EDMUND SAULYS and AUSTRALIAN POSTAL CORPORATION

[2012] AATA 304

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/0288

Re

EDMUND SAULYS

APPLICANT

And

AUSTRALIAN POSTAL CORPORATION

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop
Dr J Chaney, Member

Date 18 May 2012

Place Perth
The decision under review is affirmed.
.................[sgd]..............................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant claimed compensation in February 2009 for back injury claimed to have been suffered in November 2007 – respondent denied liability in respect of applicant’s claim for compensation – applicant did not suffer compensable back injury in November 2007 – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5A, s 5B and s 14(1)
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member
18 May 2012
Introduction

Edmund Saulys (“the applicant”), who was born in February 1945, was employed by Australian Postal Corporation (“the respondent”), on a permanent and full-time basis, as a Postal Delivery Officer from August 1996 to September 2010.
On 13 February 2009 the applicant lodged with the respondent a Claim for Rehabilitation and Compensation form, signed by him and dated 9 February 2009, whereby he claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of a “back” injury which he indicated that he had sustained on 5 November 2007 and for which he indicated that he had first had medical treatment on 6 November 2007.
At the same time the applicant also lodged with the respondent an Incident Report form, signed by him and dated 5 January 2009, in which he indicated that the relevant incident, in which he sustained a “back” injury, had occurred on 5 November 2007 “on postal delivery round Northam” when he was on duty, and that he had received initial treatment from Dr S Spencer on 6 November 2007. In response to the requirement in the form to “describe how the incident happened”, the applicant referred to “Appendix 1 enclosed” which states as follows:
“ Taking me off my normal (of around 10 years) divided motorcycle/walk delivery round on my first day back from annual leave also taken off my new motorcycle and ordered to use an old motorcycle (due to be replaced) with stuffed suspension to service a much larger rougher cross country round when I, with no stress was managing to cope with successfully has been questioned by many including my GP and Posts Commonwealth GP whom I had been referred to by Post.” (sic)
On 3 April 2009 an officer of the respondent made a determination under s 14 of the SRC Act denying liability in respect of the applicant’s claim for compensation dated 9 February 2009.
On 20 May 2009 a Reconsideration Officer of the respondent made a “reviewable decision” under s 62 of the SRC Act affirming the determination of 3 April 2009.
The applicant has made an application to the Tribunal for review of the reviewable decision of 20 May 2009.
The Evidence
The evidence before the Tribunal comprised:
· the “T Documents” (T1–T146, pp 1–260) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·    Exhibits A1–A11 tendered by the applicant;
·    Exhibits R1–R21 tendered by the respondent; and
·    the oral evidence of the applicant, and of the following witnesses:
-Shane Watson, David Howard, Lena Hinsley, Douglas Lewis, Stephen Reynolds and Dr Michael Bowles.
Background Medical Material
The following background medical material is contained in the T Documents and Exhibits which are in evidence.
A Lumbar Spinal CT Scan report regarding the applicant by Dr T Chakera, dated 19 May 1992, states as follows:
“ Axial slices from L3 to S1 level have been obtained.
At L3 level a left sided annular bulge narrowing the left intervertebral foramen has been demonstrated. The annular bulge however has not obliterated the epidural fat.
No other significant abnormality seen.
At L4/L5 level there is a central annular bulge indenting the thecal sac causing minor degree of central canal stenosis.
Bilateral facet joint degeneration at this level also noted.
At L5/S1 level there is disc degeneration with vacuum phenomenon. Also at this level there is evidence of significant narrowing of the right lateral recess by the annular bulge. Gas in the lateral recess within the bulging disc is also noted. The right pedicle is sclerotic and there is osteophyte formation which is further narrowing the right lateral recess at L5/S1 level.
Bilateral facet joint degeneration is also present at L5/S1 level.” (Exhibit R1)
A report regarding a radiological examination of the applicant’s cervical spine by Dr T Chakra, dated 3 October 1996, states as follows:
“ Advanced spondylotic changes involving the lower cervical spine noted. Disc degeneration and disc space narrowing is most severe at C4/5, C5/6 and C6/7 levels. Oblique views show encroachment of the intervertebral foramina by osteophytes at all three levels bilaterally. Osteophytic encroachment is most pronounced at C5/6 level.” (Exhibit R3)
Progress/Consultation Notes produced by Wellington Surgery, Northam, covering the period from June 1997 to January 2011 include the following notes relating to the applicant’s back made by the relevant general practitioner in consultations involving the applicant prior to, and immediately after, 5 November 2007:

·    14 September 1999:

“Fell off bicycle yesterday. Hurt (L) shoulder.

…

Also painful lower back …

…”;

·    21 September 1999:

“Had some pain over (L) SI joint, worse when sneezed …

shoulder pain resolving”;

·    6 September 2005:

“back strain ?disc prob as paraesthesia R thigh …”;

·    25 May 2007:

“back discomf + paraesthesia in R leg.

…”;

·    13 June 2007:

“given CT sc report – 2 areas of possible nerve impingement L L3 and R SI …”;

·    30 October 2007:

“…

back pain – deg spine - CT shows L5SI R impingement …”;

·    12 November 2007:

“ – no help for above

employer – Post office, changed rounds, ? bike not good”. (Part of Exhibit R15)

