Rush and Australian Postal Corporation

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 185

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 2005/427

GENERAL ADMINISTRATIVE DIVISION		)
Re		Kristine Louise Rush

Applicant

And  Australian Postal Corporation

Respondent

DECISION

Tribunal Mr SC Fisher, Member

Date5 March 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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DISTRICT REGISTRAR

General considerations

15.         First, in relation to claims to establish liability for an injury or incapacity flowing from that injury, the Tribunal must be satisfied on the balance of probabilities of the existence of the injury or the incapacity and that they were work related: see Robertson and Comcare[2] .  A succinct statement of this is found in Comcare v Nichols[3] where Justice Heerey said (at [23]):

“However Mrs Nichols also contended that (i) she had a cervical spondylosis (ii) which was work-related and (iii) which contributed to her present incapacity. If all three elements were established she would have an entitlement to compensation. The Tribunal had to be satisfied of the existence of each element.”

[2] [2002] AATA 1259 at [124].

[3] [1999] FCA 209

Tribunal’s reasons

A.       Diagnosis

16.     The Tribunal had an extensive body of medical evidence before it in the section 37 documents.  Not all of the medical practitioners who have provided medical care and medico-legal reports to the applicant were called to give evidence in this case.

17.     At the hearing, medical records were tendered on behalf of the applicant from Dr Brett Halliday, orthopaedic surgeon (medical report dated 14 July 2005).  The applicant also called evidence from Dr Anthony Schwarzer, consultant rheumatologist, whose medical reports appeared in the section 37 documents.  Both of these medical practitioners gave evidence.

18.     For the respondent at the hearing, Associate Professor Bruce McPhee, orthopaedic surgeon (medical report dated 16 September 2005) and Dr John Cameron, neurologist (medical report dated 3 April 2006) both gave evidence.

19.     Dr Brett Halliday diagnosed ’left L5-S1 zygapophysial dysfunction‘.  Dr Halliday described the condition as stable and stationary and allocated a 10% impairment under Table 9.5 and made a rating of 0% impairment under Table 9.6.

20.     Dr Anthony Schwarzer provided many medical reports concerning his treatment of the applicant since 1999, with reports spanning 8 February 1999 - 4 August 2000, and then variously from that date up to and including 8 November 2006.  Dr Schwarzer diagnosed the applicant as suffering from ’left L5-S1 zygapophysial joint pain’.  Dr Schwarzer rated the applicant as suffering a 10% impairment under Table 9.5.

21.     Associate Professor Bruce McPhee said that radiological investigations failed to demonstrate any pre-existing pathology or injury in the lower back or region of the sacred clean joints.  Associate Professor McPhee went on to opine that the symptoms of the applicant were not characteristic of any particular disorder and that the complaint of low back pain and left leg pain was without objective evidence of the impairment of lumbar spine, pelvis or lower extremity.  On the basis of his clinical examination, Dr McPhee said that the…