Hanger and Australian Postal Corporation

[2003] AATA 1328

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1328

ADMINISTRATIVE APPEALS TRIBUNAL      )        No    N2002/220

)                 N2002/692

GENERAL ADMINISTRATIVE DIVISION		)
Re		NATASHA HANGER

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal  Ms S M Bullock, Senior Member

Date22 December 2003

PlaceNewcastle and Sydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal:

(i)In relation to matter number N2002/220, sets aside the decision under review and in substitution therefor determines that the Respondent is liable to pay compensation for lower back pain, which is diagnosed as coccydynia, for leave for 30 October 2000 to 6 November 2000 and 14 November 2000 and physiotherapy from 24 November 2000.

(ii)In relation to matter N2002/692, sets aside the decision under review, and in substitution therefor decides that the Respondent is liable to pay compensation for Mrs Hanger’s lower back pain, which has been diagnosed as coccydynia, from 28 December 2000 pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

(iii)The matter is remitted to the Respondent to determine Mrs Hanger’s entitlements as a result of this decision.

(iii) The Respondent is to pay the Applicant’s reasonable legal costs in relation to the lower back condition as agreed or taxed in accordance with the Tribunal’s Practice Direction dated 18 May 1998.

..............................................

Ms S M Bullock   Senior Member

CATCHWORDS

COMPENSATION - Low Back Injury – Coccydynia - Continuing Liability – Medical Expenses – Incapacity 

LEGISLATION  

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19

AUTHORITIES

Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374

Re Matusko and Australian Postal Corporation (1995) 21 AAR 9

Bogaards v McMahon and Another (1988) 15 ALD 313

Comcare v Grimes and Another (1994) 50 FCR 60

Hanna v Australian Postal Corporation (1990) 12 AAR 511

Comcare v Murphy, Federal Court, 13 February 1996, DG15 of 1995

Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

REASONS FOR DECISION

22 December 2003     Ms S M Bullock,   Senior Member

2.      This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mrs Natasha Hanger, of two reviewable decisions made by the Respondent, the Australian Postal Corporation.  The reviewable decisions are:

·     N2002/220 - Reviewable decision dated 7 January 2002, which affirmed two determinations dated 29 November 2000 and 5 December 2000 (N2002/220, T18).  The determination dated 29 November 2000 in relation to Ms Hanger’s claim for compensation in respect of fracture right tibia and lower back pain, denied liability to pay compensation for the period 30 October 2000 to 6 November 2000 and 14 November 2000 (N2002/220, T11).  The determination dated 5 December 2000 in relation to Ms Hanger’s claim for lower back pain and fractured right tibia, ceased liability for payment of physiotherapy treatment from 24 November 2000 (N2002/220, T14).

·     N2002/692-Reviewable decision dated 24 April 2002 in respect to fractured right tibia/fibula, right shoulder and lower back pain, which affirmed a determination dated 28 December 2000 (N2002/692, T97).  The determination of 28 December 2000 ceased liability in respect to Ms Hanger’s condition on and from 28 December 2000 (N2002/692, T84).

3. A hearing was held in Newcastle before the Tribunal on 21 February 2003 and a resumed hearing was held in Sydney on 2 June 2003. Mrs Hanger provided oral evidence to the Tribunal. Oral evidence was also provided by Dr K Ostinga, Orthopaedic Surgeon, and Dr N W McGill, Consultant Rheumatologist. Mrs Hanger was represented by Mr B Bachelor of Counsel and the Australian Postal Corporation was represented by Miss R M Henderson of Counsel. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents": T1-T23, N2002/220, Bundle 1; T1-T98, N2002/692). The Tribunal also took into evidence the following exhibits:

EXHIBIT	DESCRIPTION	DATE
A1	Report of Dr C van Rooy, General Practitioner	18 March 2002
A2	Report of T Hamilton, Chiropractor	17 March 2002
A3	Report of Dr K Ostinga, Orthopaedic Surgeon	17 June 2002
A4	Letter from Mr S Churches, Armstrongs Solicitors to Dr K Ostinga	8 July 2002
A5	Report of Dr K Ostinga, Orthopaedic Surgeon	8 August 2002
A6	Letter from S Churches, Armstrongs Solicitors to Dr K Ostinga	8 November 2002
A7	Report of Dr K Ostinga, Orthopaedic Surgeon	13 November 2002
A8	Report of Dr AJR Macpherson, General Practitioner	11 June 2002
A9	Schedule of Incapacity	Undated
A10	List of Medical and Related Treatment	Undated
R1	Report of Dr NW McGill, Consultant Rheumatologist	3 June 2002
R2	Medical Records from John Hunter Hospital	Various

ISSUES

4.The issues in this matter are:

·     Whether Mrs Hanger is entitled to compensation for incapacity in relation to the period 30 October 2000 to 6 November 2000 and 14 November 2000 in respect to her lower back condition and right tibia; and

·     Whether Mrs Hanger is entitled to payment of physiotherapy treatment after 24 November 2000 in respect of lower back condition; and

·     Whether Mrs Hanger is entitled to compensation for injury to fractured right tibia/fibula, right shoulder and lower back pain from 28 December 2000.

LEGISLATION

5.      A determination in this matter requires consideration of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

6. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of "injury" under subsection 4(1) of the Act which states:

“4 Interpretation

(1) In this Act, unless the contrary intention appears:

…

injury means:

(a)       a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

7. Section 14 of the Act deals with compensation for injuries and as relevant 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.”

8. Section 16 of the Act deals with compensation in respect of medical expenses.

9. Section 19 of the Act deals with compensation for injuries resulting in incapacity.

EVIDENCE

mrs natasha hanger

10.     Mrs Hanger was born on 14 May 1972.  She has three children born on 26 September 1997, 31 August 1999 and 23 June 2001.  She attended school until Year Ten.  Mrs Hanger was employed at Australia Post as a Mail Delivery Officer from 1989.  Between 1989 and 1995 Mrs Hanger was in good health and had no major health problems.  On 15 March 1995, Mrs Hanger had an accident in the course of delivering mail on her motorbike.  Mrs Hanger does not remember anything in relation to the accident, except what she was later told by her employers.  She was unconscious and taken to John Hunter Hospital and later to Royal Newcastle Hospital.  Mrs Hanger recalled her back and shoulders were very sore and the skin had come off these areas.  Her right arm was also painful and had to be cleaned.  Her right leg was broken and in hospital Mrs Hanger had pins inserted in her right leg.  Mrs Hanger noted that she still has one pin in the right leg.  She noted that the bottom pins were taken out in an operation performed in August 1995 by Professor Ghabrial at Royal Newcastle Hospital. 

11.     Mrs Hanger stated that whilst in Royal Newcastle Hospital she felt pain in the lower thoracic area down to her buttocks.  Every night her mother visited her and massaged her back and rubbed her from the shoulder to the lower part of the back.  Whilst in hospital, Mrs Hanger stayed lying on her back for some time.  She could not recall how long it was before she was able to stand up.  Mrs Hanger recalled getting up a couple of times in Hospital and she did manage to walk to the shower with a nurse.  She eventually was out of bed and sitting on a chair, and had her foot on a foot-stool.  She was not able to leave Hospital until she could climb up and down the stairs.

12.     Mrs Hanger stated that whilst in hospital, she only saw Professor Ghabrial once.  At that stage she was being kept on her back, with half a cast underneath the back of her leg.  Mrs Hanger stated that she told Professor Ghabrial about her back at that time, but that he told her he was not concerned about that, because he was concerned with her leg and her leg operation.  Mrs Hanger stated that the second time she saw Professor Ghabrial in his rooms she also told him about her back. 

13.     When Mrs Hanger was released from hospital she was not feeling very good and had a great deal of back pain.  She would mostly lie in bed, but used to get up and move around on crutches.  She had injections of morphine in her legs for pain.  Mrs Hanger did not recall what medication she was on immediately after hospital.  After hospital, Professor Ghabrial recommended Mrs Hanger undergo physiotherapy mainly for her legs and she did undergo a “fair bit” of this.  The physiotherapy was just focused on her leg at that time.  At that time she was taking “Panadeine Forte” daily, but she could not recall how much.  She is still taking this now.  She could not recall when she first took Panadeine Forte but thought it was between May and August 1995.

14.     Mrs Hanger noted that Dr Macpherson was her first general practitioner.  The first doctor she saw after hospital was Dr Drew, who is in the same practice as Dr Macpherson.  Mrs Hanger thought that she started seeing Dr Peterson in August 1995, and changed to Dr Peterson as she was not happy with her previous general practitioner.  However, in between being in hospital in May 1995 and August 1995 she was seeing Dr Reid, who was a relief doctor for Dr Peterson.  Mrs Hanger later changed general practitioners to Dr Macpherson, because of difficulty getting appointments with Dr Peterson.

15.     Dr Peterson referred Mrs Hanger to a chiropractor, Ms T Hamilton.  Mrs Hanger continues to see Ms Hamilton every two to three weeks.  However, her last treatment was December last year because she has run out of money to pay for her chiropractic treatment, which she has payed for since June 2000.  Ms Hamilton “cracks” from her neck down to her tail-bone and cracks her hips in.  Mrs Hanger stated that after this she feels quite good for a few days, but then it returns to how it was previously. 

16.     In 1996, Mrs Hanger returned to work with Australia Post.  She stated that she was not feeling very well at this time.  She still had bruises on her shoulders from crutches.  She had pain in her tail-bone and back.  Mrs Hanger stated that her tail-bone hurt when she was sat down.  She also found it too painful to get up.  Mrs Hanger returned to light duties, full-time for a few weeks.  Mrs Hanger then returned to Mail Delivery Officer duties on her motorbike.  She found it difficult, but stated that she had a great deal of help, particularly from her “second-in-charge”..  In 1996, Mrs Hanger stated that she was doing a residential mail run on the motorbike.  Her condition was getting worse, in particular she was getting more pain in her back.  She was receiving assistance because she was slow.  Mrs Hanger stated that her team leader would take mail off her, in order to help her. 

