Miller and Australian Postal Corporation

[2011] AATA 253

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 253

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1033

GENERAL ADMINSITRATIVE DIVISION		)
Re		Glen Miller

Applicant

And Australian Postal Corporation

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Dr John Campbell, Member

Date15 April 2011

PlaceSydney

Decision The decision under review is affirmed.

.................[sgd].............................

Senior Member

CATCHWORDS

COMPENSATION – postal worker – back injury – degenerative condition – whether applicant suffered frank injuries – whether nature and conditions of employment caused or aggravated in a significant degree the applicant’s lower back condition – Tribunal not satisfied on balance of probabilities of causal connection between employment and lower back condition – decisions  under review affirmed

Safety, Rehabilitation and Compensation Act 1998, ss 14, 6, 19, 24, 27

Comcare v Sahu-Khan (2007) 156 FRC 536

Australian Postal Corporation v Bessey [2001] FCA 266

REASONS FOR DECISION

15 April 2011	Senior Member Jill Toohey Dr John Campbell, Member
Background

1.      Mr Glen Miller has worked for Australia Post since 1974, when he was 15 years old.  

2.      He has had a number of injuries at work over the years.  He has also suffered from back pain which has become worse over time.  By March 2009, the pain was so bad he had to stop work.  In June 2009, he underwent surgery.  In April 2010, he was able to return to work full time but with restrictions. 

3.      Mr Miller contends that his duties as a postal delivery officer over the years have caused an injury to his lumbar spine; alternatively that the nature and conditions of his employment have caused, or aggravated, an underlying degenerative condition in his lumbar spine.  He contends the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1998 (the Act) for his injury and that he is entitled to compensation under sub-sections 16, 19, 24 and 27 of the Act.

4.      The respondent denies liability.  It contends that Mr Miller suffers from an underlying degenerative lumbar disc disease which has not been caused, or aggravated, by his employment.

The issues

5.      It is common ground that Mr Miller has a degenerative disease of the discs in his lumbar spine.  It is agreed that, if there is a causal connection between his back condition and his employment, he has a whole person impairment of 13% for the purposes of the Comcare Guide to the Assessment of the Degree of Permanent Impairment.

6.      We have to determine whether Mr Miller’s back condition has been caused, or aggravated, by his work duties. 

7.      Parties agree that, if the Tribunal finds the respondent liable under s 14 of the Act, the matter should be remitted for assessment under sub-sections 16, 19, 24 and 27.

Mr Miller’s evidence

Duties

8.      There is no dispute of any substance as to the facts.  Mr Miller impressed as a witness who gave his evidence frankly and without exaggeration.  His memory for dates was not always good but, in our view, this did not detract from the credibility of his evidence. 

9.      Mr Miller is 52 and married.  He is 180 cm tall and weighs approximately 100 kilograms.  He agrees that he is quite powerfully built and solid, though not overweight.

10.     For the first two or three years of his employment with Australia Post, Mr Miller delivered telegrams by bicycle.  In about 1977, he obtained a position as a postal delivery officer at the Newcastle Post Office.  He would spend the first few hours sorting mail before heading out to deliver it on foot around the CBD which was quite hilly.  From about 1984, he walked a new beat at Bar Beach, outside Newcastle, delivering mail to residences and some businesses.  The terrain in the area was very hilly and some areas were not paved. 

11.     Mr Miller carried the mail on his left shoulder in bag measuring approximately 50cm by 30cm by 50cm.  The deliveries were generally weighed as they arrived, and the delivery officers often weighed the bags themselves, and Mr Miller estimates the shoulder bag regularly weighed more than 35 kilograms when he set out.  He would have to put it down and pick it up repeatedly throughout the beat.  It would be refilled up to three times each day and more so at busy periods such as Christmas.

12.     In 1995, Mr Miller was transferred to the office at Hamilton, outside Newcastle, when Australia Post moved its office there.  At the same time it introduced 110cc Honda motor cycles.  Mr Miller continued to work the Bar Beach beat, but used a motorcycle. 

