Eleftheriou and Australian Postal Corporation (Compensation)

Eleftheriou and Australian Postal Corporation (Compensation) [2017] AATA 1558 (15 September 2017)
Division:GENERAL DIVISION
File Numbers: 2015/0641; 2017/1165
Re:Antony Eleftheriou
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:15 September 2017
Place:Melbourne

The Tribunal affirms the decisions under review.
........................[sgd]................................................
Miss E A Shanahan, Member
COMPENSATION – claim for low back injury and pain – lumbar spinal spondylosis – pre-employment history of back pathology confirmed radiologically – failure to lodge initial incident report – issues as to credibility – decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Re Bingham and ASP Ship Management [1997] AATA 203
Re Wilson and Comcare [1996] AATA 862
REASONS FOR DECISION
Miss E A Shanahan, Member
15 September 2017

Mr Eleftheriou lodged two applications for review by this Tribunal. The first of these relates to a decision made in response to a claim lodged on 3 October 2014 for a back injury. The claim was denied by a delegate on 24 November 2014 and that decision was affirmed on 19 December 2014. The application for review by the Administrative Appeals Tribunal (AAT) was lodged on 12 February 2015 (2015/0641).
Mr Eleftheriou lodged a further claim on 21 December 2016, this being for reconsideration of the 2014 decision in light of his reporting of an earlier incident of back pain on 2 July 2014, not then supported by an incident report. This claim was considered by a delegate and denied on 27 February 2017. The delegate’s decision was affirmed by a reconsideration delegate on 1 March 2017. On the same day Mr Eleftheriou lodged an application (2017/1165) to the AAT for review of this decision.
The hearing was conducted over three days in March 2017 and a further half day hearing took place on 22 June 2017. Mr Eleftheriou was represented by Mr Seymour, solicitor-advocate, instructed by Maurice Blackburn solicitors. Ms Ann McMahon of counsel, instructed by Clarke Legal solicitors, appeared for the respondent. The respondent provided the s 37 documentation as required by the Administrative Appeals Tribunal Act 1975 (Exhibit R1). Both parties tendered further exhibits a list of which is appended to this decision. Oral evidence was given by Mr Eleftheriou, Mr Michael Khan, Dr Vijay Navani, Mr Joe Axiak, Mr Frank Stranieri, Mr Kire Koteski, Associate Professor Peter Steadman (by telephone), Dr Tony Kostos and Mr Geoff Hosford and Mr John Meikle of Accident Analysis (Forensic Movement Analysts – Australasia).
BACKGROUND TO THE APPLICATION
Mr Eleftheriou, now aged 63, commenced work as a postal delivery officer in August 2006 with the Australian Postal Corporation (Australia Post). He delivered mail by motorbike from the St Albans Delivery Centre, working four to five hours per day in a permanent part-time capacity. He was not required to sort mail.
Prior to commencing work with Australia Post he completed a pre-employment health form in which he answered No to the question as to whether he had ever undergone an x-ray of his spine or any joints. His general practitioner’s records show that an x-ray of Mr Eleftheriou’s lumbosacral spine and both hips was performed on 13 September 2002.
Prior to joining Australia Post, Mr Eleftheriou worked first as a fitter and turner (six years), a production manager in a steel company he having obtained a degree in marketing management (six years), as a builder (six years), as a salesman with Bunnings Warehouse (five years), and as a shop assistant in his family’s delicatessen. He also worked as a ‘DJ’ for 25 years and has taught both class and private student lessons in dancing until eight years ago. He taught swing and rock and roll dancing.
Mr Eleftheriou rode a pushbike to and from work but in his own time he rode motorbikes. He owned two Harley-Davidsons, but one was recently sold. He drives a twin cab utility vehicle, spends many weekends at his five acre property with a cabin on site or goes camping. He now uses a caravan rather than a campervan. Since his claimed back injury in September 2014 he has not worked for Australia Post, has undertaken only five DJ events at which he has had help lifting equipment and very occasionally takes his partner dancing. He does minor repairs, described as tinkering on his hot-rod which he enters in car shows three times a year. He rides a mountain bike for distances of up to five kilometres every couple of weeks.
While certified to return to work on light duties since March 2016, Mr Eleftheriou claims his manager has said that none is available.
Mr Eleftheriou in both his statement and his evidence before the Tribunal at hearing claimed he first injured his back on 30 June 2014, when delivering mail in Moonstone Avenue, St Albans. He said this area is newly established and only one side of the road has a footpath. He was delivering mail on the grassed side, pulled up to a mailbox and put his left foot to the ground. His foot slipped and his motorbike started to fall. He tried to halt the fall and in doing so took the full weight of the motorbike and instantly developed sharp lower back pain. In response he dropped the motorbike and had difficulty in placing it in the upright position. He did however return to the delivery centre without assistance.
Mr Eleftheriou says he told Richard Camilleri, Assistant Manager and Frank Stranieri, Manager, of the injury and discussed with them the filing of an incident report. He did not proceed to do so as he was advised it would be easier for everyone if he did not. Mr Stranieri took Mr Eleftheriou home with the pushbike in the back of the Australia Post utility. Mr Eleftheriou said he saw his general practitioner Dr Navani the following day, obtained a certificate for sick leave, rested at home and returned to work on 14 July 2014. On return he worked his normal hours performing his normal duties.
Mr Eleftheriou agreed that sometime in August 2014 he had an argument with his team leader Mr Kire Koteski regarding a request that he perform more hours of work. Mr Eleftheriou claims that he refused to do so as he wished to protect his back from further injury.
On 19 September 2014 while delivering mail in Percy Street, St Albans he stopped at a block of flats to deliver the mail. He put his left foot to the ground and it slipped on what was thought to be a large round palm tree seed (Exhibit R2). He dropped the bike having again experienced sharp pain in his back attempting to hold the bike vertically. He completed the round and returned to the delivery centre to report to Joe Axiak.
Mr Eleftheriou lodged an Incident Report Form signed and dated 23 September 2014. This was handwritten and described the events of 19 September 2014. There are several corrections to his entries and also several addendums to the details. In the Incident Report Form Mr Eleftheriou states that his main injury is possible soft tissue/disc damage, await CAT scan. He denies this was an aggravation of a previous injury or illness. While the report form is eight pages in length, Mr Eleftheriou only filled in five of these.
