Richards and Australian Postal Corporation - [2001] AATA 367

DECISION AND REASONS FOR DECISION [2001] AATA 367

ADMINISTRATIVE APPEALS TRIBUNAL )

)No A2000/180; A2001/45

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CYNTHIA RICHARDS
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member Dr M Miller, AO, Member

Date4 May 2001
PlaceCanberra

Decision      The decisions under review are affirmed.
  ...................(Sgd).....................
  M J Sassella
  Senior Member
CATCHWORDS
COMPENSATION – permanent impairment – whether nature and conditions of employment have contributed to aggravation of degenerative condition – question of whether tribunal can consider application covering injury dealt with by previous consent decision of the tribunal
COMPENSATION – medical expenses – whether employer liable for applicant's ongoing physiotherapy and chiropractic treatment
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 42C(1)(a)
Safety, Rehabilitation and Compensation Act 1988, s 4, s 16, s 24
AUTHORITIES
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Plumb v Comcare (1992) 39 FCR
Re Anita Chowdhary and Comcare [1988] AATA 448
Re Sabioni and Comcare [1999] AATA 763
Re Denison-Smith and Comcare [2000] AATA 553

REASONS FOR DECISION

4 May 2001 M J Sassella, Senior Member Dr M Miller, AO, Member

This is an application by Ms Cynthia Richards (the "applicant") for review of two decisions made by the Australian Postal Corporation (the "respondent"). On 10 May 2000 the respondent affirmed a decision of a delegate of the respondent made on 19 April 2000 which disallowed the applicant's claim for "occupational overuse right arm both shoulders, neck and lower back injuries and compensation for permanent impairment". On 5 January 2001 the respondent affirmed a decision of a delegate of the respondent made on 23 November 2000 which found that the respondent was not liable to pay compensation for regular physiotherapy and chiropractic treatment from 24 November 2000.
The hearing was held over three days on 5, 6 and 7 March 2001. Mr Alan Anforth represented the applicant and Mr Paul Jones represented the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "AAT Act") and a number of medical reports, medical and clinical notes were admitted into evidence. The two sets of section 37 "T-documents" in evidence were for the decision in relation to the claim for permanent impairment (Exhibit TD1) and the decision in relation to the claim for physiotherapy and chiropractic treatment (Exhibit TD2). The applicant gave evidence in person, and telephone evidence was given by Ms Cheryl Williams, the applicant's sister and Dr George Giurguis, the applicant's general practitioner. Mr David Lander, the applicant's legal representative, gave evidence in person. On behalf of the respondent Dr Neil McGill, rheumatologist, and Dr John Cummine, orthopaedic surgeon, gave telephone evidence.
The following is a list of the exhibits taken into evidence during the course of the hearing of this matter.
EXHIBIT NO.           DESCRIPTION       DATE
TD1     Tribunal documents for A2000/180         2 June 2000
TD2     Tribunal documents for A2001/45 16 February 2001
A1      Report by Dr Scott (with letter attached from D Lander to Dr Scott and case summary prepared by D Lander)       8 August 2000 (letter from D Lander 24 July 2000)
A2      Report by Dr Griffith (with letter attached from D Lander to Dr Griffith and CT/X-ray reports)           16 August 2000 (letter from D Lander 24 July 2000)
A3      Report by Abbey National 15 December 1997
A4      Report by Lisa Castles and Associates 28 October 1998
A5      Statement by C Richards   1 December 1997
R1      Report by Dr McGill 8 August 2000
R2      Report by Dr Cummine      1 August 2000
R3      Report by Dr Cummine      1 August 2000
R4      Report by Dr Cummine      20 February 2001
R5      Report by Dr McGill 8 August 2000
R6      Clinical notes Dr Guirguis 10 September 1986 to 9 October 2000
R7      Single page extract from clinical records Calvary Hospital      18 October 1992
R8      Letter D Lander to C Richards   25 May 1999
R9      Clinical notes Dr A Wright 16 May 1999
R10     CT Report     10 July 2000
R11     Report Dr Ashman 22 August 2000
R12     Report on ultrasound by F Lomas 6 October 1998
R13     Letter from Dr Guirguis      16 August 2000
R14     Letter from L Forner to Dr Cummine (with attachment booklet "All in a day's work".          24 July 2000
R15     Article by Sambrook et al, "Genetic Influences on Cervical and Lumbar Disc Degeneration", Arthritis and Rheumatism, Vol 42, No 2, 1999, pp.366-372.    1999

Issues

The issues in this case are whether the respondent is, first, liable for the continued medical expenses of the applicant in relation to her ongoing chiropractic and physiotherapy treatment and, second, whether the applicant has a permanent impairment that has been contributed to by the conditions of her work with the respondent.
Background
The applicant commenced work for the respondent in 1973 in Canberra. Her duties included moving mailbags and despatching them to sub-offices, sorting mail and parcels. Most of her work, including counter work, involved standing. The applicant said in evidence that she has never had a "sit down job". She resigned from her position in 1978 (TD1 at T4, p.11) in order to take care of her first child. The applicant recommenced employment as a Postal Services Officer with the respondent in 1979 on a part-time basis (A5, statement by applicant, p.1). Upon returning to work, the applicant's duties remained similar to what she was required to do in the past. The applicant took more time off work during 1983 and returned to work at some time in 1984, again on a part-time basis.
The applicant has made four claims for compensation throughout her employment with the respondent. The first claim was on 19 June 1984 and related to a motor vehicle accident which occurred as the applicant was driving home from work, colliding with a vehicle in front of her (TD1 at T5, p.12). The injury was described as a sprain to the applicant's neck muscles. The applicant received treatment from Dr W Beckett, general practitioner. On 20 June 1985 Dr Beckett reported that the day following the motor vehicle accident the applicant experienced a painful neck (TD1, T8, p.21). Dr Beckett reported that the applicant had suffered a "soft-tissue flexion injury to her cervical spine" as a result of the accident but that, to his knowledge, "she is now cured. She should not have any permanent sequelae." Later medical reports recorded a similar history (see reports by Dr McGill of 8 August 2000, Exhibit R1, p.2, and Dr Cummine, Exhibit R2, p.2). In evidence the applicant stated that she received physiotherapy following the accident and the neck pain "lasted for a few weeks". The respondent accepted liability for the injury on 8 July 1985 (TD1 at T9, p.23).
The applicant stated in evidence that she experienced neck, shoulder and lower back pain in 1990, and again obtained physiotherapy. The applicant visited her general practitioner, Dr Guirguis, throughout the period from 1986 To 1993, with a number of complaints including "generally unwell", throat, headaches and chest pains, as well as neck and upper back pain (clinical notes, Exhibit R6). In evidence, the applicant stated that she experienced "very little" neck pain in the period from 1991 to February 1993. The applicant received physiotherapy from Mr Adrian Rumore, which she claimed "helped a little".
The applicant made a second claim on 5 March 1993 relating to an injury "between shoulder blades and lower back" (TD1 at T13, p.35). She stated on her claim form that the cause of the injury was from working in the mailroom performing her "normal duties over a period of time" (see also T15, p.38). These duties included "lifting bags of mail" and "heavy parcels at a high counter". In evidence the applicant explained the pain she experienced from this injury as worse than the pain relating to the 1984 accident. The applicant saw Dr Guirguis who, on 17 March 1993, reported that the applicant was suffering from a degenerative back condition related to work and which was "aggravated by working in Australia Post" (TD1 at T11, p.31). The applicant was certified unfit for work from 18 February 1993 to 22 February 1993. Mr A.J. Wyatt, the Postal Manager at the applicant's place of work, wrote on 19 March 1993 that that it "appears that the back injury has been aggravated by the work she is required to perform, and measures are being taken to ensure that correct lifting techniques are used, as well as the PDO section monitoring the weight of the bags for early morning despatch" (TD1 at T14, p.37).
After the respondent requested more recent medical evidence about her injury (TD1 at T16), the applicant obtained a report from Dr Guirguis dated 15 April 1993 (TD1 at T17). Dr Guirguis opined that the applicant was suffering from a "pre-existing degenerative back condition." (TD1 at T17, p.41). He reported that this condition had been "aggravated" by the applicant's work with Australia Post. However she was, according to Dr Guirguis, "fit for her current work duties, provided she is kept under regular follow up." Liability was accepted by the respondent on 24 April 1993 (TD1 at T9, p.24).
The applicant had a number of days off work throughout 1994, 1995, 1996 and 1997 (medical certificates TD1 at T18, p.45-56).
On 5 March 1997 the applicant sustained an injury on her way home from work. On that day, the applicant recalled ceasing her duties at approximately 11.30am (Exhibit A5, p.2). The applicant did some banking at a location close to her place of work, as she sometimes did at this time. On this occasion she tripped near the bank and fell forward, putting her right arm and hand out to stop the fall. She landed on her hands and knees. The applicant noticed she had a graze on her left knee and a gravel rash on both knees and hands. However, the applicant recalled in a statement dated 1 December 1997 that "I did not have any pain anywhere" (Exhibit A5, p.3). Shortly after the fall, the applicant went to her place of work and reported the fall, "just in case I had suffered any injuries that were not obvious at that time." Approximately two days after the fall, the applicant recalled an increase in pain in her right arm and neck. She went to work and felt she could "hardly lift" her right arm. The applicant saw Dr Guirguis, who diagnosed a neck sprain and prescribed some medication (Exhibit R6 at 7 March 1997). Dr Guirguis ordered some X-rays to be done and referred the applicant for physiotherapy (Exhibit R6 at 19 March 1997). The applicant took the medication but recalled in evidence that the pain "never sort of went away". She also had bad headaches. There was "intermittent pain" between the applicant's shoulder blades, focusing more on the right shoulder, and in the right side of her neck. The applicant often took pain killers if the pain was bad.
The applicant stated in evidence that after the fall in 1997 the pain in her neck was worse than ever before. She recalled two episodes following the fall when the pain in her neck was particularly bad. On "approximately" 8 October 1997 the applicant "woke up suffering with a spasm in my neck and could not move, without severe pain. I had not done anything out of the ordinary the day before to cause the neck spasm" (Exhibit A5, p.4). At the time the applicant was on recreation leave and had been so since 17 September 1997 (until 16 October 1997) (TD1 at T64, p.159). The applicant obtained physiotherapy and medical treatment, including a prescription for Panadeine Forte for the pain. On the morning of 2 November 1997 the applicant woke with her neck in spasm again and she could not move. She received more physiotherapy and took time off work (approximately two weeks). When the applicant returned to work she performed lighter duties.
The applicant made a claim for compensation on 13 November 1997 (TD1 at T3, p.7) in relation to "recurring neck injury – aggravation" which was disallowed on 30 January 1998 (TD1 at T21). This decision was affirmed on 13 March 1998 (TD1 at T24). The applicant lodged an application for review with the tribunal on 2 April 1998 (TD1 at T25, p.72) and then lodged a claim for permanent impairment on 1 August 1998 (TD1 at T28, p.84) relating to "neck and back pain and aggravation, hives". On 7 July 1999 the tribunal issued a decision pursuant to section 42C(1)(a) of the AAT Act (the " 1999 consent decision") which was as follows:
1. The Tribunal sets aside the decision under review.
2. In substitution therefor the Tribunal decides that:
(a)on 5 March 1997 the applicant suffered an injury in the course of her employment, namely "mild aggravation of pre-existing cervical spondylosis" ("the injury");
(b)the applicant had ceased to suffer incapacity arising from the injury by 16 December 1997;
(c)the applicant continues to require occasional reasonable medical treatment as a result of the injury;
(d)the injury does not give rise to any compensable permanent impairment; and
(e)the respondent is to pay the applicant's reasonable costs as agreed in the sum of $4,000.00.