13.     Mr Miller would sort the mail at the Hamilton office at the start of his shift and then head out with the mail packed into pannier bags on the side of his motorcycle.  He estimates they weighed approximately 16 kilograms each.  Mail that could not fit into the pannier bags was delivered by a contractor to depots along the beat where the postal delivery officer could collect them once the pannier mail was delivered.  Mr Miller estimates the depot bags measured approximately 40 x 30 x 20 cms and weighed about 16 kilograms.

14.     Mr Miller estimates that he would get on and off his motor cycle on average 60 times in an average four- or five-hour beat.  He delivered to 1150 “points”, or addresses of which approximately 750 point were in units.  Mail that could not fit in a letter box had to be delivered to the front door and he had to demount at any point where he could not reach from the motor cycle to put mail in the letterbox, for example at blocks of units or where mail boxes were inside the building

15.     Mr Miller’s duties at the Newcastle and Hamilton post offices were similar, with some modifications over time as work practices changed.  He generally started work at 6am bringing in mail which had been delivered by truck and sorting it.  Standard-sized letters were in smaller grey trays and larger mail, such as magazines, was in larger, red tubs which Mr Miller estimates measured approximately 40 x 50 x 50 cms, and weighed 25-30 kilograms.  On average, there would be two or three red tubs per beat, stacked on the floor on top of each other according to beats. 

16.     Mr Miller would pick the tubs up from the floor, place them on a trolley and wheel them to a station where they were weighed to estimate how long the delivery would take.  He estimates the trolley weighed on average 90 kilograms.  From there, he would wheel the trolley to pigeon holes for sorting. 

17.     Up until about 1990, mail was sorted into pigeon holes according to beats and then sorted again into streets and house numbers.  The pigeon holes ranged from approximately knee height to head height.  In about 1990, Australia Post introduced “V-sorters”, a kind of three-sided frame at which the postal deliver officer stood and which effectively combined the tasks of sorting into beats and then into streets and house numbers. 

18.     From about 2005, Mr Miller no longer had to lift the red tubs on to the trolley; they were already loaded for him and he would wheel the trolley to where the mail was sorted, and someone else placed the smaller, grey tubs on the floor beside where he stood to sort them.

Back problems

19.     Mr Miller has had a number of incidents of back pain at work over the years.  He could not always recall the dates and the sequence of the various incidents but he agreed that records in his doctors’ clinical notes and in the respondent’s sick leave records for each incident would be correct.  The evidence about some of these events is confusing and, unfortunately, his general practitioner’s clinical notes only date from 2004. 

20.     In April 1977, Mr Miller was hit by a car while out delivering telegrams.  He broke a knee and lost his front teeth and was off work for about 18 months.  There is no suggestion that this injury had any bearing on his back condition. 

21.     In August 1990, Mr Miller was delivering mail when he slipped on wet grass and hurt his neck and back.  He had no time off.

22.     On 13 September 1991, Mr Miller noticed a sharp pain in his lower right back while pushing a trolley uphill.  According to an incident report that he completed several days later, he was able to continue with his duties but the pain returned and became worse later that day. 

23.     A medical certificate dated 13 September 1991 shows that Mr Miller’s doctor certified him unfit for duties from 13 to 18 September 1991.  Mr Miller has no recollection of having time off on those dates and the respondent’s records do not record any sick leave on those dates.  We do not accept the submission that we should accept the medical certificate as evidence that Mr Miller in fact had five days off.  For the reasons we give below, even if he did, it would not alter our conclusion.

24.     On one occasion, Mr Miller stepped backwards and tripped over a mailbag while sorting mail and injured his lower right back.  He had no time off work.  There is some confusion in the evidence about the date of this incident.  In a written statement, Mr Miller placed it as happening “on a date in 1991”.  Other documents before the Tribunal suggest that he lodged a claim for compensation in relation to tripping over a mail bag in December 1992.  These documents are inconclusive but we accept that such an incident occurred around this time, probably in late 1992.  It appears that Mr Miller had a short period of long service leave after this incident which helped, although he still had a sore back. 

25.     The respondent’s sick leave records show that Mr Miler has three days off in early February 1993 for “muscle strain (R) buttock”.

