Rendina and Australian Postal Corporation [2002] AATA 121 (27 February 2002)

Last Updated: 1 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 121

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/700

GENERAL ADMINISTRATIVE DIVISION

Re: BRUNO RENDINA

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 27 February 2002

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) Graham Friedman

Member

COMPENSATION - bilateral groin strain - pre-existing condition - whether in the course of employment - wilful and false representation

Safety, Rehabilitation and Compensation Act 1988 ss4(1), 7(7), 16

Day v Standard Waygood Limited (1941) 65 CLR 204

Re Beattie and The Commission for the Safety, Rehabilitation and Compensation of

Commonwealth Employees (AAT 7759, 20 February 1992)

Re Winter and Commonwealth of Australia (1989) 18 ALD 264

REASONS FOR DECISION

27 February 2002 G.D. Friedman, Member

1. This is an application by Bruno Rendina (the applicant) for review of a decision of a delegate of the Australian Postal Corporation (the respondent) dated 11 April 2000. The delegate affirmed a determination of the respondent dated 31 January 2000 to cease liability to pay compensation benefits for bilateral groin strain as from 31 January 2000, and to refuse to consider liability to pay for the cost of a proposed Magnetic Resonance Imaging (MRI) scan under s16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

2. At the hearing of this matter on 29 October 2001 and 18 February 2002 Mr N. Horner of Counsel represented the applicant and Mr M. Croyle of Counsel represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T134), together with 2 exhibits lodged by the applicant (Exhibits A1 and A2) and 10 lodged by the respondent (Exhibits R1-R10).

BACKGROUND

4. The applicant was born on 13 November 1964. He started work as an apprentice motor mechanic before joining the Department of Defence. After three years he left the Department and took up a clerical position with National Mutual before commencing employment with the respondent as casual worker in 1987. After eight months he travelled overseas and on his return re-joined the respondent in December 1988 as a relieving postal officer. During the course of his employment with the respondent he made the following claims for compensation in respect of injuries to the left and right groin: 19 March 1990 (left groin), 8 February 1994 (right groin), 10 January 1995 (left groin), 2 October 1995 (left groin), 16 January 1996 (left groin) and 9 June 1998 (left and right groin).

5. On 31 January 2000 a delegate of the respondent issued a determination ceasing liability to pay compensation in respect of bilateral groin strain sustained on 9 June 1998. In the respondent's view the applicant suffered a pre-existing bilateral groin injury unrelated to his employment, or specific injuries sustained in the course of the applicant's employment constituted a temporary aggravation of a pre-existing groin problem. The respondent also denied liability to pay for the cost of an MRI scan sought by the applicant because the effects of any aggravation largely ceased on or before 31 January 2000, so that the respondent was not liable for medical and like expenses on and from 31 January 2000. On 11 April 2000 a delegate of the respondent affirmed the determination and on 13 June 2000 the applicant lodged an application with the Tribunal for review of the decision.

EVIDENCE

6. The applicant told the Tribunal that he commenced playing Australian Rules football with his local club at the age of about 7 years. He said that in a pre-season match in February 1987 he bruised his right groin after receiving a knock to his right hip. He stated that his doctor told him to rest, and he used a wheelchair for about 3 or 4 weeks, after which he resumed playing football. He said that he played his last game in 1993. The applicant told the Tribunal that he commenced playing cricket at the age of about 9 years and continued to play competitive cricket as a wicketkeeper/batsman until about 1997. He said that he did not suffer any groin injury while playing cricket.

7. The applicant stated that when he resumed work with the respondent in December 1988 as a relief postal delivery officer he completed his deliveries by bicycle or on foot. He said that on 19 March 1990, while delivering a letter, he lost his balance and fell from his bicycle, causing a tear in his right groin. In his claim for compensation dated 10 June 1990 he stated no in answer to the question: Have you ever had a similar injury or condition? He explained that at the time he probably believed the question was referring to work-related injuries, and the injury he suffered in 1987 playing football was more of a hip injury than a groin injury. He said that the respondent accepted liability for a strained right groin. After resting for two weeks he resumed normal duties. On 8 February 1994 the applicant claimed that he felt a twinge in his left groin as he was riding his bicycle. The respondent accepted liability for a left groin strain. The applicant said that on 17 May 1994 he underwent surgery for adductor muscle insertion release from the inferior pubic rami, to relieve stress on the muscles and tendons. He said that he resumed work on modified duties before returning to normal duties. He said that his right groin improved but pain persisted in his left groin.

