Hopgood and Australian Postal Corporation
[2006] AATA 479
•1 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 479
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1743
GENERAL ADMINISTRATIVE DIVISION ) N2004/343
N2004/1011Re BRETT HOPGOOD
Applicant
And
AUSTRALIAN POSTAL
CORPORATION
Respondent
DECISION
Tribunal Senior Member I.A. Shearer, Member Dr. I. Alexander Date 1 June 2006
Place Sydney
Decision The Tribunal affirms the decisions under review. ..............................................
Presiding Member: Senior Member I.A. Shearer
CATCHWORDS
COMPENSATION – consideration of whether Applicant’s back pain caused by spondylolisthesis arose out of, or in the course of, his employment by Australian Post – consideration of medical evidence – Applicant’s medical history from 1987-1997 – Applicant’s medical history after the accident of 13 May 1997 – evaluation of the medical evidence and the applicable law – the Tribunal affirms the decision under review.
Safety, Rehabiliation and Compensation Act 1988
Lees v. Comcare (1999) 56 ALD 84
Tippett v Australian Postal Corporation [1998] 335 FCA
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Treloar v Australian Telecommunications (1990) 26 FCR 316
REASONS FOR DECISION
1 June 2006 Senior Member I. A. Shearer,
Member Dr I. Alexander1. Mr Hopgood, the “Applicant”, began employment with Australia Post as a postal delivery officer (“PDO”) Grade 1 on 13 May 1992.
2. He suffered accidents in the course of his work on some 12 occasions, following which, at his own request in or about October/November 2002, he was transferred to part-time duties of 4 hours per day, 2 hours indoors and 2 hours outdoors.
3. The particular accident to which the claim relates is an injury to his lower back which allegedly occurred on 13 May 1997 in the course of his employment, or alternatively arising out of the nature and conditions of his employment since 13 May 1997.
4. The Applicant claims weekly compensation, lump sum compensation and compensation for his medical expenses, pursuant to the Safety, Rehabilitation and Compensation Act 1998 (“the Act”).
5. In the present proceedings the Applicant is seeking review of two decisions of the Respondent – the decision dated 11 March 2004 denying the Applicant’s claims for compensation in respect of his back condition; and the decision dated 15 July 2004 in relation to his claim based on permanent impairment.
6. At the commencement of proceedings before the Tribunal on 16 February 2005 the Applicant sought to amend his Statement of Facts and Contentions by adding a claim in respect of a neck injury sustained in 2002. The Tribunal ruled that it lacked jurisdiction to consider this additional claim since it had not been the subject of a reviewable decision: Lees v. Comcare (1999) 56 ALD 84. Thereupon the Applicant requested an adjournment of the proceedings in relation to the claimed back injury in order to seek a reviewable decision in relation to the neck injury. The Applicant contended that, in the event that the claim in respect of a neck injury were to be denied, the review of the decisions in relation to both claims could be run concurrently. The Respondent did not oppose the application for an adjournment but asked the Tribunal to note that it might ask the Tribunal to award costs against the Applicant in relation to the adjournment, if granted; the Applicant asked the Tribunal to note that it would resist this request.
7. At the resumption of the hearing on 14 December 2005, the claim based on injury to the neck was withdrawn by the Applicant. An application for costs was not pursued.
THE ISSUE BEFORE THE TRIBUNAL
8. The essential issue before the Tribunal is whether the Applicant’s back pain caused by spondylolisthesis arose out of, or in the course of, his employment by Australia Post.
FACTUAL BACKGROUND
9. The Applicant was born on 6 June 1967. He is married and has a young child.
10. Before being employed by Australia Post the Applicant was involved as a passenger in a motor vehicle accident. This occurred in 1987 when the Applicant was aged 20. He suffered fractured vertebrae and concussion. As a result he was unable to return to his then occupation of wood machinist, and was off work for 3 years. He stated in his oral evidence before the Tribunal that his inability to work derived from pain in the middle of his back, not the lower back (in relation to which the present proceedings are concerned).
11. Before joining Australia Post the Applicant worked part-time with his father in cabinet-making. He stated that by the time he joined Australia Post he felt “pretty fit” and his back was no longer troubling him.
12. The Applicant entered into employment with Australia Post as a Postal Delivery Officer on 13 May 1992, at the age of 25. His duties consisted of sorting mail at the Minto Delivery Centre and then delivering this mail by motor cycle to residents of the area.
13. From then until the accident in 1997 that forms the basis of his claim the Applicant had occasional absences from work by reason of sickness, but none were attributed by him to any kind of back pain.