In his evidence before the Tribunal, Mr Eleftheriou claimed that the statements made by his supervisors Mr Stranieri and his team leader Mr Koteski were untrue and something they had made up.
Mr Eleftheriou has been treated and investigated exclusively by his general practitioner Dr Navani. He was not seen by a specialist for either diagnosis or treatment, but has seen several for independent medical expert opinions.
EVIDENCE BEFORE THE TRIBUNAL
Mr Eleftheriou
Mr Eleftheriou’s evidence is considered above. In his oral evidence he provided detailed descriptions of the angles of the motorbike to the ground and to the letter boxes when he pulled up at the premises in St Albans, the distance his left foot was from the motorbike and mailboxes and his estimates of distances around various obstacles.
Dr Vijay Navani
Dr Navani provided a report dated 30 February 2017. His clinical records relating to Mr Eleftheriou were summonsed. While he had no recollection of treating Mr Eleftheriou for a back condition in 2002, his clinical notes and the reported x-ray changes were not, in his opinion, of great significance. He had advised exercise and mobilisation and prescribed the anti-inflammatory medication Celebrex. Dr Navani confirmed he saw Mr Eleftheriou on 1 July 2014 and recorded that he had slipped on a wet floor at work, following which he had developed pain and tenderness in his lower back. Dr Navani indicated that this pain was in the lower back to the left of the spine. On this occasion he referred Mr Eleftheriou for physiotherapy, to a chiropractor for treatment and certified him as unfit for work for several days.
Dr Navani saw Mr Eleftheriou for unrelated matters between mid-July and 22 September 2014. It was not until September that Mr Eleftheriou re-presented with left para-spinal pain attributed to a motorbike incident when his foot slipped on a seed and he lost control of his motorbike. On this occasion a CT scan was ordered. In relation to both events Dr Navani, in answer to a direct question from the Tribunal, localised Mr Eleftheriou’s pain to his left sacroiliac joint. Dr Navani interpreted the CT of the lumbosacral spine findings:
He has got a couple of disc damages, which is actually protruding out and coming toward – closer to the nerve, causing inflammation. That, along with his narrowing of the canals, can become an issue.
When challenged by the Tribunal as to the presence of spinal canal stenosis he agreed that this was very minor.
Dr Navani said he had referred Mr Eleftheriou to a psychologist as he was not coping well with his pain, issues relating to work and the resulting frustration and anger. Dr Navani agreed that he had certified Mr Eleftheriou unfit for work until early 2016 and thereafter declared him fit for restricted duties and hours. In September 2016 this was altered to restricted duties on full hours, meaning his full part-time hours. In September 2016 Mr Eleftheriou was said to be coping well and was regarded as fit to resume light duties. Dr Navani did not believe motorbike deliveries should be reintroduced except for a trial to ascertain if he could cope with two hours per day and if so, this could be increased.
Dr Navani was of the opinion that the only treatment necessary at this stage was for Mr Eleftheriou to continue his own exercise regime and access physiotherapy or chiropractic treatment as required.
In cross-examination by Ms McMahon, Dr Navani agreed that on 8 July 2014 he had recorded Mr Eleftheriou’s past history of osteoarthritis of the lumbar spine. While he could not recall the 2002 episode, he believed he had created this entry so that Mr Eleftheriou could obtain treatment under a Medicare care plan for chronic conditions. He described this as being an entry just again to fit into the template. Despite having referred Mr Eleftheriou to a chiropractor and a physiotherapist in 2014 Dr Navani had not received any feedback from either as to treatment given and therefore his records were silent on the response to treatment.
In relation the 19 September 2014 event Dr Navani localised Mr Eleftheriou’s pain and tenderness to the left sacroiliac joint with some radiation to the left buttock and upper thigh. Dr Navani agreed that he had not physically examined Mr Eleftheriou when he attended on 22 September 2014. He had prescribed Celebrex and Panadeine Forte and arranged for a CT scan of the lumbosacral spine.
When seen a week later Dr Navani did examine Mr Eleftheriou and recorded that he had stiffness and reduced mobility of his lumbar spine. While he had made an entry on 3 October 2014 that Mr Eleftheriou had developed left sciatica he was unable to justify this diagnosis on clinical grounds. When questioned as to what movements were actually restricted, Dr Navani said it was flexion of the lumbar spine and left lateral flexion. He agreed he had never recorded this in his notes.
Dr Navani regarded Mr Eleftheriou as having been stable and improved over the past 12 or more months. He had in early 2016 certified him fit to work 12 hours a week and then in September 2016, 20 hours per week. Despite this change in hours he said there had been no change whatsoever in the symptoms or signs. Dr Navani was aware that, at the time, Australia Post was not able to provide light duties for the hours as certified. Dr Navani had no knowledge of the properties owned by Mr Eleftheriou and his personal maintenance of these.
Dr Navani was limited in the evidence he could give as he did not have access to all of his notes. He undertook to check with his staff to ascertain if there were any records that had not been provided.
Mr Michael Khan
Mr Khan saw Mr Eleftheriou on 4 August 2015 for the purpose of providing an independent medical expert assessment and report. Mr Khan obtained the known work history and description of the incidents of the 30 June 2014 and 19 September 2014. He had not been provided with any clinical history regarding the 2002 back pain and x-ray results.
At the time of consultation Mr Khan recorded that Mr Eleftheriou described his symptoms as being chronic back pain which interrupted his sleep, stiffness of his back and said the pain was particularly severe on the right hand side of the back and above the right iliac fossa. He also complained of numbness in the front of his right thigh. Bending his neck was said to give rise to pain in the lower back.
Mr Eleftheriou was taking Panadeine Forte as needed and the anti-inflammatory medication Mobic. Physical examination revealed stiffness of the thoraco-lumbar spine, reduced forward flexion and extension, normal straight leg raising on both sides and no evidence of nerve root compromise or neurological deficit except for the complaint of numbness on the front of the right thigh from the groin to just above the knee. During the physical examination Mr Eleftheriou also complained of pain in his back when he elevated his arms above his head.
