Fairhurst and Australian Postal Corporation
[2004] AATA 1328
•14 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1328
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1011
GENERAL ADMINISTRATIVE DIVISION ) Re PETER FAIRHURST Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M Griffin, Member Date14 December 2004
PlaceSydney
Decision The decision under review is affirmed. ………………….
Mr M Griffin
Member
CATCHWORDS
COMPENSATION – left knee injury claim – assessment of incident report and evidence – whether Applicant suffered from injury – whether injury affected Applicant’s knee – assessment of whether there is any need for continuing medical treatment and incapacity – question of credibility - decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 - section 14
REASONS FOR DECISION
14 December 2004 Mr M Griffin, Member 1. Peter Fairhurst (“the Applicant“) commenced employment with Australia Post in November 1995. His duties included mail delivery. He did this by means of riding a motorcycle. On 30 August 2002 the Applicant lodged a claim for compensation for a left knee injury arising out of his work duties on 27 August 2002.
2. On 11 September 2002 a delegate of the Australian Postal Corporation (“Respondent”) denied liability for the claim. That decision was affirmed by a reconsideration officer on 17 October 2002. It is that decision which is under review in this application.
THE INCIDENT
3. The Incident Report compiled by Mr Fairhurst (T37,p99 – 100) contains a section for description of how the incident happened. Mr Fairhurst wrote:
“Riding a motorcycle on nature strip/driveway approaching letter box put foot down bike continued forward trapping left heel under pannier bag rack. Stradling/walking (sic) bike forward at time.”
On another part of the same form, Mr Fairhurst wrote:
“approaching letter box. Put leg out for stability, got caught on pannier bag”
Mr Fairhurst gave the address where the incident took place as “9/13 Kooyong Way”.
4. He subsequently changed that address advising that it was in fact 9/13 Milton Way. Australia Post management discovered that that address did not exist. Australia Post management staff attempted to recreate the incident as described by Mr Fairhurst, unsuccessfully.
5. An e-mail from Australia Post management (T44, p109) stated that :
“The address at which the accident occurred was shown as 9-13 Kooyong Way however when we attempted to conduct an accident investigation their(sic) was no such number as 9-13. We then advised Peter who said ‘I made a mistake it should have been 9-13 Milton Way’, however this address is also incorrect. He then did not know where the accident occurred.
Along with the HSR, Manager and Team Leader we completed a Root Cause Analysis proformae. We discovered that it was impossible to catch your leg or foot on the pannier bag in the manner that he described to us using the Motor Cycle. We found that to trap your foot under the pannier in the manner described, the Motor Cycle would have been laying on its side.”
6. Mr Fairhurst was referred to an occupational therapist for assessment. He was seen by Helen Beazley on 12 September 2002. The report of Ms Beazley’s assessment appears at (T48, p117). She recorded:
“Mr Fairhurst reported that on the 27.8.02 his left foot was caught under the saddlebag whilst he was attempting to take the bike off it’s (sic) centre stand. Mr Fairhurst reported that he completed his duties for the day. He advised that at the end of his day he noted that he was experiencing very limited movement in bending his lower leg. Mr Fairhurst reported that he experienced significant sleep disturbance..”
7. Australia Post management noted on the Incident Report form (T37, p100):
“PDO did not report accident until next day. 2 team leaders spoke to Peter on the day of the accident while on his round and he did not advise he had an accident.”
8. Mr Fairhurst was seen by Dr James Sullivan (T57, p132), Hip and Knee Surgery Joint Replacement of Western Sydney Orthopaedics Associates, on 3 October 2002. Dr Sullivan reported:
“Thank you for asking me to see Mr Fairhurst who has a painful left knee. Apparently he caught or banged his knee under the pannier on 27 August 2002 in the course of his duties delivering letters. Later that afternoon his knee was quite sore and swollen and it became worse overnight. It then did seem to improve over the following week but he had recurrence of pain in his calf and over the front of the knee. While walking he feels as though his knee may hyper-extend and give way but otherwise his symptoms are fairly poorly localised. He finds he is much better first thing in the morning but tends to fatigue as the day progresses.
Examination reveals no effusion in the left knee and the range of motion is preserved...
