Way and Australian Postal Corporation
[2004] AATA 625
•21 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 625
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1649
GENERAL ADMINISTRATIVE DIVISION ) No N2003/1038 Re Gerard Way Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr M E C Thorpe, Member
Date21 June 2004
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal decides that:
(i) In relation to matter N2002/1649, the decision under review is affirmed.
(ii) In relation to matter N2003/1038, the Tribunal sets aside the decision under review and in substitution therefor, decides that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, the Respondent is liable to pay compensation for injuries to Mr Way’s lower back as a result of the nature and conditions of his employment at Australia Post and arising from this decision, compensation for his lower back condition under any other relevant section.
(iii) The Respondent is liable to pay the Applicant’s reasonable legal costs as taxed or agreed in relation to the matter N2003/1038.
..............................................
Ms S M Bullock
Presiding Member
WORKERS COMPENSATION – lower back injury – liability – permanent impairment- nature and conditions of employment
Safety, Rehabilitation and Compensation Act (Cth) 1988 ss 4, 14, 16, 19, 24, 25, 27
Comcare v Moon (2003) 75 ALD 160
Comcare v Amorebieta (1996) 66 FCR 83
REASONS FOR DECISION
21 June 2004 Ms S M Bullock, Senior Member
Dr M E C Thorpe, Member1.Mr Gerard Way, the Applicant, has made two applications for review to the Administrative Appeals Tribunal (“the Tribunal”) of two reviewable decisions made by the Respondent, the Australian Postal Corporation. The first reviewable decision was made on 15 October 2002 (T41, N2002/1649) and affirmed a determination made on 22 August 2002 (T38A), that Mr Way was not entitled to any compensation for permanent impairment and non economic loss because of a lower back condition, pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act1988. The second reviewable decision was made on 18 June 2003 (T18, N2003/1038), which affirmed a decision of 13 June 2003 (T11, N2003/1038), that there is no entitlement to compensation under any section of the Safety, Rehabilitation and Compensation Act 1988, including, but not restricted to sections 14, 16, 19, 20, 21, 24, 25 and 27. A hearing was held in Sydney commencing 10 December 2003 and resuming on 11 and 12 December 2003.
2.Mr Way was represented by Mr L Grey of Counsel and the Respondent was represented by Mr B Skinner of Counsel. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, N2002/1649, T1-T43; N2003/1038, T1-T19). A number of exhibits were also taken into evidence and are listed in Schedule 1 attached to this decision.
Issues
3.The issues in this matter are whether or not Mr Way has a lower back condition which is attributable to work and if so, what liability does the Respondent have to pay compensation under sections 14, 16, 19, 20, 21, 24, 25 and 27 of the Safety,Rehabilitation and Compensation Act 1988.
Legislation
4.A determination in this matter requires consideration of various provisions of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
5.Section 4 of the Act deals with various definitions of terms used in the Act. Specifically “disease” and “injury” are defined as:
“
“disease” means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…”injury” means
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;”
6.Subsection 14 (1) of the Act states:
“
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the results in death, incapacity for work, or impairment.”
7.Section 16 of the Act deals with the provision of medical and treatment expenses.
8.Section 19 of the Act provides for incapacity payments may be made to the claimant under certain circumstances.
9.Section 24 of the Act provides that compensation can be paid for permanent impairment and states:
“
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%; an amount of compensation is not payable to the employee under this section.
an amount of compensation is not payable to the employee under this section.”
10.Section 25 deals with increments of impairment and section 27 of the Act provides payment of compensation for non economic loss when permanent impairment is established.
evidence of mr gerard way
11.Mr Way was born on 25 November 1964. He left High School in Form Four (Year 10). Mr Way played indoor cricket, soccer, tag football and was generally very active during his youth and young adult life.
12.Mr Way commenced employment at Australia Post in 1993 as a mail officer. He sustained a number of injuries to his lower back at Australia Post namely:
·21 June 1994, when Mr Way was moving mail bags (T5). He stated that his back returned to normal after this incident.
·2 May 1995, when Mr Way’s lower spine was struck by an ULD (T6). Mr Way had no further problems after recuperation.
·12 February 1998, when Mr Way suffered a back injury lifting mail bags (T9).
·24 August 1999, when Mr Way suffered an injury to his back lifting a bag of mail (T21), returning to full duties in February 2000.
13.Mr Way stated that the most significant injury for him occurred on 28 May 1996, when his left foot was run over by a forklift truck. During the periods of those accidents detailed above, Mr Way had been off work or placed on light duties, eventually returning to normal duties. After the 1999 accident, Mr Way found that he could only play golf on four occasions since that injury and he has been swimming on only two occasions.
14.Mr Way has made other claims for compensation or submitted incident reports for different injuries such as for left shoulder pain, injury to his left foot, pain in his left wrist, injury to his left ankle, twisting injury to his right foot, pain in his thumb, injury to his right kneecap and pain in the left hand. Mr Way stated that it was the policy of Australia Post that employees must complete reports of incidents even if minor and that is what he did.