14. On 13 May 1997 the Applicant was delivering mail to a street address in Kearns when his motor cycle hit a concealed pothole. The front wheel missed it, but the rear wheel of the motor cycle dropped into the pothole. The impact did not throw him off the motor cycle. The Applicant stated in evidence that he immediately experienced severe pain in the low back extending to the buttocks. He stated that the pain was not in the same place as the pain he had experienced after the motor vehicle accident in 1987. He reported the incident to Australia Post the next day and signed an Incident Report. In that report he answered “No” to the question “Is this a recurrence of a previous injury or type of illness?”
15. After the pothole accident the Applicant stated that he began to experience “constant low grade low back pain”, with occasional severe flare-ups. The pain was not regarded by him as severe enough to warrant seeing a doctor, although it gradually worsened during the rest of 1997 and into the first half of 1998. On 4 July 1997 the Applicant took one day of sick leave on account of back pain. This was his first recorded absence from work on that account. Between 23 and 27 February 1998 he took five days sick leave because of pain in the low back.
16. In June 1998 The Applicant noticed increased low back pain at the end of a day’s work. He consulted Dr. Chiew, who referred him for an X-ray. The X-ray revealed spondyloslisthesis at L5-S1.
17. On 10 June 1998 Dr Chiew signed a Work Cover Medical Certificate in which he certified that Mr Hopgood’s employment duty of mail delivery was consistent with being a substantial contributing factor to his injury.
18. On 11 June 1998 the Applicant made a claim for compensation arising from his injuries on 13 May 1997. He referred to “slight pain in his lower back since hitting the pothole in May 1997”.
19. On 20 July 1998 Australia Post placed the Applicant on restricted duties until 2 October 1998.
20. On 16 September 1998 Australia Post informed the Applicant that it rejected liability in respect of the back injury. The responsible delegate stated that: “As the evidence satisfies me that the compensation you have claimed is in relation to a pre-existing condition, I hereby formally determine that liability be denied in relation to this claim for compensation.”
21. The Applicant did not request reconsideration of this decision, as provided in section 62 of the Act.
22. On 23 June 2003 a fresh claim was lodged on behalf of the Applicant in respect of his low back condition, the Applicant considering that his back condition had progressively worsened during the previous five years.
23. On 22 July 2003 the delegate responded to the Applicant’s solicitors, in essential parts, as follows:
“Liability was denied for your client’s claim for a back condition in 1998. Your client’s condition and any deterioration must be considered as a progression of an underlying condition well established at May 1997 and not related to any specific incident or duties in his employment with Australia Post. The available evidence indicates that any impairment that Mr Hopgood suffers is unrelated to his employment. I therefore determine that he is not entitled to the payment of compensation under sections 24 and 27 of the above Act.”
24. The Applicant then sought a review of this decision, which was rejected by Australia Post on 2 September 2003 on the technical ground that, review rights not having been exercised in relation to the determination dated 16 September 1998, there was no accepted compensable injury to which the new claim could relate. Hence the delegate who made the determination dated 22 July 2003 had acted in error in assessing the merits of the claim.
25. Upon further representations being made by the Applicant’s solicitors, the Reconsideration Officer of the Work Environment Branch of Australia Post decided that he would nevertheless exercise his powers under section 62 of the Act and reconsider the determinations of 16 September 1998 and 22 July 2003. The officer concluded, in his letter to the Applicant’s solicitors of 11 March 2004:
“I am not satisfied that there is sufficient objective evidence to show a causal relationship between the condition claimed and your client’s employment with Australia Post. Therefore I hereby AFFIRM the determinations dated 16 September 1998 and 22 July 2003 pursuant to section 62 of the Act.”
26. The Applicant then applied to this Tribunal for review of the above decision affirming the determinations dated 16 September 1998 and 22 July 2003.
27. While that application was pending, on 20 May 2004 the Applicant lodged an additional claim with Australia Post arising out of his injury on 13 May 1997 with respect to the following:
“1. s24 and s27 claims due to the nature and conditions of his work since the injury of 13 May 1997;
“2. s16 medical expenses;
“3. weekly compensation from 23 October 2002 to date ….” [table omitted]”
28. On 23 June 2004 the delegate replied, in essential parts, that:
“After a re-examination of this report [Dr Ellis] and other available evidence I do not consider that any nexus can be established between Mr Hopgood’s duties with Australia Post and any current level of impairment. …I therefore determine that your client is not entitled to the payment of compensation under sections 24 and 27 of the above Act due to the nature and conditions of his work since 13/05/97.”
29. This determination was then reconsidered by the Reconsideration Officer who wrote on 15 July 2004 rejecting the claim and affirming the decision of the delegate dated 23 June 2004.