Mr Khan noted the findings of the CT scan of the lumbar spine showing a left sided paracentral L1/2 minimal disc prolapse and multilevel facet joint arthropathy.
Mr Khan diagnosed severe musculoskeletal ligamentous injury to Mr Eleftheriou’s lumbar spine with a flare-up of pre-existing disc degeneration and facet joint arthropathy. This he said, resulted in a residual partial permanent disability which had now stabilised. He recommended further investigation in particular magnetic resonance imaging (MRI). Mr Khan concluded that Mr Eleftheriou’s employment had been a significant contributing factor to the onset of the condition and that he required ongoing medical treatment by his general practitioner and perhaps a pain management service. He was however of the opinion that there were associated non-organic symptoms present.
In his evidence before the Tribunal, Mr Khan affirmed his opinion but corrected some errors in his report. In particular his reference to symptoms of numbness in the right leg he said should have read the left leg. Mr Khan expanded on what he meant by non-organic signs and symptoms an example of which was his finding on examination of Mr Eleftheriou’s lumbar spinal range of movement that flexion was relatively preserved at 80 degrees but extension markedly decreased to 5 degrees. Mr Khan said this was an inconsistent physical finding that he could not explain on an anatomical or physiological basis. Likewise Mr Eleftheriou’s description of an increase in pain in his lumbar spine when he raised his arms and radiation of the pain from the lumbar spine up to the cervical region. These were non-anatomical and thus non-organic in origin.
Mr Khan’s evidence completed the oral evidence for the applicant.
Mr Frank Stranieri
Mr Stranieri is the Facility Manager of the Somerton Delivery Centre and has worked for Australia Post for 20 years. He provided a statement dated 10 January 2017. Mr Stranieri was the manager at the St Albans Delivery Centre from 2013 until 2015. In his statement Mr Stranieri acknowledged that he had completed the incident report form of 25 September 2014 and had signed Mr Eleftheriou’s claim for rehabilitation and compensation dated 29 September 2014. He said he had been advised on 19 September 2014 that Mr Eleftheriou had told his supervisor, Mr Axiak, that he had a sore back.
On 22 September 2014 Mr Stranieri, having been made aware that Mr Eleftheriou was taking sick leave, telephoned him to ask how he was progressing. Apparently Mr Eleftheriou made no mention of a work injury and said he was waiting to see his doctor. He had later informed the employer that he was to have a CT scan of his back.
On 23 September 2014, Mr Stranieri was informed by Mr Axiak that Mr Eleftheriou was intending to claim that his sore back was work related. Mr Stranieri did not support Mr Eleftheriou’s claim given the delay in notification that the injury was work related. Nor had Mr Eleftheriou mentioned his foot had slipped on a seed in the course of his mail delivery duties. Mr Stranieri, in order to complete the Root Cause Analysis document, attended the site of the claimed incident but found no evidence of seeds or pips in the location.
Mr Stranieri attempted on several occasions to facilitate a return to work by Mr Eleftheriou. Mr Eleftheriou persisted in his opinion that there was nothing he could do as he was unable to work. Mr Stranieri confirmed that on 30 June 2014 he drove Mr Eleftheriou home after he reported back soreness. At that time Mr Eleftheriou did not claim the soreness was work related.
In his evidence before the Tribunal, Mr Stranieri outlined the work of employees known as Dodos (delivery only, delivery officers) who do not sort mail. Mr Stranieri said Mr Eleftheriou worked on Round 9, with approximately 1,200 delivery points, this being a standard full-time round for a four hour delivery.
Mr Stranieri gave evidence that between June 2014 and September 2014 there were various meetings of the union, in particular health and safety representatives, considering the cost effectiveness of Dodos and their replacement by full time staff. These considerations were being made on a cost effectiveness basis. The major problem arose from the Dodo’s start time of 10:00AM as any failure to arrive did not allow for the contacting of a replacement delivery officer. While there had been talk of abolishing the role of Dodos this has not occurred. The St Albans facility had two Dodos.
Mr Stranieri said Mr Eleftheriou complained frequently, particularly about what is called dividing. This relates to the division of extra duties to delivery officers when someone is away or unavailable. At the time there were 58 delivery officer places funded at the centre but only 54 were occupied. As a result both full-timers and part-timers were frequently required to undertake additional overtime duties. In general the part-time workers were the ones given first choice in filling any vacancy.
Mr Stranieri addressed the training of postal delivery officers and the manner in which they are to deliver mail. This included how close they should get to the letter boxes to avoid the need to overreach and to limit damage to mailboxes. They were instructed regarding riding on slippery surfaces, dry surfaces, going uphill etc. This instruction is provided in-house by Australia Post. Mr Stranieri confirmed the contents of his statement. He also confirmed that all employees were advised of the difference between sick leave and work related injury applications, although it is noted that in his evidence Mr Eleftheriou stated he had not attended these information sessions.
Mr Seymour conducted a rigorous cross-examination of Mr Stranieri. In particular he addressed the report entitled Root Cause Analysis which is said to be a summary of the facts gathered about the claim. There were clearly blanks in this report. Mr Stranieri explained these blanks were the result of the form being universal, and some of it was not applicable to all areas of Australia Post. He agreed that the headings equipment involved had not mentioned a motorbike nor had the entry of a registration number been completed. Mr Stranieri said those areas were not completed because there was a second part to the survey sent to ‘Innovation’ to check. Mr Stranieri agreed that he had not taken photos of all of the area of the alleged incident and had no knowledge of who had taken and produced the picture of the palm tree seed. According to Ms McMahon that had been taken by the applicant’s solicitors. Mr Stranieri said he had taken photographs of the site about five or six days after the event, given the delay in the incident being reported.

