DIANNE HOPLEY and AUSTRALIAN POSTAL CORPORATION

[2009] AATA 678

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 678

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No:  2007/2191
  )                 2007/3471
  )                  2007/4031

GENERAL ADMINISTRATIVE DIVISION		)
Re		DIANNE HOPLEY

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date8 September 2009

PlaceBrisbane (Heard in Sydney)

Decision

In Matter 2007/2191, the Tribunal sets aside the decision under review and substitutes the decision that Dianne Hopley continues to suffer the effects of a compensable injury sustained on 20 March 2006, and, accordingly, Australia Post remains liable to make payments under s 16 and s 19 of the Safety Rehabilitation and Compensation Act 1988.

In Matter 2007/3471, the Tribunal affirms the decision under review.

In Matter 2007/4031, the Tribunal sets aside the decision under review and substitutes the decision that the respondent is liable to pay compensation for incapacity on the dates specified, being 29 September to 6 October 2006, and 9 October to 23 October 2006.

The parties have 14 day’s leave to file submissions in relation to costs. In the event no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs in accordance with s 67(8) of the Act.

.....................[sgd].......................

Senior Member

CATCHWORDS

COMPENSATION – workplace injury – liability accepted  – decision to cease compensation payments – whether applicant entitled to continue to receive payments – applicant continued to suffer from injury – applicant entitled to compensation for medical treatment and  incapacity – decisions under review set aside

COMPENSATION – workplace injury – liability accepted – whether applicant recovered from injury – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 19

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506

REASONS FOR DECISION

8 September 2009  M J Carstairs, Senior Member     

1.      Dianne Hopley, a young mother of three, has worked for over ten years in clerical and postal delivery roles with Australia Post. 

2.      On 20 March 2006, Ms Hopley was delivering mail and was attempting – as it turned out, unsuccessfully – to navigate her motorcycle past a BBQ that had been left beside the footpath for a council clean-up.  One of the panniers on the motorcycle became caught on metal protruding from the BBQ.  Ms Hopley and the motorcycle tipped over the side of the path, down a slight embankment, landing in shrubbery.  She was wearing a helmet, but she was shaken and winded, and had hurt herself.

3.      It is uncontested that Ms Hopley hurt herself that day, and the injury she sustained was compensable under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).  The respondent promptly issued a determination to that effect, giving this injury the description of “muscle sprain left neck, left shoulder and lower back”[1] (“the 2006 injury”), accepting in doing so, the diagnosis provided by Dr Peter Beiers, the facility nominated doctor.  Dr Beiers examined Ms Hopley on the day of the incident and many times thereafter. 

[1]        Matter 2007/2191: Document T9.

4.      It was, in other words, a frank injury, sustained in compensable circumstances.

5. What brings the parties to the Tribunal is that Australia Post, about a year later, accepted the opinion of a specialist orthopaedic surgeon, Dr D Maxwell that Ms Hopley had recovered from the 2006 injury. Dr Maxwell regarded as “not plausible” Ms Hopley’s continued complaint of symptoms. Having accepted that opinion, Australia Post ceased paying Ms Hopley’s medical expenses (s 16 of the Act) and her incapacity payments (s 19 of the Act) for the 2006 injury.

6.      This outline somewhat oversimplifies the matters before me, as there are in fact three reviewable decisions.  But the 2006 injury was central to the consideration of all three and acceptance that she had recovered led to all three decisions being made.

ISSUES

7.      Setting out the subject matters of the three reviewable decisions, they were:

§Matter 2007/2191:   a reviewable decision[2] with respect to the 2006 injury, that Australia Post had no current liability to pay compensation under s16 and s19 of the Act;

§Matter 2007/4031:   a reviewable decision[3] denying Ms Hopley incapacity payments for work absences during September and October 2006; and

§Matter 2007/3471:   a reviewable decision[4] that Australia Post had no current liability to make payments under s16 and s19 of the Act, for a second injury sustained on 16 January 2007 (“the 2007 injury”) accepted as “facet joint sprain”.