A document headed “Northam Hospital Physiotherapy – Patient Information Sheet”, dated 26 October 1999, indicates that the applicant had been referred for physiotherapy by Dr C J Smyth because of pain in his left lower back involving a “dull ache” and “sharp” intermittent pain, and records the following current history:
“ 4/52 Fell off motorbike (Aust Post) (R) shoulder & lower back/hip pain. Shoulder settled.
…
Increase in pain on Sun (24/10)
Now 10/10 pain – no cause”. (Exhibit R4)
A report of Dr S Cartoon to Dr Smyth, dated 9 December 1999, regarding a CT scan of the applicant’s lumbar spine from L2 to S1, states as follows:
“ L2/3 Level
Moderate diffuse annular disc bulge, more pronounced along the left lateral margin of the annulus with associated discal encroachment on the left L2/3 intervertebral foramen and slight encroachment on the inferior aspect of the left L2 nerve root.
…
L3/4 Level
Moderate diffuse annular disc bulge with associated indentation of the anterior surface of the thecal sac, slightly more marked to the left of the midline. There is evidence of slight compression of the L4 nerve roots as they exit the thecal sac, more marked on the left side.
There is also likely compression of the left L3 nerve root at the level of the intervertebral foramen.
L4/5 Level
Mild diffuse annular disc bulge. No disc protrusion.
Dimensions of the spinal canal and intervertebral foramina are normal.
L5/S1 Level
Intradiscal gas is present, consistent with disc degeneration. Posterolateral vertebral and plate lipping, more marked on the right side. A small focus of gas is noted in the right lateral recess of S1 and there is partial effacement of the right S1 peri-neural fat planes with slight posterior displacement of the right S1 nerve root. A small disc fragment at this site is suspected. Minor degenerative changes are noted involving the facet joints.” (Exhibit R5)
A report of Dr L Matar to Dr A Boyd, Wellington Surgery, dated 7 June 2007, regarding a CT scan of the applicant’s lumbar spine, states as follows:
“ Clinical Details:
Low back discomfort, paraesthesia right leg.
Findings:
Multislice spiral scans have been obtained from L1 – S1 with axial and sagittal reformations performed.
Sagittal reformations show satisfactory alignment in the sagittal plane but on the coronal reconstructions there is noted to be a rotational lumbar scoliosis convex to the right in the upper lumbar region and to the left in the lower lumbar region.
There is multilevel disc space narrowing with vacuum phenomenon noted at the L2/3, L4/5 and L5/S1 levels. Disc space narrowing is most marked at L2/3 where there is prominent subarticular sclerosis with similar but slight less advanced changes noted at L4/5.
L1/2: - There is mild facet arthropathy, appearances are otherwise unremarkable.
L2/3: - There is significant disc space narrowing and vacuum phenomenon within a degenerative disc. There is a shallow broadbased left posterolateral and far lateral disc bulge/protrusion with disc material extending into the left subarticular recess and proximal lateral recess where there is potential for left L3 nerve impingement. The L2 nerve roots appear to exit without compromise.
There is mild multifactorial central canal stenosis with the AP diameter of the sac reduced to approximately 8mm. Mild facet arthropathy is noted.
L3/4: - There is a left lateral and far lateral disc protrusion which is contacting and effacing the left L3 nerve in the extra-foraminal/far lateral position. There is mild multifactorial stenosis with the AP diameter of the sac reduced to approximately 8mm. There is mild facet arthropathy.
L4/5: - There is a broadbased disc protrusion extending approximately 6mm posterior to the endplate. This density ventral aspect to the sac and reduces the AP diameter of the sac to approximately 8mm.
There is extension into the left subarticular and proximal lateral recess with contact of the left L5 nerve root. The left L4 nerve root exits freely. There is a right posterolateral and foraminal disc bulge which contacts the undersurface of the exiting right L4 nerve root resulting in foraminal crowding of the nerve root distally in the foramen. There is moderate facet arthropathy.
L5/S1: - There is a right posterolateral disc protrusion which extends into the right subarticular and proximal lateral recess. This contains gas. There is contact with the right S1 nerve. There is a right posterolateral endplate osteophyte which is narrowing the right neural foramen but there is no definite compression of the exiting right L5 nerve. The left L5 nerve appears to exit freely.
Comment:
Widespread degenerative changes are noted with a number of sites of potential neural impingement highlighted above, significance of findings requires close clinical correlation.”(original emphasis) (T9)
Two medical certificates issued by Dr R Davies, Wellington Surgery certified that the applicant would be unfit for work for 3 days from 25 July 2007 to 27 July 2007 and for 4 weeks from 31 July 2007 to 27 August 2007. (T10)
An Australia Post Fitness for Duty Appointment form (undated), signed by Lena Hinsley, Manager, notified the applicant that he was required to attend a “fitness for duty assessment” to be conducted by Dr Stephanie Spencer on 6 November 2007 at 11.30 am. (T13)
An Australia Post Injury Management Program Medical Assessment form, to be completed by the assessing doctor, contains the following introduction:
“ As part of our structured Injury Management (Early Intervention) Program, Australia Post encourages and assists employees to remain at work safely and/or to resume their normal duty quickly and safely, following a possible injury or illness in the workplace.
With this in mind please address the following questions:”.
Dr Stephanie Spencer, having assessed the applicant, completed such a form on 6 November 2007 in which she indicated that:
·the applicant’s “current presenting condition” was: “lumbar spondylosis & sciatica on (R) - advanced degeneration”;
·that condition was “permanent”;
·the following “physical restrictions” were applicable to the applicant:
-      “no repetitive twisting of back”;
-      “standing tolerance 30 mins maximum”;
-      “no driving: motor cycle – old”;
-      “preferable not to ride on rough terrain”;
·the applicant was “totally unfit from 6 November 2007 to 13 November 2007” and “return to usual GP for ? physio”.
Along the left margin of this form the following handwritten annotation appears:
“ This is not work-related”. (Exhibit R9)
A medical certificate issued by Dr A Boyd, Wellington Surgery certified that the applicant would be unfit for work for 4 weeks from 13 November 2007 to 13 December 2007. (T16)
Subsequent medical certificates issued by general practitioners at Wellington Surgery certified the applicant as unfit for work for various periods in the period from January 2008 until 19 December 2008. (T18, T21, T25, T29, T30, T32, T35, T36)
A medical certificate issued by Dr Boyd certified that he applicant would be fit to “resume full duties from 22 Dec 2008”. (T41)
Background Medical Reports/Letters
Dr Roger Lai
Dr Lai, Occupational Physician, has conducted various periodical “fitness for duty assessments” of the applicant at the request of the respondent.
On 25 February 2008 Dr Lai reported to the respondent as follows:
“ I saw Mr Saulys for a 13 week sick leave review.
Background Information
Edmund is a 62 year old full time postie. His usual work is divided between indoor mail sorting, motorcycle delivery and walk delivery. He has had chronic low back pain for the last 10-15 years. On the whole, he appears to have managed with the problem and continue with work. In October 2007, his low back pain flared up again and he has been unable to return to work since – hence today’s review.
History of Current Complaint
There appears to be no history of major trauma associated with his low back pain. Edmund says he has not improved since taking time off work in October. He has had a CT scan and MRI performed. These indicate the presence of age related degeneration in the lumbar spine.
Edmund tells me that apart from the occasional panadeine and walking in the pool, he has not had any significant medical treatment for his current pain.
Edmund remains significantly disabled. He is avoiding driving, lifting and housework. He is spending his days either lying in bed or pottering about the house and garden.
Assessment
I undertook a thorough clinical assessment of Edmund today. At Edmund’s request, I have written to his general practitioner a separate report with my findings and with suggestions on further medical management.
Edmund currently remains unfit for work. It is unlikely that he will be back at work within the next 3 months. With appropriate treatment, he may be able to return on restricted indoor duties within 6 months. Considering his age and level of disability today, there is a good chance he may not be able to return to his pre-injury role in the future.
…” (T24)
On December 2008 Dr Lai reported to the respondent as follows:
“ I saw Mr Saulys today for a fitness for duty assessment. His general practitioner has cleared him to return to full duties from 22^nd December 2008. I refer you to my previous report dated February 2008 for the background details.
Mr Saulys attended with his wife. He expressed significant concern about how Post will manage his return to work. He was worried about being forced into early retirement. I explained that today’s assessment was to assess his medical ability to perform his duties and whether he required any medical restrictions.
Progress
Since I last interviewed him, Mr Saulys has gradually improved. His main treatment has been time and some light exercises in the form of walking and walking in the pool. Mr Saulys said he had noticed a major improvement from about 2 – 3 months ago. Mr Saulys said he continues to improve with time. Most of his previous symptoms of constant pain, disrupted sleep, right leg pain and right foot altered sensation have resolved.
Since last review, Mr Saulys has been diagnosed with Type 2 diabetes. He is currently prescribed metformin 500mg twice daily for the diabetes.
Current symptoms
Mr Saulys said he felt ‘as fit as a fiddle’. Mr Saulys said he still experienced some intermittent right low back pain (same as the last 10-15 years). Episodes of the right low back pain were usually associated with twisting with a heavy load or if his foot slipped jarring his back. The episodes would typically last from a few hours to a few days. Mr Saulys would treat these episodes with rest by lying flat on his back.
Mr Saulys could not recall the frequency of these painful episodes over the last month but felt that he had not had any in the last 7 days.
Mr Saulys was otherwise symptom free.
Current function
Mr Saulys has been completing his usual home activities without difficulty. In terms of work, he felt that a return to the same duties as he was performing when he went off work (3 hours motorcycle delivery over rough and hilly terrain) would aggravate his low back. He was certain that he would have no problems with a return to his old delivery round of 60 minutes walk and 90–120 minutes motorcycle.
Examination
Mr Saulys weighs 95kg and is 176cm tall.
Mr Saulys moved freely with no signs of pain. He sat comfortably and normally. He walked normally and was able to walk on tiptoes and his heels. He was able to squat and rise normally.
Lumbar range of movement was normal – he was able to bend over and touch his toes, extension was normal, lateral flexion was fingertips touching knee. There was no tenderness to palpation over his lumbar area, buttocks or sacroiliac joints.
Provocative tests such as the quadrant test, slump and FABER tests were negative. Straight leg raise was over 80 degrees both legs. Reflexes in the lower limb were brisk and symmetrical. There was no reported altered sensation in the lower limbs.
Assessment
Mr Saulys has a history of chronic intermittent right low back pain over the last 10-15 years. In that time, he has managed to continue with his PDO duties. For the last 8 years this has consisted of mail sorting, a one hour walk delivery and a 1-2 hour motorcycle delivery on flat terrain.
He took a month’s holiday last year, returning to work in October 2007. Prior to his holiday, he had experienced a flare-up of his back symptoms (cause unknown). He spent most of his holiday resting and gradually improved. On return to work, he was placed on a new 3 hour motorcycle delivery round on hillier and rougher terrain. He worked one day on this new round, his back symptoms worsened and he went off work. Imaging of the spine revealed age-related degeneration. It took another 12 months for his low back to feel quite good again. He continues to have an occasional ache in the right low back if he jars it or does some twisting with a heavy load.
Considering the chronic nature of his right low back pain, the flare-up of symptoms before his delivery round was changed and the further flare-up of symptoms after working on the new round, Mr Saulys is at high risk of aggravating his back condition if he returns to unrestricted duties.
Motorcycle riding, particularly over uneven terrain would be a risk factor for a flare-up of the back symptoms. This is because motorcycle riding involves exposure to whole body vibration and can require significant twisting at times. There is also a temptation to reach behind to access pannier bags (leaning and twisting) instead of dismounting to access the bags.
Mr Saulys is fit for unrestricted indoor duties and a walk delivery round. These are low risk activities provided he follows usual safe manual handling procedures.
A return to modified motorcycle delivery with a low risk of severe aggravation can occur within the following restrictions:
·     One month period of doing a walk round and remaining symptom free.
·     Completion of motorcycle refresher training.
·     Majority of round on even, smooth terrain.
·     Delivery time initially one hour and then upgraded to maximum two hours after two weeks if there are no difficulties.
·     Dismount to take mail bundles out of panniers (usual procedure) instead of twisting around.
Recommendations
1.   Not fit for unrestricted PDO duties. He is unable to perform a 3 hour motorcycle delivery round on uneven terrain without experiencing more back symptoms.
2.   Fit for his normal indoor duties.
3.   Fit for a walk round with no restrictions.
4.   There is a reasonable chance that back symptoms can worsen on motorcycle delivery but the risk can be reduced by the measures discussed above.
…” (T39)
24.On 5 May 2009 Dr Lai provided a report to the respondent in which he reiterated the findings and the opinions expressed in his report of 18 December 2008. (T59).
25.       On 15 October 2009 Dr Lai reported to the respondent as follows:
“ I saw Mr Saulys today 15^th October 2009 at your request for a fitness for work assessment. I refer you to my previous reports for the background details.
PROGRESS
Mr Saulys said he continued to feel fine. He said he had no back pain. He felt he was able to perform full unrestricted duties including 3 hour motorcycle delivery plus overtime and over uneven terrain.
He provided me with a letter from Dr Swanepoel (not his regular GP) dated 7/10/09 that stated ‘In my opinion, he will be fit to resume his normal pre-injury duties from 8/10/09’.
There has been no other change from last review.
Mr Saulys pointed out to me that he has never had chronic low back pain before. He felt that I may have misinterpreted what he had said previously. He said he did suffer from upper back pain ‘fibrositis’ previously that started in his 20s and resolved about 30 years ago after massage treatment.
I spoke to you regarding the work situation. I understand that there are 3 motorcycle delivery rounds available. Each round involves at least 3 hours motorcycle delivery. Each round has a component of uneven, hilly terrain. Some of the terrain is over loose gravel surfaces.
EXAMINATION
Low back examination was normal.
REVIEW OF NOTES
I reviewed my clinical notes from when I first saw Mr Saulys on 25/02/08. I reproduce a copy of the relevant notes below:
Right sacro-iliac region pain and just inferior to bilateral posterior iliac crests. Has been present for last 10-15 years.
? cause, falling off motorcycle, ? degeneration.
Overall, for last 10-15 years – grumbly pain, occasional exacerbation but overall continued to cope.
Reading my consultation notes, it is unlikely I would have confused the upper back with the lower back.
ASSESSMENT
It has been nearly a year since Mr Saulys last experienced some low back pain. Mr Saulys is currently well and has the physical capacity to perform unrestricted PDO duties. I still feel there is a high risk of recurrence of the previous low back pain if he returned to unrestricted duties on one of the three available motorcycle rounds.
Given the length of time Mr Saulys has been symptom free, I feel it would be reasonable for him to perform up to 3 hours motorcycle delivery provided it was on a modified round with relatively even terrain.
Recommendations
1.He is fit to continue with unrestricted indoor duties, 1 hour walk delivery and 2 hour motorcycle delivery on relatively even terrain.
2.He is fit to perform up to 3 hours motorcycle delivery on a round composed entirely of relatively even terrain.
3.I do not recommend unrestricted motorcycle delivery including overtime, especially if it includes rough terrain as this would pose a high risk of developing significant low back pain.
…” (T111)
Mr Gabriel Lee

