McConkey and Australian Postal Corporation [2002] AATA 15 (14 January 2002)

Last Updated: 17 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 15

ADMINISTRATIVE APPEALS TRIBUNAL )

) N1999/630

) N2000/207

GENERAL ADMINISTRATIVE DIVISION )

Re Roy Oswald McConkey

Applicant

And Australian Postal Corporation

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 14 January 2002

Place Sydney

Decision The Tribunal affirms the decisions under review. The Applicant is not entitled to any costs associated with the two applications before the Tribunal.

[SGD] M J Sassella

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - lumbosacral back pain - left lower limb injury - congenital anomaly at lumbosacral junction - disc degeneration - temporary aggravation of underlying conditions - nature and conditions of work - effects of injury ceased

Safety, Rehabilitation and Compensation Act 1988 - sections 4(1), (9), 14(1), 19(2), 24(1), (2), (4), (5), (6), (7), 27(1), 28(1), (3), (4), (5)

REASONS FOR DECISION

14 January 2002 M J Sassella

Senior Member

History of Application N1999/630

1. On 10 November 1997 Mr Roy Oswald McConkey ("the Applicant") lodged with the Australian Postal Corporation ("the Respondent") a claim for compensation for an injury to his lower back (T5). He detailed in the form that he suffered the injury on 4 November 1997 at 11.30 am while bending to make a mail delivery at 26 Gladstone St, Bellambi. [References to T documents are to those documents in Ex TD1 unless they are described as references to T documents in Ex TD2, in which case the references will read, "Ex TD2, T(number)".]

2. On 5 December 1997 the Respondent denied liability to pay compensation (T8). The reasons given were, first, that the degree of incapacity was out of proportion to the injury as described. The Applicant had simply said he had bent to put mail into a letter box. He had been diagnosed with musculoligamentous injury to his lower back (T3/7, 6 November 1997). Second, none of the medical evidence indicated a work-related injury. Third, in the absence of medical opinion on the aetiology of the injury, postural dysfunction remained as a possibility.

3. In a letter apparently dated 6 January 1998 the Applicant requested a reconsideration of the above decision (T11). He cited the reports of his physiotherapist (Ms Bolt) and his treating doctor (Dr Sokolouska) as evidence of the relationship between work and his injury. He stated that he was eager to return to full time duties at work.

4. On 29 January 1998 the Respondent revoked the decision of 5 December 1997 (T13) and decided that there was sufficient evidence to show that the Applicant's condition, "aggravation of a degenerative condition in the lumbosacral region", resulted from his employment with Australia Post.

5. On 6 February 1998 a delegate of the Respondent stated that compensation for the Applicant was approved for the time periods from 5 to 11 November 1997 and from 19 to 30 November 1997 (T15).

6. On 2 March 1998 the Applicant lodged a compensation claim in respect of soreness in his left foot as of 20 February 1998. While engaged in delivering mail on a "walking beat", as a part of his rehabilitation following the injury sustained on 4 November 1997, he was pushing a mail buggy. He stepped heavily on his left foot, put a strain on that foot, and caused soreness.

7. On 6 March 1998 the manager of the Bellambi Delivery Centre stated that he did not accept the Applicant's claim that it was the walking beat that caused the injury. It could have been deterioration of the strength of the Applicant's foot over time (T22). He had told the Illawarra Sports Medicine Clinic (T17) that he had experienced heavy foot pain for the past four weeks and that he was delivering mail by buggy for four weeks. The injury would have had its onset within a few days of the commencement of the walking beat. The manager's evidence was that the Applicant had been delivering by buggy over the last four weeks, meaning that the injury commenced within a few days of the walking beat and not after continuous walking.

8. On 27 April 1998 the Respondent granted the Applicant incapacity payments in respect of flat feet for a period of 4 hours on 25 February 1998 (T25).

9. On 16 July 1998 the Respondent approved compensation payments for physiotherapy treatments relating to the back injury (T29). The treatments were approved up to 14 August 1998.

10. On 7 September 1998 the Applicant lodged a claim for compensation in respect of soft tissue injury to the left knee on 30 August 1998 resulting from gymnasium work required as a result of the earlier back injury (T32). On 9 September 1998 the Applicant lodged an incident report (T31). The incident was reported as occurring in a gymnasium while the Applicant was working out in his rehabilitation program. He noted a pain below his left kneecap in the muscle area. The delivery manager, Mr Barry Ellis, also wrote on the form. He wrote that it did not appear to be related to a specific incident. He also wrote that the Applicant had been overdoing his agreed exercise program and that the incident had occurred outside of rostered hours.

11. On 10 September Mr Ellis wrote to the Entitlements Section in the Respondent agency attaching a medical certificate stating that the Applicant was unable to ride a motorcycle until 16 September 1998. The doctor also wrote that a 1 hour 30 minute walking limitation was adequate to cover the walking component involved in the Applicant's current duties.

12. On 16 September 1998 (T34) the Respondent amended the determination of 29 January 1998 that referred to "musculoligamentous injury to the lower back" (T13) to include "soft tissue injury to the left knee". Thus liability was extended to include the left knee injury in the gymnasium.

13. On 6 January 1999 the Respondent, relying on Dr Wilding's report of 8 December 1998 (T44), stated that it was not liable for continued payments of compensation in respect of aggravation of degenerative condition in the lumbosacral region and soft tissue injury to the left knee on and from the date of the determination (T45). Dr Wilding is an orthopaedic surgeon.

14. On 8 March 1999 the Respondent received from the Applicant a request for reconsideration (T47) of the determination in T45. He said that he still had pain and discomfort in his back, and was on leave for this problem. Further, his doctor considered these problems to be linked to his earlier injuries. He said that it was not possible for him to ride a motorcycle again.

15. On 23 February 1999 the Applicant lodged an incident report (T49) in respect of ongoing stiffness and pain in his lower back. There was constant pressure on his back from riding the motorcycle.

16. On 8 March 1999 the Respondent received a claim for compensation from the Applicant (T51). In his form the Applicant noted that he had chronic back pain and he had suffered the problem from 1997. He dated the injury as occurring on 8 February 1999.

17. On 12 March 1999 the Respondent determined to reject the above claim of the Applicant (T52). It considered that there was no evidence linking the condition to work-related activities and that there was nothing to distinguish this injury from the earlier claim (T5) of the Applicant.

18. On 15 March 1999 the Applicant wrote, in the Tribunal's view, requesting reconsideration (T53) of the determination in T52. In T54 this is taken to be a request for reconsideration of a decision made on 9 February 1999. There is no such decision in Ex TD1. It should presumably refer to either or both of the decisions made on 6 January 1999 (T45) and 12 March 1999 (T52). He gave a number of reasons for this, including the following:

* Contrary to what Dr Wilding said in his report, the Applicant does not have any history of a pre-existing degenerative change in his back.

* There was a lack of ergonomic policies when the Applicant initially started his work at Australia Post.

* Dr Mills (T49A) was incorrect in stating that the Applicant would not comply with an exercise regime. The Applicant stated that he complied strictly with the rehabilitation exercise program and had been on the look out for new ideas, such as Tai Chi.

19. On 31 March 1999 the Respondent affirmed in T54 the primary decision in T45. This is the reviewable decision. The main reasons for refusal were MRI reports of Dr Chapman (T37) showing no substantial abnormality in the left knee, and the comments in Dr Wilding's report.

History of Application N2000/207

20. On 6 December 1999 the Applicant's solicitor lodged a permanent impairment claim alleging a 10% whole person impairment as a result of an injury to the Applicant's lower back. (Ex TD2, T1)

21. On 22 December 1999 the Respondent refused the claim on the basis that the Applicant did not suffer a work-related injury and therefore it did not have any liability. At the same time the delegate determined under s 62 of the Act that the Respondent has no liability to pay compensation to the Applicant under any relevant provision of the Act. This is the reviewable decision (Ex TD2, T5).

