Griffiths and Australian Postal Corporation

[2006] AATA 986

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 986

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/899

GENERAL ADMINISTRATIVE DIVISION		)
Re		GEOFFREY GRIFFITHS

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal  Senior Member M D Allen

Date of Decision  2 November 2006

Date of Written Reasons       20 November 2006

Place  Sydney

DecisionFor the reasons given orally the decision under review is SET ASIDE and this matter remitted to the Respondent with the Direction that the Applicant did suffer a temporary exacerbation of symptoms from his condition of cervical spondylosis.

The question of costs is reserved to a date to be fixed.

(Sgd) M.D. ALLEN
  ..................................................
  Senior Member

CATCHWORDS

Claim for compensation for “neck and muscular pain” – decision as to liability the only decision before the Tribunal – whether there was an exacerbation of the Applicant’s neck pain as a result of his duties as a Postal Service Officer – Applicant’s credibility in issue – Tribunal satisfied clinical notes that the Applicant was in pain on 29 April 2005 – decision under review set aside and remitted to the Respondent with the direction that the Applicant did suffer a temporary exacerbation of symptoms from cervical spondylosis.

Safety, Rehabilitation and Compensation Act 1988 – section 14

REASONS FOR DECISION

2 November 2006 Senior Member M D Allen

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.  After service upon the Applicant of a copy of the decision that was in fact made, the Respondent pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.      The said transcript is annexed thereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that this and the preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         .....................................................................................
  Associate

Date of Hearing  31 October & 1 November 2006            
Date of Decision  2 November 2006

Counsel for the Applicant                  Mr B McManamey

Solicitor for the Applicant                   Slater & Gordon

Counsel for the Respondent             Mr P Jones

Solicitor for the Respondent              Australian Government Solicitor

O/N 27962

DRAFT DECISION  [9.58am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2005/899
By MR M.D. ALLEN, Senior Member
GRIFFITHS and AUSTRALIA POSTAL CORPORATION
SYDNEY, 2 NOVEMBER 2006

MR ALLEN:   By application made 15 July 2005 the applicant sought review of a reviewable decision made 23 June 2005, which affirmed a prior determination rejecting the applicant’s claim for compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 for the injury described as neck and muscular pain.  The only decision before me was the decision as to liability pursuant to section 14 SRC Act.  Thus although evidence canvassed matters such as liability for the initial injury and the consequences of any subsequent disability, such matters were not before me in these proceedings.  For the respondent it was contended that the applicant’s credit was such that I could not be satisfied that any injury had in fact occurred and thus subsection (1) of section 14 SRC Act had no application. 

The word “impairment” in subsection 14 (1) is defined in section 4 SRC Act as follows: 

the loss, the loss of the use, or the damage or malfunction of any part of the body or of any bodily system or function or part of such system or function. 

If therefore I am satisfied that the applicant experienced pain as a result of work activity then there has been an impairment and consequently a liability pursuant to section 14 SRC Act. A finding of liability, however, does not mean that the applicant is entitled to any payment pursuant to the other sections of Division 1 of Part 2 of the Safety, Rehabilitation and Compensation Act.

Current proceedings arose out of events following the re-employment of the applicant with Australia Post in or about April 2005.  The applicant had previously been employed by Australia Post in the years 1994 to 2004.  During that time he had made a claim for nerve root compression, C5/C6 disc protrusion.  That claim was accepted by a determination dated 10 September 1997. 

In the course of these proceedings the acceptance of that claim was challenged.  It is not a matter I have to determine, but there is sufficient material before me to say that in relation to any subsequent claim by the applicant there are good grounds for the respondent to regard itself as in no way estopped by any previous determination regarding neck injury in 1996. 

At the time the applicant sought re‑employment with Australia Post he was medically examined.  As part of that medical examination he had to complete a questionnaire regarding any current or prior medical problems.  I find that that questionnaire was not accurately completed by the application, and that the omissions in the questionnaire were deliberate on his part. 