A report of Mr Lee, Neurosurgeon, addressed to Dr Boyd, dated 23 January 2008, states as follows:
“ Thank you very much for asking me to see Mr Saulys, whom I reviewed today in the presence of his wife. Mr Saulys is a sixty year old man who has been working as a postie. His general health has been excellent apart from hypertension.
Mr Saulys tells me that he has had long standing lumbar spine problems. Approximately 20 years ago, while working on a delivery job, he apparently slipped and fell and injured him (sic) back. Over the years, he has had increasing troubles with pain in the back. This has been particularly so in the last few months. This has been exacerbated further by a recent bumpy delivery trip on a motor cycle, which apparently had poor suspension. Furthermore, he has also developed intermittent numbness down his right leg. There is an unusual feeling down his right leg, which is worse in certain positions. Interestingly, when he lies flat, he says that both his back pain as well as his right leg symptoms are improved. His symptoms are getting to the stage where his working ability is impaired.
On examination, straight leg raise could be performed to 80 degrees bilaterally. His power, tone and reflexes were all normal and intact. Sensation was normal to light touch.
I note the CT scan lumbar spine report from June 2007. Unfortunately, the CD with the images would not load up on my computer. Nonetheless, just going through the CT scan report from June 2007, it certainly seems that Mr Saulys has degenerative lumbar scoliosis with multiple disc bulges at several levels. More specifically, I note the suggestion that there is a right sided posterolateral disc prolapse. I have asked Mr Saulys to contact the Northam Perth Radiological Clinic to obtain hard copies of his CT scan images. In the meanwhile, I have organised for an MRI scan of his lumbosacral spine to clarify the situation further.
I will review Mr Saulys as soon as the MRI scan is done and will write to update you again shortly.” (Exhibit R10)
A report of Dr S Davis regarding an MRI scan of the applicant’s lumbar spine, dated 14 February 2008, states as follows:
“ …
Findings: Moderate to severe disc degeneration is present at L2/3, L4/5 and L5/S1 and milder degeneration at L3/4.
At L2/3, there is circumferential disc bulging and end plate spurring, more prominent on the left laterally, without neural compression.
At L3/4, a left paracentral disc extrusion migrates up to 8mm above the disc margin and 3-4mm posteriorly. It indents the thecal sac but does not result in focal neural compression. There is a left foraminal neural disc protrusion, touching the exiting left L3 root.
At L4/5, there is moderate circumferential disc bulging, with a more focal broad-based posterior central disc protrusion, 3-4mm posterior to the usual disc margin indenting the thecal sac. There is moderate right facet arthritis and medially directed spurring and ligamentum flavum thickening narrowing the right subarticular recess entrance, abutting the traversing right L5 root as it enters the lateral recess.
At L5/S1, there is a right posterolateral disc extrusion extending inferiorly into the right S1 lateral recess entrance, with vacuum phenomenon within the extruded disc element, the overall disc extrusion relatively small extending up to 5mm below the disc level, 5mm transverse but only 2-3mm posterior to the usual disc margin. There is background end plate spurring and disc bulging. It results in impingement of the right S1 root as it enters the subarticular recess, with mild medial and posterior displacement of the root. There is mild right facet arthritis.
The conus and cauda equina are normal. There is no central canal stenosis.
Comment: Multilevel degeneration. Right L5/S1 posterolateral disc extrusion and vacuum phenomenon mildly impinging on the traversing right S1 root. Left L3/4 foraminal disc protrusion and posterolateral disc extrusion, without neural compression.
...” (original emphasis) (Exhibit R11)
On 14 February 2008 Mr Lee reported to Dr Boyd as follows:
“ I have reviewed Mr Saulys in the presence of his wife today.
He has had his MRI imaging done now. The most significant finding is that at L5/S1, there appears to be significant lateral recess stenosis. However, whether this is due to a disc prolapse or a facet joint cyst, this is somewhat difficult to tell. Nonetheless, there is no doubt that the S1 nerve root is significantly compressing the lateral recess.
The lumbar spine x-ray does not show any instability.
Certainly, Mr Saulys’ right sided leg symptoms are consistent with S1 radiculopathy with pain as well as paraesthesia. The sensory changes are worse on the sole of his right foot.
I have been through the imaging findings with Mr Saulys today. I have told him that there are extensive degenerative changes throughout his lumbosacral spine. However, I believe that a significant proportion of his current symptoms may be attributed to the S1 radiculopathy as a result of compromise of the nerve root in the right L5/S1 lateral recess.
I have talked to him about the management options including epidural/nerve root blocks and lumbar decompression surgery. I told him that there would be a 60 to 70% chance of improving his leg symptoms. I also explained to him the risks, which include infection, bleeding, dural tear with CSF leak as well as nerve root/neurological injury.
He has indicated that he would like to go ahead with surgery and he will contact my secretary in the next few days, to confirm a date.
I shall keep you updated with regards Mr Saulys progress.” (Exhibit R12)
Mr Bryant Stokes
A report of Mr Stokes, Neurosurgeon, regarding the applicant, dated 17 June 2009, addressed to Dr Boyd, states as follows:
“ I thank you for your letter of the 3^rd June 2009 concerning this gentleman and wish to advise that I reviewed him on the 17^th June 2009.
I note that he is 64 years of age and has been employed as a postman for Australia Post for the past 17 years. He states that this job does involve riding a motorcycle from between 1½ to 3 hours per day, sorting letters and walking for some 2 to 2½ hours per day.
These riding and walking activities do vary. He has type 2 diabetes, hypercholesterolaemia and hypertension. He states that since his early 20s he has had some interscapular muscular pain particularly when he is doing rotatory movements with his arms and upper thorax such as in whippersnipping. He has had no low back pain. In early 2007 he was on a motorcycle in the course of his employment and he put down his left heel to steady the motorcycle and his foot slipped sideways under him on gravel and he twisted his back and had some slight degree of pain. He went to see his general practitioner and had a CT scan which showed some degenerative changes in his spine. He had no time off work.
In July 2007 he had a month off work for stress leave and he then returned to work for some six weeks and continued to do his normal work without any trouble. He went on a month’s recreational leave. He returned to work on the 5^th November 2007 and was riding a motorcycle which appeared to be uncomfortable and poorly sprung and he started to develop low back pain. He was put off work for approximately a month and then did come to see Mr Gabriel Lee, Neurosurgeon. At that time he had low back pain and numbness in the right leg and in the second to fourth toes in that right leg. He was advised to consider an operation as an MRI scan at that time showed an L5/S1 disc protrusion. He decided not to undertake that and spent the next several months rehabilitating himself. As of now he has no symptoms whatsoever in his back nor in his right leg.
He returned to work on the 22^nd December 2008 and has continued to work satisfactorily but he has been restricted to some two hours on a motorcycle per day.
On clinical examination I could not fault him neurologically and note that his calf muscles, right and left are equal at 39.5cm in diameter. There is no wasting to his right calf muscle.
The MRI scan has shown the degenerative changes at L5/S1 and also at L4/5 and at L3/4.
These changes are obviously of longstanding. I believe the change at L5/S1 that was responsible for his symptoms occurred after riding the poorly sprung motorcycle and that these have now settled. I can see no physical reason for him not continuing in the employment at a full capacity as a postal delivery worker. I do not anticipate further intervention is necessary.” (T81)
A report of Mr Stokes addressed to the respondent, dated 21 April 2010, states as follows.
“ I wish to advise that at your request I saw Mr Edmund Saulys on the 21^st April 2010. I also have read in detail the enclosures which you provided to me with your letter of the 9^th April 2010.
Having re-interviewed Mr Saulys and having re-examined him, I have no reason to change the opinion which I expressed in my letter to Dr Boyd on the 17^th June 2009 concerning the fact that I believe that this man can continue in his full capacity as a Postal Delivery Worker with Australia Post.
In essence, as you are aware, this man has had an episode in early 2007 when he did twist his low back and had a mild degree of pain and the CT scan of his spine then showed degenerative changes in his spine which would be quite consistent with his age and not related to the injury. He had no time off work but did have time off work in July 2007 because of stress.
On returning to work in November 2007, he was riding a motorcycle that had poor springing and this has been confirmed by other workers who were involved in riding that motorcycle, so I am informed.
At that stage, it would appear that he did suffer a disc protrusion at L5/S1 and that the symptoms of that disc protrusion have now completely settled.
I do not see, at this stage that he is in any greater danger of injuring his back at work, than any other person of his age. Forty percent of the population at his age will show degenerative changes in their lumbar spine.
On clinical examination today, his spinal movements were totally full in all directions without pain or limitation. There were no abnormalities in reflex of power or other changes.
Whilst I can understand Dr Lai’s point of view concerning restrictions to work, I do not agree with them and I believe this man is fit for full unrestricted duties as a Postal Delivery Officer as would be for a person of his age.” (T135)
Dr Stephanie Spencer
A letter signed by Dr Spencer addressed “To Whom It May Concern”, dated 25 May 2009, states as follows:
“ Can I please confirm (sic) the comments – hand-written by myself, on an ‘Injury Management Program Medical Assessment’ form that I filled in on 06.11.2007?
Mr Saulys’ problem of lumbar spondylosis and sciatica on right - advanced degeneration was not a work-related injury, but riding on an old motorcycle appeared to have flared up his existing problem of spondylosis. He states that he had been working without incident for 4 months after his return for back rehabilitation on a new motorcycle, but when he was given an old motorcycle to ride, over rough terrain at times, his symptoms flared up. So, although the presenting condition was not work-related, the flare-up was.” (T75)
[The Tribunal notes that the form referred to by Dr Spencer is referred to in paragraph 17 above.]
A letter signed by Dr Spencer addressed “To Whom It May Concern”, dated 15 April 2010, states as follows:
“ Can I please confirm (sic) the comments – hand-written by myself, on an ‘Injury Management Program Medical Assessment’ form that I filled in on 06.11.2007?
Mr Saulys’ problem of lumbar spondylosis and sciatica on right - advanced degeneration was not a work-related injury, but riding on an old motorcycle appeared to have flared up his existing problem of spondylosis. He states that he had been working without incident for 4 months after his return for back rehabilitation on a new motorcycle, but when he was given an old motorcycle to ride, on 5^th November 2007, his symptoms flared up. So, although the presenting condition was not work-related, the flare-up was.” (Exhibit A5)
Dr Anthony Boyd
A handwritten letter of Dr Boyd (not addressed to any person but presumably sent to the respondent), dated 2 February 2009, regarding the applicant, states as follows:
“ The above came to see me on 12 Nov 07. He was complaining of back pain which he said was agrevated by using an old motor cycle to cover his round which was over rough ground. This was not his usual round and it had been changed to this one recently.
I put him on sick leave so that he could rest his back hoping that it would settle.” (sic) (T44)
A handwritten letter of Dr Boyd (not addressed to any person but presumably sent to the respondent), dated 8 May 2009, states as follows:
“ I have examined today Mr Saulys. He has full function in his lumbar spine. He is fit to return to work to his pre-injury employment. Although he has a problem with degeneration in his spine he has been able to engage in his duties in delivering post, using a motor cycle for the last 9 nine year, without having problems.” (sic) (T62)
A handwritten letter of Dr Boyd addressed “To whom it may concern”, dated 31 March 2010, regarding the applicant, states as follows:
“ I have been seeing Eddy as a patient since Jan 06, although he has been a patient of the practice since 1997. On consulting his records he has not been seen with chronic back pains over that period.” (Exhibit A3)
The Applicant’s Evidence
The applicant tendered in evidence his signed statement dated 10 March 2012 (Exhibit A1). The relevant contents of that statement are as follows:
“ …
3I was first employed by APC in 1992 on a casual basis and became permanent in 1996. I was employed in the capacity of a Postal Delivery Officer (PDO) for a period of around 16 years at the Northam Postal Facility (NPF) 139 Fitzgerald Street, Northam, WA. I had an unblemished record and my role in that position involved sorting and delivering mail.
…
5My supervisor, a PDO at the NPF, Doug Lewis, questioned me several times in conversation on when I thought I might retire. My response was always the same, that whilst I felt fit, comfortable in my work and remained free from any illness, I would continue working, for a further 10 years.
6Between the end of June 2007 and July 2007, harassment and bullying began with constant innuendoes relating to my age and suggestions urging me to retire, continually directed towards me by both Mr Lewis, (supervisor) and Lena Hinsley, (Manager) NPF, during this month, Ms Hinsley had told me to remove some of my food from the fridge at the NPF. When I questioned her about the previous manager allowing me to keep my food in the fridge, she told me that she didn’t want it in there stating, ‘if you don’t like it, retire you old fart’. From that day on, Ms Hinsley and Mr Lewis periodically made comments, asking me when I would retire, when walking through the sorting room past me.
7The comments made me feel uncomfortable and made me feel like I didn’t want to be there. I would estimate during this period Ms Hinsley and Mr Lewis asked me on at least a dozen times between them.
8Between about 2000 and 2007, Mr Lewis was periodically harassing and humiliating me by what’s known as dackings (pulling my pants down to the floor) while staff looked on and laughed. He always did this to me in the sorting bay at the NPF. It was an unpleasant and embarrassing feeling but I never said anything to him as I knew he had mood swings and I didn’t know what else he might do in retaliation if I said something. I would estimate between the 2000-2007 period, Mr Lewis would have dacked me on about 30 occasions, but he never did it to anyone else.
…
10Unable to cope with this and further harassment, bullying and discrimination which occurred on the 30^th July 2007, I went off work on stress leave and lodged a complaint of harassment and discrimination with the State Diversity Manager, Gaynor Smith, of APC on the 31^st of July 2007, over the telephone. I commenced my stress leave on the 31^st of July 2007, which went to the 27^th of August 2007. I have a medical certificate for that period.
11I returned to my position after one month (on the 28^th of August 2007) and worked for six weeks as a PDO at the NPF without any further incidents, then went off on my four weeks annual leave.
12On the 5^th of November 2007, I returned back to work and this being my first day from annual leave. Upon return, I found that my round had been changed by Mr Lewis, and I had been rostered onto a much larger cross country round. My normal round was one that was a divided motorbike/walk delivery round, one which I had worked for over 9 years. The round covered the ‘central round’, which included the main business area. The round that I was changed onto was the ‘north round’.
13When I first started working at the NPF, I worked on the ‘south round’ for about six years and no one changed rounds, unless PDO’s agreed between themselves to suit themselves.
14I was happy to work the ‘north round’, however, I was ordered and forced by Mr Lewis to ride a Honda motorcycle with faulty (stuffed) suspension, while he rode my new Honda motorcycle, one which I had run in from new and which I had been riding for about eight to ten weeks prior to my annual leave. I did not object to changing rounds, but objected loudly to the changing of motorbikes, but Mr Lewis insisted and left me with no choice, forcing me to ride his old motorbike while he rode my new motorbike. This was witnessed by Mr Watson and I have a statement from him saying so.
15Mr Watson and I are work colleagues, we’re not really close friends or anything outside of work.
16On this day, I had just lackied all my letters for the ‘central round’ and was preparing to ride the new motorcycle when Mr Lewis stated I would be riding the other motorcycle (the one he had been with stuffed suspension) and would be doing the ‘north round’. I questioned him as to why and he basically just said, ‘because I told you to’, and he wanted to put more kilometres on the new motorcycle. I didn’t know how bad the condition of the motorcycle was but I told Mr Lewis I wasn’t going to ride it. He again said I had to, so I ended up riding it because I had a job to do.
17I don’t know what the registration of the motorcycle with the faulty suspension was. I am of the opinion the suspension was faulty as it was a rough to ride, not as nicely sprung as the new motorcycles, and I know Mr Lewis had, had heaps of problems with the spokes breaking on the rear wheel of his bike. (witnessed by Mr Shane Watson)
18I don’t know the registration of the new motorcycle I had been riding prior to that. The motorcycles are generally identified by the way of the amount of kilometres on them and where we parked them. There were only three motorcycles at the NPF at the time so it wasn’t difficult to distinguish whose was whose.
19Upon returning to the NPF that day, I informed Mr Lewis and Ms Hinsley at the back door that I had a sore back from riding the motorcycle. I told them I was going home and would make a doctor’s appointment, immediately which I did with my own doctor, Doctor Boyd.
20After making the appointment, I received a telephone call from Ms Hinsley who said I had to go to the APC nominated doctor. I told her that I had already made an appointment with my doctor, Dr Boyd, but she said I had to cancel my app and go to the APC facility nominated doctor (FND) in Northam, Doctor Stephanie Spencer and she made the arrangements for me to do so and meet with her.
21All up, I have been to four doctors and one specialist, all of whom have cleared me to work saying I sustained a work-related injury as a result of riding the faulty motorcycle, except for Doctor Roger Lai (Dr Lai). Dr Lai is the Perth-based APC nominated doctor and the specialist doctor is Professor Bryant Stokes (Dr Stokes).
22On the 13^th of November 2007, I saw Dr Boyd, my GP. He provided me with a medical certificate for one month off work, which I subsequently submitted to Ms Hinsley on the same day. I went into the NPF and spoke with Ms Hinsley, and advised her I wasn’t fit for normal duties at this time and I had a medical certificate indicating so.
23Ms Hinsley made a comment, ‘Don’t forget that when you return to work you’ll be going on the biggest round’. I replied, ‘Yeah I know, just let me get over my injury first’.
…
25I consider the action taken by Mr Lewis as being deliberate, reckless, completely unnecessary and a failure in his responsibility under APC’s duty of care policy to provide a safe working environment to a fellow employee. The motorbike in question that caused the injury was the last one due to be replaced. The other two had already been replaced.
26In Mr Lewis’s duration of riding this old motorbike, he appeared to be continuously experiencing problems with spokes breaking on the rear wheel. This is something myself and Mr Watson observed.
27At the time this all occurred in 2007, the NPF had only three motorbikes for the three PDO’s at the facility. Repairs and servicing of all motorbikes was performed by a local service centre … which specialised in four-wheel drive vehicles, not motorbikes. Today, the NPF has six motorbikes, three being spare. There are still only three PDO’s that work there, and all servicing and repairs performed in Perth by APC themselves I believe.
28Witnesses and evidence I have gathered to date suggest that Ms Hinsley and Mr Lewis had been conspiring against me, to make it as difficult and uncomfortable as possible for me to work there in the hope I would leave or retire.
29The injury I sustained as a result of riding the old motorbike on the 5^th of November 2007 resulted in me taking a combination of sick leave, annual leave and long service leave at half pay for the period 6 November 2007 to 22 December 2008. I returned to work on the 22^nd of December 2008.
30From the 12^th of May 2009 to about the 14^th of November 2009, I was again off work on a combination of sick leave, annual leave and half pay long service leave because APC refused me my entitlement to Workers Compensation. This is when my leave expired and I have not been paid since.
31I submitted my worked compensation claim form on the 14^th of February 2009. The reason I submitted the claim is because I became aware I was entitled to workers compensation as it was a work related injury and I found out that I had been set up at the NPF. At the time, I was not aware of any APC policies or procedures with regards to timeframes for reporting work incidents and I never made any claims without being asked to by the Postal Manager Lena Hinsley, she always brought a claim form to me when incidents arose and asked me to fill them in. Except on or after 5 November 2007.
…
74As I have previously stated to many, on numerous occasion, I firmly believe this injury to me was not accidental, it was created and constructed by management at the Northam Postal Facility in an attempt to get rid of me by what is commonly termed and known as a ‘Constructed Dismissal’.
75In short, I believe I was a victim of corrupt activity.
76This sleazy, unscrupulous vendetta exercised against me by respondent’s management has caused immense unnecessary worry, stress, and expense to myself and my family.
77It has cost me my job, and a projected income of around a million dollars in future earnings. I had made my intentions clear that I had indented to work for a further 10 years.
…” (sic)

