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Administrative Appeals Tribunal of Australia |
Last Updated: 29 May 2002
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/1473
) N2001/267
GENERAL ADMINISTRATIVE DIVISION ) N2001/1356
Re David Corben
Applicant
And Australian Postal Corporation
Respondent
Tribunal Ms S M Bullock, Senior Member Dr J Campbell, Member
Date 22 May 2002
Place Sydney
Decision The Tribunal makes the following decisions: 1. In relation to matter N2001/267, the Tribunal sets aside the decision under review and substitutes its decision that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, liability continues for left sesamoid bone condition. Mr Corben is also entitled to compensation for reasonable medical treatment pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988. 2. The decision under review in relation to permanent impairment for the left lateral sesamoid bone condition (N2000/1473) is affirmed. 3. The decision under review in relation to the denial of liability for Mr Corben's chronic bilateral foot pain (N2001/1356) is affirmed.
..............................................
Ms S M Bullock Presiding Member
CATCHWORDS
AUSTRALIAN POSTAL CORPORATION - Workers Compensation - Bilateral Foot Pain - Sesamoiditis - Permanent Impairment - Nature and Conditions of Employment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss4, 14, 16, 19, 24, 27
AUTHORITIES
Australian Postal Corporation v Bessey (2001) 32 AAR 508
22 May 2002 Ms S M Bullock, Senior Member Dr J Campbell, Member
1. This is an application for a review to the Administrative Appeals Tribunal ("the Tribunal") by Mr David Corben ("the Applicant") of three reviewable decisions of the Respondent, the Australian Postal Corporation. The first reviewable decision, dated 7 September 2000 (T44, N2000/1473), affirmed the determination of a delegate of the Respondent dated 23 May 2000 (T39, N2000/1473), which denied liability under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 for stress fracture of the left lateral sesamoid bone.
2. The second reviewable decision, dated 14 February 2001 (T15, N2001/267), affirmed a delegate's determination dated 10 January 2001 (T13, N2001/267), which ceased liability for the condition of stress fracture of the lateral sesamoid bone. The reconsideration officer conceded that Mr Corben's employment, for a period which has since ceased, suffered a worsening of a pre-existing condition as discussed by Dr N W McGill, Consultant Rheumatologist and Dr C D Browne, Orthopaedic Surgeon. The officer noted that Mr Corben's ongoing complaints are inconsistent with the nature and conditions of his work.
3. The third reviewable decision, dated 7 September 2001, affirmed a decision made on 5 September 2001, which denied liability in relation to chronic bilateral foot pain (Exhibit R3 and R5).
4. A hearing was held in Sydney on 13 and 14 September 2001. Mr Corben provided oral evidence to the Tribunal, as did his partner, Ms Mikala Dwyer. Dr N W McGill, Consultant Rheumatologist, provided evidence to the Tribunal while telephone evidence was provided by Dr M Horsley, Orthopaedic Surgeon. Mr Corben was represented by Mr L T Grey of Counsel. The Respondent was represented by Ms R Henderson of Counsel.
5. The Tribunal took into evidence two sets of documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ( "T Documents - T1-T46, N2000/1473; T1-T15, N2001/267") and the following exhibits:
Exhibit No Description Date
A1 Report from Dr M Horsley, Orthopaedic Surgeon 17 April 2001
A2 Supplementary Report of Dr M Horsley 25 May 2001
R1 Supervisors Supplementary Statement 23 August 2001
R2 Claim for Rehabilitation and Compensation 23 August 2001
R3 Determination of Mr D Viquerat for the Australian Postal Corporation 5 September 2001
R4 Claim on behalf of Applicant 28 June 2001
R5 Reconsideration Determination by Mr M Nicholson, Litigation Section 7 September 2001
R6 Video of Applicant taken on 21, 27 and 28 July 2001
R7 Report of Observations by Mr S Hayward, Adroit Business Advisers , excluding information in square brackets, page 6 30 July 2001
legislation
6. A decision in this matter requires consideration of the provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
7. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of "injury" under subsection 4(1) which states:
"Interpretation
4. (1) In this Act, unless the contrary intention appears:
...
"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.
..."
8. Section 14 of the Act deals with compensation for injuries and as relevant states:
"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.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
...."
9. Section 16 of the Act deals with compensation for medical and other expenses and as relevant states:
"Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or
(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation--to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
..."
10. Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and states:
"Compensation for injuries resulting in permanent impairment
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.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, 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.
..."
11. Section 27 of the Act deals with compensation for non-economic loss and states:
"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.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
[$15,000 x A] + [$15,000 x B]
where:
A is the percentage finally determined by Comcare under section 24 to
be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
...."
issues
12. The issues in this matter are:
a) Whether or not Mr Corben is continuing to suffer an injury to his left foot within the meaning of section 4 of the Act, such that liability continues under section 14 of the Act;
b) Whether or not the Respondent is liable to pay compensation for permanent impairment and non-economic loss arising out of the Act;
c) Whether or not Mr Corben has suffered a bilateral foot injury arising out of the course of his employment with the Respondent and whether or not he is entitled to compensation pursuant to section 14 of the Act.
evidence of mr corben
13. Mr Corben was born on 27 December 1960. He completed secondary school to Year 12, obtaining the Higher School Certificate in New South Wales. Between 1979 and 1983, Mr Corben worked as a shop assistant and between 1983 and 1993, he worked as a taxi driver.
14. Mr Corben joined Australia Post in 1993. He worked for two years as a Postal Delivery Officer firstly at Rozelle and then at the Mascot Post Office. Mr Corben then worked in Leichhardt as a Postal Delivery Officer, where he was assigned a personal walking beat. Mr Corben stated that the maximum weight of the post bag was 16 kilograms and it would take two or three hours to deliver, sometimes longer in Annandale. The delivery time lessened however as he became more experienced.
15. Mr Corben told the Tribunal that he never had any problems with his feet previously and was a keen sportsman, playing cricket as a batsman, baseball and golf. He also had always been engaged in walking activities. When Mr Corben was a taxi driver, he would walk from Newtown to Mascot, to pick up the taxi. Mr Corben told the Tribunal that between 1995 and April 1997, he would play 18 holes of golf at various courses without having to use a golf cart. It would take him three to four hours to play 18 holes of golf, for example, at the Eastlakes course or at Waterloo. Mr Corben estimated that he was playing cricket once per month on average and was an opening batsman. He played basketball in summer from 1995 until approximately April 1997.
16. In 1995, Mr Corben's duties with the Australia Post changed. In this regard, he took on supervisory duties including dealing with operational matters and was in charge of 15 postmen at the Leichhardt Post Office. These duties were conducted indoors. Mr Corben was in this supervisory position until approximately April 1997. At that time, he was still playing golf, baseball and social cricket. In 1996, Mr Corben became a father.
17. In April 1997, there was a restructuring of the delivery groups within Australia Post. Mr Corben's supervisory position was abolished. Postmen were moved to the Waterloo Central Delivery Centre. Mr Corben took what he described to the Tribunal as a "backward step" to the position of the Postal Delivery Officer. Mr Corben's beat was in the Waterloo area, involving delivery to high rise apartments. It was not as lengthy as other suburban beats he had experienced, Mr Corben told the Tribunal.
18. In June 1997, Mr Corben was transferred to Rozelle. The delivery route was more hilly and he had to walk 800 metres before he actually started his delivery run. This walk was with a fully loaded post bag. The delivery time for this beat through the Rozelle/Balmain area was approximately three hours which included the initial 800 metre walk. Mr Corben stated that he conducted this delivery until 26 November 1997.