17.     During the period 1996 to 1999, when Mrs Hanger was delivering mail on her bike, she took Panadol to relieve pain because she could not take Panadeine Forte and drive the bike.  She used to take about ten Panadol per day.  She would also take two Panadeine Forte after work and then another two if she could not sleep.

18.     When Mrs Hanger had her children in 1997 and in 1999 she had three months off work and five months off work, respectively.  Mrs Hanger stated that when she was six months pregnant she felt good and felt as though everything “pushed out the right way”.  However, when she was eight months pregnant she had a great deal of pain.  After Mrs Hanger’s children were born she had trouble with her hip and tail-bone and her pain increased.  Mrs Hanger stated that she then returned to her previous condition.  Mrs Hanger’s last child was born in June 2001 and she went back to work in 2001 to 2002.  When she returned to work at this time, she stated that she was in pain.

19.     Mrs Hanger stated that by May 2002 she could not cope with riding the motorbike at work.  She was doing a mail run to shops, and her knee and ankle were “giving way” and she was having a great deal of difficulty.  At this time she had approximately two months off work.  She was not paid for this time off work.  When she returned to work in July 2002, she undertook computer work, colouring maps and paperwork.  She was not on the motorbike.  At this time Mrs Hanger was working six hours, four days per weeks.  Mrs Hanger presently sorts large letters, starting work at 2am and finishing at 8am.  She stated that she will not go back on the motorbike as she does not want to damage her tail-bone any further.  Mrs Hanger stated that doing computer work she can alternate standing and sitting.  Mrs Hanger understood that she was supposed to receive training to undertake more computer work.

20.     In respect to her duties at work, Mrs Hanger stated that she just does what she is capable of doing.  When she was on her bike after the accident nearly every day she had to get assistance.  In 2002 she also received more help.  The assistance provided was in the delivery process, with mail being taken from her.  She has been given more assistance over time, and especially over the last couple of years.  Mrs Hanger noted that the assistance provided has ranged from 40 minutes to one and a half hours assistance with delivery.  Mrs Hanger started using the “V-sort frame” in March 2002 and stands the whole time when using this frame.  From March 2002 until May 2002, Mrs Hanger was on the bike and using the V-Sort frames.  From May 2002, Mrs Hanger was off work until July 2002.  In relation to “pidgeon-holes” she used these before the accident until March 2002. 

21.     In relation to overtime, Mrs Hanger stated that a normal shift is seven or eight hours.  She stated that she would work overtime only if it was on her run and she had to do it.  If there was no mail then she would not have to work overtime.  Presently, she does not do any overtime at all.  The last time she did any overtime was when she was still on a motorbike, at the start of 2002.

22.     Mrs Hanger presently owns her own motorbike.  She stated that she bought the motorbike in 1989 in order to get her licence with Australia Post.  In the beginning, she bought a road bike, which she rode on her parent’s property, which she stated is flat.  Mrs Hanger now has a different motorbike and she bought a road-bike for her husband.  When Mrs Hanger started at Australia Post she used to ride her motorbike to work.  This changed after the accident..  Immediately after the accident Australia Post sent taxis to pick her up and take her to work, although she was not sure for how long this went on.  Following this, she drove to work in a car.  Mrs Hanger stated that she has only ridden the trail-bike when the car was getting serviced, which she said was once or twice after the accident.  She believes in February 2002, she rode her own bike to work, because her car was in service.  Mrs Hanger stated that she believes the riding of the motor bike damages her tail-bone, because she gets more pain when doing that.

23.     In terms of her household duties, Mrs Hanger does “bits and pieces”..  Her husband does the vacuum-cleaning and she hangs out the washing.  She does as much as she can, but has to take Panadeine Forte..  Mrs Hanger does not sit down all day, but at home it is different to work because she can sit down and relax when she needs to.  Mrs Hanger stated, however, that at work she has to sort letters, so if she needs to sit down, she can sort “First Class” letters.  Mrs Hanger has a support for her back, which she uses at work.  She does not use it everyday.  She bought it herself and stated that it helps for half of her back, but not all her back.  Mrs Hanger stated that her husband helps out a great deal in looking after the children.  However, she mainly looks after them, watches them and plays with them.  If they want something she gets it for them.  Mrs Hanger prepares their meals, helps to get them dressed, although the two older children can dress themselves now and the younger one is still in nappies.

24.     Before the accident in 1995, Mrs Hanger used to horse-ride and play tennis and golf every now and then.  She stated that she has not ridden her horse since the accident.  She played golf every four to five months with a friend from school.  She also played tennis every second weekend with a group of friends.  Her exercise now is walking and swimming in summer time.  She tries to walk every second day because her right leg and knee swells up.  She tries to swim as much as she can, but finds this difficult with her children because she needs her mum to help with the children if she goes swimming.  She does that about four to five times per month.  The chiropractor told her to do walking and more swimming.  Her doctor has not suggested anything in terms of exercise.

25.     Mrs Hanger stated that when she was married she weighed ten and a half stone.  She now weighs 103 kilograms.  She has put on more weight since doing night shift work, which commenced in December 2002.  She associates the weight gain with the different hours involved in night shift.  She now sleeps between 9.30am and 2.30pm.  She has been to a dietician and she does not eat junk food such as McDonalds.

26.     Mrs Hanger presently sees her general practitioner, Dr Macpherson, for her back, tail-bone and shoulder when she has days off, about once every two weeks.  Dr Macpherson gives her prescriptions for Panadeine Forte, which she takes every four hours.  Mrs Hanger takes Panadeine Forte when she gets up, before her night shift at about 1am, again at about 4am and again at about 8am.  She stated that she takes two each time and that she “takes them as she needs them”..  She does not see any specialists, apart from her chiropractor, whom she last saw in December 2002, because she cannot afford physiotherapy and chiropractic treatment.  Mrs Hanger told the Tribunal that Dr Macpherson has not commented to her about the dosage she is taking of Panadeine Forte..  Mrs Hanger noted that one packet has 20 tablets in it.  She has taken two Panadeine Forte tablets today. She stated that on weekends she takes about four tablets per day and on weekdays up to six per day.  Mrs Hanger was not sure why she takes less tablets on weekends, but thought perhaps it was because she does not do as much on the weekend. 

27.     In relation to her pain at the hearing in Newcastle, Mrs Hanger told the Tribunal that her back was aching and her tail-bone was quite sore.  Mrs Hanger noted that she had told doctors she cannot do things because of her tail-bone.  In relation to a report from Dr Lennon in 1999 (N2002/692, T50, p148), Mrs Hanger stated that she does not recall telling Dr Lennon that she had no problems with her tail-bone, and noted that she has always had problems with her tail-bone. 

dr k ostinga, orthopaedic surgeon

28.     Dr Ostinga provided three reports dated 17 June 2002 (Exhibit A3), 8 August 2002 (Exhibit A5) and 13 November 2002 (Exhibit A7) and gave oral evidence to the Tribunal. 

29.     In his first report dated 17 June 2002, Dr Ostinga diagnosed mild discogenic disease of the lumbar spine at L4/5, coccydynia and healed fracture of the right tibia. He reported no abnormality in relation to the right ankle, cervical spine and shoulder. Dr Ostinga had regard to his own examination and investigations including: CT cervical spine, CT lumbar spine, X-ray full spine including coccyx and X-ray of the right ankle.  In relation to treatment, Dr Ostinga only made recommendations for treatment in relation to the lumbar spine and coccydynia.  In relation to the lumbar spine, he recommended conservative management including weight loss and exercise and did not believe chiropractic therapy would offer any long-term improvement.  Dr Ostinga opined that Mrs Hanger’s major problem was her coccydynia, which he thought likely to be aggravated when riding her motorbike.  He recommended referral back to Professor Ghabrial for consideration of treatment to her coccyx, which he suggested might be along the lines of either epidural injections or even coccygectomy.  Dr Ostinga noted that her period of rest in bed and analgesics would reasonably have been expected to mask the symptoms of coccydynia at the time of the accident.

30.     Dr Ostinga found that the prognosis for the lumbar spine was excellent, including with weight loss and exercise.  The overall prognosis for the right lower limb was for complete recovery, but he thought there may be some permanent irritation behind the patella tendon affecting kneeling and that the tibial nail may need to be removed.  Dr Ostinga did not believe the right ankle had been injured.  In relation to Mrs Hanger’s prognosis for coccydynia, Dr Ostinga thought that this was guarded and it may, as evidenced in Mrs Hanger’s case, provide symptoms over many years.

31.     In his report of 13 November 2002, Dr Ostinga noted that Mrs Hanger has continuing disability of her lumbar spine, coccyx and right leg associated with the accident in March 1995.  Dr Ostinga noted that the injury to Mrs Hanger’s lumbar spine and coccyx was related to the accident and also to the nature of her work, having to sit for long periods in the motorcycle saddle.  He thought these problems were likely to be ongoing and may require further treatment and review from Professor Ghabrial.  Dr Ostinga confirmed his view about the right leg, noting also that even if the tibial nail is removed, there is likely to continue to be irritability due to alteration in the bone structure, preventing kneeling.  Dr Ostinga provided a view regarding consultations with Mrs Hanger’s general practitioner that these were necessary, as was the purchase of a lumbar corset.  Additionally, he found Mrs Hanger’s periods of absenteeism from work fair and reasonable.  He confirmed that the chiropractic visits he thought were likely to produce temporary relief, but overall not likely to affect the outcome of the conditions described.  Dr Ostinga commented that, having read Dr McGill’s report, it is difficult to argue strongly one way or the other as to the effect the motor vehicle had on her present back symptoms, however as it was a significant injury he would give her the benefit of the doubt.  He thought that coccydynia may be coming from her back problem and may be aggravated by her need to sit on a motorcycle seat.  He believed that her obesity may be as a result of her depression and inactivity following the accident.