In cross-examination the applicant said that (inter alia):
·he was “as fit as a fiddle” up to 5 November 2007;
·in 2007 Mr Lewis had asked him to “learn” a new round, but not to change rounds;
·on 5 November 2007 he was “not unhappy about having to do a different round” but he was “unhappy about having to ride a stuffed bike”;
·being required to do the new round did not cause him stress;
·there was no “accident” or “incident” on 5 November 2007 – the back pain he suffered was “just from riding the bike” on that day;
·he did not complete his shift on 5 November 2007 and he went home at 2.15 pm and he was in pain which got worse the next day.
As regards his delay (until 13 February 2009) in lodging a claim for compensation in respect of 5 November 2007, the applicant explained that, whereas previously Lena Hinsley would provide the necessary claim documents to him, she did not do so on this occasion.
He said that, following 5 November 2007, he was “focussed on rehabilitation and getting back to work” and he did not realise at that time that he could claim workers’ compensation. He said that “somebody else” and his GP told him that he was entitled to workers’ compensation and that Lena Hinsley then got the forms for him and he filled them in.
It was put to the applicant that, according to the respondent’s records (Exhibits R13 and R14), he had previously lodged an Incident Report form (P400) on 6 occasions, namely 16 September 1993, 22 July 1996, 30 August 1999, 13 September 1999, 24 February 2003, and 12 July 2004, and that he had successfully claimed compensation on 3 occasions, namely, in respect of the incidents on 22 July 1996, 13 September 1999 and 12 July 2004, and was subsequently paid compensation. He said that he had lodged the necessary forms on each of those previous occasions “when [he] was asked” to do so.
The applicant said that he lodged the relevant claim for compensation in February 2009 “when [he] became aware of Lena Hinsley’s and Doug Lewis’s conspiracy against [him]”.
The Evidence of Dr Michael Bowles
Dr Bowles, Occupational Physician, confirmed that he had examined the applicant at the request of the respondent’s solicitors, and that he had prepared a report, dated 5 December 2011, in relation to that examination.
Dr Bowles’ report of 5 December 2011 states as follows:
“ Thank you for asking me to review Mr Edmund Saulys, who I saw in the rooms today for the purposes of providing an independent medical assessment.
I note the background history in your letter dated 11 August 2011.
Forwarded medical documentation consisted of:
·CT lumbar spine dated 7 June 2007 for low back discomfort, paraesthesia right leg with a right posterolateral disc protrusion at L5/S1. Widespread degenerative change was also noted.
·Medical Management Programme indicating lumbar spondylosis and sciatic (sic) on right, advanced degeneration was a permanent condition.
·Report Dr Lee, Neurosurgeon dated 23 January 2008. This indicated that Mr Saulys told Mr Lee that he has had longstanding lumbar spine problem. The history was that over the years he has had increasing troubles with pain in the back. This has been particularly so in the last few months. This had been exacerbated by a recent bumpy delivery trip on a motor-bike which apparently had poor suspension. There had been development of intermittent numbness down the right leg. Dr Lee organised an MRI scan.
·MRI showed lateral recessed stenosis at L5/S1. Multi-level degeneration right L5/S1 posterolateral disc extrusion.
·Report OccuMed dated 25 January 2008.   This described Mr Saulys having chronic low back pain for the last 10-15 years but on the whole managing with the problem and continuing to work. In October 2007 low back pain flared up and he has not been able to work since.
·Report OccuMed dated 18 December 2008. This noted some general improvement with medication. There was report of intermittent right low back pain (same as the last 10-15 years).
The history was then detailed of Mr Saulys returning back to work in October 2007. Prior to the holiday there had been a flare-up of back symptoms cause unknown and a month taken off work. On return to work, he was placed on a new 3-hour motor-cycle delivery and that Mr Saulys worked one day on his new round, his back symptoms worsened and he went off work.
·     Australia Post Incident Report describing an incident occurring on 5 November 2007.
·     Short statement I presume from Mr Saulys with regards to use of old motor-cycle with “stuffed suspension”.
·     Report OccuMed dated 5 May 2009. This reported a return to work with Mr Saulys reporting himself to be symptom free. Examination was normal. Dr Lai noted his opinion was unchanged with a number of points including history of chronic intermittent low back pain for 10 or 15 years and back pain in October 2007 with 12 months off work. Dr Lai felt Mr Saulys was currently well and physically capable of performing a 3-hour motor-cycle delivery round but felt there was a moderate to high risk of his low back pain returning.
·     GP reports from May 2009 indicating fit to return to full duties
·     Referral to Mr Stokes dated 3 June 2009 describing a chronic back problem which does not give him much trouble.
·     Report Mr Stokes dated 17 June 2009. In early 2007 Mr Stokes described an incident of twisting the back but no time off work. CT scan was performed. In July there was a month off work for stress leave and then a return back to normal work and then a month’s recreational leave with return to work on 5 November 2007 with development of low back pain.
·     Report OccuMed dated 26 June 2009 with Dr Lai concurring that Mr Saulys had made a good recovery and was currently symptom free. He agreed that Mr Saulys had the physical capacity to perform unrestricted postal delivery duties but did note he did not recommend 3 hours motor-cycle delivery especially rough terrain as it posed a high risk of developing significant low back pain.
·     Report Dr Swanepoel feeling Mr Saulys was fit to resume pre-injury duties 9 October 2009.
·     Report OccuMed dated 15 October 2009. Dr Lai recounted his medical notes detailing overall for the last 10-15 years – grumbly pain occasional exacerbation but overall continued to cope
·     Report Mr Stokes dated 21 April 2010 recounting an episode in early 2007 when he did twist his low back. There was no time off work due to the back but time off in July 2007 because of stress. Mr Stokes felt the incident in November 2007 was a disc protrusion of L5/S1.
·     Copies of various Medical Certificates
Mr Saulys also presented
·     Northam Hospital Physiotherapy sheet detailing lower back left hand side which occurred after a fall off a motor-bike in October 1999.
·     Handwritten letter from Dr Boyd detailing Mr Saulys had not been seen with chronic back pain over the period since attending the practice in 1997.
History of Presenting Complaint
Mr Saulys said he didn’t attend on the last occasion as he felt the events were 4 years ago. He did note that there had been problems at work and there was a ‘scandal’ as they were trying to get rid of him so the Supervisor’s son-in-law could obtain a position.
Mr Saulys also detailed that the Post had created a problem by getting him to ride the old bike and that the Post Doctor had written a false report in that he had stated Mr Saulys had chronic back pain for 10-15 years and Mr Saulys presented the letter from Dr Boyd noting that this (chronic back pain) did not exist on the medical records.
Mr Saulys indicated today that he has never had back problems in the past. He indicated that he did have the injury in 1999 which he said he only found records of when moving house recently. He said otherwise he has never had back pain or had treatment for back pain and he had never had any other back injuries. He said he had never had a problem with his back before 5 November 2007.
Mr Saulys indicated he had just come back from a month of annual leave. He felt that there were innuendos being made for him to retire. He said he returned back to work and found that his route had changed which he felt would not have been an issue with his usual bike.
Mr Saulys said in the past he was given new bikes to break in. He said at the Northam Post Office there were 3 bikes, 2 new ones and an old one which he said had been ridden by his Supervisor. He said the Supervisor was significantly overweight and this had led to problems with the bike having problems with its back wheel.
Mr Saulys said he was asked to ride the ‘crook’ bike which he said he was forced to ride. He said he went out on the round and came back with a sore back. He couldn’t recount a specific episode but said the back got sore indicating the low back and some altered sensation in the right leg halfway through the round. I couldn’t get a description of any injury or accident with Mr Saulys noting ‘it just happened’.
Mr Saulys said halfway through the round he came back and said he was going to see his Doctor and that he couldn’t walk. He said his wife had to pick him up. He indicated that he was asked to see the work Doctor instead, which he did. He indicated that he then had 13 months off work.
Mr Saulys said he sought opinion from Dr Lee who suggested surgery but only gave a 70% chance of improvement. Mr Saulys said he had opinions with other people who have had the surgery and felt they suggested it wasn’t recommended.
Mr Saulys noted no treatment otherwise. He said he just rested and did some exercises and walking in the pool and then got better until he returned back to work.
Mr Saulys said his back complaints resolved and that he got back to perfect and he has been perfect ever since.
Mr Saulys returned back to work in December 2008 and worked for another 3 months. He said he returned back to 3 hours riding the bike with no problems. He said he was managed as a non-work related problem and dismissed after 78 weeks.
He indicated that he has battled that decision but took redundancy in October 2010.
Mr Saulys said in March 2009 he was doing PDO duties including riding his motor bike and he has not worked since.
Current Complaints
In relation to the back today, there were no complaints and no pain and Mr Saulys said he did everything he wanted to without a problem, with no ache or stiffness or soreness.
There was no treatment for the back; there was no medication use for the back presently.
General Medical History
Mr Saulys is 67 years of age. He noted no other health complaints or concerns. He noted no musculoskeletal complaints of any sort.
Mr Saulys was a non-smoker. He said he used to play lawn bowls but has ceased that activity and would currently walk for exercise. He said at home he would do all the domestic duties including gardening and said he had a lot of work around the house to do.   Mr Saulys said his wife was quite ill and he had to look after the domestic duties.
Occupational History
Work-wise, Mr Saulys had been with Australia Post since 1992 and made permanent in 1996.
Prior work had been a Cigarette Salesman for the rest of his working career.
Mr Saulys indicated his duties as a PDO of sorting, doing delivery work. He said he had variable rounds, the south round was initially performed where he worked being an all bike delivery round for 7-8 years, then changed to doing a walking delivery round in town and motor biking for 2 hours.
He indicated that he had run bikes in in the past but after taking annual leave the Supervisor had taken his new bike and he was left with the other bike.
Examination
On examination, Mr Saulys presented as a pleasant man. He showed no sign of restriction or impairment to informal examination.
Mr Saulys had no back complaint today. He had a full range of back movement. Leg examination was normal. Straight leg raising was to 80°. Tone, power and reflexes were equal and symmetrical. There was no sensory loss to light touch. Mr Saulys was able to walk on his heels and toes, in fact, jogged backwards and forwards.
Investigations
Mr Saulys presented the CT scan which has been reported on above. This was performed 7 June 2007.
Diagnosis and Opinion
Mr Saulys appears to have had an episode of back pain and sciatica on 5 November 2007.
Mr Saulys’ history today was that he has never had back problems before though it was quite clear that there as (sic) a back problem in the middle of 2007 leading to a CT scan, notwithstanding no lost time from that event.
Dr Lee and Dr Lai both indicated back pain of longer standing in their reports respectively 23 January 2008 and 25 February 2008. Again, this was in contradiction that Mr Saulys never had back pain.
To put these issues in context, it would be unusual in my opinion that Mr Saulys didn’t have some back discomfort from time to time. This is a normal human experience. Sitting on a motor bike over rough and rocky ground may also lead to some back discomfort from time to time.
However, Mr Saulys didn’t appear to lose any time from work and managed to deal with his work activities which, in my experience, is normal for most people, in that many people I see do have a degree of discomfort undertaking normal day-to-day activities including their work activities, but back pain in itself does not create any disablement or incapacity.
Most people are able to cope with a degree of musculoskeletal complaint which could be almost viewed as a normal range of affairs.
The issue of radiological change is vexatious. Any number of studies on this issue will show that degenerative change on radiology is ubiquitous by the time one reaches Mr Saulys’ age. Cross sectional surveys looking at degeneration would show that half the people with degenerative changes on their radiology have never had back pain or problems.
Back pain increases as one gets older as do the radiological changes of degeneration. However, making any correlation between those changes in symptoms is fraught with reliability and validity issues. Predicting back pain on radiology has also been studied and has no basis. The only reliable predictor of back pain is a previous episode.
So to put these issues in context, there appears to be some work issues as detailed by Mr Saulys. I am in no position to judge the veracity or not of those statements. However, there did appear to be a change in predicament from 5 November 2007. This appeared to be development of right leg symptoms which would be viewed as a significant aggravation of the underlying degenerative change. There appeared to be a similar episode in early or middle 2007 which created no disablement.
However, in this circumstance, there appeared to be workplace issues which then alter the outcome from what may normally be expected, with the episode earlier in 2007 providing possible natural history in the absence of complicating other factors.
Nonetheless, the back complaint, whatever the nature of its origins, appears to have resolved with Mr Saulys noting no back complaint, no leg pain and there was a normal examination.
Specific Questions
3.1      Clinical examination
a.        Your findings on examination
Clinical findings were normal with no restriction of movement and no neurological impairment and no non-organic features.
3.2      Relevant medical history
a.The history given to you by Mr Saulys concerning his back condition and the treatment he has received and is receiving for that condition;
There is no current back condition and no treatment being received.
b.Is there any relevant pre-existing or non-work related medical history or condition?
Mr Saulys’ recollection of previous problems is discussed above. He noted the episode in 1999 for which he had no lost time but otherwise stated no back pain and no treatment. This is clearly not the case for pain given the other contemporaneous medical reports, however, that needs to be tempered by the fact that many people do have back pain and have no disablement and seek no treatment and manage to cope in all normal activities.
c.If so, please describe the relevant pre-existing or non-work related medical history or condition and the significance of the pre-existing condition;
This is implicit in the above discussions that one would expect back ache and soreness from time to time. Another example relates to Haul Pak Drivers in the mining industry who when one speaks to them note back stiffness and soreness on almost a daily occasion but continue working and accepting that their complaint relates to seated posture and being bounced around in their truck for long periods. It does not constitute an injury or a medical condition but a normal response to that activity. Similarly an athlete would get sore muscles from time to time from training and not necessarily relate that to an injury in the absence of a true injury occurring.
Therefore, I would place in context any history of back ache or soreness in the absence of a specific injury or a significant change in condition necessitating treatment, lost time or other indicators that the person was not able to cope.
d.Would Mr Saulys have developed the current condition as a natural progression of a pre-existing condition irrespective of the motor cycle riding on 5 November 2007?
Mr Saulys has not (sic) current condition, in my opinion. I would view his back as being in a normal state of affairs.
3.3      Diagnosis.
a.        Your diagnosis of Mr Saulys’ back condition;
There is no back condition.
b.In this context, do you concur that the investigations undertaken indicate that Mr Saulys suffers multi-level degeneration in his lumbar spine that is longstanding?
I would make the point that this is a descriptive change. It is similar to describing one having grey hair or balding or having wrinkles. It is a description of normal aging processes. Multi-level degenerative change would be longstanding. Issues in degenerative change include genetic component with some people developing changes of degeneration in pre-teenage years.
3.4      The Claimed Injury
a.What injury, if any, did Mr Saulys sustain as a result of riding the motor cycle on 5 November 2007?
In this regard, please advise if you (sic) opinion is dependent on an assumption that the motor cycle used by Mr Saulys was in good condition or not in good condition. Please also advise if your opinion is dependent on an acceptance of the history given by Mr Saulys. If it assists you, you may wish to advise whether you consider it probable, possible or unlikely that an injury was sustained.
Mr Saulys may have sustained a disc protrusion or aggravated an already present protrusion given the radiology performed 7 June 2007. This showed a right posterolateral disc protrusion at L5/S1. Dr Lee’s MR (sic) of February 2008 showed this protrusion. One would note MR (sic) is more sensitive than a CT scan but the descriptions appear similar.
This opinion is independent of the condition of the motor cycle.
I have attempted to put the issue of the motor cycle in context above, in that the disquiet over the use of the ‘old’ motorbike may modify or alter how a person deals with their back complaint.
If Mr Saulys had the same issue riding his normal bike, by way of example earlier in the year and that outcome, as opposed to when perception of riding the other bike was felt to be the reason for the development of the complaint at the time and the outcome has been different. (sic)
It is probable that an ‘injury’ (more likely an exacerbation) was sustained. This was based on Mr Saulys’ history that he had annual leave and went to work on that day with no complaint.
b.If you are of the opinion that Mr Saulys sustained an injury as a consequence of riding a motor cycle on 5 November 2007, how long would you normally expect the effects or symptoms of such injury to continue?
The injury has resolved. This also is apparent in the forwarded documentation which followed the expected natural course.
c.Have the effects of a pre-existing or non-work-related condition overtaken the effects of any injury sustained? If so, in your opinion, when is it likely that the effects ceased?
The back complaint has resolved.
…” (Part of Exhibit R16)