8. On 10 January 1995 the applicant underwent further surgery to relieve pain in the left groin. On 22 January 1995 the respondent accepted liability for left groin strain. A rehabilitation program was devised, and the applicant returned to normal duties in April 1995. On 2 October 1995 the applicant complained of soreness in his left groin. On 2 November 1995 the applicant underwent a rehabilitation assessment which recommended modified duties and the avoidance of bicycle riding or deliveries on foot. The applicant stated that on 16 January 1996 he suffered spasms and soreness in the left groin, and on 28 February 1996 he underwent surgery for release of the left obturator nerve. After a further rehabilitation assessment on 25 March 1996 the applicant resumed full-time duties on 27 June 1996.

9. The applicant said that on 9 June 1998 his left and right groin became sore whilst he was delivering mail and on 24 June 1998 the respondent accepted liability for left and right groin strain. A further rehabilitation assessment was carried out, which recommended indoor duties. On 7 December 1998 the applicant underwent bilateral groin surgery and on 8 February 1999 he returned to work. He said that currently he undertakes a part-time delivery round plus indoor administrative duties at the mail centre. He stated that he has tightness in his left and right groin and he takes pain-relieving medication several times each week. He stated that in November 2000 Mr R. Crowe, his treating orthopaedic surgeon, recommended that he undergo an MRI scan.

10. Under cross-examination the applicant stated that on 8 March 1987 he attended his doctor seeking a painkiller because he had suffered a groin injury in a cricket match and wanted to play in a football match that evening. On 23 March 1987 he sought medical treatment after suffering pain in his right hip and right groin during a football match. He agreed that using the wheelchair was his own suggestion and that he had exaggerated when he later told specialist medical practitioners that he had required a wheelchair for six weeks after his 1987 football injury. The applicant explained that he thought that he might receive more sympathy and better treatment if he claimed to have been confined to a wheelchair for an extended period.

11. The applicant denied that he had had problems with the left groin prior to 1994. Mr D. Macintosh, orthopaedic surgeon, stated in a letter dated 10 February 1994 to Dr J. Taylor, the applicant's general practitioner:

...

As you know this chap has had recurrent sprains in both groins, since a football injury in 1987.

In a letter to Mr Crowe dated 20 March 1995 Mr R. Lincoln, physiotherapist, stated:

... Mr Rendina originally aggravated his groins playing football seven years ago, with ongoing problems since.

In a medical certificate dated 8 February 1994 Dr Taylor stated that the applicant has a past history of ... recurrent groin strains R and L.

12. The applicant said that any reference to pain in the left groin in these or other doctors' reports or correspondence was incorrect. He agreed that when applying for a position with the respondent in 1987 and 1989 he did not mention his pain in the right groin. He denied that he had deliberately concealed longstanding problems with the left and right groin.

13. In written reports dated 18 May 1994, 19 January 1995, 21 February 1995 and 9 January 2001, Mr Crowe described the surgery he performed on the applicant and the recommended treatment. In the report of 18 May 1994 Mr Crowe stated that on 15 March 1994 he first examined the applicant in relation to pain in the left and right groin and the applicant had told him that he had suffered from pain in both groin regions whilst getting on and off his bicycle, for he works as a postman. In oral evidence to the Tribunal Mr Crowe explained that the surgery had not been entirely successful in reducing the applicant's pain. Mr Crowe agreed that the applicant had referred to right groin pain suffered in football incidents that occurred some seven year earlier. In his report dated 9 January 2001 Mr Crowe stated:

... there is no doubt that the activity of attempting to ride a bicycle in the course of his employment as a postmen has certainly contributed markedly to his condition in the form of its causation and aggravation.

