Huynh and Australian Postal Corporation
[2003] AATA 807
•15 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 807
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1774
GENERAL ADMINISTRATIVE DIVISION ) N2002/1982 Re TAN HUNG HUYNH Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date15 August 2003
PlaceSydney
Decision The Tribunal affirms both decisions under review.
...............................................
Dr J D Campbell
Member
CATCHWORDS
WORKERS COMPENSATION - workplace injuries - continuing symptomatology - continuing incapacity - permanent impairment - nature and conditions of employment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, sections 14, 16, 19, 24 and 27
REASONS FOR DECISION
15 August 2003 Dr J D Campbell, Member 1. In this application, Mr Tan Hung Huynh ("the Applicant") seeks review of the following decisions made by the Australian Postal Corporation ("the Respondent"):
(a)In matter N2001/1774, the reconsideration decision of the Respondent, dated 10 October 2001, which affirmed the earlier determinations of the Respondent, dated 24 August 2001 and 14 September 2001, that disallowed the Applicant's claims for compensation for left heel pain and left ankle pain and sore back respectively.
(b)In matter N2002/1982, the reconsideration decision of the Respondent, dated 17 December 2002, which affirms the earlier determinations of the Respondent, dated 5 November 2002, which disallowed claims of compensation for:
i.injury to the left foot or back arising from the nature and condition of employment;
ii.injury to the left foot/ankle/heel associated with the incident of 2 February 2001; and
iii.injury to back alleged to be sustained on 12 May 1995.
2. A hearing was held before the Tribunal on 3 and 4 July 2003, at which the Tribunal was assisted by an interpreter fluent in the Vietnamese language. The self-represented Applicant presented oral evidence to the Tribunal, as did Drs Lyons and McGill. The Respondent was represented by Mr Kelly, Counsel.
3. The following material was placed into evidence before the Tribunal:
Exhibit No
Description
Date
T1-27 pp1-114
N2001/1774: documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
T1-29 pp1-95
N2002/1982: documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1
Report Dr Giblin
19 August 2002
A2
Four pages of various documents
A3
Replacement page for page 87 of T-documents in matter N2001/1774
R1
Report of Dr McGill
6 May 2003
R2
Report of Dr McGill
12 May 2003
R3
Workcover medical certificates (3)
29 April 2003 29 January 2003 15 July 2002
R4
Permanent Impairment Form completed by Dr Giblin
19 August 2002
R5
Report of Dr Ghedia
11 May 1998
R6
Report Dr Torkington
14 May 1998
R7
X-ray report Dr Grant
7 May 1998
R8
Letter Respondent to Applicant
15 March 2002
R9
Medical certificate of Dr Nguyen
16 April 2002
R10
Two diagrams of pain distribution
5 September 2001 19 August 2002
R11
Clinical notes of Dr Lam Guoc Phan
R12
Clinical notes of Dr Tran
R13
Clinical notes Dr Long
ISSUES
4. The relevant issue in this matter is whether the Applicant is entitled to compensation for injuries received at work to his left heel, foot, ankle and back, particularly as a consequence of a motorcycle accidents in 1995 and 2001 and the nature and conditions of his work.
LEGISLATION
5. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), in particular sections 14, 16, 19, 24 and 27.
BACKGROUND
6. The Applicant lodged a claim for compensation on 22 August 2001 in which he stated the injury occurred on 13 August 2001, and (N2001/1774 T4, page 10):
"every working day I stand up to street up my beat, sometime I sore my both leg and after few day it finish, but this time my left heel pain already 3 weeks ago it not stop pain."
The Applicant indicated that the injury happened while working at his usual place of work and that he had sought medical treatment on 17 August 2001.
7. The Applicant lodged a further claim for compensation on 29 August 2001, in which he stated the injury occurred while working at his usual place of work and in a traffic accident while working. He indicated that he first sought medical treatment on 17 August 2001, the injury having occurred on 13 August 2001. In an accompanying statement the Applicant stated (N2001/1774 T4, page 15A):
"I stand up from 3 to 5 hours street up my beat every working day and my foot not to [sic] much moving, it make me injury my left heel (x ray). Also I sore my back every working day because I had traffic accident while working on duty, cracked and fracture 4 ribs six years ago."
8. These two claims were subject to a determination by the Respondent, with liability for pain in the left heel being denied on 24 August 2001 (N2001/1774 T8), and for left heel pain and back pain on 14 September 2001 (N2001/1774 T14). The two decisions were affirmed by the reconsideration decision made by the Respondent on 10 October 2001.