19. On 26 November 1997, Mr Corben described getting up for work. The day before he had experienced a "twinge" in his left foot as he was walking up some stairs at a friend's house at Coogee. He told the Tribunal that this felt like a stone bruise but he carried on. Mr Corben stated that he did nothing out of the ordinary that night but the next morning when he went to put his left foot on the floor, stepping out of bed, he experienced a sharp pain in his left foot. Mr Corben phoned work and explained that he would not be able attend work that day. Mr Corben described limping badly up to his general practitioner's rooms at Newtown and an X-ray was arranged for that day. Mr Corben described the pain as being centralised around his big toe. Mr Corben first consulted Orthopaedic Surgeon, Dr M Horsley, on 17 December 1997 and he stated that the problem had settled somewhat and seemed to be much better by December 1997. Mr Corben said that the pain was constant. When he put pressure on the left foot it hurt badly and was not like any pain he had ever felt as a child.
20. Mr Corben lodged an Incident Report with the Australia Post. His left foot although settled, did not really improve, he told the Tribunal. Mr Corben returned to indoor duties at Australia Post in the Service Centre. He kept his left foot elevated and the symptoms "calmed down" but when he put pressure on his left foot, it was painful. This set of symptoms continued for the next three months, he told the Tribunal. Mr Corben stated that eventually the pain improved, but he stated that it never went away completely. There was pain when his foot was on the flat but it was all right to walk on both of his feet.
21. Dr Horsley suggested orthotics for Mr Corben's shoes in approximately March 1998 and they were received in approximately May 1998. Mr Corben used the orthotics at that time for only a few days as they caused a great deal of pain.
22. Mr Corben discussed a rehabilitation program with the Australia Post in January 1998. He was still experiencing pain in his left foot. He did return to a walking beat at Rozelle, with Dr Horsley's recommendation, but only did half the walk for approximately one-and-a-half hours. Details of a graduated return to work program are contained at T45, N2000/1473, p137, and commenced on 9 March 1998. A report on 1 April 1998, indicated that Mr Corben was doing very well (T45, N2000/1473, p138). While this report indicated progress was being made, it seems that there was regression noted on 17 April 1998. There was also pain in the right foot by 30 April 1998, as reported by Dr Horsley (Exhibit A1).
23. Mr Corben described his working day during the rehabilitation program of undertaking half the postal delivery beat then doing indoor duties such as dispatch work and inputting data into the computer. Mr Corben was undertaking a full seven-hour day until May 1998. Mr Corben ceased the walking beat in May 1998. In about October 1998, Mr Corben injured his back when he lifted his baby daughter. He subsequently took six weeks off work because of his back injury. Mr Corben returned to work in approximately November 1998, but did not recommence on the hilly postal delivery beat. Mr Corben stated that during his six weeks absence from work because of his back injury, the pain in his right foot settled, but not so the left.
24. On 8 December 1998, a report in the Rehabilitation Case Memo stated that Dr Horsley had concluded that the back injury was not due to Mr Corben's earlier left foot injury. Mr Corben also told the Tribunal that he had received acupuncture for his left foot. By December 1998, Mr Corben stated that his pain had settled somewhat, but he was experiencing some pain in his heels.
25. In February 1999, Mr Corben recalled that he was delivering mail in Darley Street, Balmain. In March 1999 he was delivering for one and a half hours, but was still experiencing pain in his left foot. Mr Corben stated that he believed he had to push through the pain and just continue. Despite this, Mr Corben agreed that in March 1999, he had told Dr Horsley that he was enjoying his work.
26. On 30 June 1999, Dr J Chen, Occupational Physician, recorded that there was no evidence of painful spurs or plantar fasciitis (T31, N2000/1473, p84). Mr Corben stated that he had had plantar fasciitis of his left heel, but it resolved after a couple of weeks. He had had the symptoms of this condition when sitting down. In July 1999, Mr Corben ceased his Return to Work Program on the advice of Dr Chen. From July 1999, Mr Corben did not participate in a walking beat.
27. Mr Corben told the Tribunal that approximately two weeks after he started using orthotics for the second time, he experienced pain in his right foot. The left foot was not getting worse with the orthotics. Mr Corben believed that he had been protecting his left foot and was taking more weight on the right foot. When Mr Corben stopped the hilly walking beat, he noticed the pain settled. After this he would have pain free periods particularly when doing indoor duties, which he did for approximately half a day. Mr Corben also then reported experiencing problems of aching feet and pain across his toes. He also experienced calf pain when walking upstairs, carrying his daughter or when playing golf or undertaking an activity which required physical strength. He was now experiencing some calf pain when undertaking indoor duties.
28. In terms of right foot pain, Mr Corben stated that it was not the sharp pain he experienced in his left foot. Mr Corben also noted that currently, when he stops walking, he experiences pain in his left foot and it is better if he keeps moving. He also experiences a burning sensation on the soles of his feet. Mr Corben told the Tribunal that he first experienced the burning sensation over the whole of the soles of his feet within twelve months of November 1997. He experiences the sensation every day. It starts after he commences his walking and after prolonged activity. It does settle down for periods during the day and particularly settles at night, as he told Dr McGill (T42, N2000/1473, p114) on 25 August 2000. Mr Corben described experiencing pain in both feet and he still experiences this pain even when he undertakes less physical activity. The pain in his calves appears when he is using his calf and thigh muscles.
29. When Mr Corben gets up in the morning, he experiences pain in the shower, which continues throughout the day. He has concluded that this is due to the original left foot injury. The pain is at its worst on hard flat ground, for example, when Mr Corben walks around the supermarket. Mr Corben had attempted to return to a level postal delivery beat, but this continued to aggravate his left foot and he reiterated that it sometimes hurts when he stops walking. Mr Corben finds that if he now walked 400 metres this would be very painful for both feet.
30. Currently, Mr Corben's duties include full time computer /deskwork. He mostly uses the lifts between floors instead of stairs to minimise the time on his feet. Sometimes he will use one flight of stairs. If Mr Corben does too much, he has discomfort in both feet and they heat up.
31. In terms of treatment, Mr Corben stated that he last had physiotherapy approximately six months ago, before liability was denied by Australia Post. Physiotherapy gave him some hope but did not make a great deal of difference, he stated. The absence of physiotherapy has not made much difference at this time, Mr Corben told the Tribunal.
32. While prior to his left foot work injury, Mr Corben had extensive sporting involvement, he has now cut out his baseball and cricket. He still attempted golf, he told the Tribunal. Mr Corben further noted that he used to walk extensively with his partner. With the birth of their first child however, their walking activities lessened although they liked to "perambulate". After 1997, Mr Corben still attempted to walk with his partner and would walk for one hour approximately twice per month. Mr Corben told the Tribunal that he last played golf at Eastlakes Golf Course a couple of months ago. This is not his usual golf course. Mr Corben usually plays at Waterloo, which is easier for him. After Mr Corben injured his left foot he found he could only play nine holes of golf. He used to play every Friday with a friend, playing nine holes over a two-hour period. He would work before going off to play this game of golf. Mr Corben agreed that he was also playing less sport these days because of his age and because of his family responsibilities which meant less time available for sport.
