Osorio and Australian Postal Corporation
[2005] AATA 336
•15 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 336
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/393
GENERAL ADMINISTRATIVE DIVISION ) N2004/1010
Re LUIS OSORIO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date15 April 2005
PlaceSydney
Decision The decision under review is affirmed. [Sgd] Dr J D Campbell
Member
CATCHWORDS
WORKERS’ COMPENSATION - issue of injury at work - issue of ongoing incapacity – issue
of other work activities - permanent impairment – the decision under review is affirmed.
Safety, Rehabilitation and Compensation Act 1988 - sections 4, 14, 16, 19, 24, 27
REASONS FOR DECISION
15 April 2005 Dr J D Campbell, Member 1. Mr Osorio (“the Applicant”) seeks review of two reconsideration decisions of Australian Postal Corporation (“the Respondent”) namely:
(a) In matter N2004/393 the Respondent in a determination dated 5 March 2004 affirmed the determination dated 6 February 2004 which stated that Australia Post was not liable to pay compensation to Mr Osorio for any injury to his back pursuant to sections 14, 16, 19, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
(b) In matter N2004/1010 the Respondent in a determination dated 29 July 2004 affirmed the decision of a delegate dated 23 July 2004 which stated:
(i) Any injury sustained on 23 February 1996 or by the nature and conditions of employment prior to 23 February 1996 was in the form of a muscle strain or a temporary aggravation of a pre-existing spinal condition and came to an end by 5 March 1996.
(ii) The Applicant is entitled to compensation under sections 16 and 19 from 23 February 1996 to 5 March 1996.
(iii) As any injury ended by 5 March 1996, there is no entitlement to compensation under any section of the Act, including sections 16, 19, 24 and 27 in respect of injury after 5 March 1996.
background
2. Mr Osorio was born on 3 January 1956 in Macau. He is married with two children. He completed schooling in Macau at age 19, and worked in Macau as a policeman and security guard, before migrating to Australia in 1983. In Australia he worked initially in a restaurant prior to joining Australia Post as a full-time postal sorting officer on 20 March 1986. He finished working with Australia Post in September 1996.
3. On 8 March 1996 Mr Osorio completed and submitted an incident report (T3) in which he detailed muscular pain in his lower back had arisen at 5.30pm on 23 February 1996 when:
“Heavy lifting of mailbags from the floor or from customer car booths was a regular job I do, but during that two weeks (approx. 12/2/96 – 23/2/96) was particularly busy. Normally we get, from large companies, an average of 20-30 mailbags each weighs about 12-18 kilos, and we have to lift them, many times from the floor to provided ULD’s and these had strained my lower back.”
4. On 16 April 1996 Mr Osorio completed a claim for compensation (T3, p11) in which he stated that the injury happened at 5.30pm on 23 February 1996, and that he first sought medical treatment on 24 February 1996. Mr Osorio detailed his injury as:
“back pain; lower back, traction spurs in lumbar spine and disc space narrowing…”
with the injury being described as arising from:
“Big volumes of mailbags lodge from various companies are normally dropped on the floor at the loading dock and then manually transported to ULD’s (up to 16 kg each, sometimes over). It was a particularly heavy month”.
5. On 13 March 1996, Mr David Wyllie, a Postal Sorting Officer who worked with Mr Osorio detailed a statement in which he states:
“…On the morning of 23rd February, 1996, Luis mentioned to me that his back had been stiff and sore all morning.” (T3, p14)
6. On 26 February 1996 Dr O’Driscoll, a Consultant Radiologist, issued two reports concerning an X-ray of Mr Osorio’s lumbosacral spine (T4 and Exhibit R4). Both reports detail that:
“There is minor to moderate disc space narrowing at the lumbosacral disc. Disc space narrowing to a similar degree at L2/3 level. Sacralisation of L5 is noted. Anterior traction spurs are noted at all levels in the lumbar spine as well as loss of the normal lumbar lordosis.”
7. On 26 February 1996, Dr King, a General Practitioner at the Neutral Bay Medical Centre certified that Mr Osorio had back pain and he should be fit to return to work on 4 March 1996 (T5). Further memos were issued by a doctor from that centre on 11 May 1996 (describes the X-ray report) and 10 August 1996 (low back pain since 8 August 1996 with unfitness to work until 15 August 1996 (T5). A series of medical certificates were issued by Dr Dzu Nguyen, a General Practitioner at Botany describing Mr Osorio as unfit for work commencing 16 August 1996 and ending 13 September 1996 because of back pain, laryngitis and benign, positional vertigo, back pain being present in all certificates (T5).
8. On 23 May 1996 Australia Post requested a more detailed statement advising the work-related causes from Mr Osorio (T6). On 29 May 1996 Mr Osorio responded with a detailed and slightly expanded statement in which he described how he had to transfer the bags over a one metre high ULD (T7). Australia Post accepted the Applicant’s claim for a lumbar disc injury and paid him compensation for a closed period of incapacity for one week (26 February to 3 March 1996) (T9).
