Hughes and Australian Postal Corporation
[2009] AATA 260
•21 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 260
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2281, 2008/3015
GENERAL ADMINISTRATIVE DIVISION
)
Re KATE HUGHES Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member Naida Isenberg and Dr M Thorpe, Member Date21 April 2009
PlaceSydney
Decision The Administrative Appeals Tribunal:
(i) sets aside the reviewable decision of 25 May 2007 and finds that Ms Hughes continued to suffer from the effects of the injury to her lower back and left hip joint sustained during the course of her employment on 13 January 2006 as at 24 April 2007 and that Australia Post continues to be liable for the effects of the injury pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
(ii) affirms the reviewable decision of 24 June 2008 that Ms Hughes has no entitlement to permanent impairment pursuant to sections 24 and 27 of the Act in relation to her lower back and left hip conditions.
.............[sgd].................................
Naida Isenberg
Senior Member
CATCHWORDS
COMPENSATION – injury to lower back and left hip – decision to cease liability – permanent impairment – whether applicant continued to suffer effects of injuries – whether applicant suffered 10 per cent or more whole person impairment – decision to cease liability set aside and decision in respect to permanent impairment claim affirmed
Safety, Rehabilitation and Compensation Act 1988 – ss 16, 19, 24, 27, 28
REASONS FOR DECISION
21 April 2009 Senior Member Naida Isenberg and Dr M Thorpe, Member Background
1. Ms Hughes has worked for the Australian Postal Corporation (“Australia Post”) as a Postal Delivery Officer since 2003. On 13 January 2006 she was performing her delivery duties on a motorcycle and allegedly injured her lower lumbar and left hip.
History of Applications
2. It was not until 21 February 2006 that Ms Hughes completed an incident report (T5, 2007/2281) and stated:
Whilst performing my delivery duties I noticed increasing lower back and left hip pain, I performed regular stretching exercise to no avail. Dr found repetitive strain injury via numerous tests after presenting with severe pain and limb restriction.
3. When she submitted a “Claim for Rehabilitation and Compensation” form (T5, 2007/2281) on 23 February 2006 she wrote “whilst delivering felt pressure lower lumbar region and increasing pain/discomfort in left hip.”
4. Initially, Australia Post determined that it was not liable to pay compensation to Ms Hughes, but later, on reconsideration, accepted liability to pay compensation in respect of injury to Ms Hughes’ “low back and left hip joint.” Then, by determination dated 24 April 2007 (T59, 2007/2281), Australia Post determined that it had no present liability to pay compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Ms Hughes has applied to this Tribunal (application 2007/2281) for the review of the decision dated 25 May 2007 (T61, 2007/2281) that affirmed the determination dated 24 April 2007.
5. On 12 February 2008 Ms Hughes claimed for permanent impairment in respect of her lower back and left hip conditions, pursuant to sections 24 and 27 of the Act. By determination dated 5 March 2008, Australia Post denied liability. Ms Hughes has applied to this Tribunal (application 2008/3015) for review of the decision dated 24 June 2008 that affirmed the determination dated 5 March 2008.
Issues For Determination
6. We have had to decide:
· Whether Ms Hughes continued to suffer from the effects of the injury sustained on 13 January 2006 to her lower back and left hip as at 24 April 2007 and whether Australia Post is still liable to pay compensation for the effects of the injury pursuant to sections 16 and 19 of the Act.
· Whether Ms Hughes has an entitlement to compensation for permanent impairment pursuant to sections 24 and 27 of the Act in relation to her lower back and left hip conditions.
LEGISLATIVE FRAMEWORK
7. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act1988, in particular sections 16, 19, 24 and 27.
Evidence of Applicant
8. Ms Hughes gave evidence that on Friday 13 January 2006, while delivering mail on a motorcycle, she turned right up a driveway and as she pulled up to a delivery point she slid on a seed pod when she put her left foot down. She was suspended momentarily off the bike and “did the splits”, with her left hip lower than her right. She felt a popping sensation in her hip and a burning sensation in her hip and lower lumbar region. Her right leg was hooked over the seat, “semi bent” and her left leg was “directly straight out, as in the splits”. She was unable to reach the right-hand handle bar to access the kill switch. She placed her left hand on the fence and “walked” herself up, enabling her to let the bike go with her right leg. She rested for a short while and then resumed her deliveries. She rested at home that night and over the weekend because she was experiencing varying degrees of pain and her sleep was disrupted. She phoned in sick on Monday, at that stage believing she had muscular strain. She went to see her GP that day but saw a locum, Dr Singh. She did not mention the incident with the bike as she did not think she could have sustained such an injury from the slip. She returned to work on Wednesday although she still had stiffness across her lower back, numbness in her left buttock and difficulty walking. She used painkillers she had obtained from the chemist or friends.