Mr Fairhurst may have a mild anterior knee pain syndrome.”
9. Dr Sullivan saw Mr Fairhurst again on 17 April 2004 (Exhibit A1). He reported:
“…He stated that he injured the knee on 27 August 2002 in the course of his duties delivering letters as a postman. He described catching his foot and then banging his knee under a panier (sic). He was able to continue working but the knee became increasingly more sore and swollen during the course of the afternoon and that evening. He stated that he improved over the following week but since then he had recurrence of pain and intermittent symptoms…
I reviewed Mr Fairhurst on 14 November 2002 with the results of his MRI scan.
This showed a ganglion cyst in association with the anterior cruciate ligament. I considered that this may have been accounting for also the sensation of locking and a feeling of hyper-extension…
I next saw Mr Fairhurst on 13 January 2003. He stated there had been some improvement since the ganglion had been aspirated but since then there had been gradual deterioration. He felt he was walking better but he still had problems with squatting, crouching and standing for prolonged periods. He also noted difficulty on stairs.
Examination revealed no effusion in his knee and the knee had good stability. There was mild patellofemoral crepitus. I recommended at that time that Mr Fairhurst continue with his exercise programme.
I next saw Mr Fairhurst on 6 November 2003. He was complaining of ongoing problems with his left knee… He complained of pain going up and down ladders and when walking any significant distance. He stated that he could only manage one hour of standing or walking...
Examination revealed his gait to be normal. There was no effusion in the left knee and the quadricepts had good tone. The range of motion was full and there was some pain on forced extension…
I reviewed Mr Fairhurst on 20 November 2003 with the results of his follow up MRI scan. This showed recurrence of the ganglion associated with the anterior cruciate ligament but no other pathology of note…
In regards to causation, it is probable Mr Fairhurst caught his foot and suffered a twisting injury to the knee as described on 27 August. This is likely to have caused an aggravation of the condition affecting his anterior cruciate ligament which may well have been pre-existing to some degree.”
10. Mr Fairhurst was seen by Dr David Maxwell, Orthopaedic and Spinal Surgeon, on 9 October 2003 and again on 22 April 2004. In the October 2003 consultation (Exhibit R1), Dr Maxwell recorded:
“…He said that Australia Post disputed his medical claim and he is now on sickness benefits but he is also doing some handyman work which he enjoys. He says he is able to do up to 4-5 hours work without resting…He said he does not wish do return to work for Australia Post as he has had some difficulties with Management. He was involved in some disciplinary action while working at St.Marys. He fears this may be because he is a member of the Postal Delivery Officers Association…
He developed problems with his left leg on 27.8.02. It was his second day on a new beat. This was because he had been transferred from Blacktown. There was a dispute regarding overtime work. He was then transferred to St. Marys on a new beat which he was not ‘used to’. On 27.8.02 he states he had an accident on his bike. He was delivering mail at a small housing estate comprised of town houses. He was travelling slowly at approximately 7kph. He states that he turned to the left with his toe on the ground to steady himself and caught the heel of his boot under the panier (sic) bag. He didn’t fall off his bike but felt that he injured his left foot. He had some discomfort in the left foot. There was no pain in his left knee initially and he kept delivering. He returned to the delivery centre at 1 pm and said at that stage he had no pain at all.
He drove home but when he got out of his car he noticed that his left knee was a little stiff and sore. He continued to work. He informed me that he was ringing up complaining about another incident. He was having a break during his deliveries and having some morning tea in a shop when he was seen by some supervisors who alleged abused him. After ringing up and discussing this he got up from the stool. He said he had difficulty straightening his left knee. There was no swelling.