9. In a further claim for compensation, dated 2 February 2001, the Applicant stated that the injury occurred on 2 February 2001, and described it as follows (N2002/1982 T3, page 6):
"while riding my Honda motorcycle on Penshurst Street in front of me is a car nearly stop and I just want overtake but suddenly a car (u-turn) hit my left leg and bicycle. I sore my left leg, plate car number BJW08255
10. Following correspondence between the Respondent and solicitors acting at that time for the Applicant (N2002/1982 T20), a further three claims were forwarded to the Respondent, namely:
(a) for an injury suffered by the Applicant when he was driving a motor cycle and was struck by a car, which turned across his path on 2 February 2001. The Applicant is said to have suffered injury to his left foot, left ankle, left heel and plantar fascia, with the Applicant first seeking medical treatment in July 2001 for these conditions (N2002/1982 T21);
(b) for an injury suffered by the Applicant in 1995, resulting in injuries to left foot, left ankle, plantar fascia, back and left heel, for which the applicant first had treatment in 1995 and stated to be due to the nature and conditions of employment between 1989 and 2002 (N2002/1982 T22);
(c) for permanent impairment, dated 2 July 2002, arising from injuries to back and plantar fasciitis at work on 12 May 1995 and 2 February 2001 and the nature and condition of employment (N2002/1982 T11).
11. The Respondent, in a document dated 5 November 2002 (N2002/1982 T25), declined to accept liability to pay compensation, pursuant to sections 14, 16, 19 and 24 of the Act, for:
(a) any injury to the left foot or back arising out of the nature and conditions of his employment;
(b) any injury to foot/ankle/heel associated with the incident of 2 February 2001; and
(c) any injury to back arising out of the incident of 12 May 1995.
12. On 17 December 2002, the Respondent reconsidered the earlier determinations and affirmed that the Respondent is not liable to pay compensation pursuant to sections 14, 16, 19 and 24 of the Act (N2002/1982 T27).
APPLICANT'S EVIDENCE
13. The Applicant told the Tribunal that he was born in Vietnam in 1960 and was educated to tertiary technical college, at which he was trained to become a physical training/games instructor. The Applicant stated that he came to Australia in 1982, via Thailand, and that, prior to joining Australia Post in 1988, he worked for three companies. The Applicant told the Tribunal that he had suffered no injuries prior to coming to Australia or when working for the three companies in Australia.
14. The Applicant described his early work experience in Australia Post when working at the Mortdale mail delivery centre, at which he sorted and delivered mail for a number of years using a bicycle and later a motorcycle. The Applicant indicated that he had an accident while working at Mortdale, resulting in a few days off work (N2002/1982 T25).
15. The Applicant told the Tribunal that he moved to Peakhurst in around 1992, where his duties were mail sorting, sitting and later standing using the V-Sort System, and deliveries by motorcycle.
16. In May 1995, the Applicant described an incident which occurred when delivering mail on a motorcycle. He was forced to break hard to avoid a collision with a taxi coming at him. He toppled over and fell, suffering injuries to his right lower rib cage and low back, with pain in the lower back and three fractured ribs.
17. The Applicant told the Tribunal that he returned to the workplace following his fall, reported the accident and, after completing his shift, visited Dr Tran and told him of his accident and injuries. Dr Tran arranged for some x-rays and he was off work for up to six weeks. He stated that he returned to work on light duties and restructured hours, undertaking sorting only, which caused him pain in the rib cage, which was relieved with pain killers. After some two to three weeks, the Applicant stated that, because of shortage of money, he returned to full duties, having explained his situation to the doctor. The Applicant stated that he continued working, undertaking sorting and delivery, and six years later made a claim for compensation because of pain in his low back and rib cage, which he believed arose from the nature of his work. The Applicant stated that he had used intermittent and variable medications over the six-year period to help alleviate symptoms.
18. In February 2001, the Applicant described an incident in which the motorcycle on which he was riding behind a car was forced to vary its direction when the car did a u-turn. As a result, his left leg hit the side of the car, with the main area of the leg being hit between the knee and ankle. Following the incident, he felt pain in the lateral aspect of the left ankle, but he believed it to be a temporary injury and continued to complete his delivery run, reporting the incident when he returned to the mail centre. He stated that he did not visit a doctor at this time and returned to full duties after the weekend, although he continued to experience some pain when standing.
19. In August 2001, the Applicant reported the condition, having seen his local doctor who spoke of a protruding bone. The Applicant stated that he stopped work on 17 August 2001 and that he eventually returned to work on restricted duties, after his sick leave was exhausted. His restricted duties were for six hours and included sorting, but no delivery and no heavy lifting. The Applicant has experienced some difficulty with sleeping and has been prescribed a tranquilliser. While he enjoys working at Australia Post, the Applicant stated that he was disappointed because of the consequences of the accident. He described how, at times, he feels frustrated when he seeks answers to his problems, and is met with a response of "I don't know".
