Rodgers and Australian Postal Corporation
[2005] AATA 1007
•12 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1007
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/267
GENERAL ADMINISTRATIVE DIVISION )
Re ROBIN RODGERS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date 12 October 2005
Place Brisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]........................
EK Christie
Member
CATCHWORDS
COMPENSATION – Commonwealth employees – disc prolapse – disc extrusion - low back pain - expert evidence: proof of causation and divergent medical opinion – expert evidence: accepted body of knowledge
Safety, Rehabilitation and Compensation Act 1988 s 39
Compensation (Commonwealth Government Employees’) Act 1971 s 29(1)
Briginshaw v Briginshaw (1938) 60 CLR 336
Dahl v Grice [1981] VR 513
EMI (Australia) Ltd v Bes (1970) 2 NSW 238
O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234
Re ACT Department of Health and Nikolovski (AAT Decision 10826, 27 March 1996)
Clark v Ryan (1960) 103 CLR 486
R v Lucas [1992] 2 VR 109
R v Runjanjic (1991) 56 SASR 45
R v C (1993) 60 SASR 467
Casley-Smith and Ors v FS Evans & Sons Pty Ltd and Anor(No 1) (1988) 49 SASR 314
Haberfield v Department of Veterans’ Affairs (2002) 121 FCR 233
Broken Hill Proprietary Co Ltd v Mathiassen [1997] FCA 1525REASONS FOR DECISION
12 October 2005 Dr EK Christie, Member 1. This is an application by Robin Rodgers for a review of the decision made by an Australian Post delegate on 7 July 2004. In his reasons for decision the delegate concluded:
“I have read and noted the extensive submissions made on behalf of Mr Rodgers (letters dated 19 April 2004, 20 May 2004 and 14 June 2004), however, these do not explain away all of the factual and historical inconsistencies and contradictions.
Therefore, on the information available to me, I am not satisfied on the balance of probabilities that Mr Rodgers’ L5/S1 disc problems are work related. Pursuant to section 62(5) of the Act, I have therefore affirmed the determination of 4 April 2004.” (Exhibit R2, Folio 87)
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibits R1, R2] and the various exhibits lodged by the parties.
3. The applicant was represented at the hearing by Mr R Harrison, Solicitor of Dwyer Durack Lawyers. The respondent was represented by Ms P Giles of Counsel instructed by Sparke Helmore Lawyers.
Issues to be Decided
4.The issues for the Tribunal to decide were:
(a)Whether Mr Rodgers’ left sided L5/S1 disc problem (variously described as a herniation, an extrusion and a protrusion) was a work-related injury as defined by the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”); and
(b)(i) Whether the injury Mr Rodgers has suffered arose out of, or in the course of, his employment with the respondent; or
(b)ii)Whether there has been an aggravation of an injury (whether or not that injury suffered arose out of, or in the course of, Mr Rodgers’ employment with the respondent) being an aggravation that arose out of, or in the course of that employment.
Examination of Evidence
Part 1: Expert Evidence
(a) Dr Rodney Butler (Radiologist)
5. A CT scan of the thoracolumbar spine (T10 to S1) was carried out on 10 January 2004. In his report Dr Butler commented:
“At L5/S1 there is a left posterolateral disc extrusion that migrates 5mm inferiority from the disc level. The disc extrusion is impinging on the traversing left S1 nerve root.” (Exhibit R1, PT 36, Folio 54)
This report also contained the following note:
“Clinical Details: Three months of severe lower back pain radiating down left leg.”
(b) Mr E McCloskey (Orthopaedic Spinal Surgeon)
6. Mr McCloskey’s reports (Exhibit R1, T11/T12, 28 January 2004) illustrate his objective approach in arriving at the conclusions provided in his expert opinion: a history taken from Mr Rodgers, followed by a clinical examination and then a review of the existing diagnostic tests. In his report, he states:
“… you take the history and you do the examination, to make sure that the clinical features and the historical features fit in with what you actually find on the … scan, …”
7. It was Mr McCloskey’s opinion that Mr Rodgers “has got severe left S1 radiculopathy with CR scan proven large left sided L5/S1 disc extrusion;” in addition, that “he had positive nerve root tension signs.” It was his further opinion that Mr Rodgers “…has had his symptoms for approximately a month now and the fact that the disc prolapse is very large” [Emphasis added].
8. Mr McCloskey agreed that a disc bulge could occur over time rather than as a result of one sudden event. In his oral evidence before the Tribunal Mr McCloskey stated that a disc prolapse can be totally asymptomatic. He gave the following history of causation:
“What happens as we all get older is that the disc desiccates or dries and we get degenerative change. And so a disc prolapse can occur purely with no history of trauma at all. But correspondingly, multiple traumas to the back can lead to injury to the disc itself…”
And in addition, that a person:
“may be asymptomatic or they may have intermittent back pain. In fact, it may be that, you know, they just say: Well, I get a bit of a backache at the end of the day,…”
9. Later, Mr McCloskey described this aspect of causation as follows:
“On a certain number of occasions the disc bulge will get bigger and depending on who you are, you may call it a disc bulge or a disc prolapse or an extruded disc, and … on a spectrum of severity, if it pushes a nerve, it can …. lead to – not necessarily always, but it can lead, then, to the situation where you have clinical pain down the leg like with Mr Rodgers here. But just because you have got a disc prolapse with an apparent pressure on a nerve doesn’t mean you will have clinical scenario consistent with an S1 radiculopathy, an L5 radiculopathy, etcetera. So you can have asymptomatic disc prolapses.” [Emphasis added]
10. Mr McCloskey gave the following time course for the intensity of clinical features associated with a disc prolapse:
“the natural history of a disc prolapse is for it to resolve but all don’t resolve and so you can actually find that the longer you leave it the worse they get, the more pain they get and so they have more severe pain four weeks, five weeks, six weeks down the line. And that’s – the main reason I operated was because of the severity of his symptoms, the size of the disc prolapse. I thought it wasn’t going to settle and that he, in fact, was going to get worse.”
11. Mr McCloskey gave the following response to a question from Mr Harrison dealing with the impacts of Mr Rodgers’ disc prolapse on his ability to engage in everyday activities, without seeking medical treatment:
“…I must say when – I saw Mr Rodgers twice before operating I was always very impressed by the severity of his reported symptoms but more so by the fact that he had all the appropriate clinical features with the pain in the right distribution and what is called the positive nerve retention signs. The fact that he reported that he couldn’t sleep and was on reasonable medication with Tramadol and Valium. I think he would have had – I think he would have had significant difficulty actually getting around doing his normal activities. I certainly don’t think he could have worked as a postman, you know, in that previous three and a half weeks [prior to 28 January 2004 ]..”
12. Mr McCloskey was asked a question from Ms Giles as to whether it was likely that Mr Rodgers could continue working for several hours and finishing at his normal time – notwithstanding the pain he felt at work on the morning of 5 January 2004. She described the work activities of Mr Rodgers as “includ[ing] lifting four heavy – three heavy boxes, loading up a motorcycle, going out on a large motorcycle round, delivering several bundles of mail and returning to the Delivery Centre.”
13. Mr McCloskey responded by stating "when I saw him it was three and a half weeks later. I think probably given what I found I’d think he would have had difficulty working as a postman”.
14. When further questioned by Ms Giles whether Mr Rodgers would have struggled immediately after he first experienced the pain, Mr McCloskey replied:
“It may be that his pain at that stage wasn’t as bad. The pain can certainly increase with time or it may stay the same or it may get better”
and, later,
“And as I said, he was always consistent. Every time I saw him in relation to all the objective features I look for and I think given what he’s told me and what I found I think he would have struggled to work as a postman in those days”.
15. Mr McCloskey acknowledged that he would take a patient reporting gluteal pain to be buttock pain. In response to questions asked by both Mr Harrison and Ms Giles, Mr McCloskey stated that buttock pain can actually be a manifestation of a disc prolapse: that a disc prolapse can certainly present as buttock pain.
(c) Dr J Troy (Treating GP)
16. In his report of 15 April 2004 (Exhibit R1, T 36) Dr Troy provided the following opinion in relation to patient history, clinical examination and review of diagnostic tests:
“This man presented to me on 12 January 2004 with acute severe low back pain with a radicular component affecting his left lower limb down to his left foot.
This pain developed acutely while lifting a box of A4 envelopes on 5 January 2004 while he was working for Australia Post.
He stated that he had a past history of low back pain extending back for several months. The incident on 5 January 2004 led to a debilitating pain with the referred pattern into his left foot which had not been present prior to this event.
On examination he was noted to have loss of power, diminished sensation and diminished reflexes involving the L5/S1 segments on the left.
CT scan, which was performed on 10 January 2004, indicated a large left posterolateral disc herniation at the lumbosacral junction.
He was immediately referred for surgical advice as it was considered that this lesion would almost certainly need surgery to decompress the nerve roots. It must be noted that surgery was indeed carried out with considerable relief of the immediate pain pattern.”
17. In his oral evidence before the Tribunal, Dr Troy acknowledged that he had treated Mr Rodgers in 2001, amongst other things, for low back ache. In addition, in November 2003, he had treated Mr Rodgers for pain in the left buttock and left gluteal pain.
18. However, Mr Troy stated that the injury and back pain condition he had treated Mr Rodgers for on 10 January 2004 was quite different from the problems he had treated him for in the past (i.e. the left gluteal region/left lower limb/back) in that the pattern of pain was quite different and:
“In addition to that, when I looked at him, I found that the power in the musculature was different whereas the power in the musculature prior to that was not. The sensation was different and the reflexes were diminished. Now, all that added up to compression on a nerve root which I didn’t think was there prior to that. The CT scan that had been done two days before I saw him did show a large posterior lateral herniation on disc at that point. And so there was a consistency between, first of all, his story of an incident, the presentation clinically, and the findings on CT scan, which were – and those altogether were different from the presentations prior to that.”
19. Dr Troy stated that “it would probably have to be said that [Mr Rogers’] lumbar spine was vulnerable” giving the reason “he did have a past history of a back problem”. Later, Dr Troy said Mr Rodgers’ past history of back pain for several months, that had been referred to in his report (T36), related to the left gluteal pain.
20. Dr Troy’s clinical notes (Exhibit A5) contained the following notations:
“5 November 2001: back aches[1]
2 December 2003: L. gluteal pain
25 November 2003: L gluteal pain[1] No further notes to indicate the source/cause of the pain
21. Under cross-examination by Ms Giles as to his observations on the differences in the pattern for pain between November/December 2003 and January 2004, Dr Troy gave the following clarification:
(i)The gluteal pain in November/December 2003 was a distributed pattern of pain; compared to
(ii) A radicular (knife like or finger like) pattern in January 2004.