15.Mr Way further stated that he had no trouble with his back prior to the commencement of employment at Australia Post. He described his duties as a mail officer involving sorting mail, loading and unloading mail at the dock, and twisting and bending in performing his duties. Mr Way later became head Dock Storeman and this involved less manual work and more paperwork.
16.Mr Way informed the Tribunal that in early 2000, he was finding it difficult to undertake chores around his home, which at that time, was an apartment. He found it difficult taking the garbage down the stairs and in relation to his younger children, could not lift the oldest daughter Sarah. Also by 2000, Mr Way’s sex life had diminished. Just getting out of the bed in the morning caused him back pain and he had to resort to rolling out of bed. Bending to do up his shoes was difficult and he wore no shoes or just thongs whenever possible. If Mr Way did have to bend, he stated he had to bend from the knees.
17.In June 2000 Mr Way accepted a voluntary redundancy from Australia Post. Following the redundancy, Mr Way spent some time with his mother and father for about three months and noted that his back condition improved slightly. Mr Way stated that the history of his back condition is that it fluctuated. Some days he was alright, but on other days he “could not do anything”.
18.In 2001, Mr Way commenced work as a supervisor/storeman with “Dynamic Wire Products”. This work stressed his back slightly, he stated, and he thought he was hurt on two occasions. Mr Way estimated there were a few times each week during the one and half years he was at Dynamic Wire Products that he had difficulty with his back. Mr Way would on occasion have the other men assist him with his work, which he was able to do easily as he was a supervisor.
19.In March 2002, Mr Way commenced work at “Toyota” as a storeman. He considered that this was a better position and also attracted a higher salary. Mr Way’s work mostly involved pushing spare parts around using a trolley. There was no heavy lifting and if goods needed to be obtained which were heavy or high up, he could use a forklift. During 2002, Mr Way stated that his back was never 100 per cent. Mr Way was on his feet all day and negotiating stairs was sometimes difficult. Every hour, Mr Way would take a five minute break. During his work at Dynamic Wire Products and at Toyota, he would take pain killing medication for his back when required. Mr Way stated that he is not currently receiving any treatment for his back. In June 2003, Mr Way left Toyota because of a disagreement. This involved Toyota suspecting that Mr Way had been involved with drug use and/or trafficking at Toyota. Mr Way explained the circumstances surrounding this disagreement, noting that he had accepted a telephone call from a friend asking him to bring over a book to the Toyota site. He did this, accompanied by his daughter and when arriving at Toyota, was intercepted by security guards and searched. Mr Way stated that then his young daughter was separated from him and kept away for approximately one and half hours. Mr Way stated that his daughter was “kidnapped”. Mr Way was very distressed at that set of circumstances and has sought compensation as a result of the stress and anxiety he experienced.
20.Mr Way is currently employed again as a storeman. He classified the work as “light work”. Mr Way accepted the current position as it had that option of lighter work. He had three or four other employment options he could have taken. Mr Way commences work at 8.30am, obtains the various orders required from the shelves, using a shopping trolley to move the items around. Mr Way also has to drive a truck and this can hurt his back.
21.In March 2003, Mr Way consulted Dr A D Diwan, Orthopaedic Surgeon, because his back was sore every day and he could not get out of bed or even make a cup of coffee. He was told by Dr Diwan that a disc had “gone” and surgery would help, but he would be incapacitated for a year after the surgery. Mr Way stated that he is not inclined, certainly at the time of hearing, to have surgery.
22.Currently Mr Way and his family live in a house. He has to mow the grass and has mowed it on approximately four occasions in the last six months. Mr Way is able to rake the leaves up from the trees, but then has to sit down for two or three hours to rest. Mr Way helps with bathing the children, with his wife assisting by lifting them into the bath. He recalled one occasion when he lifted his two year old daughter into the bath. Mr Way also attempts to assist with the clothes washing. He must still roll out of bed and believes that he has the same restrictions as about two years ago. Mr Way stated that he has never achieved his level of freedom from pain as before August 1999. The pain is always there, a niggling pain. During the course of the hearing, Mr Way stated that he was experiencing pain. He further explained that just leaning over to reach for a glass of water causes him to feel pain. Mr Way stated that he does not take any regular medication for his back but takes medication for headaches. Mr Way recalled that he last had treatment for his back in about June 2003, which involved taking regular exercise and walking in a swimming pool. He undertook this exercise regime of his own accord because he was told that physiotherapy was no longer able to assist him. Mr Way noted that Dr J Crossley, General Practitioner, prescribed pain killing medication for his back when he could not get out of bed. Dr Crossley had prescribed medication also for depression but he could not recall the name of that. Mr Way’s family doctor also prescribed antidepressants approximately two years ago because of the problems he was having at Toyota. He stated that he suffers from anxiety as a result of his work at Toyota. Mr Way was referred to a psychiatrist, Dr Lia, at Sutherland Hospital Psychiatric Unit. Mr Way had told Dr Lia of his troubles at Toyota. He stated that he could not let go of the anger he had towards that company. Mr Way told Dr Lia that he was stressed and anxious, depressed and suffering from insomnia at that time.