30. On 15 July Mr Hopgood applied to this Tribunal for a review of this decision.
THE MEDICAL EVIDENCE
31. Four medical witnesses gave evidence in person. The Applicant called Dr Ellis, and the Respondent called Dr Maxwell, Dr Gliksman and Dr Carr. In addition to the oral evidence, written medical records and reports, especially those relating to the Applicant’s condition prior to the pothole accident of 13 May 1997, were contained in the T documents, and other documents tendered at the hearing.
32. It may be helpful to deal with the medical evidence in chronological order, since it was the Respondent’s case that the cause of the Applicant’s back condition antedated his employment with Australia Post and that condition was either caused by, or exacerbated by, the motor vehicle accident in 1987. The oral evidence related to the Applicant’s present medical condition and its aetiology. The earlier medical records related to the immediate consequences of the motor vehicle accident of 1987.
33. These earlier medical records were tendered in the course of the cross-examination of the Applicant by Mr Jones for the Respondent, and received into evidence without objection.
APPLICANT’S MEDICAL HISTORY: 1987 - 1997
34. The Applicant agreed that the motor vehicle accident in which he was involved on 31 October 1987 was a serious one. He was a passenger in the back seat of a car travelling at about 120 km/h when it hit a telegraph pole. The Applicant was lying on the ground when the ambulance arrived. He was taken initially to the emergency ward of Campbelltown Hospital, and was subsequently transferred to Balmain Hospital. Mr Jones tendered, without objection by Mr Kettle for the Applicant, the accident and emergency notes of the Campbelltown Hospital and ambulance report provided by the Macarthur Health Service. These notes record that the Applicant was suffering “lumbar back pain on arrival” as well as pain in the head and abrasions to the left leg. The Applicant stated that he could not now remember having complained, while lying on the ground, or later on arrival at the hospital, of lumbar (i.e. lower back) pain.
35. The Applicant remained in the Balmain Hospital until 6 November 1987. X-rays showed two fractures of the vertebrae, T12 and L1. He was treated conservatively with bed rest and analgesia (pethidine). He was discharged with instructions to take panadeine for pain relief.
36. After discharge from the hospital the Applicant began seeing Dr V. Saw, who referred him to Dr A.K. Tsui for an X-ray. Dr Tsui’s report of 28 January 1988 stated:
“THORACO-LUMBAR SPINE: The minimal anterior wedging of the T12 and L1 vertebral bodies is barely obvious on today’s examination. Some irregularity of vertebral end-plates is noted in the lower half of the thoracic spine, suggestive of Scheuermann’s disease. Hypoplastic ribs are seen at L1 level. Both partes interarticulares of L5 are defective, and there is a minimal degree of spondylolisthesis at L5-S1 level.”
37. The Applicant was then referred by Dr Saw for physiotherapy at the Campbelltown Physiotherapy Centre, where he was treated by Mr Ray Dubber. Mr Dubber’s report of 14 April 1988 recorded that Mr Hopgood “presented on 30-3-88 with a central LS [lumbosacral – that is, lower back] ache associated with an ache through both buttocks (worse on the left). The pain was worst in the morning and increased by sitting and sustained lumbar flexion. The pain was decreased by heat and lying supine….On palpation there was pain and stiffness at L3 [lower back]….Mr Hopgood has been an irregular attender. His treatment has included iliopsoas stretches, mobilisation to L3/L4, heat, interferential, dural stretches and mobility exercises. He reports temporary relief of pain levels from treatment but is overall unchanged.”
38. Dr Saw then referred the Applicant to Dr M. Giblin, since physiotherapy did not appear to be helping him. Dr Giblin reported on 26 October 1989 that, when he first examined the Applicant on 27 April 1988, “[Mr Hopgood stated that] he had been unable to work since the time of the accident due to pain and discomfort. Most of the pain was in the low back area, when I saw him, with no significant radiation down the legs. There was some minor discomfort in the shoulder blades….He alleges that the pain was bad but he could manage without taking tablets. He could look after himself with regard to washing and dressing provided he was slow and careful. He couldn’t lift heavy weights off the floor; he could walk for a quarter of a mile and sit for an hour at a time. Standing for more than 30 minutes aggravated him. Even when he took tablets he had less than six hours sleep as well.” Dr Giblin concluded:
“In my opinion this gentleman’s injuries are consistent with the accident described and he has an injury to the thoracic spine which involves an aggravation of underlying L5/S1 isthmic spondylolisthesis and possible wedge compression fractures at T12 and L1. When I last saw him I felt conservative measures were not necessary. If he continues to experience increasing low back pain, then I feel that surgical intervention may be necessary.”