26.     In November 1995, Mr Miller injured his head and neck when he hit his head on a branch while delivering mail and was knocked from his motor cycle.  He was off work for two days with a soft tissue injury.  In December 1997, he bent down to lift a tub and felt sharp pain in his left lower back as he lifted it.  He was off work for two days and had physiotherapy.

27.     From the late 1990s, Mr Miller began to have persistent pain in his back, mostly when getting on and off his motor bike and while lifting the tubs from ground to waist height.  The pain was worse at the end of each day.

28.     In November 2001, Mr Miller felt pain in his lower right back while v-sorting.  He had some physiotherapy but did not have time off.  He reported the incident and lodged a claim for compensation which was refused.  (There is no information before the Tribunal as to why).  He did not pursue this claim because he had not suffered any substantial financial loss as a result.

29.     From about April 2002, Mr Miller’s back pain increased.  Its intensity varied but it was always there and was worse at the end of the day.  In April 2002, he noticed lower back pain while v-sorting and when lifting his motorcycle onto its stand to refuel.  He saw his general practitioner of ten years, Dr Nico De Bruyn, the same day.  He had no time off. 

30.     Mr Miller continued to see Dr De Bruyn or another doctor at the same practice if he was not available.  In January 2005, he saw Dr De Bruyn complaining of cramps in the back of his left leg back.  He had physiotherapy and tried to manage the pain himself but, by September 2006, he was “really struggling”.

31.     In September 2006, Mr Miller says he was lifting the corner of a tub to test its weight when he felt pain in the right side of his back and, for the first time, pain radiating through his right buttock and into his right leg.  Dr De Bruyn’s notes show that he saw Mr Miller on 19 September and 25 September 2006.  On 19 September, his notes show “Back pain [5 months] ago, required [5 days] to settle. Reccurrence [2 days] ago in the evening. Mild lower lumbar radiating to right.” On 26 September 2006, he recorded “Low back ache without rad to legs but” (sic).  There is no reference to work on either date.

32.     A CT scan arranged by Dr De Bruyn in November 2006 showed:

[D]iffuse lower lumbar degenerative change with disc bulges at L4/5 and L5/S1 possibly causing irritation of the L5 and S1 nerve roots in the lateral recesses  [and] lumbar facet joint degenerative changes and mild S1 joint degenerative changes.

33.     Over the period from September 2006 to March 2007, Mr Miller had a number of days off work with worsening pain radiating from his lower back into the right buttock and right posterior thigh. 

34.     In April 2007, Dr De Bruyn referred Mr Miller to Professor Youssef Ghabrial, orthopaedic and spinal surgeon.  He saw Prof Ghabrial’s colleague, Dr McGuirk, and had an MRI scan in May 2007 which showed “central disc profusion with extrusion at the L5/S1 segment compressing the neural elements” and “some doubt about the integrity of the L4/5 disc.”

35.     An epidural injection in May 2007 gave Mr Miler considerable relief but he was off work for approximately six weeks to June 2007.  By the end of 2008, the pain was getting worse again.  On 17 December 2008, Dr De Bruyn recorded that Mr Miller’s pain had flared up; there was no injury or incident, it was “just getting worse”.  Five days later, it had “settled a bit”. 

36.     On 30 March 2009, Dr De Bruyn recorded that Mr Miller had a “recurrence/aggravation after bushwalking and driving/sitting coming home”.  In oral evidence, Mr Miller explained that he had been bushwalking for about one and a half hours and then driven home for about four hours.

37.     Mr Miller stopped work on 30 March 2009.  In April 2009, the pain was worsening and he had paraesthesia and numbness in the right calf and foot.  A second epidural injection in April 2009, and a caudal block in May 2009, provided no relief. 

38.     In June 2009 Prof Ghabrial performed a laminectomy and foraminotomy of the L4/5 and L5/S1 discs.  The pain in Mr Miller’s lower limb resolved after the surgery but he still had numbness and paraesthesia in the right foot and calf and, three weeks after the surgery, he was having severe enough pain in his right buttock that he had to attend the emergency department of the John Hunter Hospital.  He had a further MRI in March 2010.

