Henry and Australian Postal Corporation - [2002] AATA 915

DECISION AND REASONS FOR DECISION [2002] AATA 915

ADMINISTRATIVE APPEALS TRIBUNAL )

)          No N2001/131
  )          No N2001/550
  )          No N2001/1220

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GARY JOHN PETER HENRY
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Mr P J Lindsay, Senior Member Dr P D Lynch, Member

Date11 October 2002
PlaceSydney

Decision      The tribunal dismisses application N 2001/131. The tribunal sets aside the reviewable decision dated 27 July 2001 and finds that the effects of the applicant's compensable injury did not cease on 6 December 2000. The tribunal affirms the reviewable decision dated 13 March 2002, in application N2001/550 and finds that the applicant does not qualify for compensation for permanent impairment. The applicant is entitled to costs as agreed or taxed in relation application N2001/1220.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – intervertebral lumbar disc disease – whether effects of compensable injury ceased in December 2000 – whether employee has permanent impairment – criticism of respondent's practices in issuing reviewable decisions

TRIBUNAL PROCEDURE – illegible documents provided under s 37 – respondent has obligation to provide legible material

Safety, Rehabilitation and Compensation Act 1988 ss 4(9), 14(1), 16, 19, 24, 25, 27, 63(b)
Administrative Appeals Tribunal Act 1975 s 37(1)(b)

Lees v Comcare (1999) 56 ALD 84
Nguyen and Comcare, Re (AAT 10133, 18 April 1995)

