Allan and Australian Postal Corporation [1999] AATA 589 (10 August 1999)

Last Updated: 13 August 1999

DECISION AND REASONS FOR DECISION [1999] AATA 589

ADMINISTRATIVE APPEALS TRIBUNAL)

) No V98/363

GENERAL ADMINISTRATIVE DIVISION)

Re James ALLAN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr I Campbell, Member Dr P Fricker, Member

Date 10 August 1999

Place Melbourne

Decision 1. The reviewable decision made 16 February 1998 (T37) is set aside. 2. In substitution the Tribunal varies the original determination made 13 January 1998 (T3) to provide: (i) The condition of "myoclonic spasms/jerks head, back, neck" is an "injury" within the meaning of s4 of the Safety, Rehabilitation and Compensation Act 1988; and (ii) the matter is remitted to Australia Post to determine entitlement to compensation for incapacity for work resulting from the injury and compensation for the costs of reasonable medical treatment in respect of that injury.

(Sgnd) Joan Dwyer

Senior Member

COMPENSATION- myoclonic spasms/jerks head, back, neck - difficulty as to diagnosis - issue as to whether condition causally related to fall from bicycle - time of onset - medical evidence as to causation not clear or positive but providing foundation for connection - balance of probabilities - condition found to be contributed to by fall from bicycle

PRACTICE AND PROCEDURE - s33(1)(c) of AAT Act - Tribunal requesting further evidence - letter sent to parties explaining nature of further evidence required

REASONS FOR DECISION

10 August 1999 Mrs Joan Dwyer, Senior Member

Mr I Campbell, Member Dr P Fricker, Member

1. This is an application for review of a reviewable decision (T37) made under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") on 16 February 1998. That decision affirmed an earlier determination of 13 January 1998 (T34) denying liability to pay compensation in respect of the condition "myoclonic jerks, headaches, dizziness". The claim lodged by Mr Allan referred to "myoclonic spasms/jerks. Head - Back - Neck" and that is the condition to which the evidence related. These reasons therefore will use that description.

2. Mr Allan appeared and gave evidence. Evidence on his behalf was also given by his wife, Mrs Allan, and by a workmate, Mr Adams. Mr A Moulds of Counsel appeared for the respondent. The respondent called Mr Bellofiore, Mr Addicott and Mr Spicer who all worked with the Australian Postal Corporation ("Australia Post"). The respondent also called Mr Jensen who had examined Mr Allan at the request of the respondent. At the hearing the Tribunal had before it the documents, ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits lodged during the hearing.

3. During the first and second day of hearing there was some discussion as to whether the respondent would arrange for the attendance of Professor Berkovicz and Dr Kranz both of whom had provided reports (A1 and T39 pp173-174). The condition from which Mr Allan suffers is unusual and difficult to diagnose. The Tribunal formed the view that it could not make a decision in the absence of evidence from Professor Berkovicz and Dr Kranz. At the conclusion of the second day of hearing the Tribunal under s 33(1)(c) arranged for the District Registrar to write to the parties outlining the Tribunal's concerns about the state of the medical evidence and requesting that those witnesses be called. A copy of that letter dated 10 December 1998 is Appendix A to these reasons for decision.

4. When the hearing resumed on 10 March 1999 the respondent had arranged for the attendance of Professor Berkovicz and Dr Kranz, so that they could assist the Tribunal in attempting to resolve the difficult medical issues raised in this matter. The Tribunal appreciates this assistance.

background facts

5. Mr Allan is currently employed by the Australian Postal Commission ("Australia Post") as a postal delivery officer. He has worked in that capacity for the last ten years. The events relevant to this claim began on 20 May 1993 when Mr Allan was knocked off his bicycle on his delivery round, by a motorist backing out of his driveway.

6. Mr Allan said that at first he got up and thought he was okay and walked back to the post office. He said that night he was in pain and so he decided to fill out a claim form the following day. In fact he completed an incident report form (T39 p85) rather than a claim form. Mr Allan described his injury as "stiff neck - painful right arm and shoulder" and said that the incident had occurred on 20 May 1993 at 1.00 p.m. The form itself is dated 20 May 1993, although Mr Allan said in evidence that it was not filled in until the following day.

7. Mr Allan saw his general practitioner, Dr Prasad on 22 May 1993. Dr Prasad completed a certificate (T39 p86) in which he wrote that Mr Allan had presented with "right shoulder tip pain - bruised soft tissue, right trapezius nuchal myalgia". He diagnosed traumatic myalgia and soft tissue bruising.

8. Mr Allan said that he did not take any time off work for approximately four or five months but then he began to take occasional days off work for sore shoulders. On or about 25 September 1993 he lodged a compensation claim (T39 p89). Mr Allan's claim for "neck - right arm and shoulder" was accepted as compensable on 12 October 1993. A "cease effects" determination was made on 3 March 1997 and affirmed on 8 April 1997. Mr Allan appealed to this Tribunal for review of that determination, but on 2 April 1998 he withdrew that application. This matter concerns a condition described as "myoclonic spasms/jerks" which Mr Allan attributes to the incident when he was knocked off his bicycle on 20 May 1993. He lodged a claim for compensation for "myoclonic spasms/jerks head, back, neck" on 5 May 1997 (T6 pp19-21).

9. Although the claim refers to "myoclonic spasms/jerks head, back, neck" most of the evidence related to the myoclonic jerks which Mr Allan described as the most significant symptom. There is no real issue as to whether or not Mr Allan suffers myoclonic jerks or spasms. The issue in dispute is whether they result from the bicycle incident. Mr Allan gave evidence that about three or four days after the accident, as he was dropping off to sleep, he had a feeling as though he was falling out of bed. He said this feeling recurred the next night perhaps two or three times and from then on the feeling became more frequent and gradually increased in severity. He said at first he did not pay much attention to the problem but when the jerks became more severe he went to his local doctor and was referred to a rheumatologist Dr Woodruff. The Tribunal had before it the report of Dr Woodruff (A3) dated 8 June 1995. It gives the following history:

Thank you for asking me to see this man whose history is somewhat unusual. He is a left-handed postman. Eighteen months ago he was knocked off his bike and at the time just had some minor injuries which he was not particularly concerned about but a couple of days later he noted a funny sensation in the cervical region more so on the left side which was described as a jerking feeling. In addition he noted that he was unable to extend or rotate the cervical spine to the left. This attempt at movement caused pain in the left paravertebral region at about C5. However, these symptoms were quite mild and he did not worry about them but gradually the jerking feeling increased and involved a much larger area of the back and he developed a persistent slight ache in the lower cervical region extending onto the top of both shoulders the left more than the right and also into the low thoracic spinal region. The jerking movements tended to worry him for the first half hour after he hopped into bed and then he fell asleep and had an undisturbed sleep. Once he was doing things during the day it certainly never troubled him but if he sat down the jerking might start again. Initially the jerking was just one or two every minute or so but this has gradually increased and he may have 20 of these jerks in a minute. At the beginning of this jerking or spasm period he described a feeling like an explosion in the upper cervical region.

A week ago he fell backwards off a chair at work and since then things have been worse. The jerking or spasms are more frequent although he still sleeps without any problems. He also has a burning sensation in the mid-lumbar region. There are no paraesthesiaes.

10. Mr Allan's claim of 5 May 1997 in respect of the condition of myoclonic jerks was rejected by the respondent on 20 June 1997 (T13 pp30-31), on the ground that there was no medical evidence that the condition resulted from or was aggravated by his employment. That determination was affirmed in a reviewable decision made 16 February 1998 (T37 pp65-67) which stated "Australia Post is not disputing you suffer from the said condition . . ., however this does not mean you suffer this condition as a result of your employment."