In his oral evidence Dr Bowles confirmed that the applicant had told him that he had not had any back problems, back pain or treatment for his back prior to 5 November 2007, other than the injury in 1999 when he fell off his motorcycle, which was regarded as a “minor episode” and which subsequently resolved.
As regards the events of 5 November 2007, Dr Bowles confirmed that the applicant had told him that no specific accident or injury had occurred. As regards the opinion expressed by him in the last paragraph of para 3.4a of his report, namely:
“ It is probable that an ‘injury’ (more likely an exacerbation) was sustained …”
Dr Bowles said that he was there referring to an “increase in symptomatology”, and was not intending to refer to a “change in pathology”.
Dr Bowles was referred to the clinical notes of the applicant’s general practitioners regarding consultations on 14 September 1999, 21 September 1999, 6 September 2005, 25 May 2007 and 13 June 2007 (Exhibit R15 – see paragraph 11 above). As regards the notes for 6 September 2005 which refer to “back strain … paraesthesia R thigh”, Dr Bowles said that the applicant had not given him a prior history of “radiation from the back into the leg”. He commented that the notes for 25 May 2007 were similar in that they refer to “back discomfort + paraesthesia in R leg” and that the subsequent notes for 13 June 2007 refer to a CT scan which indicated that there were “2 areas of possible nerve impingement – L3 and R S1”. As regards the CT scan report of 7 June 2007 (T9 – see paragraph 14 above), Dr Bowles said that that report indicated the potential for nerve root impingement on the right at L5/S1 and that this was of clinical relevance.
Dr Bowles was then referred to the general practitioner’s clinical note for 30 October 2007 which refers to “back pain – deg spine – CT shows L5S1 R impingement” and he was asked to comment on that note, having regard to the fact that the applicant had taken recreation leave from 8 October 2007 to 2 November 2007 and returned to work on 5 November 2007. Dr Bowles said that it indicated ongoing complaint of pain in the back and into the right leg and suggested that the applicant was having those symptoms at a time when he was not riding his work motorcycle.
Dr Bowles was asked to comment on the MRI scan report of 14 February 2008 (Exhibit R11 – see paragraph 27 above). He confirmed that that report had previously been provided to him by the respondent’s solicitors. He said that, as regards the pathology described in that report, he “would put it in the same category” as the previous CT scan reports regarding the applicant’s lumbar spine.
Asked to compare the history indicated by the abovementioned general practitioners’ notes with the history given to him by the applicant, namely, that he had never previously had a problem with his back, Dr Bowles said that they were different. He said that the MRI scan of 14 February 2008, as compared with the earlier CT scan reports, “strengthened” his opinion that “no discernible change” in the applicant’s lumbar spine pathology occurred on 5 November 2007, and that it appeared from the abovementioned clinical notes that there was no difference between the symptomatology being described by the applicant before 5 November 2007, namely, back pain and leg symptoms, and the symptomatology which the applicant told him that he experienced after riding the motorcycle on 5 November 2007.
Asked whether riding the motorcycle on 5 November 2007 had had any impact on the applicant’s pre-existing lumbar spinal condition, Dr Bowles said that it had not had any impact “from a physical point of view”, in terms of creating “more injury” or aggravating the existing degenerative condition of the applicant’s lumbar spine. He added that, on that date, the applicant had not suffered “a medical injury” in terms of “new pathology” or a “progression” of existing pathology.
As regards the opinion expressed by him in para 3.4a of his report, Dr Bowles reiterated that he was referring to an “exacerbation” in the sense of a “temporary increase in symptoms” and he confirmed that that opinion was based on what the applicant had told him. He likened it to the normal experience of persons who ride motorbikes or drive trucks all day getting a “sore back from vertical vibrations”, and he said that such an activity does not change the person’s pathology or physiology, and they return to their normal pre-exacerbation state when the exacerbating activity has ceased. He added that when the person gets out of the truck, stands up, walks around, loosens up, “generally things settle down fairly quickly”.
Finally, Dr Bowles was asked to explain his opinion, at para 3.3a of his report, that there is “no back condition”. He explained that he was referring to 5 November 2007 and he said that it was his opinion that the applicant did not sustain a back condition from riding the motorcycle on that date.
The Evidence of the Lay Witnesses
Shane Watson
Mr Watson, who was called as a witness by the applicant, is employed by the respondent as a Postal Delivery Officer at the Northam Post Office. He confirmed that he had signed a witness statement, dated 2 October 2011, for the purpose of this proceeding and that its contents are true and correct. Mr Watson’s witness statement is as follows:
“ I worked along side Mr Saulys as a Postal Delivery Officer at the Northam Postal Office when Doug Lewis proposed and discussed the changing of the delivery rounds.
Mr Saulys was asked by Doug Lewis on several occasions to change onto and learn the North round.
Each time Mr Saulys was asked to change rounds I did not hear him complain or object, he always performed and carried out all his duties as requested.
Mr Saulys was, however, immediately on returning from annual leave, and after setting up his normal Central delivery round that morning, told by Doug Lewis to change rounds and deliver the North round he himself had set up.
I did not hear him object or complain to the changing of rounds that day, however, I did witness Mr Saulys become extremely agitated, distressed, and complain loudly when told by Doug Lewis to change bikes.
I have previously stated ‘I personally would not have ridden that bike’ when questioned about that bike.
My opinion since then has not changed and my concerns in relation to that bike remain.
At the time, Australia Post Northam only had 3 bikes for 3 postal delivery officers, ie there was no spare bike on the premises. We now have 6 bikes at Northam, ie a spare motorbike for each postal officer.
I did feel uncomfortable in our work place, prior to when the injury occurred, due to the constant innuendo directed at Mr Saulys, which was offensive and unwarranted by supervisor Doug Lewis and postal manager Lena Hinsley, for him to retire from work.” (Exhibit A8)
It is unnecessary to refer in detail to Mr Watson’s oral evidence in these reasons.
David Howard
Mr Howard is employed by the respondent as a Manager in the Claims Department. Mr Howard is the officer who made the determination dated 3 April 2009 (T51) in respect of the claim for compensation lodged by the applicant on 13 February 2009 in this matter.
Mr Howard appeared as a witness in response to a summons issued by the Tribunal at the request of the applicant. The Tribunal, however, derives no assistance from Mr Howard’s evidence and it is unnecessary to refer to it in these reasons.
Lena Hinsley
Ms Hinsley, who was called as a witness by the respondent, confirmed that she had signed a witness statement, dated 23 February 2012, for the purpose of this proceeding, and that its contents are true and correct. Ms Hinsley’s witness statement is as follows:
“1 I am employed by Australian Postal Corporation (‘Australia Post’) as the Postal Manager at the Northam Delivery Centre. I commenced working for Australia Post in 1998. I was first hired as a Postal Services Officer. I was appointed as Acting Postal Manager on 2 April 2001 and Postal Manager on 23 November 2006.
2I first met Mr Saulys in 1998 in the course of my employment with Australia Post. He previously worked with my father for PMG (now known as Telstra) but I didn’t meet him until I commenced employment with Australia Post.
3Mr Saulys is (sic) employed by Australia Post as a Postal Delivery Officer (PDO). His role as a PDO involves (sic) him delivery (sic) mail on one of three postal rounds – a North, South and Central round.
4My predecessor allowed all of the PDOs to regularly work only one round each. Of the three rounds that the Northam Delivery Centre runs, Mr Shane Watson covered the North round, Mr Doug Lewis covered the South round and Mr Saulys covered the Central round.
5After I was appointed Manager I identified that this was an inefficient process because each of the PDOs weren’t familiar with all of the different rounds and so when they had to fill in on a round that they weren’t accustomed to doing because someone was sick or on leave it would take longer and it was difficult for them because the address list was not properly maintained as the PDO that regularly did that round tended to keep all of the information in their head rather than updating it in the paperwork and on the working bays.
6In consultation with all of the PDOs and Chris McCloy, the head of the mail room, I decided to reallocate the rounds and to swap them around between all of the PDOs on a three monthly basis so that each PDO was familiar with all of the rounds and so that it was easier when people were on leave and the records were properly maintained. I spoke to Mr Saulys about this proposal on a couple of occasions but he was always very negative about putting it in place. Annexed to my statement as Annexure A is a page from my notes that includes a note from March 2007 when I spoke to Mr Saulys about the proposal.
7This change was implemented on 5 November 2007. It was a process of improvement that made everyone’s job easier, particularly when people were on leave.
8To my knowledge, all of the motorbikes were in good working order.
9On 5 November 2007 Mr Saulys called me after his shift had ended and he had left work to inform me that he had ‘pinched a nerve’ and was going to his doctor on the following day. He told me it was because of the bike he was riding. Mr Saulys remained at work for his entire shift on 5 November 2007 and did not report any problems with his back or his bike while he was at work. I also did not notice that he was showing any signs of pain. Annexed to my statement as Annexure B is the page from notes of 5 November 2007.
…”(Exhibit R17)
It is unnecessary to refer in detail to Ms Hinsley’s oral evidence in these reasons.
Douglas Lewis
Mr Lewis, who was called as a witness by the respondent, confirmed that he had signed a witness statement, dated 23 February 2012, for the purpose of this proceeding, and that its contents are true and correct. Mr Lewis’ witness statement is as follows:
“1 I am employed by Australian Postal Corporation (‘Australia Post’) as a Senior Postal Delivery Officer (PDO) Grade 3. I commenced employment with Australia Post in Alice Springs in 1989 and subsequently relocated to Northam in 1996. I have worked at the Northam Delivery Centre ever since.
2I first met Mr Saulys in the course of my employment with Australia Post when I commenced working at the Northam Delivery Centre in 1996.
3My role as PDO involves me delivering mail in the Northam area. There are three postal rounds that are covered by the Northam Delivery Centre – the North round, the South round and the Central round. Over the years as a PDO I have worked all three rounds.
4I consider that all of the delivery rounds in the Northam area are much of a muchness in terms of the differences in terrain. The terrain is as you would imagine – it’s not perfectly smooth as there are, at times, cracks in the concrete, uneven cement, pot holes, curbs (sic) and stones that have to be avoided but I do not consider that it is very hazardous or difficult to navigate around.
5No PDO is designated a particular delivery round in the sense that it is ‘theirs’. Although, having said that the PDOs don’t tend to swap their rounds very much. It’s not the case that Mr Saulys had been on the same round for 10 years. It is possible that Mr Saulys had been on the Central round for around 5 years.
6In late 2007 Ms Hinsley and I, in consultation with all of the other PDOs other than Mr Saulys because he was on leave, decided that the rounds would be reallocated and swapped around every 3 months. I had previously asked Mr Saulys to swap the rounds on several occasions prior to this decision being made. He always denied my requests to swap. The reallocation was to meet an operational need. It was necessary for all of the PDOs to be familiar with all of the rounds, in the event of other PDOs being unavailable or on leave. Also, over time, there had been growth in different areas of town so the rounds had to be expanded to accommodate that growth. The Central round had to be expanded so that it was closer in size to the North and South rounds.
7When Mr Saulys returned from sick (sic) leave he was advised that his round had been changed to the North round. He only completed part of the round on his first day back and I had to finish off the round for him. It was very clear that Mr Saulys did not want to change rounds.
8Since late 2007 we have continued to swap the rounds around between the PDOs every three months.
9I would estimate that prior to late 2007 the Central round covered approximately 23 km which involved delivering mail on foot for 1 hour and delivering mail on the motorcycle for 1 hour and 30 minutes. The North round covered approximately 47 km which involved approximately 2 hours and 45 minutes on the motorcycle. The South round covered approximately 47 km which involved approximately 3 hours on the motorcycle.
10After the changes to the rounds were implemented in late 2007 I would estimate that the Central round covered 30 km which involved walking for 1 hour walk (sic) and then riding the motorcycle for approximately 1 hour and 45 minutes, the South round covered 40 km which involved 2 hours and 45 minutes on the motorcycle and the North round covered 44 km which also involved approximately 2 hours and 45 minutes on the motorcycle.
11Mr Saulys’ motorcycle was the same as all of the other PDOs’ bikes. Of all of the bikes that Australia Post had at that time at the Northam Delivery Centre the eldest (sic) bike was ridden by me. Mr Saulys did not report any problems with the motorcycle he was using on the day that he returned to work and completed part of the North round.
12I rode Mr Saulys’ bike on several occasions and considered it to be in good working order.
13Mr Saulys never reported experiencing problems with his back to me.
14I have attended several counselling sessions because of Mr Saulys’ behaviour towards me. In the past he sent Australia Post a letter in which he made reference to me having mood swings and said that I was capable of ‘shooting staff at Australia Post’. I also used to be overweight and Mr Saulys used to comment on how overweight I was. I have only taken approximately 5 or 6 personal leave days over the last 23 years while working for Australia Post. Most of those personal leave days were taken to have time away from Mr Saulys.” (Exhibit R19)
It is unnecessary to refer in detail to Mr Lewis’ oral evidence in these reasons.
Stephen Reynolds
Mr Reynolds, who was called as a witness by the respondent, confirmed that he had signed a witness statement, dated 2 March 2012, for the purpose of this proceeding, and that its contents are true and correct. Mr Reynolds’ witness statement (Exhibit R20) commences as follows:
“1 I am a retired ex-employee of Australian Postal Corporation (‘Australia Post’). I commenced employment with Australia Post over 40 years ago delivering telegrams and I worked my way up to be HR Manager of the Commercial Division of Australia Post for Western Australia.
2I first met Mr Saulys in the course of my employment with Australia Post. I cannot recall when I first met him but it would have been while I was working as the Area Manager that took in the Northam district.
3Mr Saulys was employed by Australia Post as a Postal Delivery Officer (PDO) in the Northam Delivery Centre.
4As HR Manager my position was entirely administrative in nature and that at all times when performing my role I consider that I acted diligently and always strived to reach fair and just outcomes for Australia Post employees. I believe that is what I did in relation to Mr Saulys.
…”
The remainder of Mr Reynolds’ witness statement consists of his references to Annexures A–T thereto which comprise copies of correspondence between the applicant and him relating to employment issues raised by the applicant in the period from May 2009 to May 2010, and a copy of a letter from the applicant to him, dated 29 September 2011, in relation to the present proceeding. It is unnecessary to refer in detail to any of this correspondence, or to Mr Reynolds’ oral evidence, in these reasons.
The Relevant Legislation
Pursuant to s 14(1) and Part VIII of the SRC Act, the respondent is “liable to pay compensation in accordance with [that] Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
Section 4(1) of the SRC Act relevantly provides:
“ 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease has the meaning given by section 5B
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
…
significant degree has the meaning given by subsection 5B(3).
…”
Sections 5A and 5B of the SRC Act relevantly provide:
“ 5A     Definition of injury
(1)   In this Act:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5B     Definition of disease
(1)   In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)   In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)   In this Act:
significant degree means a degree that is substantially more than material.”
The Issue