9. On 27 November 1998 Dr Kuan, a Consultant Radiologist reported on an X-ray on the lumbar spine as demonstrating a transitional sacralised vertebra at the lumbo-sacral junction, preserved disc spaces, small osteophytes throughout the lumbar spine and facet joint sclerosis at L5-S1 (T11).
10. On 19 April 1999, Dr Roebuck, a Consultant Orthopaedic Surgeon describes Mr Osorio as telling him:
“…After a heavy day in the mail room lifting heavy mail bags on 23rd February, 1996 after working for Australia Post for about 10 years Mr Osorio noticed that at the end of the day back pain extending into his right leg to just below the knee. This was so severe that he had to give up work for Australia Post and has been unable to return to work since that day. At the time he noticed a cough increase and he stopped work and started more sedentary occupation in a sales position about 2 years ago.”
Dr Roebuck described his then present complaint as:
“He still has pain in his back and down his right leg as far as the knee if he indulges in any heavy or repetitive back work.”
Dr Roebuck concluded that Mr Osorio had 15 per cent whole person impairment pursuant to Table 9.6 of the Comcare assessment tables because of a loss of half the normal range of movement of his lumbar spine. Dr Roebuck concluded that the impairment arose from the nature and conditions of his work. (T12)
11. In a Compensation Claim for Permanent Impairment dated 21 December 1999 (T15), Mr Osorio stated that:
“Since 23 February 1996 I have developed persistent low back pain with radiation to my right leg. I do not lift any heavy objects and restrict myself from bending constantly. I have little flexibility.”
12. In a report dated 23 November 2000 (T23), Dr David Maxwell, a Consultant Orthopaedic Surgeon, details the Applicant as stating that:
“On 23/2/96, he had a heavy volume of mail and he said two to three out of ten of these were over 16kg. That evening when he got home he felt pain all over his body including his arms. His back became stiff and the next day he had difficulty getting out of bed… He states he rested for approximately one week but he said that his back gradually became more painful and extended into his right leg. He returned to work after his annual leave and three months long service leave.”
Dr Maxwell records his current symptomatology in the following terms:
“…He says that he experienced approximately five attacks per year of low back pain mostly in the humid weather and his back becomes stiff for a couple of days. He states that he rests and the pain eases…”
Dr Maxwell concluded that:
“Mr Osorio suffers from mild facet joint sprain on occasions. It does appear that he has sprained his back in the course of his work but I consider that he has recovered from the effects of this sprain.”
Dr Maxwell also concluded that Mr Osorio had no permanent impairment resulting from any work related injury pursuant to Table 9.6.
13. On 18 December 2000, the Respondent determined that the Applicant had no entitlement to payment in respect of permanent impairment (T24).
14. On 17 May 2002 Dr Murray Maxwell, a Consultant Orthopaedic Surgeon, detailed Mr Osorio’s clinical history of back pain commencing when he had to lift heavy bags of mail at Australia Post in 1996. On returning to work after holidays to the same job, the pain started to go to the right leg and progressed to the knee. Dr Maxwell described his current symptoms:
“His back remains painful. He cannot stand for long. He says his back feels stiff. He gets bad attacks and can scarcely get in and out of the car. The pain never goes below his knees.
The severe attacks may last for a week or so then ease off. It is becoming severe more often – once or twice a month.” (T25)
Dr Maxwell noted that Mr Osorio stated that he never had back trouble before the incident in 1996. Dr Maxwell concluded that:
“ Mr Osorio is suffering from lumbar intervertebral disc lesion at one and probably two levels.
It is causing backache and stiffness and sciatica in both legs.
It is quite consistent with his history of lifting heavy mail bags… (T25)”
15. In a further claim for permanent impairment dated 16 February 2003 (T26) Mr Osorio states:
“From 23 February 1996, I have developed persistent low back pain with radiation to both my legs… Recently the frequency of pain has become more severe and I tend to experience this pain in my back and both legs about once or twice a month.”
This claim was not further progressed at 5 May 2003 (T28).
16. On 29 July 2003, Mr Osorio lodged a further claim for compensation in which he described the incident:
“On 23/2/96 I was required to do a lot of heavy lifting of bags of mail weighing approximately 20kg each. When I arrived home that evening I experienced a stiff back and the following day had difficulty getting out of bed.” (T30)
In a supplementary statement (T30, p87/88), Mr Osorio notes that since 1993 he would occasionally feel his back becoming tired at the end of a day’s work.
“On 23 February 1996 at 5.30pm I experienced discomfort and stiffness in my back and decided to tell my fellow worker David Wyllie about the feeling in my back. When I arrived home my back was very stiff and painful… I confirm that when I first started with Australia Post, until I became senior postal sorting officer, my back was fine”.
It was the duties performed in the three years before 1996 which Mr Osorio believes gave rise to his back pain.
17. On 29 July 2003 (T31) the Applicant requested a reconsideration of the determination of the initial determination of 18 December 2000 (T24) and a further claim for compensation payments in respect of weekly payments between March 1996 and 31 July 1998, as indicated in correspondence of 9 April 2003 (T27).