He rang Dr Paleologos, the facility nominated doctor, and rang work the next morning…
He states his left knee is much the same. He has difficulty climbing ladders and squatting aggravates the discomfort in his knee. He is able to walk for a kilometre but has difficulty running. He describes the pain in his knee as behind the patella and his knee aches mainly if he hyper extends his knee or if he trips. He finds it quite difficult to climb steps but can manage. He has no pain at night while lying in bed and has no problem first thing in the morning. There is no swelling of his left knee. He describes the pain as more of an ache and the pain is something he can tolerate…
Peter Fairhurst describes an unusual injury which he felt initially was due to his left foot when his foot became caught under the pannier as he was turning left. It is a little hard to imagine how this occurred because he was travelling at 7kph and it is unlikely at this speed that his bike would have been leaning over to the left to any great extent. It appears that the pain initially was in the back of his calf and in his foot…
Mr Fairhurst has continued to work after the injury and then suddenly seems to have become worse after he had been talking on the phone. Mr Fairhurst has now informed me that he has had a lot of problems with the management of Australia Post and does not wish to return to work for Australia Post. He has expressed a desire to work as a handyman and says that his handyman business is going quite well. This business is obviously reasonably physical and he is working up to 5 hours at a time.
There is a lack of abnormal physical signs. If one postulates that he is suffering from retropatellar chondritis this is normally associated with significant thigh muscle wasting and Mr Fairhurst’s thigh muscles are not wasted. It was noted that he had a ganglion cyst adjacent to the anterior cruciate on the MRI scan but these ganglion cysts associated with the cruciate are reasonably common variations from normal and I consider it is unlikely that the pathology involving the anterior cruciate ligament would be as a result of the relatively minor injury he sustained in the course of his work on 27.8.00.
The alleged symptoms do not particularly correlate with the normal physical signs and there does not appear to be any pathology to explain his alleged symptoms…
I do not really consider it is likely he has been incapacitated for work at any time. It should be noted that initially his symptoms were relatively mild and he continued to work.
I do not consider he needs any treatment.”
11. In his April 2004 report (Exhibit R2), Dr Maxwell recorded:
“ …When I last saw him he was doing occasional handyman work and was still employed by Australia Post. The handyman work is only 4-5 hours a week. He is only doing small jobs. His brother helps him, particularly if his leg plays up…
A recent MRI scan shows presence of a multilocular ganglion cyst associated with the anterior cruciate ligament. The anterior cruciate ligament is intact and the rest of the knee is essentially normal. His cyst appears somewhat larger than it was in November 2002.
He walks without a limp on his left leg. He has some muscle wasting of his left leg on measurement…
He complains of tenderness on palpation of the medial border of the patella of his left knee. The ligaments of the left knee are stable. There is no effusion… He has a range of movement of his right and left knee from 0-150’ of flexion.
Mr Fairhurst has developed some muscle wasting of the left leg which has become worse over the last 6 months. A more recent MRI scan does appear to show that the ganglion cyst has increased in size and it is possible that the ganglion cyst is causing some irritation of the anterior cruciate ligament when he flexes and extends his knee causing some discomfort. Ganglions of the anterior cruciate ligament are not uncommon and may be associated with degeneration of the anterior cruciate or an injury. On this occasion he clarified the history and stated that his knee, in fact, appeared to lock up the evening of the alleged injury. He has developed increased wasting of his left leg indicating that he is not using his left leg normally which may be as a result of the discomfort. Normally a ganglion of the anterior cruciate ligament I would consider not to be disabling. They are quite commonly seen in MRI’s of the knee. I would not expect the condition to be particularly disabling. I also consider it is unlikely that the cyst would have developed within 2.5 months of the alleged work related injury.
I therefore do not consider that the alleged work related injury has directly contributed to the development of the condition from which he is suffering. The ganglion is probably a degenerative condition.
I do not consider that he is significantly disabled and consider that he would be able to carry out his duties as a postal delivery officer.”
12. Mr Fairhurst gave oral evidence and was cross examined at length. He described the incident as follows (Transcript p.7):
“It was the first day I actually delivered to that area and I was just riding along. I found one cluster of letter boxes and clusters of three of the letter boxes. I rode on to find another set of-cluster of letter boxes and I seen one set, I rode toward them and then I noticed another set with the correct number on and I turned sharply to get there and I got my leg and foot caught under the saddlebags of the motor bike and that’s basically how the incident happened.”
13. He denied telling Dr Maxwell that he did not wish to return to Australia Post. He then said that he “probably would have left” (Transcript p10). He was questioned about his contention that Australia Post should pay him $50,000. He said that this was for pain and suffering. He was asked: “What entitlement have you got to a payment for pain and suffering?” He said in essence, (Transcript pp13,14) that the figure was chosen as a negotiating position. He said: “The $50,000 is irrelevant”… and “I really don’t care if I do or don’t get that. I put that - if I want to come down from there but I feel that it is Australia - it happened on Australia Post time that I hurt my knee and should at the very least be covered for medical expenses and time off work.” He said “I put it there for bargaining, if you want to cut things down, say, ‘We can’t do that, can’t do this’”.