39. Dr Saw then referred the Applicant to Dr Robert Gordon Smith, FRCS, FRACS, of Macquarie Street Sydney, a specialist in low back pain. Dr Smith reported on18 September 1991 that Mr Hopgood “has continuing back pain in the upper lumbar region and little pain in the region of his spondylolisthesis at the lumbar sacral level. He describes a recent awareness of a bump in the mid back which is more sensitive than before.”
APPLICANT’S MEDICAL HISTORY: AFTER ACCIDENT OF 13 MAY 1997
40. Some time after entering into employment with Australia Post the Applicant began seeing Dr F.O. Chiew of Ingleburn, as his general medical practitioner. Dr Chiew provided medical certificates to Australia Post in relation to the motor cycle accident of 13 May 1997, and to other less serious medical conditions occurring before and after 13 May 1997. In relation to that accident the reports of the medical experts who were called to give oral evidence become most relevant. But for the sake of a complete review of the tendered written documents, two other reports should be noted at this point.
41. Dr Chiew referred the Applicant in 2002 to the Western Sydney Spine and Sports Injury Centre for therapy. The report of the Centre to Dr Chiew, dated 23 August 2002, and signed by Tuan Dong and Gaetano Milazzo, physiotherapists, stated their clinical diagnosis as “mechanical low back pain” and the therapy applied as “posture correction, strengthening exercises, spinal manipulation, and massage.” The report concluded with the note that “Mr Hopgood has had only one session of therapy. He has failed to attend his last appointment.”
42. Dr Chiew also referred the Applicant to Dr J. Billings of Liverpool Diagnostics of Liverpool. Dr Billings’s report of 28 May 2003 read, in relevant part, “LUMBAR SPINE: There is a spondyloslisthesis at the L5/S1 level with defects in the pars interarticularis on each side but no forward shift of L5 in relation to S1. Disc spaces throughout are well preserved. COMMENT: Spondylolisthesis L5/S1.”
43. The medical evidence most favourable to the Applicant’s case that his low back condition was caused by the employment related motor cycle accident of 1997, or by the conditions of his employment since that date, and not by the motor vehicle accident of 1987 which occurred before his employment by Australia Post, was given by Dr J.M. Ellis, FRCS, FRACS, orthopaedic surgeon.
44. In his first written report, dated 2 June 2003, Dr Ellis stated the full history he took of the Applicant. He was aware of the car accident of 1987, but noted Mr Hopgood’s statement that, before the motor cycle accident of 1997, “he did not really have back trouble”. He recorded Mr Hopgood’s reported symptoms of lower back pain after the accident of 1997 and the results of the X-rays ordered by Dr Chiew showing that he had spondylolisthesis at L5. He also recorded that Mr Hopgood reported increased back pain after riding a motor cycle in the course of his regular work, and also after standing at the mail sorting table for four hours. He described the Applicant’s present medical complaints as including:
·Low back pain constantly present for the past four or five years;
·Occasional attacks of severe pain lasting two to four days;
·His lifting limit is 5 kg;
·Bending forward is a problem, e.g. in tying shoelaces;
·His chair tolerance is 20 minutes;
·His walking limit is 1 km, when his low back pain and his left leg pain increase;
·He wakes about 6 times nightly because of low back pain, and each morning wakes with stiff sore back;
·His tolerance in riding a motor cycle for mail delivery is about 30 minutes;
·If mowing the lawn he has to lie down after about 15 minutes;
·When shopping he has to lean on the trolley and can lift only small weights into it.
45. Dr Ellis stated that the Applicant’s X-rays revealed “spondylolysis and spondylolisthesis of grade 1 (one quarter forward slip) of the 5th lumbar vertebra on S1. There is a bulging disc at this level and radiculopathy is clearly present in the left leg with hypoaesthesia of the S1 dermatome and less severe symptoms in the right leg….There is a variety of causes for this condition. The two chief causes are genetic (developmental) and traumatic (acute or chronic). The majority of people with spondylolysis are unaware of their condition. As the sliding of the vertebra above continues in a forward direction, it usually causes intervertebral disc damage at the level involved. Eventually the lumbar nerve roots at that level are involved mechanically, with the production of sciatica.”
46. As to causation, Dr. Ellis’s opinion was that:
“The L5-S1 spondylolysis, spondylolisthesis, intervertebral disc lesion, and sciatica, left worse than right, were almost certainly caused by the accident 13.5.97. If the spondylolisthesis existed prior to that injury, it was apparently symptomless and the aggravation of that injury has produced his clinical further impairment which has produced the symptoms and signs of the condition.”