REASONS FOR DECISION

11 October 2002 Mr M J Sassella, Senior Member Mr P Lindsay, Senior Member Dr P D Lynch, Member

THE APPLICATIONS

Application N2001/131 was an application to the Administrative Appeals Tribunal ("the tribunal") lodged on 1 February 2001 (ex TD1/T1) by Gary John Peter Henry ("the applicant"), born 7 May 1959 (ex TD1/T1). The application sought review of a reviewable decision dated 29 January 2001 (ex TD1/T48) which was to the effect that workers' compensation coverage for lower back strain (ex TD1/T28) and sore lower back (ex TD1/T4) had ceased as of 6 December 2000. That reviewable decision was, however, superseded by a new global reviewable decision dated 27 July 2001 (ex TD3/T7) which was the subject of application N2001/1220. Application N2001/131 is therefore dismissed. The substantive issues raised in application N2001/131 re-emerge in application N2001/1220.
Application N2001/550 is an application to the tribunal dated 17 August 2001 (ex TD2/T1) by the applicant. The application sought review of a decision dated 27 July 2001 (ex TD3/T7) rejecting a claim dated 23 July 2001 (ex TD3/T4) for a lump sum payment of compensation in respect of a permanent impairment in the form of left lower lumbar pain. The decision of 27 July 2001 was expressed to be a reviewable decision in that it denied liability in respect of any injury to the back and expressly referred to the denial of liability under ss 14, 16, 19, 20, 21, 24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). Both counsel regarded this as sufficient to accord to the tribunal jurisdiction to entertain the application rejecting the claim for permanent impairment. The tribunal had doubts about this even though such forms of decision are not uncommon. There was not, in relation to the permanent impairment issue, the usual multi-tier decisions as described by the full Federal Court in Lees v Comcare (1999) 56 ALD 84 at pages 91-93:
"[32] Part VI of the Act is headed 'Reconsideration and review of determinations'. It establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision — but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.
"[33] Section 60 contains definitions, among others, of 'determination', 'determining authority' and 'reviewable decision'. These definitions are in the following terms:
"determination" means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X;
"determining authority", in relation to a determination, means the person who made the determination;
"reviewable decision" means a decision made under subsection 38(4) or section 62.
"[34] The definition of 'determination' makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare 'is liable to pay compensation in accordance with this Act' in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
"[35] This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an 'employee' at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.
"[36] Section 61 requires a determining authority, as soon as practicable after making a determination, to serve on the claimant a notice in writing setting out the terms of the determination and the reasons for it.
"[37] Section 62 is concerned with the reconsideration of determinations (ie, with the second tier decision-making process). Section 62(1) provides for a determining authority to reconsider a determination made by it on its own motion, or to cause such a determination to be reconsidered by an authorised person, not being a person involved in the making of the determination. Section 62(2) authorises certain persons, authorities or corporations affected by a determination to request a determining authority to reconsider a determination made by it. Where such a request is made the reconsideration is undertaken by an authorised person who was not involved in the making of the determination. Section 62(5) provides for the person undertaking the reconsideration to affirm, revoke or vary the determination in such a manner as the person thinks fit.
"[38] Section 64 of the Act establishes the third tier of the decision-making process established by the Act. It provides:
64(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth — the Commonwealth; or
(c) if the determination affects a Commonwealth authority that is not a licensed authority — the Commonwealth or that authority; or
(d) if the determination affects a licensed authority that holds a Class 1 Licence under Part VIIIA — the licensed authority; or
(e) if the determination affects a licensed authority that holds a Class 2 Licence under Part VIIIA:
(i) the Commonwealth; and
(ii) in the circumstances mentioned in subsection (2) — the licensed authority; or
(f) if the determination affects a licensed authority that holds a Class 3 Licence under Part VIIIA and the circumstances mentioned in subsection (2) apply — the licensed authority; or
(g) if the determination affects a licensed corporation that holds a Class A Licence under Part VIIIB — the licensed corporation; or
(h) if the determination affects a licensed corporation that holds a Class B Licence under Part VIIIB and the circumstances mentioned in subsection (2) apply — the licensed corporation.
(2) The circumstances mentioned in subparagraph (1)(e)(ii) and paragraphs (1)(f) and (h) are that the licence is subject to a condition referred to in subparagraph 107G(3)(d)(ii) or paragraph 108H(4)(d), as the case may be.
(3) Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.
"[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers '[f]or the purpose of reviewing' the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage."
To put this matter beyond doubt the respondent issued on 13 March 2002 a reviewable decision expressly addressing only ss 24, 25 and 27 of the Act and affirming the rejection of a claim for permanent impairment. The tribunal permitted the amendment of the application for review to include a reference to this new reviewable decision. The tribunal is regarding the decision dated 27 July 2001 as the primary decision on permanent impairment and the decision dated 13 March 2002 as the reviewable decision.
The tribunal would respectfully suggest that the Australian Postal Corporation, along with other licensed corporations and Comcare, should avoid reviewable decisions of the type issued on 27 July 2001. They seem to reflect a desire for an easy way out, thought to be in the interests of both parties, but they create a series of complications and problems. They tend to offer no substantive reasons for decision thereby infringing the spirit, and possibly the letter, of s 63(b) of the Act. It is far preferable that a reviewable decision should clearly follow a primary decision and refer expressly to the primary decision it is reviewing.
Application N2001/1220 is an application to the tribunal dated 12 December 2001 (ex TD3/T1) by the applicant. The application sought review of a reviewable decision dated 27 July 2001 (ex TD3/T7) affirming the reviewable decision dated 29 January 2001 (ex TD1/T48) which confirmed that effects of the earlier accepted back injuries had ceased.
THE HEARING
The tribunal convened in Sydney a hearing in this matter on 12 and 13 March 2002. Mr L T Grey of counsel represented Mr Henry. Miss R M Henderson of counsel represented the Australian Postal Corporation. The tribunal heard oral evidence from the applicant, Professor P N Sambrook, a rheumatologist, Dr N W McGill, also a rheumatologist, Mr D Wellenberg, an inquiry agent, and Mr R Brown, another inquiry agent. The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T52) in application N2001/131 provided by the respondent.
Exhibit TD2 - Section 37 Statement and associated documents (exhibits T1 – T13) in application N2001/550 provided by the respondent.
Exhibit TD3 - Section 37 Statement and associated documents (exhibits T1 – T7) in application N2001/1220 provided by the respondent.
Exhibit A1 – Applicant's statement of facts and contentions, undated.
Exhibit A2 – Report by Professor P N Sambrook, rheumatologist, 22 August 2001.
Exhibit R1 – Respondent's statement of facts and contentions, 14 September 2001.
Exhibit R2 – Videotape containing material captured on 1 and 3 March 2002.
Exhibit R3 – Notes from Big Bear Medical Centre, Neutral Bay.
Exhibit R4 – Report by physiotherapist, K Russell, 26 May 2000.
Exhibit R5 – Report by Ms Russell, 20 June 2000.
Exhibit R6 – Report by Dr S E Dalton, consultant in rehabilitation medicine, 17 April 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
the cease effects decision