20. In response to questions from Mr Kelly, the Applicant stated the following:
(a) after his arrival in Australia, he was unemployed for one to two years and found the jobs with the companies, particularly the steel grinding, dirty . All the jobs with the three companies were of a labouring nature and he suffered no injuries during the course of these employments. He is able to read and write in English;
(b) his first injury was on 12 May 1995, but he returned to selected duties on 26 June 1995 and to full duties on 14 July 1995 because of low pay, although it would appear, and this is a suggestion to which the Applicant agreed, that he received his normal weekly earnings while on compensation leave (N2001/1774 T26, pages 92 and 95);
(c) he had completed the claim for compensation on 15 May 1995 (N2002/1982 T26) and there was no mention about an injury to the back, the only injury being nominated was fractured fifth and sixth ribs on the right side;
(d) he saw Dr Tran after his accident in 1995 and there were no difficulties in communication. Dr Tran's clinical notes of 12 May 1995 make no mention of a back injury;
(e) the pain developed in his lower back while he was working, the exact date he was unable to recall. He saw Dr Phan on 12 June 1996 and 5 February 1997 and was referred to a specialist;
(f) no mention is made of back pain or back injury in any of the medical certificates issued by Dr Tran on 12 and 19 May 1995 and 2, 16 and 24 June 1995 (N2002/1982 T26). However, the Applicant also stated that his back pain only commenced after he returned to work, and then gradually became worse;
(g) in response to Counsel detailing the following clinical entries from the clinical notes of various attending doctors (Applicant's response is in brackets):
14 July 1995 - lifting a box of parcels at work - chest pain Dr Tran (right sided) - lower thoracic pain
28 July 1995 - pain in area of right shoulder block (unable Dr Tran to recall)
24 November 1995 - left-sided lower back pain for two days Dr Tran (unable to recall)
27 November 1995 - lower back pain - still feels pain on lateral Dr Tran rotation – full forward flexion
28 November 1995 - pain left lower back for three days Dr Long
29 April 1996 - sudden onset of pain right lower back, when Dr Tran bending down to pull an object (cannot remember)
5 February 1997 - back pain for two days (did not always tell Dr Phan the doctor it was work related)
6 May 1998 - back pain for one day - referred to Dr Dr Phan Saffraz for x-rays and to a kidney specialist (no kidney problem)
7 May 1998 - left interscapular back pain for two days, Dr Tran right sided lower back pain for one day – injury at work on 5 May 1998 lifting a bag of letters (unable to remember incident)
11 May 1998 - injection of perhidine – [Applicant was off Dr Tran work 15 May 1998 to 23 June 1998 with kidney stones]
14 May 1998 - kidney stone in right ureter Merrylands X-ray
29 December 1998 - right-sided back pain with one episode of Dr Tran right back pain going into right groin a few weeks previously with passage of stone in public toilet - also complained right interscapular back pain which has been recurrent since injury in 1995, and that it had become painful again when he twisted and turned his back when using his right arm to deliver mail
1 May 2000 - back pain for two days; off work on sick Dr Phan leave. No problems when away from work. Also sick leave for back pain on 18 and 19 May 2000;
(h) there had been no history of back pain prior to his work related motor vehicle accident in 1995, although he had experienced some soreness in his back.. The Applicant agreed that if Dr Long's clinical notes indicated that he had attended complaining of low back pain on 21 November 1986, 29 July 1986, 26 March 1988 and 11 May 1988, then he did so attend;
(i) he had low back symptoms for many years, and he experienced low back pain when playing table tennis, which he now does not do. Also, he experienced an episode of right shoulder pain when playing table tennis in 1993;
(j) in relation to the incident of 25 February 2001, he received no medical treatment at the time and was not absent from work at that time;
(k) his current work involves sorting bundles of mail and small packages into streets using a V sort frame, with the frame commencing at the middle of his thigh and extending above shoulder height. It involves standing for two to three hours and no heavy lifting. In the past, the Applicant had apparently complained to Dr Tran about lifting a box of parcels (14 May 1995), but he was unable to remember the incident;
(l) he had complained to Dr Tran of left heel pain for three weeks, which was worse on weight bearing while standing at work, and also of pain in the back at the same time;
(m)in relation to his left heel pain, Dr Nguyen certified him unfit for work from 17 August to 8 October 2001, with Dr Giblin indicating that the Applicant was fit for suitable duties on 15 October 2001, with instructions of no bending, repetitive lifting or prolonged standing;
(n) because Dr Giblin did not indicate when the Applicant was fit to return to full duties, he was directed to take sick leave. He was directed to return to work on 17 December 2001 for a workplace assessment, but for particular reasons this was unsuccessful and rescheduled for 27 December 2001, at which time suitable duties were nominated as sorting work;
(o) he was certified unfit for work by Dr Nguyen on 2 January 2002 because of stress and depression, and remained on long service leave until 14 February 2002, when a further rehabilitation assessment was undertaken, of which he has no clear recollection;
(p) He returned to work on 15 January 2002 sorting mail for four hours per day, then was on long service leave for two weeks from 17 January to 6 February 2002, thereafter working on suitable duties for four hours per day. Following a meeting on 13 March 2002 at which the Applicant's options were canvassed because of his financial situation arising from the limited hours worked, the Applicant proceeded on long service and annual leave to 12 July 2002. He returned to work on 15 July 2002, working five hours per day on restricted duties, until 16 April 2003 when Dr Nguyen certified he was able to return to work on restricted duties for six hours per day. Since returning to work in July 2002, he has been performing most duties sitting down, while still doing some sorting using the V frame. He notes that he still has back pain when carrying files.
