Rodgers and Australian Postal Corporation

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          

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…