32.     At hearing, Dr Ostinga confirmed that his principle finding was coccydynia, related to the severe pain in her low spine and difficulty sitting and tenderness in that area.  Dr Ostinga noted that coccydynia was often caused by direct trauma and can occur spontaneously, due to rehabilitation from illness or referred pain from her lumbar spine.  Dr Ostinga noted that to injure your tail-bone, the classic way is to fall on it, however to you do not have to fall on the tail-bone to have pain in that area.  Dr Ostinga noted there was nothing before him that indicated Mrs Hanger fell on her tail-bone during the accident.

33.     Dr Ostinga noted that he would be concerned about the amount of Panadeine Forte Mrs Hanger reported she was taking, which was up to 38 tablets per week.  He prescribes four a day, six hourly and he believed a maximum of 28 per week.  In relation to the bulge in Mrs Hanger’s lumbar spine at L4/5, Dr Ostinga noted that this could occur spontaneously in the absence of trauma, and may or not may be indicative of symptoms.  He opined that he could not state that it is the direct result of the accident.

34.     In terms of Mrs Hanger’s coccydynia, Dr Ostinga noted that one of the treatments is manipulation under anaesthetic, and that he believed that there is no better manipulation than a baby’s head “popping out”..  Although he has not heard of that happening previously, it is possible.  Dr Ostinga noted that coccydynia has a reputation for reoccuring.  For example, he has had instances where there has been manipulation under anaesthetic, and this has lasted three months, then the coccydynia returned.  In terms of the nexus between the coccydynia and the injury, Dr Ostinga noted that there does not appear to be any evidence of direct injury to the coccyx, but it is possible to get referred pain, and it also may be caused by Mrs Hanger having to sit around for months after the accident recovering from a broken leg.

35.     Dr Ostinga noted that for most people with coccydynia it does get better, but this can take months or years.  Possible treatment for coccydynia includes: local anaesthetic and steroids; removal of the coccyx or manipulation under anaesthetic.

36.     Dr Ostinga noted concerning Mrs Hanger putting on weight that he believed that this was more related to depressive illness than anything else.  He noted that there is often an overreaction to the trauma, which may result in difficult to define symptoms.  Dr Ostinga opined in relation to the overall effect of the accident, that on the balance of probabilities, he believed a great deal of Mrs Hanger’s problems were related to her accident.

dr n w mcgill, consultant rheumatologist          

37.     Dr McGill provided a report dated 3 June 2002 (Exhibit R1) and gave oral evidence to the Tribunal.  In Dr McGill’s report of 3 June 2002, Dr McGill noted the major reason for his assessment was in relation to Mrs Hanger’s back.  He noted that Mrs Hanger became aware of back discomfort soon after the accident and this has continued.  Dr McGill noted that the history did not suggest lumbar nerve root irritation and there was no sign of nerve root irritation or dysfunction.  The positive examination findings with respect to her back were that she was markedly overweight and demonstrated some restriction of back movement.  Dr McGill noted that there was no neurological abnormality and her imaging studies were basically normal, with only a diffuse bulge of the disc at L4/5. 

38.     Dr McGill was of the view that it is possible Mrs Hanger suffered a low back injury at the time of the accident, but noting the lack of change in her imaging studies in the subsequent years and that she is markedly overweight, Dr McGill was of the view that her back pain is due to her obesity and lack of physical fitness.  Dr McGill was of the view that Mrs Hanger was fit for postal delivery duties, but required a weight reduction program and active physical exercise or she may be unfit for work due to obesity and lack of physical fitness.  Dr McGill did not believe chiropractic treatment was beneficial.  Dr McGill concluded that her back symptoms subsequent to six months after the accident have not been related to that accident.  He noted that the prognosis depends on her weight, and if she remains overweight she will continue to suffer low back pain.

39.     At hearing, Dr McGill noted in relation to Mrs Hanger’s exercise regime pre and post the accident in 1995, that on balance, from only limited information, the exercise program Mrs Hanger has been doing since the accident sounds more appropriate for keeping weight down, because it is a more regular program.  This was based on information from Mrs Hanger that before the accident she did horse riding now and then, golf every four or five months and tennis every second weekend, and after the accident, she walks every second day and swims four or five times a month. 

40.     In relation to Mrs Hanger’s weight increases, Dr McGill noted that Mrs Hanger’s weight has fluctuated with substantial increases apparently associated with pregnancies and an overall trend to weight increase.  Dr McGill noted that if the motor vehicle accident, which limited her mobility due to her knee injury, was a cause of weight gain then an increase in weight such as the increase she experienced between 1995 and March 1997 from ten and a half stone to 12 stone would have been expected, but this would have been expected to have reduced again if the accident was the primary stimulus for the increase.  Given this was not the case, Dr McGill was of the view that there was a small increase in weight associated with the accident, but this could not account for the vast majority of the weight increase, or the excessive increase during pregnancies.

41.     Referring to the CT scan of April 1998, Dr McGill noted that a diffuse posterior bulge is a finding that is found commonly in asymptomatic people and is essentially a normal finding.  Dr McGill was not of the view that this was indicative of a soft tissue injury in the lumbar spine.  Dr McGill noted also that the plain X-rays in April 2002 were normal.  Dr McGill acknowledged that if one suffers a significant disc injury, a CT scan immediately after the accident may not show much protrusion, but there would be expected to be a progression of changes with time.  After a number of years, if there has been a significant disc lesion, one will see disc face narrowing on the plain X-ray.  Dr McGill opined that if an X-ray is normal, and remains normal years later, that indicates there was no substantial disc injury.

42.     Dr McGill acknowledged that Mrs Hanger’s motorbike accident was substantial and was the sort of accident that could have produced an injury.  However, the radiological studies up until April 2002, do not show any evidence of injury.  Dr McGill noted that this was the basis for his conclusion that it was more likely that Mrs Hanger’s back pain was due to being overweight rather than an injury sustained at the time of the accident.

43.     Dr McGill noted that if Mrs Hanger remained at the same weight or her weight increased, an ongoing level of symptomatology would be expected.  Dr McGill stated that for back pain associated with a structurally sound back, in the setting of obesity, an increase in activity to increase fitness, lose weight and gain muscle strength would be recommended.  This would decrease the overall level of symptoms and is beneficial, even though people may experience discomfort while doing those sorts of activities.  In relation to standing for extended periods, Dr McGill noted that this is not beneficial in reducing weight or symptoms, and they would feel discomfort.  In relation to chiropractic treatment, Dr McGill confirmed his view that this was counter-productive, as it was a passive therapy that encourages people to lie there, is of no help and gives people the wrong message, when the means to improve their circumstances is to improve muscle strength and lose weight.    

44.     Dr McGill stated that ccoccydynia is a diagnosis based on symptoms and the finding of localised tenderness with pressure over the coccyx.  Dr McGill noted that Mrs Hanger did not report any symptoms to him in his examination.  He did not palpate over the coccyx in the examination as it is not part of his routine examination.  On the basis of the history given by Mrs Hanger, therefore, Dr McGll did not believe a diagnosis of coccydynia could be made.  Dr McGill stated that coccydynia can be caused by trauma, usually when someone fell slightly backwards, in a leaning back position, such that they actually manage to contact the coccyx, rather than the ischial tuberosity which is what would contact if you fell from an upright sitting position.  Dr McGIll noted that excision would be a treatment of last report and rarely performed.  He noted that corticosteroid and local anaesthetic injection is more effective than physiotherapy. 

45.     Dr McGill’s view was that excision should only be performed when there is a clear imaging abnormality at that site, and very well localised symptoms.  Dr McGill noted that an excision would only be performed in a very small percentage of persons who had a bone scan that showed a “hot coccyx”, and there is reliably reported localised pain at the coccyx, not the low back, with preferably a temporary response to local anaesthetic blockade.  After the excision the coccyx usually settled down, although it is often slow to do so, taking months or even a year, and settling usually occurs spontaneously.  Dr McGill thought that before making a guarded prognosis, as had Dr Ostinga, in relation to coccydynia, he would wish to see if there was a response to the simple injection therapy.

46.     Dr McGill did not believe that coccydynia was likely to be aggravated by riding a motorbike.  He noted that activities that involve sitting in a slouched position tend to make coccydynia worse.  He was of the view that on a motorbike there was little chance of slumping backwards, and would not be an activity that would aggravate coccydynia.  Dr McGill noted, however, that motorbike riding could aggravate low back pain.  If there was a substantial disc lesion, the pain would be more uncomfortable.  If there was no substantial disc lesion, he would not expect the pain to be worse.  If someone was overweight and had a structurally normal back he would not think it impossible that there was more pain when riding a motor bike, but he did not believe it would do further damage. 

47.     In relation to Dr Ostinga’s opinion that the coccydynia may be arising from her back problem, Dr McGill thought that this was a confusing diagnosis.  He noted that people with a lumbar spine problem can have referred pain, which may be referred into the buttock, and down towards the coccyx, or into the thighs.  This is a back problem, with referred pain and not coccydynia.  Dr McGill noted that coccydynia is a separate entity, which is only useful if used in the strict sense of someone with localised pain at the coccyx associated with local tenderness at the coccyx.

48.     Dr McGill agreed that, assuming Mrs Hanger had ongoing back discomfort, it would be reasonable for her to have low grade analgesics from time to time.  He did not agree that if she was required to stand for extended periods at work, it would be reasonable to have some time off work.  He thought it would be reasonable if she was required to stand to be allowed periods where she could sit or walk.  If Mrs Hanger was in a job where she could only stand and there was no possibility of walking or sitting then perhaps he would agree she should be away from work, but where there was an alternative that would be better.

