McKinnon and Australian Postal Corporation - [2001] AATA 297

DECISION AND REASONS FOR DECISION [2001] AATA 297

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/312

GENERAL ADMINISTRATIVE DIVISION          )
           Re      CRAIG IAN McKINNON
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Deputy President B.H. Burns, Air Marshal I.B. Gration, Member Dr M.D. Miller, Member

Date9 April 2001
PlaceCanberra

Decision The decision of the Tribunal is that the decision under review is affirmed.

...........……..(Signed).................….
DEPUTY PRESIDENT B H BURNS
CATCHWORDS
COMPENSATION – aggravation of pre-existing back condition – decision affirmed.
Bessey and Australian Postal Corporation [2000] AATA 404
Australian Postal Corporation v Bessey – Federal Court 20 March 2001

REASONS FOR DECISION

9 April 2001 Deputy President B.H. Burns, Air Marshal I.B. Gration, Member, Dr M.D. Miller, Member

This is an application by Mr Craig McKinnon ("the applicant") for review of a decision of a reconsideration officer of the respondent dated 15 September 1998 (T50) which affirmed upon review a decision of a delegate of the respondent dated 8 July 1998 (T48) to cease liability in respect of a claimed back condition as and from 9 July 1998.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T52) and supplementary documents (ST1-26), together with 52 exhibits, 13 lodged by the applicant (Exhibits A1-A13) and 39 lodged by the respondent (Exhibits R1-R39). In addition, the Tribunal heard evidence from Dr Chandran, neurosurgeon, Dr Hagan, retired surgeon, Dr Blum, neurosurgeon, Dr Scott, occupational physician, Dr Kelly, general practitioner, Dr Corry, consultant in rehabilitation medicine, Dr Maxwell, orthopaedic surgeon, Dr Carr, rheumatologist, Dr Chen, occupational physician and Dr van Gelderen, consultant surgeon. The applicant was represented by Mr Clark and the respondent was represented by Mr Jones, both of counsel.
The issue before the Tribunal is whether or not the respondent is liable to pay compensation to the applicant in accordance with the Safety, Rehabilitation and Compensation Act 1998 ("the Act") in respect of the applicant's back condition as and from 9 July 1998.
history of the application
The applicant is a 32 year old postal delivery officer who commenced employment with the respondent in 1989. In September 1995 the applicant suffered from a bad flu virus, and was absent from work. He returned to work on 27 September 1995. The applicant signed an injury report form on 17 October 1995 (T3) referring to alleged work related events on 27 and 28 September 1995:
"Nagging pain in lower back and back of left leg for the last few years. Every six months or so the pain becomes severe. Finally after being off work (sick leave) for just over a week, I returned and after one day on the bike, the pain was more painful than ever later that night."
He lodged a claim for compensation on 25 October 1995 (T4) and liability was accepted by the respondent up until 9 July 1998. The applicant applied to this Tribunal on 27 October 1998 (T1).
applicant's evidence
The applicant commenced employment with the respondent in 1989, having previously worked as a labourer, storeman and as a console operator at a service station. He gave evidence that he did not have any problems with his back prior to his employment with the respondent. He said that he first noticed problems with his back in 1992, but initially thought it was a hamstring problem. He said that the pain continued from 1992, but that it varied in intensity, such that it would almost disappear and then come back again every three or four days. Between 1992 and 1993 he rated the pain at about a 2-3 out of 10, and in 1994 at about 7-8 out of 10 at particularly bad times if he had been riding the post bike. He gave evidence that any sudden movement could cause problems.
He told the Tribunal that prior to 1995 he had time off work following an incident on his work motorbike on 19 May 1992 in which he strained his wrist, and another incident involving bee stings. He said that following the May 1992 incident, he had developed pain about two weeks later, which he later found out was back pain (about two weeks after the development of the pain), but which at the time he attributed to possible kidney problems. He denied in cross-examination that he only had wrist problems arising as a result of the 1992 incident. He also gave evidence of participating in a tandem skydive sometime in or about early 1995.
The applicant testified that in January 1995 he fell off his privately owned Kawasaki 600cc motorbike, when he was riding around a corner at approximately 20-30 kilometres per hour. That accident resulted in a left collarbone injury. In about March 1995 he said that he went to Florey Medical Centre one morning at about 3am to get pain-killers because his own doctor was not available. He could not recall having a further motorbike accident in January 1993. He said that the Kawasaki 600cc was bigger than the work motorbike, had suspension that was ten times better, and was not ridden in an upright position like the post bike is, meaning that it did not affect his back in the way the post bike did. He said that he attributed his current problems to the fact that he knows from experience that when he got off the post bike after riding it, he would have a sore back.
The applicant gave evidence that he returned to work on 27 September 1995, having been off work with what he considered to be a bad flu virus. He recalled that he may have only worked for half a day on 27 September 1995 and said that he then had an attack of nerve pain that night after he had gone to bed which required medical attention.
The applicant informed the Tribunal that in early 1996 he had an operation on his back and that after the operation if he sneezed or coughed, it would cause pain in the muscles that had just been cut open. He said that after the operation, he did not have the same level of extreme leg pain.
Subsequent to the incident on 28 September 1995, the applicant underwent a return to work program, and has worked for less money in a clerical position since that time.
