapacity payments for a period of reduced income.
Respondent's final submissions

Mr Polin challenged the Applicant's explanation for Dr Nigro's certificate of 7 June 1999 (T15, p43) permitting the Applicant's return to full duties. He said that the Applicant did not need such a certificate if he was to return to full-time work. The Respondent had said two months earlier that it would pay no more compensation and he should return to work.
Mr Polin queried whether the Applicant takes as much medication as he claims. He said in evidence that he takes six to eight Panadeine Forte tablets a day. He told Dr Harvey-Sutton (Ex R2, p3) that a box of Panadeine Forte lasts him three months and a box of 50 Voltaren lasts four to six months. He told Dr Harvey-Sutton he takes two or three Disprin on most days and Panadeine Forte a couple of times a week. Mr Polin noted that there appeared no reference in clinical notes to prescriptions for Panadeine Forte except before 1998. He submitted that eight Panadeine Forte a day over years would be extreme and a doctor would want to investigate such a situation.
Mr Polin saw this as an example of the Applicant's tendency to exaggerate. He referred also to the evidence that the Applicant had paid to see the chiropractor far less often than he had first asserted.
Mr Polin noted that the claim before the Tribunal relates to an injury on 22 December 1998. There was no mention of any injury to the Applicant's neck on that occasion. The Applicant has had a problem with his neck for a long time and, as his chiropractor said, it resulted from degeneration. Mr Polin suggested that the November 1997 collision might have affected Mr Coles'' neck, but that was not his claim in T10, which related to stress and anxiety only.
Later Mr Grey pointed out that the Respondent's determination (T24, 15 February 1999) recited that the Applicant had claimed in respect of lower and upper back injury but that liability was found in respect of "an aggravation of pre-existing degenerative changes in cervical and lumbar spine sustained on 22.12.98". This was "[o]n the basis of evidence available". The reviewable decision (T38) referred to the neck as, the Tribunal notes, did the primary decision to these effects (T36). Mr Grey asserted that the jarring on the cycle made the Applicant's neck worse.
Mr Polin queried whether the Applicant had hurt his back in November 1997. The Applicant said that he had but there is no mention of it in the general practitioner's notes (Ex R7). The same applies to the neck, although there is reference to the Applicant seeing a chiropractor.
Mr Polin suggested as the overall picture that the Applicant has mild underlying degeneration in his spine. If he does heavy manual work over a period he will experience symptoms from time to time. This has occurred repeatedly. It happened when he did fence work. It happened again at Australia Post. In 1998, owing to a period of heavy work in Australia Post, he experienced some back discomfort as a result of the effect of that work on the underlying condition. He was paid for a period of incapacity resulting from that.
Mr Polin suggested that the Applicant is trying to argue that specific injury caused specific damage to his spine. There is nothing in the incident reports to back that up.
Mr Polin attributed the cervical problems to the Applicant's accident when doing a handstand at age 14. He may have had continued problems since then. In 1995 there was a flare up (Ex R7) and he had a CT scan. There was associated referred pain in the hands. The Applicant insisted before the Tribunal that he had hand pain only at that time, no neck pain. There was a clear innuendo as regards the Applicant's credibility.
Mr Polin reminded the Tribunal that since late April 1999 the Applicant has taken very little sick leave. He took an hour off on 28 April 1999, a day off later for migraine and another for a stomach upset. Since the end of April 1999 he has been able to work without taking time off.
Mr Polin identified that the medical reports to the end of 1999 identified that the Applicant had underlying disease but could work. In 2000 the doctors tend to change. As the matter came closer to its hearing date the Applicant's range of movement became grossly restricted and there was no explanation for it. He reports constant constant neck pain. He cannot bend below his knees.
Mr Polin agreed with Mr Grey that the determination of 21 April 1999 (T36) was not supported by Dr Wilding's report. This may mean that the Applicant should be allowed some medical expenses and incapacity payments for a time beyond that date.
Tribunal's consideration

The Tribunal finds that the Applicant suffered an injury as defined in s 4(1) of the SRC Act on or about 22 December 1998, the date cited in the compensation claim (T4).
The Tribunal notes that the Applicant in his contemporaneous documents described the injury as "continuous back pain" (T3), "lower + upper back" (T3, T4), "headache + back pain" (T3) and "back injury" (T4). There was no reference to the neck unless this can be inferred by the reference to headaches and/or upper back.
The Tribunal notes that the Applicant described the cause as follows:
"In the course of my duties, both internal + external, I started experiencing headache + back pain. … Due to extended hours required to work, in the lead-up to Christmas, this problem has worsened to the extent that now, I am unable to stand or sit without being in continuous pain" (T3);
"1/ Delivering mail. 2/3 Whilst riding motor bike on delivery run. 4/ consistent jarring" (T4)".