(iii)Moreover, these two patterns of pain were significantly different. Insofar as radicular pain is concerned “virtually the inevitable source of that is the compression of a nerve root rather than a nerve bundle”.
(iv)That during his consultation on 10 January 2004, Mr Rodgers had presented in “distress” and “appeared to be in pain” at the time he examined him;
(v)When asked whether Mr Rodgers had said anything to him during the consultation about thinking it was an aggravation of an old injury, he responded by saying:
“…He did say that some time before – and actually that he had lifted his son and he had some back pain. And then that there was this other thing, however. And he described a different pain pattern.”
Dr Troy clarified the pain pattern, at this time, as being different i.e. by characterising it as a “radicular kind of pain” rather than global pain.
(vi)That Mr Rodgers had volunteered the information to him that “he thought he had injured himself by picking up a box of envelopes at work”;
(vii)That his diagnosis of a large posterior lateral disc herniation arose following his clinical examination and was based on the severity of pain; in particular, the description of pain being into his foot. This diagnosis was subsequently confirmed by the CT scan;
(viii)That his “conclusion about the cause of the disc herniation or the occasion of the disc herniation was based solely on Mr Rodgers’ explanation that he felt pain on lifting the box of envelopes”;
(ix)That he acknowledged Mr Rodgers’ lumbar spine was already vulnerable at the time when this incident occurred. He gave the following explanation with respect to back pain, specifically gluteal pain and the hip/rib syndrome type of phenomenon:
“…it’s a very common problem in our society and people who have jobs such as he had, which was poking mail into a sheet of boxes and so on and in the past riding motor bikes at least, means that the junctional region of the lumbar spine has – it becomes increasingly vulnerable. The junction between the lumbar spine and the sacral, so he’s in that category and unfortunately a lot of workplace sort of activities don’t take notice of that.”
(x)Dr Troy agreed with the proposition that many activities of daily life, that were unrelated to work, could also result in disc herniation problems – accepting such examples as “picking up a child”, “lifting furniture” and “even sneezing”;
(xi)That he agreed with the proposition that Mr Rodgers’ presentation at the consultation “could be just as consistent with an injury having happened away from work immediately prior to 5 January 2004; and
(xii)That he agreed with the proposition that a trial at work could be helpful in evaluating Mr Rodgers’ fitness to work full-time on clerical or clerical assistant duties where he could sit, stand and walk within his own reasonable time frame whilst recognising that he should not undertake any heavy lifting or bending or to work in confined spaces.
22.Dr Troy gave the following responses to questions asked by the Tribunal:
(a)In terms of whether acupuncture was an effective treatment for a nerve root compression problem, that:
“…the treatment of choice is surgery for that problem. If you leave the nerve root compressed, you run the risk of there being a permanent damage to that nerve root and I thought that in his circumstances that it needed to be attended to immediately rather than left ride for one or three months”; and
(b) Based on his past involvement with treating Mr Rodgers, and when asked whether he could point to any material that might establish an inference related to the history of his prolapsed disc, he said:
“Well, the documentation that you have before you in relationship to my clinical notes, go back to 2001, there was never another occasion before January 2004 that would lead me to think that he needed let’s say a higher level investigation of a problem, as did happen, people don’t walk around with acute disc injuries for any great length of time and so if – if the notional incident of 5 January wasn’t the provocative cause, it was something in the very immediate period that was, in that period of time, because as I understand it, up until that time he was at work.
That’s as I’m led to believe and of course the – that kind of period in the year is a very busy time for people at Australia Post. But, beyond that, I mean he could not have carried that kind of lesion, I don’t believe, for any length of time there was an acute event and certainly – and that’s, I think, a proper inference that can be drawn.”
23. In response to a question from Ms Giles relating to the differences in pain, Dr Troy observed in his clinical examination of Mr Rodgers over time in the left lower limb, he distinguished between two patterns which resulted in significant differences in presentation:
“If one can just … use the hand to say where does the pain go and you use your open hand and it goes down the lower limb with the hand in an open kind of a sense affecting the muscles, posterior thigh, posterior calf ‘and a radicular pain in fact is much more finger like as knife like’.”
24. A number of questions arose from Dr Troy’s response to the Tribunal questions.
25. Ms Giles first clarified the employment situation at this time. That is, Mr Rodgers resumed work on 5 January 2004 followed a five day break – which combined public holidays on New Years Day and Boxing Day and time off during the weekend.
26. Dr Troy was asked by Ms Giles whether a person who was suffering pain to the extent that they were vomiting from the pain, would be likely to continue working i.e. to be able to continue working, including riding a motor cycle and carrying bags of mail. Dr Troy replied:
”Well he may have done that if the pain began as it was said, an acute onset having lifted a box of envelopes at the given time you’ve indicated, it would have been unwise for him to continue working and – but people do all kinds of unwise things hoping that they disappear.”
27. Dr Troy was referred to a “scenario” of Mr Rodgers having picked up the box of envelopes in order to sort them. He agreed that such a scenario was unwise. However, in response to further questions, he disagreed that such a “scenario” was unlikely stating that “people do all kinds of things when its not wise”.
28. In relation to his opinion evidence that “people don’t walk around with acute injuries for any period of time” Dr Troy stated:
“…the whole point of that remark is that Mr Rodgers related the beginning of this acute phenomena to a particular day, i.e. it may have been – let’s speculate, it may have been the day before, or two days before, but it wouldn’t have been any – any kind of more than that, and of course his story is consistent with the findings.”
29. Mr Harrison referred Dr Troy to the above scenario and the point that immediately upon injuring himself, Mr Rogers took some “Nurofen”. He agreed that the proposition that “at least for a short period of time, the ‘Nurofen’ could mask the pain” was a reasonable one.
(d) Dr C Chin, GP: Fellow, Australian Acupuncture College
30. Dr Chin gave the following history from his consultations with Mr Rodgers (Exhibit R24):
“On the 5th January 2004 Mr Rodgers presented with a three month history of low back pain. He had had Chiropractic manipulation and using the Alexander Technique for right arm pain. He had had no X-rays and had not yet had a CT scan. He had pain radiating down the lateral aspect of his left leg. On examination Mr Rodgers was very tender over his left lower ribs, sacroiliac joints, gluteus medius muscle and over the ilica crest. He had a past history of pain picking up his son and had a new exacerbation of pain after lifting 20kg and had to let go. An assessment of Hip/Rib syndrome and Myofacial Pain syndrome was made. Mr Rodgers was treated with laser acupuncture and was told to return for review in four to five days.
Mr Rodgers returned for review on the 6th January 2004. He had had severe exacerbation of pain after the last treatment. Maximum pain was left of the coccyx. He was taking Naprosyn. On examination he was very tender over the sacroiliac joint. Mr Rodgers was again treated with laser acupuncture and was prescribed Tramal 1-2 tablets, four times per day. He was also prescribed magnesium 40mg, two tablets twice a day for muscle spasm and was asked to return for review in one to three days.
Mr Rodgers was reviewed again on the 7th January 2004. He had had slight improvement in his symptoms but had quite severe cramps in his left leg. On examination he was very tender over his gluteus medius, iliopsoas process and also the inguinal ligament. My assessment was still one of Hip/Rib syndrome and Myofacial Pain Syndrome. Past treatment had seen improvement in lumbar movement. Mr Rodgers was again treated with laser acupuncture…
Mr Rodgers presented once again on the 10th January 2004 with no improvement but his pain had now localised to the left sacroiliac joint, piriformis muscle and sacrotuberous ligament. Mr Rodgers was unable to sit on the left side. On examination he was very tender over the left sacroiliac joint, piriformis muscle, lower ribs and his inguinal ligament. My assessment was still Hip/Rib syndrome and Myofacial Pain Syndrome with sacroiliitis, but unfortunately no improvement. He was treated once again with laser acupuncture and was referred for a CT scan and was asked to be reviewed by Dr John Troy.” [Emphasis added]
31. During his oral evidence, Dr Chin was referred to his clinical notes. On 5 January 2004, the history he had taken from Mr Rodgers referred to precipitation of pain from picking up his son (“exacerbation after lifting 20 kg”). Mr Rodgers had presented with lower back pain with pain radiating down the sides of his legs. He had no record in his history of being told by Mr Rodgers of a work accident in July 1999, falling off a motor bike. In addition, there was nothing in the history he had taken on 5, 6 January 2004 to indicate that he was in so much pain following the incident at work on 5 January 2004 that he had vomited whilst doing his postal delivery rounds.
32. During cross-examination, Dr Chin qualified his evidence, relating to what he had recorded in Mr Rodgers history at the time of consultation, and agreed with the proposition that it was simply based on what he thought he might have done – not on what he recalled having done at this time. In addition, in terms of no record in the history taken of Mr Rodgers’ informing him that he had vomited on his postal delivery rounds on 5 January 2004, he could not say with “any certainty” that this was the sort of thing he would record. Later, Dr Chin acknowledged that pain and anti-inflammatory medication (e.g. “Nurofen”) – either alone, or in combination, could cause vomiting.
33. Dr Chin agreed with the proposition that in terms of the history he had taken on 5 January 2004 relating to exacerbation of pain after lifting 20kg, that it was “reasonable to presume from that, that the past history of pain picking up the son, precedes this new exacerbation from lifting 20kg”. Dr Chin confirmed that his clinical notes made no reference to the nature of the 20kg load lifted.
34. Finally, Dr Chin acknowledged that he had referred Mr Rodgers to Dr Troy when he first became aware of the disc extrusion/nerve root compression problem (i.e. after the CT scan) as acupuncture would not be an appropriate technique to resolve the problem.
(d) Dr A Marsden, Occupational Physician
35. Dr Marsden provided the following expert opinion based on his review of all medical reports filed with the Tribunal, diagnostic (radiological) investigations together with the patient’s history he had taken and his clinical examination during his consultation on 15 October 2004 (Exhibit R 31).
36. In his report (Exhibit R 31), Dr Marsden stated:
(a)that Mr Rodgers had denied previous back problems prior to January 2004 in the history he had taken;
(b)that Mr Rodgers “had said that in 2001 he presented with non specific aching around the shoulder girdle and the neck, with what he described as ‘muscular aching due to repetitive work’ ”;
(c)that:
“It seems to me that Mr Rodgers clearly had a significant problem in his left leg, buttock and left lower back prior to the 5 January 2004. It seems to me that he had recorded a three month history of back problems and left leg referred pain with Dr Chin and had also seen Dr John Troy in November and December for left gluteal and left leg pain.”
