Hughes and Australian Postal Corporation - [2002] AATA 776

DECISION AND REASONS FOR DECISION [2002] AATA 776
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/25 &

GENERAL ADMINISTRATIVE DIVISION    )         N2001/924 & N2001/704
        Re      DAVID BARRY HUGHES
  Applicant
          And     AUSTRALIAN POSTAL CORPORATION
  Respondent
  DECISION
Tribunal       Ms G Ettinger - Senior Member
Date              6 September 2002

PlaceSydney

Decision      N2001/25: The Administrative Appeals Tribunal affirms the decision of the Australian Postal Corporation of 25 February 2000 which affirmed the decision of 18 January 2000 to deny liability for compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 in respect of an injury claimed by the Applicant, Mr David Barry Hughes to have been a fractured skull suffered at work on 3 January 2000. N2001/924: The Administrative Appeals Tribunal affirms the decision of the Australian Postal Corporation of 15 June 2001 which varied the decision of 5 May 2000 as affirmed in a section 62 decision dated 23 May 2001 which disallowed the Applicant's claim for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988. N2001/704: The Administrative Appeals Tribunal affirms the decision of the Australian Postal Corporation of 23 May 2001 which affirmed the decision of 11 May 2000 to deny liability to Mr Hughes for injury to the neck and shoulder arising out of the incident of 3 January 2000. Costs: No costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.
  Ms G Ettinger
  Senior Member
CATCHWORDS
Compensation - whether injury/disease - whether incapacity for work - whether permanent impairment – decisions affirmed

LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24 and 27
Comcare Guide for the Assessment of the Degree of Permanent Impairment Tables 9.1, 9.4, 9.6 and 13.1

REASONS FOR DECISION

6 September 2002 Ms G Ettinger - Senior Member

The decisions under review before the Administrative Appeals Tribunal ("the Tribunal") were as follows:

N2001/25: This matter dealt with the appeal of Mr David Barry Hughes, the Applicant, against the decision of the Australian Postal Corporation of 25 February 2000 (T10, Exhibit R10), which affirmed the decision of 18 January 2000 (T8, Exhibit R10) to deny liability for compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, in respect of an injury claimed by the Applicant to have been a fractured skull suffered at work on 3 January 2000. The matter had orIginally been lodged in the Canberra Registry of the Tribunal where it had been entered as A2000/440.
N2001/924: This matter concerned the appeal of Mr David Barry Hughes against the decision of the Australian Postal Corporation of 15 June 2001 (T10, Exhibit R11) which varied the decision of 5 May 2000, as affirmed in a section 62 decision dated 23 May 2001 to disallow the Applicant's claim for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.
N2001/704: This matter concerned the appeal of Mr David Barry Hughes against the decision of the Australian Postal Corporation of 23 May 2001 (T9, Exhibit R11) which affirmed the decision of 11 May 2000 (T12, Exhibit R10) to deny liability for injury to the neck and shoulder arising out of the incident of 3 January 2000.

The Applicant, Mr Hughes, was represented by Mr J Watts of counsel instructed by Richards Lawyers and the Respondent, Australian Postal Corporation ("Australia Post"), by Ms R Henderson of counsel, instructed by Blake Dawson Waldron Solicitors.
ISSUES BEFORE THE TRIBUNAL
The Tribunal had to decide whether:
Mr David Hughes was entitled to compensation for "fractured skull" sustained at work in a fall on 3 January 2000, as claimed in T7, (Exhibit R10), pursuant to provisions of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
In reaching its decision as to the issue raised above, the Tribunal had to consider:
·     Whether the Respondent is liable to Mr Hughes for an injury suffered pursuant to section 4(1) of the Safety Rehabilitation and Compensation Act 1988;
·     If he suffered an injury whether Mr Hughes' employment materially contributed to his condition;
·     Whether Mr Hughes' injury was compensable pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988;
·     Whether Mr Hughes was entitled to be paid compensation pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 for permanent impairment.

LEGISLATIVE FRAMEWORK

The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14, 24 and 27.
Section 4 of the Act defines "disease" and "injury" and follows as relevant:
"4. (1) In this Act, unless the contrary intention appears:
...
"disease" means:
  (a)       any ailment suffered by an employee; or
  (b)       the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
...
"injury" means:
(a)      a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
..."

Section 14(1) of the Act provides that:
"14 Compensation for injuries
14(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."

Sections 24 and 27 of the Act deal with permanent impairment and are dealt with later on in these reasons.
The Tribunal was mindful that permanent impairment is assessed pursuant to the Comcare Guide for the Assessment of the Degree of Permanent Impairment("Comcare Guide").

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ('the AAT Act"), being two sets of documents ("the T-Documents"), in matters A2000/440, N2001/704 & N2001/924 and N2001/25.
The following Exhibits were admitted into evidence:
ITEM DATE NAME
2 photographs of Silverwater Sorting Area  Exhibit A1
Amended Statement of Allan Gooley      30 April 2002 Exhibit A2
Bundle of Documents from Auburn Hospital                 Exhibit A3
Report from Dr Robert Gardner     1 December 2001    Exhibit A4
Extract of Documents by Dr Robert Gardner                 Exhibit A5
Bundle of Documents from Camden Hospital                Exhibit A6
Bundle of Documents from Dr George Papatheodorakis  Exhibit A7
2 photographs of Silverwater Sorting Area  Exhibit R1
Report from Dr Neil McGill 15 January 2002     Exhibit R2
Bundle of Documents from Dr Dexter                 Exhibit R3
Statement of Marie McGlynn        22 April 2002 Exhibit R4
Statement of Michael Sherman     17 January 2000     Exhibit R5
Clinical Notes from Auburn Hospital       27 July 2000 Exhibit R6
Emergency Department Clinical Record from Auburn Hospital         26 April 2000 Exhibit R7
Documents from Liverpool Health Service Area 28 August 2000       Exhibit R8
Documents from Liverpool Health Service Area 9 February 1997      Exhibit R9
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 - N2001/25 (A2000/440) (T-documents T1 – T16) Exhibit R10
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 - N2001/704; N2001/924 (T-documents T1-T10) Exhibit R11