The first incident that generated a compensation claim relevant to these proceedings occurred on 30 July 1999 when Mr Henry slipped on a wet surface (ex TD1/T6/32). The incident report in the T documents was close to illegible. The respondent should, consistently with the obligations in s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), provide properly legible copies of documents or, failing that, transcriptions of illegible portions. The purpose of s 37 of the AAT Act is not satisfied if the tribunal and the applicant cannot clearly understand the relevant documents.
That document appears to suggest that on an illegible date in 1999 Mr Henry was walking, delivering mail, when he slipped twice in wet flower petals. He said that he suffered back pain due to his backpack going one way and his back going in the other direction. The claim form, dated 15 September 1999 (ex TD1/T6/34), described the injury as lower back strain. The date of the incident was said to be 30 July 1999 at 2.00 pm. There had been no similar injuries or claims in the past.
In oral evidence Mr Henry said that he had slipped without hitting the ground. He had gone down on his haunches. He felt a pain in his lower back. He forgot about it later in the day but the pain grew worse at night. The pain was a throbbing pain at the belt line. The next day Mr Henry stayed in bed. He saw his general practitioner and had two days off work. He was prescribed anti-inflammatories. His back pain eased but it remained sore. Mr Henry described the backpack he was wearing when he fell. The weight was typically 16 kg. Mr Henry returned to work using the backpack. The pain grew worse and so, on 15 September 1999, he lodged a compensation claim. Miss Henderson suggested in cross-examination that Mr Henry had not lodged a claim earlier because he had recovered from the fall. Mr Henry denied this, insisting that the pain had grown worse. He said also that he thought he was unaware in July 1999 of the need to lodge incident reports, although he was aware of the workers' compensation system.
He was off work for about a week (ex TD1/T5/15) and had physiotherapy at this time. He returned to work on restricted duties (ex TD1/T5/17) and used a trolley rather than a backpack. By the end of 1999, Mr Henry said, his back was better than before he had returned to work. On 1 November 1999 the respondent directed Mr Henry off work because Australia Post considered that he had non-work related medical restrictions (ex TD1/T19). The compensation claim was not accepted at that time. He was allowed back at work on restricted duties on 8 March 2000 for three months (ex TD1/T23). His back had not improved during this time away from work.
This claim was eventually accepted on 17 July 2000 (ex TD1/T30). However, on 6 December 2000 the respondent decided that the effects of the injury had ceased (ex TD1/T45). In the meantime Mr Henry sustained another injury which requires attention.
On 25 May 2000 Mr Henry developed back pain while doing letter sorting (ex TD1/T3). He fell backwards over a tub. He claimed compensation on 2 June 2000 (ex TD1/T4) in respect of a "sore lower back". This claim was accepted on 8 June 2000 (ex TD1/T28). Mr Henry said that the pain from this occurrence lasted about two weeks and then subsided to its usual level.
The effects of the injury of 25 May 2000 were also considered to have ceased by 6 December 2000 in Australia Post's decision of the same date (ex TD1/T45). The delegate relied on the opinion of Dr L Pierides, an occupational physician, dated 8 November 2000 (ex TD1/T39). The doctor had seen Mr Henry on 3 November 2000 and said that he may have strained and jarred his back in the initial injury in July 1999. He had a ligamentous or joint type of injury. He was probably left with some weakness from protection of his back. He was then undertaking an exercise program aimed at correcting that weakness. That had four more weeks to run. Dr Pierides regarded the low back pain as due to deconditioning and he saw the exercise program as leading to him becoming reconditioned and able to return to full-time normal activities at the end of the program, albeit with some graduated aspects. Dr Pierides said that after four weeks Mr Henry would have no work-related condition present. He would be fit for all normal duties and could carry a backpack after eight weeks. Dr Pierides found a full range of movement of the lower back. Mr Henry said that he saw Dr Pierides a good way through the exercise program and after a day at work. He said that he was "all warmed up" when he saw Dr Pierides and that helped him with his range of physical movements.
Mr Henry had provided a report by Dr C Browne, a rheumatologist, dated 24 October 2000 (ex TD1/T38). Dr Browne had seen Mr Henry on 22 August 2000 and noted that Mr Henry was coping satisfactorily with his mail delivery duties until 25 May 2000 when he sustained an aggravation of his lumbar pain disorder. That episode settled, however, with physiotherapy after several weeks and "there had been further aggravation of his back just one day prior to consultation with the eventual outcome of this episode not being known at the time of this report". He said that Mr Henry's condition had stabilised prior to the episode on 21 August 2000. Dr Browne considered Mr Henry fit for light office work and light delivery duties, provided he was not required to lift or carry heavy loads or frequently bend his back.
The delegate preferred the conclusions in Dr Pierides' report. This was reasonable in the tribunal's view. Dr Pierides' report was based on an examination conducted three months after Dr Browne's. Also, Dr Browne had not expressed a final opinion because of the freshness of the aggravation that occurred on the day before the examination.
The tribunal's task is to decide whether the cessation of effects on 6 December 2000 was the correct or preferable decision. On the basis of what was before the delegate, the decision was understandable. However, Mr Henry gave evidence of the alleged ongoing effects of his injury and aggravation. He said that he finds going down hills difficult. Balance is a problem and there is some jarring of the back.
Mr Henry told the tribunal that he has been resistant to using a backpack. In a workplace assessment (ex TD1/T46) he had been shown how to use a backpack by limiting its weight, adjusting it for his stature, etc. However, he told managers that using the backpack made his back sore. He used it for three days and reverted to using a trolley for mail deliveries. Some trolley deliveries are to upstairs addresses. He leaves the mail unattended while carrying the upstairs mail to the delivery points. Mounting the stairs proves no problem. However, he finds problems going down stairs. He feels "unbalanced" and his back pain causes "a little bit" of trouble. In cross-examination he admitted to Miss Henderson that can take his trolley into lifts in many buildings on his Sydney City mail run. Mr Henry said that some buildings have wheelchair access while some do not. Miss Henderson in cross-examination observed that Mr Henry's first mention of any problems negotiating hills and grades was when he saw Professor Sambrook. Mr Henry replied that he has pain in the calf and big toe at all times. That pain stays in the "mid range". Grades cause the pain to rise in intensity to 5, 6, 7 or 8 out of 10. Mr Henry said that the calf pain had commenced before the aggravation in May 2000. Dr Dalton reported bilateral calf pain on 17 January 2001 (ex TD1/T16).