And
“In his lower back he has definitely had an L4-S1 left sided large disc protrusion. He was adamant that he did it at work on the 5 January 2004 however it is quite clear that he saw his local medical practitioners in November and December 2003 for left gluteal and leg referred pain and this is recorded in the local medical practitioner’s contemporaneous computerised records. Similarly he gave a history initially; it seems, to Dr Chin of a three month history of low back pain and left leg referred pain.
The significance of all this may need to be tested in a legal setting in terms of assessing the relevance of the contemporaneous evidence from the general practitioners who managed him at the time, but my interpretation would be that he had low back pain and left buttock and left leg referred pain well before 5 January 2004.”; and
(d)That Mr Rodgers was:
“…fit to work now full time in clerical or clerical assistant duties where he can sit, stand and walk within his own reasonable time frame. He should not undertake heavy lifting or frequent bending. He should not work in confined spaces or constrained positions.”
37. During his evidence-in-chief, Dr Marsden gave the following responses to questions asked by Ms Giles:
(a)That Mr Rodgers had a significant back problem in late 2003, saying:
“He sought advice for it, he’s indicated that he’s had three months of low back pain and he has had left leg, or left buttock referred pain of a sharp or lancinating nature. And that’s very indicative to me that he’s had a significant low back problem with left nerve root interference, well before 5 January 2004”;
(b)In terms of causation of a disc prolapse and non-work related activities, such as shifting furniture, and lifting a child he stated:
“Well, shifting furniture could strain a lower back. It’s very difficult – by the time he got to January, I think there’s no problem with the diagnosis in terms of – that’s January the 7th, 10th – big disc bulge, obvious left leg pain right down the leg, and you didn’t need a CT scan I suspect, to make a diagnosis and be right. Prior to that, if you have patients who have low back pain and present with low back pain, if they haven’t got absolutely classical symptoms down the leg of that nature, it is very difficult to be specific about where the back pain is coming from”
And;
“If you have someone who’s been shifting furniture and has some low back pain, you couldn’t really say that it was from a disc or from a facet joint or a strained muscle, and I always insist on putting it down as non specific mechanical back strain and leave it at that at that stage, and treat it that way.”
In addition, in terms of lifting a child weighing 15kg – 18 kg and symptoms, Dr Marsden’s response was:
“You felt back pain and felt a stab of left buttock pain, which is I understand the history, I think that’s an indication, but you can’t be more definite than that really, that there has been pain in the back and something happened in the back, and also something has affected a nerve root causing that referred pain from the buttock;”
(c)The fact that Mr Rodgers had taken three days from work, at the time he sustained back pain from lifting his child, was significant as it indicated that Mr Rodgers must have been in “quite a lot of discomfort”;
(d)That the natural history of a disc bulge, without further incidents, can be for it to resolve back down;
(e)That it was not possible to predict the risk of age-related disc injuries;
(f)An acknowledgement that he had “no doubt [Mr Rodgers] had a genuine big disc extrusion causing interference with the radiculopathy affecting S1”; and, notwithstanding this fact,
(g)That based on the history of pain in Mr Rodgers’ situation that his disc extrusion probably occurred in November-December 2003.
38. Dr Marsden gave the following responses to questions asked by Mr Harrison during cross-examination:
(a)In terms of a proposition, whether the incident on 5 January 2004 precipitated severe pain and ultimately led to Mr Rodgers having surgery, Dr Marsden stated:
“It certainly produced the more definitive pain, I’ve got no problem with that. But he had had, it seems to me, quite significant pain in his back beforehand and referred pain down the leg beforehand. So I think there was disc protrusion beforehand sufficient to cause radiculopathy. The fact that he was able to work on with it would indicate that it maybe wasn’t as severe – I mean, and he was coping and able to ride a bike and those little bikes do require swerving and sitting and reaching and leaning over to one side in order to post in envelope boxes, let alone be chased by dogs and all that other stuff that postmen tell me about. So, it’s a lot – it’s quite a lot of strain and it’s all on the back, yes you’re right. The lifting too of another box and getting the pain that was down the leg, here was the pain down the leg again but this time it’s gone on and I think it’s gone on more significantly, I’ve got no problem with that.”
(b)When asked as to the differences between the type of pain observed by Dr Troy in his clinical examination of Mr Rodgers in November/early December 2003 and then again on 12 January 2004, Dr Marsden identified the characteristic features he would look for:
“If a patient says: I’ve got pain radiating down my leg, or I’ve got pain going down my leg, and they do this – broad stretch of the hand and they sort of wave it vaguely around down the leg and from the back and down here, that’s very significantly different from a patient who says, and I suspect this is how Mr Rodgers would have presented later in January: I’ve got pain going down my leg and they indicate with a finger, it’s a finger like pain because it’s running down a particular line or dermatome…”
(c)He further characterised pain going down the leg - by indicating with a finger, was “almost certainly disc protrusion”. In contrast pain, by indicating with a broad stretch of the hand, represented a back problem “not coming from a disc or an extrusion, but from sort of strain or something interfering with the foraminal window through which the nerve has to go”; and
(d)That the clinical examinations by Dr Troy which indicated distinctions in the pain observed between 29 November 2003 and 10 January 2004 (viz. knife like pain going all the way down the foot on the latter date) was “a sign there’s more and more pressure going on the nerve” and so “more nerve involvement down the leg”.
39. Dr Marsden was asked a number of questions by the Tribunal in relation to the source and history of the disc prolapse. He acknowledged that Mr Rodgers had an extrusion – not just a bulge.
40. Dr Marsden stated that the lifting of a 15 kg box of envelopes could have been the final extrusion stage for Mr Rodgers. However, he suspected there was more, based on the history and medical reports prepared, that there was some significant obstruction of the nerve root prior to the incident on 5 January 2004. Dr Marsden was in “no doubt” that Mr Rodgers had low back pain, left buttock and left leg referred pain well before 5 January 2004.
41. Dr Marsden expressed the following opinion in relation to the extent of the event reported by Mr Rodgers on 5 January 2004 of lifting oversized articles, weighting around 15 kg, on his back condition:
“I wondered if that was when there was this final letting go. I mean, the final letting go of the back fibres. We’ve already got a bulge, you’ve already got it interfering with the nerve root, you’ve got a clear history, it seems to me, of nerve root interference before that definitive event and if that event occurred and he’s straight and I think he is about the days leading up to actually going back to work, I mean, let’s be frank about this, you can have some issues about hey presto, come back to work, first shift, within an hour or so of the first shift coming back to work, lifts up a tub and magic, you know, severe pain, there could be some issues about the veracity in that. I mean, I’d have to be honest about that …
But you’d think about that, if you were an employer or if you’re sort of looking at the whole scenario. And that, but I think that event, if it occurred, did produce a more significant pain in him and more significant pain down the leg, but he still had the pain in the leg in the first place.”
(e)Michael Lamb, Occupational Therapist (Australia Post Employee/Contractor)
42. Mr Lamb acknowledged that during the consultations that he had with Mr Rodgers over time, Mr Rodgers had given some history of back pain:
(a)16 April 2002: “He reports a slow onset of shoulder, neck and lower back pain and L upper extremity pain.” (Exhibit R9);
(b)5 June 2002: “Robin predicts his lower back symptoms seem to be reducing and at time feels as though they have disappeared.” (Exhibit R10);
(c)6 June 2002: “Robin reports his lower back pain has subsided but he continues to get left shoulder pain.” (Exhibit R11)
43. Later, Mr Lamb also made reference to a history given to him by Mr Rodgers of being continually harassed by his fellow workers as they felt he was not doing his full duties.
Part 2: Lay Evidence
44. The Tribunal has considered the factual basis of the lay evidence in the context of the following issues central to determining this application for review:
(a)the nature and corroboration of the incident/injury on 5 January 2004;
(b)the reporting procedures followed in relation to the incident/injury on 5 January 2004;
(c)the time period after the injury was claimed to have had occurred on 5 January 2004, before being described as a “work-related injury”; and
(d)other incidents/injuries sustained over time that may have some association with the incident/injury claimed to have been suffered on 5 January 2004 – in terms of representing an aggravation of a pre-existing injury.
§ Nature and Corroboration of the Incident/Injury (5 January 2004)
(i) Evidence of Robin Rodgers
45.Mr Rodgers worked for Australian Post for about 8 years as a postman.
46. Mr Rodgers stated that he had commenced work on 5 January 2004 around 5.45.am and was fit and well. He had seen his Team Leader [Michael Precha] that morning when he started work. The Team Leader checked to ensure everyone was fit for work. This shift was his first shift after the New Year’s break of 5 days. At around 9.30am – 9.45am he picked up an Australia Post tub of over-sized articles from the floor and felt a sudden excruciating pain in his lower back. The pain radiated to his left leg and down his foot. Notwithstanding the pain, he continued on with his duties as the Delivery Centre was short-staffed. In addition, he thought that the pain would settle down when he commenced his delivery round. He had taken “Nurofen” tablets after he had injured himself and, later, during his delivery round.
47. Mr Rodgers said that he had seen the following staff at the Delivery Centre, at different times, on 5 January 2004:
(a)He could recall seeing his Team Leader Michael Precha around 10am after he had injured his back, when he was on his hands and knees scrambling on the floor in his work bay looking for “Nurofen”. He said that Mr Precha observed him [“was in front of him”] – but did not do anything.
In addition, he saw him again at around 3.30pm, that afternoon, when he signed off work. He advised Mr Precha that he was in pain and would not return to work the next day if the pain persisted.
(b)Mr Paul Morel, a postal delivery officer, had also seen him and the pain that he endured on that day.
(c)Mr Lindsay Taylor, a postal delivery officer, had seen him on this day, around 9.45am – 10.00am. Mr Taylor was aware of the pain problem he was experiencing as he had told Mr Taylor about the severe pain he was suffering. Mr Taylor had said to him that he did not look well. However, he could not remember the precise words that they had used during their conversation about his pain. He did recall telling Mr Taylor, later, that if the severe pain continued, he would not be present at work the following day.
(d)Around midday he had telephoned his wife to tell her of his back pain problem and for her to make an appointment for him to see his treating GP (Dr Troy) after he finished work that afternoon at 3.30pm. Dr Troy was booked out so he had his wife make an appointment for him with Dr Chin, at 4.00pm on 5 January 2004.
48. In re-examination, Mr Rodgers said that there was no person at the Delivery Centre, who he could name, who saw him lifting the tub of over-sized articles which led to his injury.