Other Relevant Evidence

toni hamilton, chiropractor

49.     Several reports from Ms Hamilton are included in the T Documents (4 January 1996, N2002/692, T20; 6 May 1997, N2002/692, T34; 16 June 1998, N2002/692, T43) and a report of 17 March 2002 (Exhibit A2).  Ms Hamilton saw Mrs Hanger initially on 3 January 1996, after a referral from Dr Peterson (N2002/692, T20).  Ms Hamilton provided treatment to the lumbosacral area, the right shoulder, right scapula area and the left wrist, which she noted have been persistent problems since the accident in 1995 (N2002/692, T43).  Ms Hamilton noted that Mrs Hanger’s symptoms are a result of the motorcycle accident in March 1995, aggravated by two subsequent accidents (N2002/692, T34).  Ms Hamilton noted that her low back and sacro-coccygeal pain is aggravated by the jolting received whilst riding a motorcycle and the left wrist pain is aggravated by her delivery work and the position of wrist extension often needed whilst riding a motorcycle (N2002/692, T34).  In her most recent report (Exhibit A2), Ms Hamilton noted that Mrs Hanger suffers from chronic back and right shoulder injuries and to her knowledge there were no injuries or symptoms prior to the motor vehicle accident on 15 March 1995.

lorelle ebens, physiotherapist

50.     In a report of 29 April 1996 (N2002/692, T23), Ms Ebens noted that Mrs Hanger first visited her for physiotherapy treatment on 5 April 1995.  She noted that Mrs Hanger was, at the time of this report, receiving treatment from a chiropractor for her thoracic and lumbar spine pain.  Ms Ebens noted:

“Natasha has returned to her normal duties of work in the postal delivery service.  However, this work aggravates her pain, now felt in the lumbar spine and especially in the coccyx region.  This pain is felt particularly after the postal delivery.  She states that it takes her about ten minutes to get off the motor bike due to pain” (N2002/692, T23)

professor y a e ghabrial, orthopaedic and spinal surgeon

51.     Professor Ghabrial had a number of reports provided in the T Documents, including 19 May 1995 (N2002/692, T13); 27 September 1995 (N2002/692, T16); 29 November 1995 (N2002/692, T18) and 20 April 1999 (N2002/692, T52).  Professor Ghabrial treated Mrs Hanger at Royal Newcastle Hospital shortly after the accident. On 20 March 1995, Professor Ghabrial operated on Mrs Hanger, performing a closed reduction and inserting a tibial nail (N2002/692, T13).  In August 1995, Professor Ghabrial removed screws in Mrs Hanger’s leg (N2002/692, T16).

52.     On 20 April 1999, Professor Ghabrial reported following an examination of Mrs Hanger on that date (N2002/692, T52).  In this report Professor Ghabrial noted pain in the back, right shoulder and right lower limb.  Professor Ghabrial opined that Mrs Hanger sustained a fractured right tibia and fibula, injury to the L4/5 intervertebral disc and soft tissue injuries to the right shoulder in the motorcycle accident on 15 March 1995.  Professor Ghabrial noted that it was highly likely that Mrs Hanger would continue with her present disabilities.  He assessed Mrs Hanger as having a permanent impairment of the right lower limb of 20 per cent, the right upper limb as ten per cent and a ten per cent whole person impairment of the back.  Professor Ghabrial noted that he had no doubt that Mrs Hanger’s present clinical features, residual disabilities and permanent impairment are the result of her injuries sustained on 15 March 1995.

dr j c downes, orthopaedic consultant

53.     Dr Downes examined Mrs Hanger on 16 November 2000 and provided a report of that date (N2002/692, T79).  Dr Downes opined that the diagnosis of Mrs Hanger’s back condition is a simple ligamentous-type pain with the best treatment being to lose weight and to exercise regularly.  On the balance of probabilities Dr Downes thought that this condition was not related to the accident, despite the alleged continuity of symptoms.  Dr Downes noted there is no pre-existing condition in the spine and that any aggravation that may have occurred from the motorbike accident would have been temporary.  Dr Downes did not believe Mrs Hanger’s current pain in the low back was related to her employment with Australia Post.  Dr Downes believed Mrs Hanger was fit for work.  He did not believe chiropractic treatment was appropriate.  Dr Downes noted that Mrs Hanger was unconscious after the accident and that there may be expected to be personality changes, memory changes or change to the tolerance of pain, and this may be playing a role in Mrs Hanger’s presentation, but noted that work would provide good psychotherapy.

dr w lennon, orthopaedic surgeon

54.     A number of reports from Dr Lennon are included in the T Documents including 17 February 1999 (N2002/692, T50), 5 November 1999 (N2002/692, T65), 5 November 1999 (N2002/692, T66) and 5 January 2000 (N2002/692, T68).  Dr Lennon was of the view, in his report of 17 February 1999, that clinically and radiologically there is little to substantiate Mrs Hanger’s continuing back symptoms radiating to the right periscapular shoulder and doubted the value of chiropractic treatment.  He also agreed with Dr Middleton that Mrs Hanger had made a full recovery from the fracture of the tibia and the only future requirement would be removal of the intramedullary nail in the future. 

55.     In his report of 5 November 1999 (N2002/692, T65), Dr Lennon noted that examination of the coccyx revealed slight local tenderness, but no evident deformity.  Dr Lennon confirmed in this report that he was of the same opinion as his earlier report.  In another report of the same date (N2002/692, T66), Dr Lennon noted that there probably exists a ten per cent permanent impairment of Mrs Hanger’s back related to the accident, slight discomfort to her right shoulder with possibly five per cent loss of efficient use of the right upper limb at and above the elbow related to her shoulder disability.  He could not make any assessment of the knee or ankle until the nail had been removed. 

56.     In his report of 5 January 2000 (N2002/692, T68), Dr Lennon noted that his assessment of impairment had not been based on the “Guide to the Assessment of Permanent Impairment” (“the Guide”) and stated that he agreed with the assessment by Professor Ghabrial of ten per cent impairment of the right upper limb according to Table 9.4 of the Guide and a ten per cent impairment of the back according to Table 9.6.  He did, however, query the relationship between the accident and these conditions, there being apparently nine months between the accident and the occurrence of shoulder and back pain, although noting that Mrs Hanger “apparently insists that the discomfort occurred following the motor bike accident apparently ignored by her then treating doctors”.

dr r middleton

57.     Dr Middleton provided two reports included in the T Documents dated 13 March 1997 (N2002/692, T30) and 15 April 1997 (N2002/692, T32).  Relevantly, in his report of 13 March 1997, Dr Middleton noted in relation to Mrs Hanger’s back that she complains of soreness in the interscapular, dorsolumbar and lumbo-sacral regions with radiation to the coccyx.  She told Dr Middleton that this soreness is constant, and worsened on activity such as riding a bicycle.  Mrs Hanger also noted she was unable to horse ride because of coccygeal pain.  On examination, Mrs Hanger stood without deformity, had full painless range of motion of the dorso-lumbar spine.  There was no neurological abnormality in the lower limbs, and straight leg raising was 90 degrees on both sides.  Dr Middleton concluded in relation to Mrs Hanger’s back that she complains of back pain, without any physical abnormalities including loss of range of movement.  He though it unlikely that she had sustained any particular injury to the spine, other than possible soft tissue injury in the accident. Dr Middleton was also of the view that Mrs Hanger had made a full recovery from the effects of the fracture of the tibia and fibula, other than removal of the intramedullary nail.

dr ajr macpherson, southlakes medical group

58.     Dr Macpherson provided a report dated 11 June 2002 (Exhibit A8).  Dr Macpherson noted that on 4 April 1995, the Southlakes Medical Group were informed that Mrs Hanger had a motor vehicle accident injuring her right hand and right leg, breaking her tibia and fibula.  Dr Macpherson noted that Mrs Hanger has had various periods of incapacity related to her work, often due to back pain caused by asymmetry of her spine due to her leg fractures and her inability to cope with riding a motor bike for long periods.  Dr Macpherson provided the view that Mrs Hanger’s disabilities are directly related to her original injury, and that she should work inside the post office and should not be subject to any excessive stretching or bending.  Dr Macpherson opined that Mrs Hanger should permanently discontinue being employed as a postal worker riding a bike, which is most inappropriate due to her injury..

dr m peterson, general practitioner

59.     There are several reports from Dr Peterson, of Bonnels Bay Surgery, in the T Documents, including 12 December 1995 and 2 January 1996 (N2002/692, T19), 20 May 1996 (N2002/692, T24), 20 May 1996 (N2002/692, T27) and 16 September 1998 (N2002/692, T47).  Also in the T Documents are several medical certificates completed since the accident by Dr Peterson and other doctors from the Bonnells Bay Surgery, including Dr V Reid, Dr C van Rooy and a locum doctor, Dr J Evans. 

60.     Of note in relation to the lower back injury, on 2 January 1996, a medical certificate completed by Dr Peterson indicated that Mrs Hanger was suffering from back pain, tibial fracture and right ankle ligament laxity and referred Mrs Hanger to a chiropractor (N2002/692, T10, p34). On 6 November 1996, Dr Evans completed a medical certificate for “Back Injury 1995” for Mrs Hanger (N2002/692, T10, p39).  Dr C van Rooy completed a medical certificate on 6 April 1998, noting a diagnosis of “soft tissue injury of lower back and right shoulder and upper chest” (N2002/692, T10, p43).  A medical certificate completed by Dr Evans on 14 April 1998 noted a diagnosis of back injury caused by the accident and recommended physiotherapy treatment (N2002/692, T10, p46).  A medical certificate completed by Dr Peterson on 16 September 1998, noted “myofascial and cervical nerve root pain right shoulder, right side L5-L4 sciatica” caused by the accident and referred Mrs Hanger for physiotherapy (T10, p53).