Recently he had been working five days a week for six hours a day as recommended by his general practitioner.
Mr Henry was asked to rate the intensity of his lumbar pain on a scale of 10, with maximum pain being 10 and no pain being zero. He said that his lumbar pain was 5 to 6 out of 10 on a good day. On a bad day it was 8 out of 10. On a typical day the pain starts out at 7 out of 10 before work. It reduces to 4.5 or 5 out of 10 after he has done the mail beat and 5.5 out of 10 following physiotherapy exercises. At the end of a day he does additional stretch exercises and swims. He said that his back is alright and he "just [has] to keep doing exercises". He does about 20 minutes of exercises before work and some at work. All up he exercises for about an hour a day. He does straight leg raising from a supine position. In the 12 months prior to the hearing Mr Henry's treatment had been physiotherapy, which he paid for himself, and a monthly visit to the general practitioner. He uses no medication. He does gymnasium workouts but avoids weights because his right shoulder causes problems. Mr Henry told Mr Grey that his back in 2002 was about the same as a year earlier.
In cross-examination Miss Henderson observed that Mr Henry sits down very gingerly. He said that he was told to do this by a physiotherapist. He told the tribunal that he sorts mail using an old fashioned sorting system and stands. He tries not to reach above his head, as a doctor had told him he should avoid such movements. He had freer movement before the fall in July 1999. He told Miss Henderson that he has lower back pain when he stretches sideways. He had told his doctor a month earlier of pain he has when lifting weights over 5 kg. This was said not to be so in 1999. Mr Henry was uncertain how and when this problem developed. It had been more than a year earlier.
Miss Henderson noted that this was a new restriction on Mr Henry's ability to lift weights. Dr Couch had limited weights to 10 kg on 29 May 2000 (ex TD1/T5/28) but later medical certificates in ex TD1/T5 had not imposed weight lift restrictions. A 5 kg restriction appeared in Dr Chin's certificates in September 1999 (ex TD1/T5/17) and in Dr Le Leu's certificate of February 2000 (ex TD1/T5/26), only then to drop out. It re-emerged in Dr Dalton's certificate dated 16 May 2001 (ex TD2/T4/9). However, by 22 May 2001 Dr Lurie had dropped that restriction (ex TD2/T4/11). Miss Henderson queried how this related to Mr Henry's evidence to Mr Grey that his back was about the same at the hearing as it had been a year earlier. She asked whether he was saying that the pain was growing worse. Mr Henry responded that the pain was bad on one day and better the next. He was vague in describing these daily differences but insisted that he tries to look after his back now. He avoids rapid movements. Unconsidered reactions can produce sharp pains in his back and down his leg also. This happens frequently. He stood while giving some evidence in the tribunal. He said that he has to stand after sitting for 20 minutes because the sitting produces low back pain.
Dr Lynch, a tribunal member, asked about the pain that radiates down the leg. He thought it odd that this had not been mentioned more prominently than it had. Mr Henry said that the leg pain was less bad and less frequent than the back pain. He notices the leg pain every day. The degree of pain was about 4 out of 10 but could go to more than 8 out of 10. It goes on all the time, he said. It is not always noticeable. It is mainly a problem coming downstairs. It affects the left leg in the main, but can also affect the right leg.
Mr Henry said that he had modified his work practices to accommodate the 5 kg lifting restriction. He decants mail in small lots from tubs and he refrains from lifting bulk mail.
Mr Henry said that he swims for recreation. He used to play bowls but can no longer do so. He last tried a couple of months after the July 1999 incident. He had also given up fishing, running and surfing. Mr Henry said he does his own cooking and cleaning. He avoids bending when cleaning and tends to drag objects rather than lift them. He cannot drive and buys groceries a little at a time, limiting the weight to a few kilograms. Mr Henry also engaged in dancing at some time and was known as the "dancing ant". He had not done that since the accident, he said.
Miss Henderson asked the tribunal to screen 71 minutes of videotaped evidence (ex R2) dating from 1 and 3 March 2002. This material was not very conclusive. Much of it from 1 March 2002 showed Mr Henry at the poker machines in a rather dimly lit club. It was possible to discern, however, that he perched somewhat on the edge of a high stool and leant forward from the waist and that he reached and leaned to the right fairly freely (at 1.09 pm). He bent down to pick something up from the floor moving cautiously and bending his knees (1.27 pm). He was seen walking in the street carrying shopping in both hands (at 1.49 pm). On 3 March 2002 he was shown walking in the street carrying two bags (at 11.35 am). One was a very large blue plastic bag containing Mr Henry's laundry which he was taking to the laundromat. The other bag contained bottles of beer. Mr Henry walked what he said was about 600 metres. He told the tribunal that he stops and rests about three times when doing this trip but the video evidence did not show that. In oral evidence private investigator Brown agreed that he had lost sight of Mr Henry for one to two minutes and he agreed that he had to consider traffic conditions at times as he was filming from a car. He may therefore have missed seeing Mr Henry sit down at some point of the journey. He also estimated the distance from Mr Henry's home to the laundromat as 1½ km. Mr Henry agreed that he was the person shown in the video.
Miss Henderson in her final submissions offered her interpretation of what the video disclosed. She reminded the tribunal that Mr Henry had said that:

He avoids sitting for prolonged periods.
He lifts from the floor.
He avoids rapid movements.
He picks up objects from a table at work to avoid stretching to the side.

In the video, according to Miss Henderson:

He chose to entertain himself perching on a chair. This posture was seldom broken.
He did no stretches or exercises or walking around the room to deal with symptoms.
He made nimble, rapid, confident movements when getting up and down from the chair.
He picked up a drink from a low table beside him. He did that rapidly and confidently, not as he said he had to perform such motions.
He had no stops en route home from the laundromat. The agent would have noticed something if he had stopped.
He carried groceries in his left hand after saying that he could not do that.

The tribunal is less confident than Miss Henderson that it demonstrated all of these things. Perching on the edge of a high stool is a posture very different from sitting in an ordinary chair. We saw him get up to collect drinks and change. That disposes of the cogency of some of Miss Henderson's interpretations. The other discrepancies in what Mr Henry can do, as compared to what he said he could do, were not notably telling in the view of the tribunal.

Professor Sambrook gave oral evidence. He had provided a report dated 22 August 2001 (ex A2). When he examined Mr Henry Professor Sambrook found forward flexion limited to 45° (half the normal range), extension to 25° (normal range 30°). Straight leg raising was to 90°. The diagnosis was lumbar intervertebral disc disease at L3/4. He regarded the injury during employment with Australia Post as the cause of Mr Henry's low back symptoms. Professor Sambrook saw the condition as involving permanent impairment since May 2000.
In oral evidence Professor Sambrook said that a L3/4 disc protrusion seen in a CT scan of December 1999 (ex TD1/T14) would have brought on Mr Henry's symptoms. There was a right para-central protrusion. This would be consistent with a radiated effect down Mr Henry's left leg.
Dr N W McGill, a rheumatologist, had reported on 5 June 2001 (ex TD3/T3) that any permanent impairment of Mr Henry's back was the same as it would have been without the work incidents. He saw the onset of pain in July 1999 as a reflection of lumbar disc disease "which has been proven to be primarily a constitutional and inherited condition. The inherited nature of lumbar disc disease was demonstrated by the study by Sambrook, MacGregor and Spector …". This was put to Professor Sambrook who replied that genetic factors account for only 50% of slipped discs. He said that there is an inherited factor that can predispose a person to such injury but it does not account for such disc effects. Professor Sambrook saw a connection between Mr Henry's disc and Australia Post because of the coincidence of the onset of pain and the work incident.
Asked about possible therapy, Professor Sambrook said that Mr Henry could undertake appropriate rehabilitation. A pain program might be useful. He doubted, however, that rehabilitation would improve Mr Henry's range of back movement. Tribunal member, Dr Lynch, put to Professor Sambrook that Mr Henry had received a great deal of physical rehabilitation but no psychological help. Professor Sambrook responded that a multidisciplinary approach is best in a case like this where chronic pain is an element. There was discussion of the ADAPT program offered by the Royal North Shore Hospital, where Professor Sambrook has his rooms. That program reports a 70% success rate and costs around $5,000.
In cross-examination Professor Sambrook said that he saw the July 1999 incident as the cause of Mr Henry's problem. He agreed that disc protrusions are not always symptomatic and that Mr Henry could have had a protrusion before the fall in 1999. The dermatomes linking to a L3/4 protrusion affect the knee and shin, moving from the front of the leg to the side, although this is not invariable. He said that the S1 vertebra is involved if there is pain in the big toe. Professor Sambrook recorded that Mr Henry took Vioxx, an anti-inflammatory. He did not note the timing or dosage. However, he said that Vioxx is less likely to cause gastric problems than other similar medications.
Dr McGill also gave oral evidence. He had provided written reports. On 5 June 2001 (ex TD2/T11) he reported that he found restricted back movements. Examination showed a generalised increased muscle tension resulting in restricted movements of the lower back. There was no nerve root irritation or dysfunction. He regarded the changes in the lower thoracic and upper lumbar spine as pre-existing and unrelated to Mr Henry's employment. The disc protrusion at L3/4 was constitutional and inherited with possibly a very minor role for the slip at work. The L3/4 condition caused the symptoms demonstrated in July 1999 and there was possibly a lingering pain from this. It was probable that the protrusion occurred in July 1999. He thought it probable that Mr Henry was fit for his normal work, including with a backpack. Mr Henry's attitude to medications was something of a problem (see paragraph 19 above). Dr McGill said that Mr Henry's back would have been the same regardless of the slip in 1999. The incident on 25 May 2000 caused a temporary exacerbation for a month.