Oral evidence was given (in order of appearance), by the Applicant, Mr David Barry Hughes, Mr A Gooley, a former work colleague of the Applicant, and postal worker, Dr N McGill, rheumatologist, Dr G Griffith, consultant surgeon, Dr R Gardner, general practitioner, Ms M McGlynn former supervisor of the Applicant, and Mr M Sherman, delivery manager of Silverwater Mail Centre.
EVIDENCE OF MR DAVID BARRY HUGHES – THE APPLICANT
Mr Hughes whose date of birth is 8 December 1964, gave oral evidence before the Tribunal. He currently resides in Queensland.
Mr Hughes gave evidence that his schooling went to "junior high" and that he then did a TAFE course in building, but that he did not work as a builder. He said that he worked as a roof tiler for a year. In cross-examination, I learnt that his apprenticeship was not in building, but in carpentry and joinery, and that the roof tiling was terminated due to the fact he fell off a roof and hurt his Achilles tendon.
Mr Hughes then gave evidence of other work he had done; two years in retail shoe sales; approximately three and a half years as a storeperson at Franklins; labouring in hotels and resorts in Queensland during 1987; and in bottle shops and as a builder's labourer on his return to Sydney in 1988. He said that after some two and a half years as a landscaper, he joined Australia Post as a Postal Delivery Officer ("PDO") in 1997. He said that he developed contact dermatitis and psoriasis and had to be hospitalised on various occasions. As a result, he was transferred to the Botany Delivery Centre and then the Silverwater Delivery Centre commencing in 1999.
Mr Hughes described the work at the Silverwater Delivery Centre, saying that he had to remove mail from standard bins called UDLs, unload large letters from bags into big bins, and sort these into frames of 36 pigeon holes for the PDOs to collect them for delivery. Mr Hughes said he worked on night shift from approximately 11 pm until 7 am. He said that on the night of 3 January 2000 he commenced work at about 9 pm, sorting large letters. He said that he had a fall, but was not sure of the exact time. He thought it might have been "early", perhaps midnight. Mr Hughes said that he had been walking with an armful of mail consisting of largely A3 sized papers and magazines, and lost his balance, falling backwards between two rows of trolleys and hitting his bottom, head and shoulder. He said that he slipped on a cylinder, and could not remember what had happened to the mail he was carrying. A short time later Mr Hughes said in evidence: "I didn't know what had caused me to fall. I told Marie [McGlynn] or Lana, I told them I slipped on something." During cross-examination when shown what was described as an EFTPOS cylinder with a paper roll around it, said to have been similar to the roll Ms Marie McGlynn found on the floor after Mr Hughes had been taken to hospital, following his fall. Mr Hughes said he had not ever seen one of those.
Mr Hughes said that when he fell, he heard a noise like a crack at the back of his head, a noise like the branch of a tree cracking, and felt a pinching, burning sensation on the top of his shoulders and in his lower neck. Mr Hughes said that he told either Lana or Marie: "I won't move till I find out what the noise is."
Mr Hughes also described the part of his body on which he fell as, "the bottom of the neck to the base of the head." Mr Hughes gave evidence that he did not lose consciousness but that he felt "woozy or dazed", and that the pain was in his neck although his rump was a little sore. He said that his neck was painful but that the pain was not excruciating.
Mr Hughes gave evidence that an ambulance attended and that he was placed on a board and in a neck brace, and that his head was taped to keep it immobilised. He was then transported to Auburn Hospital where he remained for approximately 12 hours before discharge. The Applicant said that he told the doctor at Auburn Hospital that he had pain in his neck, shoulder and bottom but did not have pain in his head at first. Mr Hughes said that the pain was over towards the right side. He said that he had X-rays the next morning.
The medical certificate from Auburn Hospital certified Mr Hughes unfit for work for a week (T6/17, Exhibit R10). On 5 January 2000, Mr Hughes was examined by Dr Scott on behalf of Australia Post who certified him fit to return to work on 7 January 2000 (PT6/18, Exhibit R10). The following day, 6 January 2000, Mr Hughes attended at his general practitioner, Dr R Gardner whom he had been seeing since 1986. He was given a certificate stating he was to return for review on 17 January 2000 (PT6/19, Exhibit R10).
Mr Hughes said that when he made his incident report on 5 January 2000 (T7, Exhibit R10), he wrote that he had a fractured skull because that is what the medical certificate said. He said that the certificate did not mention a sore neck, so he did not put it down.
Mr Hughes said he did not remember what treatment he received after the fall, but knew he did not have physiotherapy. He gave evidence that he could no longer sort large letters after the accident because of the weight of the mail, because he had to stand to sort mail, and because his neck and shoulder hurt.
Mr Hughes was asked in cross-examination about the referral to Dr Dexter and said he could not recall that Dr Dexter had opined he was fit to return to work.
He was also seen by Dr Papatheodorakis on behalf of Australia Post, on 28 April 2000 (PT6/23, Exhibit R10), and given a clearance for "selected duties" which included various restrictions, including lifting limits of 10 kgs.
Mr Hughes gave evidence that after being denied compensation on 11 May 2000, (T12, Exhibit R10), he "quit" Australia Post. He said that he had been injured for four months and was "getting nowhere". "I don't need this in my life – I'm not coming back" he told me. Mr Hughes said that although he was on light duties, Ms McGlynn who was his supervisor was pressuring him and did not believe he had been injured, so he left. He said that at the time he could not do the job as quickly as before the incident on 3 January 2000. He said at the hearing his condition was still similar, and that he would not be able to do the work as required.
When asked whether he had previously suffered any accident to his neck, Mr Hughes said that he had had been involved in tackles and injuries two or three times when playing rugby league. He said that he had ceased playing in 1997. Mr Hughes also said that he had had a bicycle accident in which he was not wearing a helmet, and had fractured the left front side of his head in 1983. In cross-examination, I learnt that Mr Hughes had been unconscious for four days in hospital after the 1983 accident, and that he had spent 19 days in hospital with a fractured skull, dislocated right shoulder and broken ribs, followed by meningitis which he had for eight weeks.
When asked about other conditions, Mr Hughes said that after the fall his lower back had been sore, but that had abated, and he now had no lumbar or lower back problems. Neither did he suffer headaches he said.
Mr Hughes told me he had had various admissions to hospital for asthma, and that when he was admitted to Camden Hospital on 4 May 2000, he had told the nurse his neck was sore. He had been given a wheat bag when going to sleep. He said that during January to May 2000, his neck was sore, he slept badly and was prescribed Celebrax, an anti-inflammatory. Mr Hughes said however, that he did not like taking medication.
Mr Hughes also gave evidence of a motor vehicle accident on 27 August 2000 in which he had collided with stationary vehicles and injured his right hand and neck as previously on 3 January 2000. (That date was recorded as 28 August 2000 in Exhibit R8, (Liverpool Hospital notes)). Mr Hughes gave evidence that he was admitted to Liverpool Hospital for two weeks with "a burning sensation like a cramp" in his neck. In reply to a question in cross-examination, Mr Hughes said he could not remember whether he had complained of back pain in Liverpool Hospital. He said that he had severe pain if he raised his arms above shoulder level, the same pain as before the motor vehicle accident. Ms Henderson drew to my attention that notwithstanding Mr Hughes' evidence about pain on raising his arms, he gesticulated freely and frequently during his evidence. Mr Hughes did not deny this but said that notwithstanding the pain and numbness, he had to move around, and demonstrated at the hearing that he could move his head from side to side without restriction.
Mr Hughes agreed in cross-examination that he had been admitted to Auburn Hospital for asthma treatment in late 2000, but denied he had been working erecting fences in that period. He said he could not remember what he had told Auburn Hospital about that.
Mr Hughes said that since moving to Queensland on 28 January 2002, he first worked cleaning a nightclub for 20 – 30 hours a week, but had trouble with his shoulder, so left that position, and now spent approximately 24 hours a week cleaning up a shopping mall. That was lighter work he said, clearing tables and wiping them.
As to restrictions; Mr Hughes also gave evidence regarding his motorcycle which he said he could still ride for short periods, (a maximum of two hours), in January 2000. He said that he sold it in December 2001. Mr Hughes denied he had told Dr Griffith that he had a motorcycle in February 2001. He agreed that he had told Dr Griffith that he swam, saying that he did it to build himself up in spite of the fact his neck ached when he swam. Mr Hughes said that presently he could not play golf, football or surf, although previously he had also played hockey, rugby, squash and tennis too.
In cross-examination Mr Hughes was asked, (arising out of Dr Gardner's notes), about an accident in which he hit his head in April 1985 while working at Franklin's. He said that he could not recall that, neither that he had occipital headache for 10 days in February 1987. Mr Hughes said that he recalled diving and hitting his head on 19 December 1985, but could not recall that he received compensation payments from AVCO (insurance) for a fall and left shoulder injury on 8 February 1989. Other records which Mr Hughes did not recall were a motor vehicle accident in January 1997. Details of these incidents were put to Mr Hughes in cross-examination and it appeared to me that he had suffered in several incidents, including fractures and dislocation to both shoulders, with the left shoulder involved twice. As I could understand, these all predated 3 January 2000.
EVIDENCE OF MR ALLAN GOOLEY – COLLEAGUE OF THE APPLICANT
Mr Allan Gooley, a colleague of the Applicant who also worked at the Silverwater Delivery Centre and whose statement of 30 April 2002, was before the Tribunal as Exhibit A2, gave oral evidence. He was at work on the night of 3 January 2000 when Mr Hughes had an incident and was found on the floor of the Mail Centre. He recalled the Applicant did not look well and was complaining of pain in his neck, and back, and a headache.
Mr Gooley gave evidence of the unpleasant working atmosphere in the Mail Centre, in particular towards Mr Hughes. He said that Ms Marie McGlynn had indicated Mr Hughes had "faked" the fall. Mr Gooley said that: "They had it in for him – every day was like a fight against David. They didn't like him; nobody gave him a chance." Mr Gooley said that there was a lot of gossip and unfavourable things said about Mr Hughes. Mr Gooley said that he helped Mr Hughes with lifting because notwithstanding the restrictions, Mr Hughes was required to lift weights in excess of the 10 kg limit. He said: "I had work to do too so it was annoying to have to help him. His back was aching …"
EVIDENCE OF MS MARIE MCGLYNN – THE APPLICANT'S SUPERVISOR

