Patterson and Australian Postal Corporation
[2000] AATA 542
•3 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 542
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q99/756
GENERAL ADMINISTRATIVE DIVISION )
Re RAYMOND GRAINGER PATTERSON
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member Dr KP Kennedy, Member
Date3 July 2000
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant's incapacity is as a result of his work-caused injury and that compensation is therefore payable to the applicant. The matter is remitted to the respondent for assessment and payment of compensation accordingly. The applicant is entitled to costs in this matter and the Tribunal directs that if taxation of the quantum of costs by the Registrar is required, then taxation of the costs be in accordance with the Tribunal's Practice Direction.
(Sgd) DP Breen
PRESIDENTIAL MEMBER
CATCHWORDS
COMPENSATION – back injury – causation of ongoing incapacity – conflicting medical opinion.
Safety Rehabilitation and Compensation Act 1988 s 14
REASONS FOR DECISION
3 July 2000 Deputy President DP Breen, Presidential Member Dr KP Kennedy, Member
This is a review of a decision dated 28 June 1999 which ceased compensation payments on the basis that the applicant's injury was no longer work-related.
The matter was heard before a Tribunal constituted by myself, as Presiding Member and Dr KP Kennedy, Member on 22 and 23 May 2000 in Brisbane.
The applicant, Raymond Grainger Patterson, was represented by Mr DC Rangiah of Counsel instructed by Messrs Maurice Blackburn and Cashman. The respondent was represented by Mr AP Collins of Counsel instructed by Messrs Clarke and Kann.
Oral evidence was given by the applicant himself, and by Dr Graham Lister, Dr Peter McCombe, Dr Gregory Nutting and Dr Edward Reye. The following documents were also taken into evidence.
Exhibit 1 "T" Documents
Exhibit 2 Statement of Raymond Grainger Patterson dated 19.5.00
Exhibit 3 Report of Dr P McCombe dated 13.10.99
Exhibit 4 Southern X-Ray Clinics Pty Ltd Report dated 8.4.99
Exhibit 5 Report of Dr G Lister dated 24.11.99
Exhibit 6 Report of Dr G Nutting dated 3.8.99
Exhibit 7 Report of Dr G Nutting dated 21.12.98
Exhibit 8 Report of Dr S Goode dated 3.9.99
Exhibit 9 Report of Dr S Goode dated 2.11.99
Exhibit 10 Worksite Assessment Report dated 15.12.98
Exhibit 11 Letter from Australia Post and list of duties dated 17.11.99
Exhibit 12 Letter from Australia Post dated 4.1.00 and response from Mr Patterson dated 11.1.00
The applicant suffered a back injury during an incident at work on 13 November 1998. It is not disputed that the applicant has an incapacity for work. The issue to be decided is whether the incapacity was caused or contributed to by the effects of the work incident, and whether any relevant and compensable incapacity remains.
The applicable legislation is Section 14 of the Safety Rehabilitation and Compensation Act 1988. It is as follows:
"(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."
It was the applicant's evidence at the hearing that he was travelling on a motorcycle delivering mail from house to house at a speed of around 10 kilometres per hour. The front wheel went over a tree root but the back wheel skidded out. The applicant's arms remained on the handlebars, which were straight, but his back was twisted around approximately 90 degrees as the motorcycle began to fall. The applicant put his left foot out in an attempt to stop the fall but ended up on the ground with his right leg still over the motorcycle. He immediately experienced intense pain. When the pain lessened, he righted the motorcycle and sat on it for a few minutes waiting for the pain to further subside. When it did, he completed his shift and reported the incident when he returned to the depot. Four days later he returned to work but was in too much pain to finish his shift.
It is the respondent's submissions that this is the first time that the applicant has mentioned falling off the motorcycle. Both Dr Reye and Dr Nutting thought the incident only involved a minor jarring of the back whilst the applicant was still seated. However, this inconsistency was not put to the applicant at any time and while his earlier statements fail to mention the fall they leave open the conclusion that it in fact occurred. The applicant's earlier written statement said that he attempted to steady the motorcycle by putting his left foot out. The statement simply failed to say whether he was successful in that attempt. As such, the Tribunal is not entitled to draw an inference that the applicant was making this up or that he was embellishing the incident to better serve his case. Indeed, the Tribunal accepts the applicant's unchallenged, let alone uncontradicted, evidence that it did occur. He was, in our view, a witness of undoubted truth.
Both Dr Nutting and Dr Reye believed that the applicant must have suffered from advanced degenerative changes before the incident for his spine to have been so badly affected by the minor jerking in the incident. This analysis is fundamentally flawed given the failure to comprehend the basic facts of this case, that is, that the incident was a fairly major fall. Dr Reye conceded in evidence that the MRI report taken after the incident only showed degeneration in its early stages, invalidating his opinion that the applicant suffered advanced degeneration before the incident. Both Dr Reye and Dr Nutting agreed under cross-examination that the applicant did not suffer from any risk factors which usually promote degeneration and that it otherwise may have taken years for the degeneration, which was occurring, to become symptomatic. As such, the Tribunal finds their assessments unpersuasive and prefers instead the evidence of Dr McCombe.
Dr McCombe's opinion was that Mr Patterson had been suffering the early stages of degenerative change but that this degeneration was painless. Dr McCombe felt that it is most likely that as a consequence of the incident there was a tear of the L4/5 and LS/S1 posterior annulus fibrosis and that it is these tears which are causing the pain. Further, Dr McCombe stated that current medical knowledge suggests that such tears are unlikely to heal and that while the prognosis for short term acute pain is good, the longer pain persists, the less likely it is to resolve.
The respondent chose not to rely on the written evidence of Dr Goode as he is not an Orthopaedic Specialist and Dr Lister's evidence supported Dr McCombe.
It is the Tribunal's finding therefore, that the applicant suffered a back injury in the course of his employment on 13 November 1998 and that it is this injury which is the result of his ongoing incapacity.
Despite being certified fit to return to work on restricted duties, on a number of occasions the applicant has been unable to complete the tasks set for him. He was again certified unfit to return to work in February of this year. As such, his incapacity from the work-caused injury exists to this date.
Therefore, the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant's incapacity is as a result of his work-caused injury and that compensation remains payable to the applicant. The matter is remitted to the respondent for assessment and payment of compensation accordingly. The applicant is entitled to costs in this matter and the Tribunal directs that if taxation of the quantum of costs by the Registrar is required, then taxation of the costs be in accordance with the Tribunal's Practice Direction.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member and Dr KP Kennedy, Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 22.5.00, 23.5.00
Date of Decision 3.7.00
Counsel for the Applicant Mr DC Rangiah
Solicitor for the Applicant Messrs Maurice Blackburn and Cashman
Counsel for the Respondent Mr AP Collins
Solicitor for the Respondent Messrs Clarke and Kann
0
0
0