23.Mr Way acknowledged that after employment at Australia Post, he had not told subsequent employers of his back condition as he would never have been able to obtain employment if prospective employers thought that he came with a problematic back. During the time at Toyota, Mr Way stated that he was so confused and frustrated, was on painkillers and antidepressant medication and he was “not thinking straight”. He was preoccupied with the perception of persecution from Toyota in February 2003. After seeing Dr Lia at Sutherland Hospital, Mr Way continued to consult her for one month, every Monday. Mr Way stated that he was in hospital on New Years Day 2003 and discharged on 3 January 2003. This hospital admission occurred because Mr Way thought he was going to die with pains in his chest and arms. In hospital, he stated that the doctors could not work out was happening, but eventually diagnosed an anxiety attack. Mr Way explained that he was experiencing pins and needles in his hands, was hyperventilating and could not move. X-rays and a CT scan were taken at that time of the cervical spine. Mr Way thought he was having a heart attack. Basically, Mr Way described himself in January 2003 as not knowing whether he was “coming or going”.
24.Despite his back problem, Mr Way stated that he has to work as he is a family man who must support himself, his wife and two young children. He does not want to be a person who is “on the dole” for the rest of his life, he stated.
25.In relation to his examination by Dr Thomas, Medical Adviser, Health Services Australia, Mr Way did not recall this. He was not sure whether or not he had told Dr Thomas that he experienced mid back ache prior to the sudden onset of severe low back pain on 24 August 1999, following a twisting episode lifting a mailbag (T23 N2002/1649). Mr Way stated he did not have many problems with memory loss, but he has seen so many doctors, he does not recall them all. Mr Way did recall being examined by Dr G Carr, Rheumatologist, within several months of August 1999. He stated that he did not tell Dr Carr that he had six months off work with his left foot. Furthermore, Mr Way stated he could have told Dr Carr that he has six months off work because of his back. Mr Way also acknowledged that he could have told Dr Carr that he had eight weeks of back stiffness and difficulty getting out of bed prior to the August 1999 incident, but he simply could not recall with any clarity.
26.Mr Way informed the Tribunal that he has undertaken some heavy lifting for example moving a bed or table and chair which he is able to do as long as he bends his knees. When Mr Way moved from an apartment to a house, he stated that he had four or five friends help him and they moved various items with the use of trolleys, for example, a large table. In relation to that move, Mr Way stated that he did not undertake any heavy lifting himself. He helped carry the lounge with the assistance of others and took out the dining room chairs. Mr Way also carried boxes of groceries and crockery. His friends moved the large fridge and he guided them. There were stairs only to the garage. Mr Way stated that he did not recall moving the microwave and did not undertake any heavy work. He simply gave a hand and directed. The washing machine was on a trolley. Mr Way could not recall carrying any other white goods. While he could not recall lifting the washing machine, he may have helped move some bed mattresses and also book cases. The BBQ was on wheels and had to be lifted down two stairs. The move took place over two weeks with the large items being moved on one day and the boxes moved during the previous week. After undertaking all these tasks, Mr Way stated that he had to sit down. Mr Way denied playing down his lifting activities and also denied that he had no restrictions on what he could lift. Mr Way stated that his back “killed him on the day of the move”.
27.A video was shown at Hearing having a duration of one hour and five minutes, and depicting what Mr Way identified as the day he moved to a new home. He was seen to be unloading boxes, beds and mattresses, unloading a book shelf and carrying a large object. It was put to Mr Way that the video depicted him moving quite freely and that he was also depicted undertaking some heavy lifting albeit with some assistance. After seeing the video, Mr Way stated that his back had been heavily strapped by his wife from one inch below the belt line and upwards for approximately six inches. He stated that after the move, he found he was exhausted and found back movement difficult. He was still experiencing great back pain two days later and had to stay in bed. Mr Way denied that the video evidence contradicted his evidence about how disabled he was and furthermore, denied exaggerating his symptoms. Mr Way explained that he could not afford to hire removalists and he was a family man who needed to move on the day he did. Mr Way also denied exaggerating his symptoms for the examination by Dr D Maxwell, Orthopaedic and Spinal Surgeon, adding it may have been a bad day when he was examined by Dr Maxwell. Mr Way stated that during the move, he dropped the clothes dryer because his back was so painful. Mr Way denied that his back injury of 24 August 1999 had recovered by 2003. When questioned about the removal and his method of getting down from a truck by jumping down backwards, Mr Way denied that this was a problem for him. He stated that he got down off the truck foot by foot and he had also knelt down when carrying a cabinet. The clothes dryer was fairly light and he stated that bending down was not so difficult.
radiological finding
28.An X-ray report dated 10 May 1995, noted there was subtle wedging of the L1 vertebral body and minor narrowing of the L5/S1 disc.