Ms McGlynn whose statement dated 22 April 2002 was Exhibit R4, gave oral evidence before the Tribunal. I noted that both counsel emphasised that they believed her evidence as given. She impressed both the Tribunal and both parties as a witness of truth. Ms McGlynn had been Mr Hughes' supervisor on 3 January 2000 and had worked at the Silverwater Mail Centre until 23 March 2000.
Ms McGlynn said that she had to counsel Mr Hughes regularly for his unpunctuality and the standard of some of his work.
Ms McGlynn said that during the evening of 3 January 2000 the staff had been sorting mail when she heard a noise and then saw Mr Hughes lying on the floor between two rows of trolleys which had not been disturbed. Ms McGlynn said that he told her he had slipped and was complaining about back pain so she rang an ambulance because she knew she could be responsible if Mr Hughes was moved. She said: He said his head hurt: "I wouldn't say he was in distress. He looked uncomfortable."
Ms McGlynn said that she noticed the mail Mr Hughes had been carrying was in a pile (not scattered), near a row of trolleys.
Ms McGlynn told me that on the night of Mr Hughes' fall, and after the ambulance had left for the hospital with him, she moved some rows of trolleys to see if she could see on what he had fallen. She said that the only thing she found on the floor was an empty cash register roll but it had been in perfect shape and not squashed as it would have been had Mr Hughes tripped on it.
Ms McGlynn said that she completed an Incident Report as required (T4, Exhibit R10).
EVIDENCE OF MR MICHAEL SHERMAN – DELIVERY MANAGER AUSTRALIA POST
Mr Sherman conducted an investigation into Mr Hughes' fall in the days following 3 January 2000 (PT4/14, Exhibit R10). Mr Sherman said that he spoke with Mr Hughes in Auburn Hospital and examined the cylinder/roll which had been found on the floor undamaged. He said that he obtained some similar tubes from the retail area.
EVIDENCE OF DR ROBERT GARDNER – MR HUGHES' GENERAL PRACTITIONER
Dr Gardner gave evidence before the Tribunal by telephone link. It was noted that he had been the Applicant's general practitioner for over 15 years, although he had not seen him between 1997 and early 2000. On 6 January 2000, three days after the fall in the Mail Centre, Dr Gardner provided a medical certificate for Mr Hughes for the period 6 – 17 January 2000. Dr Gardner's documents were before the Tribunal as Exhibits A4 and A5.
Dr Gardner acknowledged he had seen Mr Hughes on 6 January 2000 following his fall. There was some error in the history taken, (Exhibit A4), the time for the fall being recorded as 11.15 pm, whilst I noted that the time was recorded as 11.05 in (T11, Exhibit R10), and the mention of a handrail (in fact non-existent). Dr Gardner said that apart from the information about the handrail, he adopted the report in full. I noted that in the letter at Exhibit A4, he also recorded:
"On 28th January 2000 he was off work (AVCO) on total disability 3rd January 2000 – 2nd February 2000 and seeing specialist. On NSAID for pain right neck 14th February 2000
On 4th April 2000 he was c/o pain, left neck and shoulder since accident at work on 3rd January 2000. He has difficulty rotating neck to left side (50% ROM) and flexion neck restricted to 50% as well. He had lost power in left hand."
I was mindful of various entries regarding Mr Hughes in Dr Gardner's notes:
"6/1/2000 - # skull occipt – fell over on … slipped on hard roll at work 11:15 pm …
Pain – back of L head …"
17/1/2000 – rode motorbike back from Ulladullah – 900 cc – pins and needles right hand – residual headache
21/1/2000 – Work declined (W/C and Declined Holiday! – uncertainty of the # skull?
…
14/2/2000 – Asthma attack yesterday - …
Pain right side neck on turning left …
…
4/4/2000 – pain L neck … & L shoulder since accident at work 3/1"
There were several occasions in the notes of Dr Gardner where Mr Hughes' left and right sides were confused, presumably based on what the Applicant had told his doctor. I was mindful that Mr Hughes' first complaints regarding his fall on 3 January 2000 related to his right side.
As to the motor cycle incident, Dr Gardner's notes of 17 January 2000 recorded that Mr Hughes had ridden his motorcycle all the way from Ulladullah, whereas Mr Hughes' evidence was that he could only ride for short periods.
Dr Gardner also referred to the next entry in his notes being for 21 August 2000 where he recorded that the Applicant was "working very hard" and had attended for giddy spells on 14 August 2000. This related to the time Mr Hughes was said to have been working erecting fencing at the Olympic Games site, which he denied he had been doing.
Dr Gardner told me that the main reason Mr Hughes had been referred to Dr Dexter was to determine whether he had an old or new fracture.
EVIDENCE OF DR MARK DEXTER – NEUROSURGEON
Dr Dexter examined Mr Hughes as a referral from Dr Kuk. Dr Kuk had written to him regarding the fall on 3 January 2000 that:
"He fell backwards and landed on his head. He has no L.O.C. c/o Headache and neck pain on arrival. GCS=15. No neurological deficit. X Ray skull showed linear # left occipitoparietal skull: CT head – No bleeding . No wound on scalp.
XR c-spine, LIS spine and pelvis – No#
He has been observed for 24 hours
He has a # front skull at 17 years of age complicated by meningitis."
Dr Dexter reported on 3 February 2000 after he had seen the Applicant twice, the second time on 2 February 2000 following imaging studies:
"… As you know he fell whilst at work on 3 January. He is employed at Australia Post and slipped over at work striking the back of his head. He was taken to Auburn Hospital where there was suspicion of a skull fracture. He denies any significant loss of consciousness and other than some mild local tenderness recovered very quickly.
His past medical history is significant for a severe motor vehicle accident on 1 March 1983. During that accident he suffered a left frontoparietal skull fracture and extensive peri-orbital haematoma.
…
He brought with him some plain X-rays which had been performed at Auburn Hospital on 4 January. There was a linear marking in the left occipital region which I suspected was a vascular marking rather than a fracture. There was no evidence of any fracture or dislocation within the cervical spine.
…
As he was concerned to know definitively whether there had been an associated skull fracture on this occasion I organized for him to undergo a high resolution CT scan of the brain with 3-dimensional reconstructions of the skull on bone windows. This shows no evidence of any fracture in the left occipital or parietal bones. It confirms that the lesion demonstrated on the skull x-ray is, in fact, a vascular marking.
…
David has recovered completely from his fall and I see no reason for him not to return to work on a full time basis."
Questions were put by counsel for both sides to Drs Griffith and McGill with regard to Dr Dexter's examination of Mr Hughes and his findings. As relevant they follow.
EVIDENCE OF DR GREAME GRIFFITH – CONSULTANT SURGEON
Dr Griffith gave evidence to the Tribunal by telephone link. His report of 20 February 2001 was before the Tribunal as T5 (Exhibit R11).
Dr Griffith did not have the report of Dr Dexter at the time of writing his report, and certain of the history he had been provided by Mr Hughes was inaccurate. This was dealt with in cross-examination.
In his report Dr Griffith stated that:
"Prior to injury, it is my opinion that he suffered a left parietal undisplaced undepressed simple linear fracture of the left parietal region in the course of the motor cycle accident in 1983.
…
The second (an index) major accident was a severe fall which occurred on 5.1.2000, in the circumstances described. He landed heavily on his back, aware of a crack in his neck with immediate onset of pain. He has remained symptomatic since.
He was aware of crack in the neck, and it is likely therefore that he did suffer significant cervical injury.
…
A third incident occurred on 28.8.2000 when your client allegedly went to sleep whilst in charge of a 4 wheel drive, sideswiping 4 cars and suffering injuries which resulted in his assessment at Liverpool Hospital. Extensive, indeed many would say, excessive radiological survey of his body failed to reveal any new trauma except a spiral fracture of the right third metacarpal shaft, with confirmation of previously known cervical spondylosis. It is of interest that neither CT nor plain films demonstrated the diffuse multi-level disc protrusions which were evident in a follow-up MRI taken 3 days after this second incident.
…
I am of the opinion that the injuries seen, particularly that at C6/7 is most likely to have occurred in the incident of 5.1.2000, rather than the motor vehicle accident. When one considers the nature of the trauma involved, and the fact that he was aware of a crack in his neck, it is more likely than not that some structural injury occurred at this time.
…
He considers his supervisors unsympathetic and admitted that he had walked out as a result of stress, considering that there was little likelihood of change in their approach to him. Insofar as this was the case, it is likely that the principal reason for his absence from work was his adjustment disorder with depression and anxiety resulting from those pressures, rather than specifically due to his cervical spondylosis. …"
Dr Dexter was referred to in page two of Dr Griffith's report (PT5/13, Exhibit R11), where he had written:
"Viewing the films, one view does appear to show an undisplaced crack fracture on the left parietal bone, posterolaterally. This has a linear appearance, is 7 cm long, and does not have the appearances of a vascular marking."