33. During the hearing, Mr Corben was shown a video taken of him playing golf at the Eastlakes Golf Course. Mr Corben reiterated that this is not his usual course and that on that occasion, his usual course was closed. Eastlakes Golf Course is hilly and Mr Corben explained that his way of dealing with this course is to just put his head down and to "go for it". Mr Corben stated that he does not go "at a full run" but finds that if he does not keep moving he experiences pain. Later in evidence Mr Corben stated that normally these days, he would play nine, ten, eleven or twelve holes but that is as far as he can go. He has played golf once since July 2001, when the video was taken. Mr Corben told the Tribunal that most recently he usually plays at the Kogarah Golf Course. He reported that after a golf game, he experiences pain but he wishes to continue his golf because he sees it providing him with not only enjoyment but also some physical benefit.
34. Mr Corben stated that because of his feet problem, he cannot play properly with his daughter, he cannot skip with her, run in the park or put her on his shoulders. At the time of the hearing, Mr Corben's daughter was five years old. Mr Corben stated that he continues to avoid stairs but often thinks to himself that if there is no pain, there is no gain. For example, during golf, his feet heat up and he experiences cramping in the night after the game, but he puts this out of his mind because he wants to continue playing golf for as long as he can. Mr Corben stated that he feels as if he has lost physical strength, but he wants to still exercise. Mr Corben stated that he has tried Yoga over six sessions, one session per week for an hour. He undertook stretches and press-ups but his feet were sore and hot, with pain particularly in his left foot. Sometimes driving the car, Mr Corben will feel a problem with his left foot and there are occasions now when his feet are worse when he elevates them. He experiences pain in his left and right foot every day. On the steps, Mr Corben has to use the rail to make sure he keeps his balance. He is able to walk approximately 400 metres before he gets pain whereas previously he could walk until the "sun came down". On stairs, he has to walk using a flat foot.
35. In summary Mr Corben considered that from 1999 to 2000, his left foot did not improve. The right foot was not as painful as the left but he still experiences the hot sensation and considers he has pain in the right seramoid bone, similar to his left.
36. Mr Corben's current employment is as an ASO3 at the Sydney West Centre, where he works on data collection and on special operational matters.
evidence of Mikala Dwyer
37. Ms Dwyer told the Tribunal that she is an artist and a lecturer at a TAFE College. She and Mr Corben have been partners for approximately fifteen years and they have a five-year-old daughter. Mr Corben was described as a quiet, humble, shy person who does not complain.
38. Ms Dwyer described Mr Corben before his work injury. He played baseball, golf, and cricket and was generally what she called an active sportsman. Before working at Australia Post, Mr Corben had no problem with his feet, Ms Dwyer stated. She and Mr Corben used to regularly swim and walk approximately five to ten kilometres.
39. About four years ago, Mr Corben and Ms Dwyer were at a friend's home and Mr Corben described pain walking up a stair. Not long after that incident he went to the doctor. Ms Dwyer recalled that Mr Corben's pain worsened over a few days. He was limping. She recalled that the pain was initially on the left and then later both feet were involved.
40. There were less and less activities that Mr Corben could do, including playing with their daughter. Ms Dwyer noted that their daughter could not go on her father's shoulders. The family rarely walked together and they were driving to places more and more.
41. Ms Dwyer noted that during 1995 and 1996 she was extremely busy and during 1995 she was overseas.
42. In Mr Corben and Ms Dwyer's home, there is one flight of stairs but Mr Corben is able to negotiate them slowly. There are subtle differences, Ms Dwyer commented, in just about all of Mr Corben's activities because of his feet problems. Ms Dwyer stated that Mr Corben still plays golf but after the game, he has to put his feet in a bucket of salts after he returns to ease the pain. She stated that in terms of walking, "hills are out of question" and he has to walk on flat ground. Mr Corben's feet become sore when he is shopping.
evidence of dr m horsley, orthopaedic surgeon
43. Dr Horsley provided two reports, dated 17 April 2001 (Exhibit A1) and 25 May 2001 (Exhibit A2). There were a number of Dr Horsley's reports in the T documents (N2000/1473: T5, T9, T14, T15, T16, T22, T25, T28, T29 and T32). Mr Corben first consulted Dr Horsley on 12 December 1997, when he was 36 years old. He had been referred by his general practitioner.
44. Dr Horsley noted in his first report that Mr Corben has a normal gait. Dr Horsley noted that a bone scan had demonstrated what appears to be a stress fracture in the left foot of the lateral sesamoid. Dr Horsley opined that Mr Corben had experienced an injury to the lateral sesamoid as a direct result of his walking on a postal beat after a prolonged period of time in previous sedentary duties. On 30 April 1998, Mr Corben complained of cramping in his left calf as well as pain in both forefeet and along the arch of the foot as well as pain at night in the region of the arch. Mr Corben continued to have the original pain in the region of the sesamoid of the left foot. Another bone scan was undertaken in December 1998, which revealed an increased uptake on the scan in the region of the lateral sesamoid. At the time of the first report, Mr Corben was wearing soft soled shoes at work, which included orthotics.
45. Dr Horsley opined that Mr Corben's current symptoms could not be satisfactorily explained on the basis of the injury to the lateral sesamoid in 1997. Over the five months since he complained of that injury, he had not been doing much walking on the beat and therefore it was difficult to say that his current generalised pain was related to his work practice. In his subsequent report of 25 May 2001, Dr Horsley confirmed his previously expressed opinion that Mr Corben's symptoms could not be satisfactorily explained on the basis of the injury to his left lateral sesamoid in 1997. Dr Horsley expanded his previous report noting that it would be reasonable to state that Mr Corben's bilateral chronic foot pain is related to walking duties and standing duties. He thought that this was a different injury to the one sustained to the lateral sesamoid in 1997 (Exhibit A2).
46. At the hearing, Dr Horsley noted that he had seen Mr Corben on eight occasions the last being on 28 March 2001. Dr Horsley noted that when he gave his written opinion, he had concluded that the correct whole person impairment was 10 per cent but that he had not used the correct Table in the Comcare Guide. He revised his opinion to a whole person impairment of 20 per cent from Table 9.5 of the Comcare Guide.
47. Dr Horsley stated that he thought it was reasonable for Mr Corben to have a trial return to work as was recommended in June 1998. Dr Horsley thought that at the time he had continued to improve, but the improvement was not one hundred per cent. Dr Horsley had spoken to the rehabilitation counsellor, Robyn Kidd, and it was agreed that Mr Corben would be able to trial one and a half hour walking duties as a postman.
48. When Mr Corben was examined, Dr Horsley noted that Mr Corben had very localised pain over the sesamoid and also pain on the forced extension of the great toe. Mr Corben has always had localised tenderness but then later on, developed pain in both feet. Even when he was improving, Dr Horsley noted that Mr Corben had the same symptoms.
49. Dr Horsley noted that with a sesamoid problem, typically that presents on distance walking, climbing stairs and walking with a load.
50. In relation to the pain in Mr Corben's right foot, Dr Horsley was strongly of the view that it was not a sesamoid problem and the burning sensation is not related to the sesamoid problem, nor is the pain in the thigh or the calf.
51. Dr Horsley stated that he did recall that Mr Corben had plantar fasciitis but that this was a finite problem and Dr Horsley was not aware of it being of ongoing concern.
52. Dr Horsley told the Tribunal that he could not find a physiological reason for Mr Corben's chronic bilateral foot pain and could not attribute a specific diagnosis. He noted that some patients do develop foot pain with activity but it was hard to pinpoint this to the cause of pain. Furthermore, Dr Horsley opined that Mr Corben does not have a chronic pain syndrome and some of Mr Corben's pain cannot be explained by reference to physiology or anatomy. Dr Horsley could not conclude, however, that Mr Corben does not genuinely experience pain. The sudden onset of pain on steps as reported by Mr Corben is also not typical of a sesamoid problem, Dr Horsley stated, and it is also unlikely that a stress fracture would present in that way.