29.A CT Scan report dated 1 September 1999, noted a central disc bulge/herniation at the L5/S1 level with minor bulging at the L4/5 level. Hypertrophic degenerative changes in the facet joints were also noted at L3/4 and L4/5 levels.
30.X-rays performed on 22 January 2003, revealed narrowing of the L5/S1 disc and associated facet joint arthritic changes L4/5 and L5/S1. There was slight wedging of L2 and slight scoliotic curve concave to the right centred at L3.
31.A CT Scan reported on 14 February 2003, indicated that the L5/S1 disc was abnormal and the disc bulged posterolaterally more to the right than left, probably involving the right S1 nerve root at that level.
32.A report of an MRI of the Lumbosacral spine dated 11 April 2003 (Exhibit R2), noted that the L5/S1 intervertebral disc is of reduced signal and showed a right paracentral focal disc protrusion. The origin of the right S1 nerve root within the lateral recess was immediately abutting the prolapse. The nerve could not be clearly delineated. The existing right L5 nerve appeared uncompromised. The remaining intervertebral discs showed normal signal, no prolapse and no canal stenosis. No vertebral body lesion was seen and the overall alignment was preserved. It was concluded that there was L5/S1 right paracentral disc prolapse, abutting the right S1 nerve root within its origin.
evidence of professor p sambrook, rheumatologist
33.The Tribunal had available to it three reports from Professor Sambrook dated: 7 February 2003 (T4, N2003/1038); 28 February 2003 (T, N2003/1038); 25 September 2003 (Exhibit A1). From his reports, Professor Sambrook considered that Mr Way suffers from lumbar disc disease at L5/S1, with degenerative changes at L4/5 and L5/S1. These pre-existed the 1999 injury, as there are X-ray changes in 1995, with the first work injury occurring in 1994 (T4, N2003/1038, p13). Professor Sambrook concluded that Mr Way suffered impairment at the lumbar spine as a result of work injuries in 1994, 1995 and 1999. Professor Sambrook further opined that it was more likely than not, given the history of exacerbation at work after heavy lifting, that this had been a contributing factor to Mr Way’s disc disease and spondylosis. Mr Way’s impairment was permanent, stable and likely to continue indefinitely. From Table 9.6 of the Comcare Guide to the assessment of degree permanent impairment, (“the Guide”), Professor Sambrook opined that Mr Way has a loss of half the normal range of movement which relates to 15 per cent whole impairment. Professor Sambrook did not think that Mr Way suffered from Scheuermann’s Disease.
34.Professor Sambrook agreed with Dr G Carr, Rheumatologist, in that the peak incidence of back pain occurs between 20 and 40 years of age. The first radiology for Mr Way was available when he was 31 years old and it is unusual to see radiological change that early, Professor Sambrook opined. Using Dr Carr’s statistical figures that by 50 years of age, 50 per cent of the population would have degenerative changes in at least one or two discs, then by 31 years of age, 31 per cent of the population may have degenerative changes in one or two discs, Professor Sambrook opined. On the balance of probabilities, Professor Sambrook opined that by age 31 years it is against this being age-related degeneration as there is a 69 per cent probability of a normal spine at that age. In Mr Way’s case, although spondylosis is part of an age-related condition as noted by Dr Carr, mechanical and occupational factors such as trauma or heavy lifting can be very important in making the conditions symptomatic and that seems to have happened in Mr Way’s case, Professor Sambrook opined, because of his lifting and twisting duties and early episodes of pain. Professor Sambrook noted that he did not visit the Turrella or Strathfield Australia Post facilities where Mr Way had worked. Professor Sambrook noted that there is a variety of medical opinion for and against the impact of occupational factors in spinal pathology and it is also the case that the type of pain associated with the condition suffered by Mr Way, waxes and wanes.
35.There is also a debate about the connection between X-ray findings and pain, Professor Sambrook noted. In this regard, Professor Sambrook explained that clinically, it may be found that people who have demonstrated X-ray changes of the spine may have no pain and the converse situation also occurs. Professor Sambrook noted that he had read the X-ray report of 1995 but had not seen the films, which Dr Carr had seen and interpreted. The 1995 X-ray report indicated minor narrowing of L5/S1. However, the CT scan dated 1 September 1999, showed changes between 1999 and 2003 (Exhibit A4). Professor Sambrook reiterated that sometimes X-ray changes do not correlate with clinical findings. In Professor Sambrook’s opinion, the degeneration in Mr Way’s spine was gradual over years, as evidenced in radiological studies from 1995 through to 1999 and 2003.
36.Considering Dr Maxwell’s report, Professor Sambrook noted that Dr Maxwell suggested that the MRI reported on 11 April 2003 (Exhibit R2), showed only an apparent disc bulge. While that was a matter of opinion, Professor Sambrook’s view is that the CT report indicated the bulge was significant and there was some flattening of the thecal sac centrally. The CT showed real pathology, Professor Sambrook stated and he would impose work restrictions.