The applicant told the Tribunal that he attended Sharon Williams, physiotherapist for a variety of things, but particularly so that she could manipulate his back so that he would be more comfortable at work. He agreed that he had told her that he had cramps and aches around his forehead and eyes. He said that he informed the doctors about all the incidents he had suffered if he was asked about them.
The applicant could not recall hurting his back in March 1993 whilst lifting. He said that one does not claim for every niggling pain one gets and that whilst he can sit for some period of time, it gets uncomfortable after a while, but said that "you put up with it" (Transcript p42). The applicant claimed walking over a period of time to be a problem if he had been sitting still for too long at his work without stretching. He said that he just puts up with the pain. He has tried jogging and can jog short distances, but said that it is too uncomfortable, such that he "wouldn't go a couple of miles" (Transcript p48). He said that his movement is restricted when leaning backwards, forwards and sidewards, and that his restriction of movement and the length of time he can sit depends upon the day and what he has done the day before. He said that if he "cracks" his back, he has an increased range of movement and that if he is sitting and fully extends his leg, it can pinch the nerve. If he drives for too long without stretching, he has pain later in the evening or following day, and now drives a four-wheel drive vehicle, because it is at a suitable height for him to get into and out of. He told the Tribunal that on one occasion he drove to Tamworth with a girlfriend, who shared the driving, according to his pain. He walks slowly down stairs and can climb over walls if he can pick the way in which to do it. He said that he can do most things, but has some difficulty with some things.
The applicant told the Tribunal that he was interested in taking up scuba diving, but found the weight belt and tank too painful to wear. He said that on the course he undertook, he would put the equipment on right at the moment before diving because of his back problem.
The applicant informed the Tribunal that he currently does some casual courier work after hours for a couple of hours per week, but denied saying to a prospective purchaser of his vehicle that he planned to buy a van to courier full time. He did not know whether or not he would be capable of courier work full time, but doubted that he would be able to.
The Tribunal was shown a video of the applicant which included movements involving standing, sitting and fishing. The applicant commented that the range of movement shown is all within his capabilities, but that he does not have a normal range of movement. He said that warm weather improved his range of movement. The applicant denied not telling the truth to doctors or the Tribunal, and said that he has not exaggerated the restrictions in his movement. He said that whilst he can lead a fairly normal lifestyle, it is with some limitations, and he is much more cautious to ensure that he keeps up his exercises.
In the giving of his evidence the applicant informed the Tribunal that he would like to remain with Australia Post.
Before moving on, the Tribunal would indicate that the documentary evidence before the Tribunal shows the following dates regarding the applicant's involvement with motor bike accidents.
1. 19 May 1992 (T11/28).
2.24 January 1993 Florey Medical Centre Notes indicating motor bike accident 2 days previous (Exhibit R15).
3.17 January 1995 Florey Medical Centre Notes (Exhibit R15).
4.24 January 1995 Dr Williams' Notes indicating motor bike accident some days previous (Exhibit R14).
5.9 March 1995 Florey Medical Centre Notes indicating applicant had "come off motor bike 4 weeks ago" (Exhibit R15).

It becomes apparent from the above that the applicant was involved in at least three motor bike accidents, namely, in May 1992, January 1993, and January 1995 (this last one being taken to be the same one as referred to in 5. above).
dr david maxwell

Dr Maxwell, orthopaedic surgeon, has a particular interest in back surgery. He prepared three reports in relation to the current proceedings, dated 6 May 1999 (Exhibit R3), 1 June 1999 (Exhibit R5) and 18 May 2000 (Exhibit R29). In the first report he said:
"…
I could find no evidence in the history of a work-related disc prolapse. This normally would present with quite acute pain which may settle over a period of time.
In my opinion, the CT scan and plain x-rays indicate what looks like a developmental abnormality in the upper border of the sacrum causing narrowing of the S1 nerve root canal. This has caused the S1 nerve root to gradually become irritable causing sciatic pain down the left leg. It is possible that sitting with his legs flexed on a motorcycle may have increased the tendency for this nerve to become irritated.
I do consider that the initial condition is developmental and not related to a work-related injury.
…
I consider that the surgery on 5/2/96 was required as a result of the natural progression of his underlying condition. It is possible that riding a motorcycle with his hip flexed would cause increased stretch of the S1 nerve root which may have aggravated his condition at the time.
…
I consider he did temporarily aggravate his underlying condition and that the aggravation would have ceased after a period of rest.
…"
Dr Maxwell considered the abnormality in scans taken of the applicant to be more of a developmental abnormality than caused by disc prolapse. He said that the history he took from the applicant did not disclose a typical history of disc prolapse followed by acute pain, and that the symptoms worsening over a period of years was more consistent with a developmental abnormality. He did not consider there to be any one precipitating cause and said that the history of coughing and non-work related motorcycle accidents indicated that there were other factors causing nerve irritation.
Dr Maxwell considered that the applicant's work sitting on a motorcycle might have temporarily aggravated the nerves in the applicant's leg without causing permanent aggravation, and considered such aggravation to be a more minor component of the whole clinical picture. He said that the motorcycle work would, overall, have made the condition worse, but had not actually altered the anatomy. He said that the symptoms were typical of a radiculopathy, but he did not agree that it was secondary to a protrusion. He did not consider that the applicant has ever had a prolapse, and said that the applicant's history of waking up with intense pain was consistent with someone with a developmental problem who irritates the nerve the day before experiencing the pain. He told the Tribunal that any work caused aggravation was temporary and a fairly minor factor, and that it is more likely the problem was something that would have just come on by itself. He agreed it is more probable than not that the requirement of riding with one's knees flexed on a motor cycle at work would bring about irritation of the nerve, lasting minutes or hours, given the applicant's pathology
Dr Maxwell gave evidence that based on the squatting he saw in the video, the applicant did not appear to have irritable nerves. Based upon the video evidence, history and physical examination, he considered that there was nothing restricting the applicant from going back to his motorcycle delivery job. He agreed that patients following a successful operation might be able to sit or stand for some time, but experience discomfort if they did it for any long period of time.