The applicant's representative continued to press the applicant's 1 August 1998 claim for permanent impairment with the respondent (see TD1 at T44 and T47) which reached the point of application to the tribunal for review (TD1 at T49, p.123) of an alleged determination by the respondent (see letters from respondent, TD1 at T46 and T48). This application (tribunal file A2000/14) was withdrawn by way of a discontinuance notice filed with the tribunal on 18 May 2000.
On 1 April 2000 the applicant made a claim for "occupational overuse right arm; both shoulders, neck, lower back" (TD1 at T54, p.134). In the claim form the details of the incident were described as a "nature and conditions of work injury" which "arose over time". In particular, the form states that the applicant was "lifting heavy bags of mail throughout my employment" as an activity which contributed to the injury. On 19 April 2000 the respondent disallowed the claim (TD1 at T59, p.144) on the basis that it was not satisfied that the applicant had suffered any degree of permanent impairment and that no liability existed to pay compensation. The decision referred to the medical evidence which had been submitted by the applicant which suggested, for the most part, that the applicant's condition was related to the fall in March 1997. Given that this injury and the applicant's subsequent claim had been ultimately determined by way of the 1999 consent decision, the delegate stated that:
In my view, the lodging of the new claim in respect of the "employment at large" or the "nature and conditions" of the employment is nothing more than an attempt to circumvent the decision of the AAT dated 7 July 1999. I am satisfied that you have not suffered any injury of any impairment as a result of the nature and conditions of your employment.
On 10 May 2000 the respondent affirmed the decision. The applicant lodged an application to review the decision on 18 May 2000.
Claim for chiropractic and physiotherapy treatment
The applicant's representative, Mr Anforth, indicated at the hearing of this matter that he did not seek to press the issue relating to the respondent's liability for the applicant's chiropractic and physiotherapy treatment. The tribunal will deal with this issue initially before moving on to the issue of permanent impairment.
The applicant's claim in relation to chiropractic and physiotherapy treatment was for review of a decision of the respondent denying compensation for "manual therapy" on the basis that it was "wrong" (TD2 at T1, p.4). In its decision, the delegate of the respondent referred to the opinion of Dr G Griffith, surgeon, on the question of continued chiropractic and physiotherapy. In a report provided for the applicant on 16 August 2000, Dr Griffith opined that TD2 at T3, p.13):
There is no role for any manual therapy such as physiotherapy, chiropractic etc on a frequent and continued basis. As has been proven, any reduction in the symptoms is evanescent and always incomplete and short lasting. Such treatments as she [the applicant] finds effective should be reserved for acute exacerbations and flare-ups when they are probably helpful.

Therefore the respondent determined that it was no longer liable to pay for such regular treatments but that consideration would be given "upon occurrence of acute exacerbations and flare up only provided that these are supported by suitable medical evidence." (TD2 at T5, p.18). The reconsideration decision which affirmed this determination noted that the application did not contain "any medical evidence" showing that the delegate did not have the power to make the decision being reviewed (which had been argued by the applicant) (TD2 at T8, p.23).

Section 16 of the Safety, Rehabilitation and Compensation Act 1988 provides for liability to pay for reasonable medical expenses incurred by the employee in relation to treatment of an injury. The question first arises then as to whether the ongoing "manual therapy" is medical treatment? Section 4 of the Act defines "medical treatment" as including, amongst other things:
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be;

The applicant stated in evidence that she is currently receiving chiropractic treatment once a month as well as a massage once a week for an hour. This treatment fits the statutory definition.

The question next asked is whether the treatment is reasonably necessary? Asked during the hearing whether the treatment helped, the applicant stated that it helps "at the time", but "after the next day or so when I go back to work and I'm doing all the heavy lifting again – I'm looking for the next treatment." As discussed above, the report provided for the applicant by Dr Griffith stated that there was "no role" for the type of manual therapy currently undertaken by the applicant. During the hearing Dr McGill was asked by the respondent's representative whether he saw any place for continuing chiropractic, physiotherapy or massage treatment. Dr McGill answered by saying that he did not think "passive therapy" has a useful role. He said that it may "make people feel good immediately after the treatment … . But it's not a productive form of treatment in the long term." When Dr Cummine was asked a similar question by the tribunal, he replied that he thought chiropractic assistance and physiotherapy are "humane forms of treatment which often give symptomatic relief" but that his view was "fairly neutral about it's need."
The tribunal is of the view that the ongoing chiropractic and physiotherapy treatment is not reasonably necessary for the applicant to obtain. The available medical opinion, provided by both parties, indicates that this treatment is not reasonable on a frequent and continued basis and that it is not "part of a plan for permanent improvement in the health of the employee; …" (ReAnita Chowdhary and Comcare [1998] AATA 448 at para. 53).
Claim for permanent impairment
The applicant's contention is that the nature and conditions of her employment from 1973 onwards, in addition to the compensable injuries outlined before, have made a material contribution to her injury by way of an acceleration or aggravation of the applicant's degenerative conditions in her cervical and lumbar spines, and now including her arms and legs, so that she also suffers from a permanent impairment in accordance with section 24 of the SRC Act. The impairment to the applicant's neck, lower back, arms and both legs, contends the applicant, arose after the 1997 fall. That is, the permanent impairment has been caused by the conditions of the applicant's employment since 1973, including the compensable injuries, but that the character of her injury as a permanent impairment only came to light after the fall in 1997. It is for this reason, contends the applicant that the bulk of the applicant's medical evidence focuses on the role played by the injury arising from the fall in 1997. Hence the fall of March 1997 is the point chosen at which the permanent impairment arises.