47. Dr Ellis’s second report, dated 18 July 2003, commented on the X-rays taken immediately after his earlier examination of the Applicant. He stated that these confirmed his earlier clinical findings.
48. Prior to Dr Ellis’s third consultation with the Applicant on 6 July 2004, Dr Ellis was provided with copies of the reports of Drs. Carr, Gliksman and Maxwell. Two of those reports were less favourable to the Applicant’s claims regarding the cause of his lower back condition. It is convenient to deal with those reports through the prism of Dr Ellis’s comments on them. In his report dated 21 July 2004, Dr Ellis commented as follows:
On the report of Dr Gregory Carr, rheumatologist, of 8 September 1998:
“Dr Carr considered that the patient had a non-specific back ache in association with spondylolysis at L5. He regarded the patient’s condition as ‘entirely pre-existing condition with a temporary aggravation at work’”.
“With respect, my opinion is different from that of Dr Carr in that I believe every episode of ligamentous strain or aggravation that occurs at a spondylolisthetic area adds to the ligamentous damage at that level, makes the area more susceptible in future to trauma, and to a degree has resulted in accumulative and permanent injury of the low back in this case.”
On the report of Dr Michael D. Gliksman, occupational physician, of 26 September 2002:
“Dr Ellis merely noted that Dr Gliksman had given the opinion that “it is possible that the actual causal event was that described by him as occurring when traversing a pothole, as recorded by Ms Heydi van Mourik in her workplace assessment dated 8 July 1998. It is my medical opinion that the condition diagnosed does not result from the motor vehicle accident described as occurring in 1987.”
On the report of Dr David Maxwell, orthopaedic and spinal surgeon, of 5 February 2002.
“[Dr Maxwell] states that he considers ‘the patient’s current intermittent low back pain is due to the underlying spondylolisthesis and not as a result of any work related aggravation.”
“Again, my opinion is different from Dr Maxwell’s in that I believe that spondylolysis and spondylolisthesis can be caused or aggravated by physical stress. There have been many excellent scientific protagonists for different causes of spondylolysis, it is a well known orthopaedic observation and Workers’ Compensation experience indicates that physical stress can precipitate symptoms in spondylolisthetics, the symptoms can remain persistently troublesome. ….”
49. Dr Ellis concluded his report with the following observations, inter alia:
“[Mr Hopgood] is unfit for the work that he did prior to reducing his hours of employment due to injury.
“Mr Hopgood’s current need for future treatment or surgical intervention: he should continue with conservative treatment. At present he is 37 years of age and I think it likely that he will eventually come to spinal fusion probably at two levels.
“I continue to hold to the conclusions that I had in my previous report as to causation, but I think his percentage impairment of the lower limbs is 10%, not 20% w.p.i.
“The exact date at which his spondylolisthesis occurred is unknown. It could have been a developmental disorder, could have been related to trauma. If the spondylolisthesis was in fact present prior to 13.05.97 [the date of the pothole accident], the description of the accident and his complaints afterwards are typical for the ligamentous aggravation of a spine already weakened by spondylolysis. Ligamentous aggravation includes intervertebral disc injury.
“He noticed that riding a motor cycle made his back worse. It is a well known fact that riding a motor cycle particularly over rough areas as this patient did in his delivery service puts strain on the low back. Despatch riders on motor cycles in the Army are provided with lumbar supports to minimise this trauma. Standing for long periods does stress the mechanical back injury.”
50. Dr Ellis submitted a fourth report dated 28 November 2005 in which he essentially repeated his earlier observations and confirmed his opinions. He assessed a total on the Combined Values Chart of 28% whole person impairment.
51. Dr Ellis gave oral evidence before the Tribunal in which he was questioned in relation to his written reports and in which he was also asked to comment on the contents of a video, taken covertly of the Applicant engaged in various domestic activities, and introduced in evidence by the Respondent without objection.
52. In cross-examination by Mr Jones Dr Ellis was taken through the recorded medical history of the Applicant from the time of the motor vehicle accident in 1987 up to the pothole accident of 1997. Dr Ellis conceded that, although he was aware of the 1987 accident, he did not have the history in as full detail as was now being put to him. He accepted that he had assumed, after having first examined him on 29 May 2003 (report of 2 June 2003), that Mr Hopgood was apparently symptomless, so far as back pain was concerned, prior to 13 May 1997. But then, as a result of the pothole accident on 13 May 1997 he immediately became symptomatic, on the history given to him by the Applicant.