37.Considering the video, Professor Sambrook noted that early on in the coverage, Mr Way was not lifting and his spine was flexed to 90 degrees – there was flexion rather than extension. Mr Way later did lift quite heavy objects such as a refrigerator and washing machine and evidenced a range of movement without apparent restriction. As a result of viewing the video, Professor Sambrook opined that Mr Way has a five per cent whole person impairment from Table 9.6 rather than his original assessment of 15 per cent. This reduction in impairment represented minor restriction. Professor Sambrook stated that there was no suggestion that Mr Way was exaggerating his restrictions or any inconsistency in his presentation in when Professor Sambrook examined him in January 2003. There was however, inconsistency between the findings on examination and the presentation on video, Professor Sambrook stated.
38.It was highly unlikely, Professor Sambrook opined, that Mr Way would be in constant pain. Professor Sambrook noted the history reported by other experts of constant pain, but Professor Sambrook reiterated his opinion that the natural history of such conditions is waxing and waning and with degenerative changes, the initiating event or events can be seemingly trivial. In Mr Way’s case, it is not known what degenerative changes were present before 1994.
39.Professor Sambrook noted he did not have a detailed list of Mr Way’s duties. He examines many Australia Post patients and is aware of the policy of weight restrictions for lifting but also noted that these are not always applied.
evidence of dr g carr, rheumatologist
40.The Tribunal had the benefit of reports prepared by Dr Carr dated: 8 November 1999 (T29, N2002/1649); 25 February 2003 (T6, N2003/1038); 1 July 2003 (T19, N2003/1038). Dr Carr examined Mr Way on two occasions on 8 November 1999 and 25 February 2003.
41.Dr Carr took a history of pain occurring eight weeks prior to 24 August 1999 and of soreness and stiffness in Mr Way’s lower back lasting 20 or 30 minutes in the mornings when he was getting out of bed. On 24 August 1999, Mr Way was lifting a fairly light mail bag and his back locked with acute left sided lumbo-sacral pain and a tilt to one side. Dr Carr noted that initially, both Mr Way’s legs were painful but within 48 hours, the pain was down Mr Way’s left leg only.
42.Dr Carr opined that Mr Way’s symptoms were more related to degenerative disc disease for six to eight weeks prior to 24 August 1999. The injury may have caused a central further prolapse of the L5/S1 disc superimposed on degenerative changes already occurring. Dr Carr opined that in 30 per cent of the population by 30 years of age, patients will have bulging discs in the normal population. Dr Carr concluded that the 24 August 1999 symptoms related to Mr Way hurting his back at work and the symptoms related to aggravation of the underlying degenerative changes. Dr Carr recorded restricted duties over six months with a graduated progress.
43.When Dr Carr examined Mr Way again on 25 February 2003, he was suffering from acute right sciatica superimposed on significant degenerative lumbar disc disease. Dr Carr concluded that Mr Way has a 15 per cent whole person impairment from Table 9.6 for the thoraco lumbar spine as he has lost half the normal range of movement. There was nil impairment from Table 9.5 of the Comcare Guide.
44.On 1 July 2003, Dr Carr opined that certainly mechanically and occupational factors can exacerbate underlying degenerative disease, but the natural history of pain arising from lumbar disease is often one of exacerbation due to the intrinsic processes of degenerative disease. The recent history Mr Way provided to Dr Carr of him experiencing right sided sciatic pain and back pain exacerbation could equally represent mechanical exacerbation at that time, but only superimposed on the process of degenerative disease. Looking at the prevalence of back ache amongst sedentary or blue collar workers engaged in heavy physical work, this shows epidemiologically, that there is no difference in back pain between these two groups. This does not support, Dr Carr opined, the notion that back pain or symptoms are occupationally induced.
45.Dr Carr did not agree with Professor’s Sambrook’s opinion that Mr Way’s back problem in 1994 occurring at age 30, was precocious, indicating that occupational factors are more important than constitutional factors. Dr Carr noted that the most frequent age to develop back pain and sciatica is between 28 and 35 years of age and back pain diminishes after the mid sixties.
46.Dr Carr further opined that Mr Way has evidence of Scheumann’s Disease in his upper lumbar spine and that disorder may hasten disc disorder and Mr Way’s history indicates this. Dr Carr noted that there is no relationship between Scheuermann’s Disease and Mr Way’s work at Australia Post, however, Dr Carr reiterated that the August 1999 incident may have exacerbated the degenerative disease.
47.Dr Carr did not disagree that trauma can cause back pain to be experienced. Having so opined, Dr Carr noted one needs to consider the history and the clinical examination. If Mr Way is experiencing pain reported on a scale of ten as ten, then one must find out what is going on to cause that level of symptomatology.
48.Dr Carr opined in relation to the video, it would also be relevant to know what Mr Way could and could not do in relation to the house moving exercise. It is simply not the case that a person reporting chronic back pain could jump off a truck backwards. This is not to say that Mr Way does not have a moderate degenerative disc disease and the possibility of further prolapse. There is an inconsistency apparent to Dr Carr in relation to what was seen on the video and what was reported in the history and found on examination. Dr Carr had examined Mr Way on the last occasion when he was in acute pain, but that is the nature of the problem. Dr Carr did not expect that the back pain would go on indefinitely it should reduce with lying down and some rest.
evidence of dr d c maxwell, orthopaedic and spinal surgeon
49.The Tribunal had the benefit of two reports prepared by Dr Maxwell dated 19 and 20 March 2003 (T9, N2003/1038).
