Monti and Australian Postal Corporation

[2008] AATA 878

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 878

ADMINISTRATIVE APPEALS TRIBUNAL      )

)2007/2690       

GENERAL ADMINISTRATIVE   DIVISION		)
Re		JOSEPH MONTI

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr J Campbell, Member

Date2 October 2008

PlaceSydney

Decision

The Tribunal affirms the decision under review, noting that Mr Monti has no present entitlement to compensation in relation to the claimed injury of 3 November 2006.

Pursuant to section 67(8) of the Safety, Rehabilitation and  Compensation Act 1988, costs may not be awarded.

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

Ms G Ettinger  Senior Member

CATCHWORDS

Compensation – Applicant unloading trucks with mail – experienced numbness or pins and needles in three toes of right foot – attended general practitioner days later sciatica and  pain in right calf – reported back pain to general practitioner approximately a month later - MRI shows disc protrusion at L4/5 on left side – nature and conditions of employment not considered, not previously reviewed by the Respondent  – decision under review affirmed.

Safety Rehabilitation and Compensation Act 1988   ss  4, 14

Casarotto v Australian Postal Commission (1989) 17 ALD 321

Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310

Comcare v Sahu-Khan (2007) 156 FCR 536

REASONS FOR DECISION

2 October 2008

Ms G Ettinger, Senior Member

  Dr J Campbell, Member

BACKGROUND

1.      Mr Joseph Monti, the Applicant in these proceedings who is 49 years of age, has been employed by Australia Post since 1981. He has been a bull ring coordinator since late 2004. This involves generally unloading vans of mail and sorting the mail into containers known as ULDs, sometimes with the assistance of drivers.

2.      Mr Monti told us that on 3 November 2006, during his shift, he felt what he first described as numbness, and later as pins and needles, in the three middle toes of his right foot. On the next day, he developed pain in his right thigh, and leg, and approximately a month later, reported to his general practitioner that he suffered some back pain. Meanwhile he has consulted his general practitioner on 7 November 2006, and subsequently.

3.      We note that Mr Monti had a previous workers compensation claim for an episode of lower back pain on the right side in 2000, which was accepted. We understand Mr Monti made a full recovery and returned to his normal duties. He also had a claim for a hernia repair which was accepted in 1995/6.  Mr Monti has also had claims for anxiety and stress which have not been accepted by his employer.

4.      In connection with the present claim made on 15 November 2006, we had before us numerous medical reports and reports of radiological examinations including a CT scan, and two MRIs. Unfortunately they indicate that if there is an L4/5 disc prolapse, it is on the left side, and that is not at all likely to cause symptoms on the right side, which is where Mr Monti reports pain.  Dr Mahony who examined the Applicant, told us that it is possible for a left sided disc prolapse to cause pain on the right side, but we are mindful of more convincing medical evidence about the physiological distribution of signs and symptoms, which did not accord with Dr Mahony’s views. We preferred the medical evidence of Dr Maxwell who held that it was a medical impossibility for a disc protrusion on the left side (if indeed Mr Monti has one at all), to cause symptoms on the right. We note also that Dr Maxwell opined that Mr Monti has a Tarsal Tunnel Syndrome, while Dr Schnier, the radiologist who conducted the MRI, opined that it was possible Mr Monti has mild Tarsal Tunnel Syndrome affecting either the posterior tibial nerve or its medial plantar branch. Dr Maxwell considered that Mr Monti was fit for work.

5.      We were satisfied that Mr Monti is a witness of truth, and that notwithstanding some difficulties with recollection of dates, he has told us what occurred to him from 3 November 2006 to the best of his ability.

6.      However we cannot accept that the symptoms which Mr Monti suffered on 3 November 2006 accord with him having suffered a disc prolapse at L4/5 on that day, or that his right sided symptoms arise from any lesion he may have on the left side.

7.      Our reasons follow.

ISSUES BEFORE THE TRIBUNAL

8.      We have to decide whether Mr Monti has suffered an injury, disease or aggravation pursuant to section 4 of the Safety Rehabilitation and Compensation Act 1988, (“the Act”), and whether the Respondent is accordingly liable to pay compensation to him.