61.     In Dr Peterson’s report of 12 December 1995 (N2002/692, T19, p64), he notes that Mrs Hanger had to remain on office duties since the accident in March 1995, which resulted in a fractured tibia and fibula as well as internal cartilage injury to her right knee, as well as lower back and right shoulder soft tissue injuries.  In a referral letter to Toni Hamilton on 2 January 1996, Dr Peterson noted that over the last month or two, Mrs Hanger appears to be getting back pain which generalises to the lumbar area and right scapula area (N2002/692, T19, p65).

62.     In his report of 20 May 1996 (N2002/692, T24), Dr Peterson noted that Mrs Hanger first presented to the surgery on 21 August 1995.  Dr Peterson noted that on 12 December 1995, Mrs Hanger presented for her right leg and knee problems.  On 2 January 1996, Mrs Hanger presented with three days of back pain, which she told Dr Peterson was the same pain she had had before as a result of the accident in March.  Dr Peterson noted that she had a sore back since the accident, but the pain had worsened since starting back at work and driving three weeks prior to 2 January 1996.  Dr Peterson noted that Mrs Hanger is likely to have significant future disability in relation to osteoarthritis of the ankle and knee and possibly back problems.

63.     On 30 May 1996, Dr Peterson referred Mrs Hanger to Ms E Seysener, Clinical and Educational Consultant, for psychological counselling (N2002/692, T27).  On 16 September 1998 (N2002/692, T47), Dr Peterson referred Mrs Hanger for physiotherapy, noting that Mrs Hanger has extensive myofascial pain in her lumbar, thoracic and right shoulder area resulting from a motor vehicle accident at work on 15 March 1995.

64.     On 18 March 2002, Dr van Rooy provided a report (Exhibit A1), noting that Dr Peterson was currently on long service leave.  She noted that Mrs Hanger had a consultation on 14 December 2000 and 8 January 2001, in relation to exacerbation of her lower back pain.  On 8 January 2001, Dr Peterson completed a workers compensation form which indicated exacerbation of the lower back injury and referred Mrs Hanger to Toni Hamilton for chiropractic treatment. Dr van Rooy noted that it is believed that the consultations on those dates were directly related to the injury on 15 March 1995.    

mrs anne deaves

65.     Mrs Deaves, Mrs Hanger’s mother, completed a statutory declaration dated 29 June 1998 (N2002/692, T44).  Mrs Deaves noted that within 48 hours of the accident Mrs Hanger complained to her of a sore back.  She recalled inspecting her back and seeing that it was bruised and scratched.  Mrs Deaves recalled telling the nurses who stated it was muscle damage and would get better.  Mrs Deaves noted that whilst Mrs Hanger was in hospital and even after her discharge, she would rub her daughters back in the areas where it was painful.  Mr Deaves reported that Mrs Hanger’s complaints of pain in her back remained fairly steady until December 1995, when she told her the pain was increasing.  Mrs Deaves noted that Mrs Hanger was unhappy with Dr Drew and changed to Dr Peterson, to whom she complained of back pain on her very first visit on 2 January 1996.     

APPLICANT’S SUBMISSIONS

66.     Mr Bachelor, for the Applicant, submitted that the practical starting point for consideration of this matter was the decision of the Tribunal dated 29 June 2000 (N2002/692, T72).  Mr Bachelor noted that the Applicant was injured in March 1995, was conveyed initially to John Hunter Hospital and later to Royal Newcastle Hospital where she came under the care of Professor Ghabrial.  Mr Bachelor noted that Professor Ghabrial's reports of that early treatment are in evidence as part of the T Documents, and that those reports do not refer to back injury.  Mr Bachelor submitted that the first reference to back injury is in Dr Peterson's report.  Mrs Hanger first started seeing Dr Peterson in August 1995, having transferred from a previous general practitioner by the name of Dr Drew.  Mrs Hanger saw Dr Peterson either in December 1995 or very early in January 1996 with a complaint of back pain, and that seems to be the first documented complaint of back pain.  Dr Peterson immediately referred Mrs Hanger to Toni Hamilton, Chiropractor, who has continued to treat Mrs Hanger ever since.  There are a number of Toni Hamilton’s reports in evidence, both in the T documents and an additional report was tendered as part of the Applicant's evidence (Exhibit A2).

67.     Mr Bachelor submitted that liability for compensation was accepted initially up until 1997, and then proceedings were brought which resulted in the decision of this Tribunal of 29 June 2000, following an agreement between the parties.  It was accepted that the Applicant had suffered a ten per cent impairment of her back, under Table 9.6 of the Guide and a 20 per cent impairment of the right leg, under Table 9.5. 

68.     Mr Bachelor submitted that the Respondent is estopped from denying there was a back injury, although he stated that he may not put it that highly and acknowledged that it is contentious whether estoppel is applicable in this case.  Mr Bachelor submitted that the Respondent cannot escape from the fact the Applicant does suffer from a ten per cent impairment of her back and, perhaps less importantly for these proceedings, a 20 per cent impairment of her right leg.  Mr Bachelor referred to the full Federal Court decision of Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 which considered the suggestion that section 33 of the Administrative Appeals Tribunal Act 1975 provides a series of bases on which the Tribunal can decline to revisit previously determined matters or, as the situation demands, reconsider the totality of the matter or some aspect of it.  Mr Bachelor noted that the Federal Court then referred to Re Matusko and Australian Postal Corporation (1995) 21 AAR 9 where the Tribunal concluded that although it should not generally allow relitigation of issues already decided, it could use its flexible procedures to allow a second claim in respect of an injury that already had been the subject of a claim. Mr Bachelor stated that the Federal Court in Morales v Minister for Immigration and Multicultural Affairs (supra) then noted that the Tribunal may in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision. 

69.     Mr Bachelor submitted that the question for this Tribunal is the treatment that Mrs Hanger has been receiving since the date in which liability was denied, which was, in respect of treatment expenses, 24 November 2000; and in respect of absences from work, 30 October 2000.  The question therefore is whether or not the absences from work and treatment for her back and leg condition since those dates are attributable to the injuries sustained in the accident, and the Applicant's contention is that they are. 

70.     Mr Bachelor opined that it is not significant whether or not the back injury is coccydynia as diagnosed by Dr Ostinga, or whether it is a soft tissue injury to the back, as suggested by Professor Ghabrial.  Mr Bachelor noted that the diagnosis of coccydynia was made fairly recently by Dr Ostinga.  This diagnosis may be explained, as was noted by Dr McGill, by the fact that it is possible to have pain from the lumbar area of the back extending down to the buttocks and into the area of coccyx.  Mr Bachelor contended that the issue is that the Applicant does have a back injury, and she has required time off and treatment for it.  She has had extensive chiropractic treatment, and that provides relief.  Dr Ostinga concedes that the chiropractic treatment provides pain relief, but opined that it is not likely to give any long term curative benefit.  Mr Bachelor submitted that, as Mrs Hanger finds pain relief in that form of treatment, a degree of chiropractic treatment would be reasonable. 

71.     Mr Bachelor submitted that Professor Ghabrial saw Mrs Hanger soon after the accident for treatment, which was specifically directed towards the leg injury.  However, he saw her again in 1999, and had the benefit of X-rays and, in particular, the CT scan of April 1998 when the L4/5 bulge is shown.  Mr Bachelor noted that it would appear that Professor Ghabrial, and to a lesser extent Dr Ostinga, placed more reliance on that investigation in the diagnosis of soft tissue injury to the lumbar spine.  Mr Bachelor submitted that although there was no complaint to Professor Ghabrial in respect of back injury in the early part of the treatment of her in 1995, when he saw her again in 1999, he was in no doubt that Mrs Hanger suffered a soft tissue injury in her low back.  That was confirmed by the finding of the Tribunal in June 2000.

72.     Dr Ostinga diagnosed coccydynia and suggested referral back to Professor Ghabrial for treatment.  Mr Bachelor noted that coccydynia is notoriously difficult to treat, the prognosis is guarded and the symptoms can extend over many years.  This is certainly consistent with what Mrs Hanger has been complaining about in respect to an injury to the coccyx or the lumbar spine that has proved resistant to treatment and ongoing in the symptomatology of which she complains.  Mr Bachelor submitted that none of the doctors appear to doubt that Mrs Hanger is suffering from the pain and discomfort from which she suffers.  When one looks at the list of time off work to date, or at least up until July 2002 (Exhibit A9), while not being a great deal of time off work over the period, Mrs Hanger has obviously been enthusiastic in getting back to work.  Even Dr McGill conceded that it would not be unreasonable for her to take time off from time to time if she was experiencing discomfort, depending on her activity, and that it was not unreasonable for her to take analgesic medication from time to time.

73.     In relation to Miss Henderson’s submission regarding the earliest complaint to Dr Lennon of coccydynia or pain in the coccyx in February 1999, Mr Bachelor submitted that Mrs Hanger did complain to Dr Middleton on 17 March 1997 of soreness in the interscapular dorso-lumbar and lumbo-sacral regions with radiation to the coccyx. (N2002/692, T30, p90).  Mr Bachelor submitted that that is consistent with the Applicant's complaints, certainly since early 1996, of pain in the lumbar area. 

74.     Mr Bachelor noted that Dr McGill did not endorse the chiropractic treatment, but Mrs Hanger finds it is of benefit.  In those circumstances, Mr Bachelor submitted that at least some degree of chiropractic treatment, along with other conservative treatment would be reasonable, including her earlier physiotherapy treatment, the use of a lumbar support, occasional trips to the GP, analgesic medication, perhaps a trip back to the specialist from time to time, as suggested by Dr Ostinga, and time off work.  Mr Bachelor concluded that Mrs Hanger has an impairment of the back and has had to take time off and the question is whether or not it is reasonable, having regard to the medical evidence and the evidence you heard from her, that she continues to seek treatment and the occasional day off work for that condition.