50.Dr Maxwell opined that he could find no pathological cause of Mr Way’s reluctance to use his lumbar spine and considered that psychological factors are playing a part in Mr Way’s current symptom complex. Dr Maxwell noted problems with Toyota and that Mr Way consulted a psychiatrist. Dr Maxwell further opined that on examination, Mr Way appeared to be suffering from anxiety. Mr Way told Dr Maxwell that his back had been “pretty good over the last two years” [2001-2] and he only experienced pain again in 2003 for no apparent reason.
51.It is possible that Mr Way sprained his back in the course of his work on 24 August 1999, but in Dr Maxwell’s view, the effects would have settled over five or six weeks and he would no longer suffer any condition as the result of alleged injuries in 1994 or 1999. Furthermore, the nature and conditions of work would not have led to his condition.
52.Dr Maxwell opined that Mr Way was voluntarily restricting his range of movement and therefore physiological examination was unreliable. Dr Maxwell opined that the prognosis for the back was excellent and there was no need for restrictions on employment.
53.In his report of 19 March 2003, Dr Maxwell concluded that there was a nil impairment. Dr Maxwell would send Mr Way back to Australia Post with a 16 kilogram limit on lifting. Having so opined, Dr Maxwell stated he made an assumption about the type of work Mr Way undertook. The video presentation of Mr Way moving house did not alter Mr Maxwell’s opinion regarding Table 9.6 and there being a nil impairment.
54.In relation to the recent MRI findings, this was irrelevant in the context of clinical examination, Dr Maxwell opined. Dr Maxwell also stated he was not an advocate for Australia Post.
evidence of dr n a berry, specialist general surgeon
55.The Tribunal had the benefit of a report by Dr Berry dated 15 April 2002 (T10, N2003/1038; T36, N2002/1649). Dr Berry opined that as a result of lifting at work, Mr Way had aggravated pre-existing degenerative changes at L5/S1. At the time of reporting on 15 April 2002, Dr Berry concluded Mr Way was fit only for light duties and should avoid heavy lifting, repetitive bending and prolonged slouching and stooping.
56.Dr Berry had no history of fluctuation of Mr Way’s condition. He had seen the CT scan of 1 September 1999 and the MRI of April 2003, which is a more sensitive diagnostic tool. The MRI suggested progress of his problems since the CT scan. The MRI suggested that the L5/S1 disc is the only disc which has been affected. Dr Berry would have expected there to have been L4/L5 bulging if there was disc degeneration. In relation to the video, Dr Berry noted it was only a one hour and five minute snapshot of the moves which occurred over a two day period. Dr Berry opined that watching the video, it was initially tempting to say that there was nothing wrong with Mr Way’s back. When Dr Berry considered the video further on a second viewing, it is his opinion that Mr Way did not show a range of movement greater than half. Mr Way bent his legs leaning into the car, keeping his back straight probably trying to protect it. Dr Berry also noted that he would not have expected Mr Way to jump from the vehicle with a bad back and further opined that Mr Way would suffer afterwards for that movement. Dr Berry opined that if Mr Way spent two days in bed after moving, as he had asserted, then that would be consistent with an aggravation of his back as a result of the moving activities. Dr Berry did not see anything in the video to disturb his impairment rating of 15 per cent from Table 9.6.
57.Dr Berry agreed that the natural history of a degenerative condition is waxing and waning, but did not consider the variation would be between nil per cent and 15 per cent. Dr Berry did not see any evidence of anxiety or stress in Mr Way on examination, but Dr Berry hastened to add that he is not a psychiatrist. Dr Berry stated that on the video presentation alone, Mr Way would have about a five per cent impairment but opined that one should consider other evidence as well, including clinical presentation. Dr Berry concluded that any of the work incidents in 1994, 1995 and 1998 could have weakened the disc and predisposed the disc to degeneration then the 1999 incident was more significant.
evidence of dr a d diwan, orthodaedic surgeon
58.Dr Diwan provided a report dated 17 November 2003 (Exhibit A3). Mr Way was first seen by Dr Diwan on 25 March 2003 following a referral by his General Practitioner, Dr J Crossley. On physical examination, Dr Diwan noted that Mr Way was an agitated young man who had negative Romberg’s indicating normal cerebral function. There was an absence of any permeation of the nucleus pulposus or facit osteoarthritis in the cervical spine. The plumb line from the centre of C7 fell two centimetres to the left of his natal cleft. There was a decrease in Mr Way’s lumbar lordosis. The cervical spine range of movement was pain free. The thoracolumbar spinal movement was painfully restricted in forward bending and right lateral bending. Sitting straight leg raising bilaterally was positive, lying down straight leg raising was positive at 60 degrees. Dr Diwan noted the CT scan of the lumbar spine performed on 14 February 2003, showed a bulging anulus at L5/S1 predominately on the right side involving the right S1 nerve root. X-rays were performed on 22 January 2003, showing a mild wedge deformity of L2. Degenerative disease at L5/S1 was seen. A CT scan performed on 1 September 1999 showed some changes in the facet joints at L3/S4, L4/5. There is a broad based disc bulge at L4/5 and a central bulge at L5/S1. An MRI lumbar sacral scan showed an internal disruption of the disc at L5/S1.