Dr Maxwell had examined the applicant for about ten to fifteen minutes, and did not consider that he was fabricating his symptoms during examination. He said that one would normally expect to see osteophytes develop with a very gradual onset, and that one would not expect to see calcification within a matter of months following trauma. He gave evidence that he did not know that it has ever been proven that coughing could cause a disc prolapse, and said that about one half of disc prolapses occur with lifting or twisting type injuries, with the other half simply coming on over a couple of days without a history of specific injury.
dr gregory carr
Dr Carr, rheumatologist, provided three reports in relation to this matter, dated 24 April 1998 (T45), 4 June 1999 (Exhibit R6), 16 July 1999 (Exhibit R8), 18 February 2000 (Exhibit R11) and 30 May 2000 (Exhibit R31). In the first report he said:
"…
There is no history of specific injury in his employment as a postal delivery officer, either with riding a motorbike or twisting to place mail in letter boxes, that is responsible for his current back problems. Certainly sitting over any time on any object, with riding over rough ground could potentially aggravate temporarily, but not cause ongoing problems. The effects of this gentleman's employment are not present still. The occupation of delivering mail on a motorbike is inappropriate as sitting postures over a prolonged period, particularly sitting on motorbikes, will aggravate pain arising from discs at least temporarily.
…"
In the second report dated 4 June 1999 (Exhibit R6) he said:
"…
It is my opinion that he had well entrenched intrinsic L5/S1 degenerative disc disease evident on plain x-rays of 1992 and that "timing-wise" it appears that the coughing related to his pneumonia in September 1995 was the likely precipitating factor leading to further protrusion and nerve root compromise.
I remain of the view that the Applicant was temporarily aggravated by riding a motorcycle in the course of his employment. Such aggravation is likely to cease within three to six months of stopping such activities.
…"
Dr Carr said that whilst riding a motorcycle over rough ground could produce a temporary aggravation, it would not cause any ongoing problems. He considered that the cause of the chronic disc degeneration in the applicant is a developmental abnormality that occurred in adolescence and said that this appears consistent with the radiological evidence. He said that the type of work the applicant did has not caused the applicant's condition but that it might aggravate the condition. He said that the work could have caused a "serious event" (Transcript p179), but would expect notations in the records if such an event had occurred.
Dr Carr said that the pathogenesis of the applicant's back condition has not been caused by the type of motorcycle work that the applicant performed for the respondent. He told the Tribunal that it is an intrinsic condition which has slowly developed and that this is confirmed by the 1995 CT scan. He considered that on the basis of the video footage, the applicant appears to have recovered quite well from the surgery, and was not at all concerned in the applicant's movements with weight bearing or protecting the applicant's back. He considered that chronic sitting is probably more likely to aggravate back ache, no matter what task is being done, and that it is impossible to say whether such aggravation may be temporary or permanent. He did not think that the medical articles in evidence were of much use to support a connection between motorbikes and injuries like those of the applicant.
Dr Carr considered that because of the risk of temporary aggravation, it is not appropriate for the applicant to be performing his pre-operation motorcycle riding job with the respondent. He gave evidence that coughing, of itself, can cause disc protrusion, but that the applicant's condition was more a developmental problem leading to premature degeneration.
dr chandran
Dr Chandran, neurosurgeon, operated on the applicant and prepared two reports, dated 23 January 1996 (T21) and 1 May 2000 (Exhibit A8). In the second report he said,
"…
It is my opinion that the cause of symptoms that led to surgical treatment was either caused by his work or aggravated by his work.
It is not clear to me as to what is meant by your client's current incapacity about which you are seeking an opinion from me. The video shows Mr McKinnon walking normally and bending repeatedly, twisting around, and bending into the car on a number of occasions. I do not see any obvious restriction of spinal movements in him, or any suggestion of pain during this procedure. Movements seems to be quite free…
It is my opinion that Mr McKinnon is fit to perform full time office duties. Regarding his motor cycle riding, there is concern that it could aggravate his back condition to the point of producing symptoms again in the same manner as in the past. In such a case it would be reasonable to advise against him returning to mail delivery on a motor cycle.
…"
Dr Chandran gave evidence that the applicant had some degree of degeneration preceding any work injury in September 1995 and that following any such injury, there had been a protrusion causing sciatic pain. He testified that the applicant presented with a protrusion at the operation, and that calcification of the protrusion simply meant that part of it had been there for some time. He told the Tribunal that no congenital abnormality could have caused the type of protrusion the applicant had. He considered the September 1995 injury would have aggravated some prior insult that occurred to that particular region, and said that that aggravation was caused by the applicant's motor bike riding duties. He agreed that the applicant developed some pathology earlier on, most likely as a juvenile or adolescent.