9. Over the next few weeks her symptoms deteriorated and she was finding it more difficult to complete her daily duties. On 20 February 2006 she saw her GP, Dr Ginnane, to whom she complained of restricted movement and pain in her lower back and left hip. Again, she did not mention the accident because she did not think it was related to her condition. Dr Ginnane gave her a WorkCover NSW medical certificate indicating she would be unfit to work for a week. He referred her for physiotherapy and she had soft tissue massage.
10. Her oral evidence was that Dr Ginnane, having diagnosed repetitive strain injury, connected her condition to her employment, specifically “long hours walking with heavy backpacks”. About a week later it occurred to her that there may have been a connection between the incident on 13 January 2006 and her condition and she mentioned it to Dr Ginnane.
11. She had a cortisone injection in late February 2006. By September 2006 she had been prescribed Endone, a narcotic for her occasional severe pain. She has developed a variety of symptoms. She told Dr Fearnside in October 2007 she has continued to experience back, left buttock and left hip pain; also that she had developed left sided sciatica with referred pain to the foot. She also described having alternate cold and burning feelings in the left hip and buttock region and had experienced some paraesthesia in her right buttock and thigh, but no sciatica. Also since January 2006 she had been constipated and also experienced loss of bladder sensation and some urinary incontinence.
12. She said that since 13 January 2006 she has had virtually the same level of back pain, the intensity of which varies according to her activities. Her left hip has deteriorated and that pain also fluctuates. Her hip is more troublesome than her back. Nonetheless since late August 2007 she has worked 7 hours 21 minutes each work day and does 1 to 1½ hours overtime most days.
13. She said she has had several experiences of her left hip locking and her left leg giving way. That might occur once a month, although it occurred three times one month.
14. Although she had had some investigations in relation to carpal tunnel syndrome and in relation to her cervical and thoracic spine prior to the accident she was in good health and a keen sportswoman.
15. She was questioned extensively about the work history she was recorded as having given to Dr Maxwell and Professor Fearnside, which suggests she had university qualifications and had worked for the NSW Police. She contended that the doctors had mis-recorded what she had said.
16. Evidence was also given by her friend and former work colleague, Basil Webb. The evidence was to the effect that they had worked together as undercover store security guards with limited powers. On apprehension of a suspected thief they would liaise with police with whom they would work co-operatively.
Medical Witnesses
17. We heard and read evidence from a number of doctors about Ms Hughes’ condition and the likelihood of the permanence of the condition.
18. On 28 February 2006 a left hip ultrasound (T7, 2007/2281) was reported as showing “changes of insertional tendinopathy involving the left gluteus minimus and medius tendons at the trochanteric attachment, with the degree of swelling a little more pronounced in gluteus minimus, but the symptoms more pronounced with transducer pressure over the gluteus medius, with mild overlying thickening of the sub-ITB bursa. No tendon tear was seen.”
19. On 8 March 2006, an MRI (T9, 2007/2281) of Ms Hughes’ lumbosacral spine indicated “degeneration of the L5/S1 disc with disc space narrowing and a posterior annular tear.” On the same date, Dr Ginnane, Ms Hughes’ GP, informed Australia Post (T10, 2007/2281) that Ms Hughes had a low back injury and bursitis. Dr Ginnane stated that Ms Hughes had been a patient for two years without any evidence of the injuries until she slipped on a seed pod at work on 13 January 2006. In August 2006, Dr Ginnane referred Ms Hughes to the Pain Clinic at the Royal North Shore Hospital for pain management (T29, 2007/2281). In treatment of Ms Hughes in March 2007 he deferred to Professor Dan, neurosurgeon (T52, 2007/2281).
20. On 9 March 2006, Ms Melinda Klarenaar, sports physiotherapist, reported (T11, 2007/2281) that Ms Hughes “presented to Physiotherapy on 23rd February 2006 after slipping on a Seed pod one month prior” and “complained of Lumbar Spine and Left Hip pain.” Ms Klarenaar wrote that Ms Hughes had a “Lumbo-sacral injury (L5/S1 disc) plus Left Hip joint Gluteal Tendinopathy resulting from the slip at work.”