53. Dr Horsley concluded that Mr Corben has sesamoiditis which is an inflammation of the sesamoid and which also may lead to a stress fracture. Sesamoiditis can become chronic and linger on, Dr Horsley stated. The fact that Mr Corben can play golf and that he has to keep walking so as not to cause himself discomfort, presented Dr Horsley with some difficulty in explaining these symptoms. Dr Horsley could find no biomechanical explanation for this. Dr Horsley reiterated that the symptoms of sesamoiditis are localised pain, which Mr Corben has under the great toe but not general pain that he suffers. In an earlier report on 17 December 1997, Dr Horsley opined that on clinical examination and from his assessment of the bone scan, the findings were consistent with a stress fracture of the sesamoid. At the hearing, Dr Horsley said that he now believes that Mr Corben has sesamoiditis but that condition can lead on to stress fracture. The bone scan is not satisfactorily able to distinguish between a diagnosis of stress fracture and sesamoiditis, Dr Horsley concluded.
evidence of dr j chen, occupational medicine consultant
54. Dr Chen provided a number of medical reports: 3 February 1998 (T7, N2000/1473); 29 July 1998 (T18, N2000/1473); 22 December 1998 (T26, N2000/1473); 30 June 1999 (T31, N2000/1473).
55. In her most recent report, Dr Chen opined that Mr Corben has bilateral metatarsalgia with chronic bilateral foot pain. Dr Chen noted that Mr Corben has bio-mechanical feet abnormalities, with flexible arches, which has predisposed him to bilateral foot pain associated with prolonged walking. Dr Chen recommended restriction from prolonged walking and prolonged standing exceeding two hours continuously and 50 per cent of a full shift. There was no further treatment recommended although Mr Corben was advised to continue using soft orthotics in his walking shoes (T31, N2000/1473, p85).
evidence of dr d roebuck, orthopedic surgeon
56. Dr Roebuck provided a report dated 18 January 2000 (T35, N2000/1473). Dr Roebuck concluded that Mr Corben suffers from sesamoiditis, commencing in 1997, which was caused by repetitive walking arising out of his occupation as a postman. Dr Roebuck opined that because Mr Corben has troubles with grades and steps but no trouble walking, he satisfied 10 per cent whole person impairment from Table 9.5 of the Comcare Guide.
evidence of dr e schutz, consultant surgeon
57. Dr Schutz provided a report dated 19 April 2000 (T38, N2000/1473). Dr Schutz accepted that the diagnosis in 1997 of lateral sesamoiditis of the left big toe was probably correct. On examination on 19 April 2000, Dr Schutz found that there were no symptoms whatsoever over the lateral left sesamoid and that any inflammation from that cause had recovered.
58. In relation to the symptoms of discomfort and pain in both feet over the metatarsal arch region and the heat over the instep region of the feet, Dr Schutz could find no clinical sign of any abnormality on his examination of Mr Corben. The tiredness which Mr Corben reported in his thighs and calves when alighting stairs was likely to be due simply to a lack of physical fitness.
59. Dr Schutz concluded that the initial left big toe lateral sesamoiditis had recovered and he had other symptoms of metatarsalgia across the transverse metatarsal and discomfort in the instep region arising out of poor muscular development and foot posture. The diagnosis for the right foot was similar.
60. In relation to the issue of liability for these injuries from his work, Dr Schutz opined that the more recent symptoms are not due to Mr Corben's initial complaint of sesamoiditis of the left foot and the current symptoms seem to have developed whilst Mr Corben was undertaking clerical or reduced activities and therefore would seem unlikely to be due to work.
61. Under Table 9.5 of the Comcare Guide, Dr Schutz could find no impairment.
evidence of dr c browne, orthopaedic surgeon
62. Dr Browne provided a report dated 12 September 2000 (T3, N2001/267).
63. Dr Browne examined Mr Corben on 10 August 2000. Dr Browne opined that Mr Corben had sesamoiditis supported clinically on the basis of previous medical examination by Dr Roebuck and also on the basis of bone scans. Dr Browne further noted that Mr Corben had pain under his forefoot bilaterally, consistent with metatarsalgia. Dr Browne concluded that it was very likely that the nature and conditions of Mr Corben's work as a postal officer, involving walking with a backpack weighing up to 16 kilograms had precipitated his symptoms. Dr Browne noted that there had been some symptomatic improvements since Mr Corben was taken off the postal run and allocated office duties. Dr Browne recommended that Mr Corben have podiatric treatment with appropriate orthotics and footwear. Mr Browne assessed Mr Corben as having a 10 per cent whole person impairment under the Comcare Guide, because while Mr Corben was able to walk and stand he does have difficulty with grades.
evidence of dr n w mcgill, consultant rheumatologist
64. Dr McGill provided a medical report dated 25 August 2000 (T42, N2000/1473). He interviewed Mr Corben on that date.
65. On examination, Dr McGill noted that Mr Corben had a normal gait and had normal feet arches. There was no swelling of the joints of the feet or ankle regions. Dr McGill further noted that Mr Corben reported slight tenderness to firm pressure on the inferior surface of the right heel and he reported slight tenderness with pressure over the medial aspect of his left first MTP joint. Dr McGill noted no tenderness at all, even to very firm pressure, over the lateral sesamoid of the left MTP joint.
66. Dr McGill noted two bone scans performed on 1 December 1997 and 9 December 1998. The first scan indicated an increased uptake in the region of the lateral sesamoid bone on the left. There was also slight focal uptake in the region of the right lateral sesamoid. The second bone scan showed focal uptake in the region of both lateral sesamoid bones and very mild uptake in the right fifth metatarsal.
67. In summary, Dr McGill wrote that Mr Corben's initial symptoms were consistent with sesamoiditis. Subsequently, Dr McGill noted that Mr Corben's symptoms became diffuse and not in keeping with sesamoiditis nor any other focal foot abnormality. Mr Corben's current reported symptoms are diffuse involving both feet, both knees, both lower limbs and existing in both the proximal and distal regions. Dr McGill concluded that Mr Corben's previous symptomatic sesamoiditis was related to his work by way of aggravation of a developmental anomaly (bipartite sesamoid bone).
68. On examination, Dr McGill could find no evidence of sesamoiditis and that diagnosis does not account for Mr Corben's diffuse symptoms. Dr McGill opined that it was hard to know how much of Mr Corben's symptoms reflect embellishment and how much is a genuine problem. Dr McGill thought that the reporting probably represented a false interpretation of his physical capacity rather than Mr Corben overtly embellishing or falsifying his symptoms. Dr McGill concluded that the current state of Mr Corben's left foot and other areas in his lower limbs was the same as it would have been regardless of whether or not he worked with Australia Post. Dr McGill further opined that Mr Corben had no permanent impairment in accordance with the Comcare Guide.
69. At the hearing, Dr McGill explained that when examining a patient for the condition of sesamoiditis, it is important to look at the gait, how the person is walking both with shoes on and without shoes and to inspect the foot. Dr McGill explained that the sesamoid bone sits under the great MTP joint, that is the joint to the great toe. Dr McGill also looks for colour formation and tests for local tenderness over both the medial and lateral sesamoid. Dr McGill did this with Mr Corben to ascertain the cause of his pain including whether there was sesamoiditis. Dr McGill had found slight tenderness over the medial aspect of the left MTP joint, but there was no tenderness to firm pressure over the lateral sesamoid. Dr McGill opined the absence of mild tenderness did not allow him to make a diagnosis of sesamoiditis.
