WAYNE CLEWS and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 380
•25 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 380
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2008/0890
) 2008/1712
GENERAL ADMINISTRATIVE DIVISION
) 2008/5317 Re WAYNE CLEWS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, MemberDate25 May 2009
PlaceSydney
Decision 1. The reviewable decision in application N2008/1712 to reject liability for a lower back injury is affirmed.
2. The reviewable decision in application N2008/5317 to reject liability for permanent impairment of the lower back is affirmed.
3. The reviewable decision in application N2008/0890 that Australia Post is not currently liable to pay compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 is set aside and instead the Tribunal decides that Mr Clews remains incapacitated for his employment as a Postal Delivery Officer by reason of his left ankle injury.
.....................SGD.........................
Ms N Bell, Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – Applicant was struck by a car in 2002 - Applicant experienced back pain in September 2007 during the course of his employment - Applicant claims for incapacity together with permanent impairment in relation to his back condition arising from his employment – whether Applicant remains incapacitated for his employment from the effects of the injury sustained to his left ankle in 1999 during the course of his employment with Australia Post – Decisions under review in applications N2008/1712 and N2008/5317 are affirmed and Decision N2008/0890 is set aside.
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
25 May 2009 Ms N Bell, Senior Member
Dr M E C Thorpe, Member1. Mr Clews began working for Australia Post as a telegram boy in 1974 and eventually became a Postal Delivery Officer, delivering mail on a motorcycle.
2. In 1995, Mr Clews broke his leg playing touch football and claims to have had a full recovery and returned to normal duties at Australia Post. In 1999, Mr Clews had an accident on his motorcycle while delivering mail and injured his left ankle. Australia Post accepted liability for this injury and on his return to work Mr Clews was given suitable employment sorting mail and doing re-directions, a largely sedentary job.
3. He continued in that work until he was struck by a car in July 2002 and suffered, among other things, injuries to his knees. He returned to work in October 2002, after reconstructive surgery to his right knee. He later had surgery to his left knee as well. He continued to work in mail sorting and re-directions until he experienced back pain in September 2007. He went off work and was medically retired in 2008.
4. Mr Clews made claims for incapacity and permanent impairment in relation to his back condition. These claims were rejected by Australia Post and decisions made accordingly. Australia Post also decided that Mr Clews is not presently incapacitated by the 1999 injury to his left ankle.
5. Mr Clews maintains that his back condition is a consequent upon his ankle injury of 1999 by way of either altered gait or other consequences of remaining seated for long periods in his post injury employment. He includes, among these consequences, weight gain. He also maintains that he has continuing incapacity from his left ankle.
6. Australia Post contends that Mr Clews’ back condition is degenerative and constitutional and not related to his employment, either as a consequence of his ankle injury or otherwise. In particular, Australia Post says that Mr Clews does not suffer from an altered gait and relies on video evidence and the histories given to, measurements of calf circumference by and the opinions of medical experts. It also points to the activities engaged in by Mr Clews including motorcycle road trips in the United States in the last two years.
7. In addition, Australia Post maintains that, as a medical phenomenon, an altered gait will not produce the back condition complained of by Mr Clews. It also raises the injuries and disabilities suffered by Mr Clews in his 2002 motor vehicle accident and the claims made by him in litigation for compensation arising out of that accident to argue that attention should be given to the role of his knees in any incapacity suffered by Mr Clews. It is also on the basis of these factors that Australia Post submits that Mr Clews no longer suffers any incapacity as a result of his 1999 injury to his left ankle.
8. The essential questions for us to answer are:
(a)Did Mr Clews suffer an injury to his back arising out of his employment?
(b)If so, does he have a permanent impairment of his back of 10% or more according to the Comcare Tables Guide to the Assessment of the Degree of Permanent Impairment Second Edition?
(c)Does Mr Clews remain incapacitated for his employment by his left ankle condition?
Did Mr Clews suffer an injury to his back arising out of his employment?
9. The primary mechanism by which Mr Clews contends he injured his back is the altered gait that he says resulted from his left ankle injury in 1999.
10. There is little contest of medical evidence about whether Mr Clews has an altered gait. In favour of that proposition are Drs Max Ellis, Consultant Surgeon, who noted Mr Clews walking with a limp from as early as 2002 and intermittently thereafter; Dr David Champion, Rheumatologist, who considered Mr Clews walked with a short paced gait; the 2006 report of Dr James O’Brien, Orthopaedic Surgeon, the 2007 report of Dr John Cummine, Orthopaedic Surgeon, the reports of Dr Michael Gliksman, Occupational Physician, and the 2002 report of Dr Neil McGill, Consultant Rheumatologist; in which he says that he walks with a limp and his 2008 report in which he says that he walked with a stiff gait but then walked normally.
