Evans and Australia Post
[2007] AATA 1149
•9 March 2007
Administrative Appeals Tribunal
WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1149
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/283
GENERAL ADMINISTRATIVE DIVISION ) N2006/1410 Re KELLY EVANS Applicant
And
AUSTRALIA POST
Respondent
DECISION
Tribunal Senior Member Mrs Josephine Kelly and Member Dr S.H. Toh Date of oral decision 9 March 2007
Date of written reasons 20 March 2007
PlaceSydney
Decision
In proceedings N2006/283, the reviewable decision dated 22 February 2006 is affirmed. That is, Australia Post is not liable for S1 nerve damage to the right leg.
In proceedings N2006/1410, the reviewable decision dated 29 August 2006 is affirmed. That is, Australia Post is not liable for permanent impairment for back and right leg.
[sgd] Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
WORKER’S COMPENSATION – claimed work related aggravation of underlying degenerative spinal condition – held no material contribution by work – reviewable decisions affirmed.
LEGISLATION
Sections 14, 24 and 27 Safety, Rehabilitation and Compensation Act (1988)
CASES
Comcare v Sahu-Khan [2007] FCA 15
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
Senior Member, Mrs Josephine Kelly and Member, Dr S.H. Toh
REASONS FOR DECISION
1. Mr Kelly Evans was employed by Australia Post, the Respondent, during two periods. The first was from 1980 until 1988, and then from 1992 to the present. He is seeking review of two decisions denying liability pursuant to section 14, and section 24 and 27 of the Safety, Rehabilitation and Compensation Act (1988) for “S1 nerve damage to right leg” and “nerve damage to leg/back”. The case for Mr Evans was that the nature of his work aggravated his underlying degenerative spinal condition. In the words of Dr Giblin, his work caused “Microtraumas” to his spine, which resulted in S1 nerve root irritation which became symptomatic in August 2005 and which has given rise to a permanent impairment.
2. The medical evidence of Dr Berry and Dr Pillemer was also relied upon.
Background
3. During his employment from 1980 to 1988 Mr Evans delivered mail on a pushbike. He said that he had no difficulty doing that. On 13 March 1988 he suffered an injury to the anterior cruciate ligament in his right knee while playing football. He had surgery. He left Australia Post but returned in May 1992. He began on a motorbike beat around Mount Pritchard, which he described as a “goat track” which was very hilly and very bumpy. He said that he had no problems with riding the bike and revved harder to go uphill. A lot of the streets had no constructed footpaths. He rode down 70 degree inclines and through tyre ruts. He spent 3.5 hours on the motorcycle.
4. In 1997 he had a laminectomy at C5/6 after a game of football. He has had other injuries to his left knee and ankle.
5. He suffered from a peri-anal abscess in July 2003 for which liability was accepted. There were ongoing problems including a number of operations. Consequently from July 2003 until October 2004 he had various periods off work, periods of doing light duties, and other periods doing his normal beat although sitting on the bike on one buttock.
6. When he returned to work in October 2004 he was given a walking beat pushing a trolley around the Liverpool CBD. He described his walking beat in detail. It was 9 to 12 kilometres long and involved walking up and down hills, avoiding pedestrians, lifting the trolley onto curbs when he could not use the ramp in the footpath. The evidence was that at the beginning of the run the trolley would weight up to 75 kilograms if fully loaded. In each of his delivery jobs we understand that he had to sort the mail for his route before his delivery run.
Consideration
7. The starting point for our consideration is the history of back pain Mr Evans had before August 2005. He took leave for back pain from 7 to 14 August 1992 and 21 to 23 August 2000. On 21 August Dr Chan noted, “Sprained lower back and treated with Voltaren”. On 19 August 2000 Dr Chan noted, “Pulled muscle lower back. Coughing fit this morning”. On 21 December Dr Chan noted, “Back pain improving”. Curiously on the leave records it shows that Mr Evans had three days leave for a sprained ankle. We would expect that Dr Chan’s note was more accurate. On 8 to 12 November 2001 Dr Chan’s note for this time is “Sprained back secondary to sneezing”. For 15 to 18 and 22 April 2003 Dr Chan’s note on 16 April was, “After bout of heavy sneezing gradually increased pain in lower back”. He was given Vioxx.