(ii) Evidence of Maria Rodgers
49. Mrs Rodgers’ evidence was that her husband phoned her, at work on her mobile on 5 January 2004 telling her that he had injured his back at work and was in excruciating pain, and for her to make an appointment, that afternoon, with Dr Troy – his treating GP. As Dr Troy was booked out, she made the appointment with Dr Chin. She said that she could not recall if her husband had told her how the injury happened.
50. She said on the evening of 5 January 2004, her husband had told her that he thought the injury was a result of an aggravation of the 1999 injury.
51. Mrs Rodgers stated that her husband had told Dr Troy that he had hurt his back lifting a tub of over-sized articles. She said that she could not remember whether Dr Troy had said that the injury was an aggravation of an old injury.
52. In re-examination, Mrs Rodgers said that she could not recall any discussion about the costs of surgery following the CT Scan at Fremantle Hospital following mention being made for the need for surgery. Also, she could not recall any discussion of surgery costs with Dr Troy at the consultation on 12 January 2004. In addition, she could not recall any discussion of surgery costs with Mr McCloskey other than the need for “urgent surgery”.
(iii) Evidence of Paul Morel
53. Mr Morel is employed by Australia Post as a postal delivery officer. His evidence was that, while sorting mail on 5 January 2004, he recalled Robin Rodgers telling him, during the morning, that he thought he had hurt his back or “I think I’ve hurt my back”. His evidence was that he did not take much notice at the time.
54. Mr Morel’s working bay at the Receiving Centre backed on to Mr Rodgers’ working bay and that they sorted mail parallel to one another.
55. Mr Morel was referred by the Tribunal to the situation that he had signed off the “Attendance Book” on the completion of his delivery round on 5 January 2004 at the same time as Mr Rodgers. However, in response to questions from the Tribunal and Ms Giles he could not recall whether he saw Mr Rodgers at that time, or having any conversation with him.
(iv) Evidence of Lindsay Taylor
56. Mr Taylor has been employed by Australia Post for 38 years and is currently employed as a postal delivery officer. He has been nominated as a “State Employee of the Year”.
57. In his witness statement (Exhibit A6) he stated that:
“On the morning of 5th January 2004 he saw Robin [Rodgers] at about 6.00am. He seemed fine. At about 9.45am I saw Robin and his face was white as a sheet. I asked him what was wrong and he said he had hurt his back.”
58. In his oral evidence before the Tribunal, Mr Taylor said that on 5 January 2004 he saw Mr Rodgers come in at 6.00am and “he looked very, very good” and had “a lot of colour in his cheek”. At about 8.00am when he went on the 10 minute standard coffee break, he again saw Mr Rodgers. He stated that “I just happened to look up like that and his face was as white as anything” and I said to him “you don’t look too good”. Mr Taylor described his observations of Mr Rodgers at this time as:
“…you could see the strain on his face, you really could, as if he was in pain, you know, and that is what I – I took the impression that he was in pain because of the colour of his face and he looked really – like his face was strained, you know, as if he was in pain.”
59. Mr Taylor said that he did not talk to Mr Rodgers at this time.
60. Mr Taylor said that he looked at Mr Rodgers around 9.45 – 10.00 am, before going out on his delivery round. He asked Mr Rodgers whether he was “all right” and he had replied “I’m going out now”.
61. Mr Harrison sought clarification, in re-examination, whether Mr Taylor had seen Mr Rodgers at 8 am, or around 9.45 am, on 5 January 2004. Mr Taylor’s reply referred to his observations in terms of the meal breaks at the Delivery Centre:
“…there is a 10 minute break at 8 o’clock and then there is a half an hour break at 10 o’clock for 30 minutes.
…Now, just before the 10 minute break, as I was walking into the lunch room – starting to walk into the lunch room, I just looked over like that and then I saw his face was as white as anything.”
62. Later in the day (around 1 pm), whilst out on delivery rounds he had seen Mr Rodgers and had spoken to him. Mr Taylor stated that Mr Rodgers did not look too good. Mr Rodgers told him that his back was still giving him pain. Mr Taylor agreed that this was the first time Mr Rodgers had told him that day that his back was hurting.
63. Mr Taylor stated that he had told Mr Rodgers that he should go back to the Delivery Centre and report his condition to the supervisor. He stated that the normal procedure was to report accidents to the supervisor.
(v) Evidence of Michael Precha
64. Mr Precha has been employed by Australia Post for around 24 years. He was Mr Rodgers’ Team Leader at the time, at the Canning Vale Delivery Centre.
65. Mr Precha said that he had no recollection of seeing Mr Rodgers, first thing in the morning, on 5 January 2004. His evidence was that Mr Rodgers did not say anything to him that day about hurting his back. Also, he had no recollection of seeing Mr Rodgers on his hands and knees on the floor of his work bay, in pain, looking for “Nurofen”.
66. He said that if Mr Rodgers had told him about hurting his back he would have referred him to Darryl Olsen (Postal Delivery Co-ordinator). As Team Leader, most “posties” would come to see him if they could not work their round. As Mr Rodgers had not reported the injury to him, he had not written it into his diary. In addition, he said that no one else mentioned to him about Mr Rodgers’ hurting his back.
67. Mr Precha explained that impacts on work flow are taken to Darryl Olsen and recorded in the Diary – subject to the qualification that not every event was recorded; only incidents of sufficient severity, to have an impact on work flow, were recorded in the Diary. Where there was no impact on work flow, an entry into the Diary was not warranted. The Diary record would specify the time of day [of the incident] and the extent of deterioration in the person.
(vi) Evidence of Darryl Olsen
68. Mr Olsen has been employed with Australia Post for approximately 16 years. Currently (and at the relevant time), he is the Postal Delivery Co-ordinator at the Canning Vale Delivery Centre.
69. His evidence was that he had not been made aware by Mr Rodgers, or any other person, that Mr Rodgers had injured himself while at work on 5 January 2004.
70. Mr Olsen’s evidence was that on the afternoon of 6 January 2004 he returned a telephone call that Mr Rodgers had made to him that morning. He spoke to Mr Rodgers about the problem he was having with his back. Mr Olsen’s evidence was that Mr Rodgers had informed him that he had hurt his back playing with the kids and that it was not work-related. On 7 January 2004, Mr Olsen advised Ken Moug (the Delivery Centre Manager) of what Mr Rodgers had told him about his injury the previous day.
71. On 7 January 2004, Mr Rodgers telephoned him to inform him that his back condition had deteriorated and that he would require more time off work. There was no mention that it was a work-related injury.
72. On 10 January 2004 (Saturday), Mrs Rodgers telephoned him, at home, to inform him that Mr Rodgers was in severe pain because of a worsening of his condition. Also, that Mr Rodgers was to have a CT scan.
73. On 11 January 2004 (Sunday), Mrs Rodgers telephoned him again. All he could recall was that she informed him that Mr Rodgers had a disc problem and that the condition was work-related. This was the first time he had been made aware that it was work-related and so this information was in complete contrast to the earlier calls.
74. A record of all of the above telephone conversations in relation to Mr Rodgers’ back injury were entered into his work diary on 12 January 2004. In order to facilitate staffing arrangements for postal delivery rounds at the start of each day, his operational diary contained the following entries:-
6-9 January, Rodgers sick leave
[10,11 January = Saturday, Sunday]
12 January Rodgers sick leave13 January Rodgers ?
The “?” entry for the 13th January entry arose because he was unaware what entry he should put in the diary for this date.
75. During cross-examination, Mr Olsen agreed that his reaction to the last telephone call he received from Mrs Rodgers left him “stunned and shocked”. Notwithstanding this reaction, he stated that he did not go to check with anyone at the workplace and “ask them whether they had seen anything”. Mr Olsen’s explanation was that, by then, he had referred the matter to the Centre Manager (Ken Moug). Mr Moug had become the person investigating the incident as an Incident Report had been completed.
(vii) Evidence of Ken Moug
76. Mr Moug has been employed with Australia Post for approximately 18 years. At the relevant time, he was the Delivery Centre Manger at the Canning Vale Delivery Centre
77. Mr Moug could not remember seeing Mr Rodgers – or having a conversation with Mr Rodgers on the morning of 5 January 2004 about a possible transfer to Bunbury. Whilst he could remember having such a conversation, at some stage, he could not remember the actual date that it took place.
78. On the afternoon of 6 January 2004, Darryl Olsen informed him that Robin Rodgers had injured himself whilst at work on 5 January 2004. During cross-examination, Mr Moug acknowledged that his office management practice was for him to discuss with Mr Olsen, each day, staff who were present and absent from work. He had been informed by Mr Olsen that Mr Rodgers had hurt his back when playing with his children and that the injury was not work-related. He further acknowledged that he relied on the information and advice given to him by Mr Olsen in regard to staff absences and the reasons for their absence from work.
79. Mr Moug’s evidence was that on 12 January 2004, Mr Olsen advised him that he had received a phone call from Mrs Rodgers on the previous day requesting that compensation claim paperwork be sent in regard to Mr Rodgers’ injury. A reference in the advice he had been given by Mr Olsen was that a heavy white [Australia Post] tub had been involved with Mr Rodgers’ injury.
80. During cross-examination, Mr Moug was referred to a diary note recorded in relation to a telephone discussion he had with Mr Rodgers on 13 January 2004. Whilst he could not remember the exact details of this conversation, he said that “Robin … seemed to be in a bit of pain at the other end of the phone” and that Mr Rodgers had made a reference to lifting of a white tub. Mr Moug stated that at this stage he could not recall speaking to anyone to make enquiries about the incident (‘lifting the white tub’) as a claim form for compensation had not been lodged.
81. Mr Moug further acknowledged that from, this time, and the time the claim form was lodged (28 January 2004) he could not recall making any enquiries at the Delivery Centre in relation to the injury or the incident. He said that the claim form was sent to Mr Rodgers, based on the information available at the time. In addition, that the injury was initially thought to come within sick leave – but later, this was changed to a work-related injury.
82. Mr Moug’s evidence, for the 28 January 2004, was that he saw Mr and Mrs Rodgers sitting in their van outside the Delivery Centre. He recalled the reason for Mr and Mrs Rodgers being present i.e. to drop off the incident form and the compensation claim form and for him to check that the forms had been completed correctly. During their conversation, he informed Mr Rodgers because Mr Rodger’s initial advice made no mention of any white tub and that he was going off work on sick leave, that he would be recommending that the matter be fully investigated. Mr Moug could only recall Mr Rodgers referring to Mr Morel as someone to whom Mr Rodgers had spoken to about the injury/incident on 5 January 2004. He could not recall Mr Rodgers making any reference for Mr Moug to talk to Mr Precha about the incident on 5 January 2004.