Dr Chandran had some concerns about the applicant returning to full-time motorcycle riding duties, and suggested a trial period. He gave evidence that from observing the video, there did not appear to be any obvious restriction in the applicant's range of spinal movement. He agreed that the pain in March 1995 when the applicant woke up with pain might not be work related and that the September 1995 symptoms may be related to, or separate from the March 1995 symptoms, depending upon whether or not the March symptoms persisted for any time or not.
Dr Chandran gave evidence that the applicant appears to have a chronic back condition with acute episodes of pain. He told the Tribunal that significant protracted coughing can produce lower back pain and sciatica. He agreed that if the applicant had significant problems related to pneumonia and coughing during the week and a half preceding the 28 September 1995 incident, the problems of that date may be related to those problems, but that it is not possible to tell ultimately, whether or not the pain causing the applicant to wake at 3 am was caused by the coughing in previous weeks, or the motorcycle riding the day before.
dr hagan
Dr Hagan, general surgeon prepared two reports dated 11 July 1996 (T28) and 29 March 2000 (Exhibit A10). In the first report he said:
"…
The previous history of heavy work as a brickie's labourer and the riding of his own motor bike, together with the radiologist's opinion of adolescent injury indicate that the L5/S1 disc condition was present prior to his employment with Australia Post. The conditions and nature of his work as a motor bike delivery officer aggravated this condition.
In my opinion, on the balance of probabilities as opposed to possibilities, two-thirds of Mr McKinnon's present disability can be attributed to his constitutional condition and pre-existing disc injury, and one-third to aggravation by his work for Australia Post.
…
3.Mr McKinnon is suffering from the effects of an aggravation of a pre-existing condition.
(a)The effects of the work related aggravation are likely to cease in about 12 months time, but this work related aggravation has caused a permanent change (in the nature of having a surgical operation which has removed a disc). This fractional part of the aggravation would then be permanent.
(b)I am unable to say whether Mr McKinnon's underlying condition would have naturally progressed to the state which required surgery if he had been performing some other work. It would certainly have progressed to surgery if he had continued work as a brickie's labourer or any other heavy physical work.
…"
In oral evidence Dr Hagan agreed that he was of the opinion, upon examination of the applicant, that the condition and nature of the applicant's work as a motorcycle delivery officer aggravated his pre-existing disc condition. Dr Hagan has not examined the applicant since 1996 and deferred to Dr Blum in respect of latter years. He considered that the applicant's pathology had been present since adolescence. He recalled the applicant describing "falls" from his motorbike, both at work and off the Kawasaki 600cc. He did not consider any particular incident to be causative of disc protrusion, but regarded the aggravation as resulting from riding the motorbike over some time.
Dr Hagan said that coughing can cause pain in an established disc or sometimes cause a disc to prolapse. He considered that in this case, the coughing was not causative of anything except the experience of pain.
dr blum
Dr Blum, Head of Neurosurgery at Prince of Wales hospital in New South Wales, prepared four reports dated 17 November 1995 (Exhibit R34), 25 March 1999 (Exhibit A3) and 11 May 2000 (Exhibit A5). In the report dated 25 March 1999 he stated:
"…
I note the calcification in his lumbar spine which I did note in November 1995…
He tells me now that the job he has is only a temporary one and from that point of view I think it should be more permanent if it does suit him. I do not think that he is capable of returning to his full postman duties.
I would disagree with Dr Carr that the results of his motorbike riding do now not cause him any incapacity. The twisting motion to place mail in letterboxes plus the jarring of the motorbike is certainly a major contributing factor to his current back problems.
…"
Dr Blum gave oral evidence that the applicant had residual back problems which had not been completely resolved by surgery and that no further surgery would help. On examination, he did not consider the applicant to be malingering, and considered the applicant to have movement to about one half of normal range for someone his age. He gave evidence that the video showed no apparent discomfort in carrying out a range of movements. He agreed that it may be a possibility that on examination the applicant had exaggerated the symptoms, given the video presentation of the applicant. He agreed that it is possible that the applicant had a juvenile protrusion, as the applicant also had a congenital defect in the same region of his back.
Dr Blum gave evidence that the leg pain must be considered separately from the back pain and that it is possible that the vibrations of a motorbike may make the applicant's back worse such that it might be a component in the applicant's deterioration. He considered that any of the motorbike falls would have added to the pre-existing sciatica, rather than having a causal connection. He agreed that coughing can cause pain for someone with a back problem like the applicant's, and that if the applicant had significant problems with coughing in the week or two preceding 28 October 1995, that the coughing may well be associated.
dr scott
Dr Scott, occupational physician, prepared a report dated 6 December 1995 (T20) in which he stated:
"…
I believe you have an intervertebral disc lesion at the L5/S1 level which is giving you your pain and other symptoms.
In my opinion the appropriate treatment would be surgery, but I would leave that up to Drs Blum and Newcombe to advise you.
It is also my opinion that your disability is causally related to your motor bike riding with Australia Post. That is to say it is either caused by, or aggravated by your work.
I would advise you to refrain from riding the motor bike – at least until you have had surgery (if in fact this is advised and performed). After that you would need to be reviewed.
…"
Dr Scott also prepared a further report dated 10 May 2000 (Exhibit A11). In oral evidence he told the Tribunal that he considered the applicant's condition to be causally related to his motor bike riding with the respondent. He said that working on the motor bike over the period of time that the applicant had, worsened the applicant's back condition. He considered the applicant's work to be a materially contributing factor to his ongoing symptomatology.