22. On 11 February 2000 an application for review of the above decision was lodged with the Tribunal (Ex TD2, T1).

Relevant legislation

23. The relevant legislation consists of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") sections 4(1) "ailment", "disease", "impairment", "injury", "permanent", (9), 14(1), 19(2), 24(1), (2), (4), (5), (6), (7), 27(1), 28(1), (3), (4), (5).

Safety, Rehabilitation and Compensation Act 1988

Interpretation

4. (1) In this Act, unless the contrary intention appears:

...

ailment means any physical or mental ailment, disorder, defect

or morbid condition (whether of sudden onset or gradual

development);

...

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a

material degree by the employee's employment by the Commonwealth or

a licensed corporation;

...

impairment means the loss, the loss of the use, or the damage or

malfunction, of any part of the body or of any bodily system or

function or part of such system or function;

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee,

being a physical or mental injury arising out of, or in the course

of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than 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;

...

permanent means likely to continue indefinitely;

...

(9) A reference in this Act to an incapacity for work is a

reference to an incapacity suffered by an employee as a result of an

injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he

or she was engaged by the Commonwealth or a licensed corporation in

that work or any other work immediately before the injury happened.

...

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay

compensation in accordance with this Act in respect of an injury

suffered by an employee if the injury results in death, incapacity

for work, or impairment.

...

Compensation for injuries resulting in incapacity

...

19. (2) Subject to this Part, Comcare is liable to pay compensation to

the employee in respect of the injury, for each of the first 45

weeks (whether consecutive or otherwise) during which the employee

is incapacitated, of an amount calculated under the formula:

NWE - AE

where:

NWE is the amount of the employee's normal weekly earnings; and

AE is the amount per week (if any) that the employee is able to

earn in suitable employment.

...

Compensation for injuries resulting in permanent impairment

Case Link

24. (1) Where an injury to an employee results in a permanent

impairment, Comcare is liable to pay compensation to the employee in

respect of the injury.

(2) For the purpose of determining whether an impairment is

permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable

rehabilitative treatment for the impairment; and

(d) any other relevant matters.

...

(4) The amount assessed by Comcare shall be an amount that is the

same percentage of the maximum amount as the percentage determined

by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of

the employee resulting from an injury under the provisions of the

approved Guide.

(6) The degree of permanent impairment shall be expressed as a

percentage.

(7) Subject to section 25, where Comcare determines that the

degree of permanent impairment of the employee is less than 10%, an

amount of compensation is not payable to the employee under this

section.

...

Compensation for non-economic loss

27. (1) Where an injury to an employee results in a permanent

impairment and compensation is payable in respect of the injury

under section 24, Comcare is liable to pay additional compensation

in accordance with this section to the employee in respect of that

injury for any non-economic loss suffered by the employee as a

result of that injury or impairment.

...

Approved Guide

Case Link

28. (1) Comcare may, from time to time, prepare a written

document, to be called the "Guide to the Assessment of the Degree of

Permanent Impairment", setting out:

(a) criteria by reference to which the degree of the permanent

impairment of an employee resulting from an injury shall be

determined;

(b) criteria by reference to which the degree of non-economic loss

suffered by an employee as a result of an injury or impairment shall

be determined; and

(c) methods by which the degree of permanent impairment and the

degree of non-economic loss, as determined under those criteria,

shall be expressed as a percentage.

...

(3) A document prepared by Comcare under subsection (1), and an

instrument under subsection (2), have no force or effect unless and

until approved by the Minister.

(4) Where Comcare, a licensed authority, a licensed corporation or

the Administrative Appeals Tribunal is required to assess or

re-assess, or review the assessment or re-assessment of, the degree

of permanent impairment of an employee resulting from an injury, or

the degree of non-economic loss suffered by an employee, the

provisions of the approved Guide are binding on Comcare, the

licensed authority, the licensed corporation or the Administrative

Appeals Tribunal, as the case may be, in the carrying out of that

assessment, re-assessment or review, and the assessment,

re-assessment or review shall be made under the relevant provisions

of the approved Guide.

(5) The percentage of permanent impairment or non-economic loss

suffered by an employee as a result of an injury ascertained under

the methods referred to in paragraph (1) (c) may be 0%.

...

Hearing and appearances

24. The Tribunal convened a hearing in Sydney on 23 and 24 November 2000. Mr C Robinson of counsel represented the Applicant. Mr B Skinner of counsel represented the Respondent. The Tribunal admitted into evidence the following documentary material:

* Exhibit TD1 - Section 37 Statement and T documents related to application number N1999/630.

* Exhibit TD2 - Section 37 Statement and T documents related to application number N2000/207.

* Exhibit A1 - Report by Dr P E Giblin, orthopaedic surgeon, 1 September 1999.

* Exhibit A2 - Report by Dr R Smart, Medical Director, VAX-D Australasia, 30 July 1999.

* Exhibit A3 - Record of Applicant's attendance at VAX-D premises, 28 July 1999.

* Exhibit A4 - Incident report, 20 March 1992.

* Exhibit A5 - Incident report, 2 March 1994.

* Exhibit R1 - Report (5 pp) by Dr N W McGill, rheumatologist, 5 August 1999.

* Exhibit R2 - Report by Dr D Maxwell, orthopaedic surgeon, 12 August 1999.

* Exhibit R3 - Report (1 p) by Dr McGill, 5 August 1999.

* Exhibit R4 - Testimonial relating to VAX-D dated 17 August 1999 written by the Applicant.

* Exhibit R5 - Letter dated 28 June 1999 from Dr Smart of VAX-D to the Applicant's solicitor.

* Exhibit R6 - Dr Sokolovska's clinical notes.

* Exhibit R7 - Letter dated 5 May 1998 to Dr R Mills, occupational physician, by physiotherapist Ms A Bout.

* Exhibit SFCA - Applicant's undated statement of facts and contentions.

* Exhibit SFCB - Respondent's statement of facts and contentions, 27 October 1999.

Applicant's evidence

25. The Applicant is 42 years of age. He is single and lives alone. He is a tall man measuring 6 feet and 5 inches in height. He left school at the age of 16 and started work as a telegram boy with the post office in the Guildford region at the age of 17. At 18 he graduated to postal delivery officer using a push bike. He did this for the next eight years and for some time over that period he used a motor bike. His duties also involved putting mail into a bag and unloading trucks. When he was on the pushbike the bag with the mail was on the front between the handlebars. It weighed up to a maximum of 14 or 16 kilograms. Apart from the actual cycling, the other activity he did while delivering was to put the letters in the post boxes which involved some movement of his back and torso. It would take about three hours for him to do a delivery round. He said that he did not have any difficulty either on the push bike or motorbike. The bike he was riding at Guildford was a CT90 which was a step-through motorcycle. It was a relatively small bike but he did not have any particular difficulties riding it.

26. He was transferred to Wollongong when he was 26. Here he started on the Corrimal Tarrawanna run. He started on a push bike. He was performing similar duties to the Guildford run and again did not have any difficulties doing his deliveries. This was a very flat run. At this stage he was doing three hour deliveries, five days a week. He eventually switched to a motorbike. He mentioned in his oral evidence that over the years the method of using bags on motorbikes changed. It changed from bags to trays and back to bags. Also there were two bags, one at the front and one at the back. The one in the back usually carried only wet weather gear and flaps. The back bag is plastic and comes about six inches up the back.