53. Dr Ellis was then asked to assume a different history after 13 May 1997 from the one he had been given by the Applicant: that the Applicant was not thrown from his motor cycle and was not lying on the ground for some time, that only one wheel, not two, fell into the pothole, that in his numerous recorded visits to his doctor between the date of the pothole accident until February 1998, approximately 9 months, there was no mention of any back condition. Dr Ellis agreed that this history did not match the history he had been given of immediate pain “of a different type” to the kind he had experienced after the motor vehicle accident of 1987, following the pothole accident, and that that pain had been constant and worsening since that time. Taken then to the next recorded consultation between the Applicant and his doctor on 25 February 1998 Dr Ellis agreed that the interpretation of the doctor’s notes was to the effect that the Applicant reported back pain following shovelling dirt on the previous Sunday, and that he took five days sick leave from work, and that on his second visit to the same doctor on 1 June 1998 the Applicant related his “slight pain” in the back for the previous two weeks to the consequences of his 1987 motor vehicle accident, with no mention of the 1997 pothole accident.
54. The following questions by Mr Jones and answers by Dr Ellis were recorded in evidence:
“Q. In those circumstances it would suggest, would it not, particularly in view of the earlier history I put to you this morning that this man had a pre-existing spondylolisthesis which was discovered after he became symptomatic after the significant car accident of 1987?
A. Yes.
Q. And consistent with that condition he had significant pain initially which settled down to some extent after some years….Then he seems to have had a further exacerbation of the condition in February 1998 when shovelling dirt?
A. Yes.
Q. And then he wakes up one morning with an exacerbation of pain?
A. Yes.
Q. It’s common, isn’t it, for these conditions once they become symptomatic to often gradually worsen over a period of time?
A. Be aggravated, yes.
Q. And during that time there will be fluctuations in the level of pain perhaps relating to activities which the individual is performing?
A. Yes, and relating to the pathology in the back.
Q. Doctor, can I suggest to you that the only way you have arrived ultimately at the aetiology of this man’s complaints of back pain is because the history you obtained was different from the history that I have given you today?
A. What you are saying is that the histories are different and I have formed my opinion largely from the history that I got. I mean, the fact is the man has got an unstable painful back. The fact is that his work was stressful and the fact is that he did have an accident. Those are all things that are part of it and they are incontrovertible no matter who takes the history and his physical examination is straightforward and that is not a controvertible thing…..”
55. Dr Ellis was then cross-examined by Mr Jones in relation to the video that had been covertly filmed showing the Applicant walking, playing with children, lifting a child briefly under the arms, shopping in a market, placing items in a shopping trolley, and lifting something into the back seat of a car. He was invited to say that the apparently unrestricted movements of the Applicant shown in the video were inconsistent with his diagnosis of 15 percent whole person impairment, which, under table 9.6: Spine [of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, 2nd ed., 2005], required a loss of half normal range of movement of the thoraco-lumbar spine. Dr Ellis thought that the video was inconclusive. He was of the view that it was a “fairly sketchy brief look at a window in someone’s life….It may have been on a good day, and so on. I [would] just want something a bit more definite than that before I put a great deal of weight on it.” Pressed further as to whether what had been shown on the video was compatible with a person suffering a loss of half normal range of movement, Dr Ellis answered: “I still think my opinion is right, but the way you put it to me, I must agree with you.”
56. Dr. David Maxwell, FRCS, FRACS, orthopaedic and spinal surgeon, submitted a written report on 5 February 2004 and was called by the Respondent to give oral evidence before the Tribunal. It has been noted above in these Reasons (para. 48.) that Dr Ellis, in his written report, disagreed with Dr Maxwell’s view that the Applicant’s back condition was not the result of the pothole accident of 1997 or of any work-related aggravation. Dr Maxwell’s written report contained the following further observations, inter alia:
“I consider that he made a good recovery and returned to normal duties after the 1997 incident.
I consider his current intermittent low back pain is due to the underlying spondylolisthesis and not as a result of any work related aggravation. There is no doubt that conservative treatment is beneficial in most patients with spondylolisthesis. Because of the weakness and relative instability at the L5 S1 level it is essential that patients with this condition maintain good power of their trunk muscles to support their back. Mr Hopgood has decompensated and needs to undergo a much more intensive trunk strengthening exercise programme. He also needs to lose more weight. It is likely that if he underwent this form of programme his intermittent symptoms would completely resolve.
He suffers from L5 S1 spondylolisthesis which has not been caused by his work. It is a constitutional condition which affects approximately 4% of the population. People with this condition are subject to increased low back pain compared with the general community, particularly if they become unfit, lose the strength of their trunk muscles and put on weight. This is the reason Mr Hopgood is experiencing some intermittent discomfort.”