11. We note the video evidence of Mr Clews on one day mounting and dismounting his Harley-Davidson motorcycle in which he appeared to have no trouble with his left leg or ankle, either when walking or when steadying the motorcycle with his left foot.
12. We find, on the basis of this evidence, that Mr Clews sometimes walks with a limp or with a slightly altered gait.
13. Dr McGill’s evidence was that a change in gait does not change the structure of the lower back and does not influence its function or any discomfort a person may feel in the lower back. He contrasted this with, for example, a fused hip which would, in his opinion, affect the lower back. Rather, he said, Mr Clews has constitutional degenerative change in his lower back and has enough pathology to account for any pain he feels. Nor, in Dr McGill’s view, would an altered gait aggravate degenerative changes.
14. Mr Clews relied on the report of Ms Alison Bell, Physiotherapist, in support of his altered gait argument. Ms Bell’s opinion, in her report of 10 December 2007, was that:
“The ankle itself is chronically restricted at both the subtalar and talocrural joints, limiting both plantar/dorsiflexion and inversion/eversion. As a result, the fundamental mechanics of the foot as a whole are severely impeded in that he cannot perform normal heel-to-toe gait. As a consequence his peroneals are tight, restricting physiological superior glide of the fibula head, which in turn tensions the iliotibial band and it’s (sic) attachment to the greater trochanter at the proximal end of the femur. This becomes a predictor of the sacral-pelvic range in limiting this component, the lumbar spine becomes vulnerable. I often see disc failure as a consequence. This coupled with sitting will invariably cause lower back problems, not helped by the mildly-adhesed scarring over his left lower rib area.”
15. Mr Clews also relied on the assertion by Drs Ellis and Champion that his back condition was caused by altered gait. Neither doctor described the mechanism by which altered gait would produce the lumbar symptoms reported by Mr Clews and Dr Champion, in his report of 29 March 2009, expressed some doubt about it (see page 11).
16. On balance, we prefer the evidence of Dr McGill that Mr Clews’ constitutional degenerative lumbar spine condition is not caused or aggravated by altered gait arising from his left ankle injury. Dr McGill’s explanation of the likely effect of an injury to an ankle on the function of the lumbar spine is more persuasive than the assertions of Drs Ellis and Champion. We are comfortable in preferring the opinion of a qualified and clinically experienced rheumatologist to that of a physiotherapist.
17. An alternative submission on behalf of Mr Clews was that following his left ankle injury in 1999 and his resulting decrease in physical activity, he gained weight and this weight gain caused or aggravated his lumbar spine condition. Again he relied on the assertions, without description of mechanics, of Drs Ellis and Champion.
18. We are mindful that during the period of Mr Clews’ weight gain he had his motor vehicle accident and subsequent knee surgeries, although we note the history taken by Dr Ellis in March 2002 from Mr Clews that he had gained 15 kilograms following inactivity after his 1999 injury.
19. In his examination of Mr Clews in March 2002, Dr McGill recorded a weight of 93 kilograms and then in 2008 recorded a weight of 102.5 kilograms. We also note that Dr Monica Ling, Consultant Physician in Spinal and Rehabilitation Medicine, when reporting for the purposes of Mr Clews’ common law action for damages arising out of his 2002 motor vehicle accident, noted a 12 kilogram weight gain since the date of the accident due, according to him, to his reduced ability to exercise. Taking into account Mr Clews’ football injury in 1995 and his motor vehicle injury in 2002, and the lack of objective recording of weight prior to 2002, we cannot conclude that Mr Clews’ weight gain is the result of his left ankle injury or that the ankle injury materially contributed to it.
20. As to the nature and conditions of Mr Clews’ work, Mr Clews gave scant evidence of his activities at work in his suitable employment. The argument mounted on his behalf, that the sedentary nature of his work somehow caused or aggravated his lumbar spine condition relies solely on the opinion of Dr Champion. Dr Champion described Mr Clews’ job as being sedentary with periodic “twisting”. The “twisting” Dr Champion referred to was detailed in his report of 29 March 2009 as turning to the right to answer his telephone, “swinging around in his chair at times” to operate a printer behind him and leaning down to the right to select paper from a drawer to put into the printer.
21. We find unconvincing any argument that this would cause or aggravate Mr Clews’ lumbar spine condition.
22. We are also mindful of Mr Clews’ evidence that in 2007 and 2008 he travelled to the US to ride across country on a Harley Davidson motor cycle. Each trip lasted approximately 10 days and he rode each day. He said he was able to ride for periods of one hour to three hours but found it caused him pain and he had to avail himself of the spa facilities at the various hotels he stayed in. We note that Mr Clews first reported his back condition at around the time of his first trip in 2007.