LEGISLATIVE FRAMEWORK

9.      The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4 and 14. 

10.     Section 4 of the Act defines “disease” and “injury”  as follows:

“4.  (1)  In this Act, unless the contrary intention appears:

...

“disease” means:

(a)       any ailment suffered by an employee; or

(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;

...

“injury” means:

(a)       a disease suffered by an employee; or

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

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

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

...”

11.     Section 14 of the Act provides as follows:

“14  Compensation for injuries

(1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2)  Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

(3)  Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.”

12.     There is well established authority both State and Federal, which deals with injury and disease, with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases. Casarotto v Australian Postal Commission (1989) 17 ALD 321 deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. In Comcare v Sahu-Khan (2007) 156 FCR 536, the test for material contribution of the workplace was explored, and the current principles established.

WHETHER MR MONTI HAS SUFFERED AN INJURY, DISEASE OR AGGRAVATION PURSUANT TO SECTION 4 OF THE ACT

13.     Mr Monti told us that on Friday 3 November 2006 while he was at work doing his job in the bull ring, the name given to the loading dock, at approximately 3 pm, he felt numbness on the ball of his right foot, and in the three middle toes of his right foot.  Mr Monti said that he went to the lunch room and took off his shoes and socks to inspect his feet, reporting that they appeared normal in colour, but felt cold, and he felt a pins and needles sensation. He then finished his shift and did not think it was of concern.

14.     Mr Monti’s evidence was that the work in the bull ring involved heavy physical work including lifting, bending and twisting. Mr Monti acknowledged that he had undergone training regarding the lifting, and that after his episode of back strain in 2000, he was careful about lifting. He explained the procedures involved, including the use of fork lifts which assisted with the ULDs (Exhibit R5), and sorting of parcels, and told us that the drivers sometimes assisted with unloading the trucks.

15.     Mr Monti was due to go off on two weeks leave on that day. He said that the numbness continued throughout the weekend, and by Sunday, two days later, he experienced pain in the back of his right leg, sharp jabs of pain near the calf and thigh on the outside, quite different from the pins and needles sensation. The pain disappeared after the weekend, but the numbness persisted, and Mr Monti consulted his general practitioner, Dr Singh, on 7 November 2006.  He was referred for X-rays and a CT scan, and on 9 November 2006, referred for physiotherapy. We noted that the referral from Dr Singh indicated that Mr Monti suffered a “herniated L4-5 disc – sciatica – needs urgent physiotherapy” (T46). When he gave his oral evidence, Mr Monti said that he had physiotherapy five or six times, and that it eased the pain in his right leg, but that he was never without the numbness, and physiotherapy did not help much. He said that he had also attended at a chiropractor about three times in 2007.  He said that since 3 November 2006, he has constantly been on analgesic medication.

16.     In reply to the Tribunal’s questioning a little later in the hearing, Mr Monti told us that he mainly has pins and needles in his toes, sometimes daily, sometimes only once a week, and that that is more significant that the numbness he first reported. He also said that what was keeping him from working was he was not fit for lifting, and sometimes, he has pain down his right leg once or twice a day. We also noted his statement dated 7 December 2006 at T50 in which he mentioned numbness, but not pins and needles.

17.     Mr Monti said that he also had pain in his right lower back in 2006, but did not tell his doctor about it until a couple of weeks after the events of 3 November 2006. He said the pain in his back was not there all the time, but came and went when he was walking or standing.

18.     Mr Monti also told us that he contacted his manager about it.

19.     The results of the imaging on 7 November 2006 (T44), were as follows:

“X-RAY RIGHT FOOT

There is no sign of arthritis in the foot. A prominent beak is noted at the dorsal aspect of the distal end of the talus. This might cause impingement.

X-RAY LUMBOSACRAL SPINE

There are mild spondylitic changes seen about the disc margins at each level. The L5/S1 disc height appears a little diminished. There is no sign of facet joint arthritis and both sacroiliac joints appear normal.

CT SCAN LUMBAR SPINE

Herniation of the L4/5 disc on the left just beyond the foramen which may compromise the left L4 nerve root. No nerve root compromise was seen on the right side.”