18. On 8 August 2003 (T32) the Respondent declined to make a determination on the nature and conditions claim, that no reconsideration had been sought concerning the determination on permanent impairment dated 18 December 2000 and no medical evidence during the period had been provided to support a claim for weekly incapacity payments.
19. The Applicant was seen by Dr Chan, a Consultant Physician in Rehabilitation Medicine on 30 October 2003 (T33), with Dr Chan detailing a brief history including chronic back pain since 1991 and examination, before concluding that Mr Osorio has “chronic low back pain, with a need to exclude S1 nerve root compression” (CT scan or MRI examination of benefit).
20. On 15 January 2004 Mr Osorio completed a further claim for compensation (T34). In an accompanying statement, Mr Osorio detailed the circumstances of his employment from 1993, and the particulars of the events on 23 February 1996, including stating that he told David Wyllie, his fellow worker, of his back discomfort and stiffness at 5.30pm on that day. This claim for compensation was submitted by his solicitors on 2 February 2004 and a determination denying liability pursuant to sections 14, 16, 19, 24 and 27 of the Act issued by the Respondent on 6 February 2004 (T36). This decision was affirmed on reconsideration by the Respondent on 5 March 2004.
21. Dr David Maxwell re-examined the Applicant on 17 June 2004 and in his report of the same day detailed that Mr Osorio believed he returned to work at Australia Post before resigning in September 1996; that after leaving Australia Post he ran a restaurant with his brother-in-law at Neutral Bay for two years; that he then opened another restaurant at Botany, which lasted a year. He then worked for Chubb Security until 2002 where he worked full-time. He left because they were unhappy with his performance and he was unable to meet their performance criteria, which he stated was due to the fact that he missed some time off work. After this there was a period of time when he was out of work, before commencing working in an office assisting Chinese businessmen on how to set up their business. Dr Maxwell also records Mr Osorio as working as a volunteer driver during the Olympics and that he was currently working as a limousine driver, working up to 10 hours a day.
22. In relation to his clinical history Dr Maxwell records the Applicant as experiencing some back discomfort while working for Australia Post prior to the injury of 23 February 1996. Dr Maxwell records the clinical history thereafter as detailed by him in his report of 23 November 2000. Dr Maxwell records Mr Osorio as leaving Australia Post to get into the restaurant business and to avoid the work at Australia Post which may have continued to aggravate his injury. Dr Maxwell records that Mr Osorio believed hat he had made some improvement since 2000, with his last attack of acute back pain some six weeks earlier.
23. Dr Maxwell noted that the “CT scan of his lumbar spine taken on 20 May 2004 showed no evidence of nerve root compression, no significant disc bulges and there was no marked facet joint arthritis.” (PT3, p7)
24. Dr Maxwell, following his examination, considered that Mr Osorio was suffering from recurrent facet joint irritation, which he believed was constitutional in origin. Dr Maxwell did not consider that Mr Osorio was any longer suffering from the effects of any work related injury, and that he was currently fit to perform the duties of a Postal Sorting Officer.
25. In two separate reports dated 17 June 1004 and 22 June 2004, Dr Maxwell concluded that Mr Osorio had a nil whole person impairment pursuant to Table 9.5 and a 5 per cent whole person impairment pursuant to Table 9.6 unrelated to any work related injury. In the second report Dr Maxwell concluded that the minor degenerative changes evident in the CT scan of the lumbar spine of 20 May 2004 were constitutional and not due to trauma.
26. In a report dated 25 June 2004 (T55), Dr Carr, a Consultant Rheumatologist, detailed Mr Osorio’s employment history to include selling electronic security equipment with FAI prior to joining Chubb Security, while currently working as a limousine driver for up to 50 hours per week. Dr Carr detailed Mr Osorio’s clinical history to include occasional stiffness in the low back while working in the mail room prior to the events of 23 February 1996. As regards the incident on that day, Dr Carr records Mr Osorio as having no back pain at work on that day, leaving work at 5.30pm, with soreness and stiffness coming on in the lower back prior to going to bed, but after the evening meal. He is recorded as having difficulty sleeping because of low back pain. He attended the Neutral Bay Medical Centre the next morning and was given analgesics. The episode lasted about 10 days, but during this period he experienced some sharp right posterior thigh pain.
27. Dr Carr also records Mr Osorio as working at a Chinese restaurant two nights a week at Newport while working at Australia Post, an activity he continued, back permitting, while on leave from Australia Post. Dr Carr also records Mr Osorio as describing episodes of back pain with radiation to his right buttock and right leg during his period of leave, with episodes continuing thereafter with intervals of up to three weeks between episodes. At the present time Dr Carr recorded Mr Osorio as stating the episodes occur about four times a year, lasting from two to ten days with associated right leg pain on occasions and a few episodes of left leg pain, posterior and sometimes medial thigh pain.
28. Dr Carr following examination of the Applicant and review of the investigations concluded that:
· The lumbarized S1 vertebra is a constitutional condition with any loss of disc height at that level also constitutional.
· That there is nothing in the CT films that can explain any sciatic type symptoms.
· That Mr Osorio suffers from non-specific mechanical backache, with no definable lesion as the definite source and cause of his lumbar backache.