23. We find that Mr Clews’ lumbar spine condition is, as opined by Dr McGill, a constitutional degenerative condition unaffected by his 1999 left ankle injury. It follows that Australia Post is not liable in respect of this condition.
24. It also follows that Australia Post is not liable for any permanent impairment of Mr Clews’ lumbar spine.
Does Mr Clews remain incapacitated by his left ankle injury?
25. Following Australia Post’s acceptance of liability for Mr Clews’ 1999 left ankle injury, it provided him with suitable employment sorting mail and doing re-directions. Soon after Mr Clews returned to work after his first motorcycle rally holiday in 2007, he was certified by his General Practitioner, Dr Ward, as unfit for work because of his back condition. On 22 October 2007, Australia Post decided it was not currently liable to pay compensation to Mr Clews in respect of his left ankle injury.
26. It does not necessarily follow from Mr Clews’ assertion that he is unable, because of his lower back condition, to perform the sedentary work provided to him by Australia Post in place of his mail delivery work, that he is now able to do the work he was performing when he injured his left ankle in 1999 – delivery of mail. Nor do any disabilities arising from Mr Clews’ knees necessarily diminish incapacity arising from his left ankle injury.
27. But we are mindful of the claim for compensation at common law made by Mr Clews in relation to the injuries to his knees in 2002. In particular, we note the disabilities listed in the Statement of Particulars filed by Mr Clews in his District Court action for damages arising out of his 2002 motor vehicle accident. Those particulars of disability included:
·Constant pain and aching in knees;
·Difficulty squatting, bending, descending hills and stairs;
·Difficulty running and walking and aggravation of knee pain when standing;
·Limited range of motion, stiffness and immobility in knees;
·Tendency of right knee to give way whilst walking.
28. Mr Clews maintained that his knees do not trouble him at all, notwithstanding these extensive claimed disabilities for which he was ultimately compensated at common law. However, Dr Ling reported that, in 2007, Mr Clews suffered knee pain at a severity of 6 out of 10 that “is worse on sitting for periods greater than one hour and on standing and walking for periods greater than 30 to 45 minutes”. Mr Clews also reported to Dr Ling that the pains had recently worsened, probably due to long periods of sitting at work, and give rise to “pulsating sensations radiating down the posterior legs”. We would be left to wonder what effect Mr Clews’ knees may have had on his lumbar spine, but for Dr McGill’s opinion that this injury too has no bearing on Mr Clews’ constitutional lumbar spine condition.
29. However, both Dr McGill and Dr Maxwell, doctors qualified by Australia Post, considered that Mr Clews remains unfit, because of his ankle condition, for walking or motorcycle mail delivery duties. With regard to the 1995 football injury, both doctors considered that while it contributed to Mr Clews’ osteoarthritis of the ankle, the 1999 injury also contributed to it.
30. Concurrent incapacity from other injuries does not relieve Mr Clew’s left ankle injury of its incapacitating effect. Given the medical evidence, there is no basis on which to conclude that Mr Clews is no longer incapacitated by his left ankle injury for work as a Postal Delivery Officer. This is so notwithstanding the intervention of his back condition and his 2002 knee injury.
31. We note that Australia Post urged us to consider the relevant work to be work in the suitable duties given to Mr Clews following his left ankle injury rather than the postal delivery work that he was doing at the time of that injury. We reject this submission. Mr Clews is no longer able, because of his left ankle condition, to do the work he did before his injury. He therefore remains partially incapacitated for work.
32. We note the opinions of both Dr Maxwell and Dr McGill that Mr Clews remains fit for sedentary duties. Mr Clews says he is unfit for those duties because of his back condition. We have found that his back condition did not arise out of his employment. The calculation of any amount of weekly payments to Mr Clews in respect of his partial incapacity will no doubt take into account suitable employment available to him.
decision
33. The reviewable decision in application N2008/1712 to reject liability for a lower back injury is affirmed.
34. The reviewable decision in application N2008/5317 to reject liability for permanent impairment of the lower back is affirmed.
35. The reviewable decision in application N2008/0890 that Australia Post is not currently liable to pay compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 is set aside and instead the Tribunal decides that Mr Clews remains incapacitated for his employment as a Postal Delivery Officer by reason of his left ankle injury.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Dr M E C Thorpe, MemberSigned: ...............................SGD......................................................
Associate: Felicia DanieleDate/s of Hearing 22, 23 and 24 April 2009
Date of Decision 25 May 2009
Counsel for the Applicant Ms Elizabeth WoodSolicitor for the Applicant Mr J Beran, Somerville & Co Solicitors and Notaries.
Counsel for the Respondent Miss Rhonda Henderson
Solicitor for the Respondent Ms D Hatton, Litigation Section, Australia Post
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