21. On 13 April 2006, Dr Martin McGee-Collett, neurosurgeon, reported that Ms Hughes “suffered from low back pain and pain extending down the left lower limb since she hurt her back delivering mail on a motorcycle” in mid January (T14, 2007/2281). Dr McGee-Collett referred to plain x-rays which showed diminished L5/S1 disc height and an MRI which confirmed diminished L5/S1 disc height with disc degeneration and diagnosed Ms Hughes with “discogenic low back pain.”
22. On 15 June 2006, an MRI (T18, 2007/2281) of Ms Hughes’ left hip indicated a “small incompletely separated ossicle” at the very anterolateral articular margin and “minor articular cartilage wear over the adjacent acetabular surface.” There was also “a mild gluteus medius and minimus tendinopathy.”
23. On 27 June 2006, Dr Jeffrey Brennan, neurosurgeon, reported (T19, 2007/2281) that Ms Hughes had had low back pain since her injury in January. Dr Brennan noted that it was of concern that Ms Hughes developed a “change in bowel and bladder habit”, “loss of sensation, the sensation of incomplete emptying, and a need to urgently use the toilet where her bladder is very full. She is no longer able to use her bowels unless she [has] some aperient.” Ms Hughes complained of “pain and irritability around the left hip.” Dr Brennan stated that Ms Hughes possibly “developed a disc herniation at L5/S1 and may have cauda equina compression” and recommended a repeat MRI.
24. On 7 July 2006, an MRI (T23, 2007/2281) of Ms Hughes’ lumbosacral spine indicated “continued evidence of a small tear of the annulus fibrosis at L5-S1, unchanged from the previous examination.” On 11 July 2006, Dr Brennan reported (T24, 2007/2281) that the repeat MRI did not indicate a structural cause to the bladder dysfunction related to Ms Hughes’ spine. Dr Brennan stated that “patients with chronic pain can develop reflex bladder dysfunction due to the disturbance of normal neurological control related to the constant pain input.”
25. On 3 August 2006, Dr Peter Holman, orthopaedic surgeon, reported (T27, 2007/2281) that Ms Hughes sustained an annular tear at L5/S1 which was previously degenerate and tendonitis of the gluteus medius and minimus tendons. Dr Holman also diagnosed a mild degree of left trochanteric bursitis and minimal degenerative changes in the left hip joint. Dr Holman opined that Ms Hughes suffered “an injury to the L5/S1 disc and aggravation of gluteal tendonitis.” It was recommended that Ms Hughes attend a pain management specialist to manage her pain. Dr Holman stated that Ms Hughes’ “prognosis for a complete recovery [was] doubtful.”
26. On 20 February 2007, Professor Noel Dan, neurosurgeon, reported (T49, 2007/2281) that Ms Hughes had limited movement and pain in the low lumbar region and in both hips. Professor Dan reported that around June 2006, Ms Hughes developed problems with defecation without using laxatives, her bladder sensation, and holding her urine when her bladder is full. It was also reported that Ms Hughes would sometimes feel her bladder is full when it is not and is not aware when it does fill up. Dr Dan expressed that Ms Hughes’ history was suggestive of a neural involvement and recommended a thoracic MRI given Ms Hughes’ high sensory level.
27. On 29 October 2007, Professor Michael Fearnside, neurological surgeon, reported (T4, 2008/3015) that Ms Hughes had constant low back pain, left buttock pain, pain radiating from her right to left hip restricting her ability to squat, bend or stand for prolonged periods without sitting for pain relief. She was also unable to sit for more than an hour without the need to frequently move. Professor Fearnside reported that Ms Hughes subsequently developed left sided sciatica with referred pain down the back of her leg to the foot where she also experienced paraesthesiae. Ms Hughes subsequently became constipated and relied on laxatives, had no urge to open her bowels, experienced loss of sensation of bladder filling and urinary incontinence. Professor Fearnside stated that Ms Hughes’ “employment with Australia Post is a substantial contributing factor to her present clinical condition.” It was also stated that Ms Hughes’ ability to return to pre-injury duties has been severely limited.
28. On 14 November 2007, Professor Fearnside stated (T6, 2008/3015) that “[i]t is probable that the posterior annular tear demonstrated in the MRI scan of 8/3/06 was post-traumatic rather than degenerative because Ms Hughes was asymptomatic prior to the accident.” Professor Fearnside added that Ms Hughes was asymptomatic at the time of the accident, she was fit, well and a keen sportswoman and worked her normal duties as a postal worker. Professor Fearnside further stated that “the permanent impairment arising out of the work related injury is 10%. No deductible proportion should apply.”