Mr Stranieri could not recall exactly the events and timing but he believed he had completed the Root Analysis form as a result of the information provided by Mr Eleftheriou and Mr Axiak. The actual original incident report completed by Mr Eleftheriou was not available to either party or the Tribunal. Ms McMahon undertook to search and produce such a document if it existed.
Mr Stranieri explained that as Mr Eleftheriou had lodged a normal sick leave form covering his June 2014 episode of back pain described as a sciatic nerve condition, no question of compensation had been raised in relation to this episode. In the intervening months there had been no further complaints of back pain to Mr Stranieri’s knowledge. In response to a question from the Tribunal, Mr Stranieri confirmed that each individual employed at the centre had a personal individual file that recorded all their leave. Any certificates for sick leave or work related injuries were contained in that file. According to Mr Stranieri the onus is on the worker to inform Australia Post if any illness or injury they have is work related. Where no such advice is given by the worker, it is assumed that it is not work related unless the doctor provides a certificate to the contrary.
Mr Stranieri was not in the position to confirm whether Mr Eleftheriou had attended any induction sessions when he commenced with Australia Post or the tool box talks wherein both of these worker education systems advise them to fill out a P400 form (incident form) if they had a work related injury.
Mr Joseph Axiak
Mr Axiak has been employed by Australia Post for 32 years and at the time of giving his evidence was employed at the St Albans Delivery Centre. He is what is known as a Postal Delivery Co-ordinator Grade 2, controlling a group of 24 people. He organised the daily rounds, arranged cover for rounds where postal delivery officers were unable to attend, supervised their checking of mail sorting and the motorbikes and finally dealt with any problems or issues they may experience while delivering mail. Mr Axiak provided a statement dated 10 January 2017 (Exhibit R6).
In his statement Mr Axiak said that on 19 September 2014 he was the acting Operations Manager. Mr Eleftheriou reported to him on completing his delivery round and said he had a sore back and may not be in on the following Monday. He requested Mr Axiak make a diary note of this report. The diary note is contained in the T‑documents (T10). Mr Eleftheriou, it was said, did not mention any incident occurring during his delivery round leading to back pain. Mr Eleftheriou had advised on the morning of 22 September 2014 that he would not be attending work, affirmed that he was taking sick leave and again did not mention any incident. The details of this conversation were diarised (T18).
On 23 September 2014 Mr Axiak was advised by telephone from a medical centre that Mr Eleftheriou would be claiming a work related injury and that the necessary paperwork would be forwarded shortly. Mr Axiak spoke with Mr Eleftheriou by telephone and he later dropped off the certificates from his doctor. Mr Axiak asked if he had filled out an incident report to which the answer was No as he said he was unaware that one existed and according to Mr Axiak, Mr Eleftheriou said he hadn’t realised his back pain was work related until he had seen his doctor.
In his oral evidence Mr Axiak confirmed the content of his written statement. He was able to recall that at the time Mr Eleftheriou presented at his office on 19 September 2014, two other employees were present. These were Kire Koteski, Mr Eleftheriou’s immediate supervisor and another team leader, Vince Aquilina. He agreed that many staff were in the office at the time, it being 2.45pm on a Friday afternoon. Mr Axiak outlined the normal routine instituted when an employee suffered a work related injury. None of this had been completed in Mr Eleftheriou’s case.
In cross-examination by Mr Seymour, Mr Axiak was referred to his diary entries of 12 September 2014. Mr Axiak conceded this was wrongly recorded, the date should have read 19 September 2014. Mr Axiak undertook to try and find the diary, the whereabouts of which were unknown. He said the diary had also recorded the phone call of 8:00AM on 22 September 2014 when Mr Eleftheriou notified him that he would not attend work that day as he was unwell. Similarly he diarised Mr Eleftheriou’s attendance on 23 September 2014 to deliver documentation from his general practitioner. He was not able to recall exactly when the incident report form (P400) was completed.
Ms McMahon then produced the handwritten P400 completed on 23 September 2014. This was tendered and admitted to evidence as Exhibit R5. Mr Axiak continued his evidence under cross-examination stating that Mr Eleftheriou had, in accordance with normal procedure, checked in and out of work on 23 September 2014, despite his presence being only to deliver the documents. As was normal practice he was paid for the entire day.
On 19 September 2014 Mr Axiak had contact with Mr Eleftheriou twice after he had returned from his mail delivery run. The first was when he returned to the bike shed and mentioned that his back was sore. The second occasion occurred some 20 minutes or so later when Mr Eleftheriou called at Mr Axiak’s desk and asked him to diarise the fact that he would not be in on Monday. Mr Axiak diarised both of these contacts. Mr Axiak denied that the office and centre had been extra busy on the particular day although there were numerous postal delivery officers in their large office space. He denied that the applicant had told him he hadn’t finished delivering all the mail on his round.