[2]        Matter 2007/2191: Document T109.

[3]        Matter 2007/4031: Document T5.

[4]        Matter 2007/3471: Document T6.

THE 2006 INJURY

8.      Turning now to the subject matter of the 2006 injury, it is important to firstly note that the respondent readily accepted this injury as compensable.  It was an uncomplicated matter; Ms Hopley had reported the injury promptly to her employer; and she attended Australia Post’s facility nominated doctor that same day.

9.      Ms Hopley described having ongoing symptoms since the 2006 injury happened.  Her symptoms include backache if she bends or twists; she cannot sit too long but must change posture; and she cannot lift heavy weights.  Her back pain is worse on the right than on the left.  (In that regard she said that there was an incorrect reference in Dr Maxwell’s report that suggested the contrary).  She said that occasionally her leg gives way, not often, and only once had she fallen because of this.  She did say that she experienced leg pain about once or twice a week.  She mostly takes Nurofen for pain, but does not need this every day.

10.     After the 2006 injury she was placed on a graduated return to work programme.  By April 2006, she was on full hours, minus the overtime to which she was previously accustomed.  Ms Hopley said that these days she experiences fewer “bad days” than in the past but estimated, nevertheless, that she would have one a fortnight, and then she is unable to attend work.  She said that she tended to access other leave entitlements to give her back a rest, because she apprehended that the employer became less sympathetic to her continued complaints of pain, when they did not resolve as expected.  She also said in her evidence that she believed that her back was likely to be more symptomatic if she had ridden the motorcycle.  She is no longer riding.

11.     Ms Hopley said that she liked her work, and particularly enjoyed the mail run on the motorcycle.  She said that she tries to avoid doing things that might bother her back (such as vacuuming) and she believes that she has done everything that Australia Post has asked her to do.

12.      Ms Henderson, counsel for the respondent, drew attention to the fact that when Ms Hopley first reported her injury on the day it occurred, she did not refer to back pain, only shoulder pain.  However, I do not think this brings into question the truth of her symptoms of back pain, which I accept she quickly developed thereafter.  I regard it as entirely plausible that the site of Ms Hopley’s back pain was not immediately evident to her.  In any event, it was a matter of mere days before she was telling doctors about back pain.  They make no suggestion that there was anything untoward about this. 

13.     Ms Hopley addressed the later development of her back pain in her oral evidence. She suggested that mail sorting duties, which she was assigned immediately after the incident, may have triggered the back symptoms. However, it seems to me unnecessary to search for explanations, given Ms Hopley’s very early reporting to her doctor that she had both back and shoulder pain after a fall of this nature. 

14.     Dr Beiers, who first had thought that Ms Hopley could return to work full time with no restrictions, (except for the proviso that if too sore, she could stay on depot-only duties and not ride the motorcycle) revised his opinion within two days.  He then limited her work hours to four per day, with no bike work, and he provided a referral for massage therapy.  Shortly thereafter he further reduced her hours.  Plainly, there was a problem.    

15.     What impressed me also from the carefully documented history was that throughout 2006, Ms Hopley’s injuries were reviewed regularly by Dr Beiers and Dr R Muratore, specialist in sports medicine.  Hence, they have provided a number of reports.  These doctors express an increasing puzzlement when the 2006 injury did not resolve as expected.  Their early optimism for her full recovery was not matched by events.