· That he is uncertain of any relationship of this man’s back pain to his work on 23 February 1996, as the history given was that he suffered no pain at work, but with pain commencing in the evening, which may reflect aggravation by the day’s activities.
· That he would be doubtful of any connection from a “strain injury of 23 February 1996” and ongoing symptoms, with the symptoms of the strain injury resolving as he reported within 10 days.
· That he is currently fit to perform the duties of a Postal Sorting Officer, with no restrictions as his examination suggests a degree of functional overlay.
· That he has a nil whole person impairment pursuant to Table 9.5, and a ten per cent whole person impairment pursuant to Table 9.6, because he has lost less than half the normal range of movement of the lumbar spine. In his opinion this impairment is likely to be constitutional (Exhibit R3).
29. On 23 July 2004 the Respondent determined that any injury sustained on 23 February 1996 or resulting from the nature and condition of employment prior to 23 February 1996 was in the form of a temporary aggravation of a pre-existing spinal condition and came to an end by 5 March 1996. The Applicant was entitled to compensation pursuant to sections 16 and 19 of the Act for the period 23 February 1996 to 5 March 1996 and thereafter entitled to no compensation pursuant to sections 16, 19, 24 and 27 Act. This determination was affirmed in the reconsideration decision of 29 July 2004 (2T8).
issues
30. The relevant issues in these two matters are:
(a) Whether Mr Osorio suffered an injury at work with Australia Post either as a consequence of an incident on 23 February 1996 or from the nature and conditions of his work prior to that date?
(b) If he did suffer an injury, what is the nature of that injury?
(c) If he did suffer an injury when did the effects of that of that injury resolve?
(d) Is the Applicant entitled to compensation pursuant to sections 16 and 19 of the Act and for what period?
(e) Is the Applicant entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Act?
decision
31. For the reasons detailed later in this decision I conclude that:
(a) Mr Osorio did suffer an injury as a consequence of the incident which occurred while working at Australia Post on 23 February 1996
(b) The nature of the injury suffered by Mr Osorio was an acute lumbar strain (musculo ligamentous or facet joint)
(c)As a result of the injury Mr Osorio was incapacitated for work for the period 23 February 1996 to 5 March 1996
(d) That the Applicant is enabled to compensation for that closed period pursuant to sections 16 and 19 of the Act and not for any period thereafter
(e) That the Applicant is not entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Act.
applicant’s evidence
32. Mr Osorio detailed the following evidence during examination in chief and cross examination:
· That he became a mail room supervisor in 1993, previously having worked as a Postal Sorting Officer since 1987, having commenced with Australia Post in 1986. As a mail room supervisor he would stay back longer and be the last to leave to ensure that all incoming bags of mail were sorted and put into the ULD’s, before the latter were loaded onto trucks with the use of a forklift. There was usually two to three dispatches of mail per day.
prior back problems
·That he had no problems with his back prior to employment with Australia Post, but he had noted during the later years of his employment that at the end of the day he was tired and experienced stiffness in his lower back muscles. He had taken occasional sickies but had made no claim for compensation over these years. While Dr C Maxwell had recorded that he had no back trouble prior to 1996, he did have pain prior to 1996, with Dr Carr recording that he had lower back stiffness prior to 1996 and Dr Wallace recording intermittent lumbar spinal pain with lifting since 1991. Mr Osorio admitted to having consulted his local medical officer during which he complained of low back pain and for which he was treated with rest and painkillers. Between 1991 and 1996 Mr Osorio stated that he experienced recurring episodes of low back pain. Dr Chan also recorded the Applicant as having chronic back pain since 1991, with the back pain becoming worse over the ensuing five years – a history with which Mr Osorio agrees. Mr Osorio stated that he had a day off from time to time because of back pain; did not think that it would lead to a long term injury and never made a complaint about his back pain to his employer over those years.
incident on 23 february 1996
·Mr Osorio stated that he was a mail room supervisor at Brookvale on Friday 23 February 1996. In the afternoon he was loading mailbags into the ULD, but after 5.15pm he had no assistance in lifting mailbags greater then 16kg in weight. He was feeling tired and the work had to be done. He finished work close to 6pm and went home where he later noticed soreness in his back muscles and pain in the lover back. He was unable to sleep. On the Saturday he saw a doctor at the Neutral Bay Medical Centre because of his back pain. An X-ray was ordered and he was treated with pain killers. Mr Osorio cannot remember whether there was a late lodgement of mail on the day and acknowledged that heavy bags are marked. Mr Osorio’s attention was drawn to his claim for compensation of 16 April 1996 in which he stated that he first felt symptoms at 5.30pm and to statements recorded by Dr Carr that he had no back pain at work and went home at 5.30pm. In response Mr Osorio stated that he was unable to recall the time exactly, but he remembers feeling exhausted at the time. Mr Osorio’s attention was also directed to Dr Carr’s recorded statements that the dullness and stiffness in his back came on between the evening meal and bed; to Dr D Maxwell’s statements in his report of 23 November 2000 that two to three per cent of the mailbags were over 16kg in weight and that evening when he got home he felt pain all over his body, including his arms and to Mr Wylie’s statement of 13 March 1996 in which he mentioned that Mr Osorio had complained to him in the morning of 23 February 1996 that his back had been stiff and sore all morning. Mr Osorio was unable to provide an explanation for these various and variable scenarios.