In oral evidence Dr McGill provided his views on the video evidence. He observed that Mr Henry was filmed walking normally and briskly. He said that he observed no great or extensive back movements.
Dr McGill addressed the radiation of Mr Henry's pain. He said that a problem at L5/S1 can produce paraesthesia and pain in the toe. L3/4 should not produce foot pain. It can produce thigh pain but anything lower is unlikely. He saw no evidence of left nerve root irritation to explain calf pain.
Dr McGill had no record of any mention of Mr Henry experiencing problems with hills, grades or stairs, however he also had no record of asking about this.
Dr McGill was asked about the inherited quality of lumbar disc disease. He referred to the Sambrook article (see paragraph 29 above) and said that heritability is the key aetiology of disc disease in the lumbar spine. He quoted from the Sambrook article that there was a 72-74% correlation between this disease and genetic factors. The writers had considered disc bulge, disc height and disc abnormality. Disc lesions were detected in 50% of people aged over 40 but there was a poor correlation between the disease and any symptoms. In cross-examination Dr McGill agreed that the Sambrook study did not exclude trauma as a precipitating factor in lumbar disc disease.
There was other medical evidence. From this the following is of some significance. Dr Browne (ex TD1/T20) reporting on 21 February 2000 recorded that Mr Henry had pain in his left buttock and calf. He observed that Mr Henry walked reasonably comfortably but has pain when sitting. He saw the left leg pain as somatic. Dr S E Dalton, specialist in occupational medicine, reported on 1 June 2000 (ex TD1/T26) that Mr Henry's back was settling down following his backwards fall over a tub.
Having considered the totality of the evidence, the tribunal considers that the decision taken on 6 December 2000 should not have been that the effects of Mr Henry's work-related injury had ceased. The tribunal is most heavily influenced by the following:

There is a diagnosis of intervertebral disc disease at L3/4 by Professor Sambrook, an eminent rheumatologist. Further, Professor Sambrook accepts that Mr Henry's employment with Australia Post was the cause of the low back symptoms. Professor Sambrook received a version of the fall in July 1999 which accorded with that given to the tribunal and generally adhered to by Mr Henry. Professor Sambrook clearly saw such an injury as capable of producing the symptoms experienced by the applicant.
The tribunal accepts that Dr McGill had a more reliable account than Professor Sambrook of the findings in Professor Sambrook's own research paper. The tribunal accepts that the role of genetics in lumbar spinal pathology is greater than Professor Sambrook was prepared to allow. However, even on the accurate figures, there is still ample opportunity for a trauma to occur and produce lumbar pathology. That was Professor Sambrook's view and the figures would appear to support it.
Professor Sambrook was impressed by the timing of the onset of the symptoms, and the coincidence of that timing with the slip in July 1999. Even Dr McGill accepted that employment was the cause of the timing of the onset of symptoms.
The tribunal accepts Mr Henry's evidence that the after-effects of the fall in July 1999, especially as exacerbated by the second fall in May 2000, have never completely gone away. There was plentiful evidence of continued effects such as Mr Henry's failed attempts to use a backpack, his pain on sitting for a length of time and his reported back pain when he does not protect his back. It must be said, however, that Mr Henry appeared masterful at protecting his back from provocative exertion.
The tribunal noted Dr McGill's assessment that Mr Henry's back would have caused him the same problems by 2002 regardless of the trauma in 1999 and the other in 2000. Dr McGill may be correct in this. However, Professor Sambrook, whose credentials equal those of Dr McGill, did not share that view, although he admitted that the disc lesion may have preceded the slip in July 1999. The tribunal sees the Act as beneficial legislation and considers that, where two equally eminent experts disagree in their opinions and there is no stand out reason to prefer one opinion over the other, the tribunal should lean in favour of the party whom the Act intends as its object of benefit.