70. Dr McGill opined that Mr Corben's symptoms of pain and heat over the soles of his feet, when it is clear that these symptoms are not due to a particular physical problem, did not assist with respect to providing a specific diagnosis. Furthermore, there was no evidence of any physical disorder of Mr Corben's calves, thighs or knees. While Dr McGill acknowledged that Mr Corben may have had sesamoiditis or an aggravation of a bipartite sesamoid bone as a result of his heavy walking, he believed that at some point, the active sesamoiditis had resolved.
71. To determine that there was sesamoiditis, one would expect localised pain under the great MTP joint. If the symptoms are not there, then, Dr McGill concluded that there was no sesamoiditis. There is no other test to determine whether the inflammation causing sesamoiditis had resolved. Although bone scans show a slight amount of uptake in the lateral sesamoid, Dr McGill opined that it is quite common for bone scans to show some uptake to the sesamoid, particularly if there is a bilateral sesamoid and that did not mean there was an active ongoing inflammatory process. Bone scanning is extremely sensitive and therefore frequently picks up areas of bone uptake without there actually being any disease at that point or causing any symptoms. The bone scans showed that there was a developmental abnormality where the sesamoid grows as two bones rather then as one and the two bones have the potential to bump against each other. Dr McGill did not think that it would be of value to have another bone scan done as Mr Corben was still reporting pain in the local area of the sesamoid. In this regard, Dr McGill noted that even if a new scan continued to show uptake, it was quite likely that with Mr Corben's pattern of symptoms without local pain, which was the history provided to Dr McGill, it would still not in his view, suggest a diagnosis of sesamoiditis.
72. Dr McGill thought it unlikely that his examination would have missed sesamoiditis, because of the history Mr Corben provided him, combined with the examination. This included the fact that when Dr McGill examined Mr Corben, there was no pain specifically under the MTP joint but they were diffuse symptoms in his feet, his knees, his lower limbs and in the proximal and distal regions. That was not a history of sesamoiditis, Dr McGill concluded.
73. Mr Grey put to Dr McGill that the doctor interpreting the bone scans, Dr R Howman-Giles, was more qualified to interpret the scans. Dr Howman-Giles interpreted the scans to indicate focal osteoplastic reaction with the lateral sesamoid bones on both feet, the left more than the right being suggestive of bilateral sesamoiditis or fractures. Dr McGill noted that when he saw the bone scans, he concluded that the degree of uptake was much less than would be expected for fractures. Dr McGill concluded that someone presenting with the right symptoms, and the symptoms Mr Corben initially had were the right symptoms, then the earlier initial diagnosis of sesamoiditis would be correct. But years later, the symptoms were not of localised pain at the lateral sesamoid and therefore the bone scans now do not help with the diagnosis.
74. It was put to Dr McGill that Dr Horsley, who had seen Mr Corben on at least eight occasions as most recently as March 2001, had said in evidence that he could not recall not being able to elicit localised tenderness. Despite Dr Horsley's findings, Dr McGill still was of the view that he had not missed sesamoiditis. Dr McGill noted that he was aware of the possibility of that diagnosis, was aware of the bone scan and was therefore alerted to the possibility of sesamoiditis. All this evidence combined with his examination findings led him to conclude however that there was no sesamoiditis. Dr McGill reported that Mr Corben had normal feet arches, yet Dr Chen and a podiatrist, Ms C Coughlin, had found that Mr Corben had biomechanical feet abnormality, with flexible arches. Ms Coughlin recorded that Mr Corben had high arched foot type with poor shock absorbing quality. Dr McGill did not have the reports from Dr Chen and Ms Coughlin. Even so, Dr McGill still determined that Mr Corben's foot shape was normal.
75. At hearing, Dr McGill noted that Mr Corben had reported that he has diffuse foot pain with some still more localised pain. Dr McGill interpreted this as either indicative of psychological disturbance or embellishment. Dr McGill concluded that Mr Corben was over interpreting the significance of his symptoms in that he tended to dwell on those symptoms and they became more established in his mind. Dr McGill was not suggesting that Mr Corben's experience of the symptoms was not genuine. He would not expect however, that despite the genuine experience of pain, that Mr Corben should have difficulty with grades, steps and distances. Dr McGill concluded that people with fibromylagia, a term which is applied to people who experience pain of a genuine nature but not due to a physical abnormality, usually demonstrate normal function without any loss of function. So that when observed, such people undertake activity normally.
76. Mr Grey asked Dr McGill how he would interpret someone having pain associated with walking upstairs who then, if avoiding walking upstairs, experiences less pain. Dr McGill answered that one would need to temper his answer in relation to this example, by observing what the person actually does and, if the person was observed to have no physical disorder but reported symptoms, then it would be important to the observer whether or not they functioned normally. So when patients stated that they felt pain, unless there was clear evidence otherwise, Dr McGill accepts they feel pain but this must be tempered with observation of whether or not there was a physical abnormality and whether or not the person was functioning normally. Specifically in relation to Mr Corben, Dr McGill opined that it was very unlikely on the basis of the history he provided that there was a physical explanation for his symptoms, which Dr McGill had simply not found.
77. Mr Grey asked Dr McGill how one could explain Mr Corben's reporting of diffuse symptoms in the context of him having had a history of a very active sporting life. Furthermore, Mr Corben enjoyed the job he was doing and had a good family life. Dr McGill answered that he was not sure how much Mr Corben enjoyed his job when he was transferred from a supervisory position as a postal controller back to postal delivery duties. Dr McGill reiterated that in general when people report symptoms in the absence of physical disease, there is usually some unhappiness with a specific role and more generalised unhappiness.
78. Dr McGill acknowledged that he was not a psychiatrist and that he had not put any issue of psychological disturbance to Mr Corben. Dr McGill stated that the pattern of Mr Corben's symptoms was not that of a physical disorder. Mr Corben's symptoms did not reflect physical disease but in terms of whether or not there was a specific psychological problem or he was embellishing Dr McGill was not sure. Dr McGill denied making a psychological diagnosis. What he had done was look for a physical explanation to the symptoms complained of and there was not one. Dr McGill stated that he always made a choice to give to people the benefit of the doubt.
79. In relation to diagnosis of plantar fasciitis, Dr McGill noted that it was quite likely that Mr Corben did have some pain in his plantar fascia because that is a common problem but again, Dr McGill stated that symptoms of this condition were not present when he examined him. In this regard, Dr McGill considered that plantar fasciitis had settled down by the time he had examined Mr Corben.
80. Dr McGill was asked about Mr Corben's playing golf and he opined that the fact that Mr Corben plays 9, 10, 11 or 12 holes of golf and experiences pain is not conclusive of him having the underlying condition of bilateral sesamoiditis. The fact that Mr Corben may have to stop halfway through a round of golf indicated that he was genuinely feeling his discomfort but it still did not differentiate between a physical cause of the discomfort and problems that Dr McGill had earlier raised in terms of fibromyalgia or an over interpretation of minor normal symptoms. It surprised Dr McGill that Mr Corben was stopped from playing golf because on the history provided by Mr Corben and the physical examination, there was not evidence of a disorder, which would prevent Mr Corben from playing. Dr McGill questioned whether Mr Corben's back symptoms had any influence on this but he concluded that Mr Corben's back should not have stop him playing golf either.
81. Dr McGill stated that someone with sesamoiditis would be expected to experience pain under the great toe and the person would usually wear shock absorbing footwear and reduce the amount of walking they were doing because walking produces pressure on the joint or sesamoid. If someone did have sesamoiditis, Dr McGill concluded that it was possible for this condition to extend over a number of years. Someone with chronic sesamoiditis would be expected to continue to report pain localised in the region of the sesamoid.