events prior to leaving australia post
·Mr Osorio stated that 23 February 1996 was the last day of work prior to going on annual and long service leave. He needed a break and intended to return to Macau. It was for this reason that he was delayed in submitting the incident report. He gave notice of his resignation to Australia Post to take effect in September 1996, because he believed the nature of the work was not good for him, that his back pain was coming and going, and that he would be able to avoid heavy work and lifting. During this period he attended at the general practitioner on and off, took medication, which he is still taking and had one bad episode which lasted some four days to a week, requiring two to three days in bed and time off to rest. Mr Osorio also noted that the pain has now improved, provided he does not do any heavy lifting, but when the pain comes it goes down his right leg. He noted that he had rested for two weeks after the initial incident.
33. Mr Osorio was requested to explain the reason as to the variability in reporting the onset of his right leg pain in the following reports:
·Neutral Bay Medical Centre on 24 February 1996 – no buttock or leg pain mentioned; 26 February 1996, 11 May 1996, 10 August 1996 – no buttock or leg pain mentioned
·Dr Roebuck 19 April 1999 – back pain radiating to right leg below knee and the end of the day (23 February 1996)
·Healthpac Medical Centre – back pain exacerbation with radiation down leg noted on 20 November 1999, this being the first such entry for pain radiation to the leg in the clinical notes commencing 3/97. It is noted that these were six earlier visits over the two year period in which the issue of low back pain was documented as the reason for the consultation
·Healthpac Medical Centre entry for 23 December 1998 in which the injury is recorded as occurring at 5.30pm on 23 February 1996, when lifting a mail bag of 20kg into a ULD.
·Mr Osorio was unable to explain the reason for the various reporting of the onset of his leg pain, but did indicate that his injury did not arise from a single event as described in the Healthpac record of 23 December 1999.
employment
·Mr Osorio stated that prior to his injury in February 1996 he had been working as a casual employee at a Chinese restaurant in Newport for eight to ten hours per week. He ceased such activity after the injury and had not declared the earnings from the activities, which consisted of taking orders and looking after drinks.
·After the injury Mr Osorio stated that he managed a restaurant at Neutral Bay in which he was in partnership with his brother-in-law. His duties involved ordering and supervising staff for eights hours, six days a week. He received no income from this activity. He was able to avoid heavy lifting. He left after 18 months. Mr Osorio also stated that he attended the Neutral Bay Medical Centre on 24 February 1996 as it was near the restaurant, indicating in turn that the restaurant business had commenced prior to the 23 February 1999.
·Mr Osorio stated that they, in partnership, commenced another restaurant at Botany. Again this involved similar hours, duties and no income. This business lasted less than two years. A medical review document (Exhibit R8) was completed by Dr Tan on 4 May 1998, in which it is indicated that the Applicant last worked at the Botany restaurant (Lusitano) in December 1996, with Dr Tan considering Mr Osorio unfit for work for three months because of low back pain. Mr Osorio was unable to clarify this issue, although Dr Tan’s report of 8 May 2003 indicates that it was given for the Commonwealth Employment Service and also makes no mention of right leg pain. Mr Osorio stated that while working at the restaurant in Botany he commenced selling security equipment on commission for FAI home security, Seacon Security and Chubb Security. Mr Osorio believed he commenced working full time with Chubb Security (Ansec) late 1999 early 2000, but documents from that firm indicate that he commenced on 22 April 1999 and finished on 27 July 2001. He described his duties as driving a car and making sales. In cross examination Mr Osorio agreed that he then worked for Australian Corporate Security from mid 2001 until early 2002; was unemployed and receiving Centrelink benefit from early 2002 until 31 July 2002. Mr Osorio stated that he resigned from Chubb Security because he was unable to meet performance criteria, due to absences from work because of his back problems. Mr Osorio admitted that when he was confronted with documentation from Chubb Security that he had resigned and that while only three sick days were recorded during his employment with Chubb Security, he had not undertaken work on some days, and was able to get away with it, because they only had a weekly compulsory meeting.
·Mr Osorio stated he next worked as a sales manager selling gas valves for the CNA Group for 20 hours per week for the period 1 August 2002 to 31 January 2003. This activity also involved driving. Mr Osorio stated that he was unemployed and received Centrelink benefits for most of 2003 and to June 2004 but commenced working as a limousine driver in 2004 which has continued. In this activity he has worked for Royale and Astra, working some 60 to 72 hours per week including standby time. Mr Osorio also undertook some voluntary driving (2hrs per day) during the Olympics and some advising activity to Chinese businessmen in June 2004.
current circumstances
·Mr Osorio stated that he was still driving limousines for the times already nominated. He finds that he gets stiff in the back if he sits for more than 30 minutes or stands for more than 15 minutes. He avoids lifting where possible. He no longer participates in 10 pin bowling, nor is he able to do some household chores (change light bulbs, vacuuming, and work around the house). He sleeps well at night if he has no pain. He has low back symptoms once or twice a month, with pain lasting for three to four days and uses Panadeine Forte and Voltaren, and occasionally visits Dr Tan.