Miss Henderson relied on certain evidence to suggest that Mr Henry's two compensation injuries settled and ceased to cause ill-effects.

Mr Henry did not limit his activities very much immediately after the July 1999 injury. He had little time off work. He went bowling. He did not report the incident for nearly two months. The tribunal sees the situation a little differently. Mr Henry's evidence was that his symptoms worsened as the weeks went by. He tried bowling but could not do it.
Mr Henry still suffered symptoms when he had been directed off work from November 1999 to March 2000. The symptoms were present irrespective of Mr Henry's work. The tribunal considers that Mr Henry's symptoms have fluctuated from time to time since their onset. At one point they were at a minimum and Dr Pierides was motivated to consider the problems as having settled. However, the tribunal heard ample evidence that Mr Henry was bedevilled by continuing symptoms in 2001 and later. It is possible that Mr Henry is and was susceptible to the experiencing of symptoms even when he is away from work. However, that does not destroy his case in the view of the tribunal. It appeared to the tribunal from the evidence that Mr Henry does his best to protect his back but that he is not always successful and that he experiences an underlying level of pain regardless of activity. This reduces the value of observations regarding the history of symptoms when Mr Henry is not at work.
Exhibits R4 and R5 were written by physiotherapist Karlene Russell in May and June 2000. Ms Russell reported that Mr Henry's pain had reduced from 8/10 to 5/10 by 26 May 2000, following the incident the day before. By 20 June 2000 Mr Henry said he was "back to pre injury pain levels and his range of motion is almost full motion at the lumbar spine". Miss Henderson saw this as proof of the limited duration of the May 2000 exacerbation. The tribunal agrees with that proposition. It appeared that Mr Grey did also but he pointed out that the comparison was to pre-May 2000 pain levels. The tribunal agreed with Mr Grey on that point.
Miss Henderson indicated inconsistency in Mr Henry's evidence about medications. He had said that they "did not agree with him" but then told Professor Sambrook of his taking Vioxx. He gave Professor Sambrook no history of reluctance to take medications. The tribunal noticed this inconsistency too but concluded that Mr Henry may have taken Vioxx for a time, found it more satisfactory than most other medications, but given it up later. He was not directly challenged about this but did say in cross-examination that he was on a variety of medications at different times but always for only a short time.

The tribunal will therefore set aside the decision under review and substitute its own decision that the effects of Mr Henry's work injury are continuing and that the respondent has an ongoing liability to pay compensation under s 14(1) of the Act. Miss Henderson observed that Mr Henry seemed little, if any, incapacitated for work under s 19 of the Act. Mr Grey largely agreed. He conceded that there was little in the case relevant to payments under s 19 of the Act. However, the applicant may require compensation for medical expenses and for permanent impairment and liability under s 14(1) of the Act is essential for those forms of assistance.
The tribunal finds that there is evidence of some incapacity for work as defined in s 4(9) of the Act. In that Mr Henry has been unable to return to using a backpack for his work and he was on restricted hours at the time of the hearing, it appears that he cannot engage in work at the same level at which he was engaged before the injury happened.
permanent impairment
Several medical experts have commented on Mr Henry's level of impairment. Experts have addressed tables 9.5 and 9.6 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment ("the Guide"). These deal respectively with impairment of the lower limbs and the thoraco-lumbar spine.
Dr Browne on 21 February 2000 (ex TD1/T20) assessed a 10% whole person impairment ("WPI") under table 9.6. In the Guide this equates to loss of range of movement, but less than half the range of movement, of the thoraco-lumbar spine. He reiterated this on 24 October 2000 (ex TD1/T38). Dr McGill assessed a 15% WPI in accordance with table 9.6 but did not see it as caused by Mr Henry's employment. 15% equates to loss of half the normal range of movement of the thoraco-lumbar spine. Professor Sambrook (ex A2) also found a 15% WPI under table 9.6. In addition he assessed 20% under table 9.5. This meant that Mr Henry could rise to a standing position and walk but that he had difficulty with grades, steps and distances.