57. In cross-examination by Mr Kettle Dr Maxwell stated that he accepted the Applicant as a truthful person in his history, but maintained his opinion that the cause of the Applicant’s condition was constitutional and not related to the pothole incident of 1997. He conceded that riding a motor cycle over rough terrain on a regular basis could be the cause of occasional flare-ups but not of the underlying pathology. In relation to the term “decompensate”, which he had used in his written report, he did not mean to imply that the Applicant ignored medical advice; rather that his condition had been affected by his loss of general physical condition. In relation to a video he had seen of the Applicant engaged in domestic activities on an earlier occasion than the one shown before the Tribunal, which he had not seen, Dr Maxwell agreed that the range of the Applicant’s movements shown was not inconsistent with the history he had been given.
58. Dr Michael D. Gliksman, FAFOM, FAFPHM, occupational physician, submitted a written report of his examination of the Applicant on 26 September 2002, and gave evidence before the Tribunal by telephone.
59. Dr Gliksman, in his written report, had concluded that the Applicant’s symptoms “occurred on a background of congenital pars interarticularis defects, which rendered Mr Hopgood susceptible to the disc pathology found. However, it is possible that the actual causal event was that described by him as occurring when traversing a pothole, as described Ms Heydi van Mourik in her workplace assessment dated 8 July 1998. It is my medical opinion that the condition diagnosed does not result from the motor vehicle accident described as occurring in 1987.”
60. Mr Jones put to Dr Gliksman the full history of the Applicant’s back condition from the time of the motor vehicle accident of 1987 to the present. Dr Gliksman agreed that this was a different history than the one which he had taken or assumed before reporting in 2002 commenting “If I had been in receipt of the history you have just given me at that time I wouldn’t have made the conclusion that I had….The history you outlined to me suggests that the incident of traversing the pothole was not important and didn’t result in injury.”
61. In cross-examination Dr Gliksman agreed that an underlying spondylolisthesis could be aggravated by an incident such as striking the pothole. But the reason why he was now of a different opinion in Mr Hopgood’s case was that, on the basis of the history now put to him, it appeared that no complaints of back pain immediately followed the pothole incident. But if there had been such complaints his opinion “would move back in the direction of” his report of 2002.
62. The final medical witness called was Dr Gregory Carr, FRACP, rheumatologist. He had earlier submitted written reports, dated 8 September 1988 and 27 January 2004.
63. In the latter written report Dr Carr was of the opinion that:
“1. Brett Hopgood suffers from mechanical low back pain that increases as the day progresses and in my opinion relates to his underlying spondylolisthesis of L5 in association with generalised L5/S1 disc degeneration.
2. In my opinion Brett suffers aggravation of backache by way of temporary aggravation by prolonged standing work postures. I don’t think that the incident in 1997 has caused his complaint, but rather I am of the opinion that the underlying condition itself is the source of the problem, i.e. disc degeneration associated with spondylolisthesis L5/S1. There is no evidence of focal disc protrusion that would suggest that any particular bending incident or bike riding has caused the problem….
3. In my opinion this gentleman struggles with low back pain with prolonged standing, particularly, and with prolonged motorbike delivery and I think his problems are quite genuine. …
4 ….
5. This man’s prognosis appears to be poor, because of his chronic persistent back pain and intermittent left leg pain. It is possible that in the future he may require surgical intervention in the form of spinal fusion.”
64. Mr Jones put to Dr Carr the history of the Applicant’s back condition from 1987 to the pothole accident of 1997, as he had to the previous witnesses. In the light of that history, of which Dr Carr stated that he was previously not fully aware, Dr Carr agreed that the motor vehicle accident of 1987 had triggered off, or rendered symptomatic, the pathology in his lower back. Mr Jones then put to Dr Carr the history from the date of the pothole accident to 1 June 1998. Dr Carr answered that it was “unlikely, very unlikely indeed” that the pothole accident in some manner had triggered off a continuing low back pain in Mr Hopgood.
65. In cross-examination Dr Carr agreed that, although he considered that the pothole accident was not the cause of the Applicant’s condition, that incident could be the cause of a temporary aggravation of the symptoms.
EVALUATION OF THE MEDICAL EVIDENCE AND THE APPLICABLE LAW
66. The medical evidence must be considered against the requirements of the relevant parts of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Section 14 of the Act provides that:
“(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.”
67. The term “injury” is defined in section 4 of the Act as:
“(a) ….;
(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; ….”
68. Thus, the question to be addressed is whether the Applicant’s back condition was caused by an injury suffered during his employment by Australia Post, or alternatively whether that condition was pre-existing but was aggravated by his employment by Australia Post.