11. The matter is difficult because there is no clear medical explanation as to how or why Mr Allan has developed the myoclonic jerks from which he now suffers. Professor Berkovicz, to whom he was referred by his treating neuorologist Dr Kranz, is of the view that the jerks do not have an organic basis. Dr Kranz and Mr Jensen, who examined him at the request of Australia Post, are of the view that the myoclonic jerks could have an organic basis, and are in some way, related to the incident when Mr Allan was knocked off his bicycle. According to the evidence of Dr Kranz and Mr Jensen current means of medical investigation do not allow the precise organic basis of the condition to be determined.

time of onset of myclonic jerks

12. The medical evidence of all witnesses was that the condition could be organically related to the fall. The case for an organic cause would probably be stronger if the onset of the condition followed closely after the bicycle accident. However Professor Berkovic did say (trans vol 3 p70):

I don't think it's a big issue actually when it started. If it were epileptic for example, and our test failed to show it, it would be fair to say that sometimes epileptic manifestations can develop some months or years after an injury, but that's unusual and it would be more in favour of non-organic . . .

I don't see the timing as a big issue in terms of my judgment as to what . . . this is due to.

13. As already stated Mr Allan's evidence was that the onset of the condition occurred within a few days of the bicycle accident. That seems to be what he told Dr Woodruff when he saw him in June 1995, as set out in paragraph 9 of these reasons. Mr Allan's evidence was supported by the evidence of his wife. Mrs Allan said that she had first noticed the jerks "within a few days after the May '93 incident" (trans vol 1 p42). She said that the jerks did not seem severe at that time and they had not taken too much notice of them, but over time they had progressively got worse. Mrs Allan said that the condition was never there before May 1993.

14. The first record of any complaint to a doctor about jerks or spasms is a reference to spasms in Dr Prasad's notes (R2) on 31 May 1995 where he has written "Mr. Spasms in dorsal muscles with pain-related to accident 20.5.93. Fell off chair yesterday in tea room - aggravated previous back pain/spasm. Incident Report". The fact that Dr Prasad noted that the fall aggravated previous spasm does support Mr and Mrs Allan's evidence that the spasm predated the fall. The first reference to jerks or jerking is in Dr Woodruff's report of 8 June 1995.

15. Mr Moulds suggested that the fact that the spasms were not reported to a doctor before 31 May 1995, cast doubt on the credibility of Mr and Mrs Allan when they said they commenced shortly after the bicycle accident in May 1993. We do not consider that to be the case. We accept that the jerks or spasms could have started, but not been sufficiently troublesome to be mentioned to Dr Prasad for a year or so, or even prior to 31 May 1995. Mr Jensen said he thought that would be quite reasonable. Mr Moulds cross-examined on the basis that Mr Allan had attended Dr Prasad four times in 1993 after 22 May and twice in 1994, without apparently mentioning the jerks to him. There are certainly entries in Dr Prasad's notes for that many visits. However a close inspection of the notes reveals they seem to be notes for the Allan family. The notes that clearly relate to Mr Allan, like that on 22 May 1993 after the bicycle accident commence "Mr". There is the same annotation for a visit on 10 August 1993 and for one on 8 February 1994, but all the others in 1993 and in 1994 relate to either "Peter" or "Christopher".

16. The other evidence on which Mr Moulds relied, as suggesting that Mr Allan did not experience myoclonic jerks until 31 May 1995 or thereabouts, was a letter Mr Allan wrote to Miss Kellett, the claims manager at Australia Post on 5 May 1995. The letter describes his condition since the bicycle accident. He did not in that letter refer to myoclonic jerks or anything which could be so described. He wrote:

I have continued to work since the accident occurred even though the pain and discomfort on many occasions have been extreme. Your term "re-aggravation" is incorrect as in fact the aggravation has never ceased and the reason why 'your words' the claim has been inactive is purely because I had determined to suffer the pain so that I would be able to keep working, although I have had from time to time found it necessary to take sick leave. You will note that the reasons for absence stated on the leave application forms have been in the main so-related.

It was my hope that the passage of time would see the pain dissipate, but unfortunately the reverse has been the case and the problems have been compounded by the physical demands of my work routine. I have been in error by assuming that in time it would all simply 'go away' and I am now convinced that the nature of my work has caused further aggravation. To this end I will need medical advice/treatment and would appreciate your assistance by referring me to the appropriate people.

The injury occurred 20^th May, 1993 is not related to any previous injury. The injury was caused by a motorist who whilst reversing out of his driveway failed to notice me and pinned me under his car (the property is bounded by a high wall). The nature of the injury is severe pains in my neck, arm and back. There has been no specific incident recently which re-aggravated the problem. The pains began at the time of the accident and have continued since and as I have previously stated the injury sustained during the accident coupled with the physical demands of my work is certainly delaying the healing process and has very probably exasperated the problem.

17. It is true that Mr Allan's letter (T39) does not mention his myoclonic jerks, even when describing the nature of his injury in the third paragraph. However that letter is in response to Ms Kellett's memo of 2 May 1995 (R3) which was related to whether compensation was payable for periods of incapacity for work or whether they should be treated as sick leave. So far as we are aware Mr Allan had never claimed prior to 5 May 1995, that his myoclonic jerks had caused him to require time off work.

18. The respondent challenged the evidence of Mr and Mrs Allan as to the time of onset of the jerks. Other evidence on that issue was given by Mr Adams who worked with Mr Allan. He had a statutory declaration (A2) stating in part:

A few days after his accident he complained of explosions in his head and muscular jerks thru his body - Everyone at Nth Balwyn Post Office was aware of these symptoms.

I recall the incident clearly and I am in no doubt of above details.

19. Australia Post required that Mr Adams attend for cross-examination. When he did so he said that Mr Allan had drafted his statutory declaration. That evidence conflicts with Mr Allan's evidence that he had only written out what Mr Adams had told him to write. On this issue we prefer the evidence of Mr Adams to that of Mr Allan. We find that Mr Allan wrote the statutory declaration and Mr Adams simply checked it to see if he agreed with what was written. That reduces the reliance the Tribunal can place on the statutory declaration as it does not reflect Mr Adams' own recollection so much as his agreement with Mr Allan's recollection. However there were other aspects of Mr Adams evidence where he did give the Tribunal his own memory of the relevant events. He said that he was aware of Mr Allan's "jerking and spasms" before the incident when Mr Allan fell from a chair in the lunch room on 30 May 1995.

20. Mr Adams said that he had observed Mr Allan having a myoclonic spasm. He said it occurred when he was working next to Mr Allan. He said he thought it could have been perhaps two weeks or a month after the bicycle accident (trans p34). Mr Adams said he only clearly remembered observing the jerks once but he said "there had been others, like, because people used to . . . stir him all the time about it." We accept that as truthful evidence.

21. Mr Adam's evidence that Mr Allan was known to have myclonic jerks or spasms by his work colleagues prior to 31 May 1995, derived some support from one of the respondent's lay witnesses. The other two witnesses, Mr Addicott and Mr Spicer, were aware of Mr Allan having a problem with some sort of jerking and shaking but they could not give any evidence as to the date of onset.