In order to understand the respondent's contentions it is necessary, as with the applicant's contentions, to refer to the respondent's closing submissions. The respondent's contentions at the start of this matter were that the applicant had degenerative conditions in her cervical spine and lumbar spine, and a constitutional abnormality in her lumbosacral area. Further, the respondent contended that any aggravation of these conditions in her work was of limited duration and the nexus between the applicant's conditions and work was remote, on the level of "possibility" rather than "probability". By the time of closing submissions, the respondent contended that although the applicant's original claim was based on the "nature and conditions" of work, the applicant was forced to shift the basis of her claim during the hearing towards the effects of the 1997 fall because the bulk of the applicant's evidence supported such a view. The respondent pointed to the 1999 consent decision, which stated that the injury on 5 March 1997 did "not give rise to any compensable permanent impairment". Mr Jones, counsel for the respondent, then went on to say:
Now, the consent decision specifically says, there is no permanent impairment arising out of that March 1997 incident. So what happened is, the applicant then ran off and manufactured … this nature and conditions claim and then comes back to you in final addresses and says to you, really it is March 1997. This is a classic attempt to double dip and come back and have another go at the matter, having entered into consent orders.
Mr Jones referred to a Directions Hearing on 9 March 2000 relating to the application A2000/14, discussed at paragraph 14, where the tribunal attempted to discover on what basis the applicant was bringing her then permanent impairment claim. That is, was the claim based on a "pre 1 July 1999" injury or an injury from some other date? It does not appear that any direction was made by the tribunal as a result of that hearing. The transcript reveals that the parties had reached agreement that the application be adjourned part heard so that the applicant's representative could prepare an application dealing with specifics in relation to the injury, which the tribunal did not appear to be satisfied had been done at that stage, if the injury was different to the injury covered by the 1999 consent decision. The respondent could then issue a determination which the tribunal believed had not been made in relation to that claim for permanent impairment, if, again, the claim did not relate to the injury covered by the 1999 consent decision. In any event, the matter was finalised by way of a discontinuance notice filed with the tribunal on 18 May 2000.
During the Directions Hearing, the tribunal, constituted by Deputy President Burns, made statements in relation to whether the applicant could make a permanent impairment claim linked to the 1999 consent decision. It is worth extracting some of these comments, as the respondent contends that the direction that the applicant's submissions took at the hearing of the current matter are in "direct contravention of what the Deputy President said."
THE D.PRESIDENT: … . So if permanent impairment is said to arise from the mild aggravation of pre-existing cervical spondylosis, my second question is extremely important and that is, when did it arise? Because if it is said to have arisen prior to 7 July 1999 then the consent decision gets rid of that. If it is said to have arisen after that point in time then that is a different ball game because 2(d) says, "The injury does not give rise". It is "the injury" and it is defined in the consent decision, it is very clear. Okay?
…
THE D.PRESIDENT: … . The consent decision admits liability with respect to an injury, described specifically in the consent decision, and if your client is suggesting that it arises out of the mild aggravation of pre-existing cervical spondylosis ---
MR LANDER: In part.
THE D.PRESIDENT: --- and is saying that the permanent impairment arose before, that is, it came into existence before 7 July '99, then she is out of Court. She is caught by the consent decision.
At this stage it is worth noting that the matter currently before the tribunal is not the same as the factual situation dealt with by the tribunal in ReDenison-Smith and Comcare [2000] AATA 553. Denison-Smith related to a "cease liability" determination in relation to an injury where an applicant did not seek internal review of the determination relating to s14 liability. A determination which relates to particular heads of compensation is different. In any event, there is nothing to prevent the applicant, in this matter, bringing a claim which relates to a period not covered by a previous decision of the tribunal. Just because the 1999 consent decision held that the 1997 injury does not give rise to any compensable permanent impairment does not mean that the applicant can not bring a claim for permanent impairment which is based on the contention that the applicant's nature and conditions of work, including the period after the 1999 consent decision, have been a causative factor in the development of a permanent impairment. The 1999 consent decision did not substantially relate to the nature and conditions of work and the current claim at least covers in part a period after the date of the consent decision. In effect, an earlier decision can not "bind anybody with respect to any future application because a future application would be with respect to a later period of incapacity and the AAT (also the respondent) cannot bind itself in advance of any such application" (Plumb v Comcare (1992) 39 FCR 236 per Lockhart J at 240; see also, Re Sabioni and Comcare [1999] AATA 763).
However, if it is established that the medical evidence in this matter suggests that the role of work-related causes in any permanent impairment of the applicant are confined to the injury in March 1997, there can be no permanent impairment as that question has already been determined. The applicant does not argue along those lines entirely and contends that the evidence shows that it is the "nature and conditions" of the applicant's employment which give rise to a permanent impairment. On this basis, then, the tribunal will consider all evidence in support of that contention.
Legislation
Section 14 of the Act states that the respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. An "injury" is defined by section 4 of the SRC Act as meaning a disease, an injury (other than a disease) being a physical or mental injury arising out of the course of employment and an aggravation of a physical or mental injury (whether or not that injury arose out of the course of employment) being an aggravation which arises out of the course of employment. Aggravation is defined to include an acceleration or recurrence of an injury. In an "outline of arguments" supplied by Mr Anforth, it is contended that the applicant's degenerative condition was asymptomatic prior to March 1993 and only "mildly symptomatic" until the injury in March 1997. It is said that in the absence of any evidence that the applicant would have "necessarily" arrived at her present symptomatic state, "but for" the nature and condition of her employment, her case falls to be determined as an aggravation rather than an acceleration. The applicant contends a material contribution by the nature and conditions of her employment, including the "aggravating compensable events".
The applicant made clear at the outset of these proceedings that it is not alleged that the applicant is incapacitated but only that she has a "fairly mild" level of permanent impairment. The relevant provision of the SRC Act is as follows:
24       Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3)       …
(4)       …
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
(8)       …
(9)       …