27. The Applicant described an incident which he first said occurred in 1994 but then, when shown the incident report which he had filled out (Ex A4), conceded that it occurred in 1992 whilst doing the Corrimal Tarrawanna run. The particular incident occurred when he went to deliver mail to the letter box, lost control of the motor bike and twisted his back. He had been going up a driveway but lost control due to steepness. He was able to finish the run but felt pain in his back. He agreed that he did not take any leave from work. He also agreed that he had stated on the form that it was not a recurrence of a previous injury. He said that he saw Dr Xavier after the incident and had x-rays taken of his back.

28. In about 1994, he moved to the Bulli run which was much hillier. This caused him problems such as stiffness in the back and shoulders. The Applicant had another incident at Bulli though not on a bike (Ex A5). He was dragging a depot bag from underneath a fruit shop and jarred his back. He felt a pain in his back similar to the above incident. He reported the matter. He thought he may have had some treatment for the incident but could not recall exactly. When he filled out the accident report he was working out of the Corrimal depot, though he did not clarify whether this meant he was doing the Corrimal Tarrawanna run or the Bulli run. He agreed that on the form he said he did not take of any time from work and that he did not seek medical treatment.

29. He said that he did not make a claim for worker's compensation after either of the 1992 or 1994 incidents. He said that the pain from both incidents was in a similar region in his lower/middle back. However he could not say whether or not it was the same pain. He also said that, apart from seeing Dr Xavier, the only other medical treatment he got until 1997 was from a chiropractor.

30. The Applicant was doing three to four hour runs in Bulli. While doing the Bulli run the Applicant was forced to use a motorbike because push bikes were being phased out. There was also a change in positioning of the mail bag which was placed in front of him. He had to place one leg up and the other down. Mail boxes were also of diverging heights, meaning at times he had to bend very low to the left. He always had to bend to the left because the law required him to deliver with his left hand. He asked to be transferred from the Bulli run because of the stiffness from riding on bumps and steep hills. He did say that newer subdivisions within suburbs were more likely to have brand new footpaths. He did not provide any medical evidence to support this request. He said he did not request a report or letter from his chiropractor because he was told at the time that Australia Post did not recognise chiropractors.

31. The Applicant said he was transferred to Bellambi. He said that there were some letter boxes which were very low. He was delivering there for three years. He recalled the incident on 4 November 1997 where he was putting something in a really low box and felt an intense pain in his back (the incident described in paragraph 1 above). He could not finish his run because of the pain in his back. He could not clarify whether this was a sudden onset of pain or a gradual onset of pain.

32. He went and saw his general practitioner, Dr Sokalovska on 4 November 1997 (T3/5). He told her that he had injured himself while doing his motorcycle delivery run, specifically when he bent down to put a letter in a letter box. He thought it unlikely that he had told Dr Sokalovska generally about bending down to put mail into lower letter boxes. He agreed that he told her that after one or two hours of work on 4 November 1997 he felt a worsening stiffness in his back. She prescribed him Voltarin and referred him for physiotherapy. He said that after a week off he went back to work but could not do sorting because of pain in his lower back. He went back to Dr Sokolovska who gave him more time off. He went back again but to light duties (T3/7-8).

33. After the initial consultation, his doctor referred him to physiotherapist Anita Bout. He did not know whether he had told Ms Bout of any specific incident which brought on the pain.

34. When asked to compare the pain in the 1992 and1994 incidents to the 1997 incident the Applicant was not sure whether it was in the same region. He also could not tell the difference in terms of type, although he said that the 1997 pain was much more severe and incapacitating.

35. The Applicant said he had trouble doing sorting work in 1997 due to back problems. There were tables where one had to sit down, get back up and sit down again which aggravated his back. This was addressed in a workplace assessment on 2 December 1997 (T7).

36. The Applicant started delivering again in January 1998 and was doing foot deliveries in Coramba shopping centre. His back was asymptomatic when he was doing foot deliveries as long as he kept his back straight. Bending over caused problems, however. He then developed an injury in his foot which may have been a consequence of flatfootedness (T20). The Applicant mentioned that he was also bitten by a dog on his foot at the time. He saw a podiatrist who gave him some inner soles for his shoes.

37. The Applicant was then referred to Dr Mills (an occupational physician) by Ruth Wiley, his rehabilitation counsellor in May 1998 (T26). Dr Mills prescribed an exercise program which included a mix between foot and bike deliveries as well as some gym work. The Applicant injured his knee while doing the gym work (T31).

38. At the end of 1998 the Applicant took some leave. At this time he was doing half foot and half bike deliveries in the Fairy Meadow shops. He had to wear a back brace and was under physiotherapy at the time.

39. When he took his leave in November of 1998 he went to Perth. He injured his shoulder while body surfing in Perth. He saw body surfing as part of the treatment required to get fit. He did not think it would have any negative effect on his back. When he was injured he mostly felt pain in the shoulder. He was treated by a doctor in Perth who gave him painkillers and put his arm in a sling. He had to fly back that day so he got treatment for his shoulder the next day in Wollongong.

40. The Applicant went back to work in about February 1999. He then saw Dr Wilding who told him about the "VAX-D" treatment. He had to have a CT scan. Following that, and after his shoulder had healed, he started the treatment. This has improved his current situation though he still gets soreness in his back

41. Subsequent to Australia Post refusing liability for his injury in February 1999, he had another incident affecting his back (T49). This stopped him doing deliveries and forced him into night shift sorting work.

42. The Applicant saw Dr Giblin in 1999. He had told the doctor that he had stiffness in the back before the 1997 incident. He did not remember whether he told Dr Giblin about the 1992 incident but he did tell him about the 1994 incident. The Applicant saw Dr McGill in 1999. He told Dr McGill that he had always had stiffness in the back. He told both doctors that he had been taken off the hilly delivery run at Bulli due to back discomfort. He did not remember whether he had told Dr McGill about any specific incident in 1997. He said that if Dr Giblin noted a particular incident in 1997, then that would have been the history he gave to him.

43. He is currently on night sorting duties, though he would prefer to be doing deliveries outside. He said that he had not ridden a motorbike for Australia Post for a year and a half. The title of his position is "night sorter" and the rate at which he is paid is higher than that of a deliverer. He did not formally apply for this job as it was offered to him when he expressed interest in it.

44. The only physical problem he has with night duties is the lifting of bags and crates when they come off a truck. However, he said that he could lift a full 16 kg bag now. The Applicant stated that if he took up postal delivery duties again, physically he would not be able to deliver mail on a motor bike. He cannot lift himself up by standing on the footpegs when going over bumps.

45. He does have a motor bike of his own, a BMW 750CC bike which he rides once in a while. This is a bike requiring the rider to sit up straight. This is a much larger bike than the Honda C110 step through bike that he rode for Australia Post. He did not remember whether or not he told either Dr Giblin or Dr McGill about riding a motor bike. He has also owned motorcycles in the past including trail bikes. He said that he seldom rode his trail bike off road because it was not made for it.

46. The Applicant said that he was in more pain now then he had been before the November 1997 accident. He did say however that it was hard to remember the stiffness he had before the accident. He said that there were actions he could not do now such as lifting objects. He said that he could bend though he did not know if he could touch his toes.

47. Other activities he could not do now included playing golf and surfing. He stopped playing golf when he became too stiff to play. He is now less stiff but pain intervenes to prevent him playing. He had surfed prior to 1997 but stopped through lack of interest and reduced fitness. He had become less flexible. He still swims but gave up scuba diving for non-physical reasons. He does his own housework. He said that he sometimes has pain whilst bending to brush his teeth. Bedmaking can be difficult if it involves lifting the mattress. He can lace his shoes if seated. He carries shopping bags, but lifting them from the car can cause pain in his back. He could not reconcile the fact that he only sometimes had pain bending except to say that he was stiffer in the mornings. He said there was a limited range within which he could move before experiencing pain.