Mr Kire Koteski
Mr Koteski was the acting team leader at the relevant time in 2014. He confirmed Mr Eleftheriou’s duties were purely the delivery of mail by motorbike. He regarded Mr Eleftheriou as being an average worker who did not seek overtime.
Mr Koteski described his duties as spending approximately two hours per day in what was called the bike shed checking with the postal delivery officers that their motorbikes were in good condition and fit for use. He confirmed that he had no recollection of being involved in a heated conversation with Mr Eleftheriou in August 2014. He had however overheard discussions between Mr Eleftheriou and other postal delivery officers in relation to the content of his statement at T7, page 27. This discussion had arisen in the course of various deliberations relating to the possible abolition of Dodos. In his statement Mr Koteski claims to have overheard, in June or July 2014, certain discussions between Mr Eleftheriou and other delivery officers. Mr Koteski claims to have heard Mr Eleftheriou telling me and many P.D.Os [delivery officers] that he would claim for a back injury accentuated by a further, yet to come injury in order to obtain compensation prior to the abolition of Dodos.
Mr Koteski had diarised his version of these overheard discussions (T7). He was not able to produce his diary as he had left the St Albans Delivery Centre on 1 October 2014 and no longer had the diary in his possession. The report at T7 is not dated but Mr Koteski gave evidence that he believed it was made during the course of the week between Monday 15 and Friday 19 September 2014. These discussions had been denied by Mr Eleftheriou in his evidence.
Recall of Mr Stranieri
Mr Stranieri was recalled to address questions relating to the handwritten incident report admitted into evidence as Exhibit R5. It was suggested that this handwritten incident report completed by Mr Eleftheriou had been altered. Mr Stranieri said that all employees have full access to their file as required. This access is not monitored and therefore it was possible for any employee to change their incident report.
Associate Professor Steadman (orthopaedic surgeon)
Associate Professor Steadman had seen Mr Eleftheriou on 23 March 2016 and subsequently provided a report (Exhibit R8). He had obtained the history that Mr Eleftheriou’s motorbike had fallen to the ground between his legs on both incidents in June and September 2014. He was told the initial symptoms experienced by Mr Eleftheriou were paraesthesia in the left thigh and lower back pain. The paraesthesia had settled within three weeks but he continued to experience what he called a catching pain, described as sharp and stabbing pain when he bent over and then straightened up. In his report Professor Steadman described this as a bizarre symptom.
Professor Steadman considered the changes to be degenerative in nature, as reported in the radiological investigations, and that as it was a temporary aggravation it should have resolved within two weeks. He had found numerous inconsistencies on examination that brought into question any permanent change in the underlying pathology. In his evidence before the Tribunal he suggested that there was a temporary aggravation or exacerbation of the symptoms but no underlying pathological change.
He agreed with the opinions of Mr Khan and Dr Kostos (considered later) that there were many non-organic signs and these prevented him from making a definitive diagnosis given the inconsistency of the examination findings.
Dr Stewart (occupational physician)
Dr Stewart provided an opinion dated 4 October 2016 (Exhibit R9). He was asked to conduct a fitness for duty assessment. In his consultation with Mr Eleftheriou he found that the latter concentrated almost entirely on retirement issues and showed a low motivation to return to work in any capacity. He did agree that as suggested by the general practitioner he could return to work performing motorbike delivery duties for two hours per day and the other two hours of his employment could be spent in clerical duties.
Dr Stewart addressed the symptoms and signs present when he saw Mr Eleftheriou and noted there was abnormal pain behaviour. He believed that given the time Mr Eleftheriou had been off work there was further impaction on his motivation and as a result a return to work was most unlikely. However he would encourage him to do so as the more activities undertaken the better the long term result.
Dr Kostos (rheumatologist)
Dr Kostos saw Mr Eleftheriou on 20 April 2016 and subsequently provided a report (Exhibit R10). Dr Kostos viewed the CT scan of Mr Eleftheriou’s lumbosacral spine and interpreted it as showing pre-existing disc degeneration and osteoarthrosis of the facet joints but no localising changes sufficient to identify a specific site of his back pain.
Dr Kostos believed these changes were not caused or accelerated by employment. He also identified the presence of several non-organic signs such as pain arising from extension and simulated rotation, diffuse back tenderness, elevation of the arms giving rise to back pain and flexion of the neck also precipitating lower back pain. All of these he regarded as non-anatomical and therefore not organic in origin.