59.Dr Diwan noted that Mr Way’s history was of ongoing small asymptomatic periods followed by periods wherein the symptoms would wax and wane. Mr Way’s symptoms can interfere with his ability and fitness for work. Given the chronicity of Mr Way’s condition, Dr Diwan opined that his prognosis could be altered by way of surgical reconstruction of his spinal column, specifically a total disc displacement.
consideration and findings
60.We have reached a decision in this matter taking into account the oral and documentary evidence, the legislation and the case law. Mr Way had injuries to his back on 21 June 1994 from which he recovered, on 2 May 1995 when an ULD ran into his back and on 12 February 1998 when he was lifting a mail bag. Mr Way commenced employment at Australia Post in 1993, having had a medical with no back problems apparent. Then in August 1999, Mr Way had another injury to his back at Australia Post. We are of the view, on the balance of probabilities and given the evidence and consensus of medical opinion, that this incident occurred against a background of a degenerative back condition. When regard is had to the radiological studies undertaken over time and the progression from X-ray through CT scan to MRI findings which indicates there has, in the Tribunal’s view, certainly been a worsening of the back condition, which we find is lumbar disc disease at L5/S1 with degenerative changes at L4/5 and L5/S1. Furthermore, when the radiological findings are combined with the majority medical opinions on clinical examination, we find that on the balance of probabilities, Mr Way’s lower back condition is worse than would be expected for the natural history and progression of a degenerative condition. Such a view is supported by the opinions of Professor Sambrook and Dr Berry. Dr Carr opined that the work injury in August 1999 would have aggravated Mr Way’s back. We prefer those medical opinions to that of Dr Maxwell, who did not seem to accept the pathology objectively demonstrated on CT and MRI findings.
61.Thus, we consider that Mr Way’s bending, lifting and twisting involved as a mail officer imposed on a non-symptomatic back prior to 1993, has made a material contribution to Mr Way’s degenerative back condition. We find that, on the balance of probabilities, trauma experienced in 1994, 1995, 1998 and most particularly in August 1999 caused discreet injuries on Mr Way’s degenerative condition and that the radiological studies indicate a more significant pathology than would be expected as a result of the natural course of degenerative disease. We also note that, as was discussed by Professor Sambrook, Dr Carr, Dr Berry and Dr Diwan, the condition waxes and wanes and this explains periods of improvement with a lessening of symptoms followed by periods where symptomatology is more prominent. It is our finding therefore that due to the material contribution of the nature and conditions of Mr Way’s employment, particularly with his twisting, bending and lifting duties and the incident in August 1999, there was a permanent change to Mr Way’s lower back.
62.We now turn to consider the issue of whether or not Mr Way’s claim for permanent impairment and non economic loss can succeed. Dr Berry and Professor Sambrook originally opined that there is a permanent impairment of 15 per cent from Table 9.6 of the Guide. Mr Way described that level of impairment and Professor Sambrook and Dr Berry found this on clinical examination. The Tribunal does however have video evidence of Mr Way moving household goods and furniture into a new home. The video which comprises one hour and five minutes of coverage, depicted parts of the move which occurred over days. Both Professor Sambrook and Dr Berry on viewing the video, acknowledged that on the video alone, a five per cent impairment under Table 9.6 was more accurate. Dr Berry opined however, that one had to take into consideration other evidence including clinical examination and in doing so, Dr Berry maintained his opinion that the 15 per cent impairment from Table 9.6 was still appropriate.
63.Mr Grey urged the Tribunal to consider that Mr Way is a family man who had to move house and could not afford removalists. He moved home over two days with the assistance of friends. It is true that prior to the video presentation at Hearing, Mr Way had disclosed that he had been involved in the move of his home. He gave no evidence initially however, under very close cross-examination, of him having his back strapped or of being bedridden for some days after the move. That evidence was given after Mr Way saw the video.
64.On our viewing of the video footage, it revealed Mr Way undertaking such activity as jumping down backwards from a truck and moving a refrigerator with his friends in a manner not suggestive of the level of disability that he has claimed or demonstrated to various medical experts. Mr Way undertook bending, lifting and some twisting activities, all activities which Dr Berry had stated he should not undertake.
65.Mr Grey urged the Tribunal to consider the proposition that Mr Way’s foolhardiness in undertaking these actions occurred in the context of the necessity of having to move and Mr Way’s disregard for his personal welfare should not disentitle him to compensation for permanent impairment. It was clear, Mr Grey submitted, that Mr Way was undertaking activity which he should not do and had been medically advised against, but the fact that he undertook that activity did not mean that he should have or that it was medically advisable.