The applicant's evidence

The respondent asked the applicant to outline her daily duties at work, which the applicant did at length. Summarised, those duties are as follows. The applicant sorts and receives mail from the main depot and lifts tubs from trolleys (which are about "seat height") onto scales, which she then weighs. The applicant bends her back to lift the tubs, gripping them in hand holders. Although the tubs can weigh up to 16 kilos, the applicant will only lift tubs that weigh up to approximately 10 kilos. The applicant then lifts the tubs from the scales onto a desk. There may be six to eight of the tubs each morning. Then the applicant sorts the mail into pigeonholes. The height of the pigeonholes can extend above head height and the lowest holes are at thigh level. The holes extend approximately two metres to the left and right if the applicant is standing in the middle of the pigeonhole area. Sorting takes approximately 35 minutes. The applicant then sorts larger sized letters into their pigeonholes. This takes about 45 minutes. Her next job is to label parcels and fill out cards, which are placed in letterboxes for parcels, which are too large for the boxes. The cards are placed in the boxes and sometimes the applicant has to bend towards floor level. The applicant then deals with registered mail by filling out cards to inform addressees that they need to sign for registered mail. She then needs to fill in a registered mail book. There is more sorting of parcels to do after this, onto special shelves, which again involves reaching and bending. The applicant's current hours are between 6.30am and 11.30am. The applicant is married with two children. She gave evidence of sharing her domestic responsibilities with her husband, including vacuuming and hanging washing on the line, both being activities that require her to reach and bend.
The history of the applicant's symptomatology has already been largely outlined in the background above, which drew on both medical reports and her evidence to the tribunal. The applicant also gave evidence on the contents of the medical reports of Dr Chen, consultant in occupational medicine, dated 16 December 1997 and who examined the applicant on the same date (TD1 at T20) and Dr McGill, dated 8 August 2000 and who examined the applicant on the same date (Exhibit R1, p.2). Dr Chen's report was prepared for the respondent in relation to the March 1997 fall, and, in her medical history of the applicant, said the following in relation to the "episode of low back pain" in 1993 (TD1 at T20, p.61):
Ms Richards stated that circa 1993, she had an episode of low back pain which was work related. She could not recall the incident that led to her low back pain episode. She could not recall if she had had any time off work in relation to that incident. Apparently, she received physiotherapy treatment and traction for two weeks which helped. There was full recovery.
In relation to the March 1997 fall, Dr Chen said, among other things (TD1 at T20, p.59):
Her GP referred her to physiotherapy treatment which she attended once weekly for about two to three weeks. She could not recall exactly how long she attended physiotherapy. Apparently, everything settled within two or three weeks. She had no further difficulty.
The applicant was asked by Mr Anforth whether she recalled telling Dr Chen that after the 1993 incident her pain had gone away and the applicant replied, "No, definitely not." The applicant also denied telling Dr Chen that after the March 1997 fall that all the "neck pain" (as put by Mr Anforth) went away after a few weeks. She recalled telling Dr Chen that the pain had "settled down a little bit" but the "pain was always there." She said that she also told Dr Chen about experiencing headaches "at least a couple of times a week."
In his report from 8 August 2000, Dr McGill said that the applicant had "today stated that her symptoms settled "in a few days" after the March 1997 fall. Again, in evidence, the applicant denied having told Dr McGill that her "neck pain" (as put by Mr Anforth) had settled within a few days after the March 1997 fall. She recalled telling Dr McGill that "it sort of settled a little bit but it was – it never completely went away, there was always pain there." In oral evidence, Dr McGill confirmed that the applicant had stated that her symptoms had settled "in a few days".
The respondent challenged the applicant's evidence in relation to her memory of whether she did tell Dr Chen that she had recovered from the 1993 injury. Although the applicant denied in evidence having told Dr Chen on 16 December 1997 that there was a full recovery from the injury in 1993, the applicant did state on 1 December 1997, as was pointed out by the respondent in cross-examination, that: "In 1993 I had an injury to my back, whilst performing my normal work duties. However, I fully recovered from this injury" (Exhibit A5, applicant's statement of 1 December 1997, p.1).
Despite Mr Anforth's focus upon neck pain, in cross-examination, Mr Jones focussed at length on the applicant's back pain during the period between 14 February 1994 and 30 April 1998. The applicant was asked why, if she had been experiencing back pain throughout this period, that is after March 1993, no mention was made of back problems in the medical notes of Dr Guirguis. The relevant period amounted to 35 consultations with Dr Guirguis during which the applicant was treated for a variety of medical problems, yet back pain was not mentioned in his notes once during that time. It was put to the applicant that his was consistent with the statement by Dr McGill that the applicant's back pain had settled within two weeks. Exhibit R7 is an extract from the Calvary Hospital clinical notes dated 18 October 1992. On that date the applicant was complaining of neck pain as a recurrent problem. Again, the respondent suggested to the applicant that at the time she did not attribute the pain to her work and, in particular, she did not say to any doctor that her duties at work were causing her pain.
The respondent had obtained a copy of a letter from the applicant's solicitor, Mr Lander, to her dated 25 May 1999 (Exhibit R8) from summonsed material. The purpose of the letter was as a follow-up to the outcome of the settlement of the applicant's claim in 1999, resulting in the consent decision of the tribunal. In particular, the respondent drew the applicant's attention to the following statements contained in the letter:
Finally, you will bring to me a fresh claim form for compensation and we will make the claim for work related lower spinal injury together with aggravation of injury to your neck, shoulders and arms arising from twenty years of heavy duties and counter work with Australia Post. We will take our chances with that claim through primary, reconsideration and AAT phases because it is essential that you do this both to protect your employment position and to hopefully ultimately achieve an impairment payment.
Please in future follow my advice meticulously in relation to treatment and certainly confer with your doctor on a more regular basis than you have in the past. A six months gap is simply too long.
The respondent asked the applicant who was the person who had suggested to her that she had a work related lower spinal injury with aggravation of that injury to her neck, shoulders and arms caused by twenty years of duties. In particular, the respondent suggested to the applicant that no doctor had suggested this causation by the time of the solicitor's letter. The applicant replied that she did not know whether a doctor had told her these things but that "I've never had any other injuries or anything like that sort of thing at home, that it couldn't be anything other than work." The respondent put to the applicant that the current claim was an attempt to "cobble together" the incidents of 1993 and 1997, and to "get more money" for "something for which you have already been compensated", which the applicant denied.
During the hearing the respondent put it to the applicant that her evidence in relation to back pain had been influenced by her solicitor's views. To reinforce this line of questioning, the respondent pointed to a five page document called "Case Summary: Cynthia Richards" which had been entered into evidence as part of Exhibit A1. The applicant's solicitor had sent this summary to Dr Scott, occupational physician, on 24 July 2000, when requesting an opinion from Dr Scott about the applicant's capacity for work and whether she required any treatment. It was clear that the applicant had taken this summary to her examination with certain doctors, including Dr McGill, who had commented on the applicant's reliance on this document when relating her medical history for the purposes of examination (see Exhibit R1, p.2).
In evidence the applicant said that since the fall in March of 1997 the pain in her neck and right shoulder, as well as in her lower back, has been worse. She said that the pain is usually at its worst after work, when it gets "to the stage where I have to go and lie down if I can for a period of time." The pain has spread down her arm to her elbow (on the "outside" or "top" of her arm). According to the applicant, in 1998 a new post office configuration was introduced which meant more post office boxes. Many of these new boxes were located higher and necessitated higher reaching. The applicant noticed her arm getting sorer as a result of these changes. The applicant claims to experience headaches "all the time", that is, every day. In evidence the applicant also reported pain in her legs especially if she climbs stairs and the "fronts of my legs sort of get pins and needles in them." The pins and needles also come about if the applicant stands for a long period of time. On further cross-examination, the applicant agreed that the pins and needles go once she starts moving around.
After the March 1997 fall, the applicant saw Dr Guirguis and complained of headaches. In cross-examination, she admitted that she had been experiencing headaches before the March 1997 fall (as is clear from Dr Guirguis's medical notes) but that after the fall her headaches had been "more severe". The respondent suggested to the applicant that her symptoms had settled soon after the March 1997 fall, to which the applicant said they had "sort of" settled but "never went away". Despite the applicant's evidence that after the fall her neck pain had been worse, the respondent put it to the applicant that it was not until October 1997 that neck pain was complained of, and then again in November 1997. This meant a seven month gap between the 5 March 1997 fall and the October 1997 complaint of neck pain. The applicant saw Dr Guirguis on 7 March 1997, two days after the fall. Dr Guirguis noted that the applicant had fallen and injured her knee, arm and neck (Exhibit R6). Then on 19 March a complaint of pain and stiffness was noted by Dr Guirguis. On 19 April Dr Guirguis recorded chest wall pain and gastric pain and then on 22 April that the applicant had been "much better the last five to seven days." The respondent suggested to the applicant that there was "no further attendance on your GP about the problems that you nominated when you had the fall, that is the left knee, neck, right arm, until 10 October 1997", when Dr Guirguis's notes recorded "recent neck problem" as well as an upper respiratory tract infection. The respondent again put it to the applicant that her problems arising from the March 1997 fall were "over in a few days", then not recurring until October 1997, meaning that Dr McGill's history contained in his report from 8 August 2000 was correct. The applicant said that she agreed "that it had sort of settled, but I still was having trouble."