(q) He agreed that the two diagrams detailing an assessment of his back were completed when he attended Dr Giblin's rooms on 5 September 2001 and 19 August 2002 (Exhibit R10).
MEDICAL EVIDENCE
21. In an x-ray report of the left heel dated 17 August 2001 (N2001/1774 T11), Dr Critoph, a consultant radiologist, reported:
"There is a tiny calcaneal spur but no plantar fascial calcifications or joint abnormality is seen."
22. Dr Cheung in a report of a bone scan dated 6 September 2001 (N2001/1774 T13) stated the following opinion:
"Normal study except for incidental finding of left plantar fasciitis and right talo-calcaneal joint inflammation."
23. Dr Gale, a consultant radiologist, reported the following as a consequence of an MRI scan of the thoracolumbar spine dated 17 September 2001 (N2001/1774 T15):
"There is decreased signal intensity on T2 weighting in the lower thoracic discs and in the lumbar discs from L2 to L5, consistent with a degree of disc dehydration and degeneration.
At the L4-5 level, there is a small right posterolateral disc protrusion creating minor encroachment on the right anterolateral aspect of the theca, but no encroachment on neural structures."
24. Dr Fitzgerald, a consultant radiologist, in his report of a plain x-ray of the Applicant’s chest and right ribs on 12 May 1995 (N2001/1774 T26, page 98) detailed the following:
"There are fractures of the fifth and sixth ribs on the right side. There is only minor displacement and the underlying lungs appear clear. The heart and mediastinum appear normal."
25. Dr Grant, a consultant radiologist, in his radiological report of 7 May 1998 stated (Exhibit R7):
"There is a small calcific density in the region of the right pelvi-ureteric junction, which most likely represents a calculus."
26. In a report dated 11 May 1998, Dr Ghedia, a registrar at Westmead Hospital, reported that the Applicant had been sent in for review of right-sided flank pain radiating around to abdomen, which was not responding to intramuscular pethidine, maxolon and buscopan given by the treating practitioner on 10 May 1998 (Exhibit R5).
27. Dr Torkington, a consultant radiologist, in his report of an IVP study performed on 14 May 1998 (Exhibit R6), stated:
"There is a 7mm calcified stone in the right ureter at the level of the L5 vertebra causing only mild obstruction to ureteric drainage."
dr giblin - consultant orthopaedic surgeon
28. In a report dated 5 September 2001 (T12, p40), Dr Giblin details a history of the Applicant having had intermittent problems in the thoraco lumbar region and right ribs since coming off his motor bike some six years ago. Dr Giblin reports that there was no history of radiation down the legs and no associated paraesthesia. Dr Giblin also records that the Applicant could move around the room comfortably, forward flex to his knees, straight leg raise to 90 degrees bilaterally and there was an absence of any significant peripheral neurological signs.
29. In a separate report on the same day (N2001/1774 T12, page 41) Dr Giblin states that the Applicant has developed plantar fasciitis over the last five weeks and recommended exercises and anti-inflammatories.
30. In a report dated 21 September 2001 (N2001/174 T12, page 42), following review of the bone scan and the thoracic and lumbar MRI scan, Dr Giblin, in noting the left plantar fasciitis, concluded that the Applicant's back pain is consistent with the accident described, there being no fractures and only a minor disc lesion at the L4/5 level.
31. Subsequent reviews by Dr Giblin on 9 October 2001, 22 October 2001 and 14 November 2001 (N2001/1774 T12) indicate that the Applicant continued to complain of left heel pain, with Dr Giblin indicating that the Applicant was fit to return to work on 14 November 2001 on restricted duties which did not involve repetitive bending, heavy lifting (above five kilograms), prolonged sitting or standing (page 47).