48. The Applicant said he had agreed to a course of treatment from the VAX-D spinal institute in Wollongong with a $6000 fee payable only if his claim for compensation succeeded. The Applicant completed a program with VAX-D but he still sees them whenever his problems worsen and the last time he saw them was a few months ago. He wrote a testimonial praising VAX-D of his own accord and with the assistance of his girlfriend (Exhibit R4). Some of the words he used however were copied straight from another document. He said his account in the first paragraph of the testimonial was a reflection of his view of himself prior to VAX-D treatment. He said that the people at VAX-D showed him a video and told him that surgery was a possibility for him.

49. He said that he did not remember talking to any medical practitioner before August 1999 about surgical procedures relating to his back. He said he never received an invoice from VAX-D. He agreed that the arrangement outlined in the letter from VAX-D to his solicitors (Exhibit R4) reflected his understanding of the agreement between himself, VAX-D and his solicitors.

50. In cross-examination the Applicant said that he was receiving higher remuneration as a nightsorter than he would as a postal delivery officer because of shift penalties.

51. The Applicant told Mr Skinner, Respondent's counsel, that he had stiffness in his neck, back and shoulders before the March 1992 incident (Ex A4). He thinks he saw a chiropractor for help. He was uncertain whether he had seen a doctor after the 1992 incident and whether he had lodged a compensation claim.

52. The report of the 1994 incident (Ex A5) suggests that the Applicant did not know whether that was a recurrence of a previous injury. He had no time off then. He had no treatment and was unsure if he had claimed compensation.

53. The Applicant's only treatment for his back between 1994 and 1997 was from a chiropractor.

54. The Applicant's back pain in 1992, 1994 and 1997 was in roughly the same region, the middle to lower back. He could not say whether it was "the same pain", however.

55. Mr Skinner quizzed the Applicant about the November 1997 incident. He referred to T10, a report by Dr Sokolovska, Mr McConkey's general practitioner, dated 13 December 1997. She recounts the history of the incident as she recorded it and does not mention that the Applicant bent low immediately before the onset of pain. She says that the pain came on at the end of the shift. She had seen him on 4 November 1999, the day of the incident. Physiotherapist Anita Bout (T12) was also said to describe the onset of pain as occurring at the end of the shift. She does, however, say, "He reported pain at the end of his shift with pain bending to reach into a mailbox and getting off his bike" (T12/47). Dr McGill, the rheumatologist (Ex R1), recorded no specific incident as having been reported to bring on the pain. The Applicant was unable to say whether the pain had a gradual or acute onset. He said there was some stiffness already present but that he had greater pain after his shift. The Applicant left open the possibility that the pain developed gradually through the shift.

56. Mr Skinner noted that the Applicant had injured his shoulder bodysurfing, a very physical activity. The Applicant saw it as appropriate to engage in bodysurfing despite his back problems. His back pain was not stirred up when he hit a sandbar.

57. Mr Skinner asked Mr McConkey about the VAX-D program. It involved travelling from Illawarra to Ryde. It cost $6,000. The Applicant had agreed to pay the $6,000, if successful before the Tribunal. Otherwise he will owe nothing. It later emerged that VAX-D offered the Applicant this deal when he said he had to withdraw from the treatment for lack of funds. He had some 21 VAX-D sessions between 17 June 1999 and 30 July 1999 (Ex A3).

58. The Applicant said that he has no treating specialist for his back. He has had VAX-D, physiotherapy and chiropractic assistance. He last had VAX-D treatment in July 1999 (Ex A2). He had written a testimonial dated 17 August 1999 for the VAX-D promoters (Ex R4). He said in the testimonial that surgery had been presented to him as an option. However he told Mr Skinner that he was not too sure that anyone had suggested back surgery to him at that time. He believes that the possibility of surgery has been broached even if not recorded by doctors in their notes.

Medical Evidence

59. In a medical certificate dated 4 November 1997 Dr Sokolovska stated that the Applicant was unable to go to work for three days from that day due to lower back pain (T3/4). Her clinical notes of that day (Ex R6) show the Applicant reporting stiffness in the back and severely restricted movement.

60. On 5 November 1997 the Applicant consulted physiotherapist Anita Bout (T3/6). This was a referral by Dr Sokolovska. Ms Bout determined that the Applicant would require 21 to 40 treatments and would return to full functional ability.

61. On 6 November 1997 Dr Sokolovska wrote in a medical certificate that the Applicant had suffered a musculo-ligamentous injury to his lower back (T3/7). Her clinical notes of that day (Ex R6) stated that his condition had slightly improved. Her notes of 7 November 1999 stated that he was much improved. She wrote a further certificate on 10 November 1997 stating that the Applicant would be fit to return to work with limitations on 12 November 1997 (T3/8). Her clinical notes of that day (Ex R6) state that he was having some difficulty getting up. In a certificate dated 19 November 1997 she wrote that he was unfit for work between 19 and 25 November 1997 (T3/9).

62. On 25 November 1997 she wrote stating that he would be unfit for work between 25 and 30 November 1997 and could return to work with limitations on 1 December 1997 (T3/10). Her clinical notes of that day (Ex R6) indicate that the Applicant still stiffened on flexion. All the above certificates had the same diagnosis.

63. On 2 December 1997 Mr Ian Simpson conducted a workplace assessment for the Applicant (T7). He indicated that the Applicant should perform primary sorting/streeting and plugging in, and for only 4 hours a day. He suggested that with medical approval the Applicant could upgrade to 6 hours a day between 8 and 12 December 1997 and to normal hours on 15 December 1997.

64. On 9 December 1997 Dr Nikolich reported on x-rays indicating no significant abnormalities in the lumbosacral spine (T9).

65. On 10 December 1997 Ms Bout wrote a letter to the Respondent indicating that there was a definite link between the Applicant's work and his injury (T12). She cited in particular the repetitive bending required in his work, his 20 years of working and his height for one required to ride on a small scooter.

66. On 13 December 1997 Dr Sokolovska wrote a letter to the Respondent (T10) indicating that there was a strong possibility that the Applicant's lumbar injury was work-related.

67. Dr Sokolovska's clinical notes (Ex R6) of 15 November 1997 state that the Applicant mentioned having trouble bending and getting up from a chair.

68. On 19 December 1997 Dr Sokolovska wrote a certificate stating that the Applicant was suffering from lower back pain and would have been unable to work for 10 days from 1 December 1997 (T3/12).

69. On 27 January 1998 Dr Sokolovska wrote a certificate referring to the same injury as before and stating that the Applicant could return to work with limitations on 2 February 1998 (T3/12). The limitation related to trial work on a motorbike for limited hours.

70. A physiotherapy review of 5 February 1998 suggested that the Applicant needed to improve back strength and posture. Ms Bout estimated that the Applicant would need one to 20 further treatments (T3/13).

71. On 20 February 1998 Ms Bout wrote to Dr Sokolovska indicating that the Applicant had a problem in his foot and would need an x-ray to look for a stress reaction (T17). She wrote that he should not be walking to deliver the mail.

72. On 23 February 1998 Dr Sokolovska wrote a medical certificate stating that the Applicant had suffered a possible fracture of his 4^th left metatarsal bone (T3/14). She wrote that he could return to work on that day with restricted walking when delivering mail.

73. On the same day Dr Li wrote an x-ray report on the left foot indicating that there was no fracture or bony lesion (T18).

74. On 25 February 1998, Dr Sokolovska wrote a certificate stating that the Applicant had a bone scan test that morning and was unable to work that day (T3/15).

75. On 6 June 1998 there was a physiotherapy review. Ms Bout wrote that the reintroduction of postal bike riding affected the Applicant's recovery by causing stiffness. She still suggested one to 20 further treatments (T3/16). The Applicant was reviewed again on 10 August 1998 when Ms Bout wrote that a permanent mix of two hours on the bike and 2.5 hours walking influenced the course of his recovery. He still needed one to 20 more visits.