Reporting Procedures in Relation to the Incident of 5 January 2004
(i) Evidence of Robin Rodgers
83. Mr Rodgers said that he had telephoned the Delivery Centre on the following morning of 6 January 2004 as he was in excruciating pain and could not stand or dress himself. He could not work. He was unable to speak to Daryl Olsen (Postal Delivery Co-ordinator) at that time in the morning and so he spoke to someone whom he assumed was night shift staff. However, he cannot recall this person’s name. That afternoon he spoke to Gary Hale [a clerk in administration] to advise that he had hurt his lower back and would be away from work. He had followed Australia Post procedures to report, prior to 6.00am, if unable to attend work on that day.
84. He received a phone call later that day from Mr Olsen but could not remember, “100%”, the general conversation they had. He had spoken about his general condition and the steps taken for medical care. Mr Rodgers did not agree he had told Mr Olsen that his back condition was not work-related, or that it had arisen whilst playing with his children. However, he acknowledged, in cross-examination, that he did not tell Mr Olsen that he had injured his back lifting a tub of oversized articles.
85. He said that from 12 -13 January 2004, he commenced a diary of what he had done each day by recording the events of each day. The diary had been purchased on 12 January 2004. He had completed the back dates based on his recollections. The diary records were prepared in conjunction with his wife. His diary note of 6 January 2004, confirmed that he had telephoned his work office and reported that he would not be in for work.
86. Mr Rodgers said that Mr Olsen had been kept informed of the changing nature of his back condition, and its failure to improve, through telephone calls made by himself (7 January 2004) and his wife (10, 12 January 2004).
87. Mr Rodgers acknowledged during cross-examination, that by 1999 he had a good understanding with respect to notifying Australia Post of any accident – including notifying immediately, and the need to complete specific details. He said that he had followed Australia Post reporting procedures following his earlier accident in 1999 and had seen the Australia Post doctor immediately; also, he had rung his Manager the following morning after the incident. In later cross-examination, he acknowledged that he did not report his injury/pain to his employer on 5 January 2004 but continued working in order “to finish duty”.
88. In re-examination, Mr Rodgers said that no one had told him to fill in an incident report in relation to the incident/injury on 5 January 2004.
(ii) Evidence of Maria Rodgers
89. Because Robin Rodgers’ condition had worsened whilst being treated by Dr Chin, Mrs Rodgers phoned Mr Olsen of Australia Post, at his home, on 11 January 2004 to tell him Robin’s condition was worse, that he was in a lot of pain and that he had been referred for a CT scan.
90. The following day, a locum doctor from the Cockburn Medical Centre had advised them, when Mr Rodgers was in severe pain, that he may be suffering from a prolapsed disc. She then informed Mr Olsen of this situation with a telephone call made on 12 January 2004.
91. During cross-examination she said that she was “pretty sure” she made the phone call to Mr Olsen on 12 January 2004 informing him of the situation but could not remember whether or not she had notified him that it was a work-related injury.
92. Mrs Rodgers stated that the diary records they kept in relation to the chronology of events associated with the injury sustained by her husband on 5 January 2004, were made by her recording in the diary what her husband had dictated to her.
(iii) Evidence of Darryl Olsen
93. Mr Olsen described the usual Australia Post procedures, as at January 2004, for the reporting of an accident:
§ The Team Leader to be informed. An incident report had to be completed.
§ Reporting was dependent on how serious the injury was
§ The period of time for reporting an injury was dependent on the severity of the injury.
§ Generally, an incident or accident was required to be reported in “a couple of hours” but this would depend on the circumstances of each case. For example, if a postal delivery officer had a “back injury” out on the road they would ring in – but if it was only a “niggle or scratch or a bit of grazing” they would wait until they got back to inform them.
§ Following the reporting of the incident or accident, the employee was given an option to complete an Incident Report. In his role as a Manager he would follow up with the employee as to the status of completing the Incident Report.
§ The practice requiring immediate reporting of incidents was verbally communicated to staff by the Centre Manager and Team Leader – on a regular basis e.g. at staff meetings.
§ That there was a need to report incidents immediately, in case an injury worsened over time. That is, a report of the original incident and the injury sustained was significant in these circumstances.
Characterisation of the Injury Sustained as a “Work-Related” Injury
(i) Evidence of Robin Rodgers
94. Mr Rodgers’ evidence was that at the time he first saw Dr Chin (5 January 2004), and gave him a history, he did not consider that he had sustained a new injury from lifting the box of oversize articles. Rather, that he had aggravated an earlier injury.
95. When he spoke to Mr Olsen on 6 January 2004, he had told him that he thought the injury he had sustained the prior day was an aggravation of the earlier injury which had occurred in 1999 when he was struck by the car. In addition, that he had aggravated the injury whilst lifting one of his children – not hurting his back while playing with his children.
96. Although Mr Rodgers had been treated by Dr Chin on four occasions (5, 6, 7 and 10 January 2004) his condition did not improve. It was not until he was seen by a locum GP on 11 January 2004 that he first became aware that he had a prolapsed disc and that he had been incorrectly treated for this condition.
97. Mrs Rodgers subsequently telephoned Mr Olsen on 12 January 2004 to advise him of his actual medical condition.
98. Because of continual severe pain, he saw Dr Troy on 12 January 2004. Mr Rodgers’ evidence was that this point was the first time that he had become aware that his injury was work-related. Consequently, he advised his employer as soon as he was aware of this situation. Following this consultation, Mrs Rodgers rang Mr Olsen to inform him that his back condition was work-related arising as a result of lifting a tub of oversized articles.
99. Mr Ken Moug rang Mr Rodgers on 13 January 2004. Mr Rodgers told him that the injury was caused through lifting the tub of oversized articles and not as he had originally advised.
(ii) Evidence of Ken Moug
100. Mr Moug stated that during his conversation with Mr and Mrs Rodgers on 28 January 2004, he had informed Mr Rodgers that he would be endorsing his compensation claim form with a requirement that it be further investigated, because of the conflicting evidence that he had been given. Initially, it had been a sick leave request for a back injury which later changed to a work-related injury. He said whilst there “was no doubt Robin was in a lot of pain” he could not approve the compensation claim without further investigation to see if the injury was work-related.
101. During cross-examination, Mr Moug disagreed with the proposition put to him that he had told Mr Rodgers that “there should be no problem [with the investigation]”. He said:
“If I was going to say there was no problem, I don’t think I would have marked it requiring further investigation, I would have just ticked yes or whatever.”
Other Injuries/Incidents Sustained Over Time
(i) Evidence of Robin Rodgers
102.Mr Rodgers gave the following account of previous injuries/incidents prior to 5 January 2004:
(a)A fall off his motorcycle in 1997 whilst travelling at around 50km/hr; he slid on “tree nuts” on a wet road. The upper part of his body and shoulders hit the road. He cracked his collar bone and 3 teeth. He had reported this incident to Australia Post.
(b)On 8 July 1999, whilst stationary at an intersection, his motorcycle was struck by a motor vehicle causing him to fall on the road and to injure his left leg, upper leg and knee – as well as abrasions to his hands and back. He said that he thought, on recollection, that he had fallen backwards – pulling away from the bike; the bike did not hit him. An incident report was completed. During cross-examination he acknowledged that the original accident report contained no record of buttock pain. In addition, he acknowledged that there was no record of buttock pain until 2004, stating “[I] put up with aggravation and worked with it… with time, pain has extended into buttock”. Mr Rodgers also acknowledged, that prior to January 2004 he had not complained to Australia Post about pain in his lower back and buttocks.
(c)Between 1999 and 2004, he had a number of intermittent minor accidents when he had fallen off his motorcycle losing skin off his hand, hitting his back as well as striking his head. As an example, he said that in 2003, he fell forward, off his bike on to the ground whilst travelling at 15 km/hr on wet grass. He reported this incident to Ken Moug.
103. Mr Rodgers said that he had seen his treating GP in November/December 2003 for buttock pain from lifting his son. However, this did not result in him taking time off work. He had also seen Dr Troy on 25 November 2003 and had been given time off from work for gluteal and buttock pain.
104. In re-examination, Mr Rodgers thought that any injury he sustained from lifting a child may have occurred whilst on holidays. He had 2 months holidays in September 2003 as well as the Australian Post short Christmas break in 2003.
(iii) Evidence of Maria Rodgers
105. Mrs Rodgers said that she could not recall the incident in late 2003 when Mr Rodgers sustained back pain whilst putting their child to bed. Nor could she recall her husband telling her that back pain occurred when he picked up their infant son.
106. Mrs Rodgers remembered their move to their first home in April 2003. She was unaware that her husband may have hurt his back at this time, from moving furniture.
107. Mrs Rodgers said that she was “pretty sure” her husband had frequently complained about low back pain over time.
Further Evidence of Re-called Witnesses: Pre-Existing Injury and Aggravation
§ Re-called Evidence of Robin Rodgers
108. Mr Rodgers was asked about the nature of his fall as a result of the motor vehicle accident on 8 July 1999. He said that he thought he would have landed on his back, but could not recall whether he was thrown backwards or forwards. Because of problems of recollecting the incident, he assumed he may have fallen on his back.
109. In terms of his appointment with Dr Syed, a few hours later on the day of the accident, Mr Rodgers stated that he had no recollection of seeing Dr Syed. During cross-examination, he acknowledged the medical report stated that he had not been thrown to the ground. Because he could not recollect the events on this day, Mr Rodgers stated that he would rely on the paperwork completed by Dr Syed.
§ Re-called Evidence Of Dr Andrew Marsden
110. Dr Marsden’s oral evidence and supplementary medical report (R36) can be summarised as follows:
(a)That there was no connection between the motor vehicle accident in July 1999 and Mr Rodgers’ back injury;
(b)That Dr Syed’s medical report of the incident was “extremely adequate” and a “thorough assessment of the accident”;
(c)That the documentation was significant in that it identified Mr Rodgers had not been thrown to the ground. In addition, the diagnosis that had been completed by Dr Syed marked the extent of bruising and abrasion sustained in the accident;
(d)That the history given to him by Mr Rodgers on 15 October 2004 was that in 1999 his motor cycle was clipped on the front wheel and that he was thrown off and suffered a left knee injury. Nor had Mr Rodgers described any back injury arising out of this incident to him;
(e)Based on Dr Syed’s contemporaneous record, it was his expert opinion that Mr Rodgers had sustained a local blunt trauma to the upper thigh only and no knee injury; and
(f)During cross-examination, he agreed that symptoms of back pain did not manifest immediately; the maximum time before symptoms emerged was around 24 hours.