16.      There were a number of written reports prepared by Dr Muratore during 2006 and 2007[5].  In summary, what the reports show of the course of the 2006 injury is:

§on the first visit in April 2006, Dr Muratore observed that Ms Hopley had no relevant prior history of this kind of problem. That seems still to be the state of the evidence, despite the respondent’s extensive summonsing of Ms Hopley’s medical records. At the April consultation, Ms Hopley was complaining of burning right-sided back pain, localised to the area “just distal to the costal margin”.  Ms Hopley found it bothersome if she sat for more than 30 minutes.  Ms Hopley told Dr Muratore, however, that her left shoulder pain had almost resolved, apart from it niggling in the cold or early mornings.  Dr Muratore’s clinical examination, revealed right-sided subcostal pain in full rotation and on lateral flexion to the left, as well as what Dr Muratore described as “exquisite tenderness” at the twelfth rib and the adjacent musculature (with spasm).  He said that his clinical examination was consistent Ms Hopley’s description of her problem and he had no doubts that all was caused by the motorcycle accident.  Dr Muratore said her prognosis was good.  She needed to avoid lifting more than five kilograms, and should stay off the motorcycle.  She was otherwise on the way to recovery[6].

§In May 2006, (this being a file review without examination) Dr Muratore expressed surprise that Ms Hopley had not yet been able to upgrade in her work duties.  But Dr Muratore did not think that she required time off, because her condition was improving.

§In July, Australia Post again asked Dr Muratore to comment, Ms Hopley in the meantime having been sent to a Dr Gale, orthopaedic surgeon.  Dr Gale thought Ms Hopley was suffering with a trochanteric bursitis, and organised for her to have a cortisone injection for that condition. (I would observe here that in his report Dr Gale seemed to be suggesting this as an additional diagnosis, in addition, that is, to the already identified lower back pain).  However, Dr Muratore remained unconvinced that this treatment was warranted, as he did not consider that this was the site of Ms Hopley’s problem.  In his July report, he observed that Ms Hopley would be likely to continue to need time off, as she was raising three children and any activity would tend to aggravate her symptoms.  Dr Muratore revised his opinion, now estimating that her recovery would extend a further six to eight weeks during which she should continue with exercise and acupuncture[7]. He remained firmly of the opinion that Ms Hopley’s ongoing problems with back pain were related to the 2006 accident. 

[5]        See Matter 2007/2191: Documents T20, 19 April 2006; T 30, 11 May 2006; T53, 10 July

See Matter 2007/2191: Documents T 20, 19 April 2006; T30, 11 May 2006; T53, 10 July 2006; T100, 24 January 2007; T106, 3 February 2007.

[7]        Matter 2007/2191: DocumentT53.

17.     The prevailing tenor of Dr Muratore’s reports was that he accepted, despite being puzzled by, Ms Hopley’s continued complaints of back pain.  I thought that his views in this regard were mirrored by those of Dr Beiers.

18.     These were the main treating doctors, who were regularly seeing Ms Hopley throughout 2006.  There is no need to detail the content of other reports except to say that those other doctors also appear to have regarded Ms Hopley’s complaints as genuine and having an organic basis to them.  In that category, I would place the reports of Dr P Gale, Senior Staff Specialist in Rehabilitation Medicine, and Dr R Avery, Registrar in Rehabilitation Medicine, practising at the Royal Newcastle Centre Rehabilitation Clinic.  Dr Gale, I note, expressed no surprise that Ms Hopley’s pain was variable from day to day, and that her tolerance for motorcycle riding was likewise variable, such that on one day she could carry out deliveries, and experience no pain, but on another, her tolerance was minimal.  (Dr Maxwell was unable to accept that it was possible for Ms Hopley’s pain to fluctuate in this fashion).

19.     The consistency of the acceptance by doctors that Ms Hopley suffered the symptoms she described then only made starker Dr Maxwell’s contrary views. His opinion, nevertheless, came to be influential in Australia Post’s decisions cancelling Ms Hopley’s ongoing compensation payments.  

20.     When Ms Hopley first went to Dr Maxwell, it was after the 2006 injury (by some months), but before the 2007 injury.  Dr Maxwell took a history which did not depart in any significant way from what Ms Hopley had described to others.  Ms Hopley explained to Dr Maxwell that she had developed pain in her back, radiating to her right buttock, the pain being intermittent, varying in intensity, but, she believed, generally getting worse. Dr Maxwell examined her, and took into account radiological and other imaging.  Included was a CT scan, taken in May that year, which Dr Maxwell described as being within normal limits, despite showing some end-plate degenerative changes at T6/7 and T7/8.  There was also a bone scan conducted in August 2006, for which the results were also normal.