20.     On 10 November 2006, and on several occasions thereafter, Dr Derek Lee gave Mr Monti a “Fitness for Duty Assessment” on behalf of Australia Post, which provided for restrictions on hours of work, and lifting and bending (PT45).  Mr Monti continued to consult Dr Singh, and had periods during which he was certified unfit for work. Mr Monti told us that he had time off work at the end of 2006, and that in January 2007, although still employed by Australia Post, he had no work and no sick leave entitlements left.

21.     Mr Monti made a claim for compensation on 15 November 2006 (T43). He wrote as follows in regard to the injury: “Disc in lower back pushing on nerve to right leg. Numbness in toes on right foot. Pain down back of right leg.”  There was no mention of pins and needles.

22.     On 23 November 2006 the Respondent issued a determination denying liability under section 14 of the Act for disc in lower back (T47).

23.     On 9 March 2007 the Respondent issued a decision that revoked the decision dated 23 November 2006 finding liability to pay compensation under section 14 for “aggravation of degenerative lower back disease” (T56).

24.     The Respondent then had Dr D Maxwell, who is an orthopaedic and spinal surgeon, examine the Applicant on 15 March 2007. Mr Monti mentioned both pins and needles and numbness in his right foot to Dr Maxwell. In Dr Maxwell’s report of 15 March 2007, (T58), he opined:

“I cannot find any abnormality on examining Mr Monti’s lower back apart from some stiffness. There is no evidence of a radiculopathy. I consider he has a separate condition which is unrelated to his back which is mild tarsal tunnel syndrome due to compression of the posterior tibial nerve as it passes under the medial ankle retinaculum. … There is no evidence that he sustained an injury to his back and I certainly don’t consider there is any evidence that he sustained a disc protrusion on (sic) the course of his work. I would deny that he in fact has had a disc protrusion and the appearance on the CT scan merely represents a pre-existing normal variant due to the rotation of the vertebral body.” (Tribunal’s emphasis - last sentence amended by Dr Maxwell’s report of 12 November 2007, Exhibit R3).

…

There is no evidence that he has a disc protrusion at the L4/5 level.  It should be noted that the alleged disc protrusion is on the left.

…

I consider Mr Monti’s prognosis is excellent. I consider much of his symptom complex has been complicated by anxiety. …”

25.     Relying on Dr Maxwell’s report, the Respondent issued a decision on 11 April 2007 that affirmed the decision dated 23 November 2006 finding the Respondent is not liable pursuant to section 14 of the Act to pay compensation in respect of an injury to Mr Monti’s lumbar spine (T61).

26.     We had two further reports of Dr Maxwell before us, Exhibit R3 dated 12 November 2007, and Exhibit R4, dated 2 June 2008.

27.     In his report dated 12 November 2007, Dr D Maxwell explained by way of clarification that:

“… tarsal tunnel syndrome is a condition in which the posterior tibial nerve becomes entrapped under the medial reticulum or as it passes through the 2 heads of abductor hallucis brevis. This condition will cause numbness in the toes and the sole of the foot and pain in the foot. Although it appeared to commence while working, I consider essentially this condition is constitutional and any symptoms now are related to the underlying constitutional condition.”

28.     Dr Maxwell also restated the history given to him by Mr Monti, being that Mr Monti first noticed pins and needles in the middle three toes of his right foot. In his oral evidence Dr Maxwell explained that pins and needles were a graduation of decreased sensation, that is more minor than numbness. In his written report Dr Maxwell opined:

“This would be a most unusual presentation of a disc protrusion and nerve root irritation. Disc protrusions always cause pain radiating all the way down the leg in the affected dermatome. Numbness in the middle three toes of his right foot suggests a local peripheral problem. It should be noted he had no back pain at the time his foot became numb. …”

29.     Dr Maxwell also said that shooting pain which Mr Monti described in his right leg was most unusual, and not a pain associated with radiculopathy. He also said that Mr Monti had not given him a history of shooting pain.