In cross-examination the respondent also focused upon the period after the settlement of the applicant's claim in 1999. The settlement of the applicant's claim was confirmed by the applicant's solicitor on 25 May 1999 (Exhibit R8). The respondent focused on the applicant's attendances on Dr Guirguis after that date to see if the applicant's neck condition was ever covered during those consultations. Between 20 May 1999 and 9 October 2000 the applicant saw Dr Guirguis on approximately 17 occasions. There is no mention of the applicant complaining about neck pain in Dr Guirguis's medical notes over this period. The applicant's position is that she was experiencing neck pain throughout this period. The respondent put to her that if she was experiencing neck pain, it would have appeared in Dr Guirguis's notes. The respondent asked why, given the applicant was receiving specialist treatment for her lower back, the applicant had not sought specialist treatment for her neck pain. The applicant's answer was that she was still not free of pain throughout this period.
During this stage of cross-examination, the applicant did contradict herself in relation to neck pain. She at first suggested that:
at that time and all during that time, I was having chiropractor and massage problems, so I knew that my GP knew of the problems that I was having and thought well, you know, he's only going to refer me for more treatment , so I'll just go and see my chiropractor and my massage, which I did.
At a later stage, the tribunal asked the applicant if it was her evidence that she did talk to Dr Guirguis about her neck "consistently all the way through to October last year", to which the applicant answered that it was. And further, it was asked, for some reason or another Dr Guirguis had not recorded the applicant's neck "as an issue in his notes". The applicant replied "Yes. No, but he was always aware of the - my neck problem and my lower back problem." The applicant was unable to say with certainty whether or not she had complained to Dr Guirguis about her neck problem.
In relation to the applicant's evidence that pain in her right shoulder, between the shoulder blades and in her upper back is caused by her work conditions, the respondent questioned the applicant about her consultation with Dr Wright on 16 May 1999. The applicant had seen Dr Wright on that date at the Canberra After Hours Locum Medical Service about back pain. The applicant had told Dr Wright about a coughing fit she had experienced two nights prior to the consultation leading to pain in that area. She also told him about a past history of back and neck problems, as well as hay fever. Dr Wright diagnosed a muscular back pain which had been caused by the applicant's coughing, which, in evidence, the applicant agreed was true. He suggested the application of heat packs and taking painkillers to treat the problem.
As noted above, the applicant has been receiving chiropractic treatment. At the time of the hearing, the last occasion on which the applicant saw her chiropractor was two weeks prior to the hearing and before that visit, in November 2000. The respondent asked, if the applicant has been in pain throughout the period from November to the time of hearing, she had not sought chiropractic treatment on a more regular basis. The applicant's answer was that she had been too busy at work, sometimes not finishing until 5.00pm and thus working 9 hour days. The reason she could not see a chiropractor during other non-work time was that she could not always make an appointment as the chiropractor was too busy. The respondent asked why, if the applicant was working shorter hours in January 2001, she still did not visit the chiropractor. The applicant thought she was still working some extended hours at that stage. But then the applicant suggested another reason, which was that she was notified by the respondent around September (the actual date being 24 November 2000, TD2 at T5) that it would no longer pay for such treatment. So, the applicant thought, "I tried to perhaps do without it. Not because I didn't think it was beneficial to me, but I didn't just know how long, or what the cost was going to be to me."
During the hearing of this matter the applicant gave evidence that when she was examined by Dr Ashman, surgeon, whose report is dated 22 August 2000 and Dr Cummine on 27 July 2000 there was very little in the way of a typical medical examination. In particular, the applicant said that Dr Cummine only asked her to bend over and touch her toes. This evidence was supported by the applicant's sister, Ms Cheryl Williams, who gave evidence on the applicant's behalf suggesting that Dr Cummine's examination was cursory only. Ms Williams accompanied the applicant when she visited Dr Cummine's consultation rooms. Unfortunately the bulk of Ms Williams's evidence consisted of questions from the respondent directed at whether Ms Williams had been reading her evidence in chief from a previously prepared document, which the witness denied. The evidence of Ms Williams was argumentative and deliberately evaded the questions put to her by the representative for the respondent. She refused to admit that she had been reading from a previously prepared document, when it was obvious she had been, or that she had been previously alerted to the issue of the nature of Dr Cummine's examination of the applicant as the focus of her giving evidence, when it was also clear that she had been. Mr Lander, the applicant's solicitor in this matter, gave evidence following Ms Williams to the effect that she had been notified of this issue prior to giving evidence.
In oral evidence, Dr Cummine stated that in examining the applicant's neck he would have asked her to move her chin to her chest as far as possible, asked the applicant to move her head from one side to the other, bend her ear to her shoulders, to stand so that he could examine for levels of deformity, twist or rotate her spine, to bend to the left and right, and so on.
The medical evidence
The earliest significant medical evidence available to the tribunal relates to the applicant's compensable injury from the 1984 motor vehicle accident. As mentioned above, the applicant received treatment from Dr Beckett during 1984 in relation to the accident and the history recorded in his report (TD1 at T8) refers to a gradual improvement in the applicant's condition. On 14 June 1984 Dr Beckett diagnosed musculo-ligamentous injury to the applicant's cervical spine and she was referred to physiotherapy. On 22 June 1984 Dr Beckett recorded that the applicant had "vastly improved with only a minimum amount of pain" and she was discharged from treatment. However, the applicant returned to Dr Beckett on 19 September 1984 with a "mild exacerbation of her neck pain, the initiating cause of which was unknown." Dr Beckett organised an X-ray of the applicant's cervical spine which was "clear of pathology" and she was treated with medication and physiotherapy, "to which she responded well." Dr Beckett concluded that the applicant had suffered a soft-tissue flexion injury to her cervical spine which, to his knowledge, had healed and that the applicant "should not have any permanent sequelae" (TD1 at T8, p.22).
As already discussed, Dr Chen, a consultant in occupational medicine, prepared a report dated 16 December 1997 after examining the applicant on the same day (TD1 at T20). Her examination of the applicant's neck showed a full range of movements with some slight "grabbing" sensation in the right upper trapezius region with lateral flexion towards the right. She said that the applicant's shoulders had a full range of movements. In Dr Chen's opinion, the applicant's headaches were due to a dysfunction in the upper cervical spine. She did not consider that the applicant's then current inability to perform her usual duties were due to the fall in March 1997.
There were two reports of Dr Stubbs, orthopaedic surgeon. The first, dated 19 March 1999, reported that on examination the applicant's neck flexion was normal but that there was mild cervical discomfort in the last 10 degrees of extension. Her lower back was reported normal. Dr Stubbs's opinion was that the fall in March 1997 did not contribute to the worsening of the applicant's spondylosis. He had no reason to doubt her statement that she did not have symptoms of spondylosis before the fall. But if she was having continuing treatment for spondylosis after September 1997 then the continuation of her symptoms should be regarded as a continuation of the original aggravation not as a separate problem. He assessed her as having a mild level of physical impairment with 5% (under Table 9.6 of the Guide) whole person impairment on the basis of minor restriction of movement of the cervical spine.
On 22 March 1999 Dr Stubbs provided an addendum to the 19 March 1999 report, which he explained was dictated immediately after seeing the applicant and before having had a chance to examine the T documents (TD1 at T30). Following a review of Dr Chen's report of 16 December 1997 (which recorded a different history to the one the applicant gave to Dr Stubbs) he stated as follows:
Since Dr Chen's report was written in December 1997 it seems to me that Mrs Richards' memory of events would be fresher than they are now, two years later.
If Dr Chen's record of events is correct, then it would seem to me that Mrs Richards attack of neck problems after her fall was a temporary exacerbation of her problems which settled down and the problem she reported in October 1997 though also an attack of cervical spondylosis, must be regarded as separate from the fall and having no significant relationship to it.
Dr Stubbs was of the view that if Mrs Richards' attack of cervical spondylosis precipitated by the fall amounted only to a temporary exacerbation then the effects would have settled within 3 months, by the end of June 1997. If there were permanent effects from the injury then the applicant, according to Dr Stubbs, would have continued to have had symptoms after that time (through July, August and September). This would mean that the worsening in October 1997 "could only be interpreted as merely a flare-up of the condition established by the fall of March 1997." Dr Stubbs suggested that if the applicant's medical records did not show she continued to seek treatment throughout this period "it would strongly suggest that the problems that arose in October 1997 whilst still caused by her cervical spondylosis, are independent of her fall."