21.     Dr Maxwell said that the scan of the lumbar spine taken in September 2008 showed only minor protrusions at L4/L5 and that these were a normal, clinically insignificant, variant.  Dr Maxwell said that when interpreting scans his practice is to take into account what the patient demonstrates by way of clinical presentation, along with what shows up in the scan, whereas the radiologist must report what they see in the scan only.  Dr Maxwell said that disc protrusion does not cause pain, unless there is pressure on a nerve.  Here there was no evidence of nerve root impingement. 

22.     As to Ms Hopley’s presentation at the interview, Dr Maxwell clearly did not regard that as normal.  He stated that Ms Hopley was demonstrating “abnormal pain behaviour”, by her constant sighing, moving about, and grimacing, in the course of the interview.  Dr Maxwell did measure restrictions in her range of movement in the lumbar spine.  He said her pain was located at L1/L2, on the right.  Dr Maxwell thought it “possible” that she sprained her back in the 2006 incident, but said that as she had been able to resume her normal duties the next day; her injury must have been minimal.   She described the variations in her pain levels from day to day, having both good days and bad days.  However, Dr Maxwell did not accept this was possible.

23.     In summary, Dr Maxwell thought Ms Hopley may well have sprained her back, but she would have recovered within about two to three weeks, and needed no further treatment or investigations.

24.     Dr Maxwell saw Ms Hopley and again reported on her case in February 2009[8].   She was then still complaining of right-sided back pain.  He said he “was not convinced that she is still suffering any effects of the 2006 injury”. 

[8]        Exhibit R5.

25.     Dr Y Ghabrial, orthopaedic and spinal surgeon took a rather different view.  His reports were completed in February 2007 and October 2008.  Dr Ghabrial considered that the 2006 injury was a major type of incident, and he clearly believed Ms Hopley’s account of it and her ongoing symptoms. 

26.     In his oral evidence, Dr Ghabrial said that Ms Hopley had not fully recovered from the 2006 injury when he examined her a year later. She was still getting spasms and had a certain degree of tenderness and loss of movement.   Dr Ghabrial observed that Ms Hopley was consistent in her presentation and in her description of her symptoms.  He had asked her to mark on a printed image of the human body where she was experiencing symptoms[9] and she marked the right lower back, as well as the front, back, and sides of the right leg.  This is essentially as she had reported her symptoms from about the middle of 2006.  Dr Ghabrial said that in his experience the fact that Ms Hopley had not immediately complained of back pain was not unusual and did not raise any concerns in his mind.

[9]        Exhibit A3.

27.     Referring to the CT scan taken in 2008, Dr Ghabrial did not consider this was a normal result.  He said that whilst a disc bulge may be normal, a protrusion is usually pathological, and can explain continued pain.  Dr Ghabrial thought it possible that Ms Hopley had a disc problem as she does complain of referred pain.   Dr Ghabrial said also that in taking a CT scan of the lumbar spine the patient is lying supine, so that the spine is not under normal loaded pressure.  That can be misleading about the real extent of the problem.  

28.     Dr Ghabrial said that even a minor disc bulge can have an effect, and when taken with clinical examination can explain continued symptoms.  In Ms Hopley’s case, he said she had tension signs in the lower leg, she was tender at L4/L5 and the scan showed protrusions.  That satisfied him that this explained her continued symptoms.

29.     As to Dr Maxwell’s diagnosis of “abnormal pain behaviour”, Dr Ghabrial said that on the three occasions on which he has seen Ms Hopley his clinical notes did not reveal any unusual presentation.  He considered she was giving an honest account of her symptoms.  Dr Ghabrial drew attention to the way Ms Hopley had answered a written questionnaire enquiring about her symptoms and restrictions.  He noted that she readily acknowledged in her answers those things that she could do without restriction or with only minor restrictions. He was satisfied that she was not exaggerating.