30.     Dr Maxwell was also asked to review Dr Mahony’s report, in which he noted Dr Mahony suggested that when Mr Monti first developed the numbness in his toes he also complained of lower back pain. Dr Maxwell emphasised that that was not the history he had been given, that is Mr Monti had not reported any back pain occurring until later.  We are mindful that the history Dr Mahony recorded regarding back pain did not accord with the records before us which indicate Mr Monti reported back pain to his general practitioner some weeks after 3 November 2006.

31.     In his report at Exhibit R4, dated 2 June 2008, and in his oral evidence, Dr Maxwell restated his diagnosis, being mild right Tarsal Tunnel Syndrome, a constitutional condition, adding that the condition came on spontaneously, and is not attributable to Mr Monti’s employment.

32.     When asked if Mr Monti was fit for work, Dr Maxwell said that he had not seen the MRI, but that based on the CT scan, there was no recent disc protrusion. Besides, he opined that even if the MRI purported to show a disc protrusion on the left at L4/5, that may not be accurate. However he was very adamant, contrary to Dr Mahony, in stating that a disc protrusion on the left side could not cause problems on the person’s right side. He said it was not a medical possibility. He also said that thigh pain did not arise as a result of a protruding disc, adding that many people with disc protrusions suffered no pain at all, but that if the protrusion presses on a nerve, the person would get radicular pain.

33.     Dr Singh, Mr Monti’s general practitioner, referred him to Dr G Mahony, an orthopaedic surgeon, on 16 May 2007. Dr Mahony’s reports of 22 May 2007 (T63), 21 September 2007, (Exhibit A6), and 5 March 2008 (Exhibit A7), were before the Tribunal. He also gave oral evidence.

34.     In his first report, (T63), Dr Mahony recorded a history of Mr Monti noticing low back “pain radiating to his calves, the right more so than the left” on 3 November 2006. Dr Mahony also recorded that Mr Monti then noticed numbness of the second, third and fourth toes of his right foot on the same day. Dr Mahony’s opinion was that Mr Monti appeared to have developed symptoms referable to a low lumbar back strain in association with early degenerate change with nerve root irritation affecting the lower limb.

35.     Dr Mahony referred Mr Monti for an MRI, the report being at Exhibit A5 dated 16 November 2007. The result was:

“Annular tears are identified within the L4/5 and L5/S1 discs. A L4/5 a left lateral and far lateral disc protrusion is present which extends to abut and displace the exiting left L4 nerve root.”

36.      In his next report before the Tribunal dated 21 September 2007, Dr Mahony repeated the history he had taken for the report of 22 May 2007 (T63), and then added a comment with regard to the CT Scan of the lumbar spine. Although the report read: “Herniation of the L4/5 disc on the left just beyond the foramen which may compromise the left L4 nerve root. No nerve root compromise was seen on the right side”, Dr Mahony corrected it to the extent he said it should read: “this may affect the left L5 nerve root”.

37.     Dr Mahony’s opinion in his second report confirmed his first report, that Mr Monti appeared to have developed symptoms referable to a low lumbar back strain in association with early degenerate change, with nerve root irritation affecting the right lower limb. Dr Mahony added for purposes of the second report, “and there is evidence of a discogenic lesion at the L4/5 level with possible irritation of what I would consider to be the left L5 nerve root.” In his report of 5 March 2008, Dr Mahony repeated the opinion given in his previous report, as stated in the paragraph directly preceding this one.

38.     In his oral evidence Dr Mahony, referring to the fact Mr Monti complained of symptoms in his right leg, whereas the radiological investigations showed a disc protrusion on the left side, expressed the view that it was credible that a disc pushing across the spinal canal could cause symptoms in the opposite leg.  Dr Mahony did not agree with Dr Maxwell that Mr Monti has a Tarsal Tunnel Syndrome.  Dr Mahony explained his view that with a disc protrusion at L4/L5, there is pressure on the nerve of the foot and that can cause irritation, numbness and pins and needles to the foot and the toes.  He also opined that pain could occur in the thigh due to pressure within the disc. He felt that Mr Monti has true sciatica due to his L4/L5 nerve root irritation. He also said that a person does not always get classic symptoms and signs.