Mr Crowe agreed that the applicant's sporting activities, such as being a wicketkeeper, might have contributed to, or exacerbated, groin problems. Under cross-examination Mr Crowe agreed with the possibility that the groin problems suffered by the applicant were caused by the events of 1987 and have been recurring since then.

14. In a written report dated 13 November 2000 Dr Taylor stated that on 8 February 1994 the applicant contacted him regarding injury to the left groin which occurred whilst the applicant was riding a bicycle at work. Dr Taylor said he referred the applicant to specialists, after which the applicant underwent surgery to both groins in May 1994. Dr Taylor stated that he has been seeing the applicant at regular intervals since then for assessment of chronic groin strain, and further surgery occurred in 1996 and 1998.

15. In oral evidence to the Tribunal Dr Taylor said that he has been the applicant's treating doctor since 1980, and that in 1989 or earlier the applicant had sought treatment for a groin strain which occurred whilst he was playing football. Under cross-examination Dr Taylor said that apparently the condition had resolved by 19 March 1990, when the applicant next presented with symptoms of groin strain. Dr Taylor explained that in 1990, 1991 and 1992 the applicant sought treatment for football-related matters, but these did not involve groin injuries.

16. In a written report dated 29 October 1999 Mr I. Henderson, orthopaedic surgeon, stated that he first examined the applicant on 15 September 1998. He said:

... Mr Rendina suffers from groin pain of undetermined origin, considered aggravated by work requirements. This has failed to resolve following several surgical procedures and residual disability which prevents him from carrying out his normal work as a motorcycle postal deliverer.

I would not consider that his employment is materially contributing to his condition at this stage, ...

In a written report dated 17 June 1999 Mr Henderson stated:

...

I do not see any difficulties with [the applicant] performing delivery duties by motorcycle and if he can carry out a gym program outside his normal working hours that would be appropriate, however I believe that he should be able to carry out a normal 38 hour week at this time.

17. In a written report dated 15 December 1999 Mr I. Jones, orthopaedic surgeon, stated:

1. ...

2. I would agree with Mr Henderson's assessment that riding a motor cycle, alighting and remounting the bike may have aggravated his groin symptoms. Apparently, records show that he has not ridden a motor bike since September 1999 and yet there has been apparent exacerbation of his symptoms. This would suggest that there are other activities other than bike riding which may have contributed to his condition.

3. In light of the longer history of groin symptoms that was originally described in my first report I would suggest that this man's groin problem relates more to football activity rather than the injury of 09.06.98.

In a further report dated 8 January 2002 Mr Jones stated that, contrary to the history he obtained during an examination, it appeared that the applicant had experienced groin symptoms for some seven years before the reported fall from his bicycle at work in 1994. Mr Jones said:

... Accepting this previous history of bilateral groin pain I believe that the patient's employment with Australia Post and in particular the so-called injury in 1994 could have been no more than an aggravating rather than a precipitating factor for his left or right groin pain symptoms.

18. In oral evidence to the Tribunal Mr Jones stated that the pain to the groin would have been less if the applicant had ceased engaging in activities which contributed to the pain. In his written report Mr Jones stated that, given the amount of surgery to which the applicant's groins have been subjected, interpretation of any findings following an MRI scan would be difficult and would be unlikely to establish a treatable cause for his groin pain symptoms.

CONSIDERATION OF THE ISSUES

19. Mr Horner, on behalf or the applicant, submitted that the consensus among treating doctors was that the applicant is suffering from significant problems concerning his left and right groin, and the applicant's employment contributed to his condition. Mr Horner stated that the medical records from Dr Taylor demonstrate that pain in the left groin occurred whilst the applicant was working and playing football until he ceased football in 1993. Mr Horner said that the incident that occurred on 8 February 1994 was the first record of pain to the left groin suffered at work, and that the applicant's condition deteriorated and resulted in further surgery.

20. Mr Horner referred the Tribunal to Re Winter and Commonwealth of Australia (1989) 18 ALD 264 and submitted that surgery undertaken by the applicant aggravated the pre-existing condition of groin strain and therefore injury to the groin arose out of the applicant's employment.

21. Section 7(7) of the SRC Act provides, in relation to disease:

(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

Section 4(1) of the SRC Act defines disease as:

...