76. On 1 September 1998 Dr Sokolovska wrote a certificate diagnosing the Applicant with a soft tissue injury to his left knee (T3/18). The cause of the injury as indicated by the Applicant was gym work on the knee. She stated that he was suitable for work from 2 to 9 September 1999 only if he did not ride, walk for hours or turn on his left knee.

77. On 2 September 1998, Ms Bout commenced physiotherapy treatment on the Applicant's left knee (T3/19). She anticipated one to 20 treatments and a return to full function.

78. On 9 September 1998 Dr Sokolovska completed a certificate diagnosing the Applicant with soft tissue injury to the left knee and stating that he would be able to return to work with the above limitations on the next day (T3/18). She completed a further certificate on 14 September 1998 indicating the same except the return to work date was 17 September 1998 (T3/21). Another was completed in the same terms on 25 September 1998 with the dates for limited working set at between 26 September and 10 October 1998 (T3/22).

79. On 22 November 1998 Dr Rossi completed a medical certificate indicating that the Applicant had suffered a fractured right clavicle (T3/23). He would be unable to return to work from 22 November 1998 to 3 January 1999. Dr Rossi completed another certificate on 3 January 1999 indicating that the Applicant would not be able to return to work until 8 January 1999 due to a rotator cuff tissue injury (T3/25). He wrote another on 8 January 1999 indicating that the Applicant would not be able to return until 31 January 1999 due to the two injuries above. He also stated that mail sorting may be suitable but there could be no lifting above 5 kg.

80. In her clinical notes of 9 January 1999 Dr Sokolovska writes of the Respondent refusing liability for the Applicant's injury. Her notes of 23 January 1999 indicate that the Applicant still suffered from back pain in the morning (Ex R6).

81. On 15 February 1999 Dr Sokolovska completed a certificate indicating that the Applicant could not work on that day due to chronic lower back pain. In her clinical notes of that day she wrote that he should mix his walking with only two hours on the bike (Ex R6). On the next day in a certificate she extended the number of days he was unable to work to four (T3/28). On 22 February she wrote in similar terms but added that he should be on restricted duties with no motorcycle riding and would be unable to work for 14 days from that day (T3/30).

82. The report by podiatrist, Mr M Cambareri, on 5 March 1998 (T21) states that there was an injury to the fourth metatarsal of the Applicant's left foot. He said that the injury was similar to that of a stress reaction.

83. In a report dated 9 April 1998 Dr Wilding, orthopaedic surgeon, stated that examination of both feet of the Applicant revealed pes planus (T24). He stated that the Applicant had made a satisfactory recovery from the musculo-ligamentous strain of his lower back. He further stated that there is no ongoing disability in the Applicant's lower back or left foot as a consequence of his work as a postman. He did state, however, that it would be appropriate if the Applicant's work could be alternated between motorcycle and walking beat deliveries.

84. On 5 May 1998, Ms Bout wrote a letter to Dr Mills (Ex R7). She stated that the Applicant's main problem was that his posture had developed so as to compensate for the limitations associated with the small bike he was riding. She also stated that she did not think his movement would get much better than that he achieved in her last treatment but his posture and abdominal strength had improved.

85. On 8 May 1998 Dr Mills, specialist in occupational medicine, wrote a report following his examination of the Applicant on the previous day. He noted that the Applicant's foot pain had improved with podiatry to the extent that the Applicant could do a mixed motorbike and walking beat. The walking component varied from one to three hours and the motorbike component between a half and three hours. He said the Applicant reported low back pain after approximately two hours on the bike. The doctor reported that there had been an intermittent interscapular pain after riding a motor bike for the last four years.

86. On examination the doctor noted that forward flexion was within 10cm of the ground. His opinion was that placing such a tall man on duties involving small motorbikes was a poor combination. He recommended that the Applicant be considered unfit for duties requiring frequent bending and twisting movements. Further, the Applicant should avoid riding the standard Australia Post motorbike for more than two hours. Any task he performed should be ergonomically matched for his height. He should participate in an exercise program.

87. On 29 June 1998 Ruth Wylie, a rehabilitation counsellor, performed a workplace assessment for the Applicant (T26). It was recommended that he do 2.5 hours of walk beat using a buggy and two hours on the motorcycle. He was to be encouraged as much as possible to raise himself from the motorcycle seat when negotiating rough terrain. When delivering mail to low letterboxes he should alight from the motorcycle and squat to place the mail into the aperture. It was also recommended that his sorting frame be re-adjusted to suit his needs requiring him to work between hip and shoulder level only. It was also recommended that he go on an exercise program.

88. Noreen Parrish conducted a fitness assessment profile for the Applicant on 7 July 1998 (T28). The conclusions of this assessment were that the Applicant had a high body fat rating, normal blood pressure, average cardiovascular endurance and fair flexibility and strength.

89. On 17 September 1998 (T35) Dr Chapman wrote a report following x-rays of the Applicant's left knee. He noted that there was no evidence of a joint effusion, that the joints were normally aligned, that there was no evidence of an acute or recent bone injury but that the soft tissues remain remarkable.

90. On 21 September 1998 (T36) Dr R H Gray, orthopaedic surgeon, wrote a report on the Applicant. He noted that there was no effusion, but a full range of movement and the knee appeared stable. There did appear to be specific tenderness over the antero-medial joint line and some tenderness more inferiorly. He suggested a MRI scan, and that the Applicant modify his exercise program to avoid any knee extension work. He also stated that the Applicant was fit to continue with his then current level of duty.

91. On 29 September 1998 (T37) Dr Chapman took more x-rays. In his report he commented that there was a small, presumed bursal fluid collection adjacent to the tendon insertion for the lateral gastronemius muscles. He noted no other abnormality.

92. On 8 October 1998 (T38) Dr Gray wrote a further report on the Applicant and his left knee. He referred to the recent MRI scan report showing no tear of the medial meniscus on the left and no other particular abnormality. Clinical reassessment showed tenderness over the medial joint line and the proximal antero-medial aspect of the tibia. He asked the Applicant to restart an anti-inflammatory course, continue with his physiotherapy regime and maintain his present level of duties.

93. A physiotherapy review by Australia Post physiotherapist Christopher Maher on 20 October 1998 (T39) found a number of problems. These were, first, that claims of improvement were contradicted by comparison of numbers in the review form. Second, there were vague qualifications of treatment effects. Third, the consultation has extended beyond that requested. He recommended that the consultations be limited to 10 more hours only.

94. Dr Gray reported again on 22 October 1998 (T40) where he said that a recent injection into the area of maximal tenderness over the proximal tibia had relieved most of the pain though there was still some residual tenderness. He suggested that physiotherapy be tailed off and that any further review be conducted on a symptomatic basis only. He stated that the Applicant was fit to maintain normal duties.

95. Dr Wilding wrote a further report on 8 December 1998 (T44). He stated that examination of the Applicant's knee revealed it was stable and non-tender with a full range of movement. He stated that examination of the back showed a mild narrowing of the disc above the transitional disc which in this case is the L4/5 disc. He stated that, apart from a spinal exercise program, there was no need for further treatment of this. He said that the Applicant no longer needed treatment for the right knee and that his left foot no longer presented a problem. He stated that the Applicant's employment with the Respondent resulted in a chronic musculo-ligamentous strain in the back. However, once he recovered from his fractured right clavicle he should be able to return to unrestricted duties as a postal officer.

96. On 15 February 1999 Dr Sacks administered a CT scan of the lumbar spine (T46). He noted that in L4/5 "a large broad base central disc protrusion is seen with indentation of the anterior aspect of the thecal sac. There is mild facet arthrosis with mild thickening of the ligamentum flavum. There is no lateral recess or foraminal stenosis".