22. Mr Bellofiore, the Manager of the Balwyn North Post Office, or Retail Shop, as it is now known, said the problem arose after the fall from the bicycle in 1993 (trans vol 2 p52). In his statement (R4) he said:

I am aware Mr Allan experiences jerks or spasms. Mr Allan mentioned to me that he was experiencing such symptoms. When Mr Allan mentioned to me that he was experiencing these symptoms, it was arranged for him to be assessed by doctors and for him to have his eyes tested. I do not recollect exactly when Mr Allan first mentioned to me that he was experiencing these symptoms. However, I believe it was shortly before the medical examinations and the eye tests were arranged as these were arranged as a result of his complaint.

Mr Bellofiore said the problem with the eyes was addressed after there were complaints made about Mr Allan sorting inaccurately. It was thought that if Mr Allan had glasses prescribed, this might help resolve the problem.

23. There was a problem with Mr Bellofiore's evidence. He said the referral to the eye specialist would have been soon after the complaints of jerks, but the only report of an eye specialist before the Tribunal was a report from Dr Taylor on 12 November 1996 (T39 p179). Mr Moulds tried to clarify this with Mr Bellofiore:

Well, is the best of your ability that the problems arose closer to the accident than '96 or is the best of your knowledge that it must have been '96 if that is when the referral to the doctor was?---No, it's close to the accident that he had, yes.

24. Mr Bellofiore's evidence was that he knew about the jerks before he received customer complaints about Mr Allan's sorting inaccuracies. It was also his evidence that he knew of them in 1993, although the only eye specialist report before the Tribunal related to an examination in October 1996. Mr Bellofiore said he would take steps to rectify a problem of inaccuracies in sorting within a month. Thus there is a question as to why if the problem arose in 1993 there was no reference to an eye specialist until 1996. Mr Allan in his final submission said that there had been an earlier referral to a different "eye doctor" in Doncaster shopping town when his eyes had been tested for glasses. He said he had obtained glasses and Australia Post subsidised their cost.

25. The Tribunal on the last day of hearing gave leave to Mr Allan to lodge any document that would prove that he saw an eye doctor between 20 May 1993 and October 1996. It also asked Australia Post to search its records to see if there was any record of it paying for or subsidising glasses for Mr Allan. Mr Allan did not lodge any further material with the Tribunal. Nor did Australia Post respond to the Tribunal's request. On 7 June 1999 the District Registrar at the Tribunal's request sent a letter to both parties in order to find out whether the matter had been overlooked or whether appropriate searches had not produced any information on the issue. No reply was received from either party.

26. Thus Mr Bellofiore's evidence was not of assistance to the Tribunal. His recollection supported Mr Allan's evidence that the onset of the jerks was close in time to the bicycle accident but, because of the date of the referral to Dr Taylor, a question remained as to whether Mr Bellofiore was confused or whether the referral he arranged was to another eye doctor at an earlier time.

27. However there are other matters in the evidence that support Mr Allan's evidence as to the onset of the jerks. The history set out in Dr Woodruff's report and in the reports of Dr Schmidt, Dr Kempster, who saw Mr Allan as locum for Dr Kranz, and Mr Taylor, all contain a history of the jerks starting shortly after the bicycle accident in 1993.

28. As already set out in paragraph 9 of these reasons Dr Woodruff in June 1995 obtained a history of a jerking feeling in the cervical region "a couple of days" after the bicycle accident.

29. Dr Kempster in October 1995 obtained the following history, as set out by Dr Kranz in his report (T39 p173):

Fifteen months ago he was riding his bike, delivering letters, when a car backed out, knocking him off the bike and pinning him under the car. He struck his head on the pavement. Although he was stunned, he did not lose consciousness. There was quite a lot of bruising, and later that day he developed aching around his neck and shoulders.

Within 3 or 4 days he started to develop curious jerking movements. The movements are localized to his neck and shoulder muscles. His muscles give a single jerk, sometimes leading to shrugging of one shoulder. On other occasions, twisting his head to one side for a second. The jerks only seem to occur when he is relaxed, e.g. when sitting watching television. However, he will be wide awake at these times. They do not occur when he is moving about. He seems to be able to suppress or prevent the jerks if he voluntarily tenses his neck or shoulder muscles. The jerking movements are sometimes accompanied by an explosion or wave which seems to pass through his head. Some of the jerks will be barely noticeable, others are much more obvious and visible to his wife. They may be more frequent if he is tired. They have also gradually become more frequent, and now occur at least 30 times per day. There is no history of blackouts, and he has never been prone to these jerky movements in the past. There is a history of mild hypertension, but he is otherwise well.

The jerking movements are a source of some frustration and he advanced several theories of his own as to why they might be occurring - some revolving around repetitive upper limb use at work.

30. Dr Schmidt, a gastroenterologist who saw Mr Allan on 12 August 1996 on referral from Dr Prasad (part of R2), obtained a very similar history:

As he no doubt told you about 18 months ago he was knocked over by a car while delivering mail and hit his head on the kerbing and also bruised his back, neck and shoulder. A few days later he began to have "flashes in the head" which he described as "a bomb going off". These flashes are associated now with twitches of his body or limbs often localised jerking movements lasting a fraction of a second. These episodes tend to occur when he is relaxing but are less troublesome when he is active or talking. I understand he was seem [sic] by Dr H Kranz and has an abnormal EEG but has not responded to Tegretol or Epilim.

31. On 16 October 1996 Mr Allan was referred to the ophthalmic surgeon, Mr Taylor. His report contains a similar history:

Mr Allan stated that some three years ago he was involved in an accident while delivering mail and specifically he was knocked off his bicycle by a car. Since that time he has experienced discomfort at the back of his neck as well as other symptoms in which he has experienced attacks of a "feeling of falling" associated with a large flash of light (like an explosion) with mytonic jerks of his shoulders, arms and body. He sought help from a Neurologist about this problem and following an E.E.G. he was given appropriate treatment. Apart from these episodes he now notices when sorting mail, on moving his eyes from side to side he experiences some dizziness precipitated by the eye movements.

32. All those doctors were seen when Mr Allan's claim for compensation in respect of the accident had been accepted and before the cease effects determination was made on 3 March 1997. Mr Allan was seeking diagnosis and treatment of his myoclonic jerks. There was nothing put to Mr Allan to suggest that he would have had any reason to give the doctors an inaccurate history. We accept the history set out in those reports and given by Mr and Mrs Allan in evidence as accurate. We find that the onset of the condition of myclonic jerks was shortly after the bicycle accident in May 1993, but that they did not trouble Mr Allan sufficiently for him to mention them to a doctor for some time after that. They were not noted by Dr Prasad until 31 May 1995 after a fall from a chair in the lunch room at work on 30 May 1995. However, when he saw Mr Allan on that occasion Dr Prasad did note an aggravation of previous spasm.

33. One puzzling feature of this matter related to the suggestion made on behalf of Australia Post that there was a credibility issue with the evidence of Mr and Mrs Allan as to the onset of the jerks. Mr Moulds asked the Tribunal to find that the myoclonic jerks did not start till after the fall in the lunch room at work on 30 May 1995. Mr Allan insisted that the jerks had started earlier and were simply aggravated by the fall from the chair, as he had stated to Dr Woodruff and to Dr Prasad as is apparent from the report of Dr Woodruff and the clinical notes of Dr Prasad.

34. Mr Moulds did not offer any explanation as to why, if the fall from the chair precipitated the myoclonic jerks, Mr Allan would have attempted to attribute them to a bicycle accident two years earlier. If the jerks resulted from or even were aggravated by the fall in the lunch room at work it would seem that they or their aggravation would be a compensable injury as defined in s 4 of the Act. Mr Allan's insistence that the condition was in existence prior to the fall from the chair at work, suggests to the Tribunal that he was giving honest evidence and seeking a finding in accordance with the facts. That insistence meant that the issue of the contribution, if any, of the fall from a chair to an aggravation of the myoclonic jerks was not pursued during the hearing.