After a period of initial training the applicant was allocated to the Regents Park mail centre as a postal delivery officer.  He was allocated a route designated as beat 26, which was a round delivering mail to both commercial and residential premises in Cabramatta.  As is known to anyone in Sydney, Cabramatta has a very large number of businesses conducted by and residents who are migrants from Asia. 

There is some discrepancy between the evidence of the applicant and that of his immediate superiors, Ms Robins and Mr Newell, as to the events consequent upon the applicant taking up his duties as a postal delivery officer with responsibility for taking over beat 26.  Where the evidence of Ms Robins and Mr Newell conflicts with that of the applicant, I prefer the evidence of his superiors where that evidence is based on contemporaneous documents. 

In relation to the events upon the applicant taking up duty, I find that after his first day on Beat 26, the applicant complained about letters being insufficiently addressed, and that shop signs were not in English.  He also raised the possibility of a transfer to Transport.  I also accept that he specifically referred to a prior neck injury when speaking to Ms Robins.  I also find that the applicant made comments to Ms Robins to the effect that if he could not get a transfer to transport and if sacked he would consider legal action.  I also find that it was on the second day, namely Wednesday 27 April, that the applicant first raised with Mr Newell that he was having neck pain bending down to deliver mail into low-set mailboxes. 

There is no doubt that the applicant does have a disc prolapse at C5/6.  That the physiological deformity could give rise to an exacerbation of symptoms if the applicant were bending down and placing mail into low-set mailboxes was accepted by both Dr McGee-Collette, neurosurgeon for the applicant, and Dr Olsen, occupational physician for the respondent. 

The real issue in these proceedings is whether, given the applicant’s credibility, or rather the lack thereof, I can accept that he in fact did suffer neck pain as a result of delivering mail on 26-27 April.  Unfortunately, I do not know just how much mail the applicant did in fact deliver.  Part of the beat consisted of shops and so no bending would be required.  There was also some evidence that the applicant was accompanied by a trainer, that is to say, by a postal delivery officer familiar with the beat, and I do not know what division of labour there was between them.  Similarly, I do not know if there were any contemporaneous expressions of pain by the applicant whilst carrying out his duties. 

Following his allegations of pain the applicant was transferred to sorting duties without having to undertake postal deliveries.  On 2 June 2004 Dr Glixman, occupational physician, commented after viewing the relevant radiology that the applicant was susceptible to transient soft tissue injury.  That soft tissue injury would not cause any permanent impairment, nor would it hasten the rate of deterioration of the underlying condition.  On 31 May 2005 the applicant’s general practitioner reported that since transfer to night sorting the applicant had improved. 

To my mind, however, the crucial report in this current matter is that of Dr Antoun received by the respondent on 24 June 2005.  In that report, Dr Antoun notes that the applicant presented to him requesting a neurosurgical referral.  Although Dr Antoun on examination did consider the applicant’s presentation to be exaggerated, he did note he was extremely distressed.  In an earlier report by Dr Antoun he stated that he had certified the applicant as unfit for duty for part of one day due to his pain.  Exhibit R8 is a copy of Dr Antoun’s clinical notes.  They record that on Friday 29 April 2005 when he presented the applicant was, and I quote, “tearful and emotional” and “just wanted it operated on”.  I also note that the applicant expressed to Dr Antoun a desire to have the respondent pay for the operation. 

In this matter, although I accept that the applicant has little credibility and that he deliberately withheld from the respondent details of previous injuries and illnesses including a prior workers compensation claim, actions which it would appear have carried over to his current employment, having observed him give evidence I can only conclude that he is far from intelligent and I am not convinced that he could dissemble to the extent of persuading Dr Antoun to make the observation that he was “tearful and emotional” if that were not in fact the case.  In other words, the clinical notes of Dr Antoun indicate that when he saw the applicant he was in pain. 

It seems, therefore, that he did have a temporary exacerbation of symptoms caused by his work, as no other cause has been suggested.  This temporary exacerbation does constitute an impairment and hence the respondent is liable, pursuant to section 14 SRC Act.  The decision under review is set aside and this matter remitted to the respondent with the direction that the applicant did suffer a temporary exacerbation of symptoms from cervical spondylosis. 

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