In oral evidence it was drawn to his attention that a later CT Scan of the skull did not show such a fracture. Dr Griffith then conceded it was more likely Mr Hughes had fractured his skull in the 1983 accident than in the fall on 3 January 2000.

Dr Griffith said in his evidence that if a radiologist had found that there was no fracture resulting from the Applicant's fall on 3 January 2000, then he would be prepared to accept that.
However Dr Griffith opined that because he found Mr Hughes had been symptomatic with neck and back pain since the fall at the Mail Centre it was likely to have caused a structural injury. He opined that if it had been a musculo-ligamentous injury, then it would have resolved over a period of months. Dr Griffith said that he was guided by his clinical examination of Mr Hughes, and opined that plain X-ray films were unreliable to diagnose disc lesions. Dr Griffith also opined that there was a time for acute investigations and later a greater focus on the cervical region when the symptoms worsened. He opined that if things had not improved three months after an event then a global assessment needed to be done with lateral thinking required in addressing the management of the patient.
In conclusion, and in comparing the report and examination of Dr Dexter with that he himself conducted, Dr Griffith stated that a neurosurgeon such as Dr Dexter was, would have been more focused on an intercerebral lesion, a fracture and a brain haemorrhage and given he did not report on it, may not have examined Mr Hughes' cervical movement.
EVIDENCE OF DR NEIL MCGILL – CONSULTANT RHEUMATOLOGIST
Dr McGill, who had examined the Applicant on 15 January 2002 and whose report was Exhibit R2 before the Tribunal, gave oral evidence.
Dr McGill took a detailed history from Mr Hughes, and had available to him various reports of investigations carried out since the fall on 3 January 2000 and a history with regard to Mr Hughes' motorcycle accidents, the 1983 skull fracture, and the motor vehicle accident of August 2000. In relation to the latter he wrote:
"MRI of the cervical spine on 1 September 2000 demonstrated cervical disc abnormalities at multiple levels with changes of at least years duration such as osteophyte formation.
… He remains troubled by tingling in both hands if he attempts to ride a motor bike or if he holds his hands above head height and he also has a sensation of weakness in both upper limbs although his objective muscle strength was excellent. Neck movements were variable but at times normal and there was no objective abnormality related to his cervical spine.
…
In terms of assessing the significance of the fall he experienced at work in comparison with the motor vehicle accident seven months later, one would expect the forces involved to have been much greater at the time of the motor vehicle accident.
…
The cause of his subjective feeling of weakness and tingling in both upper limbs is unclear. The pattern of symptoms he described was not typical of cervical neural compression. … If he has symptoms related to thoracic outlet obstruction then that would not relate to his previous work nor to the fall in January 2000.
I think he remains fit for mail sorting duties without restriction.
…
I think it is very unlikely that any of his current symptoms are related to the fall he experienced in January 2000."
Dr McGill was asked about the "crack" Mr Hughes reported hearing when he fell. Dr McGill said that sound was not unusual and not a noise associated with a bony injury. He said it could be induced by a chiropractor.
Dr McGill was also asked about the X-rays at Auburn Hospital taken on 4 January 2000. He said that they showed a left occipital fracture and what appeared to be vascular marking or an old fracture.
Dr McGill also commented on Dr Dexter's report, stating that the report was made before Mr Hughes' August 2000 motor vehicle accident, and noting that "It would appear clear from the report by Dr Dexter that Mr Hughes had recovered from the fall at work by one month following that fall." He wrote further as follows:
"… Dr Dexter stated "David has recovered completely from his fall and I see no reason for him not to return to work on a full time basis."
In cross-examination Dr McGill was asked whether Dr Dexter might perhaps have only examined the head, and not Mr Hughes' neck. Dr McGill replied that a neurosurgeon would always examine the cervical spine.
SUBMISSIONS AND CONCLUSIONS
I had to consider the whole of the evidence before me, the submissions of the parties, the case law and legislation to make the correct and preferable decision regarding whether Mr Hughes' injuries as detailed in his evidence and in his claim were compensable, (sections 4 and 14 of the Act), and whether he had suffered permanent impairment which was compensable (sections 24 and 27 of the Act).
By way of background I noted Mr Hughes whose date of birth was 8 December 1964, gave evidence that his schooling went to "junior high" and that he then did a TAFE course in building, but that he did not work as a builder. He told me that he worked as a roof tiler for a year. In cross-examination, I learnt that his apprenticeship was not in building, but in carpentry and joinery, and that the roof tiling was terminated due to the fact he fell off a roof and hurt his Achilles tendon. Unfortunately this was the beginning of many inconsistencies in his evidence before the Tribunal.
Mr Hughes joined Australia Post as a Postal Delivery Officer in 1997.
WHETHER MR HUGHES' INJURIES CLAIMED TO HAVE OCCURRED IN AN INCIDENT OF 3 JANUARY 2000 WERE COMPENSABLE
I accepted, and noted it was not in dispute that an incident occurred during Mr Hughes' work at Australia Post, sometime before midnight on 3 January 2000, during which he said he claimed to have slipped and fallen. His colleagues and supervisor found him lying on the floor. I accepted that he was taken to Auburn Hospital by ambulance, examined and kept under observation for some hours. There were no witnesses present when Mr Hughes fell, and there was doubt expressed (by Australia Post supervisor Ms McGlynn who gave evidence before the Tribunal), that the fall occurred as described. This is dealt with later on in these reasons.
The first medical report in relation to the fall was that of Dr N Kuk dated 4 January 2000 (T6, Exhibit R10), which recorded that Mr Hughes fell at work and suffered a fractured skull, with a treatment plan which included:
"observation in hospital for 24 hours - Xrays and CTScan, rest, simple analgesic – Referred to Dr. Dexter, Neurosurgeon ..."
It was also not in dispute that Mr Hughes received a medical certificate of Dr J Scott dated 5 January 2000 (PT6/18, Exhibit R10), certifying him unfit for work as a result of his fall, but fit to resume full duties on 7 January 2000. Mr Hughes visited his General Practitioner, Dr Gardner (PT6/19, Exhibit R10), on 6 January 2000 and Dr Gardner extended the sick leave to 17 January 2000. This was further extended to 20 January 2000 by Dr Scott (PT6/22, Exhibit R10), who certified Mr Hughes fit for full hours with no restrictions from that date.
The diagnosis of a fracture to Mr Hughes' skull was made first at Auburn Hospital (T6, Exhibit R10), and perpetuated by Dr Scott (T6, Exhibit R10) and Dr Gardner. Mr Hughes stated that he was entitled to put that diagnosis on his claim form dated 5 January 2000 (T7, Exhibit R10) because of what he had been told at Auburn Hospital and his doctors. Ms McGlynn, Mr Hughes' supervisor on the night of the incident, also noted that diagnosis on the report of the incident which she was required to make. Of course all of these diagnoses occurred before any further investigations had been carried out, and before Mr Hughes had consulted Dr Dexter, a neurosurgeon.
Mr Hughes' history indicated he had suffered a number of injuries long before the incident of 3 January 2000. I was aware in particular that Mr Hughes had been involved in two serious non-work related accidents, the first on a bicycle in 1983 in which he fractured his skull, dislocated a shoulder and fractured a thumb (PT5/14, Exhibit R11). Dr Griffith, consultant surgeon, described the 1983 head injury as "a left parietal undisplaced undepressed simple linear fracture of the left parietal region" (PT5/16, Exhibit R11). Dr M Dexter, neurosurgeon, corroborated this by opining: "During that accident [1983] he suffered a left frontoparietal skull fracture …" (Exhibit R3).
The second accident was at the wheel of a motor vehicle on 28 August 2000, and occurred because Mr Hughes fell asleep. He turned up at Liverpool Hospital some five hours later and was treated there, remaining hospitalised for at least 12 days. The evidence before the Tribunal also indicated that he subsequently developed meningitis and was ill for some weeks.
What I have to deal with is the appeal from the denial of liability to Mr Hughes in relation to the incident at the Mail Centre on 3 January 2000. In connection with that denial of liability (T8, Exhibit R10), Mr Hughes wrote to Australia Post on 14 February 2000, (T9, Exhibit R10), requesting a reconsideration of the decision to deny compensation after consulting his general practitioner Dr R Gardner. Mr Hughes wrote to Australia Post as follows:
"I did slip on something on the floor, and was injured in that fall and taken by ambulance to Auburn hospital. I also hurt my Head, neck, shoulder and back. I was kept in hospital for 32 hours for necessary observation after which I went to work, home and to see your Doctor. …"
Dr Kuk referred Mr Hughes to Dr M Dexter, neurosurgeon (Exhibit R3), whose report generated after he had examined Mr Hughes on 27 January 2000 and 2 February 2000 was crucial to this matter, and claimed much of the discussion before the Tribunal. Dr Kuk's referral of Mr Hughes to Dr Dexter (Exhibit R3), was in the following terms:
"He has no L..O.C . c/o Headache and neck pain on arrival. GCS = 15. No neurological deficit. X Ray skull showed lineal # left occipitoparietal skull: CT head – no bleeding . No wound on scalp. X R c-spine, LIS spine and pelvis – No # He has been observed for 24 hours. He has a # frontal skull at 17 years of age complicated by meningitis."