111. In Dr Marsden’s opinion there was absolutely no relationship from this accident in July 1999 to the disc protrusion claim in January 2004 - the subject of this application for review.
Legal Principles
§ The Decision-Making role Of The Administrative Appeals Tribunal
112. The AAT is not bound by the rules of evidence: Administrative Appeals Tribunal Act1975 s 33(1)(c). It is, however, obliged to adopt “fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa v West (1985) 159 CLR 550, at 585, per Mason J; Lodkowski v Comcare (1998) 53 ALD 371, at 386, per Goldberg J.
113. The task of the AAT is not necessarily limited by the issues identified by the parties. As was said by Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408, at 425, in substance the Tribunal’s review of the primary decision is inquisitorial in character, with the Tribunal under a duty to arrive at the correct or preferable decision on the material before it. Subject to the rules of procedural fairness, the Tribunal is entitled to inform itself on any matters relevant to the pleadings in such manner as it thinks appropriate: s 33(1)(c).
114. It is true that the issue of aggravation of a pre-existing injury was not flagged in the Statements of Facts, Issues and Contentions filed in the Tribunal. As expert medical evidence was raised on this issue at the hearing, without objection, there was material before the Tribunal that was relevant to the question of aggravation of a pre-existing injury. Of course, the mere fact of medical opinion being admitted into evidence without objection does not necessarily establish that it was procedurally fair for the Tribunal to take it into account. If, for example, the respondent had no realistic opportunity to consult with its own doctors or medical experts, or was denied the opportunity to adduce such opinion, arguably it might have been unfair to allow the evidence "to come out of left field" in the manner it did. But this is not what happened: see observations of Sackville FCJ on procedural fairness and the statutory function of the Administrative Appeals Tribunal in Haberfield v Department of Veterans’ Affairs (2002) 121 FCR 233 at 245.
115. Once the issue of aggravation of a pre-existing injury was before the Tribunal, it was open to the party’s counsel to apply to recall their medical expert witnesses, or indeed, to call other evidence addressing this issue. In fact, such application was made by the respondent to recall Dr Marsden. Mr Harrison recalled Mr Rodgers. Nor can it be said that the applicant's counsel failed to appreciate the significance of the evidence. In fact, at the Telephone Directions Hearing held approximately one week before the resumed hearing Mr Harrison endeavored to persuade the Tribunal to disregard or to give it little weight to any supplementary medical reports prepared by Dr Syed, in relation to the July 1999 motor vehicle accident, without Dr Syed being called to give evidence. The Tribunal notes that a medical report of Dr Syed (prepared on 8 July 1999) formed part of the Incident Report tendered as evidence at the Tribunal hearing in February 2005 [Exhibit R3, 9 July 1999].
§ Proof of Causation
116. The reasoning of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 as to the legal standard of proof in civil litigation, the balance of probabilities, is particularly relevant:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” (Tribunal emphasis)
117. The approach taken by our Courts to scientific evidence and the question of causation under “workers’ compensation” legislation is well illustrated in O’Neill v Commonwealth Banking Corporation (1987) 13 ALD 234, a case dealing with section 29(1) of the Compensation (Commonwealth Government Employees’) Act 1971. In this case, Pincus FCJ stated (at 235,236):
“…To ask the question whether a particular employment was a contributing factor to the contraction of a disease or to its aggravation, acceleration or recurrence is not to use language of a technical character.
A similar point was made by Mason JA (as he then was) in Midge v Wormed Bros Industries Ltd [1972] 2 NSWLR 29, in a judgment relied on by the Full Court of this court in Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533 at 537. His Honour said, at 44, in effect, that questions of causation in the application of workers’ compensation legislation ‘are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation’. At 47 he referred to a decision of the New South Wales Court of Appeal as emphasising ‘that the question of causation is essentially one of fact’. In Kirkpatrick’s case, after referring to these passages, the Full court said at 527: ‘Eschewing metaphysics, the decision of the Tribunal is in this case fundamentally a finding of fact upon a commonsense consideration of the factors which led to the applicant’s condition’…” (Tribunal emphasis)
118. The reasoning of Herron CJ in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Court of Appeals NSW) is significant with respect to the evaluation of medical evidence by our Courts. At 242, Herron CJ stated:
“But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”
119. Some medical opinion before the Tribunal has relied on the scientific method of “inference” to provide the basis for his conclusions on causation viz. progressive deformity. The common law of evidence that is relevant in any consideration of the weight to be placed on an inference is contained in the decision of LJ Wright in Caswell v Powell Duffryn Associated Collieries Ltd (1939) 3 All ER 722 at 733:
“There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish…But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
§ Analysis of Competing Medical Opinions
120. Orthopaedic opinion evidence is central to determining this application for review. In this case, as is commonly the situation where expert medical evidence is before the Tribunal, divergent opinion existed. Accordingly, the question for the Tribunal is to determine the weight to attach to the competing medical opinions.
121. Clark v Ryan (1960) 103 CLR 486 is conventionally seen as a leading authority on expert evidence:
“[T]he opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of the inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgement without such assistance, in other words, when it so far partakes of the nature of a science as ton require a course of previous habit, or study, in order to obtain a knowledge of it (at 491)”.
122. Analysis of the following authorities provides some underlying legal principles that may be applied to address this question of the weight to attach to competing expert opinions:
(a)That for specialist scientific evidence to be admitted, it must have a basis in a body of recognised scientific theory. Its value and effect need not be subject to complete unanimity by all experts in the field: R v Lucas [1992] 2 VR 109 at 115;
(b)An essential pre-requisite to the admission of expert medical evidence is that it be accepted by experts competent in the appropriate field as a scientifically established facet of this area of medicine. This must be established by appropriate evidence: R v Runjanjic (1991) 56 SASR 45 at 47;
(c)An assumption that a topic is a fit subject of expert evidence if it is proved that there is a scientifically accepted body of knowledge concerning the subject area of the expert opinion: R v C (1993) 60 SASR 467 at 473; and
(d)In Casley-Smith and Ors v FS Evans & Sons Pty Ltd and Anor (No 1) (1988) 49 SASR 314, Olsson J stated that an analysis of authoritative texts and decided cases established a number of propositions, including whether the opinion evidence “forms part of a body of knowledge…which is …sufficiently organized or recognised to be accepted as a reliable body of knowledge” (at 320). Later, Olsson J made the following observation (at 323) in relation to evaluating scientific principles that could be extracted from the existing body of learning (“at least so far as any relevant published works or research publications were concerned”) :
“…it is useful to bear in mind not only the dictum of King CJ in R v Bonython (supra) but also those of the United States Court of Appeals in the leading case of Frye v United States 293 F 2d 1013 which made the point that:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognised, and while the courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
Submissions And Contentions Of The Parties
123. Mr Harrison opened with the submission that Mr Rodgers had suffered a completely “fresh injury” from lifting a tub of over-sized articles. However, he contended that it was also open for the Tribunal to make a finding with respect to aggravation of an earlier injury or, alternatively, a disc injury from a motor vehicle accident on 8 July 1999 (i.e. a pre-existing injury) which could have been aggravated by the lifting incident on 5 January 2004.
124. In relation to the submission relating to an aggravation arising from the motor vehicle accident in July 1999, Mr Harrison’s submissions could be summarised as follows:
(a) a concession that Mr Rodgers’ recall of events, at the time, was limited;
(b)an acknowledgement that, initially, no issue was raised about buttock or back pain arising from the accident as Mr Rodgers tried to manage the injury himself. In addition, Mr Rodgers wished to avoid harassment from fellow workers that he had sustained injuries;
(c)a concession that Dr Syed’s medical report did not contain any record of back injury – but that a back injury may have emerged as a problem at a later date. He also referred to Dr Marsden’s evidence that back pain may not manifest itself within a few hours of an accident – but emerge some 1 to 2 days later; and
(d)an acknowledgement that the first record of low back pain was in 2002.
125. Mr Harrison’s submissions with respect to Mr Rodgers sustaining a “fresh injury” from lifting a tub of over-sized articles can be summarised as follows:
(i)There was no evidence that Mr Rodgers sustained a lower back injury in early 2004, immediately prior to 5 January 2004. The nature of the low back problem had changed significantly in January 2004.
(ii)There was no evidence before the Tribunal that Mr Rodgers was not fit and well when he arrived at work (6 am) on 5 January 2004.
(iii)The nature of events that led to a “completely fresh injury” being sustained was that at around 9.45 am, Mr Rodgers had picked up a tub of over-sized articles, experienced severe pain and then slumped to the ground looking for “Nurofen”.
(iv)Corroboration of this event occurring could be adduced from -
§ the evidence of Mr Morel who had been told about his back pain;
§ the evidence of Mr Taylor who had seen him at the beginning of the day. However, Mr Harrison contended that Mr Taylor’s recollection of events was incorrect in terms of seeing Mr Rodgers at 8 am; and
(v)The applicant had rung his wife to make a medical appointment for his back pain.
126. Mr Harrison submitted that Mr Rodgers thought that he had adhered to the correct reporting procedures by ringing the following day (6 January 2004) to advise that he would not be at work. In addition, he submitted that the reporting procedures did not give a clear idea when a report had to be lodged or what constituted a moderate or severe injury and so warranted reporting.
127. In terms of the diary records for both parties, Mr Harrison acknowledged that no claim had been made that the records relied on were completely comprehensive as a total record of what had been said.
128. In terms of the evidence of Mr Rodgers’ managers at the Delivery Centre (Precha, Olsen, Moug), Mr Harrison contented that little weight should attach, as their evidence was either contradictory or incorrect.
129. Mr Harrison concluded with the submission that an inference could be established to support a completely fresh injury occurring on 5 January 2004, based on the following factual issues:
(i) Mr Rodgers was fit and well when he commenced work at 6 am.
(ii)Evidence for the injury sustained from lifting the tub of over-sized articles at 9.45 am could be derived directly from Mr Rodgers’ evidence (felt severe pain) and, indirectly, from the evidence of Mr Morel, Mr Taylor and Mrs Rodgers.
(iii)Dr Chin’s treatment of Mr Rodgers’ back problem on 5, 6, 7 and 10 January 2004 and ultimately the need for a further diagnosis as the condition did not respond to acupuncture.
(iv)The CT scan on 10 January 2004.
(v)The need to attend a locum and the Fremantle Hospital on 11 January 2004 for severe pain.
(vi)Consultation with Dr Troy on 12 January 2004, followed by a referral to Mr McCloskey.
130. Ms Giles submitted that Mr Rodgers’ disc protrusion injury did not occur at work on 5 January 2004 – nor was it an aggravation of an earlier injury associated with a motor vehicle accident on 8 July 1999.