66.The Tribunal was referred to the Federal Court decision Comcare v Moon [2003] FCA 569 in which Manfield J noted in relation to Comcare v Amorebieta (1996) 66 FCR 83 that Jenkinson J, in that case, did not say that pain experienced during activity is not relevant to the assessment of level of impairment under section 24 of the Guide or under the measure of “difficulty” in Table 9.5. Mansfield J further noted that Jenkinson J recognised that there may be a relevant voluntary restriction of movement evoked by the onset of pain which could evidence or amount to an impairment. That may be by way of comparison with pain which does not in fact impair movement or activity, but which nevertheless entitle a claimant to compensation under section 27 of the Act. Mansfield J noted that the definitions of the relevant terms in the Guide are consistent with those used in section 4 of the Act. In this regard, “impairment” is defined to mean “the loss, loss of the use, or the damage or malfunction, of any part of the body, or of any bodily system or function or part of such system or function”. The question which one should ask is whether, objectively, a claimant’s “personal efficiency” in the activities of daily living is adversely affected. The expression “the activities of daily living” is used by way of contrast with “lifestyle effects”. Manfield J used an example to explain his proposition, referring to a manual labourer who has a lower back disc injury. Upon activity such as bending or lifting, the labourer would suffer pain but is able to persevere for a while. Eventually, the activity must cease and the pain becomes disabling for days after the activity. The cause of the pain is extrusion from the disc impinging on a nerve root. In Mansfield J’s view, it would not be intended by the Act or the applicable Table of the Guide in that circumstance, to exclude the labourer from any impairment entitlement. It would be nonsense to suggest otherwise, Mansfield J concluded. If that labourer thereafter avoided such activities as much as possible, trying to balance the desirability of undertaking the activity against the consequences of undertaking it, there is no less an impairment. Pain may be, Mansfield J noted, and is generally, a consequence of some pathological change, albeit sometimes of a microscopic nature. It may evidence the pathological change even though the pathological change may not be objectively observable or readily so.
67.While the Tribunal notes the principles enunciated in Comcare v Moon (supra), in Mr Way’s case, the level of activity undertaken by Mr Way, even acknowledging it would be against medical advice, was of such a level as to be inconsistent with what he reported to various doctors and to the Tribunal. It is one thing for Mr Way to indicate that he was involved in a move and another thing for the Tribunal on observation of unguarded video presentation, to see the level of that activity which we consider inconsistent with Mr Way’s evidence of his level of impairment. We acknowledge that people may undertake activity which is contraindicated, however the video presentation indicated an ease of movement not consistent with a level of impairment of 15 per cent. Thus, we find that the level and range of movement demonstrated on video does not fit a 15 per cent impairment, nor 10 per cent impairment from Table 9.6. Thus, while we accept that there is restriction of Mr Way’s lower back, we do not consider that there is 10 per cent or more impairment. We also note that the left sided limp described to the Tribunal was absent. In such circumstances, we consider that the appropriate level of impairment as most recently assessed by Professor Sambrook as five per cent, is the more accurate assessment of permanent impairment from Table 9.6, taking all of the evidence into account.
68.Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act1975, the Tribunal decides that:
(i) In relation to matter N2002/1649, the decision under review is affirmed.
(ii)In relation to matter N2003/1038, dealing with Mr Way’s claim dated 30 April 2003, the decision under review is set aside and in substitution therefor, the Tribunal decides that due to the nature and conditions of employment at Australia Post, Mr Way’s lower back condition has been materially contributed to by his employment at Australia Post and Australia Post is liable to pay compensation for this injury under section 14 of the Act and arising from this decision, compensation in relation to his lower back condition under any other relevant sections of the Act.
(iii)The Respondent is to pay the Applicant’s reasonable legal costs as taxed or agreed in relation to matter N2003/1038.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Linda Blue...................................................
AssociateDates of Hearing 10, 11 and 12th December 2003
Date of Decision 21 June 2004
Counsel for the Applicant Mr L Grey of Counsel
Solicitor for the Applicant Mr T Mannah, Carroll and O'Dea Solicitors
Counsel for the Respondent Mr B Skinner of Counsel
Solicitor for the Respondent Mr L Forner, Forners Solicitors
Schedule 1
list of exhibits
Exhibit Number
Description
Date
A1
Report from Professor P Sambrook, Rheumatologist
25 September 2003
A2 (a)
Reports from Dr Corbett-Jones
8 August 2002
A2 (b)
Report from Dr Corbett-Jones
9 August 2002
A3
Report of Dr A D Diwan
7 November 2002
A4
Report by P Professor Sambrook
7 February 2003; 28 February 2003; 25 September 2003.
R1
Surveillance Video plus Surveillance Summary
5 June 2003; 13 June 2003; 14 June 2003;
R2
MRI Scan Report of Lumbo sacral spine
11 April 2003
0
3
0