Dr Dexter wrote on 3 February 2000:
"… As you know he fell whilst at work on 3 January. He is employed at Australia Post and slipped over at work striking the back of his head. He was taken to Auburn Hospital where there was suspicion of a skull fracture. He denies any significant loss of consciousness and other than some mild local tenderness recovered very quickly.
…
He brought with him some plain X-rays which had been performed at Auburn Hospital on 4 January. There was a linear marking in the left occipital region which I suspected was a vascular marking rather than a fracture. There was no evidence of any fracture or dislocation within the cervical spine.
…
As he was concerned to know definitively whether there had been an associated skull fracture on this occasion I organized for him to undergo a high resolution CT scan of the brain with 3-dimensional reconstructions of the skull on bone windows. This shows no evidence of any fracture in the left occipital or parietal bones. It confirms that the lesion demonstrated on the skull x-ray is, in fact, a vascular marking.
…
David has recovered completely from his fall and I see no reason for him not to return to work on a full time basis."
I was mindful that the report of the CT Scan of Mr Hughes dated 2 February 2000 concluded as follows:
"No evidence of a fracture involving the left occipital or parietal bones. Review of the skull x-ray indicates the linear lucency to represent a vascular marking."
An earlier CT Scan dated 4 January 2000 (T5, Exhibit R10), concluded as follows:
"There is no evidence of any intracranial bleed or contusion.
There is a low density lesion involving the inferior aspect of the left frontal lobe suggesting focal atrophy. This appears of long standing and it is uncertain whether this has followed previous injury."
I noted discussion emanating between the parties regarding what examinations Dr Dexter actually carried out. Dr Dexter did not refer specifically to an examination of Mr Hughes' cervical region in his report, and Dr Griffith in his oral evidence opined that he would have been much more focused on the intercerebral lesion, or possible brain haemorrhage, and may not have specifically examined cervical movement. Dr McGill on the other hand, opined that it was not likely Dr Dexter would have examined just the head, and not Mr Hughes' neck. The cervical spine would be of great concern to a neurosurgeon Dr McGill said.
Mr Watts submitted that the decision to deny liability had been made on the basis of the ultrasound examination (T5, Exhibit R10) which Dr Kuk had ordered, and which had indicated there was a low density lesion involving the inferior aspect of the left frontal lobe suggesting focal atrophy which appeared of long standing.
Mr Watts also referred to the reviewable decision dated 25 February 2000 which again denied liability (T10, Exhibit R10), and submitted that there was a fundamental misapprehension on which the Respondent had relied. He submitted the frontal parietal injury had been sustained in 1983, and the left occipital vein/vascular or fracture was the basis of Dr Kuk's opinion expressed in his report of 4 January 2000, i.e. a fractured skull. Mr Watts also submitted that the concentration of attention on the skull diverted attention from Mr Hughes' other complaints, particularly in the first few weeks following the accident. I noted that Mr Hughes also claimed for neck and shoulder injuries and mentioned his back.
Mr Watts submitted that neither Dr Dexter nor Dr McGill had the detailed information the Tribunal now had, and suggested that the report of Dr Dexter had influenced Dr McGill. Mr Watts submitted that there was a difference in approach and hence examination, between Dr Dexter and Dr Griffith, the latter more concerned with the "cerebral condition", whereas Dr Dexter had diagnosed a fracture. I preferred the evidence of Dr McGill on this point, and accepted that Dr Dexter would have examined the cervical region, in particular because the referral had specified headache and neck pain.
Mr Watts submitted further that Dr Gardner's clinical notes at Exhibits A4 and A5 were relevant, and that the Tribunal should rely on Dr Gardner as he was the treating doctor and had Mr Hughes' full history. As to Exhibit A5, Mr Watts submitted the relevant entries with regard to Mr Hughes were as follows. He did not quote from the notes but referred to them in his submissions as follows:

6 January 2000 – first entry regarding pain
17 January 2000 - Dr Griffith recorded that Mr Hughes reported pins and needles; right hand neural compromise - residual headache and neck pain which was typical - post the bike ride
21 January 2000 – Mr Hughes' holidays declined – is the skull fracture genuine
14 February 2000 – painful in the neck on the right side when turning left - the hospital gave NSAID to the Applicant –
4 April 2000 - neck and shoulder pain - Mr Watts submitted that Dr Gardner had stated that the fractured skull had long gone (see Dr Dexter) but that there were ongoing neurological signs e.g. whiplash, and he was treating the injury as a cervical injury and prescribing physiotherapy and NSAID. He submitted it was not correct that the neck pain only appeared in April 2000. – see Gardner - Mr Watts submitted that Dr Gardner found loss of strength and other neurological signs -