Dr Scott deferred to the radiological evidence suggesting that the problem may have first arisen in adolescence. He did not consider that any particular incident was necessary to cause the applicant's problems as it appeared to stem from a gradual onset, without necessarily being related to a specific incident of trauma. He agreed in cross-examination that there might be a connection between the other incidents involving motorbikes not during work time and the applicant's condition. He said that coughing could cause hip pain, and in light of the history of coughing prior to 28 September 1995, he would agree with Dr Chandran that one could not tell if the pain associated with 28 September 1995 was caused by the motorbike riding or with coughing.
Dr Scott, having seen the video did not change his opinion.
dr kelly
Dr Kelly, General Practitioner, first saw the applicant in 1992. He prepared a report dated 4 August 1996 (T30) in which he said:
"I agree with Dr Hagan in that the nature of Mr. McKinnon's work as a motor bike delivery officer aggravated a pre-existent condition.
…
It is my opinion that it would be a more reasonable interpretation to suggest that if Mr. McKinnon had not had his work related aggravation and subsequent surgery, that he in all probability would have been able to have continued working, and still be working full time.
If this is the case, then I would suggest that all Mr McKinnon's present disability and resultant reduced work hours and productivity results from his work related aggravation and the subsequent surgery.
…"
He prepared a subsequent undated report (Exhibit A6), in about April or May 2000 in which he said, in furtherance of his previous report,
"Mr McKinnon's presentations in this surgery have always been consistent with his stated symptomatology.
…
Indeed, as I have previously stated, I commend Mr McKinnon on living as normal a lifestyle as possible with his physical disability. It would be indeed unfair if he was to be penalised for achieving this, particularly when if he had not work so hard and so consistently to achieve his current status, then it would be probable that he would not be able to undertake even his current hours and duties.
I realise, and indeed support, that compensation insurers must always be on their guard against possible malingerers and others who try and use the system for their own personal gain.
At no time however have I ever considered Mr McKinnon to be a malingerer or to be using the system for his own personal gain.
…"
Dr Kelly gave oral evidence concerning his treatment of the applicant. He said that he did not consider that he had enough evidence to agree that the applicant had suffered from a disc protrusion as a juvenile, and said that it is not really possible to make such a judgment either way. He was not aware of the applicant's presentation with leg pain in 1992 or the details of a motorcycle accident in January 1993, and said that he would have liked to have been told about these things at the time. He agreed in cross examination that the presentation of the applicant to a doctor on 9 March 1995 following a motorcycle accident indicated nerve root irritation which could indicate a disc lesion, or be consistent with a degenerative condition. He did not disagree with Dr Chandran's assessment of the 28 September 1995 incident, in that it was not possible to tell whether the pain might have resulted from motorbike riding or coughing.
He said that the applicant appeared to move appropriately in the video and told the Tribunal that he had gained the impression that the applicant had some stiffness of movement in the video.
dr corry
Dr Corry, rheumatologist first saw the applicant at the request of Dr Kelly, and prepared three reports, dated 12 January 1998 (T43), 3 July 1998 (T47) and 1 May 2000 (Exhibit A9). In the second report dated 3 July 1998 (T47) he said:
"…
It is my conclusion that on the evidence that we have presently available it must be accepted that postal workers riding motorbikes over rough ground would have increased susceptibility for lower back pain and disc protrusion. In the absence of any other known risk factor Mr McKinnon's injury should be regarded as compensable...
…"
In the latter report dated 1 May 2000 (Exhibit A9) he said:
"…
In conclusion, I would not change my views on this matter and believe that Mr McKinnon's work as a postal delivery driver, riding motor bikes, was a significant risk factor for the causation of, or aggravation of a lumbo-sacral disc disruption. Video tape evidence does not indicate Mr McKinnon has any residual low back disability relating to light to medium type activities that he was seen performing on the video tape taken during February 2000.
…"
Dr Corry gave oral evidence that in relation to the 19 May 1992 motorcycle accident it appears unlikely, given the lapse of time between the accident and the reporting of back pain, that there is a causal link between the two. He testified that he could not disagree with Dr Price's conclusion as to a previous avulsion in adolescence existing in the October 1995 CT scans, because he had not seen the scans, but considered that such a conclusion was a reasonable opinion, providing a possible explanation for the applicant's back pathology at the time. He noted that there was a lack of calcification in the 1991 x-rays however, and that one would normally see such calcification if there was a pre-existing problem of any significance.
He gave evidence that in the video he had seen of the applicant, the applicant did not appear to have any persisting lower back disability. In relation to the various scientific studies referred to in relation to vibrations and back problems, he gave evidence that the available studies were not sound scientific proof but suggested the possibility of a connection between disc protrusion, degenerative change and motorbike riding. He agreed that the motorcycle accident on 22 January 1993 could be an aggravating factor, and that the evidence suggested that the applicant suffered aggravation and irritation of the nerve in March 1995. He considered that the bigger the gap between an accident and complaint of pain, the less likely that the two events were related. He did not disagree with Dr Chandran that coughing may be associated with the pain experienced by the applicant on 28 September 1995.
dr chen
Dr Chen, Consultant in Occupational Medicine prepared three reports dated 14 July 1997 (T37), 10 October 1997 (T41) and 15 December 1997 (T42). In the report dated 14 July 1997 (T37) she said:
"…
3)On the balance of probabilities, it is likely that he had pre-existing lumbo-sacral disc disease that was aggravated by manual handling and riding a motorcycle, as part of his employment. There was no specific incident that contributed to his condition, rather the condition has been aggravated by cumulative physical stress.