35. We find on the balance of probabilities that the onset of the myoclonic jerks did follow soon after the bicycle accident. The next matter to consider is the medical evidence as to whether or not the condition results from or was contributed to by the bicycle accident.

medical evidence as to causation

36. Dr Prasad in a report dated 9 August 1995 (T39 pp121-2) wrote to Australia Post about a condition he described as "myoligamentous strain with some myoclonic spasms (not witnessed by me) centred around the left cervical vertebrae extending towards shoulder girdle muscles and both trapezii L>R . . . ." He wrote:

3) Patient relates symptoms to a couple of days after an accident on 20.5.93, for which I saw him on 22.5.93. In spite of his aches & pains he managed to continue at work. The condition was aggravated when he apparently fell off a chair he was seated on in the tearoom on 30.5.95. He landed on his back aggravating the pain & spasms in the upper trunk back muscles.

4) There were no previous complaints prior to accident of 20.5.93.

5) There was no aggravation of an underlying pre-existing condition.

6) The myo-ligamentous strain & myoclonic spasms do not seem to have been caused by any other factor.

7) The condition seemed to have commenced following the accident of 20.5.93 & aggravated by the fall on 30.5.95. I expect the condition to be temporary.

. . .

[I]t seems obvious that Mr J Allan's employment with Australia Post exclusively contributed to his condition.

37. On 19 October 1996 Dr Kranz answered questions put to him by Australia Post (T39 pp173-174). He wrote that the relationship between the fall and the complaint of myoclonic jerks was uncertain. He suggested an MRI assessment particularly of the brain and cervical spinal cord.

38. Mr Taylor, the ophthalmic surgeon, had concluded in his report of 12 November 1996:

In my opinion although there is no injury to either eye, the symptoms of dizziness, myotonic jerks of shoulders, arms and body and discomfort in his head which he experiences on lateral eye movement appears to be related to the accident at work some three years ago when he was knocked off his bicycle by a car. All of these symptoms described by Mr. Allan dated from this episode. Mr. Allan emphasised that he wished to continue in his job with Australia Post which he stated he enjoyed and this would indicate that his symptoms were genuine.

39. Ms Theodoratos of Australia Post arranged for Mr Allan to be seen by Mr Jensen, a neuro-surgeon on 13 December 1996. She advised Mr Jensen (T39 p190) "Mr Allan remains adamant that his myoclonic jerks are a direct result of his initial injury sustained in May 1993. To date we have not received any medical evidence which suggests such." It is not clear why Ms Theodoratus did not regard the reports of Dr Prasad and Dr Taylor as "suggest[ing] such".

40. Mr Jensen in his report of 16 December 1996 (T39 pp200-201), like Mr Taylor, was of the opinion that, on the history given, the jerks did appear to be related to the bicycle accident. He wrote:

There seems to be no doubt that Mr. Allen suffered a significant injury when he was knocked from his bicycle by the reversing car. There also seems no doubt that following this incident he developed symptoms affecting the left shoulder area, and that at sometime subsequently, he developed jerking movements of the shoulder which persist to this time, which have not been fully investigated or diagnosed, and which continue to be source of problems. Epilepsy has been considered a possible diagnosis.

The essential issue is whether these jerks are causally related to the accident, or whether they have arisen spontaneously for some other reason. The temporal relationship does raise the possibility that the accident has in some ways been responsible for the onset of these symptoms.

My view would be that these symptoms have not been sufficiently well investigated to be able to make an accurate assessment of the situation. There does not seem to have been a direct observation of these jerking movements by a medical practitioner, and the most satisfactory method of assessing the situation would be to admit the patient to hospital for epilepsy video-monitoring. This would both record the movements, and any brain activity which might be giving rise to the movements. Even visual observation of the movements might allow a more accurate diagnosis than has been possible from the description given by the patient.

Analysis of the history and examination does not admit to drawing the necessary conclusions on which to base a firm opinion. There would however, appear to be a prima facie case which suggests that the trauma has in someway been responsible for his present condition. (emphasis added)

In paragraph 1(c) of his opinion Mr Jensen wrote:

1. (c) . . . There appears to be a possible relationship between his employment and those symptoms. It also appears that the symptoms began within a few weeks of the accident of 1993, rather than some two years later. It would be possible for him to work with the symptoms he describes, particularly as they were mild initially, and have increased in severity and duration with the passage of time. In the absence of medical observation of these movements, one has to rely upon the history provided by Mr. Allan.

Mr Jensen added [at p202]:

10. There is a possible connection between the visual symptoms which he describes, and the accident of 1993, and indeed if post-traumatic epilepsy is under consideration, implying a head injury, then a disorder of eye movement would be reasonably attributable to a possible injury to the head and neck. The normal findings in relation to the eyeballs themselves do not exclude the possibility of some disorder of eye movement.

Mr Jensen concluded his report: [p203]

GENERAL COMMENTS

It would be very unusual indeed for post-traumatic epilepsy to be manifested in the way which Mr. Allan describes. There is no evidence of a clinical nature to suggest that he is suffering from one of the many rare diseases which can give rise to myoclonic epilepsy.

It is entirely possible that the twitching or jerking which takes place has its origin within the spinal cord, or more likely, spinal nerve roots. Intermittent compression of spinal nerve roots, by degenerate inter-vertebral discs might produce such symptoms, though it would certainly be an unusual manifestation of spinal disease. The possibility that he has some musculoligamentus or myo-fascial condition producing jerking movements needs also to be considered.

This is an unlikely symptom for someone to manufacture, and I doubt very much if malingering is behind the description of his symptoms.

As noted repeatedly throughout the report, this man requires further investigation, mainly in the form of observation under controlled conditions, but with possible additional tests including body imaging, blood tests, and even the possibility of muscle biopsy. There is legitimate doubt as to whether the origin of these symptoms is traumatic, but at this stage, trauma certainly cannot be excluded as the cause. (emphasis added)

41. Dr Kranz in a further report dated 12 February 1997 (T39 p215) also pointed out that further investigation was needed. He asked Australia Post to pay costs associated with an MRI assessment of the brain with particular attention to the temporal lobes. Australia Post, on 18 February 1997, advised that it would not do so, but the compensation manager, Ms Theodoratos, requested an updated medical report from Dr Kranz. She explained her concerns about the matter:

During the review of Mr Allan's claim for compensation and upon reviewing your medical report dated 19 October 1996, I noted that you stated that Mr Allan struck his head on the pavement at the time of his incident on 20 May 1993. Also that he began to develop curious jerking movements within 3 to 4 days of the incident.

I would like to inform you that Mr Allan did not state at any time that he had struck his head during the incident of May 1993 nor during the incident of May 1995 where he fell backwards off his chair. A statement from him two years later dated 5 May 1995, clearly states that he was suffering from severe pains in his neck, arm and back. No mention of a head injury or jerking/flashes was made.

42. Dr Kranz replied by report dated 19 February 1997 (T39 p219):

. . . .

The cause of the involuntary myoclonic or jerking movements is unknown. It does not appear to be clearly related to employment with Australia Post. It is possible, but uncertain, whether it is related to the accident of May 1993.

. . .