The sole issue for the Tribunal’s determination is whether the applicant suffered an “injury” (within the meaning of s 14(1) of the SRC Act) to his back on 5 November 2007.
Analysis
Shortly stated, the applicant’s case is that Ms Hinsley and Mr Lewis conspired against him in order to make it “difficult and uncomfortable” for him to continue to work at the Northam Post Office and, in particular, constructed a situation in which, on his return to work from recreation leave on 5 November 2007, he was required, in the performance of his duties, to deliver mail on a new round, namely the North round (a substantially longer round than his customary Central round), riding an old motorcycle with “faulty” suspension, and that, by riding that motorcycle on that round on 5 November 2007, he suffered an injury to his back on that date.
Much of the applicant’s witness statement (Exhibit A1), his oral evidence and his questioning of the lay witnesses related to workplace relations issues involving, primarily, Ms Hinsley, Mr Lewis and himself, occupational health and safety issues, personnel issues, and the making of the determination (by Mr Howard) on 3 April 2009 denying liability in respect of his claim for compensation. Such evidence has been of no assistance to the Tribunal in its determination of the matter in issue, namely, whether the applicant suffered a compensable “injury” to his back on 5 November 2007, and, accordingly, the Tribunal has attached no weight to that evidence and has not referred to it in detail in these reasons.
The applicant’s allegation of a conspiracy between Ms Hinsley and Mr Lewis against him is likewise beside the point and the Tribunal has attached no weight to his evidence in that regard.
The question whether the applicant suffered an “injury” (within the meaning of s 14(1) of the SRC Act) to his back on 5 November 2007 falls to be determined primarily on the basis of the Tribunal’s assessment of the relevant medical evidence, and of the applicant’s own evidence in relation to the circumstances in which he claimed that he suffered a back injury on 5 November 2007.
Did the applicant suffer an “injury” (within the meaning of s 14(1) of the SRC Act) to his back on 5 November 2007?
The applicant’s evidence
The applicant’s evidence, in relation to his claim that he suffered a back injury on 5 November 2007, as stated in para 19 of his witness statement (Exhibit A1), was as follows:
“ Upon returning to the NPF that day, I informed Mr Lewis and Ms Hinsley at the back door that I had a sore back from riding the motorcycle. …”
In his oral evidence he acknowledged that no specific “accident” or “incident” occurred on 5 November 2007 and he said that he suffered back pain on that day “just from riding the bike” and that that pain was worse on the next day.
The medical evidence
Dr Michael Bowles
The Tribunal has been greatly assisted by the evidence of Dr Michael Bowles who prepared a comprehensive report, dated 5 December 2011, and who gave extensive oral evidence.
In his oral evidence Dr Bowles, having been referred to the general practitioners’ clinical notes relating to consultations at which the applicant reportedly complained of back pain and right leg symptoms in 2005 and 2007 (prior to 5 November) and to the CT scan reports of 9 December 1999 and 7 June 2007 and the MRI scan report of 14 February 2008, unequivocally opined that the applicant did not suffer “a medical injury” – that is, “new pathology” or a “progression” of existing pathology – regarding his lumbar spine on 5 November 2007. He likewise expressed the opinion that the applicant’s riding the motorcycle on 5 November 2007 did not create “more injury” to, or aggravate the existing degenerative condition of, the applicant’s lumbar spine.
As regards back symptomatology, Dr Bowles opined, on the basis of the history given to him by the applicant, that the applicant’s riding the motorcycle on 5 November 2007 had caused him to experience a “temporary increase in symptoms” of the kind normally experienced by persons who ride motorcycles or drive trucks for extended periods . He also opined, having regard to the general practitioners’ clinical notes, that the symptomatology which the applicant told him that he experienced on 6 November 2007 after riding the motorcycle, namely, low back pain and right leg symptoms, was no different from the symptomatology referred to in the general practitioners’ clinical notes for 6 September 2005 and 25 May 2007.
The Tribunal notes that the opinions expressed by Dr Bowles in his oral evidence were informed by contemporaneous clinical notes made by the applicant’s treating general practitioners (which were not available to him when he prepared his report of 5 December 2011), in addition to the relevant CT scans and MRI scan of the applicant’s lumbar spine and the other extensive medical documentation listed at the beginning of his report, and the history he took from the applicant Having regard to the comprehensive material relating to the history of the applicant’s lumbar spinal condition, on the basis of which Dr Bowles expressed his opinions in his oral evidence, the Tribunal attaches great weight to his evidence.
Dr Stephanie Spencer
Dr Spencer was the first medical practitioner to examine the applicant after he complained of a sore back on 5 November 2007. Dr Spencer saw the applicant on 6 November 2007 for the purpose of conducting an Injury Management Program Medical Assessment as arranged by Ms Hinsley (T13). In the assessment report form, dated 6 November 2007, Dr Spencer described the applicant’s “current presenting condition” as:
“ Lumbar spondylosis & sciatica on ® - advanced degeneration”
and she stated that that condition was “permanent”. She also indicated that the applicant was “totally unfit from 6/11/2007 to 13/11/2007” and should “return to usual GP for ? physio”, and she specified certain work restrictions, including:
“ No driving motor cycle – old
preferable not to ride on rough terrain”.
She also stated in a handwritten annotation along the left margin of the form:
“ This is not work-related”. (T14 and Exhibit R9)
Dr Spencer subsequently wrote two letters “To Whom It May Concern”, dated 25 May 2009 and 15 April 2010, apparently seeking to clarify the abovementioned handwritten annotation. In her letter of 25 May 2009 (T75 – set out in paragraph 31 above), Dr Spencer referred to a history given to her by the applicant that:
“ … he had been working without incident for 4 months after his return for back rehabilitation on a new motorcycle, but when he was given an old motorcycle to ride, over rough terrain at times, his symptoms flared up”
and she concluded:
“ So, although the presenting condition was not work-related, the flare-up was.”
Dr Spencer’s letter of 15 April 2010 (Exhibit A5 – set out in paragraph 32 above) is in identical terms to her letter of 25 May 2009 except that the phrase “over rough terrain at times” in the above-quoted passage has been replaced by the phrase “on 5^th November 2007”.
The Tribunal does not attach significant weight to Dr Spencer’s abovementioned letters of 25 May 2009 and 15 April 2010. Dr Spencer was not called as a witness in this proceeding and the Tribunal is uncertain regarding the circumstances in which those letters were written although it notes that those letters were apparently written, on the basis of information provided by the applicant, for the purpose of clarifying her statement in the Injury Management Program Medical Assessment form of 6 November 2007 that the applicant’s “presenting condition” was “not work-related”. In the Tribunal’s opinion, it is appropriate to attach greater weight to the contents of that assessment form because it was completed by Dr Spencer on the day after the applicant’s relevant complaint of a sore back on 5 November 2007 for the purpose of assessing the applicant’s fitness for work. In the Tribunal’s opinion, it is significant that the applicant’s “presenting condition” is described by Dr Spencer in that form solely in terms of a “permanent” condition of advanced degeneration of his lumbar spine together with right-sided sciatica, without any reference to a “flare-up” of back pain on 5 November 2007 (the previous day). Given Dr Spencer’s apparent understanding of the applicant’s history (as implied in her abovementioned letters) that the applicant had been symptom-free for four months immediately prior to 5 November 2007, had the applicant experienced a “flare-up” of back pain on 5 November 2007, which was continuing on 6 November 2007 when he presented to Dr Spencer, the Tribunal would have expected Dr Spencer to have referred to such a flare-up in her description of the applicant’s presenting condition rather than to refer solely to his permanent degenerative lumbar spinal condition – a condition which she described in the assessment form as “not work-related”.
Dr Anthony Boyd
The Tribunal understands that Dr Boyd has been the applicant’s main treating general practitioner since January 2006 and that he is the author of some of the abovementioned clinical notes (see paragraph 11 above) – in particular, the notes for 13 June 2007, 30 October 2007 and 12 November 2007. Dr Boyd was not called as a witness in this proceeding.
By letter dated 2 February 2009 (shortly before, the Tribunal notes, the applicant lodged his claim for compensation in this matter), Dr Boyd elaborated on his consultation with the applicant on 12 November 2007 (T44 – see paragraph 33 above). In that letter Dr Boyd noted that, on 12 November 2007, the applicant was “complaining of back pain which he said was aggravated by using an old motorcycle to cover his round which was over rough ground.” The Tribunal notes, however, that in a letter dated 8 May 2009 (T62 – see paragraph 34 above), certifying that the applicant was “fit to return to work to his pre-injury employment”, Dr Boyd stated that, notwithstanding the applicant’s degenerative spinal condition, he had been “able to engage in his duties in delivering post, using a motorcycle for the last 9 nine year, without having problems” (sic) (emphasis added). That statement, it seems to the Tribunal, is inconsistent with Dr Boyd’s statement, in his abovementioned letter of 2 February 2009, that the applicant had, on 12 November 2007, complained to him of back pain being “aggravated by using an old motorcycle to cover his round which was over rough ground”.
The Tribunal also notes Dr Boyd’s letter of 31 March 2010 (Exhibit A3 – see paragraph 35 above) which states:
“ I have been seeing Eddy as a patient since Jan 06, although he has been a patient of the practice since 1997. On consulting his records he has not been seen with chronic back pains over that period.”
Although the Tribunal accepts that the applicant did not suffer from “chronic” back pain prior to 5 November 2007, it is clear from the abovementioned clinical notes of Dr Boyd and other general practitioners that the applicant attended the Wellington Surgery complaining of back pain on several occasions prior to 5 November 2007, including 14, 21 September 1999, 6 September 2005, 25 May 2007, 13 June 2007 and 30 October 2007.
The Tribunal attaches substantial weight to the abovementioned relevant contemporaneous clinical notes of Dr Boyd and the other general practitioners at Wellington Surgery. Dr Boyd’s notes in respect of the applicant’s consecutive consultations on 30 October 2007 and 12 November 2007 indicate that on 30 October 2007 the applicant was complaining of back pain and on 12 November 2007 he was complaining of ongoing back pain which had not been relieved by prescribed medication. Although the clinical note for 12 November 2007 refers to “… Post Office, changed rounds, ? bike not good”, it makes no reference to any aggravation or exacerbation of the applicant’s back pain having occurred on 5 November 2007 or at any time since the previous consultation on 30 October 2007. As regards Dr Boyd’s letter of 2 February 2009, the Tribunal notes that, at the consultation on 12 November 2007, Dr Boyd issued a general medical certificate certifying the applicant as unfit for work from 13 November 2007 to 13 December 2007 (T16) and “put him on sick leave” rather than issue a workers’ compensation medical certificate. As previously noted, Dr Boyd’s letter of 2 February 2009, elaborating on the consultation of 12 November 2007, was written shortly before the applicant completed and lodged his claim for workers’ compensation for a back injury said by him to have been sustained on 5 November 2007. The Tribunal does not attach significant weight to Dr Boyd’s letter of 2 February 2009.
Mr Gabriel Lee
Mr Lee, Neurosurgeon, first saw the applicant on 23 January 2008 following a referral by Dr Boyd. In his report to Dr Boyd of 23 January 2008 (Exhibit R10 – set out in paragraph 26 above), Mr Lee summarised (in the 2^nd paragraph) the history he took from the applicant but he did not express any opinion regarding the suffering by the applicant of an injury to his lumbar spine or an aggravation of his pre-existing lumbar spinal condition on or about 5 November 2007; nor, therefore, did he express any opinion regarding the causation of any such injury or aggravation.
In a follow-up report to Dr Boyd, dated 14 February 2008 (Exhibit R12 – set out in paragraph 28 above), Mr Lee commented on the MRI scan of 14 February 2008, confirmed that there are “extensive degenerative changes throughout [the applicant’s] lumbosacral spine”, and opined that:
“ a significant proportion of his current symptoms may be attributed to the S1 radiculopathy as a result of compromise of the nerve root in the right L5/S1 lateral recess.”
Given that M Lee’s reports do not contain expressions of his opinions regarding any of the matters which the Tribunal is required to determine for the purposes of s 14(1) of the SRC Act, the Tribunal derives little assistance from those reports. The Tribunal notes, furthermore, that Mr Lee was not called as a witness in this proceeding.
Mr Bryant Stokes
Mr Stokes, Neurosurgeon, first saw the applicant on 17 June 2009, following a referral by Dr Boyd, and he subsequently provided a report to Dr Boyd on that date (T81 – set out in paragraph 29 above). He next saw the applicant on 21 April 2010 at the request of the respondent, for the purpose of assessing the applicant’s fitness for work, and he subsequently provided a report to the respondent on that date (T135 – set out in paragraph 30 above).
In his report of 17 June 2009 Mr Stokes relevantly set out the history he took from the applicant as follows:
“ …
… He states that since his early 20s he has had some interscapular muscular pain particularly when he is doing rotatory movements with his arms and upper thorax such as in whippersnipping. He has had no low back pain. In early 2007 he was on a motorcycle in the course of his employment and he put down his left heel to steady the motorcycle and his foot slipped sideways under him on gravel and he twisted his back and had some slight degree of pain. He went to see his general practitioner and had a CT scan which showed some degenerative changes in his spine. He had no time off work.
In July 2007 he had a month off work for stress leave and he then returned to work for some six weeks and continued to do his normal work without any trouble. He went on a month’s recreational leave. He returned to work on the 5^th November 2007 and was riding a motorcycle which appeared to be uncomfortable and poorly sprung and he started to develop low back pain. He was put off work for approximately a month and then did come to see Mr Gabriel Lee, Neurosurgeon. At that time he had low back pain and numbness in the right leg and in the second to fourth toes in that right leg. He was advised to consider an operation as an MRI scan at that time showed an L5/S1 disc protrusion. He decided not to undertake that and spent the next several months rehabilitating himself. As of now he has no symptoms whatsoever in his back nor in his right leg.
He returned to work on the 22^nd December 2008 and has continued to work satisfactorily but he has been restricted to some two hours on a motorcycle per day.”
He went on to express the following opinions:
“ The MRI scan has shown the degenerative changes at L5/S1 and also at L4/5 and at L3/4.
These changes are obviously of longstanding. I believe the change at L5/S1 that was responsible for his symptoms occurred after riding the poorly sprung motorcycle and that these have now settled. I can see no physical reason for him not continuing in the employment at a full capacity as a postal delivery worker. I do not anticipate further intervention is necessary.”
In his report of 21 April 2010 Mr Stokes reiterated the opinion expressed by him in his report of 17 June 2009 regarding the applicant’s fitness for work.
As regards Mr Stokes’ opinion, as expressed in his report of 17 June 2009, that “the change at L5/S1 that was responsible for [the applicant’s] symptoms occurred after riding the poorly sprung motorcycle” (on 5 November 2007), the Tribunal makes the following observations:
·Mr Stokes made no reference to the applicant’s having previously complained of similar symptoms, namely, back pain and paraesthesia in the right leg, on 6 September 2005 and 25 May 2007 (as recorded in the general practitioners’ clinical notes), and the Tribunal infers that he was unaware of that history;
·although Mr Stokes made a general reference to a CT scan in 2007 “which showed some degenerative changes in [the applicant’s] spine”, he did not mention that the CT scan of 7 June 2007 (T9 – set out in paragraph 14 above) showed (inter alia) a “right posterolateral disc protrusion at L5/S1 which, as Dr Bowles confirmed in his evidence, was similar to the finding at L5/S1 shown in the MRI scan of 14 February 2008.
It seems to the Tribunal that Mr Stokes’ opinion that “the change at L5/S1 that was responsible for [the applicant’s] symptoms occurred after riding the poorly sprung motorcycle” (on 5 November 2007) was based on a false understanding of both the applicant’s history regarding complaints of back pain and right leg paraesthesia prior to 5 November 2007, and the nature and extent of the degeneration at the L5/S1 level of the applicant’s lumbar spine prior to 5 November 2007. In the light of those considerations, the Tribunal regards that opinion as flawed and it does not accept it.
Findings and Conclusion
The Tribunal has serious reservations regarding the bona fides of the applicant in lodging the relevant claim for compensation on 13 February 2009 – some 15 months after the date (5 November 2007) on which he claimed that he suffered the back injury the subject of that claim for compensation. In para 31 of his witness statement, dated 10 March 2012, the applicant sought to explain that delay as follows:
“ I submitted my worked (sic) compensation claim form on the 14^th (sic) of February 2009. The reason I submitted the claim is because I became aware I was entitled to workers compensation as it was a work related injury and I found out that I had been set up at the NPF. At the time, I was not aware of any APC policies or procedures with regards to timeframes for reporting work incidents and I never made any claims without being asked to by the Postal Manager Lena Hinsley, she always brought a claim form to me when incidents arose and asked me to fill them in. Except on or after 5 November 2007.”
The applicant also sought to explain that delay in his oral evidence (see paragraphs 38–41 above). Having regard to the applicant’s prior history of lodging Incident Report forms and compensation claim forms with the respondent (see paragraph 40 above), the Tribunal regards his explanation for his 15-month delay in lodging the relevant forms in the present matter, namely:
·his lack of awareness of his entitlement to claim workers’ compensation and of the respondent’s “policies or procedures with regards to timeframes for reporting work incidents”;
·his practice “never” to make a claim “without being asked to by the Postal Manager Lena Hinsley”;
·Ms Hinsley’s failure to request him to complete and lodge claim forms in respect of 5 November 2007;
·Ms Hinsley’s failure to provide him with the necessary claim forms until he eventually asked her to do so;
as unconvincing. It seems to the Tribunal, having regard to other aspects of the applicant’s evidence, that what prompted him to lodge the relevant claim forms in February 2009 was his perception that Ms Hinsley and Mr Lewis had “conspired” to “set [him] up” (see paras 28, 31 and 74 of his witness statement, and paragraph 41 above) rather than his actually suffering a back injury, or experiencing a significant episode of back pain, in the course of riding a motorcycle in the performance of work duties on 5 November 2007. The Tribunal, furthermore, is not satisfied that the applicant experienced a significant episode of back pain in the course of riding a motorcycle in the performance of work duties on 5 November 2007.