97. On 24 February 1999 Dr Mills in his history stated that the Applicant suffered a sudden onset of back pain on 2 November 1997 (T19). He noted the pain as unchanged for 12 months with it being intermittent, though the Applicant was never out of pain for more than a day. The Applicant had reported that pain increased with prolonged bending or riding a motor bike. He noted that the Applicant suffered a knee injury as a result of a work rehabilitation exercise program but that this appeared to have resolved. He also noted that the Applicant suffered a fractured collar bone in October 1998.

98. Dr Mill's assessment was that precise history taking was difficult and at times contradictory. He recommended that the Applicant continue on a long term exercise program and that he be enrolled in a group pain management program. He recommended that if the Applicant reported an increase in symptoms after riding then he should be considered unfit for riding. A return to such duties would increase reports of back discomfort.

99. Dr Sokolovska's clinical notes of 12 March 1999 (Ex R6) indicate that the Applicant had intended to return to the gym exercises. Her notes of 9 April 1999 show that, though he was working, he was not riding a motorbike. Her notes of 20 April 1999 show that the Applicant was recommended to see a solicitor, though it is unclear who made the recommendation.

100. On 30 June 1999 Ms Wylie wrote a rehabilitation closure summary (Ex TD2, T2). Reference was made in this summary to a review report by Ms Heidi Van Mourick on 1 July 1998 where she recommended that the Applicant undertake a supervised exercise program.

101. On 28 July 1999 a certificate was sent from VAX-D indicating that he attended the centre on 17 June 1999, and most days of July 1999 (Exhibit A3). On 30 July 1999 Dr Smart of VAX-D wrote in a report that the Applicant had experienced greater flexibility and found walking easier as a result of the VAX-D course (Ex A2).

102. On 5 August 1999 Dr McGill (Ex R1) wrote a report following examination of the Applicant. In the history of the complaint the doctor wrote that the Applicant told him he had always had stiffness in his back. He was told of the incident where the Applicant's bike slid backwards down a driveway. He said that he been taken off a motor bike delivery run in Bulli five or six years ago because of back discomfort. He also recalled a time during 1997 when he was aware of a tight burning sensation in his low back and may have been off work for a few days. In his oral evidence Dr McGill specifically stated that he did not get a history of a specific incident occurring in 1997. The doctor wrote that the Applicant tended to provide a slow history and had poor recollection.

103. Dr McGill was asked when giving oral evidence to assume he had taken a history with a specific incident in 1997 as stated by the Applicant, and also the incident where the Applicant hurt himself whilst lifting a bag. He was asked to then state whether this history would affect his conclusions. He thought it would not for a number of reasons. First, there was evidence of earlier degenerative change. Second, he would have expected the Applicant to have more significant problems soon afterwards. Third, he thought that the general practitioner's comments were the most reliable and these did not record a specific incident. Last, no incident was mentioned to him during examination.

104. Dr McGill stated that the work of a postal delivery officer, in the absence of a specific injury, would not contribute to a condition such as that suffered by the Applicant. He stated that it could aggravate the symptoms but not change the pathology of the process. He said that once the motorbike riding ceased then the aggravation would settle. He said, however, that motorbike riding could not cause any permanent change in the Applicant's back.

105. Dr McGill stated that, if an invertebral disc and annular fibrosis are already weak, then the back would be more susceptible to further injury. He said that none of the events occurring in 1992, 1994 and 1997 would have caused an incremental advance in the disc pathology of the Applicant. Examination by the doctor showed a full range of back movement in all directions. His investigations of the x-rays, scans and MRI of the Applicant showed to him no significant abnormalities. He was asked about the CT scan taken on 15 February 1999 (T46) and the plain x-rays of 9 December 1997 (T9). He conceded that without a CT scan before 1997 it would not be possible to determine the exact nature of degeneration. However he stated that, if there was mild disc space narrowing, then this would indicate that there was some degeneration at least 12 months prior to the scan. There was evidence of a congenital anomaly in a mild narrowing of the disc above the transitional disc. He also said that there could be a one year lag between acute disc changes and changes in the plain x-ray.

106. His current symptoms, as recorded by Dr McGill, were neck pain, and that he felt a little "tight in the lower back" in the morning. Though specifically asked, he made no mention of pins and needles. He said that his current activities were generally limited although he was coping with work duties. He said that he could handle motor cycle duties if it was not up steep terrain. He said that it would be possible, although unlikely, that the Applicant would be limited in his work by the pain he suffered whilst undertaking delivery duties. He did not think that the height of the Applicant and consequent adjustments the Applicant made while riding would have caused a significant aggravation of the Applicant's spinal condition. He agreed that someone with a condition like the Applicant's could have good days and bad days. Dr McGill in oral evidence said that a person could injure a disc by bending down low to a mailbox.

107. In summary, Dr McGill said that the Applicant had not suffered any significant injury in relation to his lower back. The only condition that he did suffer from was degenerative disc disease and it was not probable that these disorders were due to his employment with Australia Post. In his oral evidence the doctor stated that there was evidence of a congenital anomaly at the thrombo sacral junction of a transitional vertebrae. He said that this was common and predisposes a person to the development of lower back symptoms.

108. Dr McGill thought that the Applicant could make a graduated return to full normal duties. He did not believe that motor bike riding could cause any permanent change in his lower back. He said that, despite the general degenerative nature of the Applicant's spinal disease, the overall prognosis was good and there was no impairment in relation to any table.

109. On 12 August 1999 Dr Maxwell wrote a report based on his examination of the Applicant (Ex R2). In the history of the complaint he wrote that the Applicant suffered an injury on 21 October 1997 [which would appear to be an incorrect date] whilst bending to put a letter in a low letterbox. He said that currently the Applicant is doing daily exercises and is scheduled to have a CT scan.

110. Dr Maxwell stated that the Applicant told him at the time that he no longer had back pain and generally felt a lot better. He stated that the Applicant's investigations showed no abnormalities or pathologies.

111. His diagnosis and opinion were that, if the Applicant develops any pain while riding the bike, it is due to his excessive height and posture as opposed to any injury. He also considered that the Applicant's prognosis in the long-term was excellent, and that under the Comcare guide he had no permanent back impairment.

112. On 1 September 1999 Dr Giblin wrote a report based on his examination of the Applicant (Ex A1). He stated in his history that the Applicant suffered an injury on 4 November 1997. The history he took went back as far as 1992. In oral evidence he admitted that there was nothing in the history detailed in his report which indicated that he knew of the Applicant having to travel over hills and uneven surfaces. Nor did he find out exactly what type of bike the Applicant was riding. However he said that he was told of the ride terrain in the examination and he assumed that the Applicant rode a "postie 95 or 110". He said that he was not told about the Applicant riding a BMW 750 but that this would not have affected his report, unless it was a bike ridden off-road. He said that, although he had not specifically looked at the beats around Bulli, Corrimal and Wollongong, he would assume that they were normal footpaths with ramps, steps and uneven ground. He was familiar with the fact that Bulli was one of the steeper areas of New South Wales. Knowing this had not affected his judgment at all.

113. He reported that the x-rays and investigations showed focal disc disease at L4/5 with sacralisation at L5. He said in oral evidence that he observed that the Applicant could bend over and touch his toes with 90 degrees of straight leg raised bilaterally. However the active extension of the lumbar spine was slightly limited and there was a general tenderness about L4. He agreed that this was the extent of the restrictions. He further agreed that the Applicant would rarely have to fully extend his spine in everyday life. Thus he considered the permanent impairment was between minor and moderate.

114. His diagnosis was that the Applicant suffered a soft tissue injury to the back consistent with radiological findings at L4/5. He said that, although the soft tissue injury effects could be assumed to have passed, it may have healed with altered tissue, which is imperfect and the subject of his complex symptom formation. Despite not having seen the Applicant since August 1999, he did not expect the condition to have changed.