32. In a report on permanent impairment dated 19 August 2002 (Exhibit R4), Dr Giblin considered both impairments (back and left heel) would improve with treatment and that, depending on treatment given, impairments would stabilise six to eight months after onset of treatment.
dr lyons - consultant orthopaedic surgeon
33. In a report dated 17 April 2002 (N2002/1982 T2, pages 20-24), Dr Lyons indicated that he had difficulty in establishing a detailed clinical history, a matter further alluded to by him in his oral evidence. Dr Lyons considered that the various radiological investigations indicated:
(a) insignificantly displaced fractures of the right fourth, fifth and sixth ribs (May 1995);
(b) a very tiny plantar spur (x-ray right heel of 17 August 2001);
(c) left plantar fasciitis (bone scan of 6 September 2001);
(d) a little wedging of the upper three lumbar vertebrae - suggestion of old Scheuermann's disease (x-ray of lumbar spine report);
(e) a little anterior wedging of several vertebrae, especially T8 to T10, possibly due to old injury or Scheuermann's disease (MRI of thoracic and lumbar spine); and,
(f) some disc dehydration and some small protrusion of the L4/5 disc (MRI of the thoracolumbar spine of 17 September 2001).
34. Dr Lyons detailed the following opinion, in the report of 17 April 2002:
"OPINION This man's clinical presentation is most confusing and indefinite and unfortunately I was not able to obtain a satisfactory clinical history. There appears little doubt on clinical examination that this man does have some plantar fasciitis on the left side and there is a small calcaneal spur there. Such could explain his left sided heel symptoms but his description of them appears somewhat embroidered. Apart from specific direct trauma, the most common presentation of this condition is ideopathic in the middle aged person and I think on balance of probabilities, such is the cause here. It could be argued that prolonged walking might initiate such a condition but he has no symptoms whatsoever on the right side and there is absolutely no history of trauma locally which would be a more likely cause.
I consider that the condition is ideopathic in aetiology but is causing him moderate disability and with such a condition, symptoms would tend to increase in a walking job of a postman. His other symptoms would suggest a chronic low back strain with some vague right thigh radiation and X-rays suggest fairly widespread thoraco-lumbar changes which I think are probably due to old Scheuermann's disease. There is also evidence of degenerative changes widely in his lumbar spine, rather excessive for his forty years and I consider that this condition is causing some low backache and radiation into his right thigh. However there is nothing in his clinical history in his working times with the Australian Postal Corporation which might precipitate such a condition. He carries only light loads, he rode a pushbike and the original injury eight years ago theoretically could cause some low back injury but his symptoms then appeared to have been quite localised to the upper right ribs and X-rays confirm fracture there and I find no evidence that he sustained any lower back injury at that time. The more recent injury in February 2001 involved only a side to side crush of his right leg. This certainly would not in any way affect his back and would not in any way cause trauma to the plantar region of his heel.
I consider that his back condition is unrelated to his work but is the cause of mild intermittent backache and right thigh discomfort."
35. In a supplementary report dated 6 August 2002 (N2002/1982 T14), Dr Lyons confirmed his view that the Applicant was suffering from left plantar fasciitis and noted that direct trauma and prolonged walking could be argued as a cause for this condition, but the specific description of trauma given to him by the Applicant in the incident of February 2001 excluded such a cause. Further, Dr Lyons concluded that the history of the onset of the complaint given by the Applicant to Dr Funnell would suggest a diagnosis of plantar fasciitis of ideopathic aetiology. In a separate report dated 6 August 2002 (T15 N2002/1982), Dr Lyons concluded that the Applicant had nil whole body impairment under Tables 9.5 (heel) and 9.6 (lumbar).
36. Dr Lyons confirmed his difficulties in obtaining a detailed clinical history and his opinions in oral evidence.
dr funnell - consultant physician in rahabilitation medicine
37. In his report dated 19 June 2002 (N2002/1982 T10), Dr Funnell detailed the history of the Applicant's two accidents, and analysed the plain x-rays of the Applicant's thoraco lumbar spine in May 1998, which demonstrated minor anterior wedging of lower thoracic and upper lumbar vertebral bodies and degeneration of the lower lumbar facet joints, with the radiologist reporting "compression fractures of indeterminable age". Dr Funnell detailed the following opinion:
"The symptoms Mr Huynh describes in his left heel are consistent with the condition of plantar fasciitis. This diagnosis has been confirmed by plain X-ray and bone scan, by orthopaedic surgeon Dr. M. Giblin, and by physical examination today. The symptoms and disability Mr. Huynh describes are consistent with this diagnosis.
It is possible that this condition began as the result of injury to his left foot in the motorcycle accident of 2 February 2001. Mr Huynh describes pain in his ankle and foot at that time consistent with local soft tissue injury. It may well have been that injury from this accident was later aggravated by his duties in the mailroom. The fact that he does not experience pain in his right foot tends to support the proposition that his persisting left heel pain arose from the earlier motorcycle trauma.