My requests relating to performance of brain MRI relate to the fact that he is now developing symptoms suggesting episodic temporal lobe dysfunction, possibly a form of temporal lobe epilepsy. This has nothing to do with findings as reported by Mr Jensen in his assessment of December 1996, and as indicated in your correspondence. There is no relationship between those findings and his current complaints, in the sense that normal findings as detailed by Mr Jensen do not exclude a diagnosis of temporal lobe dysfunction.

43. Later in 1997 Dr Kranz referred Mr Allan to the Austin and Repatriation Medical Centre ("The Austin") for video monitoring. Dr Levi and Professor Berkovic reported to Dr Kranz (A1). They described the jerks observed on the video monitoring:

He underwent video EEG monitoring to assess the nature and frequency of the jerks. A number of these captured on video EEG. The appearance was essentially of a very minor truncal jerk or jolt without any facial or limb involvement. The appearance was not dissimilar to a hiccup. There was no electrographic discharge prior or during these attacks.

EEG with concurrent EMG monitoring of facial and upper limb muscles. No electrographic discharges as mentioned were seen and no EMG activity was evident during the truncal and neck jerks.

On the basis of the clinical appearance of the jerks and the lack of electrographic and electromyographic activity it was felt that the attacks were most probably non-organic.

44. On the first day of hearing the respondent called Mr Jensen. He had provided a further report (R1) in which he said that the investigations consisting of MRI and video EEG monitoring "provided useful information as to the nature of the symptoms being experienced by Mr Allan, but they did not allow for a clear-cut conclusion". Mr Jensen concluded:

My conclusion, is that while the symptoms described could be caused by the vascular abnormality, and they could have resulted from the injury, on the balance of probabilities, one is forced to the conclusion that the accident is not responsible for his symptoms.

This is not really a satisfactory statement of the situation, insofar as the whole scenario is not inconsistent with his symptoms, signs, and the investigations. Simply because a particular set of circumstances is unlikely, does not mean that it is impossible.

45. In his evidence Mr Jensen seemed to support Mr Allan's case more strongly than he had done in his report. He said that the fact that the video EEG monitoring did not register any electrical changes when the jerks took place made it very unlikely that they were a result of any epileptic discharge. When Mr Allan asked him whether he could say with certainty that the bicycle incident could not be the cause of Mr Allan's condition Mr Jensen replied "Absolutely not". He agreed (at trans. vol 1 p109) that he suspected or possibly even believed that the condition was related to the bicycle accident in 1993, but said that he was reluctant to be precise about it in the absence of a diagnosis. Mr Allan asked him:

Is it reasonable, therefore, to assume that prior to this accident, this fall from the bike, there is no medical evidence of myoclonic jerks. Would it be reasonable to assume that the bicycle was in some way involved?

Mr Jensen replied:

That's how it seemed to me, post hoc, ergo-proctor hoc, is the legal tag in dog Latin.

46. In re-examination Mr Jensen said:

I do not know the nature of the underlying cause and I suspect it may be beyond the capacity of neurophysiology and neurology to determine the cause at this particular time.

Mr Jensen also said (trans vol 1 p118) that it is common place that a lot of people with epilepsy have normal EEG's.

47. The Tribunal asked Mr Jensen to explain the mechanism by which the myoclonic jerks could possibly result from the bicycle accident. He replied:

There is an epileptic flavour to this. That suggests some kind of disturbance to the head because that's where the brain is. That's where most of the electrical activity resides and hence, all this emphasis upon EEGs, video monitoring, epilepsy and so forth. It is also possible that he could have injured his neck. Now, the neck is very rich in sensory receptors related to balance because if you take for instance a circumstance where you're in a motor car on a rough surface, when you look ahead your vision remains essentially clear. It's not like the flickering you see on a television screen or in the movies and this is done by a control mechanism involving the brain and the sensory position devices within the neck. So if you injure the neck you can upset these positioning devices and this is an area which is poorly understood, I think, and probably related in some way to the complaint of dizziness which is a notorious morass for the doctor in that most dizziness is undiagnosable, but it's possible that these receptors are involved.

48. The Tribunal asked Mr Jensen what he thought was the most probable explanation. He replied:

I think this fall has something to do with what has happened to Mr Allan, but I'm not able to provide a satisfactory explanation either to the Tribunal, to myself, or even to Mr Allan, but it seems to me to be involved in some way and before anyone asks me the next question, I'm not at all sure that anything can be done about it. I would say though that these do not seem the kind of symptoms one would spontaneously manufacture and to conclude, it would be a very, very unusual result of a fall.

When Mr Allan put the description of the jerks to Mr Jensen he commented:

I would have to say that that description has a very organic flavour and I don't believe it is the kind of symptom someone would manufacture. It has the ring of truth to me.

49. Professor Berkovic in his evidence acknowledged that the condition of myoclonis was a difficult area from a medical point of view. He said that the cause of myoclonic jerks, broadly speaking, could be some form of epileptic seizure. It could also be due to a physical basis within the brain, the spinal cord or more rarely the nerves going to the affected part. The jerks could also be induced by psychological means and thus be a manifestation of some underlying psychological problem.

50. Professor Berkovic said that the absence of abnormalities on the EEG, or of disease in parts of the body such as the brain, the spinal cord or the nerves going to the affected parts of the body, and the pattern of the jerks during the monitoring led him and Dr Levi to form the impression that the jerks "were probably not of a physical or an organic nature" (trans vol 3 p44).

51. Professor Berkovic said that it was possible the condition could be epileptic even without any abnormalities on the EEG but he said that in his view that was "quite unlikely", (trans vol 3 p44) taking into account the appearance of the jerks. He said there was always uncertainty but "our opinion was clearly that it was non-organic". (trans vol 3 p45).

52. However although Professor Berkovic in his evidence said that a factor he and Dr Levi took into account was "the appearance" of the jerks he said (trans vol 3 p48) that he had not actually been supervising Mr Allan and (p50) that he could not be certain he had seen the video although he believed he did at the time. He said that unfortunately the video had been destroyed. We were surprised that the hospital notes (ex R8) contain no summary of the video.

53. Professor Berkovic said that a person could experience myoclonic jerks after a knock to the head, the spine or the neck (trans vol 3 p59).

54. A matter we found surprising was that it seems from the hospital notes (R8) that Mr Allan arranged to have leave from the hospital on 31 October 1997 after one night of observation. Only 5 jerks were reported in the nursing notes (R8). Apparently Mr Allan was discharged on 3 November 1997 the day he returned from leave. Mr Moulds did not ask Mr Allan why he left the hospital on leave for what seems to have been most of the time of his arranged admission.

55. Dr Kranz also gave evidence at the Tribunal's request. He said (trans vol 3 p75) that since receiving the report on that monitoring, and taking the view of Dr Levi and Professor Berkovic into account, he is still of the opinion that the bicycle accident is implicated in the development of the myoclonic jerks or involuntary movements, as he called them. He also said that he is still of the opinion that there is an organic basis to the jerks.