115. Doctor Giblin stated that the incident that occurred on 4 November 1997 was not catastrophic but that it was a trigger. If one was to assume that the incident had not occurred, then the Applicant's condition would be described as the promotion and aggravation of an underlying congenital condition. However he said that, despite the Applicant not specifically reporting an incident to Dr Sokolovska, from his perspective the symptoms suffered by the Applicant were consistent with a soft tissue change of a material nature.

116. His prognosis was that the symptoms would persist for the foreseeable future, being present on an episodic basis, preventing repetitive bending, lifting, twisting and jarring, and unexpected activities such as motorcycle riding. In his oral evidence he said that it would not be inconsistent with his examination and findings for the Applicant to be sometimes able to reach a long way down his body and at other times have difficulty simply leaning over a sink. He also said that the Applicant's employment history in postal delivery would have significantly contributed to his injury.

117. His opinion was that the Applicant had a 10% whole person impairment in accordance with the Comcare Guide as a result of injury to the low back. He specifically looked at table 9.6. He came to this view because he thought that, although the Applicant would at times have a reasonable degree of normal agility, for the most part, in terms of domestic, recreational and occupational activities, there would be a functional permanent restriction in accordance with the 10 % rating.

118. He believed that VAX-D would be a reasonable one-off procedure as opposed to a long-term continuing treatment.

Other Evidence

119. On 10 November 1997 Mr Phil McInerney completed a witness statement indicating that he saw the Applicant returning to the delivery centre on 4 November 1997 and observed or heard the Applicant complain of soreness in the lower back (T4).

120. On 17 August 1999 the Applicant wrote a testimonial for VAX-D (Ex R4) stating that with the assistance of their treatment he was able to live life without back pain as long as he was aware of his limitations.

Final Submissions

121. Mr Skinner presented the Respondent's final submissions. The Applicant's statement of facts and contentions (Ex SFCA) relied on an event that occurred on 4 November 1997 as the basis for the Applicant's claim for compensation. There was no reference to incidents occurring in 1992 and 1994. In the course of the hearing the Applicant's claim became one based on the nature and conditions of the Applicant's work. This might be all very well, but Dr Giblin had not been retained on that basis to provide his report (Ex A1). Likewise, Dr McGill had to meet this set of arguments without warning when he gave oral evidence before the Tribunal.

122. The Respondent asserts that there was no frank incident on 4 November 1997. The Applicant reported no such incident to Dr Sokolovska (Ex R6). He told her that he had felt stiff on 3 November 1997. He mentioned postal delivery on a motor bike and that this involved constant bending. On 3 November he went home. He woke on 4 November feeling no better but went to work. After one or two hours of mail deliveries on 4 November he felt worse stiffening in his lower back. He could not finish the deliveries. She recorded previous injuries to his upper and mid spine four years earlier.

123. Mr Skinner referred to Ex R7. Ms Bout wrote to Dr Mills on 5 May 1998 saying that Mr McConkey could remember no specific incident.

124. The sites of the stiffness in the incidents in 1992, 1994 and 1997 are unclear. There is no clear evidence of a consistent pattern. Mr Skinner encouraged the Tribunal to endorse Dr McGill's assessment that there is an underlying degenerative condition that is prone to temporary flare ups, especially brought on by motor cycle work. By the time of the hearing the aggravation stemming from November 1997 had ceased. There should be no ongoing compensation liability. The effects had ceased. The Applicant now has a different job within Australia Post. The decision under review should be affirmed. The Respondent relies also on the opinions expressed by Drs Wilding (T44) and Maxwell (Ex R2) which support Dr McGill's assessment that the Applicant has experienced a temporary aggravation.

125. As regards the permanent impairment claim, Dr Giblin referred to Comcare table 9.6. Dr Giblin's 10% assessment was not correct. The Applicant's impairment does not reach a 5% figure. He would have had to lose up to a half of the normal range of movement in the thoracolumbar spine. In any event, any impairment is not work-related.

126. Mr Robinson summarised for the Applicant. He commenced by pointing out that a nature and conditions argument had been foreshadowed in the Applicant's statement of issues (dated 3 August 1999). This document nominated as an issue whether the Respondent acknowledges that the Applicant has suffered an aggravation or further injury to his lower back as a result of his use of motor cycles during his employment with the Respondent as a postal delivery officer. Such a construction might be read into the Applicant's statement of facts and contentions also. The importance of the nature and conditions became clear when Dr Giblin was cross-examined. He saw years of riding a motor cycle as of great significance.

127. Mr Robinson referred to Dr Sokolovska's clinical notes for 10 November 1997 (Ex R6). The Applicant had difficulty getting in and out of his chair. That was the day when he lodged his compensation claim. The Applicant had waited for the pain to lift but it had not.

128. Mr Robinson pointed to Dr Maxwell's observation late in 1999 that the Applicant had a wasted left thigh (Ex R2/3). That is a significant sign. The reviewable decision was that effects had ceased in both the back and left knee as of January 1999. Dr Maxwell observed a clinical sign referable to knee or foot injuries in 1999. That is enough to set aside the decision under review.

129. Mr Skinner had suggested that Dr Wilding's diagnosis of musculoligamentous strain in the lower back (T44/117) equated to Dr Giblin's diagnosis of soft tissue injury (Ex A1/3). Mr Robinson said that these are not the same. Dr Giblin was referring to the soft tissue being the disc in Mr McConkey's back, not the muscles or ligaments attaching to the vertebrae. He mentioned that Dr McGill's diagnosis was different again, degenerative disc disease (Ex R1/4) and that Dr McGill had been aided in his diagnosis by his access to a CT scan.

130. Mr Robinson called into aid some comments by Dr McGill. He had said in oral evidence that a disc with a pre-existing weakness can be adversely affected by a fairly minor trauma. He reasoned from this that Dr McGill was wrong to argue that an aggravation was necessarily temporary.

131. The Tribunal should accept that the Applicant had an onset of pain in November 1997 and that he still has pain on an episodic basis. There is a cause of this pain in the use of motor cycles over a number of years. The aggravation has persisted over the years and not gone away.

132. As regards permanent impairment, it should be noted that the Applicant saw Drs McGill and Maxwell quite soon after finishing his beneficial treatment with VAX-D (ie 5 August 1999 and 12 August 1999, respectively). His range of thoraco-lumbar movement may have been better for Drs McGill and Maxwell than for Dr Giblin, whom he saw on 30 August 1999.

133. Mr Skinner replied by taking up the point in paragraph 127 above where Dr Sokolovska had noted that the Applicant had difficulty getting in and out of a chair. Mr Skinner referred to the notes in Ex R6 relating to 6 and 7 November 1997. On 4 November the Applicant had found getting into and out of a chair difficult. On 6 November the doctor records a slight improvement. He had been to physiotherapy. On 7 November he was much improved. By September 1998 there was a flare up of symptoms. This accords with what Dr McGill said would occur.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

134. The Tribunal finds that on 4 November 1997 the Applicant sustained an injury within the meaning of "injury" in s 4(1) of the Act. This was initially an aggravation of a degenerative condition in the lumbosacral region as found by the Respondent on 29 January 1998 in T13. Later, the injury was redefined to include also soft tissue injury to the left knee (16 September 1993, T34). There is no dispute between the parties as regards these findings. The Applicant claimed in respect of these injuries and the Respondent admitted the claims.