39.     Mr Miller returned to work in April 2010 on restricted duties.  He had wanted to return earlier but no suitable duties were available.  On the advice of his doctors, he no longer rides the motor cycle but delivers mail on foot, and he is subject to a weight restriction of 12.5 kilograms which he keeps to 10 kilograms.

40.     Since the surgery, Mr Miller’s symptoms have eased, but not disappeared, and he still has pain in his right leg every day.  Prof Ghabrial has given him cortisone injections to help ease the pain.  He still cannot pull on his socks or tie his shoe laces, he finds it hard to bend down to pick up his grandchildren, and he cannot sit for long periods.  Otherwise, he manages most activities without difficulty.  

41.     On 14 September 2009, Mr Miller lodged an incident report form in relation to injuries to his right lower back, buttock, sciatic nerve, right leg, foot and toes,.  He stated that he believed his injury was caused by “the nature and conditions of my employment as a PDO eg. lifting heavy equipment, bending and twisting, lifting red tubs from floors and grey trays from floor, carrying leather shoulder bag for long periods, riding C/T 100m/c”.  He stated that he noticed the symptoms on 30 March 2009; the date and time of initial treatment was 16 April 2002.

42.     Although he was not asked about this in evidence, we take it that, in citing 30 March 2009 as the date of injury, Mr Miller was doing no more than identify a date for the purposes of the form and he identified the last date he was at work and experiencing pain.  However, as we set out below, it is relevant that nothing in the clinical notes for 30 March 2009 mentions an incident at work; to the contrary, they identify a non-work related incident as the cause of the aggravation of back pain.

43.     Mr Miller agreed in cross-examination that, up until to April 2002, he had experienced a number of injuries and incidents of back pain, some to his lower left back and some to his lower right back, most of which required no time off work and, at most, two days.  He agreed that Dr De Bruyn’s notes show no complaint of any specific incidents at work or elsewhere other than that he complained of pain on 30 March 2009 after bushwalking and driving a long way.  He agreed that his symptoms had flared from time to time without any apparent change in activities.

Dr De Bruyn’s clinical notes

44.     Dr De Bruyn’s clinical notes from March 2000 are before the Tribunal.  Some are typewritten.  The handwritten notes are difficult to decipher in parts.  Mr Miller appears to have seen Dr De Bruyn approximately 78 times up until June 2010.  There appear to be references to symptoms of back pain on at least 28 occasions.

45.     A note of mild right lumbar back pain appears to refer to the incident in April 2002 when Mr Miller felt pain while at the v-sorter and when lifting the motor cycle onto its stand.  

46.     In January 2005, Dr De Bruyn recorded that Mr Miller complained of cramps, mainly in the back and left leg and calves, possibly after stretching.  From April 2006, there are notes of back pain and, from November 2006, pain radiating down his right leg. 

47.     There are several references in the notes to Mr Miller’s work.  For instance, on 20 December 2006, Dr De Bruyn recorded that he was “unable to work”.  On 29 March 2007, he “still needs time off work till next week”.  On 5 April 2007, they had a “long discussion re possibility not being able to return to normal duties”.  On 9 May 2007, he noted “can’t sit/work etc and cert issued till after seeing McGuirk”. 

48.     However, other than what appears to be a note from April 2002, there is no reference in the clinical notes to any incident at work.  The only reference to any specific incident at all is on 30 March 2009 when Mr Miller complained of pain after bushwalking and driving.  While the notes indicate that his back condition affected his work, there is nothing in them to suggest any casual connection.

Evidence of Dr Bodel

49.     Dr James Bodel is an orthopaedic surgeon.  He saw Mr Miller on 22 July 2010 for examination, at the request of his solicitors.  He has provided a written report with a supplementary report, and gave oral evidence.

50.     Dr Bodel diagnoses degenerative disc disease with pathology at L4/5 and L5/S1 levels.  He gave evidence that some 50% of people in their mid-40s have degenerative disc disease.  He agreed that fluctuating symptoms are consistent with the disease. 