The Tribunal notes that the delegate appears to have accepted this as a claim involving the cervical spine as a result of Dr Nigro's medical certificates which referred to C4,5 and C5,6 disc protrusion and lower back pain" in December 1998 through to June 1999 (T15) and attributed the conditions to employment.
It is interesting that on 21 January 1999 Dr Vote (T21) noted that the Applicant had seen him in 1995 complaining of cervico thoracic discomfort and referred pain in both hands. He noted that the Applicant still had these problems to an intermittent degree. He saw Dr Vote in January 1999 about his lumbar spine only. However, on 28 January 1999 the Applicant reported to Dr Wilding that on 22 December 1998 his neck and lower back had begun aching. By late January the neck pains were intermittent.
Given Dr Nigro's certificates and Dr Wilding's report it is perhaps unsurprising that the delegate included coverage for aggravation of pre-existing degenerative changes to the cervical spine in his or her decision. In the Tribunal's view this was a generous inclusion. The Applicant's self-reporting to Australia Post makes no mention of neck or shoulder pain or of referred pain from the neck. The Tribunal also considers that Dr Vote, the Applicant's treating orthopaedic surgeon, was probably correct in seeing the cervical spine as causing only intermittent problems, and these a carry over from the 1995 symptoms. Even Dr Wilding records the neck pains as only intermittent by the time the Applicant saw him.
Mr Grey suggested that the Applicant experienced neck symptoms after the collision with a pedestrian in 1997. However, the Tribunal can find no evidence of this in the Applicant's documents relating to that event. There is some support for shoulder symptoms in early 1998 (Dr Cant, Ex R1) but Dr Cant says that these could be caused by the stress condition for which he claimed in any event (T10) and which is not before the Tribunal in these proceedings
The Tribunal finds on a bare balance of probabilities that the Applicant experienced an aggravation of a degenerative neck condition in December 1998. The Tribunal finds that these symptoms were of short duration and that the symptoms experienced by the end of January 1999 had reverted to the situation pertaining between 1995 and late 1998. This finding is based on the Vote and Wilding reports. The Tribunal finds that the Applicant experienced an aggravation of an underlying degenerative lumbar spine condition on 22 December 1998. The Tribunal finds that riding his motor cycle up and down gutters contributed to this condition. The Tribunal, for reasons advanced by Mr Polin in his final submissions, finds that the Applicant did not suffer a particular incident of jarring from this activity. The jarring occurred over time as a part of the work's nature and conditions.
The Tribunal finds that the determination dated 21 April 1999 (T36) to cease payments of compensation on and from that date was inconsistent with Dr Wilding's conclusion on 29 March 1999 (T34) that the Applicant was on appropriate work restrictions because of a symptomatic lower back attributable to the nature and conditions of his work in December 1998.
The Tribunal finds that the reviewable decision (T38) suffers from the same fault.
The Tribunal finds, therefore, that the Applicant may well have qualified on and after 21 April 1999 for compensation for incapacity payments under s19 of the SRC Act and for medical expenses for medications or the work hardening gym course under s16 of the SRC Act. This involves a finding by the Tribunal that the Respondent was liable under s14(1) of the SRC Act to pay compensation in accordance with the SRC Act in respect of the Applicant's lumbar spine injury if it results in his death, incapacity for work or impairment.
There is some suggestion that the Applicant received lower wages than he would have done for a period after 21 April 1999. The Tribunal will remit the matter to the Respondent for this to be examined and, if true, for incapacity payments under s 19 of the SRC Act to be assessed and paid.
The Tribunal finds that the Applicant qualifies for compensation for payments he has made for any medications attributable to his compensable injury that fall within the requirements of s 16 of the SRC Act.
This, however, raises the issue of whether and, if so, when, the effects of the 22 December 1998 injury ceased.
Dr Vote considered that the lumbar spine would settle, if chiropractics ceased, in two or three weeks from 22 January 1999. This, to judge by Dr Wilding's second report, did not happen. In late March he said that the Applicant would ultimately be able to return to normal working hours.
Dr Nigro considered the Applicant for a return to normal duties, but with deliveries confined to paved routes, on 7 June 1999. The Tribunal finds on the balance of probabilities that this opinion was genuinely held by Dr Nigro. Dr Nigro had been careful to confine the Applicant to selected duties in his earlier reports. On 24 March 1999 (T15, p41) he had acted to reduce the Applicant's hours. On 28 April 1999 he wrote (T15, p42), "I find this employee: is fit for selected duties as per work plan but is unfit for outside delivery duties. He is following the work program as set out by Ruth Wyle and is meeting expectations of this program and should be fit for full duties on 27/05/99".
This was more than a month before the certificate of full fitness. It was completely consistent with Dr Nigro's April prognosis that he was able to certify the Applicant as fully fit, albeit with a minor restriction, in early June.
However, the Applicant may still have had residual effects that might justify coverage for medical expenses. Dr Harvey-Sutton's report (Ex R2) seems fair in this regard. She finds that the Applicant still suffers in December 1999 from an aggravation of his back pathology but that he is fully fit for the full duties of a postal delivery officer. She saw the aggravation as lifting within 12 months of December 1999. She favoured a work hardening program.
Mr Polin is correct in arguing that the Applicant's medical assessments indicate some deterioration in 2000. The Tribunal makes the following comments about these reports. Dr Wolfenden (Ex A1, 2 August 2000), a neurologist, seemed to work from an incomplete history. He understood that there had been no back or neck symptoms prior to Mr Coles's work in Australia Post. This omits the Applicant's neck symptoms in 1995 and his muscular back pain when fencing. Dr Wolfenden, indeed, seems completely reliant on the Applicant's history together with examination and investigation results which could reflect symptoms from conditions for which Australia Post is not responsible.