Mr Watts submitted further that although Mr Hughes was hospitalised at Camden Hospital from 3 – 7 May 2000 for asthma, his neck and back pain were noted on the hospital record.
Mr Watts admitted that the supervening motor vehicle accident Mr Hughes suffered on 27 [sic] August 2000 had caused problems and referred to Dr Griffith's report (T5, Exhibit R11). However Mr Watts submitted that the current problems Mr Hughes suffered were due to the fall at work on 3 January 2000. He submitted Mr Hughes' neck pain may have increased temporarily as a result of the accident on 27 [sic] August 2000, but that the symptoms had reverted to the previous pain as suffered since the accident at work, and just persisted since then.
Mr Watts submitted that because Mr Hughes' symptoms of cervical spine injury continued, he was referred to Dr G Papatheodorakis (28 April 2000, PT6/23, Exhibit R10), the fifth doctor who examined him in relation to the fall, and who recommended restrictions to movement and lifting. I noted his report also recommended physiotherapy.
Mr Watts submitted that on 28 April 2000, four months after the accident, Mr Hughes still suffered symptoms and was denied liability by the Respondent, who also refused to have further tests carried out. Accordingly, Mr Watts submitted, Mr Hughes felt frustrated, and I noted he eventually abandoned his job, not returning after 2 June 2000.
In summary, Mr Watts submitted that of the six or seven medical practitioners who examined or treated Mr Hughes, none had indicated he was malingering, or that there were inconsistencies in his evidence. Mr Watts submitted that Ms McGlynn's position as a serious supervisor was not in question, and that she had filled in the forms at T4 (Exhibit R10), indicating Mr Hughes had fallen and reported pain in his head and neck. Mr Watts submitted further the hospital had recorded that Mr Hughes had fractured his skull, and he having heard a crack when he fell, and reading the hospital report, was entitled to rely on it.
Ms Henderson on the other hand, in seeking to demonstrate that the impact of the fall and consequent complaints were minor, submitted that Mr Hughes had, after the fall, originally been certified by Dr Kuk to return to work on 11 January 2000. This had been extended by his general practitioner to 17 January 2000. She submitted that Dr Gardner had examined the Applicant on 17 January 2000 and recorded that he had pins and needles in his right hand and residual headache after having ridden back from Ulladullah on his motorcycle. He had also been cleared to return to work on that day.
Ms Henderson submitted that if there had actually been a fracture on 3 January 2000, then Mr Hughes may well have had spasm, limited range of movement, paraesthesia and other neurological signs instead of pins and needles.
Ms Henderson also submitted that Dr Scott (PT6/22, Exhibit R10) had on 19 January 2000, certified Mr Hughes fit to return to work on and from 20 January 2000. Ms Henderson also submitted that on return to Dr Gardner on 21 January 2000, the general practitioner's notes reflected only that Mr Hughes' workers' compensation claim had been denied, that he had had his application for holidays declined, and "uncertainty of # skull.? Genuine ?? old # 28/2/83…"
Ms Henderson drew my attention to the fact that when the Applicant was treated for his asthma on 14 February 2000, there was a record of neck and head pain. However no prescription had been provided to treat those complaints she submitted. Ms Henderson also raised doubts about the veracity of Mr Hughes' evidence that he had been provided with 240 Celebrax tablets when he left hospital on 3 January 2000. I was mindful there was no substantiation of Mr Hughes' claim and the quantity appeared unlikely to me one which would have been provided by any hospital.
I moved then to consider the credibility of the Applicant in relation to the claims before the Tribunal, noting that credibility was questioned by the Respondent in several of the determinations. I was mindful that Australia's Post's delegate wrote on 18 January 2000 (T8,Exhibit R10):
"Your delivery Manager raised a number of questions regarding the circumstances surrounding your injury. I note that he also asks if there is any way of verifying the age of your injury. The most objective medical evidence available to me is the attached report from Ultrasound Radiology that finds only one head injury, and states that it appears of long standing."

And on 11 May 2000 (T12, Exhibit R10):

"I find that your claim for compensation is not credible, and I determine that Australia Post is not liable, under section 14 of the Act, to pay compensation to you in respect of any injury to the neck or shoulder."

CREDIBILITY OF THE APPLICANT

I was mindful that there were no witnesses to the fall sustained by Mr Hughes on 3 January 2000.
Mr Watts submitted that Ms McGlynn, whom it was agreed by both parties was a witness of truth, and whom I accepted as such, had attended to Mr Hughes on the night of 3 January 2000, and arranged for him to be transported by ambulance to Auburn Hospital. Mr Watts submitted that Ms McGlynn had warned Mr Hughes not to move after the fall, and noted that ambulance personnel strapped the Applicant to a board and immobilised his head, not something which would have been done if there had not been a suspicion of serious injury.
Mr Watts acknowledged Ms McGlynn's evidence that she had seen the mail Mr Hughes had been carrying in a pile on the floor (rather than scattered as it might have been as a result of Mr Hughes' fall), and noted her evidence that a row of trolleys in the vicinity had not been displaced. Mr Watts submitted that suspicion had clouded the real issues before the various Respondent decision makers, and emphasised that no doctors had commented on any suspicion of malingering.
Ms Henderson made a number of submissions regarding the unreliability of Mr Hughes' evidence. She submitted that:

Ms McGlynn had found the mail Mr Hughes had been carrying in a neat pile, and not scattered, and that the row of trolleys where he had fallen were not disturbed;
Mr Gooley and Ms McGlynn had both given evidence of Mr Hughes having a 10 kg weight restriction at work predating Mr Hughes' visit to Dr Papatheodorakis, Dr Papatheodorakis being the person who imposed the restrictions for Mr Hughes. Ms Henderson submitted I could assume Mr Hughes had told his colleagues of such restriction and had Mr Gooley carry items for him even before any such restriction had ever been imposed.
Mr Hughes' evidence regarding his inability to ride his motorcycle was unreliable given Dr Gardner's entry with regard to a consultation on 17 January 2000 (Exhibit A5) which indicated Mr Hughes had pins and needles after riding his motorcycle all the way from Ulladullah.
Dr Griffith's notation that Mr Hughes suffered headaches 12 times a year whereas there were no treating doctors who had made such notation in their records. Mr Watts countered that by referring me to the record made of Mr Hughes' headache on admission to Auburn Hospital on 3 January 2000 and Dr Gardener's record of Mr Hughes' headache on 17 January 2000.
Mr Hughes' motor vehicle accident which occurred on 28 August 2000 when he fell asleep at the wheel of his car; Ms Henderson submitted that Mr Hughes had told a social worker that he had been driving a car on behalf of a friend who was unlicensed, which was an untruth.
Mr Hughes' evidence denying he had worked as a fencing contractor in connection with the Olympic Games.
Referring to the records of Dr Papatheodorakis; he had reported in PT6/23, (Exhibit R10) dated 28 April 2000, Mr Hughes' left hand problems when in fact the injury on 3 January 2000 had been reported as having occurred with regard to Mr Hughes' right side.