Dr Kostos was unaware that Mr Eleftheriou was still riding his one remaining Harley‑Davidson motorbike, still riding a mountain bike and had in the intervening two years done five DJ gigs. He had not been informed the treating general practitioner had certified Mr Eleftheriou fit for four hours work per day, two of which were to be riding of a motorbike.
Accident Analysis, Mr D Miekle and Mr L Hosford
At the resumed hearing of 22 June 2017 Mr Miekle and Mr Hosford gave concurrent evidence. They had provided very detailed reports dated 25 May 2016 in relation to the Percy Street and the Moonstone Avenue, St Albans incidents. The analysis was conducted from a detailed anatomical and biomechanical aspect and in particular the propensity for slippage on a seed and moist grass and the possibility of the motorbike falling between straddled legs as a result of such slippage.
The analysis considered the forces at play with several variables such as the distance from the mail box, the distance between the left foot and the mail box, the angle of the handlebars with respect to the mail boxes, the wearing of and state of the Rossi boots issued to all delivery offices, slip resistance of these boots and how speed variations would impact on other variables. Numerous photographs were taken over both routes to the sites of the claimed incidents these being reconstructed by a postal delivery officer riding the same variety of motorbike as did Mr Eleftheriou.
The accident analysis team filmed an experienced Australia Post officer delivering letters at the two sites according to their training and normal practice. These showed that tilt of the motorbike by six degrees from the vertical was the normal position for delivering mail and when tilted to this angle the left handlebar grip was 30 centimetres from the brick pier, which contained multiple post boxes for an apartment block.
In their evidence Mr Miekle and Mr Hosford agreed that there had been a delay of 18 months between the events occurring and their investigation taking place. It is noted that this delay was due to Mr Eleftheriou not filing a claim for the Moonstone Avenue incident until 13 months after the event. The experts tested various forces applying to a rider, depending on distance between the mail box and the rider’s left foot. If the handlebars were 30 centimetres from the mail box pier and the rider’s left foot 10 centimetres from the pier, no slippage could occur. If the bike fell as described by Mr Eleftheriou, the handlebar and saddlebag would contact the pier and prevent it from falling. Both experts rejected any proposition that the bike could fall between the rider’s legs or that a Rossi boot, even if the tread was warn to half its normal height (4.5 millimetres), would slip. It was said the weight of the panniers did not affect the calculations unless the rider had accelerated as they approached the mail box.
In cross-examination various scenarios with respect to distance from mail boxes were posed but as the average male reach was one metre Mr Miekle opined that there was no need to tilt the bike, even if it was 60 centimetres from the pier, although he admitted that the greater the tilt the greater the weight and force needed to keep the bike upright. Different forces were postulated in relation to the state of a furrow between the driveway and the mail boxes at the Moonstone address, particularly given the 18 month interval in reporting. The experts admitted that this was an unknown variable however they did not believe it would have a significant effect impacting on their opinion.
RELEVANT LEGISLATION
The relevant legislation is contained at s 4 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), which defines and injury and an ailment as follows:
4 Interpretation
(1)In this Act, unless the contrary intention appears:
...
injury has the meaning given by section 5A.
...
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 5A and 5B address injuries and ailments to a greater degree and state:
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.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5BDefinition 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.
…
7 Provisions relating to diseases
(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Section 14 provides for liability for compensation as a result of an injury causing incapacity for work or impairment. It states:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self inflicted, unless the injury results in death, or serious and permanent impairment.
Notice of the injury is to be provided by the employee to the employer as follows:
53 Notice of injury or loss of, or damage to, property
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury; or ...
Where notice of an injury has been delayed s 53(3)(c) may be attracted:
(3)Where:
...
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
SUBMISSIONS
Ms McMahon
Ms McMahon identified the issues before the Tribunal as being whether there was an injury to Mr Eleftheriou occurring in the course of, or arising out of his employment and submitted there was no such event or in the alternative that he had suffered an aggravation of a pre-existing condition but with no evidence that this involved a significant contribution arising from his employment. She drew the Tribunal’s attention to the two and a half year delay in reporting the claimed incident of 30 June 2014, this delay being severely prejudicial to the respondent as delineated in s 53 of the SRC Act.