56. Dr Kranz explained the basis of his opinion:

Well, I think we have a man who has basically been in reasonable health all his life who has an event and then he develops features which one would have to consider are unusual and they're unusual both as a manifestation of an organic problem and as a manifestation of a psychological one. But in the absence of a previous history of psychological dysfunction and any particular triggering factor other than the trauma to account for it, I think one would have to give the patient the benefit of the doubt and say something has happened and that something appears to have a physical basis. Now, we know that 2 years later the patient started to develop psychological reaction with features of depression and I noted that in my assessment of the patient and he was subsequently assessed both medically and psychologically and was found to have some features of depression. However, it was not clear on a psychiatrists report whether this was an underlying problem which preceded or was associated with the accident or has developed as a reaction to it. So, and then the physical assessment that was done including the monitoring really didn't shed light on the problem but this is an unusual disorder. The myoclonus or the involuntary movements could be a spinal original and in that setting the sort of assessment which was done which was EEG recording simultaneously, and also certain recording in the extremities, was negative but that doesn't mean that the involuntary movements do not have a spinal origin because we don't have a good handle on monitoring that type of problem. In other words our capacity to assess certain unusual disorders is limited. So, all of these factors - that you've got the patient who was previously well, that there was an event, that he then developed unusual manifestations, that he did develop a psychological reaction but it was in my assessment a secondary phenomenon based on his disability and on-going symptoms and the fact that he did show some improvement to anti-convulsant therapy which reduces nerve irritability has encouraged me in the view that this condition, whatever it is, and whatever label we put on it, has got a physical or an organic basis.

57. Dr Kranz agreed with Mr Jensen that it is not uncommon for an EEG assessment to appear negative even if there is a problem. He also pointed out that Mr Allan had only had an MRI of the brain and had not had an MRI assessment of the cervical spine. He said:

The patient somehow has missed out on having an MRI of the cervical spine even though it was talked about as something that needed to be done. So in that sense we're a bit in the dark.

58. Dr Kranz said that he would expect that an MRI of the cervical spine would be normal but he could not be certain of that. But he added that, even if it were normal, MRI technology is by no means perfect in showing changes and there could be "some degree of a minor irritation in the critical pathway that we just can't pick up". He explained that MRI shows more than CAT scanning but maybe in 5 or 10 years there will be better technology which will show up more. He said that a normal MRI does not mean there is no pathology in the area.

59. When Mr Moulds asked Dr Kranz to explain why he did not share the opinion expressed by Dr Levi and Professor Berkovic in their report of 24 November 1997 (A1) that the attacks were most probably non-organic Dr Kranz responded:

I take the view that just because this is an unusual disorder and we haven't been able to pin it down with our current technology or the tests that we utilise in this particular case, doesn't mean that the case is proven to be non-organic.

Dr Kranz agreed that the basis of the condition is "not clear at all". He explained that the problem is so uncommon that few medical people have had any significant experience with it.

60. Dr Kranz again explained his analysis:

Well, in the absence of other factors you're faced with a patient who's gone 57 years, whatever age he was at the time, being well. Some event has occurred in the general area of which he's developed symptoms and he then starts to get very unusual phenomena and so in the absence of investigations showing any other basis for his complaint one is left with the likely conclusion that there is some causal link between them.

61. Dr Kranz said his presumptive diagnosis was of "involuntary movements, possibly myoclonus of spinal cord origin". He has been prescribing Epilim for Mr Allan. He said that he would not prescribe Epilim for a non-organically based myoclonic condition (trans vol 3 p91).

62. Mr Moulds relied on some of the other reports in the Austin medical file (ex R8) as supporting the proposition that Mr Allan is suffering from a non-organically based problem. A psychiatrist, Dr Ward, wrote to a neurologist, Dr Newton on 20 November 1997. Dr Ward described Mr Allan as depressed but she commented:

It is difficult to tease out whether this preceded his fall from his bike, whether it has been present throughout the duration of his abnormal movements or whether it is something that has developed secondarily. I suspect that his major symptoms of anxiety are clearly related to his abnormal movements.

63. In a later report, of 17 December 1997, Dr Ward described Mr Allan as appearing to her to have "ongoing symptoms of a major depressive disorder of moderate severity, with prominent somatizing symptoms. That does seem to indicate that Dr Ward at that time was of the opinion that the symptoms resulted from the depressive disorder. However Dr Ward did not give evidence and her second report does not resolve the question whether the depressive order might not result from the symptoms. All the medical witnesses agreed that that was possible. The most recent letter from the Austin was from a neurologist, Dr Hughes, to Dr Kranz (A9). He expressed doubt on the issue saying:

There remains significant doubt as to whether this is functional myoclonus or organize [sic] myoclonus and I think this is very hard to sort out in this fellow with a history of depression and somatosization.

I have decided to re-try him on sodium valproate gradually increasing to 400 mg orally b.d. and I will see him when he comes back to the Neurobehaviour Clinic in another 2 months time.

64. Dr Kranz, like the other medical witnesses said that the temporal relationship to the accident may be variable because there is no certainty as to the mechanisms producing the involuntary movements. Mr Moulds then suggested that made it:

almost impossible to defend the allegation.

The difficulty arises from the nature of the condition and operates to the detriment of Mr Allan as well as to the detriment of Australia Post.

conclusion

65. Mr Moulds claimed that Mr Allan had shown:

[A] great propensity to exaggerate his position as much as possible and self serve to an unacceptable degree and I've got various examples of that, three major ones, that I'm going to put and that is relevant to this case because it is consistent with him also exaggerating when these jerks started, the intensity of them when they started and that goes to the merits of the case. So it can't just be ignored.

On a careful analysis of the transcript and exhibits we do not think that submission can be sustained.

66. Mr Moulds' first point was that Mr Allan did not refer to his attendances on the psychiatrist at the Austin. We do not consider that to be a significant point bearing in mind that Mr Allan was unrepresented, that the opinion of the psychiatrist was inconclusive and that at all times the respondent was aware of the opinion of Dr Levi and Professor Berkovic that "the attacks were most probably non-organic."

67. Mr Moulds' second point related to the failure to report the jerks to Dr Prasad on his supposed attendances between 22 May 1993 and 31 May 1995. As we have already pointed out in paragraph 15 of these reasons, Mr Allan only had two attendances on Dr Prasad in that period. The medical evidence was consistent with his explanation that at first the jerks were not very significant and that he saw no need to report them to his doctor until they became more troublesome, which he did when he saw Dr Prasad after the fall at work on 30 May 1995.

68. We see no credibility issue arising from the fact that when Mr Allan sought leave on various occasions prior to 30 May 1995 the reason he gave was "sore shoulder and neck". He has never claimed that he needed time off because of his myoclonic jerks, prior to their aggravation on 30 May 1995. The history of complaints of a sore neck might support the opinions of Mr Jensen and Dr Kranz that the problem may be due to some irritation or malalignment of a nerve pathway in the cervical spine.

69. The third matter relied on by Mr Moulds was the letter of 5 May 1995 as to which we have already commented in paragraphs 16 and 17.

70. Mr Moulds submitted that we should not rely on Dr Kranz's evidence. He said that Dr Kranz's "qualitative assessments just go out the window because he doesn't have a diagnosis" (trans vol 3 p117). Mr Moulds challenged Dr Kranz's opinion on the basis that it lacked "intellectually". We do not share that assessment. We see nothing intellectually wrong with an expert witness saying that, on the basis of his expert knowledge and clinical experience, he is of the opinion this condition is linked to an accident. Dr Kranz postulated some possible mechanisms for that link but acknowledged that he could not provide any objective proof as to what specific part of the body has been injured.

71. Mr Moulds suggested that the highest Mr Jensen's evidence could be put was that he was saying that it was conceivable that the jerks resulted from the fall, but it would be a very unusual result of the fall. While Mr Jensen clearly said it would be an unusual result of the fall, we understood him to be saying that in this matter he considered it to be more probable than not that the jerks were a result of the fall; although he agreed that would be an unusual consequence of such a fall.