As I assessed the evidence of Mr Hughes and the other witnesses, and the submissions of the parties, I noted many inconsistencies in Mr Hughes' evidence.
I was somewhat interested to find that whilst Mr Hughes reported right sided symptoms with regard to his fall on 3 January 2000, on 4 April 2000, Dr Gardner recorded left sided symptoms as follows (Exhibit A5): "Pain L neck … and L shoulder since accident at work 3/1 …" The hospital notes of Auburn Hospital for 4 January 2000 recorded "left occipital headache" but otherwise, "neck pain and pain on R paraspinal region in the lumbar and sacral region". There was no explanation given to satisfy me that Mr Hughes was not reporting pain inconsistently at various times and to different doctors. Dr Griffith' report contained several factual errors which may have resulted from information supplied to him by the Applicant.
Further in that regard, and mindful that the pain reported by Mr Hughes with regard to the incident of 3 January 2000 was rightsided, I noted the report of Dr Papatheodorakis (PT6/23, Exhibit R10), dated 28 April 2000 in which he stipulated restrictions in lifting, bending, elevation of the arm and repetitive use referable to the left arm only.
I was mindful given the history of Mr Hughes' fall on 3 January 2000, that when he was during cross-examination, shown an empty EFTPOS cylinder/roll such as the one found by Ms McGlynn on the floor after the incident, Mr Hughes said he had never previously seen one. I accepted Ms McGlynn as a witness of truth, noting that both counsel were equally satisfied with her veracity, and was mindful also of her evidence that after Mr Hughes' fall the mail he had been carrying was in a neat pile on the floor, and that a row of trolleys near him had not been moved.
I was mindful that although Mr Hughes gave evidence that he was restricted in many of his sporting activities and riding his motorcycle, Dr Gardner recorded on 17 January 2000 that he had pins and needles after riding in from Ulladullah. That was only two weeks after the fall of 3 January 2000 and Mr Hughes was still on sick leave as a result of the fall.
I noted the history Mr Hughes gave Dr Griffith which led him to understand that the incident of 3 January 2000 was more serious that the motor vehicle accident of August 2000 as a result of which Mr Hughes was hospitalised for more than 12 days. In his evidence Mr Hughes gave the date of the motor vehicle accident in 2000 as 27 August, whereas the hospital's records indicated it had been 28 August 2000.
I was interested in the evidence regarding Mr Hughes' alleged lifting restrictions in January 2000 which Ms McGlynn and Mr Gooley seemed to know about. It was of interest in particular because the restrictions were imposed by Dr Papatheodorakis in a report dated 28 April 2000 (Exhibit A7), and Ms McGlynn had left Silverwater Mail Centre on 23 March 2000.
In summary I found Mr Hughes' evidence to be unreliable. He may have suffered some minor injury in the fall on 3 January 2000, which soon resolved, but the evidence indicated that the motor vehicle accident of 28 August 2000 was by far more serious. It is worth noting that only after that accident when he had serious neck symptoms did Mr Hughes seek a reconsideration (T6/Exhibit R11) of the denial of liability of the Respondent dated (11 May 2000).
As to what incapacity Mr Hughes suffered; Ms Henderson submitted that Mr Hughes gave evidence that the highest pigeon holes used for sorting mail were at eye level so that even with restrictions, Mr Hughes could still carry out that work. That submission was not rebutted by Mr Watts, and I accepted Ms Henderson's submission.
I could not find that whatever injury, if any, Mr Hughes suffered in the incident of 3 January 2000 was compensable, or indeed had not resolved after a very short time. I accepted the evidence of Ms McGlynn that the mail was in a neat pile and a row of trolleys nearby had not moved after Mr Hughes' fall. I accepted that the ambulance personnel had immobilised Mr Hughes for transporting him to hospital, but I did not give weight to the submission that his injury (if any), must therefore have been serious. Although there was no evidence given by the ambulance personnel, I accepted that what was carried out must be standard procedure where serious injury is suspected, in this case based on Mr Hughes' complaints of a crack in his neck, and back and shoulder pain.
Notwithstanding the early diagnosis of fractured skull (Dr Kuk (T6/17, Exhibit R10), I found from the medical evidence and radiological investigations before me indicated that the fractured skull Mr Hughes suffered was that which he suffered on 1 March 1983, and not in the fall on 3 January 2000. The claim must therefore fail and the reviewable decisions be affirmed. I moved then to consider Mr Hughes' claim for permanent impairment.
WHETHER MR HUGHES WAS ENTITLED TO BE PAID COMPENSATION FOR PERMANENT IMPAIRMENT PURSUANT TO SECTIONS 24 AND 27 OF THE ACT
The Applicant made a claim for permanent impairment which was refused by the Respondent on 5 May 2000 and affirmed on 15 June 2001 (T10/Exhibit R11) (sections 24 and 27 of the Act, and the Comcare Guide for the Assessment of the Degree of Permanent Impairment ) ("the Comcare Guide").
Sections 24 and 27 of the Act deal with permanent impairment and follow as relevant:
"24 Compensation for injuries resulting in permanent impairment
24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
24(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
24(3)Subject to this section, the amount of compensation payable to the employee is such an amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
24(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
24(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
24(6)The degree of permanent impairment shall be expressed as a percentage.
24(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
….
27 Compensation for non-economic loss
27(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…"

The Comcare Tables relevant to this claim were Tables 9.1, 9.4, 9.6 and 13.1. As relevant they follow:
"9 MUSCULO-SKELETAL SYSTEM
TABLE 9.1
Upper Extremity
(Percentage Whole Person Impairment)

% DESCRIPTION OF LEVEL OF IMPAIRMENT
0 X-ray changes but no loss of function of shoulder, elbow or wrist

ANY ONE of the following: x-ray changes with minimal loss of function of shoulder, elbow or wrist ankylosis of any joint of fingers 4 and/or 5
ANY ONE of the following: loss of less than half normal range of movement of shoulder or elbow loss of half normal range of movement of wrist ankylosis of any joints of fingers 2 and/or 3
ANY ONE of the following: loss of more than half normal range of movement of wrist ankylosis of any joints of thumb
...

TABLE 9.4
Limb Function - Upper Limb
(Percentage Whole Person Impairment)

% DESCRIPTION OF LEVEL OF IMPAIRMENT

Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity
Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding
...

TABLE 9.6
Spine
(Percentage Whole Person Impairment)

DESCRIPTION OF LEVEL OF IMPAIRMENT
% CERVICAL SPINE THORACO-LUMBAR SPINE

0 X-ray changes only X-ray changes only

Minor restrictions of movement Minor restrictions of movement OR Crush fracture - compression 25-50 percent

Loss of half normal range of movement Loss of less than half normal range of movement OR Crush fracture - compression greater than 50 percent

Loss of more than half normal range of movement Loss of half normal range of movement

Complete loss of movement Loss of more than half normal range of movement

13 MISCELLANEOUS
TABLE 13.1
Intermittent Conditions
(Percentage Whole Person Impairment)

For use in the assessment of disorders of the Haemopoetic System such as anaemia, polycythaemia, leucocyte and platelet disorders and intermittent disorders such as asthma, migraine, tension headache, epilepsy etc. (as applicable to Mr Hughes'claim)

Principles:

Determine the frequency, duration and severity of attacks with reference to the degree of interference with activities of daily living.

% DESCRIPTION OF LEVEL OF IMPAIRMENT

0 Attacks may be of any frequency BUT do not interfere with activities of daily living OR are readily reversed by appropriate medication or treatment

Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR Attacks occur less frequently AND cause interference with all activities of daily living other than self care
..."