…"
Dr Chen testified that she would not disagree with the conclusion formed from the October 1995 CT scan that the appearance of the disc was most likely due to a previous evulsion of the posterior rim apotheoses in adolescence. She agreed that it was likely that the applicant suffered a disc protrusion during his juvenile years. She considered that the 22 January 1993 motorcycle accident and the 17 January 1995 motorcycle accident could have exacerbated the applicant's back condition. She agreed that in about March 1995 the applicant appeared to suffer from ongoing nerve root irritation and that the problems of 28 September 1995 could well be a continuation of the same problem.
Dr Chen gave evidence that coughing can lead to pain in the lower back, and in a susceptible disc, can actually trigger further protrusion. She told the Tribunal that her report of July 1997 was not prepared with the intention of addressing causation issues, and that she now considered that the falls from motorcycles, particularly in January 1993 and January 1995 were more likely to have caused changes in the applicant's condition than the gradual slow effect of vibration. She considered that the motorcycle accidents the applicant suffered completely displaced the role of the cumulative vibration from six years work at Australia Post.
dr van geldren
Dr van Gelderen, Consultant Surgeon, prepared three reports dated 30 November 1996 (T34), 2 August 1999 (Exhibit R9) and 24 February 2000 (Exhibit R10). In the first report he said:
"…
Clearly, Mr McKinnon, in his youth, experienced rupture of his L5/S1 intervertebral disc. He denies remembering any event producing such a problem.
The fact that calcification was evidence in 1995 indicates such an age to the problem that it was to be expected that symptoms commenced and I consider it totally fortuitous that his occupation at the time was that of a motorcycle rider. In other words, the role of the employment factors was entirely that of aggravation.
In my opinion the episode of illness - ?pneumonia – in early September 1995 was also relevant in the timing of the episode of aggravation which was the prelude to this claim.
Mr McKinnon's hobby of motorcycle riding certainly would not have been other than an aggravating activity.
…"
Dr van Gelderen gave oral evidence that "aggravating activity" in the 30 November 1996 report should be replaced with "irritating activity" as he considered any effects of such activity to only be temporary in nature. He said that the surgery the applicant had in February 1996 was required as a result of a natural progression of his underlying condition, and had no relationship to his work. On his viewing of the video, he considered the applicant to be quite comfortable and showing no evidence of lower back disability. In his opinion, on the basis of the radiological evidence, the applicant sustained an injury at least ten years prior to the surgery and that injury precipitated the problems the applicant has had. He considered Dr Chandran's opinion that the applicant suffered a disc protrusion as a juvenile was quite acceptable.
Dr van Gelderen considered that the applicant's Kawasaki 600cc would have been more likely to cause discomfort than the Australia Post motorcycle, given the difference in comfort and the speed at which it would have been ridden. He said that the applicant's work on a motorcycle may have temporarily irritated the applicant's back condition, but would not have aggravated the condition. He gave evidence that the falls the applicant had from motorcycles between 1992 and 1996 were not of great significance, in that the 1992 x-rays demonstrate that the problem was already present. In his opinion, whilst the motorcycle accidents would have caused some temporary irritation to the applicant's back, given he did not require significant time off work following the accidents, the accidents did not appear to be aggravating factors in relation to the underlying condition.
applicant's submissions
Mr Clark submitted on behalf of the applicant that the video evidence should be excluded from the Tribunal's consideration, citing Bessey and Australian Postal Corporation [2000] AATA 404, as the applicant had been denied procedural fairness and the conduct of the respondent had been adversarial and contrary to the fact finding role of the Tribunal.
Mr Clark submitted that the applicant suffered an aggravation of his back condition as a result of his employment. He submitted that the Tribunal should set aside the decision under review and, in substitution therefor, decide that the work related aggravation was and is continuing, such that the respondent remains liable in respect of the applicant's back condition as and from 9 July 1998. He submitted that if the applicant's back condition was pre-existing, it was asymptomatic prior to the applicant's employment with the respondent, and that it is only as and from 1992 that the applicant began to experience sporadic back pain.
Mr Clark submitted to the Tribunal that it is nonsensical to attribute possible problems to the applicant's 600cc Kawasaki motorcycle but not to his Australia Post motorcycle, and submitted that Drs Scott, Hagan and Blum were not effectively challenged or discredited by the respondent, such that their opinions should be preferred to Drs van Geldren, Maxwell and Chen.
Mr Clark submitted that the Tribunal should adopt Dr Corry's opinion with respect to the medical studies in evidence before the Tribunal, in that whilst they were not a double blind series of tests, they are the best evidence available. In relation to the coughing theory, he noted that Dr Kelly's evidence was that the applicant's coughing was minimal on 21 September 1995.
He submitted that the respondent in the event of the applicant's success should meet costs.
respondent's submissions
Mr Jones submitted on behalf of the respondent that the applicant had been accorded procedural fairness in relation to the video, and sought to distinguish Bessey, noting that it was currently under appeal.