RESPONDENT’S SUBMISSIONS

75.     Miss Henderson, for the Respondent, submitted that Mrs Hanger has lodged three claims for compensation since the incident on 15 March 1995.  The first claim was lodged by Mrs Hanger on 20 March 1995 (N2002/692, T4, p12) for broken right leg and facial injuries.  The second claim dated 8 January 1996 (N2002/692, T21, pp72, 73) was in relation to the twisted ankle and hurt knee arising out of the same incident.  The third claim, which is the important claim in relation to these proceedings, was lodged on 15 April 1998, and is a compensation claim for broken right leg, lower back injury, torn ligaments in right ankle, right shoulder injury, scarred right upper arm, facial scarring, bruising of wrist [right and left], split head open on right side and injury to the right knee (N2002/692, T5, p15).  Miss Henderson submitted that it was not until this date, 15 April 1998, that Mrs Hanger ever lodged a compensation claim in relation to a back injury.

76.     Miss Henderson noted that Mrs Hanger was admitted on the date of the accident to the John Hunter Hospital.  Mrs Hanger’s evidence was that she was suffering from back pain from the date of the accident, which is consistent with her compensation claim lodged in 1998.  Miss Henderson submitted, however, that there is no record and no complaint noted within the John Hunter Hospital medical records (Exhibit R2) of any problem with Mrs Hanger’s back.  Miss Henderson noted the evidence of Dr Ostinga that it is the practice of staff in hospitals to record the complaints made by patients and against that background, Miss Henderson pointed to the fact that no complaint was ever noted.  Mrs Hanger’s evidence to the Tribunal was that she was suffering back pain and that her mother was rubbing her back.  She also gave evidence that she was telling people about the pain, but no one was doing anything about it.  Miss Henderson submitted that this would not be consistent with ordinary hospital practice and the complaint would have at least been noted. 

77.     Miss Henderson also noted the discharge summary from the Royal Newcastle Hospital, who took over Mrs Hanger’s care on 18 March 1995 (N2002/692, T25).  The Royal Newcastle Hospital records the injuries sustained by Mrs Hanger in her accident as superficial abrasions of the scalp, right upper arm and right knee and that X-ray revealed a closed mid-shaft fracture of the right tibia and fibula.  The summary noted that the treatment at John Hunter Hospital consisted of bed rest and application of a long leg Plaster of Paris and that when her condition allowed, she was transferred for on-going care.  The report notes that upon examination on admission to the Royal Newcastle Hospital, there were no abnormalities detected apart from mild focal tenderness in the right costal margin of the upper abdomen.  The report then notes the surgery that was performed in order to correct the fracture of the right leg, her ability later to mobilise on crutches, with the final diagnosis being made of fractured right tibia and fibula.  The report further notes Mrs Hanger’s return to hospital in August 1995 under the care of Professor Ghabrial for further surgery in relation to a delayed union of the fractured right tibia.  Miss Henderson submitted that this report, in addition to the John Hunter Hospital records, offer no support for Mrs Hanger's claim that she was suffering problems with her back during the treatment in those hospitals.  Furthermore, as Mr Bachelor conceded, there is nothing in Professor Ghabrial's report to support Mrs Hanger’s claim that she sustained a back injury, which she complained about at the time of her accident. 

78.     Miss Henderson referred to the submission by Mr Bachelor that the Respondent is possibly estopped, but certainly bound by a finding of this Tribunal that the Applicant sustained a back injury.  Miss Henderson referred to relevant decisions on this issue including the decision of Pincus J in Bogaards v McMahon and Another (1988) 15 ALD 313, the decision of Wilcox J in Comcare Australia v Grimes and Another (1994) 50 FCR 60 and the decision of Davies J in Hanna v Australian Postal Corporation (1990) 12 AAR 511. Miss Henderson noted that each of these Federal Court decisions has made it quite clear that there is no estoppel in this Tribunal. Miss Henderson submitted that the Tribunal may, in controlling its own jurisdiction, decline to deal with the precise dispute which it has already decided in a different matter. However, referring to Hanna v Australian Postal Corporation (supra), Miss Henderson contended that Tribunal decisions are ultimately deemed to be no more and no less than decisions of the original decision-maker.  Therefore, a decision of this Tribunal is a deemed decision of the original delegate and therefore has no greater or lesser authority than that sort of decision.

79.     In relation to the Tribunal decision that Mrs Hanger was then suffering a ten per cent impairment of her back caused by her motor vehicle accident, Miss Henderson noted that this was a decision made on the available evidence at the time.  This was also not the subject of a finding by that Tribunal, Miss Henderson noted, as that decision on 29 June 2000 only provided that the Tribunal was satisfied that the proposed terms of the decision were within its powers.  Miss Henderson referred to Dr McGill’s evidence that the radiological examinations in the years 2001 and 2002 of Mrs Hanger, which is since that Tribunal decision, have demonstrated that there was no substantial disc injury suffered by Mrs Hanger.  It was Dr McGill’s view that if something substantial had occurred, there would have been on-going deterioration in the disc which would now be visible even on plain films.  Given that the films do not show this, Dr McGill is able to state that there was no lesion of the L4/5 disc caused by the accident.  Miss Henderson noted that the basis on which the finding had been made was the view of Professor Ghabrial in his 1999 report (N2002/692, T52).  Professor Ghabrial reached the opinion (N2002/692, T52, p59) based on the CT scan, that Mrs Hanger had suffered an injury to the L4-5 intervertebral disc at the time of the accident.  However, Miss Henderson noted, Dr McGill has now explained why that view should be rejected and why that diagnosis is not safe to rely on. 

80.     Furthermore, Dr Ostinga also discounted Professor Ghabrial’s view entirely in his evidence.  Dr Ostinga was asked about the likelihood that Mrs Hanger’s bulge at L4-5 was caused by her motor vehicle accident and Dr Ostinga’s view was to the effect that bulges are so common that he would not say that that could have been the cause of this particular bulge.  Therefore, the diagnosis offered by Professor Ghabrial back in 1999 was roundly discounted and rejected by Dr Ostinga.  

81.     Turning to Dr Ostinga’s diagnosis of coccydynia, Miss Henderson noted that Mr Bachelor conceded that this is an alternative diagnosis and was made only recently.  Miss Henderson noted that there is a note of a coccyx discomfort offered some years ago in the report of Dr Lennon of 17 February 1999 (N2002/692, T50), when Mrs Hanger reported to Dr Lennon (N2002/692, T50, p148) that she had no problems with her tail-bone.  Dr Lennon noted that since Mrs Hanger’s daughter was born in September 1997, something had apparently “popped out” at the time, but for a period she noticed discomfort in the tail-bone for ten minutes when getting off her bike.  Miss Henderson submitted that this is the only past report in relation to any difficulty with the tail-bone that was made to Dr Lennon years ago and appears to be an account of a problem which readily resolved.  Miss Henderson also noted Dr Ostinga’s view that manipulation can have a beneficial effect on coccydynia and that he could not think of a better way of manipulating the spine than by passing a baby through the pelvis, which is what had occurred in this particular case. 

82.     Miss Henderson submitted that the Tribunal should not be persuaded that Mrs Hanger currently has coccydynia, or alternatively, should not be persuaded that she has coccydynia referrable to the motor vehicle accident.  Miss Henderson noted that Dr McGill pointed out that it is a diagnosis consistent with a trauma to the tail-bone and explained the way in which that particular trauma should occur.  Dr Ostinga similarly spoke in terms of a trauma to the tail-bone.  Miss Henderson submitted that if there had been any trauma to the tail-bone, that would have been manifest back at the time of either the John Hunter Hospital or the Royal Newcastle Hospital treatment of Mrs Hanger.  It would similarly have been evident at the time of treatment by Professor Ghabrial.  There is no reason, Miss Henderson submitted, to conclude that a trauma was suffered at that stage.

83.     Miss Henderson noted that the alternate explanation offered by Dr Ostinga was that sitting for very long periods while recovering from her motor vehicle accident may have brought on coccydynia.  Miss Henderson submitted that, if that were the case, that complaint also would have been evident close to the time when Mrs Hanger actually suffered her original injuries in March 1995 and would have been duly recorded.  However, Dr Lennon's report in 1999 about problems with the tail-bone which lasted for ten minutes when getting off her bike and resolved in September 1997, appears to be the only account of the problem.

84.     Miss Henderson submitted that both diagnoses, of an L4-5 problem caused by the accident or coccydynia caused by the accident are now extremely dubious on the material before the Tribunal.  Miss Henderson noted that the Applicant suggested that Dr McGill conceded in his evidence that there can be referred pain from the lumbar region to the coccyx.  However, Miss Henderson submitted that Dr McGill in fact rejected any suggestion that that sort of referred pain is coccydynia.  He confined that particular diagnosis to a localised pain in the tail-bone area and confirmed that he had received no such history from Mrs Hanger.  Dr McGill, in our submission, does not offer any support before this Tribunal for the concept that coccydynia can be diagnosed as a referred pain.

85.     In relation to the significance of Mrs Hanger’s weight and on-going back pain, Miss Henderson noted that Dr McGill does not dispute Mrs Hanger’s claim that she is suffering from back discomfort or back pain.  However, in terms of the substantial increases in weight which she has experienced, particularly since late 1997 when her first child was born, Dr McGill was of the view that while her injuries and the necessary changes to her mobility after March 1995 might account for some increase, particularly the increase from ten and a half stone to 12 stone, this could not account for the very substantial increases in weight which have occurred in subsequent years.  Miss Henderson submitted that Dr McGill’s view was that Mrs Hanger’s weight gains are not related to her injury or to any changes in her activity because of her injuries.  However, Dr McGill was of the opinion that her back pain can be explained in terms of that increase in weight. 