The tribunal notes, however, the evidence of Ms Russell, the physiotherapist, who found no significant problems with the range of movement of the lumbar spine in June 2000 (ex R5). The tribunal notes also that Dr Pierides in November 2000 (ex TD1/T39) found a full range of movement of the lower back. The tribunal notes Mr Henry's oral evidence, reiterated several times, that he has a sense of imbalance in going down stairs and that he feels a jarring in his spine when going down stairs. The tribunal noted Mr Henry's evidence that he walks a city beat with a trolley of "a few kilometres". The tribunal notes that there had been no history of problems with grades or steps until the matter appeared in Professor Sambrook's report. Apparently the applicant's solicitor had asked Professor Sambrook to report on this in a letter to Professor Sambrook dated 31 July 2001.
In his oral evidence Dr McGill explained his WPI assessment of 15% under table 9.6. He said that he was not confident of that figure. Mr Henry's movements had been very slow. There was a tenseness present. That meant that one could not be confident that the movement achieved reflected best performance. Dr McGill was of the view that Professor Sambrook would change his assessment if he saw the video evidence.
In final submissions Mr Grey argued most strongly for a WPI assessment under table 9.5, and that on the basis not of distances but of difficulty with stairs. He saw a possible problem with table 9.6 because of the potential for the ADAPT program to offer further rehabilitation for Mr Henry.
In relation to the thoraco-lumbar spine, the tribunal finds nil permanent impairment under table 9.6. The tribunal regards the virtually full range of movement demonstrated for Ms Russell and Dr Pierides fairly convincing in its own right. At the same time the tribunal observed the extent of guarding action adopted by Mr Henry in his movements at the hearing, a level of precaution that sat oddly with his capacity to engage in a walk beat mail delivery round. It is more likely than not that Mr Henry's movements for the doctors failed to reflect his best possible performance. Finally, there is the issue of rehabilitation. The tribunal considers that the rehabilitation that Mr Henry has had to this point has emphasised physical therapies to the exclusion of psychological pain coping mechanisms. The tribunal would see a course such as the ADAPT program as a necessary element in a reasonable rehabilitation program. It is, of course, no fault of Mr Henry's that he has not had such a program. However, s 24(2)(c) of the Act would, in the circumstances, mean that any impairment of the thoraco-lumbar spine was not permanent.
So far as table 9.5 is concerned, Mr Grey was correct to emphasise the stairs as the only real issue. Mr Henry does not appear to have any real problem walking on the flat and up and down grades for several kilometres. He said that he can climb stairs quite well but experiences a sense of imbalance in descending stairs and that descending stairs causes some jarring of the spine. It appears to the tribunal, however, that this effect is quite tolerable and does not deter Mr Henry from using stairs in his work delivering mail. It has been held that a descriptor in table 9.5 must be read conjunctively so that it is necessary that the employee has difficulty with all three elements. That is, he must have difficulty with grades, and with steps, and with distances. Difficulty with one does not suffice. In Re Nguyen and Comcare (AAT 10133, 18 April 1995) Senior Member Lewis wrote:
"17. In respect of Table 9.5 a 10% rating is provided for persons who 'can rise to standing position and walk BUT has difficulty with grades and steps'. There is no evidence before the Tribunal that the Applicant has difficulty with grades and steps. Under this Table a 20% rating is provided for persons who 'can rise to standing position and walk but have difficulty with grades, steps and distances'. The Respondent submitted that 'and' in this rating, should be given its ordinary conjunctive meaning. As the Applicant does not have difficulty with grades and steps, then even if he has difficulty with distances, he would not meet this rating. With respect, I agree with this submission. Any alternative interpretation of the wording of this rating would be a nonsense. On the evidence I find that the applicant does not meet any rating in Table 9.5."
As Mr Henry has no appreciable difficulty with distances and grades he does not come within the descriptor in table 9,5 applicable to 20%, nor can he satisfy the descriptor for 10%.
CONCLUSION
The tribunal has found that Mr Henry qualifies for continued compensation coverage but he will need to show that he merits compensation under s 16 for any reasonable medical expenses associated with his compensable injury as such expenses arise. Similarly, he will qualify for incapacity payments under s 19 of the Act only when he can show Australia Post that he satisfies the requirements in that section. He does not at this stage qualify for a permanent impairment payment.
DECISION
The tribunal dismisses application N 2001/131.
The tribunal sets aside the reviewable decision dated 27 July 2001 and finds that the effects of the applicant's compensable injury did not cease on 6 December 2000.
The tribunal affirms the reviewable decision dated 13 March 2002, in application N2001/550 and finds that the applicant does not qualify for compensation for permanent impairment.
The applicant is entitled to costs as agreed or taxed in relation application N2001/1220.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, Mr P J Lindsay, Senior Member and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Dates of hearing  12 and 13 March 2002
Date of decision  11 October 2002
Counsel for the applicant         Mr L T Grey
Solicitor for the applicant         Carroll & O'Dea Solicitors
Counsel for the respondent     Miss R M Henderson
Solicitor for the respondent     Sparke Helmore Solicitors