131. In relation to the motor vehicle accident on 8 July 1999, Ms Giles made the following submissions:
(a)There was no evidence of a sudden physiological or pathological change to Mr Rodgers’ back or to his spine or to his L5/S1 disc caused by the motor vehicle accident.
(b)There was no radiological evidence, or any contemporary medical evidence, to corroborate such an injury or to provide evidence of the condition of Mr Rodgers’ spine prior to the CT scan (10 January 2004).
(c)From the time of the motor vehicle accident in July 1999 until the end of 2001, there was no attempt by Mr Rodgers to seek any medical treatment or assistance for his lower back or for buttock pain – or to raise the issue with Australia Post.
(d)That there was no evidence that Mr Rodgers was thrown to the ground; at best, Mr Rodgers’ oral testimony in this regard was indefinite.
(e)Against this background of facts, the Tribunal could not be satisfied that there had been an aggravation of an injury consistent with the statutory meaning.
132. In relation to the contention of Mr Harrison that Mr Rodgers had sustained a completely “fresh injury” from lifting a tub of over-sized articles on 5 January 2004, Ms Giles contended that:
(a)Mr Rodgers’ medical history prior to this date was indicative of intermittent low back pain arising as a consequence of non-work-related causes.
(b)Mr Rodgers had returned to work on this date after the four day New Year break. Ms Giles submitted that there was uncertainty associated with causation during this time period up to resuming work.
(c)Mr Rodgers did not report the incident, that he claimed had occurred on 5 January 2004, until 12 January 2004 – notwithstanding the severe pain he experienced from the outset. Furthermore, he had acknowledged that he was aware of reporting procedures for incidents and accidents at work.
(d)There were inconsistencies in the evidence of witnesses called by Mr Rodgers (Morel, Taylor) to support his claim as to the nature of events that led to the injury he suffered. In addition, there was no evidence from Mr Rodgers’ managers at the Canley Vale Delivery Centre that could corroborate Mr Rodgers’ description of events.
(e)It was implausible to accept Mr Rodgers’ account that he was in excruciating pain from the time he lifted the tub of over-sized articles and, later, during his delivery round – but that he still failed to report the incident within the timelines.
(f)It was difficult to reconcile Mr Rodgers’ account that he sought treatment for the injury he claimed to have sustained at work, on this date, with a general practitioner specialising in acupuncture – especially when this doctor’s stated policy was not to see patients with worker’s compensation claims.
133. Ms Giles concluded by submitting that the lower back symptoms Mr Rodgers had experienced in January 2004 were just as consistent with an injury occurring prior to 5 January 2004. That is, Mr Rodgers suffered a disc prolapse some time prior to this date – probably during the latter period of 2003.
Consideration Of The Issues
134. Based on the CT scan on 10 January 2004, there is no dispute that Mr Rodgers suffered a disc extrusion and that it impinged on a nerve root. (Exhibit R1, T3, Folio 8).
135. There is considerable agreement between the medical experts on their evidence before the Tribunal in respect of causation and symptomology of a prolapsed disc/extruded disc that enables the Tribunal to conclude that:
(a)there is a scientifically accepted body of knowledge for this medical condition;
(b)which is sufficiently recognised to be a generally accepted and reliable body of knowledge in regard to this medical condition (see Lucas’, Casley-Smith and R v C cases).
136. Accordingly, given this finding, the Tribunal makes the following findings with respect to causation and symptomology for the prolapsed disc/extruded disc condition based on consistency between the opinion of various medical practitioners called to give evidence at the hearing. The medical condition “prolapsed disc” is used in the context of the meaning given by Mr McCloskey in his oral evidence: “a disc bulge, or a disc prolapse or an extruded disc”.
(a)The natural history of a disc bulge is for it to resolve but this is not necessarily always the case (Mr McCloskey; Dr Marsden);
(b)That a disc prolapse can be totally asymptomatic. That is, a disc prolapse condition with an apparent pressure on a nerve does not always lead to a scenario consistent with radiculopathy; a disc prolapse condition is associated with a spectrum of severity of clinical pain (Mr McCloskey; Dr Marsden);
(c)That a disc prolapse can occur in a number of ways: no history of trauma, or from a single trauma or from multiple traumas to the back (Mr McCloskey; Dr Marsden);
(d)Disc problems may arise from many activities of life unrelated to work or may be work-related (Mr McCloskey; Dr Marsden; Dr Troy);
(e)A disc prolapse can present as back pain. Buttock pain can also be a manifestation of a disc prolapse. Symptoms over time may be variable: they may increase, decrease or remain unchanged (Mr McCloskey; Dr Marsden);
(f)Pain into the foot or going down the leg was indicative of a disc protrusion/herniation (Dr Marsden; Dr Troy).
137. These conclusions made by the Tribunal, on the generally accepted body of medical knowledge for the disc prolapse/extruded disc condition, are next considered in relation to the expert evidence relating to Mr Rodgers’ specific symptoms and the question of causation. Specific reference is made to his claim in relation to the “notional incident” on 5 January 2004.
138. The Tribunal concludes that there is consistent expert evidence that Mr Rogers has a past history of low back pain for the following reasons:
(a)Dr Troy gave a past history of treating Mr Rodgers for low back pain in November 2001, November 2003 and December 2003. His opinion in relation to Mr Rodgers’ past history of low back pain was that his lumbar spine was vulnerable;
(b)The history taken by Dr Chin was that Mr Rodgers presented with a 3 month’s history of low back pain. Over the 6 day period that he treated Mr Rodgers for his initial severe pain in January 2004, the sequence in terms of severe pain, had been no change, then an initial improvement, followed by no improvement;
(c)Dr Marsden’s opinion, based on his analysis of medical reports and his consultation and review of Mr Rodgers, was that Mr Rodgers had a 3 month history of back problems. Moreover, his report refers to the fact that, at the consultation, Mr Rodgers denied previous back problems prior to January 2004;
(d)The history of back pain in 2002 taken by Mr Lamb;
(e)The opinion of Dr Troy that the radicular pattern of pain experienced by Mr Rodgers in January 2004 was quite different from the pattern of pain he had treated Mr Rodgers for in the past. This opinion needs to be counter-balanced against Mr McCloskey’s opinion that a disc prolapse with apparent pressure on a nerve does not always lead to a scenario consistent with radiculopathy. The Tribunal has made an earlier finding in this regard; and
(f)Dr Marsden expressed the opinion that he had no doubt Mr Rodgers’ history of back pain and buttock pain was indicative of a significant lower back problem with nerve root interference – well before January 2004. The Tribunal has made an earlier finding that buttock pain can be a manifestation of a prolapsed disc.
139. In addition, Mrs Rodgers’ oral evidence, in this regard, was that she was pretty sure that her husband had frequently complained about back pain over time.
140. The next issue for the Tribunal to consider, with respect to being a possibility (as distinct from the probability), is whether the medical opinion evidence before the Tribunal could support the contention that the notional incident on 5 January 2004 was the cause of Mr Rodgers’ prolapsed disc/extruded disc. There are two divergent expert opinions in this regard:
(a)Dr Troy concedes that the opinion in his report, that Mr Rodgers injured himself lifting a box of over-sized articles at work, arose from the history he had taken from Mr Rodgers at the consultation. However, it was his opinion that, if this incident was not the cause of Mr Rodgers’ injury, then it would have had to have occurred in the immediate preceding period. That is, it would have had to commence 1 or 2 days before 5 January 2004. He acknowledged that Mr Rodgers’ presentation at the consultation on 12 January 2004 could be just as consistent with an injury occurring away from work immediately prior to 5 January 2004;
(b)Dr Marsden’s opinion was that there was disc protrusion beforehand, as Mr Rodgers had a significant low back problem with left nerve root interference well before 5 January 2004.
141. Based on (a) the opinion of Dr Troy that Mr Rodgers’ lumbar spine was vulnerable, (b) Mr Rodgers’ past history of low back pain recorded by Dr Troy, Dr Chin and Mr Lamb and (c) that a single event may cause a disc prolapse (Mr McCloskey; Dr Marsden), the Tribunal considers that it is “possible” that the notional incident on 5 January 2004 may have been the cause of Mr Rodgers’ prolapsed disc. However, for the notional incident to satisfy the balance of probabilities, the Tribunal must also examine the lay evidence, as well as all of the medical evidence: see EMI (Australia) Ltd v Bes.
142. Accordingly, the Tribunal next considers the lay evidence in relation to the question of causation and the “notional incident” on 5 January 2004.
143. Mr Rodgers’ evidence was that he was fit and well on arrival at work. His evidence was that the “notional incident” occurred around 9.30 am – 9.45 am, after he picked up a tub of over-sized articles. He then immediately felt excruciating pain in his lower back. The injury caused him to scramble on his hands and knees in his working bay looking for “Nurofen”. Mrs Rodgers confirmed that her husband rang her that day to make a medical appointment for him after he completed work that day, because he had injured his back and was in severe pain.
144. The Tribunal has considered the “Briginshaw test” in relation to the consistency between lay evidence and the injury sustained in the “notional incident” on 5 January 2004. In particular, whether any such evidence before the Tribunal might be described as either “inexact proofs”, “indefinite testimony” or “indirect inferences”: see Briginshaw’s case.
145. Mr Morel’s work bay at the Mail Delivery Centre backed on to Mr Rodgers’ working bay; they sorted mail parallel to one another. Mr Morel did not give any evidence of seeing Mr Rodgers, in pain, scrambling on his knees on the floor of his working bay looking for “Nurofen”. Mr Morel’s evidence was that he could only recall Mr Rodgers telling him that he hurt his back. There was no mention of the nature or severity of the pain being experienced or how Mr Rodgers had hurt his back. The Tribunal considers that Mr Morel’s evidence is of limited value as only an “inexact proof” can be established to corroborate the “notional incident” occurring on 5 January 2004 in terms of causation and the nature of the effects on Mr Rodgers’ lower back – given the description of the severity of the pain Mr Rodgers had experienced at this time.
146. The evidence of Mr Taylor was that he first saw Mr Rodgers in pain with his face as “white as anything” around 8 am. He next saw Mr Rogers around 9.45 am i.e. the time Mr Rodgers has claimed the “notional incident” of lifting the tub of over-sized articles occurred. Mr Taylor confirmed the earlier time by relating his observation to the time of the short morning tea break (at 8 am) and not the longer lunch break (at 10 am).
147. Accordingly, linking the inconsistency between Mr Taylor’s evidence to Mr Rodgers’ evidence, in relation to the factual events on the morning of 5 January 2004, can only lead to a conclusion by the Tribunal that Mr Rodgers’ evidence, in this regard represents “indefinite testimony”.