86.     Miss Henderson contended therefore, that the Tribunal should not be bound by the previous Tribunal decision in 2000, which confirmed agreed terms, in deciding whether on the medical evidence which has been obtained since that decision, Mrs Hanger suffered either from an accident-caused L4/5 lesion or an accident-caused coccydynia.  Miss Henderson submitted that the medical evidence from Professor Ghabrial and Dr Ostinga does not reconcile with what has since been accumulated in the way of X-ray evidence of the Applicant's back, nor can it be reconciled with the views of Dr McGill, which the Respondent submits are cogent and are to be preferred.  In conclusion, Miss Henderson submitted that the decisions under review should be affirmed.

FINDINGS

87.     The Tribunal has come to a decision in this matter, taking into account the evidence, submissions, legislation and case law.

88. A preliminary consideration in this matter is whether the Tribunal is bound by the previous decision of a differently constituted Tribunal dated 29 June 2000. This was a consent decision in accordance with subsection 42C(2) of the Administrative Appeals Tribunal Act 1975 that set aside two reviewable decisions and substituted a decision that the Respondent was liable to pay for compensation under sections 16 and 19 of the Act in respect of the accident on 15 March 1995 (decision incorrectly stated the accident date of 1996, N2002/692, T72) and a decision that the Respondent was liable to pay the Applicant compensation pursuant to sections 24 and 27 of the Act, in relation to a 20 per cent impairment of the right leg under Table 9.5 of the Guide and a 10 per cent impairment of the back under Table 9.6 of the Guide (N2002/692, T72). The issue raised by the Applicant, in relation to these proceedings, is whether the finding of a ten per cent impairment of the back by the Tribunal is a decision which this Tribunal is bound to implement, or estopped from reconsidering, as it is a issue which has already been subject of a decision by the Tribunal. Mr Bachelor in his submissions for the Applicant did not press the issue of estoppel per se, noting that it is a contentious issue whether or not the doctrine of estoppel is applicable to the Tribunal. The Respondent contended that estoppel does not apply in this Tribunal, and has cited several decisions supporting that proposition.

89.     On an examination of the authorities, it is clear that there have been divergent approaches taken to the issue of whether estoppel applies to the Tribunal.  This encompasses both issue estoppel and the form of estoppel known as cause of action estoppel.  In Bogaards v McMahon (supra) Pincus J ultimately concluded that it was inappropriate in that case, to apply the doctrine of estoppel to decisions of the Tribunal.  In Hanna v Australian Postal Corporation (supra) Davies J considered the effect of the Tribunal having given a consent decision that found the Respondent liable for compensation, where a subsequent determination ceased liability.  Although not specifically examining the applicability of estoppel in the Tribunal, Davies J did consider whether the Tribunal had the power to make the subsequent decision, in light of the previous determination and noted, in this regard, that the Tribunal in giving its decision is “functus officio” and does not take over the management of an employee’s entitlement to compensation having reviewed a decision in respect to that compensation.

90.     In Comcare v Grimes and Another (supra) Wilcox J, in discussing whether both cause of action estoppel and issue estoppel apply to this Tribunal noted:

“…there is clearly a close correspondence between issue estoppel and cause of action estoppel and there is high authority for the proposition that issue estoppel does not apply to AAT decisions.  It would be curious if a different rule applied to cause of action estoppel.  It seems to me that the conclusion reached in Bogaards v McMahon, which was clearly correct, can readily be accommodated by the approach taken in Mulheron and Quinn: the AAT, which is master of its own procedures, will not allow a finally determined matter to be relitigated”.

91.     In Comcare v Murphy, Federal Court, 13 February 1996, DG15 of 1995, O’Loughlin J noted (at p12) the comments by Fisher and Lockhart JJ in Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135 that:

“Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s33 of the Administrative Appeals Tribunal Act. Sub-section 33(1)(b) directing that proceedings should be conducted as far as possible with little formality and technicality and sub-s 33(1)(c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine. It is our opinion that the Tribunal is entitled to consider all evidence”

92.     O’Loughlin J then went on to review further authorities and concluded that in his opinion, until a Federal Court intervened to the contrary he was bound by the authorities and that there was no estoppel at law preventing the Tribunal from going behind its earlier decision.

93.     In Morales v Minister for Immigration and Multicultural Affairs (supra), the Full Federal Court, although not deciding the issue on this question, provided comments on whether a prior Tribunal decision should be considered as determinative of a particular aspect of a matter remitted to the Tribunal for determination.  The Full Court in addressing this issue noted that the function of the Tribunal is as an administrative body, which is concerned to determine whether the decision under review was the correct or preferable one on the material before the Tribunal.

94.     In the Tribunal’s view these are relevant considerations in deciding how to approach the issue currently before this Tribunal.  The nature of administrative decisions and the Tribunal’s role was dealt with in the joint majority Tribunal decision by O’Connor J and a Tribunal Member, Mr Barbour, in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519. That Tribunal was also called upon to decide whether estoppel applied and found that estoppel was not an appropriate doctrine to apply in that case as the current application for review concerned a different decision of the Respondent. The Tribunal then proceeded to review a wealth of authorities as to whether estoppel applies in the Tribunal.

95.     The Tribunal in Re Quinn and Australian Postal Corporation (supra) concluded that they did not need to decide in this case whether the doctrine of estoppel applied as a matter of law to administrative decisions. The Tribunal did consider, however, that the policy issues embedded in the doctrine of estoppel were important considerations and relevant to administrative law. The Tribunal noted that the Tribunal’s process is administrative and the Tribunal was obliged to consider the administrative consequences and fairness of the investigation made in reaching the correct and preferable decision. The Tribunal also had regard to section 33 of the Administrative Appeals Tribunal Act 1975, which “provides for the Tribunal the flexibility needed to control its process” and noted that the Tribunal must conduct itself with regard to the dictates of fairness and expedition, after proper consideration of all the facts.  It was within the context of these issues that the Tribunal believed the principles inherent in the doctrine of estoppel, such as bringing an end to litigation, would be considered.  The Tribunal found that estoppel does not apply where there is a different decision, a clear legislative intent, the reconsideration decision is not final and there has prima facie been a change in circumstances.  The Tribunal noted that it would not be reasonable for there to be relitigation for no reason of the same issues before the Tribunal and the Tribunal should not generally allow relitigation of issues already decided.  In this regard the Tribunal noted that in compensation cases like the present, the issue of causation and level of incapacity for the period the subject of the earlier decision would thus not be areas contested in a subsequent hearing.  In Re Quinn and Australian Postal Corporation (supra), the Tribunal decided that the appropriate way to deal with the important public policy issues raised of limiting relitigation or continual review of substantively similar matters, was, pursuant to section 33 of the Administrative Appeals Tribunal Act 1975, to determine when parties tendered their evidence whether such evidence would be admitted.     

96. Turning to the issues raised in this matter, the Tribunal notes firstly that this would not appear to be a case where estoppel is an issue, as the previous decision of the Tribunal involved a separate and independent cause of action from the one that has been commenced before the Tribunal in these proceedings. These proceedings concern liability for compensation for distinct periods of incapacity, which occurred following the previous Tribunal decision, physiotherapy treatment for a period after that decision and a decision to cease liability for compensation for a period since that decision. There has been a determination and reconsideration in accordance with section 62 of the Act for each of these issues.

97.     The Tribunal in the present case adopts the approach taken in Re Quinn and Australian Postal Corporation (supra).  The Tribunal is of the view, having regard to the function of the Tribunal, the nature of administrative decision-making and policy considerations, that in this case, the Tribunal is required to look at all the material, and should not bound by the previous decision of a ten per cent impairment of Mrs Hanger’s back.  I note, in reaching this decision, that the decision of 29 June 2000 was a consent decision, and thus there were no arguments put forward by the parties before the Tribunal, and as noted by the Respondent, the Tribunal was not required to make any findings as such, in relation to the permanent impairment, except to agree that the terms presented by the parties were within the Tribunal’s power.  Furthermore, the issue of permanent impairment, although having conceptual overlaps with the issue of incapacity, ongoing liability and medical expenses, is in the Tribunal’s view necessarily a separate determination and involves different legislative and other considerations.  In this matter, in order to reach the correct and preferable decision, the Tribunal finds that it must look at all the issues fully and on a consideration of all the evidence.  This means that the Tribunal should not be bound by the finding of a ten per cent permanent impairment of the back by the previous Tribunal in June 2000.

98.     Turning to the consideration of the issues raised in the reviewable decisions before the Tribunal, the Tribunal notes at the outset that the evidence provided by Mrs Hanger at the hearing was frank, honest, and the Tribunal did not have cause to doubt Mrs Hanger’s credibility nor was Mrs Hanger’s credibility put into question by any of the medical experts or the Respondent’s cross-examination or submissions.

99.     The main issue before the Tribunal is whether Mrs Hanger has a continuing compensable injury of lower back pain related to an accident which occurred during the course of her work with Australia Post delivering mail on a motorbike on 15 March 1995 and whether she is entitled to compensation from 28 December 2000, including incapacity payments for the period 30 October 2000 to 6 November 2000 and 14 November 2000 and medical expenses, including physiotherapy from 24 November 2000, as a result of that injury.  In defining the parameters of this issue, the Tribunal notes that the reviewable decision of 7 January 2002 deals not only with lower back pain, but also fracture of the right tibia and the reconsideration decision of 24 April 2002 also dealt with the fracture of the right tibia/fibula and right shoulder pain.  No contentions have been made by the Applicant in respect of these other injuries and accordingly I make findings only in relation to lower back pain.