30.     Mr Davies, counsel for Ms Hopley, submitted that Ms Hopley’s case could be favourably decided by an application of commonsense to the facts, in the manner discussed by the High Court in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. That case entailed questions of causation and of course that more fundamental question does not arise here, the respondent having accepted liability for both the 2006 injury and the 2007 injury. But it remains true, as stated by the High Court, in particular in the judgment of Mason CJ, that commonsense can be a useful guide in difficult situations of ascribing liability. I agree with the thrust of Mr Davies’ submission that commonsense remains a useful guide where the central question is whether Ms Hopley recovered from the 2006 injury or not.

31.     As I looked at the evidence as a whole, I was particularly struck by Ms Hopley’s genuine efforts to return to work and her commitment to the return to work programme.  Her positive attitude was evident in a number of her comments to doctors.  In June 2006, she told Dr Gale that she enjoyed her work and felt that Australia Post and her boss were supportive. 

32.     It is true that one has to take a guarded approach when an injury does not recover as expected, but I see nothing suspicious in her recovery taking longer than might be expected.  In that regard, I note Dr Muratore’s comment that it needed to be borne in mind that the demands of caring for three children at home, as well as her work activities might prolong recovery.

33.     Ms Henderson urged me to conclude that Ms Hopley was hostile to, and critical of Australia Post.  That was not an impression I formed from Ms Hopley’s evidence.  What I did apprehend was that her early positive attitude lessened somewhat when her back pain continued.  That, I would perceive, is understandable.  Her continued back pain appears to have got her down, and she seems to have also thought that people at work no longer believed her continued complaints.   Ms Hopley said that sometimes it was just easier for her to access her other leave entitlements rather than claim an absence under compensation.  I would simply make the observation on this that one can readily understand the frustrations both for her as well as her employer when a seemingly simple injury does not improve.

34.     To understand how that can happen we must rely on the medical evidence, but I would observe that such cases are not so rare, but do require a close examination of all of the facts.  Of course some cases may involve malingering or feigning of symptoms.  But these cases rarely deceive medical professionals.  In Ms Hopley’s case, the medical reports reveal little doubt about her experienced symptoms – apart that is, from Dr Maxwell.

35.     Many cases will resolve into the question of whether a person is to be believed.  Here, I accept Ms Hopley’s evidence of her continued symptoms and I regard her account as an honest one.  As to how she presented to Dr Maxwell, I can only observe that he was alone in regarding her presentation as abnormal.  Different people do have different tolerances of pain.    

36.     I am not prepared to accept Dr Maxwell’s unfavourable view of Ms Hopley.  It does not stand in light of the preponderance of opinions accepting her account as honest.  Dr Maxwell, it should be noted, was not bringing into question that Ms Hopley had sustained a real injury in the motor cycle accident.  Mr Davies had cross-examined for his usage of “alleged injury” in his written reports (which could suggest he was questioning the occurrence of the injury at all).  However, Dr Maxwell said that he used that term simply to reflect that he had not seen the injury at the time; he was not in any doubt that Ms Hopley had sustained the 2006 injury.

37.     My problem with Dr Maxwell’s reports is that they provide only bald conclusions, not supported by clearly explained reasoning.  He simply did not believe Ms Hopley.  Dr Maxwell seems to have had the impression that Ms Hopley was able to return to work immediately after the 2006 injury. He refers to this when drawing his conclusion that this was not a significant injury.  Ms Hopley plainly was not able to return to work immediately, although it was first thought that she could.  The extensive records of her return-to-work programme reveal this.  