39.     We were satisfied that Dr Mahony in recording that Mr Monti had suffered back pain on 3 November 2006 had been given, or had at least reported an incorrect history. When told that Mr Monti had reported that leg pain commenced two days after the initial numbness appeared on 3 November 2006, Dr Mahony said that the fact that the leg pain appeared later was plausible, and did not make a difference to his opinion.

40.     When asked whether Mr Monti was fit for work, Dr Mahony replied that it depended for what he was qualified.  We did not find that a helpful reply.

41.     In his report at Exhibit R2, dated 19 March 2008, Dr Schnier reported on the MRI of Mr Monti’s lumbar spine taken on 15 November 2007. His opinion was that Mr Monti suffers multi-level spondylotic disease. He stated that the most significant abnormality appears to be in the L4/L5 left posterior lateral disc protrusion. He opined that it was likely the lumbar spondylotic disease pre-existed the work injury, but that it was possible the work injury caused the L4/L5 disc protrusion or aggravated the disc protrusion had it existed.  He added that it was most unlikely that the disc protrusion at L4/L5 is the cause of the numbness in the toes of the right foot as the disc protrusion is to the left of midline. He added that it was possible Mr Monti may have mild Tarsal Tunnel Syndrome affecting either the posterior tibial nerve or its medial plantar branch.

42.     Mr Monti underwent a second MRI of the lumbar spine on 15 November 2007. Dr Green reported as her conclusion: “Annular tears are identified within the L4/5 and L5/S1 discs. At L4/5 a left lateral and far lateral disc protrusion is present which extends to abut and displace the exiting left L4 nerve root.”

43.     We were not able to accept that Dr Mahony could change the findings of the radiologist. The results of the investigations are accepted as reported. 

CONCLUSIONS

44.     In coming to a conclusion, we note that Mr Monti had a previous claim in 2000 accepted for back strain, and that the Respondent accepted liability for a hernia repair in 1995/6.

45.     We were satisfied that Mr Monti is a witness of truth, and that notwithstanding some difficulties with recollections, he has told us what occurred to him from 3 November 2006 to the best of his ability. 

46.     We were satisfied from the evidence that Mr Monti worked in his usual job in the bull ring on 3 November 2006, and that when he had finished his job of unloading the trucks at 3 pm, but before he finished his shift, he felt numbness in three toes of his right foot, and felt that the foot was cold. On inspecting his foot, he found the colour to be normal. Mr Monti continued with his work and completed the shift. There was no evidence or claim that he had lifted any items which he did not normally lift, or that there was any other unusual activity he undertook on that day.

47.     Mr Harris who appeared for Mr Monti urged upon us that we could be satisfied that Mr Monti had worked for Australia Post doing work which involved repetitive bending and twisting for a long time.  He submitted that something had happened to cause Mr Monti to first suffer back pain on 3 November 2006, followed by shooting pain in the right leg. Mr Harris emphasised the radiological investigations showed a disc protrusion had occurred at L4/5, and that Mr Monti could no longer do the job he had been doing. Mr Harris submitted that Drs Singh, Derek Lee and Edmund Lee and the Workplace Assessment at T48 had all found there was something wrong with Mr Monti’s back. He submitted that the Applicant relies on Dr Mahony, and rejected the opinion of Dr Maxwell that Mr Monti suffers Tarsal Tunnel Syndrome because that does not explain the pain in his right thigh and leg.  Mr Harris urged us to fine that Mr Monti had injured his back on 3 November 2006.

48.     We were also mindful of the Respondent’s submissions which were in summary that Mr Monti reported numbness in the toes of his right foot and pain in the right thigh to his general practitioner on 7 November 2006, but did not report any back pain to a doctor until approximately 20 November 2006. Ms Henderson submitted that the Respondent relied on the radiological investigations which showed a leftsided herniation of the L4/5 while Mr Monti reported pain on the right side. She submitted that there was no evidence to indicate Mr Monti had done anything unusual in his work on 3 November 2006 by way of bending or twisting, or that the herniation had occurred on that day. She submitted that the symptoms reported by Mr Monti were not supported by pathology, or the opinion of Dr Maxwell. Any injury, if indeed any had been incurred on that day, had solely a temporal connection with work, but no causative connection, she submitted.