72. The Tribunal suggested that Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 may be relevant, Mr Moulds submitted that it was quite different because it relied on "a known common association". Mr Forst was a roadside worker who died of cardiac insufficiency shortly after performing work which required significant physical exertion. An arbitrator found on the medical evidence that the death was due to coronary thrombosis but that the widow had failed to prove that the death was due to the exertion or to his work. The widow appealed to the Full Court of the Supreme Court which allowed her appeal and found that the death was the result of injury by accident arising in the course of employment. The company appealed to the High Court. Rich ACJ said at pp563-564:

The learned judges of the Full Court considered the whole of the medical evidence, as under the Act, they are entitled to do, and, having described the duty of the court to arrive at some conclusion on an issue of fact, however "difficult or invidious" it might be made by the state of scientific knowledge and opinion, their Honours proceeded, by a course of reasoning which combined common sense with the application of logic to physiological facts, to infer "on the preponderance of probabilities" that the thrombus was precipitated as the result, in part, of some unusual exertion undertaken by the workman before his collapse.

In my opinion the conclusion of the Full Court is correct. I am greatly impressed by the sequence of events. The deceased, who had arrived at an age when arterio-sclerosis and atheroma afflict mankind, was a stevedore's labourer. On the day of his death he climbed up the jib of the crane and lay prone on the crane with his arms outstretched, trying to replace a wire which had come off the gin. He failed to do so, returned to the deck and for some time, with his arms in a position raised over his head, helped in holding up a wire rope. Immediately after performing this task he collapsed. What weighs so much with me is the fact that he was brought to a standstill, as an ordinary lay observer would think, by the exertion he had undergone : Cf. Partridge Jones and John Paton Ltd. v. James (1) [1933 AC 501, at p505]. I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences.

Starke J at p565 said:

Medical science gives no certain answer to the question, and the medical witnesses differ among themselves as to the proper conclusion in this case.

He agreed that the appeal should be dismissed as did McTiernan J. Dixon J, as he then was, dissented. He said that the question was a pure question of fact to be decided upon the expert testimony and he found that the expert testimony was that the present state of knowledge did not admit of an affirmative answer as to the link between employment and death as a probable inference.

73. We consider that case is relevant. There are distinguishing features in that the sequence of events is not as clear as it was in Forst's Case, and it can not be said that the development of myoclonic jerks is a usual or common consequence of a fall or knock suffered in a traffic accident. But all expert witnesses said they are a possible consequence, and two of them on the basis of their medical knowledge and experience, said it was probable in their opinion that Mr Allan's myclonic jerks were related to the accident. In that sense the medical evidence seems to have been stronger for the applicant in this matter than in Forst.

74. Mr Moulds did refer the Tribunal to Dahl v Grice [1981] VR 513. That case, like this matter, concerned a traffic accident and a subsequent development of a condition claimed to be attributable to the accident. Ms Grice developed a severe cerebral haemorrhage as a result of a rupture of an aneurism. But the delay in reporting the symptoms of the condition to a doctor was only 14 weeks, and the evidence of ongoing symptoms during that period was strong. Also, Ms Grice had originally been treated for a "mild blow to her head". Young CJ at p514 explained the role of expert witnesses. He said:

expert witnesses and the jury. It is not for the expert witness to answer the question which the jury has to answer although modern practice often permits an expert to give his opinion in the form of an answer to that question. The jury must say on all the evidence whether the conclusion contended for was more probable than not. The fact that the experts in the present case may have said the word possible to describe the causation, however, itself obscures the true position. The expert evidence should give the medical or scientific basis and if appropriate the statistical likelihood of the requisite connection but it is then for the jury to say whether the connection is established to their satisfaction. When viewed in this light it is nothing to the point that none of the experts were prepared to say that it was more than a possibility that there was a causal connection between the accident on 24 September 1974 and the rupture on 7 January 1975.

It is necessary however to consider whether there was any evidence upon which the jury could find such a connection on the balance of probabilities. In my opinion there was. The expert evidence laid the foundation for the connection: it showed that an aneurysm which had ruptured once was more likely to rupture a second time. Then there was evidence from which the jury might have concluded that the plaintiff had suffered a minor rupture of an aneurysm as a result of the motor car accident and that the accident had accordingly caused or contributed to the rupture on 7 or 8 January 1975. None of the evidence was inherently unlikely and it was in my opinion open to the jury to be satisfied on the balance of probabilities that the rupture of 7 or 8 January 1975 was caused by the accident which occurred on 20 September 1974.

75. Gobbo J in Dahl v Grice also addressed the question of the onus of proof on a plaintiff. He said at p522:

The review of the authorities leads me to reject the appellants' argument that in matters of bodily health, even outside common experience, it is incumbent on a plaintiff to prove the causal connection to the requisite degree of probability by evidence from the expert. It is plain in such matters the courts have recognized that a possible cause may be elevated to a probable cause. There are a number of reasons why it is undesirable that the opinion as to causal connection be stated in terms of probabilities. In the first place, this is the role of the tribunal of fact and the ultimate task rests with the judge or jury, as the case may be. Secondly, it is inadmissible in the ordinary course for an expert to give evidence in a form that takes up the very ultimate issue that is the responsibility of the tribunal of fact. Though there are many exceptions in practice to the general rule as to not asking questions that by their terms call for an answer to the ultimate issue, it is a rule that is soundly based in its endeavour to reserve to the tribunal of fact the actual responsibility for the resolution of the ultimate issue. A third consideration is that there is inevitably much difference in the views of expert witnesses as to what constitutes a probability as opposed to a possibility, whether in terms of a particular case or simply as a matter of logic. There is the obvious danger that an expert when asked to provide an opinion as to whether a causal link exists may do so in terms of scientific proof that may be altogether too exacting for the degree of satisfaction necessary in a legal proceeding.

76. In this matter experts have explained how a fall from a bicycle could cause the development of myoclonic jerks which have a spinal origin, even where no injury to the spine is detectable. Mr Jensen and Dr Kranz both said that Mr Allan could have sustained some damage to the neck. Mr Jensen spoke of damage to the "sensory receptors" or "sensory position devices in the neck". Dr Kranz referred only to the symptoms having an unidentified "spinal origin". Because of the history they were given, which we find to be accurate, they considered it probable that the symptoms did result from the fall from the bicycle.

77. We accept the evidence of Mr Jensen and Dr Kranz and find on the balance of probabilities that Mr Allan's myoclonic jerks do result from injuries sustained in a fall from a bicycle in the course of his employment on 20 May 1993. The Tribunal finds that Mr Allan's employment with Australia Post has materially contributed to his condition of "myoclonic spasms/jerks, head, back, neck", and that accordingly the condition is an "injury" within the meaning of that term in s4(1) of the Act, so as to give rise to an entitlement to compensation.

78. The question for determination by the Tribunal was whether Mr Allan was entitled to compensation in respect of the condition of "myoclonic spasms/jerks, head, back, neck". The quantum of such compensation was not addressed by the parties. It does appear that Mr Allan may have had periods of incapacity for work (see for example T7 p22, T39 p197) and may have incurred medical expenses as a result of this condition. There was no evidence on which the Tribunal could determine the nature or amount of any such compensation.