Dr Stubbs opined that the applicant's cervical spondylosis on the balance of probabilities is an aggravation or acceleration of a pre-existing underlying condition. The fall in March 1997 was a contributing factor and age is the only other contributing factor. He assessed the degree of permanent impairment as 5% whole person impairment.
Dr Scott, occupational physician, examined the applicant on 26 August 1998 and provided a report for the applicant on 22 September 1998 (TD1 at T26). His examination showed that the flexion/extension rotation of the applicant's neck was normal and that her lateral flexion caused neck pain. In relation to her lower back, he found that her flexion/extension rotation was normal. Similarly, the applicant's straight leg raising was 80 degrees to the right and 90 degrees to the left, which is, as far as the tribunal is aware, normal for a woman of the applicant's age. Dr Scott's opinion was that the applicant had musculo-ligamentous strain in the neck and right shoulder and an aggravation of a previously asymptomatic degenerative spinal disease.
On 5 February 1999 Dr Scott examined a number of X-ray and ultra-sound results which showed minor degenerative changes but no abnormality (TD1 at T28). He made a permanent impairment assessment of 5% under Table 9.1 (upper extremity) of the Guide and 10% under Table 9.5 (limb function – lower limb) of the Guide (TD1 at T28, p.85).
On 27 November 1999 Dr Scott provided another report (TD1 at T43). He reported that the applicant's neck was "clinically normal". Her shoulders had normal "power" but while the abduction of her left arm was normal, abduction of her right arm caused pain at 120 degrees. Her lower back demonstrated normal movements. Dr Scott's opinion was in agreement with the opinion of Dr Stubbs dated 19 March 1999 and said that the applicant's condition was related to the fall in March 1997. He reported that the applicant said she had no pain before the fall and accepted this. Dr Scott further said: "I believe that her condition is related to the fall in March 1997 – an aggravation and acceleration of a pre-existent but asymptomatic degenerative spondylosis. I believe this relationship is on the balance of probability, not possibility" (TD1 at T43, p.113). He made a further assessment of the applicant's permanent impairment rating with Table 9.1 (upper shoulder) being 10% and Table 9.5 also 10%.
Dr Griffith, surgeon, provided a report to the applicant's representative dated 16 August 2000 (Exhibit A2). His examination of the applicant's neck showed minor restrictions in her flexion/extension, lateral flexion and rotation. Her shoulders had full range of movement. His examination of the applicant's lower back showed flexion to 100 degrees, with normal performance in her extension, lateral flexion and rotation. In Dr Griffith's opinion, the aggravation of soft tissues in the applicant's cervical region was consistent with a non-ergonomic workplace. He said that the applicant was not asymptomatic between March 1999 and October 1999. Her ongoing symptoms, he said, were more likely to have a structural basis related to the aggravation of the spondylosis, rather than to its presence. He further said that "were spondylosis of this degree her sole complaint, and had she not suffered injury, it is more likely than not, on the balance of probabilities, that she would not be suffering significant symptoms of the nature and degree of those which she currently complains" (Exhibit A2, p.8).
In a report dated 15 April 1993 Dr Guirguis recorded a history of back pain (TD1 at T17). Dr Guirguis related to this to the applicant's work activities, particularly the requirement to carry boxes, lengthy periods of time spent standing, back manoeuvring and other repetitive movements. An X-ray performed on 18 February 1993 showed that there were minor degenerative changes in the applicant's lumbo-sacral spine. Dr Guirguis also reported stiffness of the para-spinal muscles and decreased mobility of the lumbo-sacral spine. His opinion was that the applicant had a pre-existing degenerative back condition that had been aggravated by work.
On 13 October 1998 Dr Guirguis reported that the applicant was in continuous pain and discomfort following the fall on 5 March 1997 (TD1 at T27). He reported continuous pain and discomfort in the applicant's spine, right shoulder and some pain in her left knee. His opinion was that the applicant was suffering the consequences of the fall in March 1997. He also reported that the applicant suffered from a "cumulative trauma disorder affecting her neck and right shoulder" (TD1 at T27, p.81). Her injuries had "aggravated a pre-existing degenerative spinal disease". In oral evidence Dr Guirguis stated the principal diagnosis of the applicant's neck problem as being a "sprain/strain type injury, mainly related to her occupational activities, on a background of minor degenerative neck disease." He said that the applicant's shoulder problem is "purely musculo-skeletal", again "from repetitive activities". He said that the applicant's back problem was the same as the neck problem.
On 30 March 2000 Dr Guirguis reported similar findings and outlined the restrictions that he had recommended in relation to the applicant's work duties (TD1 at T53). These included an avoidance of excessive overhead activities and the use of an appropriate stool to reach reasonable heights, an avoidance of lifting weights more than 10 Kg, task rotation and frequent rest breaks, 5-10 minutes every hour.
In oral evidence Dr Guirguis agreed that he was aware that the applicant suffered ongoing neck and back pain between February 1993 and March 1997. However, he said the neck pain was more longstanding and the back pain became more of an issue after the fall in March 1997. He said the applicant's "complaint of headache was always accompanied by the neck pain". He also said that the applicant continued to suffer neck and shoulder pain after May 1999. Dr Guirguis said that he would not always record neck pain in his notes when the applicant complained about it. Again, although he did not note it at the time, Dr Guirguis said that he always understood restriction in the range of movement to the applicant's right shoulder to be an accompaniment to neck pain. Dr Guirguis said that the applicant has had some leg pain, which is associated with nerve compression in the lower back with pain radiating to the legs.
In cross-examination Dr Guirguis agreed that degenerative conditions can cause flare ups of pain but added that the applicant's repetitive work duties have aggravated her condition. Dr Guirguis was asked about what the pathology was which the applicant's work had brought about. He explained that "when you have repetitive work, you put little microtraumas on the tendons, the ligaments and the muscles." With repetitive work the microtraumas:
are always happening, day after day, week after week, and then the muscles and the soft tissues will get inflamed, and then this inflammation will settle down by what we call the healing process. And the healing process will result in scar tissue, or fibrous tissue. Now, the fibrous tissue is not as resilient or not as flexible as the normal tissue, and that's why this injury will take a long, ling time and it will – it may never heal, actually, because the scar tissue will always be scar tissue.
The evidence for this theory being applicable to the applicant, according to Dr Guirguis, are her pattern of symptoms and tender spots on her body which indicate scar tissue.
The respondent asked Dr Guirguis if the applicant's condition was aggravated by work, would he expect her to be suffering the major symptoms whilst working, which Dr Guirguis said is not necessarily the case. He agreed with the view that symptoms can occur some weeks after the aggravating activity, which explained why Dr Guirguis was willing to link work causes with the complaint of lower back pain on 5 July 2000 despite the fact that the applicant had been off work for 3 months. Similarly, the applicant was able to link the pain incident in September-October 1997 with work despite the fact the applicant had been on leave for 2 to 3 weeks.
The respondent also suggested to Dr Guirguis that it is difficult to relate the applicant's bi-frontal headaches to neck pain, which he rejected. Dr Guirguis said that you can have referred pain from the neck to the front of the head and the stress from the neck pain can cause headaches in the front and top of the head. The pathology for this phenomenon was explained on the basis of the nerves from the neck going in the direction of the front of the ear and maxilla.
In relation to the applicant's leg pain, Dr Guirguis said in cross-examination that the pain was a nerve pain radiating from the thoracic nerve, and the L4, 5. He was unable to say where specifically in the applicant's leg the pain was, other than it affects the whole leg.
The tribunal took into evidence reports from Dr McGill, rheumatologist, and also heard evidence from him by telephone. On 8 August 2000 he examined the applicant and prepared a report (Exhibit R1). His examination of the applicant's neck showed that her flexion/extension was full and that her lateral flexion was 75% of normal and rotation was 90% of normal. The major symptom reported was bi-frontal headache. But Dr McGill did not think this headache was related to cervical spine disorder but was rather a tension headache. In his opinion there was some very minor degenerative disease in the applicant's cervical and upper lumbar spine. He considered that the fall in March 1997 caused a temporary aggravation of spondylosis which settled in a few days. In Dr McGill's opinion, the "many other episodes of neck pain that she has experienced I think have been unrelated to her work activities. It is typical of cervical spondylosis to cause flares of neck pain in the absence of any precipitant and the history she provided was entirely in keeping with that" (Exhibit R1, p.6). He believed that the applicant was fit for normal duties. In oral evidence Dr McGill confirmed this evidence and said that the applicant's situation was consistent with minor degenerative change in the neck for someone of the applicant's age.