29. On 6 July 2006, Dr David Maxwell, orthopaedic and spinal surgeon, reported (T22, 2007/2281) at the request of the Respondent. Dr Maxwell diagnosed Ms Hughes as having mild tendonitis of the gluteus medius tendon of the left hip and mechanical back pain resulting from facet joint irritation at the L5/S1 level on the left. It was stated that it was probable that Ms Hughes’ symptoms were related to the work related incident. Dr Maxwell opined that Ms Hughes had pre-existing degenerative changes of the L5/S1 disc which had possibly been aggravated. It also stated that tendonitis of the gluteus medius tendon can be resistant to treatment and result in a chronic condition. On 24 August 2006, Dr Maxwell reported (T31, 2007/2281) that there is no direct connection between Ms Hughes’ bladder and bowel symptoms and the work related injury.
30. On 16 June 2008, Dr Maxwell again reported (T14, 2008/3015) at the request of the Respondent. There he opined:
Ms Hughes continues to complain of symptoms which are difficult to explain on the basis of the demonstrated pathology. When last seen I felt she was suffering from some tendonitis of the gluteus medius and minimus tendons. This condition in a relatively young person would be expected to resolve spontaneously. It is unlikely to have been caused by an abduction type injury to the left hip.
31. Dr Maxwell continued:
Investigations of her lumbar spine also do not show pathology which would be expected to cause prolonged disability or impairment. There are some abnormalities on the physical examination which are difficult to explain on organic grounds. The report of bladder and bowel symptoms also appear to have no objective neurological basis.
32. On 6 November 2006, Dr Mark Horsley, orthopaedic surgeon, reported (T43, 2007/2281) at the request of the Respondent. He commented:
There are features on the physical examination that do not correlate. Firstly a straight leg raise involves flexing the hip when the knee is fully extended. On the left side she had severe pain when the leg was lifted to 45º off the examination couch. This pain was in the low back and left calf associated with numbness in the calf. I then asked her to lean forward on the examination couch where her knees were fully extended and she was able to flex the hips beyond 90º, obtaining the sitting position as I examined her back. This does not correlate.
33. He also opines “there is no objective evidence of a pathological process to cause her pain” and that “[w]ithout any objective evidence of a pathological condition I find it difficult to relate her ongoing symptoms to the work injury on 13 January 2006.”
34. In a supplementary report dated 17 November 2006 (T44, 2007/2281), Dr Horsley reported to the effect that it was very reasonable for Ms Hughes to be referred to a pain clinic for assessment and treatment.
FINDINGS
35. This was a difficult matter. There were aspects of the medical evidence which were problematic, and there were credit issues which emerged. We formed the view that having regard to her evidence and the evidence of Mr Webb that Ms Hughes had “gilded the lily” in describing her educational qualifications and her career, finding it unlikely that both doctors had mis-heard her work history.
36. However, it was clear to us that there is no evidence which would lead us to a view that the incident on 13 January 2006 did not occur as Ms Hughes described. Further, her evidence, supported by the notes of Dr Ginnane, is as to a total absence of any symptomatology of the lower back or hip prior to 13 January 2006.
37. We accept, too, her evidence that she had discomfort over the weekend of 14-15 January 2006. There was medical evidence that she attended Dr Singh on 16 January 2006 and that, on examination, showed a reduced range of movement in the left hip, and that movement was painful. It is somewhat bizarre though, in our view, that Ms Hughes made no connection between the incident on 13 January 2006.
38. Also, curiously perhaps given that the pain persisted, she did not go back to a doctor until 20 February 2006, about a month later. However, we accept her evidence that she did not attend earlier because she thought the pain would subside. Again though, she did not mention what had happened on 13 January 2006, although Dr Ginnane was prepared to issue a WorkCover certificate.
39. The incident report of 21 February 2006 does not make a direct connection with the accident as described. It was only in late February that she made the connection with the incident of 13 January 2006, although she had been asymptomatic beforehand. We accept that she was reluctant to accept that it was causing her symptoms and was reluctant to make a claim.
40. It was in her request for reconsideration of the determination dated 2 March 2006 that she first mentioned to Australia Post that her left foot had slipped on a seed pod, and that whilst in a straddled position holding the bike upright she felt a pop and experienced pain in her left hip and lower lumbar region. We do not find this account to be inconsistent with the accounts previously given, in circumstances where she had not considered that there was a connection with the accident, and, in any event, had thought she had muscular pain which would spontaneously resolve over time with stretching and massage.