34. In response to other questions in cross examination or from the Tribunal Mr Osorio stated:
· That he did not return to work, other than to submit his claim and his resignation after proceeding on leave on 23 February 1996 and prior to his resignation on 13 September 1996. That this is contrary to what is recorded within Dr Wallace’s report of 15 September 2004 (Exhibit A3) that he returned to work in June 1996.
· That he hesitates to do some movements when asked by examining medical practitioners, because of concern that his back may be aggravated.
· That the examining medical specialists have recorded varying accounts of how often his back causes his problems:
- 23 November 2000 Dr D Maxwell: five times a year
- 17 May 2002 Dr M Maxwell: severe attacks one to two a month
- 17 June 2004 Dr D Maxwell: able to walk 2km, since 2000, some improvement, with last attack of pain six weeks ago
- 25 June 2004 Dr Carr: three to four episodes per year, three weeks without symptoms
- 15 September 2004 Dr Wallace: episodes every four to five weeks, intermittent weakness right leg with a limp
·That he is not fit to do his previous job with Australia Post
·That when he is being examined he stops and hesitates when he feels stiffness
·That he is able to walk 1km, sit and stand for 30 minutes and has no difficulty with stairs.
35. A video was shown during cross examination in which the Applicant agreed that he was driving the limousine in which an individual had a wheelchair, and on another occasion he was carrying two pieces of luggage.
36. In response to questions in re-examination re the video Mr Osorio stated that only two people use wheel chairs, with one being folded and put in the boot of his limousine, while the other leaves his wheel chair at home. Mr Osorio admitted to having to lift luggage three or four times a week, but on most occasions the luggage is light, and in other cases he seeks assistance from the customer where appropriate.
further medical evidence
dr wallace – consultant orthopaedic surgeon
37. In a report dated 15 September 2004 (Exhibit A3), Dr Wallace detailed the Applicant’s clinical history including:
· Intermittent lumbar spinal pain with lifting activities in the mail room in 1991. Consulted his general practitioner at that time and was prescribed rest and analgesics. Had noticed increasing episodes of lumbar spinal pain in the course of his duties at work.
· On Friday 23 February 1996, after a heavy day at work with lifting activities, he noticed in the evening increasing lumbar spinal pain radiating to the posterior aspect of the right thigh to the level of the knee. He rested over the weekend was reviewed by his general practitioner who prescribed analgesics and ultrasound therapy.
· He returned to work in June 1996 but resigned from his job in September 1996.
· Commenced working at a restaurant in his own business in partnership with family in 1997.
· He had suffered episodes of lumbar pain prior to 1991.
· Currently episodes of pain occur every four to five weeks and last for three to seven days, with intermittent weakness of his right leg and a limp as well as constant stiffness in the lumbar region.
38. As a result of his history and examination, Dr Wallace concluded that the Applicant has suffered recurrent musculo ligamentous strain injuries at his lumbar spine as a result of the nature and conditions of his employment at Australia Post as a mail sorter between 1991 and 1996. Dr Wallace did not believe Mr Osorio was fit to return to pre-injury duties as a mail sorter.
39. In a subsequent report dated 15 September 2000, Dr Wallace concluded that Mr Osorio had a 20 per cent whole person impairment pursuant to Table 9.6 as he had lost more than half the normal range of movement of the thoroco lumbar spine.
40. In oral evidence Dr Wallace confirmed his opinion that repetitive heavy lifting had caused the musculo ligamentous strain. He did not believe that Mr Osorio suffered from facet joint arthritis.
dr garfagnini – consultant radiologist
41. In a report of a CT scan of the lumbar spine on 20 May 2004 (Exhibit A2) Dr Garfagnini concluded:
“The S1 segment is transitional, being partially lumbarised.
Degenerative osteophytic lipping of several vertebral bodies is present.
There is no annular bulge or focal disc protrusion at any level and no nerve impingement is identified. The spinal canal diameters are normal. No pars defects are present and there is no facet arthrosis.
Degenerative changes are present in the superior aspect of both SI joints.”
dr d maxwell- consultant orthopaedic
42. In a further report dated 25 August 2004 Dr Maxwell concluded that the back sprain which occurred on 23 February 1996 would have completely resolved after four weeks (Exhibit R2).
43. In a further report dated 12 October 2004 (Exhibit R10), Dr Maxwell, having viewed the video evidence, concluded that the video confirms his conclusions that he is fit to perform the duties of a postal sorting officer as stated in his previous report. Dr Maxwell also concluded that the Applicant has a nil whole person employment pursuant to both Tables 9.5 and 9.6.