In making submissions with regard to permanent impairment, Mr Watts submitted that the weight of the evidence was that prior to 3 January 2000, Mr Hughes had suffered accidents, but that he had ongoing problems after 3 January 2000 attributable to the fact he had hit his head and neck in the fall at work on that evening. He had given evidence Mr Watts submitted, of sleep disturbances due to pain, evidence that his motorcycle riding was restricted to a maximum of two hours, evidence that he could not turn to look around when driving, and evidence that he could work only 20 – 30 hours a week doing cleaning. Mr Watts reminded me of Mr Hughes' evidence that he had left his job cleaning a nightclub because he could not manage that, and was currently doing lighter cleaning work. Mr Watts submitted that all aspects of Mr Hughes' life were affected due to his permanent impairment, including his work, social life, sleep, and golf.
Mr Watts conceded there were no medical reports on which the Applicant could rely since moving to Queensland on 28 January 2002.
Mr Watts also submitted no allegations of exaggeration or malingering had been made against Mr Hughes.
In considering whether Mr Hughes is eligible for compensation for permanent impairment, I have taken into account the evidence before me, the legislative context, and the submissions made by Mr Watts as noted in the paragraphs above.
I have also summarised Ms Henderson's submissions in relation to Mr Hughes' alleged injuries as well as the medical evidence in regard to permanent impairment as follows.
I am mindful that the Respondent had raised grave doubts as to whether the accident occurred as claimed by Mr Hughes on 3 January 2000. Ms Henderson drew to my attention, amongst others, the following points:

Ms McGlynn found the mail Mr Hughes had been carrying when he fell, in a neat pile and not scattered, and the row of trolleys where he had fallen was not disturbed;
Mr Gooley and Ms McGlynn both gave evidence of Mr Hughes having a 10 kg weight restriction at work predating Mr Hughes' visit to Dr Papatheodorakis. Ms Henderson submitted I could assume Mr Hughes had told his colleagues of such restriction and had Mr Gooley carry items for him even before any such restriction had ever been imposed.
Mr Hughes had given unreliable evidence in regard to riding his motorcycle and his ability to do so (Dr Gardener Exhibit A5).
Mr Hughes gave evidence that he suffered headaches, and Dr Griffith recorded that he suffered headaches approximately 12 times a year. (Mr Watts rebutted by referring me to the record made of Mr Hughes' headache on admission to Auburn Hospital on 3 January 2000 and Dr Gardener's record of Mr Hughes' headache on 17 January 2000 – twice I noted).
Mr Hughes was responsible for a motor vehicle accident which occurred on 28 August 2000 when he fell asleep at the wheel of a car. Ms Henderson submitted that Mr Hughes had suffered far more injuries and been hospitalised far longer in that accident than in the alleged fall on 3 January 2000.
Mr Hughes denied in his evidence that he had worked as a fencing contractor in connection with the Olympic Games. It was clear Ms Henderson submitted, from the notes of Dr Gardener (Exhibit A5), that Mr Hughes had worked fencing at that time.
Mr Hughes claimed to have injured his right side in the incident of 3 January 2000, yet both Dr Gardner in certain of his records of consultations with Mr Hughes, and Dr Papatheodorakis, recorded left sided pain.

I have already earlier in these reasons given my views as to the above noted points of inconsistency in Mr Hughes' evidence. I did not find him to be a witness of truth. I noted that he gave conflicting reports regarding whether it was the left or right side on which he was injured in the incident of 3 January 2000 to both Drs Gardner and Papatheodorakis, leading Dr Papatheodorakis to stipulate restrictions in lifting, bending, elevation of the arm and repetitive use referable to the left arm only.
I moved then to consider the medical assessments of Mr Hughes' alleged permanent impairment, mindful that the threshold for eligibility according to the various Tables in the Comcare Guide is 10 per cent. I have noted that although the Applicant suffered psoriasis, no claims were made by Mr Hughes with regard to that condition and I did not have to deal with it; similarly with regard to asthma.
I was mindful that Dr Gardner (Exhibit A4) had found as follows in regard to Mr Hughes' permanent impairment relating to the claimed conditions:
"5-10% permanent impairment of his cervical spine
0% permanent impairment of his left and right shoulders
0% permanent impairment caused by his headaches"
Dr Griffith (T5, Exhibit R11), answered in reply to a question of Mr Hughes' solicitors with regard to Table 9.6 of the Comcare Guide:
"He has lost less than half normal ranges of movement (115 degrees in 240 degrees), which attracts an impairment of 10%."
In reply to the degree of permanent impairment Mr Hughes suffers with regard to headaches pursuant to Table 13.1 of the Comcare Guide, Dr Griffith opined:
"An impairment of 10% is appropriate – attacks occur 12 or more times a year and cause minor interference with activities of daily living."
Dr McGill opined as relevantly as follows (Exhibit R2):
"I think it is very unlikely that any of his current symptoms are related to the fall he experienced in January 2000.
With respect to permanent impairment, putting aside causation, at most he has 5% whole person impairment in accordance with Table 9.6 on the basis of minor restrictions of neck movement.
There is no impairment of upper limb function in accordance with Table 9.4 nor Table 9.1.
There is no impairment of low back function in accordance with Table 9.6."
In coming to a conclusion, I have found Mr Hughes' evidence to be unreliable, in particular as to which side of his body was injured in the fall of 3 January 2000, and what work he has subsequently been able to perform. The history Mr Hughes gave Dr Griffith was incorrect, and therefore that report must be considered with some reservation.
I preferred the evidence of Dr McGill who opined that the motor vehicle accident of August 2000 was of far more significance than the fall at work on 3 January 2000. I have noted that Mr Hughes spent far longer in hospital on that occasion. I am mindful in that regard that the initial confusion regarding the skull fracture actually sustained in 1983 which showed up on radiological investigations in early 2000 associated with the fall of 3 January 2000, may have confused matters.
I have noted the assessments of permanent impairment made by Drs Gardner, Griffith and McGill above. To be eligible for permanent impairment according to a particular Table of the Comcare Guide, Mr Hughes must reach a threshold impairment of 10 per cent. I noted that Dr Gardner who is the treating general practitioner has found a very minor impairment. Dr Griffith, as was demonstrated in his oral evidence, relied on incorrect history. I have found for example, that the evidence relied on by him to find that Mr Hughes had 12 headaches a year to be quite erroneous. Dr McGill opined that putting aside causation, at most Mr Hughes has 5 per cent whole person impairment in accordance with Table 9.6 on the basis of minor restrictions of neck movement.
I took into account:

the unreliability of Mr Hughes' evidence;
the fact he had been working in physical labour in August 2000;
that he was riding his motorcycle only days after 3 January 2000; and
the medical reports with regard to permanent impairment; I gave no weight to the report of Dr Griffith with regard to Table 13.1 because there was not evidence before me with regard to disabling headaches of the magnitude mentioned by Dr Griffith and I preferred the opinions of Drs McGill and Gardner (the treating general practitioner).

I was not satisfied that Mr Hughes suffered permanent impairment in relation to any of the Tables claimed. I was unable to find that Mr Hughes is permanently impaired within the terms of the legislation. That claim must therefore fail.
DECISION
The Tribunal decided as follows:

N2001/25: The Administrative Appeals Tribunal affirms the decision of the Australian Postal Corporation of 25 February 2000 which affirmed the decision of 18 January 2000 to deny liability for compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 in respect of an injury claimed by the Applicant, Mr David Hughes to have been a fractured skull suffered at work on 3 January 2000.
N20001/924: The Administrative Appeals Tribunal affirms the decision of the Australian Postal Corporation of 15 June 2001 which varied the decision of 5 May 2000 as affirmed in a section 62 decision dated 23 May 2001 and disallowed the Applicant's claim for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.
N2001/704: The Administrative Appeals Tribunal affirms the decision of the Australian Postal Corporation of 23 May 2001 which affirmed the decision of 11 May 2000 to deny liability to Mr Hughes for injury to the neck and shoulder arising out of the incident of 3 January 2000.
Costs: No costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.

I certify that the 131 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed: H Sim .....................................................................................
Associate
Dates of Hearing 30 April & 1 May 2002

Date of Decision   6 September 2002
Solicitor for the Applicant                   Richards Lawyers
Counsel for the Applicant                   Mr J Watts
Counsel for the Respondent              Ms R Henderson
Solicitor for the Respondent              Blake Dawson Waldron