51.     Dr Bodel took a history from Mr Miller that he first became aware of back pain in November 2001.  Counsel for the respondent recounted for him the various incidents prior to that and asked is he thought them significant.  In the absence of x-rays or other results of examinations, Dr Bodel thought it would depend on how long Mr Miller was incapacitated on each occasion; if the pain resolved quickly, it was likely to be a soft tissue injury of no consequence; if he was never pain free, or if referred pain spread, that would suggest some structural damage. 

52.     In Dr Bodel’s view, there is a direct causal link between what he observed of Mr Miller’s symptoms and the nature and conditions of his work in general and the various incidents that had occurred at work.  He gave evidence that the incident in September 2006 when Mr Miller was lifting tubs at work likely to be a significant injury which caused the external rupture of a degenerative disc which was in evidence on the scans. 

53.     Dr Bodel thought an incident at work, followed by CT and MRI scans within months, was strongly suggestive that a significant injury occurred in September 2006.  It was possible, but unusual, for such a change to occur without a specific precipitating event, and he had never seen it happen.  A major event was not necessary; it could be simply bending down. 

54.     However, Dr Bodel agreed that a temporal nexus between an event and changed symptomatology is relevant and that he would expect radiculopathy below the knee if the event had been significant.  He agreed that, according to the clinical notes, Mr Miller did not show such signs until January 2007.

55.     Dr Bodel was in the unfortunate position of not having seen the clinical notes before giving evidence.  When he did, he agreed that they made no mention of Mr Miller’s work in September 2006.  He agreed they showed a general pattern of flares of pain which settled, without apparent connection to work duties.  However, he still thought the nature and conditions of his employment over many years, combined with specific incidents, at least in part contributed to his condition.

56.     Under cross-examination, Dr Bodel conceded that he made assumptions about Mr Miller’s duties, although he disagreed they were mere speculation because of his general familiarity with postal officers’ duties.  He conceded he did not ask Mr Miller about the size, weight or number of tubs he had to lift, although he thought their weight not particularly significant.  He agreed that he has not seen a person work at a v-sorter and he did not take a history from Mr Miller of the bending, twisting and reaching he had to do.

57.     Dr Bodel did not think getting on and off the motor cycle repeatedly, even 60 times a day, would have any significant effect on Mr Miller’s back but he thought bouncing around over rough surfaces, and trying to control the bike with heavy bags, would be significant.  However, he conceded that Mr Miller did not tell him he had to do either.

Evidence of Dr McGill

58.     Dr Neil McGill is a consultant rheumatologist.  He saw Mr Miller for examination on 24 May 2010 at the request of the respondent.  He has provided two written reports and gave oral evidence.

59.     Consistent with Dr Bodel’s diagnosis, Dr McGill diagnoses Mr Miller as suffering from degenerative lumbar disc disease leading to protrusion of L5/S1 and right S1 radiculopathy.  It is neither caused, nor aggravated by, his underlying back problems.

60.     Dr McGill gave evidence that people in their 40s and 50s commonly present with degenerative disc disease which may have been present for some years and may or may not have been symptomatic. 

61.     In Dr McGill’s opinion, Mr Miller’s symptoms of pain in the buttock and pain radiating down into the leg, calf and feet, increasing in severity over time, fluctuating symptoms apparently unrelated to any specific incidents, and periods of improvement, are entirely consistent with degenerative lumbar disc disease.  He did not think it significant that, twice, Mr Miller had a recurrence of pain shortly after returning to work from leave.

62.     Dr McGill gave evidence that the disc protrusion at two levels, shown in the MRI scans, is consistent with degenerative disc disease.  He thought the temporary improvement experienced after one epidural injection consistent with easing nerve root compression.  Similarly, improvement after surgery was consistent with easing of the nerve root compression caused by the degenerative disc disease.

63.     Dr McGill did not think any of Mr Miller’s duties likely to aggravate his underlying condition.  The sort of activities that might affect it would be repeated extreme heavy lifting.  He did not think lifting two or three red tubs a day would meet the description of repeated heavy lifting.  He gave evidence that he is familiar with the V-sorter and, while it involves some degree of bending, twisting and reaching, none of those activities was to the extreme extent that might aggravate an underlying condition.  