On the basis of the CT scan report of 7 June 2007 (T9) and the MRI scan report of 14 February 2008 (Exhibit R11) and the evidence of Dr Michael Bowles, the Tribunal finds that the applicant did not suffer a change in the pathology, or a physiological change, in respect of his lumbar spine on 5 November 2007 (or, indeed, in the period from 7 June 2007 to 14 February 2008). Accordingly, the Tribunal finds that the applicant did not suffer:
·a physical “injury (other than a disease)”, within the meaning of para (b) of s 5A(1) of the SRC Act; or
·an “aggravation of a physical … injury (other than a disease)”, within the meaning of para (c) of s 5A(1) of the SRC Act;
in respect of his lumbar spine on 5 November 2007.
On the basis of the CT scan report of 7 June 2007 (T9), the Tribunal finds that the applicant was then suffering from “widespread degenerative changes” in his lumbar spine, including, at the L5/S1 level, “a right posterolateral disc protrusion [extending] into the right subarticular and proximal lateral recess” and involving “contact with the right S1 nerve”, being an “ailment” (as defined in s 4(1) of the SRC Act), within the meaning of s 5B(1) of the SRC Act.
On the basis of the MRI scan report of 14 February 2008 (Exhibit R11) and the evidence of Dr Michael Bowles, the Tribunal finds that the applicant did not suffer:
·a new or further “ailment”, within the meaning of para (a) of s 5B(1) of the SRC Act; or
·an “aggravation” of an “ailment”, namely, the pre-existing ailment in respect of his lumbar spine as described in the CT scan report of 7 June 2007, within the meaning of para (b) of s 5B(1) of the SRC Act;
in respect of his lumbar spine on 5 November 2007. Nor, the Tribunal finds, did the applicant suffer, on 5 November 2007, an ailment, or an aggravation of an ailment, “that was contributed to, to a significant degree, by” his employment by the respondent, within the meaning of s 5B(1) of the SRC Act.
Accordingly, the Tribunal finds that the applicant did not suffer:
·a “disease”; or
·an “injury (other than a disease)”; or
·an “aggravation of a physical … injury (other than a disease)”;
within the meaning of s 5A(1) of the SRC Act, in respect of his lumbar spine, on 5 November 2007.
The Tribunal concludes, therefore, that the applicant did not suffer an “injury” (within the meaning of s 14(1) of the SRC Act) to his back on 5 November 2007.
Decision
For the above reasons, the decision under review is affirmed.