8. On 22 August 2005 Mr Evans saw Dr Chan who noted, “Pulled muscle lower back after bout of sneezing”. Mr Evans saw Dr Chan on 24 August when the doctor noted, “Back pain persisting”. On 29 August Mr Evans again saw Dr Chan who noted, “Back pain increasing with right sciatica”. Mr Evans was sent for CT scans and was put on Tramal. On 30 August Dr Chan noted, “Pain improving”, and referred Mr Evans to physiotherapy. Mr Evans took leave from the 22 to 26 August and on 29 August to 2 September for lumbar spondylosis. On 12 to 16 September he was on leave for torn ligaments in the left ankle. On his evidence this apparently followed an injury Mr Evans suffered at the Sydney Cricket Ground where he went to watch a cricket match.
9. We would infer that at that time the back pain and sciatica that he was suffering was not so severe as to prevent him travelling from his home to the Cricket Ground and attending the match. On 26 September he was again on leave for strained back and Dr Chan noted right sciatica on that day but also said that Mr Evans was “ambulant and not in pain”. He was given Celebrex. Mr Evans was given leave from 17 to 21 October and Dr Chan noted, “Recurrent pain lower back. No improvement with physiotherapy”. He was referred to Dr Giblin. This was the last clinical note from Dr Chan in evidence.
10. In summary, from August 2005 to January 2006 Mr Evans was off work for various periods, or to put it another way, he worked approximately 25 days although sometimes he worked only part of the day and not doing his beat because of pain. When Mr Evans saw Dr Giblin on 19 October 2005 he was asked to fill in a form which was called an injury form. On that form he indicated that he had had the pain for two months and described it as “burning, pins and needles, stabbing/sharp pain”. He stated that it started with a sneeze and described the pain as “can be constant” and indicated that he had not had this injury before. He also stated that pain was not there all the time.
11. He filled out a further form ticking boxes as follows:
I can lift heavy weights without extra pain; walking/standing: pain prevents me walking more than one kilometre; pain prevents me walking more than 1/2 a kilometre; pain prevents me walking more than 100 metres; I am able to stand for ten minutes; I can sit in any chair as long as I like; even when I take tablets I have less than six hours sleep; sex life greatly reduced; I am working normal duties but with extra pain; I am unable to do any sport at all. .It was made worse by walking and coughing and sneezing.
12. When he saw Dr Giblin that doctor recommended surgery, however, Mr Evans could not afford to do that and followed another treatment path. He had two nerve root blocks, the second of which in December 2005, was quite successful. Subsequently Mr Evans’ condition improved considerably. At the time of the hearing he complained of numbness in the right sole of his foot and numbness in both legs when standing.
13. He says he sleeps with a pillow between his legs to stop them going numb. He cannot walk his large dog and cannot play sport. I also note that his work activities have been modified, that is, he no longer does deliveries but does sorting, and that has changed so that now he is able to move around frequently.
14. On 8 November 2005 Mr Evans completed his compensation claim form and provided additional information with the assistance of his partner. The details of what happened as he filled them out included that the injury happened while working at his usual workplace and his job requirement has contributed to his present condition. That is the first time that any such claim was made.
The Medical Evidence
15. First of all, the report of the MRI scan done 20 October 2005 said:
There is disc desiccation with mild loss of intervertebral disc space height at the L5/S1 level with a moderate broad-based central to left posterolateral disc protrusion. The left posterolateral component is noted to be posteriorly displacing and compressing the left S1 nerve route within the adjacent lateral recess. The left S1 nerve route is also noted to be oedematous. There is only mild encroachment on the right S1 nerve route. It is noted the symptoms are predominantly on the right. It is thought possibly due to nerve root irritation a nerve root block could be performed under CT fluoroscopy as an interim procedure.
16. We had expert reports from three orthopaedic surgeons, Dr Giblin, Dr Pillemer and Dr Maxwell, and Dr Berry, Specialist General Surgeon. We also heard evidence concurrently from Dr Giblin and Dr Maxwell, and from Dr Pillemer separately.
17. Drs Giblin, Pillemer and Maxwell agree that Mr Evans has a pre-existing degenerative condition of the spine. Doctors Giblin and Maxwell agree that sneezing could cause disc prolapse in Mr Evans’s case because of his existing degenerative disease.
18. We did not find Dr Berry’s evidence of assistance. His report is principally concerned with the peri-anal abscess. We do not consider that he adequately took into account Mr Evans’ pre-existing degenerative spinal condition.