148. None of the Australia Post Managerial Staff (Mr Precha, Mr Olsen and Mr Moug) were directly – or indirectly – aware of Mr Rodgers sustaining an injury at the Delivery Centre on the morning of 5 January 2004. Moreover, Mr Precha had no recollection of seeing Mr Rodgers, in pain, scrambling on his hands and knees in his working bay – notwithstanding that Mr Rodgers’ evidence was that he could recall seeing Mr Precha “in front of him” at this time. In addition, no injury was reported by Mr Rodgers until the following morning (6 January 2004) by Mr Rodgers, notwithstanding:
(a)his description of the severe pain he was experiencing at work and during his delivery round that day (5 January 2005);
(b)Mr Rodgers’ acknowledgement that incidents involving injuries had to be reported – including notifying immediately. He had adhered to this practice in the past; and
(c)the advice given by Mr Taylor to Mr Rodgers on their delivery round that afternoon (5 January 2004) to report the incident to his supervisor.
149. On consideration of the facts arising from the evidence of Mr Precha, Mr Olsen and Mr Moug, the Tribunal concludes that only an “indirect inference” can be made from their evidence to support a finding that the “notional incident” occurred on 5 January 2004.
150. The Tribunal has attached little weight to the diaries kept by both parties because of some limitations that became evident during the hearing. The applicant’s diary is not a contemporaneous document given that the entries commenced on 12 January 2004, with the preceding week’s entries completed by recollection. Also, Mr Moug’s evidence was that he entered a record of Mr Rodgers’ telephone conversations in his work diary on 12 January 2004. In addition, the purpose of the Operational Diary of the respondent was to facilitate staffing arrangements when staff were absent from work – and not an exhaustive work history of each employee. Only injuries that prevented a person from working were recorded. There were inconsistencies in diary entires by both parties: for example, the correct record and/or dates for specific events. Given that these conclusions apply to both parties, the Tribunal considers that the diaries do not contribute to the integrity of the Tribunal’s decision-making process.
151. Because of the Tribunal’s findings in relation to “indirect testimony”, “inexact proof” and “indirect inferences” associated with some key elements of the lay evidence [see Briginshaw’s case], the Tribunal cannot be “reasonably satisfied”, at the civil standard of proof, that the “notional incident” of Mr Rodgers picking up a tub of over-sized articles which, in turn, led to severe low back pain, occurred. Furthermore, there are insufficient objective facts that can be proved from the lay evidence, at the civil standard of proof, that may enable such an inference to be established: see Caswell’s case.
152. Applying the legal principles in EMI (Australia) Ltd v Bes and Briginshaw’s cases, and applying the Tribunal’s findings of fact in relation to all of the expert medical evidence, as well as the lay evidence, the Tribunal can make no other conclusion than to find that, on the balance of probabilities, it cannot be satisfied that the “notional incident” on 5 January 2004, as described by Mr Rodgers, was the cause of his left sided L5/S1 disc problem.
153. The Tribunal prefers the medical opinion of Dr Marsden, rather than Dr Troy, in this regard. Dr Marsden’s opinion was that Mr Rodgers had a significant low back problem, with left nerve root interference well before 5 January 2004. Furthermore, it was Dr Marsden’s opinion that Mr Rodgers had disc protrusion beforehand sufficient to cause radiculopathy – with changing severity of symptoms over time. The evidence before the Tribunal is quite clear that Mr Rodgers had low back pain, left buttock and left leg referred pain before 5 January 2004. The evidence of Dr Troy, Dr Chin and Mr Lamb indicates that Mr Rodgers had a past history of low back pain, including Dr Troy’s evidence that Mr Rodgers’ lumbar spine was vulnerable.
154. The failure of Mr Rodgers to disclose past back pain to Dr Marsden - regardless of the form and nature of pain it had taken over time, can only lead to a conclusion by the Tribunal that Mr Rodgers’ evidence, in regard to this fact, is inconsistent with all of the evidence before the Tribunal. The Tribunal so concludes that this aspect of Mr Rodgers’ evidence is “indefinite testimony” on his part.
155. Furthermore, the Tribunal considers that there is inconsistency in Mr Rodgers’ evidence in relation to the severity of pain and symptoms he experienced on 5 January 2004 and his awareness of the need to notify incidents involving injury, immediately. Given his evidence in this regard and because of his failure to report the incident/injury on 5 January 2004, whilst working at the Delivery Centre, or during his delivery round or on signing off after work, the Tribunal can only conclude that this aspect of his evidence is also “indefinite testimony”.
156. The Tribunal’s findings of “indefinite testimony” in Mr Rodgers’ evidence [paras. 138(c), 147, 154 and 155] limit the weight that can be attached to it in terms of the issue of causation.
157. The Tribunal further concludes that the factual basis for the conclusions contained in Dr Marsden’s opinion is consistent with the Tribunal’s findings with respect to causation and symptomology for the medical condition of a prolapsed disc/extruded disc as an accepted and reliable body of knowledge (see para 136).
158. The Tribunal findings in relation to (a) the limitations in the lay evidence to corroborate the “notional incident” occurring on 5 January 2004 at the civil standard of proof, and (b) together with the findings on all of the expert medical opinion evidence, leads the Tribunal to conclude, on the balance of probabilities, that the left sided L5/S1 disc problem Mr Rodgers has suffered did not arise out of, or in the course of, his employment with the respondent. Mr Rodgers did not sustain a completely “fresh injury” from lifting a tub of over-sized articles on 5 January 2004.
159. The Tribunal makes the observation that this finding is consistent with the medical opinion the Tribunal has accepted that causation may arise from many activities of life unrelated to work or may be work-related. The finding is also consistent with Dr Troy’s opinion that Mr Rodgers’ presentation at the consultation with him on 12 January 2004 “could be just as consistent with an injury happening away from work immediately prior to 5 January 2004”.
160. The next issue for the Tribunal to consider is whether there had been an aggravation of an injury that arose out of or in the course of employment: specifically, the motor vehicle accident that occurred on 8 July 1999.
161. The Tribunal has considered all of the evidence and information before it in relation to the question of “aggravation of an injury” and makes the following findings of fact:
(i)The Tribunal accepts Mr Rodgers’ evidence that he cannot recollect the events associated with the incident on 8 July 1999 and that he could only assume that he may have fallen on his back.
(ii)The Incident Report (Exhibit R3), tendered at the Tribunal hearing in February 2005, recorded that Mr Rodgers had stopped on his motorcycle at a give way sign when the front end of his motorcycle (wheel) was struck by a motor vehicle. Question 8 on the Incident Report [“Nature of Injury”] recorded a “severe muscular pain to left thigh”. The Tribunal accepts these facts as evidence of the accident and the nature of the injury.
(iii)The Tribunal accepts Dr Syed’s report (“First Medical Certificate” Exhibit R4), also tendered at the Tribunal hearing in February 2005, as confirming the nature of the injury on the incident report as “suffering from bruising of left thigh”.
(iv)Whilst Dr Syed’s Medical Certificate had set down a follow-up medical appointment seven days later (15 July 1999), there is no evidence or information before the Tribunal to indicate that such an appointment took place. Accordingly, the Tribunal concludes that no direct inference can be established to support a contention that further latent back injuries sustained in the accident may have emerged within a day (or two) of the accident.
(v)Dr Marsden’s history taken from Mr Rodgers on 15 October 2004 was that in 1999 his motor cycle was clipped on the front wheel and he was thrown off and suffered a left knee injury (Exhibit R36). This history is consistent with the injury recorded in the Incident Report and Dr Syed’s report (Exhibit R3, R4). In addition, in the history taken by Dr Marsden on 15 October 2004 (Exhibit R36), Mr Rodgers did not mention any back injury sustained in the incident on 8 July 1999.
(vi)There was also no reference to the incident of 8 July 1999 in the history taken by Dr Chin from Mr Rodgers.
(vii)There are no diagnostic radiological investigations associated with the incident on 8 July 1999, or any other such investigations, until the CT scan on 10 January 2004. Such investigations may have characterised the nature of the injury sustained at the time - as well as any changes over time.
(viii)There is no evidence before the Tribunal to support a finding of fact that Mr Rodgers suffered an identifiable physiological change as a result of the accident on 8 July 1999 that could be properly described as an injury to his lower back: see Broken Hill Proprietary Co Ltd v Mathiassen [1997] FCA 1525.
162. Given these findings the Tribunal accepts the medical opinion of Dr Marsden and concludes that it is reasonably satisfied, at the civil standard of proof, that the motor vehicle accident that occurred on 8 July 1999 has no relationship with the subsequent disc extrusion that was identified on the CT scan on 10 January 2004. Moreover, there are no positive proved facts to establish an inference of such a relationship i.e. the relationship is mere speculation: see Caswell’s case.
163. The Tribunal therefore concludes that the incident on 8 July 1999 has not led to a situation where the statutory requirements for causation can be satisfied on the facts. On the balance of probabilities, the Tribunal finds that there has not been an aggravation of an injury – whether or not that injury suffered arose out of, or in the course of employment, being an aggravation that arose out of, or in the course of that employment.
164. Given all of the Tribunal’s findings, the Tribunal further concludes that Mr Rodgers’ left-sided L5/S1 disc problem (variously described as a herniation, an extrusion and a protrusion) was not a work-related injury as defined in the SRC Act.
165. In arriving at its findings, the Tribunal has adopted a commonsense approach to the question of causation. The lay evidence is not considered discretely from the expert medical opinion evidence – but rather the lay and expert evidence are carefully considered and integrated. Furthermore, the Tribunal has made its findings of fact based on expert medical opinion for the condition of a disc prolapse/extruded disc that represents an accepted and reliable body of scientific knowledge – rather than relying on a scientific theory for causation.
166. For all of the above reasons, the Tribunal decides that:
(a)Mr Rodgers’ left sided L5/S1 disc problem is not a work-related injury as defined by the Safety, Rehabilitation and Compensation Act 1988;
(b)the injury Mr Rodgers suffered did not arise out of, or in the course of, employment with the respondent; and
(c)there has not been an aggravation of an injury (whether or not that injury suffered arose out of, or in the course of, Mr Rodgers’ employment with the respondent), being an aggravation that arose out of, or in the course of, that employment.
167.The Tribunal affirms the decision under review.
I certify that the 167 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 22-25 February 2005; 15-16 August 2005
Date of Decision 12 October 2005
Solicitor for the Applicant Mr R Harrison - Dwyer Durack
Counsel for the Respondent Ms P Giles
Solicitor for the Respondent Sparke Helmore
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