I certify that the preceding 96 (ninety six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member

................[sgd D Brodie].....................
Administrative Assistant
Dated 18 May 2012

Dates of hearing 12-15 March 2012

Representative of the Applicant Self-represented

Counsel for the Respondent Mr P Jones

Solicitors for the Respondent Sparke Helmore

[2012] AATA 304

18 May 2012

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Standing

Compensatory Damages

Causation

Breach of Contract

Unconscionable Conduct

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/0288
Re	EDMUND SAULYS
APPLICANT
And	AUSTRALIAN POSTAL CORPORATION
RESPONDENT

Tribunal	Deputy President S D Hotop Dr J Chaney, Member
Date	18 May 2012
Place	Perth

· 14 September 1999:	“Fell off bicycle yesterday. Hurt (L) shoulder. … Also painful lower back … …”;
· 21 September 1999:	“Had some pain over (L) SI joint, worse when sneezed … shoulder pain resolving”;
· 6 September 2005:	“back strain ?disc prob as paraesthesia R thigh …”;
· 25 May 2007:	“back discomf + paraesthesia in R leg. …”;
· 13 June 2007:	“given CT sc report – 2 areas of possible nerve impingement L L3 and R SI …”;
· 30 October 2007:	“… back pain – deg spine - CT shows L5SI R impingement …”;
· 12 November 2007:	“ – no help for above employer – Post office, changed rounds, ? bike not good”. (Part of Exhibit R15)

Dates of hearing	12-15 March 2012
Representative of the Applicant	Self-represented
Counsel for the Respondent	Mr P Jones
Solicitors for the Respondent	Sparke Helmore