14. Mr Fairhurst said that he had had problems with management of Australia Post. He said, however, that was not the reason he wanted to leave. It transpires that he had been charged on a number of occasions with violence in a work place and disobedience of management instructions. These various offences had resulted in loss of salary and he had been required to undertake an anger management course. It had also caused him to be moved from Blacktown to St Marys.
15. Mr Fairhurst was cross examined about a series of previous Incident Reports that he had submitted covering a variety of matters ranging from a sore groin from driving his motorcycle through to a paper cut from sorting letters. He said that these were not claims for compensation. He said that Australia Post required Incident Reports to be submitted. He said that he had submitted these reports either to draw attention to problems that others may incur or at the direction of his employers such as in the case of a paper cut. He said he had never wanted to leave Australia Post and the doctor had mis-interpreted what he had said (Transcript p19).
16. Mr Fairhurst agreed that he had appealed unsuccessfully to the Board of Reference in respect of the charges against him and that the penalties had been upheld.
17. Mr Fairhurst was asked about counselling he had received in respect of excessive use of sick leave. Initially he could not recall how many times this occurred but eventually agreed that this had occurred on several occasions.
18. It was put to Mr Fairhurst that there was a significant inconsistency between his Incident Report description of how his knee was injured and his oral evidence. It was put to him that these were quite different propositions and he said “I suppose you can say that, yes” (Transcript p40).
19. It was put to Mr Fairhurst that there were real inconsistencies in his evidence of how the incident happened, where it happened and what was recorded from him in the claim form. He said: “I would say yes”.
20. He was asked why he didn’t report to the team leaders who visited him during his round that afternoon, the incident and the pain he had felt in his foot. He said “I didn’t mention it to them”. He was asked why not. He said “It wasn’t an issue at that time.”
21. He was asked why he had not returned to work at Australia Post. He said it was because he could not ride a motorbike and he didn’t feel confident in his knee (Transcript, p55). He was asked again about Dr Maxwell’s report that said he desired to continue working as a handyman and the business was going quite well and he was working up to five hours at a time. He said “He had misunderstood. That’s four to five hours a week, that was.” He said that he worked four to five hours a week as a handyman mowing lawns. He said he had a self-propelled lawnmower and only mowed flat lawns. He said: “It’s mowing a lawn. I think in the last six months I’ve done it twice, so the timeframe we are looking at is something like probably four hours work over the last however many months”. He was asked: “Four hours work over the last six months?” He said “Yes”. He was asked: “Is that what you say constitutes your business?” He said: “That’s basically it as it is now”. He was asked again: “Four hours work over the last six months?” He said: “If I could do more, I would do more, yes.” He was asked again: “Sir, seriously, four hours work over the last six months?” He said: “Yes” (Transcript, p66).
22. Dr Maxwell was made available at the request of the Applicant for examination. He was asked: “In your report, Dr Maxwell, you say that he is able to do up to four to five hours work without resting, so that is coming from Mr Fairhurst. Is that accurate?” Answer: “Yes”. Question: “Was that an accurate transcription on the day?” Answer: “Yes” (Transcript, p100). He was asked: “So based on Mr Fairhurst’s - for want of a better term - lack of clarity in the description, you found it hard to imagine how the injury actually occurred?” Answer: “Yes”. He was asked if he believed it would be impossible for it to occur. He said: “No, I don’t think it’s impossible, I think it could still occur… but I was just a little unclear about how exactly it happened. He seemed to indicate the bike may have been leaning over, which I felt was unlikely when it was going fairly slowly. Normally, a motorbike will lean over when you are travelling at some speed, but when you are just turning the bike doing a slow speed, the bike doesn’t normally lean over very much.” (Transcript, p101)
23. Mr Fairhurst was questioned about his business records and accounts. He agreed that he was not just mowing lawns throughout 2003. He said “Well I am doing handyman work too, I said that, but I’m not doing a great deal” (Transcript, p108). The records show that he was doing handyman work for New South Wales Strata Management. He agreed that he had done about $8,000 worth of work in December 2003 (Transcript, p109). Mr Fairhurst said that he was also working for his brother’s company washing cars and that he did this three nights per week. He was asked why he had given evidence earlier of only working four hours in the last six months. He said that was specifically related to how much lawn mowing work he had done. He was asked why he had not mentioned the car cleaning work earlier when asked about his business. He said that he was not asked.