On 8 August 2000 Dr McGill provided ratings under the Guide in relation to permanent impairment, which were 5% whole person impairment in relation to the cervical spine and 0% impairment in relation to the thoraco lumbar spine (Exhibit R5). He further wrote that the applicant's "cervical spine impairment is entirely related to constitutional degenerative cervical spondylosis with no component related to her work duties with Australia Post."
In oral evidence Dr McGill was asked to comment on the applicant's history of experiencing intermittent neck pain, such as the complaint on 19 September 1984 to Dr Beckett. Dr McGill said that people with "quite mild degenerative change" can
"just experience flare-ups of pain." Dr McGill was apprised of the applicant's oral evidence during the hearing and asked to comment on it. Dr McGill said that it would be "fair to summarise the whole history as one of intermittent episodes of spinal pain without a history of any specific incident for most of those episodes…". Dr McGill did not think there was any correlation in the applicant's history between being at work and her symptoms being worse. In relation to periods of increased pain when the applicant was away from work, such as in September 1997, Dr McGill said this may reflect "the natural history of her mild degenerative spinal disease" or even that the applicant was "more unhappy" when she was away from work, which could increase feelings of pain. In any event, Dr McGill agreed with the proposition that if a particular activity such as work was causing pain one would normally expect to experience that pain at work or shortly after performing those activities. Dr McGill said that a pain that arises weeks or months after ceasing an activity "can't possibly be related back to the previous activity." Dr McGill explained the applicant's CT scan reports with the same view, of natural progression of the degenerative condition.
In relation to the applicant's experience of pain from the neck across her shoulder and down the outer aspect of her arm, Dr McGill did not believe it suggested nerve root irritation but either somatic referred pain or muscle tension. Somatic referred pain, he explained, means that pain stimuli starts in the neck, the message is sent to the brain and the brain then interprets this message as having come from somewhere other than the neck. Dr McGill also did not accept suggestions of nerve root irritation in the applicant's leg when the site of irritation was explained in evidence as the thigh, this being unlikely for degenerative change. He also rejected the theory of cumulative trauma disorder as propounded by Dr Guirguis on the basis that he did not know of any evidence supporting the concept that repetitive movements can cause scar tissue, calling it a "nonsense basically".
On the question of neck pain causing referred pain in the nature of bi-frontal headaches, Dr McGill was of the view that this was unlikely. He said that cervical spine disease can cause neck pain radiating to the back of the head and then radiating from that point (the occiput). But given that the applicant's headaches were across her forehead in a symmetrical manner and occurring mainly in the morning, he was of the view that they were more likely tension headaches.
Much of the cross-examination of Dr McGill focused on his refusal to accept that repetitive movements of the nature that the applicant undertook are capable of contributing to degenerative change and his support of the view that inheritance and age were more likely to be the causes of spondylosis. The representative for the applicant also described the history of symptoms experienced by the applicant and the nature and conditions of her work duties and asked Dr McGill whether he denied that work duties could be one material contribution to the applicant's condition, amongst others, such as age and inheritance. Dr McGill repeated his view that he did not believe work duties had contributed to the aggravation of the underlying progress of the degenerative condition. However, he did accept that there could be some occupations which involve heavy strain or force on the spine which could accelerate cervical spondylosis without there being a particular episode, such as a rugby prop on a professional basis over a number of years. But there would not be a work contribution for a person lifting bags weighing 20 kilograms on a repetitive basis. Dr McGill could not recall having in the past diagnosed an exacerbation of cervical spondylosis caused by length of time and effort bending, lifting, carrying or digging.
Dr Cummine, orthopaedic surgeon, also provided reports and gave evidence on behalf of the respondent by telephone. On 1 August 2000 he provided a report after examining the applicant on 27 July 2000 (Exhibit R2). His examination of the applicant's neck showed near full range in her flexion/extension and lateral rotation, with some pain and lateral flexion at two thirds of the normal range. In oral evidence Dr Cummine confirmed these findings, and added that the applicant's shoulder flexion was 160 degrees. In relation to the applicant's thoraco lumbar spine, he stated that lateral rotation and lateral flexion was restricted at the extremes. In oral evidence Dr Cummine added that flexion to the mid-tibiae was near normal for a woman of the applicant's age. In Dr Cummine's opinion, the evidence suggested symptoms arising from an underlying degenerative disc disease of minor severity in the cervical and lumbar spine. The injuries sustained by the applicant, including the fall in March 1997, "have acted as a temporary aggravating and/or precipitating factor but I do not think they will have significantly altered the natural history of the degenerative process in the patient's neck or low back" (Exhibit R2, p.5).
In a supplementary report dated 1 August 2000 Dr Cummine provided impairment ratings for the applicant (Exhibit R3). In relation to the applicant's cervical spine under Table 9.6 he estimated a whole person impairment of 5%. Dr Cummine added that he thinks "the bulk, if not all of the impairment assessed, relates to the disease process and is not related to any temporary aggravations that may have been sustained in the course of her work." In relation to the thoracolumbular spine, Dr Cummine estimated a whole person impairment of 5%. He repeated that "[o]nce again, I think any assessable permanent impairment relates to the degenerative process and I do not think any of the incidents described have anything other than a temporary aggravating factor only in terms of symptoms." Dr Cummine stated in oral evidence that he stood by these views in relation to the applicant.
In another report dated 20 February 2001 Dr Cummine stated that his opinion dated 1 August 2000 (Exhibit R2) was based on the demonstrated pathology in the applicant's cervical and lumbar spine (Exhibit R4). He stated that at this time there is no evidence that "repetitive minor trauma" has been established as a cause "for either the initiation of, or the exacerbation of underlying degenerative process."
In oral evidence Dr Cummine supported the view that there would need to be a temporal connection between the experience of a flare up of pain and work related activity for there to be a causal link between the two. He also rejected the theory on the basis that it had not been proven to exist as a medical condition.
Under cross-examination, Dr Cummine rejected the proposition as not yet certain that aging of the discs in spondylosis is a product of "wearing and tearing". But he accepted that there is a relationship between certain occupations and the instance of discreet major trauma. However, he was not aware of a close correlation with the degenerative process. He agreed that it as possible, but, in this case, there was nothing more than a temporary aggravation of the underlying condition. The representative for the applicant asked Dr Cummine, in relation to temporary aggravation (and here he referred to the fall in March 1997), if the symptomatology after that event remained permanently higher, how else does one account for that elevation other than through permanent aggravation? Dr Cummine answered that there can be many other causes of the aggravation, that it was unlikely what he saw as a temporary aggravation could have permanently aggravated the condition and that he saw no evidence otherwise.
Conclusions
Counsel for the applicant in this matter explained the alleged aggravation of the applicant's permanent impairment as a combination of the compensable injuries and the "nature and conditions" of work. The applicant's degenerative condition, explained counsel, was asymptomatic prior to March 1993 and only mildly symptomatic until the injury in March 1997. The tribunal will first consider whether any of the compensable injuries have contributed to the aggravation of the applicant's degenerative condition so as to have helped produce, in combination with work duties over a number of years, a permanent impairment.
The applicant sustained a work-related injury in 1984, for which the respondent accepted liability which, the evidence establishes, settled within a few weeks. Although the applicant returned to see Dr Beckett on 19 September 1984 with neck pain, the medical evidence shows that her compensable injury settled shortly after a few weeks from the time of the injury.
The applicant's next work-related injury, for which the respondent accepted liability, occurred in early 1993. According to Dr Guirguis, the applicant's work with the respondent had aggravated her degenerative back condition. The tribunal is of the view that this condition settled shortly after the injury occurred. Dr Chen's history in 1997 recorded that the applicant had "fully recovered" from her lower back pain. In a statement dated 1 December 1997 the applicant herself said that she had fully recovered from the injury to her back in 1993. There is therefore no reason to prefer the applicant's statements in oral evidence that she did not tell Dr Chen this history as it seems to suggest recent invention. There is also no evidence of reported back pain in the applicant's GP's medical notes between February 1994 and 30 April 1998, over some 35 consultations.