41. Her symptoms did not subside as may have been expected, and in fact spread to other areas. Dr Ginnane has endeavoured to try to understand and treat his patient’s diverse symptoms and she was referred to a number of specialists. Dr Horsley could not find objective evidence of a pathological condition to explain the symptoms and Professor Fearnside gave evidence that she has more pain than one would expect with the pathology findings that were made. Dr Holman, was baffled by Ms Hughes’ failure to respond to conservative treatment for her hip, but had nothing more to suggest except for a possible further injection into the hip. We accept her evidence that she did not undertake a pain management course, as recommended, because she could not afford it.
42. We note the Respondent’s criticism of the Applicant’s actions following the accident which Dr Brennan recorded in his report of 27 June 2006. However, we note that Dr Brennan did not appear to have taken a detailed history from Ms Hughes about the accident.
43. We accept that both Professor Fearnside and Dr Maxwell accepted that the incident caused the gluteal injury. Ms Hughes’ description of events around the injury involved adduction (away from the midline) of her left leg rather than adduction (towards the midline). Both Professor Fearnside and Dr Maxwell considered gluteal tendinopathy to result form an adduction of the leg rather than abduction. There was some evidence relating to twisting. Professor Fearnside presumed that there had been a twisting from the manner of the fall. Dr Maxwell said in effect that if she was any twisting at that point that could have caused the injury.
44. Dr Ginnane in his evidence said that he believed, based on the number of prescriptions he was giving Ms Hughes, that she was taking one or two Endone tablets a week which is consistent with Ms Hughes’ evidence.
45. We find that as at 24 April 2007 Ms Hughes continued to suffer from the effects of the injury to her lower back and left hip joint sustained during the course of her employment on 13 January 2006. She was asymptomatic before the incident on 13 January 2006 and continues to experience symptoms. Australia Post therefore continues to be liable for the effects of the injury pursuant to sections 16 and 19 of the Act.
Permanent impairment
46. Compensation is not payable unless there is at least 10 per cent Whole Person impairment (“WPI”): section 24 (7)(b) of the Act.
47. The degree of permanent impairment is assessed in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”). The relevant table under the Guide is Table 9.7.
48. In his report of 29 October 2007 Professor Fearnside assessed Ms Hughes as having an impairment rating of 10 per cent WPI under Table 9.7 of the Guide, whereas Dr Maxwell opines (T14, 2008/3015) that she does not qualify for 10 per cent WPI, although he had observed Ms Hughes walk with a slight limp.
49. The descriptors for 10 per cent and 20 per cent WPI are as follows:
Table 9.7: Lower Extremity Function (extract)
% WPI Major Criteria
(at least one required)
Minor Criteria
(at least two required where listed)
10 Walks at a normal pace in comparison with peers on level ground but is unable to negotiate uneven ground without use of a walking aid or personal assistant;
or
Walking is restricted to 500m or less at a time (may be able to walk further after resting).
Legs give way or lock occasionally without resulting in falls.
Is unable to negotiate three or more stairs or a ramp (up and down) without the use of a walking aid or hand rails.
20 Walks at a moderately reduced pace in comparison with peers on level ground;
or
Walking is restricted to 250m or less at a time (may be able to walk further after resting).
Legs give way occasionally resulting in falls.
Is unable to negotiate three or more stairs or a ramp (up and down) without use of rails.
Is unable to rise from sitting to standing position without use of one hand but can stand without support.
50. There was no evidence of Ms Hughes experiencing walking restrictions as specified in the major criteria for a rating of 10 or 20 per cent WPI. There was some evidence that her leg had given way or locked occasionally and that she had, on one occasion fallen such as to require medical attention from Dr Ginnane. There was no evidence of difficulty with stairs or the need to rise with support from one hand.
51. We came to the view that Ms Hughes does not meet the criteria for at least 10 per cent WPI.
DECISION
52. The Administrative Appeals Tribunal:
(i)sets aside the reviewable decision of 25 May 2007 and finds that Ms Hughes continued to suffer from the effects of the injury to her lower back and left hip joint sustained during the course of her employment on 13 January 2006 as at 24 April 2007 and that Australia Post continues to be liable for the effects of the injury pursuant to sections 16 and 19 of the Act.
(ii)affirms the reviewable decision of 24 June 2008 that Ms Hughes has no entitlement to permanent impairment pursuant to sections 24 and 27 of the Act in relation to her lower back and left hip conditions.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Naida Isenberg and Dr M Thorpe, Member
Signed:......................................[sgd]............................................
AssociateDates of Hearing 25 and 26 March 2009
Date of Decision 21 April 2009
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Ms M Cassidy, Slater & Gordon
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Ms C Tirado, Australian Postal Corporation
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