64.     Dr McGill did not take a history from Mr Miller of problems while lifting the motor cycle onto its stand.  He told the Tribunal he could not exclude the possibility that it could aggravate the underlying condition but he thought it unlikely.  He acknowledged some uncertainty about this because he had limited information about the weight and effort involved but, even then, he thought it unlikely unless Mr Miller had repeatedly said the motor cycle caused him problems, and the clinical notes recorded no such complaints.

65.     Dr McGill did not think any of the incidents referred to by Mr Miller had any probable causal connection to his employment other than a possible increase in his symptoms at the time and for a brief period afterwards.  He thought Mr Miller’s rapid recovery on each occasion made it unlikely he suffered a substantial disc injury or any change to disc pathology on any of those occasions; had an incident been of the kind that might have affected the underlying pathology, Mr Miller would have needed time off work.  Nor did he think it significant that Mr Miller had recurrences of pain once or twice after returning to work.

Dr Maxwell’s evidence

66.     Dr David Maxwell is an orthopaedic and spinal surgeon.  He saw Mr Miller for examination on 16 November 2009 at the request of the respondent.  He has provided a written report and gave oral evidence.

67.     Dr Maxwell made a diagnosis, similar to the other doctors, of persisting S1 radiculopathy secondary to lateral recess stenosis and a disc protrusion of the L5/S1 disc to the right.  In his view, Mr Miller’s condition is due to pre-existing constitutional factors including a congenitally narrow spinal canal and enlarged facet joints. 

68.     Dr Maxwell did not think the disc protrusion significant. He gave evidence that a protrusion can be acute, following an event, or chronic, meaning it occurs over time without any apparent cause.  He did not think any incident recounted by Mr Miller significant, and he could find nothing in the clinical notes suggesting a link between Mr Miller’s radiating pain and his duties.  He thought the notes indicated sciatic pain occurring spontaneously and settling within a short time, consistent with the diagnosis of degenerative disc disease.

69.     Dr Maxwell agreed that the MRIs taken in 2007 and 2009 indicated a change in the underlying pathology because, in 2009, an asymmetrical protrusion to the right was evident which had not been there previously.  However, nothing in an MRI can explain the cause of protrusion which he thought indicated only that the underlying pathology of the disease was progressing, unrelated to any external event. 

70.     Dr Maxwell did not think anything in the nature and conditions of Mr Miller’s employment significant.  He agreed that v-sorting involves a degree of bending, twisting and reaching.  However, he told the Tribunal that while earlier studies suggested a link between such activity and degenerative disc disease, current studies do not support that view, and disc protrusions are as common in sedentary workers as those performing heavy work.

Prof Ghabrial’s reports

71.     Two reports from Prof Ghabrial dated 23 April 2010 and 13 July 2010 are in evidence.  He states that Mr Miller sustained an injury to his lower back initially in April 2002, that he continued with back pain since then which became more severe after the incident in September 2006 when he was lifting tubs of mail.

72.     Prof Ghabrial concludes that, from the history given by Mr Miller, he believes his employment was a substantial contributing factor to his present clinical features, disabilities and impairment.

Consideration

73.     Section 5A of the Act provides that injury means:

(a)      a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

74.     Section 5A of the Act provides that disease means:

(a)      an ailment suffered by an employee; or

(b)       an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

75.     In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, the following matters may be taken into account:

(a)      the duration of the employment;
           (b)      the nature of, and particular tasks involved in, the employment;
           (c)       any predisposition of the employee to the ailment or aggravation;
           (d)      any activities of the employee not related to the employment;
           (e)      any other matters affecting the employee's health.

76.     The term significant degree in the Act means a degree that is substantially more than material: s 5B(3).  Prior to 13 April 2007, the Act required that an employee’s duties contribute to an aggravation in a material degree only.  The incidents relied on by Mr Miller occurred before and after the 2007 amendment.  However, for the reasons set out below, we are not satisfied, on the balance of probabilities, that either test is met.