38.     I prefer the evidence of those doctors who saw Ms Hopley over the longer period after she sustained the 2006 injury, where her developing symptoms are more closely explored.  I also regard Dr Ghabrial’s analysis as more comprehensive.  His account provides a rational explanation of why Ms Hopley continues to suffer the symptoms that she does.

39. Taking into account the medical evidence, and Mr Hopley’s evidence, I am comfortably satisfied that Ms Hopley continues to suffer the effects of the 2006 injury. Accordingly I would set aside the decision under review and substitute the decision that Australia Post remains liable to make payments to Ms Hopley under s 16 and s 19 of the Act.

MATTER 2007/4031 – INCAPACITY PAYMENT IN SEPTEMBER/OCTOBER 2006

40.     It follows from the conclusions that I have reached with respect to Matter 2007/2191 that the decision in Matter 2007/4031 must be set aside.

41. This reviewable decision postdated the effective date of the decision cancelling Ms Hopley’s ongoing entitlements under ss 16 and 19 of the Act with respect to the 2006 injury. Having set aside the cancellation decision that led to incapacity and other payments ceasing for the 2006 injury, it now follows that the decision denying incapacity payments on the specified dates cannot stand. Accordingly, that decision is set aside. Ms Hopley is entitled to be paid incapacity payments on those dates.

THE 2007 INJURY

42.     It is useful to set out the circumstances of the 2007 injury, which Australia Post once again readily accepted as compensable.  Ms Hopley had returned to the depot after her mail run so that she could re-load mail.  She was positioning the motorcycle onto its centre stand, in order to stabilise it, an action which she described as involving lifting the bike up and back, while to some degree taking its weight (some 95 kilograms).  Ms Hopley said that prior to the 2006 injury she would undertake this manoeuvre without difficulty.  Ms Hopley said that the action was made more difficult this day because she was on an uneven surface with slippery gravel[10].  She said she experienced immediate sharp pain across the base of her back, and down into her legs.   

[10]        Matter 2007/2191: Document T96.

43.     When completing the incident report about the 2007 injury, Ms Hopley described it as “aggravated injury”.  It seems she pressed this view of the mechanics of her injury when she was sent by Australia Post to see Dr Muratore.  Dr Muratore did not see it as an aggravation of the 2006 injury, but as a new injury, which he diagnosed as “facet joint sprain”.  

44.     With respect to the January 2007 injury, it again was well evidenced in the documents that:

§  Ms Hopley notified Australia Post immediately the incident happened;

§  promptly claimed, and the respondent granted compensation for “injury”[11].

[11]        Matter 2007/2191: Document T107.

45.     Australia Post paid Ms Hopley incapacity payments thereafter, under the determination that she had sustained a “facet joint sprain”, payments continuing (essentially) from the date of injury until the cancellation decision, now under review. The cancellation decision, made on 29 June 2007, and affirmed a few weeks later, was based on opinion that Ms Hopley had recovered from the 2007 injury[12].   Dr Muratore first saw her with respect to the 2007 injury on 24 January 2007, providing one report then, and updating it on 3 February 2007,[13] following the receipt of MRI results.  That MRI excluded the possibility of an annular tear of the disc, but Dr Muratore remained satisfied that the 2007 injury was either “musculo-ligamentous strain of her lumbar spine” or “facet joint sprain” and his report casts no doubt on its relationship to work.  Dr Muratore thought that Ms Hopley would take six to eight weeks to recover, meaning that recovery could be expected by around April 2007.

[12]        Matter 2007/3471: Document T6.

[13]        Matter 2007/2191: Document T106.

46.     As to the 2007 injury, Dr Maxwell merely mentioned this in passing, noting that Ms Hopley:

indicated that she felt increased pain in January 2007 but I do not consider she sustained a significant injury.

Dr Maxwell did not examine Ms Hopley at the time of the 2007 injury, so he was not in the favourable position that Dr Muratore had been, having had that opportunity.  Australia Post had accepted the 2007 injury as that described by Dr Muratore.