79. It follows that the reviewable decision made 16 February 1998 (T37) must be set aside. In substitution the Tribunal will vary the original determination made 13 January 1998 (T3) to provide:

(i) The condition of "myoclonic spasms/jerks head, back, neck" is an "injury" within the meaning of s4 of the Safety, Rehabilitation and Compensation Act 1988; and

(ii) the matter is remitted to Australia Post to determine entitlement to compensation for incapacity for work resulting from the injury and compensation for the costs of reasonable medical treatment in respect of that injury.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr I Campbell, Member and Dr P Fricker, Member

Signed: Anne O'Rourke

Associate

Date/s of Hearing 13 November 1998 and 10 March 1999

Date of Decision 10 August 1999

Counsel for the Applicant Nil

Solicitor for Applicant Self Represented

Counsel for the Respondent Mr A Moulds

Solicitor for the Respondent Hall & Wilcox

Southgate, HWT Tower Telephone: [phone]

Level 16, 40 City Road Facsimile: [phone]

SOUTHBANK VIC 3006 DX 108 Melbourne

GPO Box 9955 Melbourne VIC 3001

Ref: V98/363

10 December 1998

Mr Allan

17 Loxley Court

DONCASTER EAST VIC 3109

Hall & Wilcox

Solicitors

DX 320

MELBOURNE

ATTENTION: Ms N Lacey

Dear Mr Allan & Ms Lacey

Re: Allan and Australian Postal Corporation - (V98/363)

Mrs Dwyer, Senior Member, has asked me to write to you about a letter the Tribunal received from Mr Allan on 8 December 1998 (copy attached for Ms Lacey) and about the proposed resumed hearing of this matter. As you will recall, at the hearing on 13 November and 25 November 1998, there was discussion about the calling of further medical evidence.

At the conclusion of the hearing on 13 November 1998, Mr Moulds indicated that the respondent was prepared to arrange for the attendance of Dr Berkovic and Dr Kranz to give evidence. Mr Moulds said at transcript p125:

Well, I can't see either party can proceed realistically without Dr Berkovic giving evidence when Mr Jensen says you'll need to ask him what he means.

Mr Moulds added at p126:

In my view, for what it's worth, Mr Jensen's verbal evidence to an extent moved from his own written report and also placed a possible different medical interpretation on Dr Berkovic's report.

Yes, it did. It did both those things.

So the difficulty then is Mr Allan at least should have, if he wants to, the cross-examination right of Dr Berkovic because still in print Dr Berkovic would appear to support the Australia Post case.

. . .

So I suppose at the very least what ought to happen would be that I'd be happy if Mr Allan were given the opportunity now to cross-examine Dr Berkovic. Up until now, regardless of whose fault it is, Dr Berkovic hasn't been a player in terms of cross-examination but I think he ought to be now for Mr Allan because there would be an opportunity.

Mr Allan then interrupted (at pp126-127) to say:

May I ask you why would it be an opportunity for me? As far as I'm concerned this is a - this has been quite a solid inquiry.

So are you saying you're happy to leave the evidence as it is without any other evidence?

This doctor has indicated to you the likelihood of this bike being a problem. I have shown you the medical evidence and records where there is no such thing prior to that. I have gone on oath and told you that I have never had such a problem prior to that. My wife has told you that - how these things have gone. Dr Berkovic will say the same thing: I gave this man a video. The jerks were there on the video but no EEG correlates. What more can this be achieved? I certainly have no desire - if they want to talk to Dr Berkovic - why didn't you do that - why didn't they subpoena the man like they did the other doctors?

In further discussion, at p136, Mr Allan said that he failed to see the necessity of calling Dr Berkovic at any resumed hearing.

Mr Allan and the Tribunal also discussed the reports of Dr Kranz. Mr Allan said at transcript p129:

Okay, well let's go to Dr Kranz. I mean, he goes on and on about these things are very likely.

The Tribunal pointed out that Dr Kranz did not use the words 'very likely" in his reports. When the Tribunal asked whether the parties wanted to call Dr Kranz, Mr Allan said, at p137:

I know what Dr Kranz will say. I know what he will say now.

Well, what do you think he will say?

He will say that this thing - I'm not going to use the word likely, I'm sorry, you are fired up again - but I know what he will say but by all means bring Mr Kranz.

Well if you think Dr Kranz will say it is likely to be connected with your fall then you should say: please bring Dr Kranz.

At the conclusion of the hearing the Tribunal said to Mr Allan, at p138:

If you decide that you want any doctors called you write a letter to the Tribunal. Thank you.

I will do so, thank you.

When the hearing resumed on 25 November Mr Allan had not written a letter to the Tribunal requesting that Dr Berkovic or Dr Kranz be made available at the resumed hearing.

The respondent had not arranged for the attendance of Dr Berkovic. Apparently the respondent had contacted Dr Kranz about attending the hearing, but Mr Moulds explained that Dr Kranz was himself in hospital. Mr Allan seemed to have expected Dr Berkovic to be available to give evidence. The Tribunal referred to the transcript and agreed with Mr Moulds that Mr Allan had rejected the respondent's offer to arrange for the attendance of Dr Berkovic. Mr Allan did not claim to have sent a letter seeking Dr Berkovic's or Dr Kranz's attendance at the hearing.

At the conclusion of the second day of hearing on 25 November 1998 similar discussions again took place. The Tribunal adjourned to consider whether it would require Dr Kranz's evidence but when it raised that issue on the resumption of the hearing, Mr Allan again seemed opposed to Dr Kranz being called, although he said that he had seen Dr Kranz since Dr Berkovic arranged the video EEG monitoring with concurrent EMG monitoring. Mr Allan also said that Dr Kranz was prescribing anti-epileptic drugs for him. He suggested that the prescription of those drugs indicated that it was Dr Kranz's opinion that there was an epileptic factor playing at least a part in the causation of the myoclonic jerks from which he suffers.

The Tribunal has considered the matter further. It is of the view that as the condition in issue seems to be both unusual and difficult to diagnose, in order to perform its task of reaching the correct decision, it does require as much medical evidence as is available, from doctors who have been involved in Mr Allan's treatment, as to the diagnosis and probable cause of the condition. In view of the way Dr Jensen, in his evidence, supported Mr Allan's case rather more than his report of 18 June 1998 would have indicated, the Tribunal would prefer to have evidence from both Dr Berkovic and Dr Kranz at the resumed hearing.

The Tribunal, under s 33(1)(c)of the Administrative Appeals Tribunal Act 1975 ("the Act"), requests that the respondent arrange for the attendance of Dr Berkovic and Dr Kranz at the resumed hearing so that the Tribunal can be better informed on the matters in issue. The Tribunal intends to ask Dr Berkovic whether the respondent and the Tribunal have been correct in understanding that his opinion, as set out in his report of 24 November 1997, is that it is unlikely that there is an epileptic or other organic foundation for Mr Allan's condition, and thus that he considers it is unlikely to be related to the fall from the bike in 1993. The Tribunal proposes to ask Dr Kranz whether, now that he has received Dr Berkovic's report, his opinion has changed since 19 October 1996 when he wrote:

His past history of apparent fall and injury is noted. The relationship between this and his complaint is uncertain. It may be reasonable to pursue further investigative studies and in this regard MRI assessment, particularly of the brain and cervical spinal cord would appear reasonable.

As the precise cause is uncertain, the mechanism or contribution of various factors can also not be specified. At present however, it must be accepted that the injuries sustained may be a significant causative or contributing component.

The Tribunal also intends to ask Dr Kranz to explain the reason for prescribing anti-epileptic drugs for Mr Allan.

Would the respondent please advise whether it is prepared to arrange for the attendance of Dr Berkovic and Dr Kranz at the resumed hearing?

If so would the respondent please contact Mrs Dwyer's Personal Assistant Grace Carney with suggestions as to possible dates after 27 January 1999 for the resumed hearing.

Yours sincerely

Tony Gawne

District Registrar