Ms McMahon identified the most important factor as being Mr Eleftheriou’s questionable credit. The Tribunal agrees this is a prominent issue in this matter. She submitted that he had given conflicting evidence and it was clear that after both claimed incidents he had ridden his Australia Post motorbike back to the delivery centre, despite claiming to be injured. He claimed he had no knowledge of incident report forms, known as P400s, but had previously claimed a shoulder injury when he fell off the bike.
While Mr Eleftheriou denied the content of these conversations, Mr Kire Koteski had recorded their content. Mr Eleftheriou had informed his co-workers that if he was forced to perform other than Dodo duties he would complain of work related aggravation of a back pain injury, seek workers’ compensation and continue to do so until Australia Post provided him with a redundancy package or compensation.
Ms McMahon addressed the medical records and reports submitting that all of the reporting experts had found evidence of non-organic symptoms and signs. Additionally, no MRI had been performed nor had expert opinion been sought by the general practitioner. Mr Eleftheriou’s claim that he had only performed one DJ event since he ceased work was rescinded when he gave evidence that he had done so on five occasions. Similarly, his activity level was relatively high indicating that he had a capacity for work as certified by his general practitioner in November 2016, albeit for two hours of motorbike riding and two hours of sorting.
Ms McMahon addressed in more detail the general practitioner’s records and contended that the episode of back pain in 2002, although described as arising in the right hip and the right sacroiliac joint had been investigated and revealed the presence of degenerative lumbar sacral spinal disease. Treatment with anti-inflammatory medication had been provided.
It was to be noted that the history given to Dr Navani on 1 July 2014 was that Mr Eleftheriou had slipped on a wet floor at work, not on a grass verge while delivering mail. And at that time his back pain was localised to the left sacroiliac joint. Dr Navani’s clinical notes had not recorded midline lumbar spinal pain until December 2014.
Mr Seymour
Mr Seymour identified the same issues as those indicated by Ms McMahon and submitted that both incidents were injuries arising from or in the course of employment and as such were not subject to s 7(7) of the SRC Act. He conceded that there was documented evidence of degenerative lumbo-spinal disease in 2002 but contended that Mr Eleftheriou’s failure to declare this in his pre-employment declaration was careless not wilful. He referred to the decision in Re Wilson and Comcare [1996] AATA 862 which considered the concept of carelessness and wilfulness.
With respect to the s 53 requirements relating to the reporting of incidents Mr Seymour submitted that Mr Eleftheriou had told Mr Camilleri of his sore back and its relationship to work on 30 June 2014 and Mr Camilleri had advised him not to lodge a work cover claim. Mr Seymour submitted that Mr Camilleri should have been called to give evidence and the respondent had chosen not to do so. Similarly, Mr Seymour contended that neither Mr Axiak nor Mr Koteski had been able to produce their work diaries to confirm the evidence they had given and Mr Eleftheriou strongly denied the content of Mr Koteski’s report that he had devised a plan to obtain workers’ compensation.
Should the Tribunal find that Mr Eleftheriou had suffered an aggravation of a pre-existing condition as provided in s 5B of the SRC Act, Mr Seymour contended that employment had made a significant contribution to Mr Eleftheriou’s incapacity for work.
TRIBUNAL’S DELIBERATIONS
The Tribunal agrees that the issues are whether Mr Eleftheriou has suffered an injury arising out of or in the course of his work or alternatively has suffered an aggravation of a pre-existing condition, the aggravation being significantly contributed to by his employment.
The evidence before the Tribunal is conflicting, not only in terms of the medical evidence and expert reports but also in terms of the evidence relating to the claimed incidents causing back pain, which at times is stated to have been localised to the left sacroiliac joint and at times to the right sacroiliac joint.
The Tribunal also finds, as submitted by Ms McMahon, that Mr Eleftheriou’s credibility is dubious, at best. His explanations as to why he had not filled in incident reports in relation to the 30 June 2014 episode are unacceptable, given his past experience with workers’ compensation claims. The delay in lodging the two and a half years after the incident does not meet the requirements of s 53 of the Act and is prejudicial to the Respondent having had a major impact in delaying the analysis of both incidents.
Dr Navani’s evidence and his clinical records variably cite the localisation of the pain from right in 2002 to left sacroiliac joint in 2014 and from late 2014 he recorded the pain as being midline, spinal and associated with local tenderness. At no time did he quantitate any restriction of the range of movement of Mr Eleftheriou’s lumbosacral spine, nor did he perform any neurological examination. Despite having entered a diagnosis of left sciatica in the clinical notes of 3 October 2014, he rescinded this diagnosis in his evidence before the Tribunal.
From April 2015 until June 2016 the clinical entries in these records in relation to the physical findings are identically worded and state all movements painful, tender lower back, reflexes normal. Despite these findings he was certified fit to resume work for initially 15 hours per week and then 20 hours per week as of late 2016.
The CT findings of the examination undertaken on 23 September 2014 reveal facet joint changes which may have explained his symptomatology but do not reveal any nerve root compression. The report suggests that any nerve root compression due to foraminal narrowing would be on the right L5 exit nerve not the left.
The expert independent medical opinions provided to the Tribunal all report the presence of non-organic symptomatology and signs.
Mr Eleftheriou’s actual day to day activities have been described and given his age it appears he copes well with all the activities of daily living, rides a Harley‑Davidson, drives and tinkers with a hot-rod car and cycles up to five kilometres every fortnight on a mountain bike. He manages the maintenance of his investment property and his five acre country weekender. He is however convinced he is unable to work.
His general practitioner and the four reporting independent experts were asked to assess his capacity to work. In March 2016, Dr Navani certified him fit to work 15 hours per week and later that year his normal 20 hours per week but with less motorbike delivery activities. Mr Khan considered him partially incapacitated but able to work with restrictions. Dr Stewart found him able to perform clerical work of an administrative nature, he having considerable experience in that field. However as Mr Eleftheriou was completely unmotivated it was thought unlikely that he would return to work. Associate Professor Steadman believed Mr Eleftheriou should recover within a period of 12 weeks and Dr Kostos was unable to provide an opinion as to incapacity because of the presence of numerous non-physical symptoms and signs.
As submitted by Ms McMahon Mr Eleftheriou’s credit is very much in question. His evidence has varied over a period of two and a half years and the evidence given before the Tribunal was contrary to some of the content of his statement. Based on their appearances before the Tribunal, the Tribunal found Mr Koteski a truthful witness and is unable to accept the truthfulness of Mr Eleftheriou’s denial of the discussions relating to his intention to obtain a redundancy package or payout by claiming a future work related injury.
Based on the medical evidence provided, including the expert opinions, the Tribunal decides that Mr Eleftheriou’s lower back pain is an ailment and was pre-existing and thus any work related symptomology would be potentially an aggravation of this ailment. There is well documented evidence that he had degenerative osteoarthritis of his lumbosacral spine as long ago as 2002. While this may not have been symptomatic in the years between 2002 and 2014 this is a common history given before the Tribunal as asymptomatic spondylosis has been documented in the medical literature for decades.
The other question to be addressed is whether any aspects of his employment contributed to this ailment to a significant degree. Based on the medical opinions and the reported findings of medical signs which were repeatedly classified by all four specialists as being non-organic, as they were non-anatomical, the Tribunal decides there is no evidence to support a finding of a significant contribution to Mr Eleftheriou’s long-standing lumbar spondylosis arising from his employment with Australia Post Corporation.
The Tribunal affirms the decisions under review.