Dr Hodgkinson (Ex R4, 24 August 2000) subscribes to the view that work effects would have been transient in their effect on pre-existing degenerative conditions. He had doubts as to the authenticity of the Applicant's presentation.
As a result of this survey of the medical evidence the Tribunal finds on the balance of probabilities, relying primarily on the evidence of Dr Harvey-Sutton, that the Applicant was suffering from the effects of aggravation to his lumbar spine condition until at least December 2000. The Tribunal finds, also on balance, that, in the absence of any medical evidence past that date to the contrary, the aggravation has continued to the date of this decision.
The Tribunal notes that a number of the medical and paramedical experts considered that the Applicant should undergo a work strengthening program in a gymnasium. In the Tribunal's view such a course may be covered by s 16 of the SRC Act and the Respondent should seriously consider supporting the Applicant to undergo such a program. It may be the case that, by this time, such a program is unnecessary. The Applicant has been engaged in postal transport work for two years and may be sufficiently "hardened" for that work.
Conclusion

The Tribunal has found that the Respondent is liable under s 14(1) of the SRC Act to pay compensation in accordance with the SRC Act in respect of injuries suffered by the Applicant on 22 December 1998.
The Tribunal considers that, as at present advised, this may mean that the Applicant qualifies for some incapacity payments for a set period of time, some reimbursement of medical expenses and possibly support to engage in a gymnasium program as recommended by Drs Jamieson and Harvey-Sutton.

The Respondent may wish to have the Applicant medically reviewed in view of Dr Harvey-Sutton's assessment that any aggravation of the underlying lumbar condition may have ceased by December 2000 and to ascertain whether the Applicant still could benefit from a work hardening program.
Decision

The Tribunal sets aside the decision under review and substitutes its own decision that the Respondent is liable to pay compensation to the Applicant in respect of aggravation of pre-existing degenerative changes in his lumbar spine resulting from an injury that occurred on 22 December 1998. The Applicant is entitled to costs in accordance with the Tribunal's General Practice Direction.
I certify that the 153 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 & 25 October 2000
Date of Decision  6 December 2001
Counsel for the Applicant        Mr L Grey
Solicitor for the Applicant         Mr T Mannah, Carroll & O'Dea
Counsel for the Respondent    Mr N Polin
Solicitor for the Respondent    Ms Lara Bishkov, Sparke Helmore