24. He was asked why he was able to do the lawn mowing, handyman work, painting and washing of cars but not able to return to his duties at Australia Post. He said that he could take breaks and rest his leg while working for himself or his brother but could not do so at Australia Post. He said that he did not stress his knee while painting or chamois-ing the car. He said that the car chamois-ing probably consists of about “three or four swipes”. He said “you basically go down one side, up the other side and then do the roof.” He said: “There was no squatting.” He was asked: “What about the wheels?” He said: “Basically, yes, we don’t chamois wheels. I mean, if you chamois a wheel, you’re going to pick up dirt and you are going to severely damage that car, so you don’t chamois wheels.” He was asked about the bumper bar areas. He said: “You don’t do it that quick”. It was put: “I didn’t say how quick you did it?” He said: “Basically it consists of probably about three or four swipes”.
CONSIDERATION OF ISSUES
25. The issues for the Tribunal are these:
(a) Did the Applicant have his foot caught under the pannier of his motorbike on 27 August 2002;
(b) If he did, did he suffer any injury as a result;
(c) If he did, did the injury affect his knee;
(d) If so has that led to a need for continuing medical treatment and incapacity.
26. These matters all depend on the credibility of the Applicant’s claims. I had the benefit of observing Mr Fairhurst give oral evidence and be tested under cross- examination. I also had the benefit of hearing Dr Maxwell give oral evidence. In all the circumstances, I am not satisfied that Mr Fairhurst’s evidence is reliable. My reasons follow.
27. From the outset Mr Fairhurst’s claims have been characterised by inconsistency. He gave two inaccurate addresses for the incident, finally advising that he was unable to say where the incident took place. His written description of the incident varies on a substantial point from his later oral evidence of how the incident occurred, namely the fact that he turned sharply thus catching his foot under the pannier. It is apparent from his evidence that his original version of travelling slowly, “stradling walking the bike”, could not have produced the incident which he claimed. He has a history of workplace conflict and antipathy towards management. He has expressed to Dr Maxwell a desire to leave Australia Post and continue running his own handyman business. He contradicted the evidence of Dr Maxwell, however when Dr Maxwell was made available for cross examination his version of the report to him by Mr Fairhurst was not challenged. Mr Fairhurst was less than forthcoming about the nature of his employment and handyman business activities. At one time in his evidence he stated that he had worked four hours only in the previous six months. He claims that when confronted with evidence of much more extensive hours of employment that his remark about four hours was specifically concerned only with lawn mowing. I found his evidence about the amount of squatting he did in his handyman job and in washing cars not credible. I accept the evidence of Dr Maxwell and note that his record of what was reported to him by Mr Fairhurst was not challenged in cross-examination.
28. I note significantly that Dr Sullivan reported “He described catching his foot and then banging his knee under the pannier …”. Dr Sullivan also recorded “the knee became increasingly sore and swollen during the course of the afternoon”. There is no evidence of Mr Fairhurst “banging his knee under the pannier” or that his “knee became increasingly sore and swollen during the course of the afternoon”. It is clear that Dr Sullivan’s opinion is based on this reported history of injury to the knee and immediate sequelae. Consequently, the basis of his opinion is in part without foundation. In all the circumstances, I am not satisfied on the balance of probabilities that the incident occurred as claimed or that Mr Fairhurst suffered an injury to his knee as claimed or that there is any continuing incapacity.
DECISION
29. The decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member
Signed: Neil Glaser
AssociateDates of Hearing 22 July 2004 and 9 August 2004
Date of Decision 14 December 2004
Representative for the Applicant Mr Crook
Counsel for the Respondent Mr Polin
Solicitor for the Respondent Mr Jones
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