77.     That Mr Miller suffers from degenerative disc disease is not in dispute.  Although his claim has been put in several ways, we understand it to be that:

(i)the effect of a number of frank injuries was to cause his degenerative disc disease; or

(ii)the nature and conditions of his employment caused his degenerative disc disease; or

(iii)the nature and conditions of his employment aggravated his degenerative disc disease.

78.     The word material “imposes ‘an evaluative threshold’ below which a causal connection can be disregarded”.  The essence of its meaning is captured in the Shorter Oxford English Dictionary as “in a material degree; substantially; considerably”: Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FRC 536 at [12], [13] per Finn J.

79.     Something more than a temporal connection between symptoms and work duties is necessary in order to establish the necessary causal connection: Australian Postal Corporation v Bessey [2001] FCA 266.

80.     The doctors were all of the opinion that degenerative disc disease is present in large numbers of people and more so as they age.  They agreed that flares of pain without any apparent cause, which settle fairly quickly, are consistent with degenerative disc disease and that the nature of the disease is to progressively worsen with age.  Further, that it would be significant if Mr Miller had to have time off work after an incident or if is symptoms continued.  In our view, that evidence points strongly to Mr Miller’s degenerative disc disease as the cause of his back pain and related pain.

81.     We were invited to find that Mr Miller would have told Dr De Bruyn about incidents at work or related his pain to work.  However, even allowing for the brevity of his doctors’ clinical notes, it is reasonable to assume, if Mr Miller did relate specific incidents or link his back pain to his duties, that he would have mentioned it and it would have been recorded at least sometimes.  However, other than (possibly) in April 2002, there is nothing in the notes to that effect. 

82.     The evidence is clear that, on most occasions when Mr Miller experienced painful symptoms which he related to an incident at work, he had no time off work.  At most, in November 1995, he was off for two days.  Even if we accept that he had five days off work in September 1991 – and the evidence does not support that finding – the medical evidence supports the conclusion that it would have been of little if any significance because he resumed work and the symptoms abated.  We accept Dr McGill’s view that, in the absence of specific incidents, even recurrences of pain within days of returning to work are more likely part of the naturally fluctuating symptoms of degenerative disc disease.

83.     Only Dr Bodel thought the nature and conditions of Mr Miller’s duties likely to cause or aggravate his underlying disc pathology.  However, his view was not based on evidence of the actual duties undertaken by Mr Miller.  We note that Prof Ghabrial related his pain to his work but he does not give any reasons; he was not called to explain his opinion and we place no weight on it.

84.     In our view, Dr Bodel’s evidence is outweighed by that of Drs McGill and Maxwell.  Dr McGill in particular gave a careful assessment of each incident cited by Mr Miller and each of the duties he undertook.  We note that the one activity that Dr Bodel discounted as significant was getting on and off and lifting the motor cycle repeatedly. In contrast, Dr McGill was uncertain about its possible effects in the absence of more information about the weight of the bike and the force required but, even then, he thought it unlikely to be significant.   

85.     We find that Mr Miller suffers from degenerative disc disease of his lumbar spine.  We are satisfied that the symptoms of his disease have been aggravated from time to time by his duties but we are not satisfied, on the balance of probabilities, that his employment has caused, or changed, the underlying pathology in his spine.   

Conclusion

86.     There is no doubt that Mr Miller has suffered a great deal of pain related to his back over the years and continues to do so.  There is no doubt that it has been very debilitating at times.  He has not sought to exaggerate it or avoid work because of it.  However, we cannot be satisfied, on the evidence before us, that his employment has caused, or aggravated, his underlying degenerative disease.

87.     We affirm the decisions under review.

I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr John Campbell, Member

Signed:         .............................[sgd].................................................
           Diana Weston, Associate

Date/s of Hearing  5, 6 and 7 April 2011
Date of Decision  15 April 2011
Counsel for the Applicant  Ms E Wood
Solicitor for the Applicant  Mr P Rogers, MRM Lawyers
Counsel for the Respondent                      Mr J Jones

Representative for the Respondent          Ms D Hatton, Australian Postal Corporation