Although the arguments in favour of not considering any permanent impairment which might arise out of the injury on 5 March 1997, as this was dealt with in the 1999 consent decision, are strong, the tribunal will consider the evidence. The tribunal notes that it does prefer the arguments of the respondent in this regard. As already noted on a number of occasions, the 1999 consent decision stated that no permanent impairment arises out of that injury. If the applicant's case depended entirely on that injury, the tribunal would be inclined to find the applicant "out of court". The tribunal is of the view that it is more than likely that the aggravation, if any, caused by the fall on 5 March 1997 was temporary rather than permanent. It prefers the opinions of Dr Stubbs, Dr McGill and Dr Cummine to that of Dr Scott or Dr Griffith. There are a number of reasons for this. Dr Chen recorded in December 1997 that "everything settled within two or three weeks" and that the applicant "had no further difficulty." Once again, the applicant disputed this history in oral evidence, that she had only said that the pain had "settled down a little bit" and was always there. This seems again to indicate recent invention when considering that Dr Chen's history was taken in the same year of the relevant injury, a point made by Dr Stubbs in his report of 22 March 1999 (TD1 at T30). Dr Chen's history was later reinforced by the history in Dr McGill's report of 8 August 2000 where he quoted the applicant as saying that her symptoms from the March 1997 injury had settled "in a few days". In oral evidence, Dr McGill was questioned about this statement. In referring to his handwritten notes, he said that he had recorded the applicant as saying the symptoms had "settled in a few days". Dr McGill also said that he would have only used inverted commas if the applicant had actually used those words.
Dr Stubbs was of the view that, if Dr Chen's history was accepted, the injury from the March 1997 fall caused only a temporary aggravation. His view was that if the effects were more permanent the applicant would have continued to experience symptoms well before her reported neck spasm in October 1997. However, despite the applicant's oral evidence that she was experiencing worse neck pain after the fall in March 1997, there was no record of complaints about neck pain between 22 April 1997 and the record of neck and other pain on 10 October 1997. Presented with this evidence the applicant said it had "sort of settled" but she was "still having trouble". The tribunal prefers the documented evidence, as found in the medical notes, to the applicant's oral evidence in this regard. The tribunal does not accept the applicant's and Dr Guirguis's explanation that Dr Guirguis "knew" about alleged ongoing neck pain without any specific reference to the problem in his notes during the relevant period, given that many other problems were detailed in those notes. Dr Stubbs's opinion was that the "flare up" in October 1997, though related to the applicant's spondylosis, was unrelated to the fall in March 1997. Both Dr McGill and Dr Cummine also agree that the injury sustained on 5 March 1997 produced only a temporary aggravation of the applicant's degenerative condition.
On the question of ongoing neck pain, there is again no mention of neck pain in Dr Guirguis's medical notes between 20 May 1999 and 9 October 2000. The applicant said that back pain is not mentioned in the notes because Dr Guirguis knew the applicant was receiving specialist treatment. The applicant could not explain why, if she was experiencing ongoing neck pain in this period she was not also receiving specialist treatment for her neck. But she also contradicted herself by saying at a later stage that she was mentioning neck pain to Dr Guirguis "all the way through to October last year", even though it does not appear in the notes. Doubt over the existence of ongoing, indeed daily, pain is further reinforced by the evidence that since November 2000 the applicant had only seen her chiropractor twice by the time of the hearing in March 2001. The applicant's explanation was based on being too busy at work, sometimes working 9 hour days during this time. But it is clear she was not working such hours every day. Her other explanation was that she was notified around September 2000 (the actual date being 24 November 2000, TD2 at T5) that the respondent would no longer pay for the consultations.
The tribunal turns next to the question of whether the applicant's nature and conditions of work have materially contributed to the aggravation of the applicant's underlying degenerative condition.
The tribunal did not find the evidence of Dr Guirguis convincing. His evidence tended towards that of a patient advocate with a repeated focus upon what the respondent had to "learn" about its work practices. Dr Guirguis was unable to specify evidence for the presence of "microtraumas" other than the pattern of symptoms and the applicant's own statements that certain parts of her body were tender, thus indicating scar tissue. The tribunal asked Dr Guirguis about what he meant by repetitive work duties causing the "microtraumas". Dr Guirguis said it involved "doing the same thing over and over again … in the vicinity of one to two hours at a time". It was clear from the applicant's own evidence that she does not do same thing "over and over again" for such a length of time, but that her duties are varied and not particularly strenuous. There was no evidence that her duties as exist now are radically different to what she has done in the past. In any event, the theory of "microtraumas" was not convincing.
In relation to the applicant's neck spasm incident on in October 1997, the respondent questioned the applicant as to why she attributed the spasm to work given that she had been on recreation leave since 17 September 1997. The respondent asked Dr Guirguis why he must always link symptoms with the applicant's work especially in relation to those occasions when the applicant had not been at work for some time. Dr Guirguis accepted the proposition that a degenerative condition can cause flare-ups of pain, but refused to accept this as a possible explanation for the applicant's alleged flare ups, for example in October 1997. As he could find no other precipitating cause, Dr Guirguis focused on the applicant's work duties rather than the progression of her degenerative condition. The tribunal prefers the views of Dr McGill, Dr Cummine and Dr Stubbs that aggravation from the applicant's work duties was more likely than not to have played no role in these flare ups but they rather represented the progression of her clearly demonstrated degenerative condition.
Dr Guirguis's explanation of "referred pain" for the applicant's bi-frontal headaches was also unconvincing. Dr Guirguis could not explain why in the references to headaches in his medical notes he did not mention "referred pain" as the cause.
Dr Guirguis said that cumulative trauma disorder was "a new fancy name for RSI, for repetitive trauma disorder". However, Dr McGill rejected the existence of the disorder as described by Dr Guirguis outright and Dr Cummine, although aware of arguments in support of the existence of the disorder, was not prepared to accept it as proven. The tribunal is not prepared to accept the disorder as objective medical fact and especially so given that it does not accept the presence of "microtraumas" in the applicant.
The tribunal saw little value in the opinion of Dr Griffith as it, like Dr Scott's, relied heavily on the role played by the injury in March 1997, which was dealt with by the consent decision in 1999, which, the tribunal believes, produced only a short-term aggravation, if any. Dr Griffith also does not explain satisfactorily how a "non-ergonomic" workplace has played its role in aggravating the applicant's condition, especially how it is that the counters (benches) she works with are "non-ergonomic". His opinion in this regard also depended on the applicant's report of the nature and conditions of her duties, and in a question put to the applicant in this matter she was not able to explain what ergonomic meant. Dr Griffith has decided that the workplace is "non-ergonomic" without sufficient justification. It is also unclear as to whether Dr Griffith believed that the applicant had a permanent impairment. He opined that there would be a gradual improvement in the applicant's pain and that the degenerative condition would continue on its natural course.
Dr McGill saw no connection between the applicant's conditions of work and her cervical symptoms. This was because her history was of intermittent episodes of neck pain which were not temporally related to particular work activities occurring during times at work and when she was not at work. He could see no evidence of an injury or event that could have caused an ongoing problem with the applicant's neck. His view was the same in relation to the applicant's back. Dr McGill also did not think the applicant had clinical signs of showing pathology in the right shoulder. The tribunal accepts this evidence.
Dr Cummine's evidence was that he accepted the possibility of a close correlation between the aging of the discs and certain types of work, depending on the nature of the work and the relevant individual. However, in this case he was clear in the view that the applicant's condition was the product of degenerative changes in the course of the natural history of the applicant's spondylosis. He was prepared to accept the nature of the applicant's duties, over the many years that she has performed them, could have contributed to the aggravation of her condition as a possibility but was not himself convinced of it on the balance of probabilities. In cross-examination, the applicant's representative again brought the issue of temporary aggravation back to the injury of March 1997, which reinforces the respondent's contentions that the bulk of the applicant's medical evidence was focused on that injury rather than the nature and conditions of work. The tribunal accepts Dr Cummine's evidence.

It has not been established on the balance of probabilities (Treloar v Australian Telecommunications Commission (1990) 97 ALR 321) that the applicant's employment has been a material cause of the aggravation of the applicant's degenerative condition. The bulk of the medical evidence which dealt with permanent impairment does not accept that the applicant has a permanent impairment. In any event, the tribunal is not prepared to find that the applicant's employment has been a material cause of any such impairment.
It is for the reasons expressed above that the tribunal affirms the reviewable decision on permanent impairment.
Decision
The decisions under review are affirmed.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member and Dr M Miller, AO, Member
Signed:         James Enderbury           .....................................................................................
  Associate
Dates of Hearing  5, 6 and 7 March 2001
Date of Decision  4 May 2001
Counsel for the Applicant        Mr Alan Anforth
Solicitor for the Applicant         Lander & Co
Counsel for the Respondent    Mr Paul Jones
Solicitor for the Respondent    Forners Solicitors