Mr Jones submitted that the medical evidence clearly supported the proposition that the applicant suffers from a pre-existing back condition, which would have required surgery as a result of gradual degeneration, regardless of whether or not the applicant suffered from any trauma. In his submission, any other events that caused temporary irritation to the applicant's back were not work related. In particular, he referred to the applicant's pneumonia prior to 27 September 1995, and the resultant coughing, as being a more likely cause of pain on 27 September 1995.

Mr Jones submitted that the video evidence demonstrated that the applicant does not suffer from any pain in carrying out an ordinary range of movements, and he also referred to the applicant's scuba diving activities as being activity which would require weight bearing on his back. He submitted that the video displayed a range of movement at odds with the applicant's presentation to various doctors, indicating that the applicant has a greater range of movement than he has led his doctors to believe. He submitted that the medical studies in evidence before the Tribunal are not to the point of this case, that the Tribunal should not prefer Dr Corry's opinion as to causation as it is not supported by available medical evidence and that Dr Corry was "loose" in his use of medical studies. He submitted that Dr Scott's opinion was speculative, and that the preferred medical evidence supported the proposition that the applicant suffered from a pre-existing condition, which may or may not have been made worse by a number of non-work related accidents.
Mr Jones submitted that the applicant suffered from a pre-existing disease, and that the applicant has not demonstrated a causal connection between the September 1995 incident and the applicant's employment, nor has a connection been established on the balance of probabilities between the applicant's work and any problems the applicant has had, which, in the respondent's submission, are not ongoing.
Mr Jones and Mr Clark agreed with a proposition put by the Deputy President that in the event of the applicant's success, given the history of the matter, costs should be taxed by the Deputy President.
tribunal's findings, reasons and decision
The issue before the Tribunal is as to whether as and from 9 July 1998 there is any on-going liability for the respondent to pay compensation in respect of the applicant's back condition.
The applicant claims that he has a reduced capacity for paid employment as a result of a back injury arising out of or in the course of his employment or an aggravation of a back injury (whether or not that injury arose out of, or in the course of his employment) being an aggravation that arose out of or in the course of that employment. The respondent claims on the other hand that there has not been any aggravation of the applicant's back condition brought about by work related events.
The Tribunal now turns to the oral evidence given by the applicant. The Tribunal had the advantage of closely listening to and observing the applicant in the giving of his testimony. He was an unimpressive witness. The Tribunal gained the distinct impression that he gave his evidence in such a way as to maximise his chances of linking to the workplace his back condition and symptoms as portrayed by him without regard for the whole picture. He was selective in the portrayal of his symptomatology and from time to time defensive when being cross-examined. The Tribunal gained the distinct impression that he tailored his evidence to exclude and play down events outside the workplace which might be causally relevant from the consideration of the Tribunal and which might throw a different light on his claim that the workplace was the cause of or material contributor to his back problems. Aspects of the evidence given by the applicant when recalled were particularly unimpressive. This evidence related in the main to the sequelae following a work related motor bike accident which the applicant had on 19 May 1992. The Tribunal found the applicant's evidence which was suggestive of injury to his back as a consequence of this accident to be unconvincing, to say the least. He played down the significance, or otherwise of tandem skydiving in 1995 by stating that he didn't think he had a bad back at that point in time and justifying that assertion with evidence that he had "these things coming on every three to six months or so – six or nine months" (Transcript p327). This evidence is in stark contrast with his earlier evidence that he had a constant ache in his lower back from 1993 to the time of giving his evidence and which, in turn, was somewhat at odds with denying in evidence that he'd had a stiff sore back for some years. The Tribunal formed the distinct impression that the applicant's evidence relating to his symptomatology was not of the standard which could be relied upon. It was uncertain and unreliable.
Despite the reservations held by the Tribunal as to the applicant's portrayal of his symptomatology, it is clear from the medical evidence, bearing in mind the condition of his back, that the applicant would have, from time to time, experienced low back pain and discomfort when riding his work motor bike. And so the question which needs to be addressed is as to whether the riding of his work motor bike in the course of his employment had any compensable effect upon the applicant for the purposes of the Act. In this regard the Tribunal turns firstly to whether any injury as defined by the Act was caused by the riding of the work motor bike.
On any view of the medical evidence it is clear that the riding of the bike caused the applicant pain and discomfort from time to time and it follows that he suffered injury on those occasions. The next question is as to whether those injuries, or any of them, had temporary or permanent consequences for the applicant. Did the riding of the work motor bike on any occasion, or cumulatively, bring about any permanent symptoms or future permanent susceptibility to symptoms? Having regard to these questions, the Tribunal now turns to a consideration of the medical evidence.
The Tribunal has given consideration to all of the documentary medical evidence which, in the main, consisted of reports and notes, together with the oral evidence given by a number of medical practitioners.
The starting point, about which the Tribunal is in no doubt, is that prior to any employment with the respondent, the applicant had a back condition. This is clearly evidenced in the amended radiological report of Dr Price dated 5/10/95 (Exhibit R12), combined with the evidence of Dr Chandran who operated on the applicant's lower back in February 1996. The above report of Dr Price reads as follows
"CT SCAN LUMBAR SPINE – AMENDED REPORT
Disc orientated plain scans were taken from L2 to S1.
At the L2/3 and L3/4 levels the discs appear normal with intact margins and no neural compromise.
At L4/5 the disc again appears normal. Slight thickening of the ligamenta flava is noted bilaterally. There is again no evidence of neural compromise.