Radiological evidence suggests that Mr. Huynh's chronic thoraco-lumbar spinal discomfort and pain is due to vertebral injury and disc degeneration arising from the motorcycle accident at work in May 1995. Although spinal X-rays were not performed at that time, he gave a clear history today of persisting pain since that accident. X-rays in May 1998 confirmed multiple vertebral compression fractures, and there is no other history of spinal trauma to account for such findings. The pain and disability Mr. Huynh describes in his thoraco-lumbar spine is quite consistent with this diagnosis.
Given the treatment Mr. Huynh has received over the last year, there is nothing more I can recommend with regard to further investigations and treatment. He should continue with pain medication under the review of Dr. Tran. I would not expect substantial change in his symptoms and disability.
Given his present condition, I do not believe that he is able to perform his past duties as a postal officer. Both the long periods of time in the mailroom and the motorcycle delivery of mail are tasks which readily aggravate his symptoms. He should be able to manage more sedentary work, in which he was allowed to vary his postures between sitting and standing. He should at the same time not be expected to perform work which requires frequent or sustained forward bending, or manual handling in excess of 5 kilograms.
Although I am not aware of the details of Mr. Huynh's recent workplace rehabilitation, it appears at this time that there is little prospect he will be able to return to work in selected duties. If this is the case, his limited English fluency and work experience, together with his present injuries, will substantially diminish his future employment prospects."
38. In a supplementary report dated 19 June 2002 (N2002/1982 T9), Dr Funnell concluded that the Applicant had a five per cent whole person impairment under Table 9.6 of the Comcare Guide, related to minor restrictions of movement, and a 20 per cent whole person impairment under Table 9.5 on the grounds of difficulty with grades, steps and distances.
dr mcgill - consultant rheumatologist
39. In his report dated 6 May 2003 (Exhibit R1), Dr McGill details a summary of his findings and opinion:
"This 42 year old man has clinical and bone scan evidence of left plantar fasciitis and he has symptoms and MRI findings in keeping with degenerative lumbar disc disease including a small L4/5 protrusion.
In 1995 he suffered an accident at work and fractured three right sided ribs. There was no abnormality on examination relevant to those rib fractures and I think he has not had any symptom on the basis of that injury since healing of the rib fractures (six to eight weeks after the initial injury).
Although an injury that produced three fractured ribs would have had the potential to aggravate pre-existing degenerative change in the back, had that been the case then he would have reported back symptoms within the first few weeks after that accident. It was clear that the history provided by Mr Huynh was totally unreliable. The widespread nature of the degenerative disc changes on MRI are clearly in keeping with constitutional degenerative change and would not have been produced by injury. On the understanding that the notes recorded near the time of the May 1995 accident did not refer to substantial back pain then I think that accident did not have any influence on his lumbar spine.
I think the development of intermittent back pain from November 1995 was a reflection of constitutional degenerative change in the low back and was not likely to have been influenced by his work duties.
The subsequent injury when the lateral side of his left leg (or even accepting the history he today provided that it was the lateral side of his left foot) was struck would not have influenced the subsequent development of plantar fasciitis.
I think his plantar fasciitis is constitutional and unrelated to his work. Perhaps reflecting the inaccuracy of his history, he today reported that he has not used heel cups at any stage nor has he had a corticosteroid injection of his heel. The use of heel cups to provide extra heel padding is a simple therapy which improves heel pain in plantar fasciitis. Even without treatment however the condition has a good long term prognosis and eventually resolves in the vast majority of people.
With respect to the specific questions:
He has degenerative thoracolumbar disc disease and left plantar fasciitis.
I think both of the conditions are non work related.
He sustained fractures of the right 4th, 5th and 6th ribs as a result of the accident in May 1995.
On the basis of the information available to me currently, I do not think he has suffered any other significant injury related to his work.
I do not believe that the nature and conditions of his employment between 1989 and currently have caused any health problem. He may well have experienced increased discomfort in his low back when performing certain activities such as motor cycle riding but any adverse effect of that activity would have been limited to the period of doing the activity and for a very short while thereafter.
The majority of people with the changes present on his MRI would be able to perform the full normal duties of a postal delivery officer on a motor cycle delivery beat. If however he experiences unacceptable discomfort while riding his motor cycle then his inability to do so is a result of constitutional degenerative change, not his work duties.
There is no indication for treatment of any work-related condition.
With respect to his left heel pain, the provision of shock absorbing heel cups would be sensible. He was not using shock absorbing material under his heels today.
With respect to the degenerative changes in his thoracolumbar spine, he should use correct lifting and bending technique but I think he is fit to perform full normal duties (noting that the weight of articles lifted at Australia Post should not exceed 20 kg). I think he is fit for a trial of a return to normal duties. It would be sensible to progressively re-introduce motor cycle duties.
The prognosis with respect to his back is fair. He is likely to have further fluctuations of back related pain but his overall function is likely to remain good in the coming years."