82. Referring to Dr Roebuck's report of 18 January 2000, that examination revealed acute tenderness over the sesamoid bone of the left foot and this was confirmed, in Dr Roebuck's mind, following his assessment of the two bone scans. Dr McGill concluded that the bone scan images were not consistent with stress fracture but were consistent with sesamoiditis. Dr McGill opined that when Dr Roebuck saw Mr Corben, he did have signs which were entirely consistent with sesamoiditis in that he had acute tenderness. But he did not have that when Dr McGill saw him eight months later and the history provided to Dr McGill in terms of the months before he was examined, was not of localised pain. Bone scans would continue to show increased uptake in the sight of bipartite sesamoid, even if people were reporting that their inflammation and symptoms had gone away.
83. Dr McGill was asked to consider a report of Dr C Browne dated 12 September 2000 (T3, N2000/267), in which it was opined that the pain under Mr Corben's left forefoot bilaterally was consistent with metatarsalgia. Dr McGill opined that the description of metatarsalgia fits in with the described diffuse pain under the feet for which there is no apparent cause. Dr McGill noted that people sometimes do report pain under their feet when no cause can be found but that pain should settle quickly. Dr McGill further opined that Dr Browne's description of metatarsalgia suggested that when Dr Browne saw Mr Corben, his symptoms were very nearly similar to those he was reporting to Dr McGill, which were not consistent with sesamoiditis but a diffuse pain which Dr Browne called metatarsalgia. It was a matter of interpretation, Dr McGill concluded, whether in Dr Browne's report he could have been stating that there were signs and symptoms of sesamoiditis. Dr McGill thought that if Dr Browne had found clinical sesamoiditis, he would have directly reported that. In relation to whether or not Mr Corben had difficulty with grades and steps, Dr McGill stated that he did not make Mr Corben walk up and down steps. Dr McGill reached his conclusion that Mr Corben had no difficulty with grades and steps on the basis of examination findings in his consulting rooms, the history provided and the scan findings.
submissions
84. Mr Grey submitted that Mr Corben had not embellished his evidence and if anything, he had understated it. Mr Grey submitted that Mr Corben provided evidence plainly and his partner presented in a similar fashion. The Tribunal should accept therefore Mr Corben's evidence of the history of his left foot and then the onset of his bilateral foot condition and its development against a background of a man who was very active sport person. In this regard, Mr Grey referred the Tribunal to Mr Corben's baseball, cricket and golf activities. In relation to golf, Mr Corben used to play 18 or 27 holes for as long as he possibly could. Mr Grey submitted that the Tribunal should reject any inference by Dr McGill that Mr Corben embellished his symptoms. There was also no suggestion put to Mr Corben that he was dissatisfied with being sent back to his postal beat work and no indication in any of the medical reports of someone who was taking out his resentment on Australia Post because he was not given a supervisory position. Currently, Mr Corben is very happy with his work and his contribution, yet the symptoms remain.
85. Mr Grey put to the Tribunal that the evidence is that prior to Mr Corben undertaking postal delivery work, on a particular day, he began to experience pain. If he was embellishing, it would be expected that he would have provided evidence that he was walking on the postal delivery run when he experienced these pains. The evidence is in fact the opposite and the information provided consistently to doctors is that Mr Corben first recorded the onset of pain on a day that he was not at work. This is not the history of a person who is malingering or embellishing evidence, Mr Grey contended. This further calls into question Dr McGill's suggestion of the possibility of embellishment.
86. Mr Grey submitted that all the medical diagnoses, including that of Dr Chen, dating back to the beginning of this matter in November 1997, accept that the onset of symptomatology was probably associated with the postal delivery work carrying a post bag of up to 16 kilograms. This occurred after the period when Mr Corben had not been undertaking postal delivery work but had been indoors undertaking a supervisory role.
87. Mr Grey noted that in evidence to the Tribunal, Dr Horsley diagnosed Mr Corben's left foot condition as sesamoiditis and not a stress fracture. This was the first occasion on which Dr Horsley had changed his diagnosis. This situation highlighted the fact that the diagnosis of Mr Corben's left foot condition was difficult and there could not be certainty particularly in light of the radiographer's bone scan report. Whatever the diagnosis, Mr Grey submitted that contrary to the Respondent's submissions, Dr Horsley does attribute Mr Corben's bilateral chronic foot pain to his walking and standing duties, as recorded in Dr Horsley's report dated 25 May 2001 and also attributes the ongoing left sesamoiditis to Mr Corben's work.
88. In terms of the diagnosis itself, there is some doubt. Mr Grey contended that there was an aggravation caused to the sesamoid bone resulting in either a stress fracture or sesamoiditis which is related to heavy walking with a postal pack on Mr Corben's back. The real question is what the Tribunal is to make of the symptoms which have come later. In reaching a conclusion, Mr Grey submitted that medicine is not an exact science, even when looking at the feet. Even though doctors cannot find a reason for a problem, this does not mean that there is not one, Mr Grey submitted.
89. In evidence, Dr Horsley stated that he could not explain some of Mr Corben's symptoms. Nevertheless, Dr Horsley could not say that Mr Corben did not have pain and accepted that he did. Dr McGill, Mr Grey contended, was alternating between different positions either saying that Mr Corben is embellishing or has some psychological disturbance. Alternatively, Dr Horsley admits that there could be an organic reason for Mr Corben's symptoms, which he simply cannot find. Mr Grey submitted that the solution to this dilemma might be that there is a process at work, which is difficult to diagnose. This does not mean that there was no condition or disorder which gave rise to Mr Corben's difficulties. The prevailing history of all the medical examinations focus on the area under the first metatarsal which discloses, apart from Dr McGill's examination, the presence of tenderness initially on the left side and then later on the right side. Dr Schutz seems to have concluded that all of Mr Corben's previous problems have resolved and that symptoms which are currently present are due to poor muscle development and foot posture. Mr Grey submitted that he could not find where the suggestion could be made that Mr Corben had developed a level of unfitness greater than the general population. Mr Grey submitted that Dr Schutz's report ought not to be given any weight because he did not deal with any other complaints very well nor the history provided by the Applicant.
90. Mr Grey submitted that apart from Dr Schutz and Dr McGill, all the other medical practitioners in this case have found pain or tenderness under the sesamoid bone and most recently this was confirmed by Dr Horsley in March 2001. Accordingly, Mr Grey submitted that there appears to be good evidence for ongoing sesamoiditis at least on the left and probably on the right as well, as supported by the bone scans. Furthermore, Mr Grey submitted that the Tribunal should prefer the opinions expressed about the scans by the specialist who carried them out and who has the qualification specifically in that area. With the evidence of the bone scan suggestive of sesamoiditis in 1998 and the opinions of Dr Horsley, Dr Roebuck, Dr Browne and Dr Chen the Tribunal should be able to make a finding that there was still evidence of sesamoiditis in 2000 and 2001. The symptoms are present but probably to a less severe level than three or four years ago, Mr Grey submitted.