44. In oral evidence Dr Maxwell confirmed his diagnosis of the original injury being a lumbar facet joint strain, as evidenced by low back pain and associated muscle spasm which would have lasted for two to three weeks. He believed Dr Roebuck while not making a diagnosis, had placed emphasis on a developmentally narrow disc space in the x-ray of the lumbar spine of 26 February 1996. Similarly Dr D Maxwell considered that Dr C Maxwell had made a diagnosis from the presenting symptoms and history as given by Mr Osorio.
dr carr – consultant rheumatologist
45. In a report dated 12 October 2004 (Exhibit R11) Dr Carr, having viewed the video, concluded that Mr Osorio was functioning quite normally with respect to spinal function of lifting, carrying and at least right lateral flexion, although Mr Osorio was not seen to fully flex or extend his lumbar spine. In a further report dated 19 October 2004 (Exhibit R12), Dr Carr concluded that the range of movement demonstrated was more in the level of 5 per cent whole person impairment pursuant to table 9.6 (minor restriction of movement).
46. In oral evidence Dr Carr stated that Mr Osorio had suffered an acute back strain, which would have resolved in a few days. Dr Carr concluded that Mr Osorio has non specific mechanical backache. Further Dr Carr stated that in the absence of a specific work incident and with the pain developing after dinner, the back pain symptomatology on 23 February 1996 may not necessarily relate to his work.
consideration and findings
47. In this matter I have been mindful to particularise the statements made by the Applicant in his incident report, his claim for compensation and to the many doctors who have been involved in his care and assessment of his condition. In relation to a history of previous back problems there is recorded a history of back problems prior to 1991, that he sought assessment and treatment in 1991, with increasing episodes of lumbar spinal pain occurring during the course of his work up to 1996 and thereafter (Dr Wallace), no back trouble before the incident (Dr M Maxwell), some back discomfort while working with Australia Post prior to the incident of 23 February 1996 (Dr D Maxwell), occasional stiffness in the back while working at Australia Post prior to the incident on 23 February 1996 (Dr Carr), chronic back pain since 1991 (Dr Chan).
48. In relation to the history of the incident of 23 February 1996 this is recorded as occurring at 5.30pm on 23 February 1996 (Mr Osorio’s claim for compensation on 16 April 1996), on the morning of 23 February 1996 (Mr Wyllie’s statement of 13 March 1996), at the end of the day back pain extending into his right leg to just below the knee (Dr Roebuck 19 April 1999), persistent low back pain with radiation to right leg (Applicant’s claim for compensation of 21 December 1999), felt pain all over his body that evening, including his arms (Dr D Maxwell 23 November 2000) back pain commenced when he had to lift bags in 1996 (Dr M Maxwell), from 23 February 1996 “I have developed persistent low back pain with radiation to both my legs (Applicant’s claim for permanent impairment 10 February 2003), I arrived home that evening and experienced a stiff back” (Applicant’s claim for compensation of 29 July 2003), at 5.30pm on 23 February 1996 “I experienced discomfort and stiffness in my back and told my fellow worker David Wyllie…when I arrived home my back was sore and painful” (supplementary statement to claim for compensation on 29 July 2003) and in a further statement accompanying a claim for compensation on 15 January 2004), no back pain at work on 23 February 1996, leaving work at 5.30pm with soreness and stiffness in the lower back coming on prior to going to bed. During the period of next ten days he experienced some sharp right posterior thigh pain (Dr Carr), increased lumbar spinal pain with radiation to the posterior aspect of the right thigh to the level of the knee in the evening of 23 February 1996 (Dr Wallace).
49. In relation to subsequent clinical history all available clinical records are silent as to pain radiation until noted in the report of Dr Roebuck of 19 April 1999 and Healthpac records on 20 November 1999. I note in particular the entries in the clinical records of the Neutral Bay Medical Centre for 24 February, 26 February and 10 August 1999 and the entries in August and September 1996 for the Botany Medical Centre, all of which are to do with his back pain symptomatology and none of which refer to an issue of pain radiation to the right leg.
50. Further I note the continuing symptomatology which is described as episodes of back pain occurring five times a year (Dr D Maxwell 23 November 2000), one to two severe attacks a month (Dr D Maxwell 17 June 2004), three to four episodes of pain a year, three weeks without symptoms (Dr Carr 25 June 2004), episodes every four to five weeks (Dr Wallace 15 September 2004).
51. Similarly and without particularising the various descriptions as to his employment history given to the clinicians and the Tribunal, I would wish to point out that he told two clinicians (Drs M Maxwell and Wallace) that he returned to work prior to his resignation in September 1996, when indeed he agreed at the hearing that he had never returned to work. I also note that he was working at the Neutral Bay restaurant prior to 23 February 1996, although he states that on 24 February 1996 he had to attend as he had the key, prior to attending at the medical centre. I also note the issues concerning medical certificates being provided for the Commonwealth Employment Service in 1998 and the competing versions as to why he left Chubb Security in July 2001.
52. I have also noted the available individual tax returns, the absence of any partnership returns, his claim that he made no income from either restaurant business, that he not declare income from his casual employment at the Newport Chinese restaurant in 1995/96, his admission that he used to take unauthorised days from work while working for Chubb Security and his admission that at medical examination he did not demonstrate his full range of movement.