40. In a supplementary report, also dated 6 May 2003 (Exhibit R2), Dr McGill concluded that the Applicant had no permanent impairment in relation to his lower back as he has a full range of movement. Further, he concluded that there is no permanent impairment of the Applicant’s left lower limb in relation to any work-related problem.
41. In oral evidence, Dr McGill both explained and confirmed the opinions expressed in his reports.
SUBMISSIONS
42. The Applicant submits that he has had continuing symptoms in his lower back since his work-related motor vehicle accident in May 1995, and that the low back pain symptomatology was made worse as a consequence of the nature and conditions of his work, which involved repetitive bending, lifting and standing. Further, the Applicant contends that the incident in February 2001, which involved trauma to the lateral aspect of his left ankle and heel as well as his leg, had contributed to the causation of his left plantar fasciitis and that this condition had subsequently been made worse by the nature and conditions of his work, which included prolonged standing and walking. The Applicant relies upon the evidence of Dr Funnell and Dr Giblin to support this submission.
43. The Respondent contends that much difficulty has been experienced in ascertaining a longitudinal and detailed clinical history from the Applicant, and that much of the difficulty was due to the Applicant wishing to give answers which best served his case. This, in turn resulted in a clinical history which, when detailed orally by the Applicant, was at odds with the documented clinical history detailed in various clinical notes of treating doctors and medical reports before the Tribunal.
44. The Respondent submitted that the Applicant had a history of intermittent back pain and soreness for many years prior to the injury in May 1995; that the injury in May 1995 related only to the upper right rib cage resulting in undisplaced fractures to the fourth, fifth and sixth ribs; that any intermittent back pain was associated with the degenerative processes in his lower thoracic and upper lumbar spine evidenced on x-ray.
45. The Respondent further contends that, although the Applicant does suffer from plantar fasciitis of the undersurface of the left foot, his work had no part to play in either causation and/or aggravation of the condition.
46. The Respondent, in so contending, relies of the clinical records before the Tribunal and the opinions of Drs Lyons and McGill. In contending that neither claimed condition gives rise to any claim for permanent impairment, the Respondent relies again upon the opinions of Drs Lyons and McGill, and also that of Dr Giblin.
CONSIDERATION AND FINDINGS
47. In this matter, the Tribunal has been particular to detail the relevant clinical history over time, with particular reference to clinical notes of attending medical practitioners and the various radiological investigations, reports and opinions expressed by consultants. As a consequence, the Tribunal observes that some clinicians (Drs Lyons and McGill) have expressed difficulty with obtaining a consistent understanding of the Applicant's clinical history, in so far as it relates to the commencement and symptomatology of back pain, the nature and effects of the May 1995 work-related injury and the nature and effect of the February 2001 work-related injury. It is sufficient for the Tribunal to state that during the two days of hearing, the Applicant presented elements of a clinical history which was, at best, confusing and, at worst, contradictory to detailed clinical notations in the treating general practitioners’ records, particularly in relation to when back pain and soreness was first experienced and the absence of back pain complaints in the documented records at the time of the May 1995 incident. Further, the Tribunal was unable to understand why the Applicant was hesitant to detail the history of the kidney stone episode in 1998 and indeed appeared to go to significant effort to obfuscate the issue in his oral evidence.
48. Despite the earlier comments, the Tribunal, having reviewed all the evidence, makes the following finding of facts:
(a) The Applicant has a long history of low back pain/soreness, with clinical evidence of such symptomatology to be found in Dr Long's clinical notes relating to consultations in November and July 1986 and March and May 1988, with all such events occurring prior to the Applicant working for Australia Post. Further, the Applicant admits to episodes of back pain when playing table tennis, an activity which he had to cease.
(b) The Applicant was involved in a work- related accident on 12 May 1995 and suffered fractures undisplaced to the fourth, fifth and sixth ribs on the right side.
(c) There was no mention of back pain being present, complained of or arising out of the accident in the following documentation:
i.Claim for compensation on 15 May 1995;
ii.Dr Tran's clinical notes of 12 May 1995;
iii.Dr Tran's medical certificates of 19 May 1995, 2 June 1995, 24 June 1995; and
iv.Dr Fitzgerald's report on 12 May 1995.
(d) The first mention of low back pain was left-sided low back pain in Dr Tran's notes of 24 November 1995. Thereafter, there are intermittent complaints of low back pain in Dr Long's notes for 27 and 28 November 1995, Dr Tran's notes of 29 April 1996 and Dr Phan's notes of 5 February 1997. Absences from work as a result of these complaints of low back pain were covered by way of sick leave.
(e) In May 1998, there is clear clinical evidence of a right renal stone, as evidenced by the x-ray report of 14 May 1998 and the detailed clinical evidence in the notes of Dr Tran and the report from the emergency department at Westmead Hospital.