100.   The Tribunal accepts that Mrs Hanger had lower back pain following the accident in 1995.  Mrs Hanger’s evidence at hearing, which the Tribunal accepts, was of back pain from the lower thoracic area down to her buttocks, commencing when she was in hospital after the accident.  Mrs Hanger told the Tribunal that at this time she complained to staff in the hospital and also reported her back pain to Professor Ghabrial at hospital and afterwards in 1995, but he was only interested in her leg at that time.  Mrs Hanger gave evidence that her mother visited her each night in hospital and massaged her back from the shoulder to the lower back.  This evidence is corroborated by a Statutory Declaration from her mother Mrs Deaves, in which she confirms that Mrs Hanger complained to her of a sore back within 48 hours of the accident and that she rubbed her daughter’s back whilst she was in hospital and afterwards. 

101.   The Respondent has submitted that the hospital records and the reports of Professor Ghabrial in 1995 do not record any complaint made by Mrs Hanger regarding lower back pain.  Whilst the Tribunal accepts that there do not appear to be any contemporaneous records of back pain in the records available from John Hunter Hospital and Royal Newcastle Hospital, the Tribunal notes that there are records at least from 12 December 1995 and 2 January 1996 from Dr Peterson, Mrs Hanger’s general practitioner at the time, that Mrs Hanger was reporting back pain related to the accident and Mrs Hanger was referred to Ms Hamilton, chiropractor, at this time.  The reports from the chiropractor confirm treatment for injuries including lower back pain from January 1996.  Mrs Deaves (Mrs Hanger’s mother) in her statutory declaration also noted that Mrs Hanger’s lower back pain, although commencing after the accident increased in about December 1995, which was when Mrs Hanger appears to have first reported the back pain to Dr Peterson. Taking account of all the evidence, on balance, the Tribunal accepts that Mrs Hanger’s lower back pain commenced shortly after the accident in 1995.  The Tribunal also accepts Mrs Hanger’s evidence that the lower back pain continues to this day, and that it is aggravated by such activities as riding a motorcycle.   

102.   In relation to the issue of diagnosis of Mrs Hanger’s back condition, the Tribunal notes that the primary diagnosis by Dr Ostinga is that of coccydynia.  In this regard, the Tribunal notes that there are records, in addition to that of Dr Ostinga, consistent with the reporting of pain in the coccyx and tenderness in this localised area.  The report of the physiotherapist, Lorelle Ebens, dated 29 April 1996 (N2002/692, T23) noted that Mrs Hanger had returned to work, but that her normal duties aggravated her pain and she now felt in the lumbar spine and especially in the coccyx region.  She recorded that the pain was felt by Mrs Hanger particularly after her postal delivery and it took her ten minutes to get off her motorbike due to pain.  The reports of the chiropractor, Ms Hamilton, note that Mrs Hanger had pain in the low back and sacro-coccygeal pain.  In terms of the sacro-coccygeal pain, Ms Hamilton noted in her report of May 1997 (N2002/692, T34) that she believed the sacro-coccygeal pain was due to an accident reported to Ms Hamilton by Mrs Hanger which occurred on 15 March 1995 and was aggravated by two subsequent accidents.  Ms Hamilton also was of the view that the lower back and sacro-coccygeal pain was aggravated by riding the motorcycle.  Dr Middleton in his report of March 1997 noted pain in the lumbo-sacral region with radiation to the coccyx and also noted that Mrs Hanger was unable to horse ride due to coccygeal pain (N2002/692, T20).  Dr Lennon in November 1999 (N2002/692, T65) noted that an examination of the coccyx revealed slight local tenderness, but no evident deformity. 

103.   In the Tribunal’s view there is evidence that Mrs Hanger has reported symptoms of localised pain at the coccyx associated with local tenderness in this area.  Although the evidence specifically in relation to the coccyx appears to date from 1996, the Tribunal accepts Mrs Hanger’s evidence and so finds that the lower back pain, including pain in the coccyx dates from shortly after the accident in 1995, whilst she was in hospital.  Mrs Hanger’s evidence is that riding her motorcycle and activities such as horse-riding aggravated this pain, which the Tribunal accepts.  The Tribunal accepts Dr Ostinga’s opinion that Mrs Hanger’s reported symptoms of the lower back region meet a diagnosis of coccydynia.  The Tribunal notes in this regard that Dr McGill in his examination was clear that Mrs Hanger did not report symptoms to him and Dr McGill did not examine the coccyx as it was not part of his routine examination.  However, failure to report symptoms to Dr McGIll and some other doctors is not determinative in the Tribunal’s view, as on balance and considering all the evidence, the Tribunal is of the view that these symptoms have been present.  The Tribunal also notes that Mrs Hanger is not a person with medical or related qualifications and her inability to distinguish pain in the lower back and pain in the coccyx sufficient to meet a diagnosis of coccydynia, does not necessarily mean that the symptoms in the coccyx were and are not present.

104.   The Tribunal notes that the radiological findings in relation to Mrs Hanger’s back, including the CT scan in April 1998 and more recent investigations, have not revealed any significant back injury as reported by Dr McGill.  Dr Ostinga also expressed the view that the L4/5 disc bulge as shown in the 1998 CT scan could not be interpreted as indicative of a significant back injury or directly as a result of trauma such as the 1995 accident.  However, the Tribunal does not find that these issues are of a concern in relation to the diagnosis of coccydynia, given the medical opinion of Dr Ostinga, and taking into account Dr McGill’s own view as to the bases for such a diagnosis, which is based on localised pain and tenderness in the coccyx.

105.   Several medical experts have expressed the opinion that Mrs Hanger’s lower back pain would improve with weight loss and appropriate exercise.  Even Dr Ostinga offered this view in relation to Mrs Hanger’s lumbar spine in one of his reports.  Dr McGill’s view was that Mrs Hanger’s obesity was the cause of her continuing back pain, and that this would resolve with weight loss and appropriate exercise.  Dr Downes was of a similar view.  Other medical opinion is that obesity is an effect of the accident and physical inactivity.  The Tribunal is of the view that whilst these opinions may be of significance if the injury was simply associated with pain in the lower back, given the diagnosis of coccydynia, the Tribunal does not believe, and does not have any evidence to support, the same impact of Mrs Hanger’s weight on this condition.  Furthermore, the Tribunal notes Dr Ostinga’s view that whilst coccydynia most often does get better, it is resistant to treatment and can provide symptoms for several years and takes years to treat.

106.   The next question, therefore, is whether Mrs Hanger’s condition of coccydynia, which the Tribunal accepts is continuing to the present, is attributable to the accident in 1995.  In this regard, the Tribunal notes the opinion of Dr Ostinga that coccydynia can be caused spontaneously by referred pain from the lower back, or due to rehabilitation from illness which involves sitting around for long periods following an accident.  He was also of the view that coccydynia could be aggravated by the nature of Mrs Hanger’s work having to sit for long periods riding motorcycles. Dr McGill disputed the opinion of Dr Ostinga that coccydynia could be caused by referred pain from the lower back.  Dr McGill’s view was that referred pain was mutually exclusive from a diagnosis of coccydynia.  However, in the Tribunal’s opinion, even if Dr McGill’s view about referred pain is correct, this does not eliminate the other possible causative links between the accident and coccydynia.  Dr McGill, in the Tribunal’s understanding, did not provide evidence disputing the claim by Dr Ostinga that coccydynia can be caused by a period of rehabilitation.  Dr McGill, however, was not of the opinion that riding a motorcycle would cause or aggravate coccydynia.  Given the evidence from Mrs Hanger, Ms Ebens, physiotherapist, and Ms Hamilton, chiropractor, in combination with the opinion of Dr Ostinga, the Tribunal finds that riding a motorcycle could aggravate coccydynia.  Certainly, both Dr McGill and Dr Ostinga provided evidence that coccydynia can be caused by direct trauma, but neither doctor was of the view that this is what occurred in Mrs Hanger’s case.  The Tribunal agrees with the opinion of Dr Ostinga and Dr McGill in regard to direct trauma.  Noting the evidence accepted by the Tribunal that Mrs Hanger’s pain in the coccyx commenced shortly after the accident, the Tribunal is of the view, and noting the opinions of both Dr Ostinga and Dr McGill, that on balance, Mrs Hanger’s condition of coccydynia has been caused by one or a combination of rehabilitation after the accident involving long periods of immobilisation, or “sitting around” after the accident, or was aggravated by the nature of the work undertaken by Mrs Hanger following the accident riding motorbikes.  The Tribunal is also of the view that these causes of Mrs Hanger’s coccydynia, alone or in combination, are related to the accident on 15 March 1995.  The fact that there may have been an aggravation of this condition by further accidents, as opined by Ms Hamilton, does not preclude a finding by the Tribunal of causation linked to the 1995 accident.                  

107. Accordingly, for the reasons set out above and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal:

(i)In relation to matter number N2002/220, sets aside the decision under review and in substitution therefor determines that the Respondent is liable to pay compensation for lower back pain, which is diagnosed as coccydynia, for leave for 30 October 2000 to 6 November 2000 and 14 November 2000 and physiotherapy from 24 November 2000.

(ii)In relation to matter N2002/692, sets aside the decision under review, and in substitution therefor decides that the Respondent is liable to pay compensation for Mrs Hanger’s lower back pain, which has been diagnosed as coccydynia, from 28 December 2000 pursuant to sections 14, 16 and 19 of the Act..

(iii)The matter is remitted to the Respondent to determine Mrs Hanger’s entitlements as a result of this decision.

(iii) The Respondent is to pay the Applicant’s reasonable legal costs in relation to the lower back condition as agreed or taxed in accordance with the Tribunal’s Practice Direction dated 18 May 1998.

I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member

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

Dates of Hearing  21 February 2003, 2 June 2003
Date of Decision  22 December 2003
Counsel for the Applicant         Mr B Bachelor
Solicitor for the Applicant          Mr S Churches, Armstrongs Solicitors
Counsel for the Respondent     Miss R M Henderson
Solicitor for the Respondent     Graham Jones Lawyers