47.     Dr Maxwell, however, was not prepared to accept Dr Muratore’s diagnosis of the 2007 injury as a facet joint sprain.  He said there was no proof of this and this injury requires the presence of certain signs and symptoms such as sudden and acute onset of pain; muscle spasm; symptoms typically being on one side of the spine, with possible referral to the buttock.   Dr Maxwell did agree with Dr Muratore that such injuries usually resolve completely in four to six weeks.

48.     In that respect, the continuation of payments for the 2007 injury until June appears generous, but they were continued largely because Ms Hopley asked for an extension of time to lodge her medical reports.   Australia Post may have also taken into account also the views of Dr R Harbury, orthopaedic surgeon, who saw Mr Hopley in April 2007 and accepted that she may have been overdoing things at work, particularly by riding the motorcycle in excess of her recommended hours.  I note that one point, Ms Hopley wrote an apology to her rehabilitation case manager for having spent five hours out on the bike instead of the three hours allowed under medical advice :

I was of unaware of this at the time this occurred as I did not have a watch nor phone with a time so I wasn't aware of how long I was actually out of doors for.  I take stretch breaks more often if my back is playing up…this could of also been a factor.  I apologise for this and will take more care[14].

[14]        Matter 2007/2191: Document T128.

49.     The other difference of opinion with respect to the 2007 injury was that between Dr Muratore and Dr Ghabrial.  Dr Muratore made plain that this was not an aggravation of the 2006 injury, but a new work-related injury.  I do note that Dr Ghabrial, like Dr Muratore, regarded the 2007 injury as compensable, but for different reasons.  

50.     Dr Ghabrial saw Ms Hopley for the first time in February 2007, and he thought that the 2006 injury was major, while the 2007 injury was a quite minor aggravation of the existing injury.  In his oral evidence, Dr Ghabrial said he had no real idea what happened in the 2007 incident and as he had not seen Ms Hopley before it he could not comment on what her condition had been like prior to it.   He said that he referred to the 2007 injury as “trivial” in his report because that was the sense that he got of Ms Hopley’s symptoms.  He said that when he saw her in February 2007 she was getting better.

51.     On the view I have taken of this matter, the contest of opinions between the new injury and aggravation does not assist in determining the outcome of the review.  That debate is about the cause, whereas what I must address is whether the injury, whatever the cause, had resolved.  

52.     I prefer the opinion of Dr Muratore on the nature of the injury, because he was in the more favourable position to comment from a longitudinal perspective, having seen Ms Hopley a number of times during 2006.  He, therefore, was better placed to assess whether or not the second injury was related to the 2006 injury.  Dr Ghabrial really had to rely on Ms Hopley’s account, and may well have been swayed by her insistence that it was an aggravation. 

53.     However what is important to focus upon is the solid agreement amongst all practitioners that the 2007 injury was minor, no more than a sprain, and an injury from which Ms Hopley would recover quite quickly.  (I infer that Dr Maxwell agreed).

54. In my view the medical evidence shows that recovery time would be measured in weeks. Australia Post was correct to cancel ongoing payments under s 16 and s 19 with respect to the 2007 injury. Accordingly I would affirm the decision under review in relation to the 2007 injury. I am satisfied that Ms Hopley by June 2007 had recovered from “facet joint sprain” and was no longer entitled to payments for incapacity or for medical treatment as these related to the 2007 injury. However, she remained entitled to payments under s16 and s19 of the Act with respect to the 2006 injury.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.

Signed:         ......................[sgd]...............................................

Emily Clarke, Associate

Dates of Hearing  20 and 21 August 2009
Date of Decision  8 September 2009
Counsel for the Applicant         Mr P Davies
Solicitor for the Applicant          Ms M Lawrence, Emery Partners
Counsel for the Respondent     Ms R M Henderson
Counsel instructed by               Ms D Hatton, Australian Postal Corporation

2006; T100, 24 January 2007; and T 106, 3 February 2007.