(f) There is continuing evidence of intermittent low back pain, as evidenced by the clinical notes of Dr Phan for 1 May 2000, with further periods of sick leave on 18 and 19 May 2000.
(g) The radiological investigations of May 1998 demonstrate minor anterior wedging of lower thoracic and upper lumbar vertebral bodies.
(h) A further motorcycle accident occurred on 2 February 2001 and this involved trauma to the lateral aspect of his left lower leg from below the knee to the ankle and heel (lateral aspects).
(i) The Applicant continued on working after the incident and did not seek medical attention until mid August 2001, when he complained to Dr Tran of the onset of left heel pain some three weeks earlier.
(j) An x-ray and subsequent bone scan revealed a small calcaneal spur of the left heel and plantar fasciitis respectively.
(k) Following a significant period off work because of the plantar fasciitis, the Applicant progressed through a graduated return to work on restricted duties commencing 15 July 2002.
49. The Tribunal, having considered all the material and, in particular the opinions of the various clinical consultants in this matter, concludes that, on the balance of probabilities, the Applicant's low back pain symptomatology is consistent with a long-time degenerative condition of the lower thoracic and lumbar spine which has been in evidence from at least 1986. In making such a finding, the Tribunal relies on the clinical notes of Drs Tran, Long and Phan, the radiological reports and the opinions of Drs Lyons and McGill.
50. The Tribunal is also satisfied that, on the balance of probabilities, the degenerative back condition was not aggravated at the time of the 12 May incident, as the clinical records at that time are devoid of any complaint of low back pain. The Tribunal further concludes that intermittent complaints of low back pain commencing in November 1995 are, on the balance of probabilities, a continuance of intermittent symptomatology arising from the underlying degenerative thoraco-lumbar disease process. Further, such low back pain is complicated by the right renal/ureter stone in May 1998 and its subsequent passage at year's end. In so finding the Tribunal relies upon the opinions of Drs Lyons and McGill.
51. Further, the Tribunal concludes that there is no evidence before it that would support a finding that, on the balance of probabilities, the nature and conditions of work have aggravated the Applicant's underlying degenerative back condition. In so finding, the Tribunal relies upon an absence of evidence demonstrating a change in the underlying back condition and the opinions of Drs Lyons and McGill and, in part, the opinion of Dr Giblin, in so far as he considers the Applicant enjoys a full range of thoraco lumbar spinal movements and an absence of pain radiation to the legs.
52. The Tribunal also finds that, irrespective of the issues of causation and/or aggravation, the Applicant has a full range of thoraco lumbar spinal movements (Drs Giblin, Lyons and McGill relied upon) and as such any permanent impairment under Table 9.6 is nil.
53. As a consequence of the Tribunal’s findings, the Applicant's claim for compensation in relation to his low back pain must be denied, for, on the balance of probabilities, the Applicant’s continuing low back symptomatology cannot be found to have been caused and/or aggravated by the incident of 12 May 1995, nor aggravated by the nature and conditions of his work.
54. In addressing the issue of the left plantar fasciitis suffered by the Applicant, the Tribunal observes that the symptomatology did not commence until some three weeks before the Applicant sought medical attention in August 2001. The Tribunal further notes that there was no complaint of symptomatology relating to the left heel and left plantar region at the time of the incident on 2 February 2001, nor was there any complaint of symptomatology in the ensuing six months after the incident and during which time the Applicant was undertaking his full duties in the workplace.
55. In assessing all the evidence in relation to the condition of plantar fasciitis of the left heel and the opinions of the various specialists, the Tribunal, on the balance of probabilities, finds that the plantar fasciitis of the left foot was not caused by the incident of 2 February 2001, nor has it been caused and or aggravated, once commenced, by the nature and conditions of the Applicant's work. In so finding, the Tribunal relies upon the opinions of Drs McGill and Lyons that the cause of such a condition in the Applicant was idiopathic. The Tribunal notes that Dr Funnell considers it only a possibility that the plantar fasciitis may have resulted from the accident of 2 February 2001. The Tribunal also notes that Dr Lyons considers that walking may increase pain symptomatology in the heel, and that both Drs McGill and Giblin express opinions as to the appropriate form of treatment for such a condition, which does not appear to have been undertaken in this matter.
56. As a consequence of the Tribunal's findings, the Tribunal further concludes that the claims for compensation for the Applicant's condition of plantar fasciitis of the left heel must be denied, for, on the balance of probabilities, the Applicant's plantar fasciitis cannot be found to have been caused by the incident of 2 February 2001, nor caused and/or aggravated by the nature and condition of his work.
DETERMINATION
57. For the reasons nominated in this decision, the Tribunal affirms both decisions under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: C. Gregson
AssociateDate/s of Hearing 3 and 4 July 2003
Date of Decision 15 August 2003
Solicitor for the Applicant Self-represented
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ms E O'Connor
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