49.     We noted that when Mr Monti attended at his general practitioner on 7 November 2006, he reported the numbness in his toes he had experienced on 3 November 2006, and pain in the back of his right thigh (Exhibit A2). He did not report back pain to any doctor until 20 November 2006. The pain on the right side in Mr Monti’s lower back could not be explained by the investigations undertaken, that is the CT and MRI taken on 7 November 2006. The investigations showed herniation of the L4/5 disc on the left just beyond the foramen which the report stated may compromise the left L4 nerve root. The report also indicated there was no nerve root compromise seen on the right side.  We were not satisfied from any indication from any of the investigations taken at that time or later (MRIs on 15 November 2007), when the L4/5 herniation may have occurred, and could not be satisfied it had occurred in association with anything which may have taken place on 3 November 2006. 

50.     We noted that Mr Monti lodged a claim form on 15 November 2006 claiming, “Disc in lower back pushing on nerve to right leg. Numbness in toes on right foot. Pain down back of right leg.”  There was no mention of pins and needles or back pain. 

51.     We also noted his statement dated 7 December 2006 at T50, in which he mentioned numbness but not pins and needles, and made no  mention of back pain.

52.     In his oral evidence, Mr Monti first mentioned numbness in his right foot. However, in reply to the Tribunal’s questioning a little later during the hearing, he told us that he mainly has pins and needles in his toes, sometimes daily, sometimes only once a week, and that that is more significant that the numbness he reported.

53.     We preferred Dr Maxwell’s opinions to those of Dr Mahony’s because firstly Dr Mahony appears to have relied on an incorrect history of the incident claimed by Mr Monti. Dr Mahony had recorded in the history he took that Mr Monti suffered back pain on 3 November 2006 when he also felt the numbness in his foot. That is clearly incorrect. Further, Dr Mahony would have us believe that a disc protrusion on the left side as shown on the MRI could cause the symptoms of which Mr Monti complains which are on the right side. That is just anatomically impossible, and was confirmed by Dr Maxwell when he gave his evidence. We are also mindful of the evidence of Dr Maxwell and Dr Schnier that there are people, who when they undergo an MRI, show disc protrusions, but in fact display no symptoms.

54.     We were not able to give much weight to the report of Dr P Conrad, a surgeon who examined Mr Monti and produced a report dated 30 January 2008 which is Exhibit A4. We did not give weight to Dr Conrad’s opinion as he did not appear to have noticed when reporting that the L4/5 disc protrusion to which he referred was on the left side while Mr Monti’s symptoms related to the right side.

55.     The first back pain reported by Mr Monti was recorded by Dr Edmund Lee on 20 November 2006 (Exhibit A3), and we are not able to associate it with anything which may have occurred on 3 November 2006 during Mr Monti’s working hours. We could not be satisfied that Mr Monti suffered any compensable injury or aggravation pursuant to section 4 of the Act on 3 November 2006. Accordingly his claim cannot be sustained.

56.     We concluded that whilst there may be a temporal connection in Mr Monti developing numbness in his right foot during his work hours on 3 November 2006, we cannot be satisfied that this extends it to a causal connection with his work within the terms of the legislation, that is that he suffered an ailment or an aggravation that was contributed to in a material degree by his employment or that he suffered either a physical or mental arising out of, or in the course of, his employment (Comcare v Sahu-Khan (2007) 156 FCR 536).

DECISION

57.     The Tribunal affirms the decision under review, noting that Mr Monti has no present entitlement to compensation in relation to the claimed injury of 3 November 2006.

58. Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 costs may not be awarded.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G Ettinger, Senior Member and Dr J Campbell, Member.

Signed:         ………………[sgd]………………………………

Associate

Dates of Hearing  2 and 3 July 2008

Date of Decision  2 October 2008

Counsel for the Applicant                Mr J Harris

Solicitor for the Applicant                 Mr H Princi, Bolzan & Princi Solicitors &   Attorneys

Counsel for the Respondent           Ms R Henderson

Solicitor for the Respondent            Ms C Tirado, Litigation Section, Australian   Postal Corporation