69. Mr Kettle for the Applicant conceded that his client suffered a spondylolisthesis dating from the motor vehicle accident in 1987. But the evidence of low back pain resulting from this condition was sparse as time went on. Shortly before the time he accepted employment with Australia Post the bone scan and plane x-ray conducted by Dr Smith (report of September 1991) did not suggest, in the doctor’s opinion, “any recent activity in any way and no alteration in management is indicated. He may have a job as a postman and he should be able to manage this.”
70. Mr Kettle submitted that the slowness of the Applicant to attribute his low back pain to the pothole incident of 13 May 1997 was not inconsistent with that being the case.
71. Mr Kettle submitted that the principle applicable to the present case is that an injury will be aggravated if the experience of the injury is increased or intensified. The evidence is that the Applicant’s experience of the injury, the spondylolisthesis, has been increased, has been intensified since the date of the pothole incident. Even if the Tribunal should find that what happened after the pothole incident was a recurrence of his existing spondylolisthesis, it would be sufficient for the Tribunal to find an aggravation or indeed an injury for the purposes of the Act.
72. Mr Kettle referred the Tribunal to a number of cases dealing with aggravation, including Tippett v Australian Postal Corporation [1998] 335 FCA (which, as was pointed out by Mr Jones, was decided before the decision in Australian PostalCorporation v Bessey (2001) 32 AAR 508) and Commonwealth of Australia v. Beattie (1981) 35 ALR 369.
73. Mr Jones for the Respondent agreed that the diagnosis of the Applicant is not in doubt: he clearly has pathology in the lower spine. What is in issue before the Tribunal is the aetiology of the symptoms and whether there is any nexus between the Applicant’s condition and the pothole incident of 13 May 1997.
74. Mr Jones submitted that the view that the Applicant’s spondylolisthesis was asymptomatic before 13 May 1997 but continuingly painful after that date was not made out in the evidence. Dr Ellis was the principal proponent of that nexus. But he admitted that he was operating on an incorrect history. The correct history showed that the Applicant suffered appreciably from intermittent low back pain during the ten years before the pothole accident, as reported by him to doctors.
75. After the pothole incident of 13 May 1997 there is no record of complaint made to doctors mentioning his low back condition until 25 February 1998, and the Applicant’s own explanation for that condition is shovelling dirt, not the pothole incident. He next saw his GP on 1 June 1998 for back pain, but this was related by the Applicant to the motor vehicle accident in 1987, with no mention of the pothole accident of 1997. Thus the claim for compensation in relation to the pothole accident of 1997, first made on 11 June 1998, some 13 months after the accident, appeared to be an afterthought.
76. Mr Jones submitted that the Tribunal should place weight on the opinions of Dr Carr and Dr Maxwell to the effect that the pothole accident of 1997 could have provided a temporary exacerbation of pain, but was not the cause of the underlying condition nor of its aggravation.
77. Mr Jones referred to Treloar v. Australian Telecommunications Commission (1990) 26 FCR 316, where it was said by a full court of the Federal Court of Australia, in relation to a similar legislative provision, at 323:
“The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.”
78. A similar case to the present was Australian Postal Corporationv. Bessey (2001) 32 AAR 508. That was also a case of an underlying condition (spondylosis) which was claimed to have been aggravated through riding a postal delivery motor cycle. A passage from the judgement of Gyles J., at 509, is instructive:
“It has been well settled by a series of decisions starting from Jordan CJ’s judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19, Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533, and Casarotto v Australian Postal Commission (1989) 10 AAR 191, that if an underlying condition is aggravated, in the sense of made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.”
FINDING OF THE TRIBUNAL
79. The Tribunal finds, on the evidence and on the balance of probabilities, that the Applicant has not suffered any back injury as a result of the pothole accident that occurred on 13 May 1997 or by his employment with the Respondent since that time. The Tribunal also finds, on the evidence and on the balance of probabilities, that the Applicant’s underlying condition of spondylolisthesis was not aggravated, within the meaning of section 14 the Act, as explained in Bessey (supra), by the accident of 13 May 1997.
DECISION
80. The Tribunal affirms the decisions under review.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member I. A. Shearer and Member Dr I. Alexander
Signed: Associate
Dates of Hearing 16 February 2005
14, 15 and 16 December 2005
Date of Decision 1 June 2006
Counsel for the Applicant Mr S Kettle
Solicitor for the Applicant Ms J Moi, Etherington Solicitors
Counsel for the Respondent Mr P Jones
Solicitor for the Respondent Mr L Forner, Forners Solicitors
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