(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.

Section 4(1) of the SRC Act defines injury as:

...

(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 a 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;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

22. Mr Horner submitted that, based on the evidence from Dr Taylor, the applicant was suffering from an injury, not a disease, so that s7(7) of the SRC Act does not apply. He said that, in any event, there was no evidence that, when completing relevant documentation about previous illnesses, the applicant made wilful or false representations. Mr Horner submitted further that a condition is compensable where there is an underlying pathological condition accompanied by an increase in pain (Re Beattie and The Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (AAT 7759, 20 February 1992).

23. Mr Croyle, on behalf of the respondent, submitted that disease is a pathological process that was first suffered by the applicant in 1987 when he was playing football, and pre-dates the applicant's employment with the respondent. He said that any change in the applicant's condition is part of the pathological process, so s7(7) of the SRC Act applies. He submitted that in failing to inform the respondent about the pre-existing condition despite being requested to do so, the applicant knew that the information he provided was incorrect. Consequently, the applicant made a wilful and false representation.

24. Mr Croyle cast doubt on the credibility of the evidence given by the applicant. He stated that the medical evidence showed that following a strain in the left and right groin suffered as early as 1987 the applicant had accepted recommended treatment such as rest and time away from work, and had recovered long before incidents causing groin strain had occurred whilst the applicant was employed by the respondent. Mr Croyle referred to the admission by the applicant that in using a wheelchair in 1987 after suffering an injury whilst playing football he had exaggerated the need for the wheelchair and the length of time he used it in order to gain sympathy and support. Mr Croyle also stated that the applicant had misled Dr Taylor by failing to disclose injuries to the left and right groin (including the 1987 injury) when describing the groin strain injury allegedly suffered at work in 1994. Further the applicant had given a history to Mr Crowe in which he had not included references to chronic pain he had suffered in the left and right groin since 1987.

25. In relation to the proposed MRI scan Mr Croyle referred to the report from Mr Jones and submitted that there was no evidence that such a scan was desirable or necessary.

26. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Tribunal accepts the significant and consistent written evidence from a number of medical professionals that they were told by the applicant that he suffered injury to the left and right groin while playing football at least back to 1987. The Tribunal is satisfied that the clinical notes of Dr Taylor support this view. The Tribunal does not accept the contention by the applicant that each of the professionals was incorrect in the recording of the medical history as told to them by the applicant. Similarly, the Tribunal accepts the submission by Mr Croyle that in admitting that he exaggerated the facts surrounding the use of the wheelchair in 1987, the applicant's evidence lacks credibility.

27. In Day v Standard Waygood Limited (1941) 65 CLR 204 the High Court of Australia held that where a fall that did not originate or aggravate an existing malignant condition but merely accelerated an amputation rendered necessary by the malignant condition, there was not sufficient causal connection or association between the injury from the fall and the loss of the hand to establish that the injury arose out of or in the course of employment. The Tribunal accepts the medical evidence that the injury to the left and right groin suffered in 1987 whilst the applicant was playing football had been treated and the symptoms had resolved at the time of the first incident in which the applicant reported injury at work in 1990. As a result the Tribunal finds that any subsequent groin strains were traceable to the 1987 injury. In applying Day the Tribunal finds that any groin injuries suffered by the applicant in the course of his employment with the respondent did not originate or aggravate an existing malignant condition, and the effects of these injuries ceased on or before 31 January 2000. Therefore the applicant suffers from a bilateral groin condition unrelated to his employment.

28. In view of the Tribunal's findings, there is no need for the Tribunal to consider whether the provisions of s7(7) of the SRC Act would preclude the applicant from receiving compensation for aggravation of a pre-existing condition arising out of or in the course of his employment.

29. On the material provided, the Tribunal finds that there is no evidence to justify the payment by the respondent of the cost of an MRI scan.

DECISION

30. The Tribunal affirms the decision under review.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 29 October 2001

18 February 2002

Date of decision: 27 February 2002

Counsel for applicant: Mr N. Horner

Solicitor for applicant: Slater & Gordon

Counsel for respondent: Mr M. Croyle

Solicitor for respondent: Frenkel Partners