91. Turning to the more diffuse symptoms such as the burning sensation or the soles of Mr Corben's feet, these are more difficult to characterise. However, Mr Grey submitted that the Tribunal would not easily be able to find that there is a psychological problem in operation. In this regard, Mr Grey submitted that there is no history of such trouble and Dr McGill, who raised this possibility, did not ask Mr Corben any question that might have elicited any relevant information. Dr McGill also was not qualified to provide an opinion on psychological factors or a psychiatric condition. Even if there were psychological factors operating, Mr Grey contended that the only conclusion the Tribunal could reach about that is that any such factors were related to the original sesamoiditis problem. It was far more likely, Mr Grey contended, that Mr Corben has an organic foot problem that has not been picked up by some of the doctors. Mr Grey then referred the Tribunal to Dr McGill's opinion that Mr Corben has normal feet yet both Dr Chen and the podiatrist, Ms Coughlin, quite clearly indicate that Mr Corben's feet are not normal. Mr Corben now wears orthotics in his shoes. Why would he have orthotics, Mr Grey asked, if Mr Corben did not have a problem. Mr Grey's submission in relation to these diffuse symptoms is that they must in someway be related to the onset of the symptoms dating back to the original injury for which liability had initially been accepted.
92. If the Tribunal accepts that Mr Corben has genuine problems in his feet, is not embellishing and that the problems are causally connected to his employment as a walking postman, the question arises as to whether there should be ongoing liability to compensation. Mr Grey contended that there should be a section 14 determination. The importance of that is that if Mr Corben requires additional treatment, for example occasional physiotherapy and the cost of orthotics, then he should be at least compensated by the Worker's Compensation System. He ought to have a determination also in relation to medical expenses when they occur and on the production of proper receipts.
93. The second issue relates to whether or not Mr Corben has permanent impairment. Mr Grey submitted that Mr Corben has at least a 10 per cent permanent impairment from Table 9.5 of the Comcare Guide. Dr Horsley's assessment of a 20 per cent whole person impairment may be more difficult and this is so given that Mr Corben appears to be playing nine holes of golf without too much difficulty with the distances. This however depends on how much Mr Corben pushes himself, Mr Grey contended. It is important for Mr Corben to play golf and this was supported by his partner's evidence. However when Mr Corben returns following a game of golf, he must put his feet in water to obtain relief from the pain. Although the Tribunal may find an impairment of 20 per cent, Mr Grey was confident in his submission that Mr Corben is certainly warranting an impairment of 10 per cent under Table 9.5. This assessment is supported by Dr Horsley, Dr Browne and Dr Roebuck.
94. Referring to Australian Postal Corporation v Bessey (2001) 32 AAR 508, Mr Grey submitted that there is no new law in that case and it provides guidance to the application of ordinary principles. Mr Grey submitted that there is no suggestion that Mr Corben is entitled to ongoing compensation payments but there is permanent impairment compensation. In Australian Postal Corporation v Bessey (supra), Mr Grey submitted that the Tribunal seemed to find some ongoing entitlement although the medical evidence appeared to support the proposition that everything had ceased.
95. Mr Grey submitted that Mr Corben's chronic bilateral foot pain may be less because he is not putting as much pressure on his feet and what this should be seen as is a different set of symptoms than those sustained from the lateral sesamoid in 1997. There is no doubt, Mr Grey contended, that Dr Horsley is attributing the wider foot pain to work, as indeed Dr Horsley did with the sesamoiditis. Mr Grey submitted that all of the medical opinion attributed sesamoiditis and foot pain to work until Dr Schutz in April 2000. That was the first opinion that did not attribute Mr Corben's problems to his work. Mr Grey contended that it is completely wrong for the Respondent to submit that there is no evidence suggesting a work relationship. It is also not right to conclude that the foot pain has occurred only when Mr Corben was undertaking indoor duties. The evidence from Mr Corben and also Dr Horsley's reports seems clear that the pain in the right foot came on when Mr Corben was wearing orthotics. On Mr Grey's understanding of the evidence, it appears that the pain spread in about March of 1998 by which time Mr Corben was back on the walking beat.
96. In relation to the Respondent's submission that Mr Corben depicted himself as limited, this was not true at all, Mr Grey submitted. Mr Corben has always said that he goes out and plays golf and that it has always been a part of his life. Undertaking that activity and certain other activities is associated with pain and Mr Corben has difficulty doing them but this is far from presenting himself as being very limited in what he can do. While Mr Grey noted Dr Horsley's difficulty understanding how someone could say that standing still causes pain and walking does not, Mr Grey submitted that it was not very hard for him to understand that proposition. In this regard, Mr Grey stated that at least when a person is walking, you have one foot on the ground and one foot in the air for part of the time. Mr Grey further submitted that even though the Tribunal has been invited by the Respondent to find that sesamoiditis is not present, based on Dr McGill's report, the Tribunal is still faced with the fact that an examination two weeks earlier by Dr Browne found that it was present and that at an examination some months later, Dr Horsley also found that it was still present. Therefore there are three clinical medical examinations taking place between August 2000 and March 2001, two of which found tenderness in the sesamoid bone. Mr Grey submitted that the Tribunal should not prefer Dr McGill's report, particularly as he also found that the structure of Mr Corben's foot was normal when Dr Browne, Dr Chen and Ms Coughlin, the podiatrist, had found that clearly Mr Corben's foot did not have normal structure.
97. Mr Grey emphasised that it is not correct to say that there is no evidence of the work relationship and Mr Corben's feet symptoms because, in the Respondent's view, there is no evidence of excessive walking and the only thing that was complained about was Mr Corben's heel. Mr Corben's evidence was that he had to walk 800 metres before he even started his postal run and this was with a 16-kilogram pack. Mr Grey submitted that until the year 2000, no one has any difficulty with the walking causing trouble sufficient to cause sesamoiditis and/or a stress fracture.
98. In relation to the video evidence, and the Respondent's submissions that the video shows Mr Corben has no difficulty with walking 400 metres, Mr Grey pointed out that golf is played on grass which is a softer surface. Furthermore, in playing golf, there are many changes in gait, it is a stop start proposition with all sorts of different activities. The Tribunal should also keep in mind that Mr Corben is highly motivated to play golf, even when it causes him pain. Mr Grey contended that it was not fair for the Respondent to disregard the fact that Mr Corben pushed himself and that this therefore means that he must be exaggerating or embellishing his symptoms.
99. The Tribunal should see that Mr Corben had an acute injury in 1997. If it was not an acute injury, then there was an aggravation because of an underlying developmental problem.
100. Ms Henderson for the Respondent submitted that there are three difficulties with the Applicant's submissions. The first difficulty is the lack of satisfactory diagnoses. The second problem is the lack of evidence for causation related to work and the third difficulty relates to the inconsistency between Mr Corben's claimed level of restrictions and the video evidence presented. In relation to the issue of a permanent condition or aggravation, Mr Grey did not explain what has been permanently aggravated, Ms Henderson contended.
101. Ms Henderson submitted that Dr Horsley did not state that there was a permanent aggravation of any condition or injury. The current symptoms which Mr Corben complains of include a hot sensation of both of his feet, a stretched right instep, and pain in his left sesamoid bone. There seems to be pain in Mr Corben's right lateral sesamoid bone sometimes and he had added in cross-examination, that there was also pain in his calves and thighs every day. Ms Henderson submitted that these additional symptoms, apart from the claimed left lateral sesamoid pains, are ones which first appeared while Mr Corben was undertaking indoor duties and at some point during the year after November 1997. Ms Henderson submitted that in cross-examination, Mr Corben further claimed that the symptoms have remained unchanged since he last did a walking beat and that was a 90 minute postal delivery run he performed in July 1999. At that time, Mr Corben described the heat in the soles of his feet starting in the morning in the shower and lasting the entire day until he went to bed. The current limitations that Mr Corben spoke of included the fact that he uses a lift rather then stairs at work. Furthermore, Ms Henderson noted Mr Corben's evidence that he might sometimes walk down one flight of stairs and that he finds it a long walk to the fax machine.