53. From all this material I conclude that Mr Osorio is a very curious witness. It is evident that he has the particular ability to confuse, by providing a varied and variable range of descriptions of times, events, circumstance and happenings about issues and symptomatology. All of which permits one to come to no other conclusion that his evidence is unreliable. In so stating I note that while he made a number of frank admissions, all of which add little to his credit as a witness, I am mindful that his evolving and variable symptomatology may be symptomatic of an individual with a chronic back condition. Nevertheless I again conclude that Mr Osorio’s evidence is unreliable particularly in the areas in which I have demonstrated clear inconsistencies over time.
54. With that in mind I turn to a consideration of the clinical picture. Again in noting the difficulties experienced in obtaining the Applicant’s clinical history records prior to 1996, I am left with the opinions of the clinicians who have dealt as best they can with the understandings they have obtained after exposure to the variations in the clinical history, the clinical investigations, physical examination and other material such as videos.
55. In noting the CT scan examination of 20 May 2004 and the earlier radiology in 1996 I conclude on the balance of probabilities that Mr Osorio suffers from a non specific mechanical backache, which on the history given to Dr Wallace would predate 1991. I note that other clinicians have diagnosed discal pain (Dr Roebuck, Dr M Maxwell), recurrent facet joint irritation (Dr D Maxwell) recurrent musculo ligamentous strain injuries (Dr Wallace). In so finding as I have done I prefer the opinion of Dr Carr for in the circumstances of an unreliable clinical history the CT scan of 20 May 2004 would appear to exclude any disc lesion, while, Drs Rich and Dr Wallace are of a view that the facet joints are not the cause of the pain. The difficulty with Dr Wallace’s opinion is that his opinion was based on the most evolved and probably the most unreliable history and he did not have an opportunity to review the video.
56. In addressing the incident of 23 February 1996 I conclude that Mr Osorio on balance of probabilities suffered an acute lumbar strain injury either to the musculo ligamentous structure (Drs Wallace, Carr) or the facet joint (Dr D Maxwell). Further upon consideration of the medical opinions proferred, and again noting the evolved and unreliable nature of the clinical history given to Dr Wallace as regards symptomatology and employment, I conclude that the acute sprain would have resolved within two weeks. In this regard I rely on the clinical notes of the Neutral Bay Medical Centre which states that the Applicant should be able to return to work on 4 March 1996 and the absence of any reliable evidence to the contrary, while at the same time the Applicant was involved in managing the restaurant at Neutral Bay. Further I rely upon the opinions of Drs D Maxwell and Carr as to their opinions on the question of resolution.
57. While I note further episodes of unfitness for work in August and September 1996, there is no evidence forthcoming which would indicate that the back pain episodes were Australia Post work related, while the September episodes seemed more to do with other ailments (URTI, dizziness, tinnitus, and loss of balance).
58. In relation to other periods of incapacity claimed, I enjoy an absence of evidence that would indicate with clarity periods during which the Applicant was incapacitated and whether that period of incapacity was related to his working and being injured at Australia Post. Further I note an absence of any material which would give me an understanding of the Applicant’s earnings during those periods. While I have been provided with annual tax returns for the Applicant, the Applicant has also admitted to non-compliance in such activities. Further the partnership returns for the two restaurant businesses are not in evidence, nor is their evidence of such in the individual tax return. In such circumstances even if I had concluded there were further periods of work related incapacity I would not be in a position to make a finding on the issue of his earnings during those periods.
59. Finally in addressing the issue of permanent impairment I conclude that Mr Osorio has 5 per cent whole person impairment pursuant to table 9.6 as he has minor restriction of movement. However such an impairment is unrelated to the incident of 23 February 1996. In so finding I rely on the video evidence and the opinions of Drs D Maxwell and Carr. I have discounted the opinion of Dr Wallace in the light of the unreliable history given to him, and admission by the Applicant, that he did not demonstrate his full range of movements to the clinicians and his lack of opportunity to view the video.
60. In summary I find that Mr Osorio does suffer from a non specific mechanical backache unrelated to his employment at Australia Post; that he did suffer an acute lumbar musculo ligamentous or facet joint strain as a consequence of the work related incident on 23 February 1996; that this condition resolved within two weeks; that there has been no further work related periods of incapacity, and even if I had so found there is insufficient evidence as to conclude what earnings the Applicant may have received during the period in contest; that the Applicant has 5 per cent whole person permanent impairment pursuant to Table 9.6, with such impairment being not related to his work.
61. In making such findings I had concluded that Mr Osorio provided unreliable and confusing evidence in relation to the clinical history of his back pain, the incident of 23 February 1996, the clinical history thereafter as well as his employment history and circumstances.
determination
62. I determine that both decisions under review be affirmed.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: Neil Glaser
AssociateDates of Hearing 23 and 24 February 2005
Date of Decision 15 April 2005
Counsel for the Applicant Mr Wright
Solicitor for the Applicant T S Menounos & Associates
Counsel for the Respondent Mr Kelly
Solicitor for the Respondent Forners Solicitors
0
0
0