135. The Tribunal finds on the balance of probabilities that there was no single incident on 4 November 1997 that precipitated the lumbosacral effect. The Tribunal was impressed by Mr Skinner's synthesis of the evidence to this effect in paragraphs 122 and 123 of these reasons. The Tribunal finds that the initial injury was a result of the nature and conditions of the Applicant's work for the Respondent. There is significant evidence that the Applicant was experiencing lumbosacral pain and/or stiffness well before November 1997. Dr McGill (Ex R1) obtained a history that the Applicant had always had stiffness in his back. Dr Giblin (Ex A1) obtained a history of stiffness in the back in 1992. Physiotherapist Bout (Ex R7, May 1998) was told of some occasional upper lumbar spine pain over the years, although the recent pain had been much worse. Dr Wilding (T24) was told that over several years to April 1998 the Applicant had developed increasing aching in his lower back which he related to riding a motor cycle in a stooped position. There had been an acceleration of symptoms on 4 November 1997.

136. Dr McGill considered that the Applicant suffers from a congenital anomaly at the lumbosacral junction and disc degeneration at the level above the transitional disc. He gauged this from, amongst other evidence, radiological findings (Ex R1/4). He considered that the Applicant's condition was not, and could not be, caused by his Australia Post work, although that work could cause increased discomfort. There was no evidence to suggest that the Applicant's work for Australia Post had caused a permanent change in the lumbar spine.

137. Dr Giblin also considered that the Applicant has an underlying congenital condition. However, he considered that the Applicant's actions on 4 November 1997 were a trigger to increased pain. He considered that the effects of the soft tissue injury may have passed but the tissue may have altered to become imperfect.

138. Dr Wilding (April 1998, T24) considered that the Applicant sustained a musculo-ligamentous strain of his lower back but had made a satisfactory recovery. Both his back and foot problems had resolved. Later, in December 1998, Dr Wilding (T44) diagnosed a chronic musculo-ligamentous strain of the back which may have aggravated a pre-existing degenerative change in the back. The Applicant's Australia Post work had not made any material contribution to the development of degenerative changes to the lumbo-sacral spine. The work caused a temporary aggravation that ceased.

139. The medical evidence appears to agree that the Applicant has a congenital spinal condition, that there is disc degeneration, and that his work caused an aggravation of the symptoms. Dr Maxwell (Ex R2) in August 1999 found no abnormality but he is in a distinct minority and tends to regard the congenital condition as within normal bounds. Only Dr Giblin was prepared to identify a permanent injury attributable to the Applicant's work.

140. The Tribunal must make findings as to the correctness of the Respondent's decision to cease liability in relation to the back and left knee on 6 January 1999 (T45) and the affirmation of that decision on 31 March 1999 (T54). The Tribunal finds that these were the correct or preferable decisions.

141. The primary decision-maker relied primarily on the report by Dr Wilding at T44 dated 8 December 1998. As discussed above, Dr Wilding considered that the Applicant had suffered a temporary aggravation that had ceased. There was no timely contrary evidence. The last relevant medical certificates had been issued in September 1998 (T3/22 relating to the left knee, and that permitted a return to modified duties) and February 1998 (T3/12 relating to the lower back, and that permitted a return to modified duties).

142. Following the primary decision, the Applicant was given certificates for five days off work with chronic lower back pain (T3/27-29, 15-19 February 1999) and for 14 days on restricted duties because of chronic back pain (T3/30, 14 days commencing on 22 February 1999). The Applicant referred to these matters in his request for reconsideration on 16 February 1999 (T47).

143. Dr Mills (T49A) on 24 February 1999 ascertained that the Applicant had had consistent back pain for 12 months but that he worked on with the pain. The pain is consistent but intermittent and is worse with motor cycle riding and if he reduces exercise. On examination the Applicant did not appear to be in significant discomfort and he had a good range of movement. Dr Mills saw him as fit for work but perhaps not fit for riding motor cycles.

144. The material in paragraphs 142 and 143 was before the delegate who made the reviewable decision. On the state of that evidence the reviewable decision was justifiable. The back problems reported in February 1999 appear to be another temporary flare up, possibly caused by the Applicant's work. However, they appear extremely short-lived as symptoms of any intensity and the Applicant's doctor is happy that he returns to work on restricted duties after only a few days. This may suffice for a short period of incapacity payments but does not suggest that the Applicant's condition generates any ongoing incapacity in accordance with s 4(9) of the Act. The Tribunal considers that the Applicant is not fit for duties involving the delivery of mail on a motor cycle. However, this is because of his congenital spinal condition, his height and his posture. It is not due to any injury sustained in his employment with the Respondent. The Applicant's evidence was that he has not lost salary on any ongoing basis as a result of his injury or disease, be it work-related or not. He receives shift penalties as a night sorter, which means that he receives a higher salary than he did as a postal delivery officer.

145. There is nothing in the later evidence to suggest that this picture has altered. Indeed, the Applicant told Dr Maxwell that he no longer had back pain in August 1999 (Ex R2/3).

146. The Tribunal notes Mr Robinson's reliance on Dr Maxwell's observation of a wasting in the left thigh when he saw the Applicant in August 1999 as a significant objective sign referable to the left foot and knee injuries (see paragraph 128 above). Dr Maxwell in Ex R2 attributed this to disuse of the limb stemming from the knee and foot injury. He saw it as only "some slight wasting" and considered that the situation would improve with time. The Applicant complained to Dr Maxwell of no ongoing problems with the left lower limb. On physical examination the Applicant was able to move freely about the room. The Tribunal considers that Dr Maxwell's finding does no more than confirm that the Applicant had experienced left lower limb problems, as the Respondent had earlier accepted.

147. Turning to application number N2000/207, the Tribunal finds that the Applicant has no compensable permanent impairment sufficient to attract a payment under ss 24 and 27 of the Act.

148. Several doctors have provided relevant opinions. Dr Maxwell (Ex TD2, T3) found no permanent impairment. Dr McGill (Ex R3) found no impairment in relation to any table in the Comcare guide. Dr Giblin (Ex A1) alone found a 10% permanent impairment in accordance with the Comcare guide. Dr Giblin did not address the Comcare guide in any detail in his report but in oral evidence he referred to table 9.6, column 2. Mere x-ray changes in the thoraco-lumbar spine result in a 0% rating. To reach a 5% rating on that table the Applicant must demonstrate "minor restrictions of movement" in the thoraco-lumbar spine. To reach Dr Giblin's 10% there must be loss of "less than half normal range of movement" but, logically, this must be more than a minor restriction in movement.

149. For Dr Giblin, the Applicant's hips had full range of movement. The Applicant could bend over and touch his toes. He had 90 degrees straight leg raising bilaterally. Extension of the lumbar spine was "slightly limited at the extremes" with some tenderness at about L4. In the Tribunal's view it is difficult to see how these observations amount to anything more than minor restrictions of movement. The Tribunal finds that the Applicant has at best a 5% level of impairment. Even that level, in the Tribunal's opinion, is unrelated to any injury sustained at work. The Tribunal has accepted the opinions of Drs Wilding and McGill who regard the Applicant's compensable symptoms as evidence of temporary work-related aggravations of his underlying condition, aggravations that had ceased by January 1999. As the Act requires an impairment level of at least 10% before any sum can be paid under ss 24 and 27, the Applicant qualifies for no payment in respect of permanent impairment.

Conclusion

150. The Tribunal has found that the Respondent's decision to regard the effects of work-related injuries as having ceased on 6 January 1999 was the correct or preferable decision. The Applicant is therefore not entitled to any payments of compensation in respect of the relevant injuries as of that date.

151. The Tribunal has also found that the Applicant does not qualify for any payment in respect of permanent impairment.

Decision

152. The Tribunal affirms the decisions under review. The Applicant is not entitled to any costs associated with the two applications before the Tribunal.

I certify that the 152 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.

Signed: .....................................................................................

Associate

Date of Hearing 23 and 24 November 2000

Date of Decision 14 January 2002

Counsel for the Applicant Mr C Robinson

Counsel for the Respondent Mr B Skinner