At L5/S1 there is an approximately 15mm diameter soft tissue density with dense rim calcification or ossification projecting into the left lateral recess from the posterior aspect of the superior end plate of S1 (images 36 and 37). The left S1 root is markedly displaced posteriorly with expected irritation. Both L5 and the right S1 roots pass freely. The appearances are most likely due to a previous avulsion of the posterior rim apophysis in adolescence. Calcification around a chronic sequestrated disc fragment or even a sessile osteochondroma are possibilities but less likely.
CONCLUSION
The appearance is consistent with a previous posterior avulsion of the rim apophysis at S1 with an accompanying large central and left paracentral disc protrusion at L5/S1 with left S1 root compromise.
…"

It is clear from Dr Chandran's evidence regarding the abovementioned pathology that it developed when he was "a juvenile or an adolescent" (Transcript p212) and preceded his employment with the respondent. This evidence was supported by the majority of the medical witnesses, namely, Drs. Hagan, Blum, Scott, Chen, Corry and van Gelderen.
The Tribunal now turns to consider what effect (if any) the riding by the applicant of his work motor bike had on the applicant. In this regard it is clear from the medical evidence that the applicant would have (bearing in mind the condition of his back) suffered pain and/or discomfort from time to time as a consequence of riding his work motor bike. That is what the applicant claimed in his evidence and the Tribunal is prepared to accept that that may well have been so from time to time, despite the significant reservations the Tribunal had about the quality of his testimony.
The next question which arises is as to whether the applicant's riding of the work motor bike on any one occasion or occasions, or cumulatively, caused any aggravation of the applicant's back condition, and the Tribunal would indicate that it is mindful, when addressing this question, of the views expressed by Gyles J in Australian Postal Corporation v Bessey Federal Court 20 March 2001. In this regard the Tribunal would indicate that it was impressed by the evidence given by Drs. van Gelderen, Maxwell and Carr. They were frank, objective and thorough in the giving of their testimony on this topic. The Tribunal finds that from time to time the applicant suffered back pain and/or discomfort (including pain down his left leg) as a consequence of riding his work motor bike. The Tribunal further finds that these abovementioned symptoms came about as a consequence of this bike riding, temporarily aggravating the applicant's back condition. This temporary aggravation, wherever it occurred, would have lasted minutes, hours, days, weeks, but no more than 1 or 2 months. It may be more appropriate to use the term "irritation" than "aggravation" as Dr van Gelderen pointed out in his evidence (Transcript p397). What clearly emerges from this evidence is that there was no permanent worsening of the applicant's back condition because of his riding of a work motor bike and the Tribunal so finds. What is also apparent is that the applicant's back condition, which had its origins in his youth, was deteriorating with the passage of time such that it inevitably led to the necessity of the operation performed by Dr Chandran in February 1996.
The Tribunal would indicate that it is prepared to accept the remainder of the medical evidence only in so far as it is not inconsistent with the evidence of Drs. van Gelderen, Maxwell and Carr regarding the topics of temporary aggravation and progression of the applicant's back condition. The weight of the overall medical evidence suggests, and the Tribunal so finds, that despite significant improvement in the applicant's back condition because of the February 1996 operation, it may not be advisable for the applicant to be riding work motor bikes in the course of his employment.
The Tribunal returns now to the evidence concerning any specific significant incident involving the applicant and his work motor bike. As the weight of medical evidence suggests, it would be possible, depending upon the factual circumstances surrounding a particular incident, for the applicant's back condition to be permanently worsened - for a particular incident to either cause the permanent worsening of the applicant's back condition or materially contribute to a permanent worsening of it. The applicant in the giving of his evidence attempted to portray a work motor bike incident on 19 May 1992 as having significance in the above regard. The Tribunal has already indicated that it has no confidence in the applicant's testimony relevant to the above, and rejects any suggestions of a like nature. The Tribunal is not satisfied on the balance of probabilities that there was any work related incident which aggravated (permanently) the applicant's back condition or materially contributed to such an aggravation. That other events outside the work place may have done so is of course possible, but once again, bearing in mind the Tribunal's views as to the unreliability of the applicant's testimony, it is not able to be satisfied that other events outside the workplace did, in fact, aggravate (permanently) or materially contribute to such aggravation.
And so at the end of the day the Tribunal is satisfied that the applicant's riding of a work motor bike did from time to time cause temporary aggravation of his back condition such that he experienced back pain and/or discomfort and pain down his left leg. This may have led to the applicant being incapacitated for limited periods of time with no ongoing sequelae or aggravation of his back condition. In making the above findings the Tribunal would indicate that in its opinion the video evidence was of no meaningful assistance. It was inconclusive and open to conjecture as is quite often the case with evidence of this nature. This is amply illustrated by the various views of the medical witnesses who observed the video. Bearing this in mind, the Tribunal would indicate that it has, accordingly, not taken it into account when considering the medical evidence and when formulating its own views concerning the relevant issues.
The decision of the Tribunal is that the decision under review is affirmed.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns, Air Marshal I.B. Gration, Member, Dr M.D. Miller, Member
Signed:         .......................(Signed)........................
   D M Walkley (Personal Assistant)
Date/s of Hearing  8-9 March 2000, 4-6 September 2000
Date of Decision  9 April 2001
Counsel for the Applicant        Mr Clark
Solicitor for the Applicant         Pamela Coward & Associates
Counsel for the Respondent    Mr Jones
Solicitor for the Respondent    Forners