19. Dr Pillemer gave conflicting opinions. In his first report he considered that the nature and conditions of Mr Evans’ work of 13 1/2 years was more likely than not to be a substantial contributing factor to his disc lesion and nerve root irritation. He changed his opinion in his second report in February 2006 after being told that Mr Evans had had prior back pain for which he had taken time off work, whereas in the first report he was relying on the history that Mr Evans gave him that there was no significant prior back problems and that he had had no time off work for back pain. .During cross-examination Dr Pillemer said that he still considered that Mr Evans’ work contributed to his condition but that it was not a substantial or large contributing factor.
20. Dr Giblin’s opinion was that Mr Evans’ work caused repetitive trauma to his disc. Dr Maxwell disagreed and said that to talk about microtrauma was mere speculation unless the patient was symptomatic and complained of pain. Initially Dr Giblin linked the right nerve root irritation with the prolapsed disc seen more on the left, however later he agreed with Dr Maxwell that the right sciatic nerve impingement could be cause by an osteophyte which caused a narrowing of the lateral recess.
Conclusion
21. We prefer the evidence of Dr Maxwell in this case. He took a comprehensive history. We do not consider Dr Giblin did so. Rather he relied on the forms Mr Evans filled out and the clinical notes from Dr Chan. In his report he did not refer to a history of back pain before August 2005. The precipitating event for Mr Evans was a sneezing incident. He had prior lower back pain but from Dr Chan’s notes that pain was always precipitated by a sneezing or coughing incident, with no reference to Mr Evans’s work. There is no evidence of Mr Evans complaining of back pain associated with his work until after he saw Dr Giblin. We accept Dr Maxwell’s evidence that the literature does not support a finding of a relationship between disc degeneration or protrusion and occupations.
22. There may be a view among some orthopaedic specialists such as Dr Giblin asserted, however in this case we consider that there is no evidence to support that conclusion. Although Dr Pillemer also considered that work contributed to Mr Evans’ condition he did not consider, as we have already said, that contribution to be substantial or large.
23. During evidence Mr Evans and Ms Fawcett, his partner, gave some significance to an incident in Speed Street. Mr Evans said that, that was the first time he had experienced the sciatic symptoms but at the time he thought he had “done his hamstring or hammy”. He said that he walked through that, returning to work. He thought that was perhaps a couple of weeks before he saw Dr Chan on 22 August. Ms Fawcett thought it was perhaps a couple of months before.
24. We do not give any weight to this evidence because at the time it happened Mr Evans did not seek medical attention and he did not mention it to Dr Chan on 22 August 2005. Rather, this incident has only been mentioned in the context of this litigation. We do not criticise Mr Evans and Ms Fawcett on this aspect of their evidence. Clearly as they have had discussions with doctors and lawyers something that was perhaps not significant at the time has come to loom large in their minds.
25. Mr Grey criticised the respondent for not calling Mr McIntosh and Mr Bere-streeter to whom Mr Evans said he complained about problems he had on his walking beat. This is not significant to our decision because at all times Mr Evans said that he was complaining about his right knee, not his back.
26. We understand that part of Mr Evans’ case was that his limping contributed to a problem with his back. In any event, whether he was complaining or not does not affect our finding about whether his working conditions aggravated his S1 nerve damage or back damage. In our opinion Mr Evans’s work did not contribute to any material degree to Mr Evans’s right side sciatica or back condition. In coming to that conclusion we have taken into account the consideration of Finn J in Comcare v Sahu-Khan [2007] FCA 15 dated 19 January 2007.
Decision
27. In proceedings in N2006/283 the reviewable decision dated 22 February 2006 is affirmed, that is, Australia Post is not liable for S1 nerve damage to the right leg. It follows in proceedings N2006/1410 the reviewable decision dated 29 August 2006 is also affirmed. That is, Australia Post is not liable for permanent impairment for nerve damage to leg/back.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Ms Preethi Nimmagadda
AssociateDate/s of Hearing 8 & 9 March 2007
Date of Decision 9 March 2007
Date of Written Reasons 20 March 2007
Counsel for the Applicant Mr L. Grey
Solicitor for the Applicant Carroll & O’Dea Lawyers
Counsel for the Respondent Mr G. Elliott
Solicitor for the Respondent Graham Jones Lawyers
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