I certify that the preceding 95 (ninety‑five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

.......................[sgd].................................................
Associate
Dated: 15 September 2017

Dates of hearing: 6 - 8 March 2017 and 22 June 2017

Solicitor-Advocate for the Applicant:

Mr Mark Seymour

Instructing Solicitor for the Applicant:

Ms Jessica May

Solicitors for the Applicant: Maurice Blackburn Lawyers

Counsel for the Respondent: Ms Ann McMahon

Advocate for the Respondent: Mr Paul Mentor

Solicitors for the Respondent: Clarke Legal
APPENDIX
Applicant
A1Statement of Anthony Eleftheriou dated 15.7.2015
A2Letter from Ms Hughes, case manager, reporting Dr Stewart's findings
dated 25.10.16

A3Pre-placement medical assessment dated 18.7.2006
A4Report of Mr Michael Khan dated 6.11.2015
A6Undated Root Cause Analysis/Gathering of Facts
A7Photograph of Palm tree

Respondent

R1T-documents
R2Photos of seed from palm tree
R3Perry Street report of Accident Analysis dated 29.5.2016
R4Moonlight Avenue report of Accident Analysis dated 29.5.2016
R5Incident report in respect of 19.9.14 incident dated 23.9.2014
R6Statement of Joe Axiak dated 10.1.2017
R7Statement of Frank Stranieri dated 10.1.2017
R8Report of Associate Professor Peter Steadman dated 31.3.2016
R9Report of Dr Timothy Stewart dated 4.10.2016
R10Report of Dr Tony Kostos dated 21.4.2016

[2017] AATA 1558

15 September 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Procedural Fairness

Appeal

Dates of hearing:	6 - 8 March 2017 and 22 June 2017
Solicitor-Advocate for the Applicant:	Mr Mark Seymour
Instructing Solicitor for the Applicant:	Ms Jessica May
Solicitors for the Applicant:	Maurice Blackburn Lawyers
Counsel for the Respondent:	Ms Ann McMahon
Advocate for the Respondent:	Mr Paul Mentor
Solicitors for the Respondent:	Clarke Legal