102. Ms Henderson submitted that Mr Corben depicted himself as a person who was very limited. This should be contrasted, Ms Henderson submitted, with the easy normal gait which was observed in the video and the apparent ease and lack of discomfort on climbing the many gradients and hills at the Eastlakes Golf Course. On Mr Corben's earlier evidence to the Tribunal, he would have experienced pain and difficulty continuing on after walking 400 metres. Ms Henderson submitted that it was immediately apparent from the video that there was no such manifestation of pain and difficulty continuing on walking after 400 metres. Furthermore, Ms Henderson submitted that the claims made by Mr Corben regarding his limitations are bizarre in the sense that Dr Horsley was told in his most resent examination, that the Applicant hurries his golf partner along because if he keeps still, it will be more painful. Dr Horsley expressed a lack of understanding as to how a mechanical pain could be made better by continuing mechanical activity, which in this case is walking.
103. Turning to the issue of the diagnosis of Mr Corben's condition, Ms Henderson noted that the initial diagnosis began with sesamoiditis. Ms Henderson reminded the Tribunal that the onset of the symptoms of this condition was not the workplace. Mr Corben was at a friend's home when he noticed the odd sensation like a stone under his foot. When Dr Horsley first examined Mr Corben in December 1997, he found that pain was localised. It was expected that the pain would settle and Mr Corben would become asymptomatic in a number of weeks with no long-term problems. Dr Horsley told the Tribunal that sesamoiditis is characterised by localised pain under the great toe. Although Mr Corben has claimed at times that he continues to have localised pain under the great toe, Ms Henderson submitted that it must be borne in mind that Mr Corben also claims localised pain under the left great toe. Dr Horsley had ruled out in his oral evidence to the Tribunal quite emphatically that there was any right sesamoid problem.
104. Ms Henderson noted that the claim of sesamoiditis does not account for the burning on the soles of Mr Corben's feet. It also does not account for the pains complained of in Mr Corben's calves and thighs, which Mr Corben states he experiences every day. Ms Henderson submitted that the Tribunal could not be satisfied on the evidence that the sesamoiditis has continued up to the present. In Dr McGill's examination of 27 August 2001, he found no tenderness at all even to firm pressure over the lateral sesamoid of the left MTP joint. Dr Schutz, like Dr McGill, on his examination also could find no symptoms in the lateral sesamoid area. In relation to Dr Chen's examinations of Mr Corben, while she had initially found mild tenderness on the sole of the left first metatarsal corresponding to the sight of the lateral sesamoid bone, in December 1998, she reported that with both toes, taken by Ms Henderson to mean both big toes, they were not tender to palpation. Dr Chen did make the final determination on examination that there was sesamoiditis. Ms Henderson submitted that there were three out of four examinations conducted by Dr Chen in which there was no presence of active sesamoiditis. Ms Henderson furthermore reminded the Tribunal of the unequivocal evidence from Dr Horsley that sesamoiditis is not a problem which has a sudden onset.
105. Ms Henderson submitted the second diagnosis, which was explored before the Tribunal, which she contended should be set aside, is that of bilateral plantar fasciitis. Ms Henderson submitted that this was a condition which had a finite episode and was no longer of significance.
106. The third diagnosis explored in the course of Mr Corben's medical history was that of stress fracture. Dr Horsley ruled that out in his evidence before the Tribunal. It was a diagnosis, which he had regarded as possible when he first examined Mr Corben, but on subsequent examination and exploration of the condition, Dr Horsley decided it was not demonstrated.
107. The fourth diagnosis relates to the current set of diffuse symptoms. Dr Horsley had not attempted to offer any diagnoses for those symptoms. He did not say and refused to say that the symptoms are attributable to work. Ms Henderson submitted that Dr Horsley's December 1998 report was very careful to say that walking was related to the onset of pain in the region of a great toe but that he did not suggest in that report that any other symptoms were attributable to work. Ms Henderson submitted that Dr Horsley's final report in May 2001 noted that he said that it would be reasonable to state that the bilateral chronic foot pain experienced by Mr Corben related to his walking and standing duties. Dr Horsley did not say that in his opinion, chronic foot pain is related to walking duties and standing duties. He simply says it would be a reasonable opinion to state, but it does not appear to be a statement which he himself adopts. Furthermore, Ms Henderson submitted that in his oral evidence, Dr Horsley made it quite plain that he can find no anatomical cause for Mr Corben's chronic foot pain. He specifically withdrew from any suggestion that it was a disorder such as chronic pain syndrome. Dr Horsley agreed that the foot pain is likely to continue indefinitely but made no suggestion as to any diagnoses, which would explain the current diffuse range of symptoms advanced by Mr Corben. In that respect, Dr Horsley's evidence was completely consistent with the opinion expressed by Dr McGill and Dr Schutz.
108. Referring to Dr Browne's report advancing a diagnosis of metatarsalgia, Dr McGill clarified that this diagnosis was another way of describing foot pain. It is not necessarily a diagnosis in itself, Ms Henderson submitted. Furthermore, Dr Browne's report lacks any suggestion of Mr Corben reporting hot feet, calf and thigh pain, which he complained of to other doctors. As far as Dr Browne seemed to believe, Mr Corben had localised foot pain. In those circumstances, it was not surprising that he offered a specific diagnoses directed at sesamoiditis and metatarsalgia.
109. Referring to Dr Roebuck, who examined Mr Corben in January 2000, Dr Roebuck also diagnosed sesamoiditis. This diagnosis still offered no explanation for the diffuse symptomatology that Mr Corben eventually has reported. Accordingly, Ms Henderson concluded that the Tribunal could not be satisfied as to the presence of sesamoiditis either on the left or the right. Particularly, sesamoiditis on the right was ruled out by Dr Horsley. In relation to both feet, the Respondent submits that the Tribunal could not be satisfied that these symptoms of the sensation of hot feet, pain in the legs and thighs could be explained by sesamoiditis or any other diagnosis which has been discussed in this case.
110. Ms Henderson submitted that the next step in this matter, even in the absence of a firm diagnosis, was to try and look at the area of work causation. Dr Horsley gave a work attribution to sesamoiditis on the basis that his patient had been exposed to walking long distances and was unaccustomed to doing so. Ms Henderson submitted that at hearing, Mr Corben's evidence curiously, did not emphasise the walking of long distances. He stated that there was a 5 or 6 minutes short walk involved prior to walking approximately up to 8 kilometres to Evan Street, Balmain. The emphasis on the evidence, Ms Henderson submitted, is that Mr Corben did a Rozelle run from June 1997 to November 1997, which was hilly.
111. Dr Horsley had accepted the proposition that Mr Corben was a person who was physically deconditioned by having done an indoor job between 1995 and April 1997. In relation to this, Ms Henderson submitted that the evidence was that Mr Corben had given up baseball during a time he was a supervisor at Waterloo. His evidence was that he gave it up during a season before he took on a supervisor's role. Mr Corben also gave evidence that at that stage, he rarely played cricket because his team had dissolved. What this means, Ms Henderson submitted, is that while Mr Corben was a supervisor, these two sporting activities had already fallen away. Furthermore, the long walks that Mr Corben used to take with his partner had also stopped during that time he was working at the Waterloo Centre. At that time Ms Dwyer was working overseas on her exhibitions.
112. Ms Henderson submitted that the Applicant had ceased a walking beat at Waterloo, which he had been doing from April 1997. Mr Corben was an experienced postman who had been undertaking a postal walking beat from 1993 until 1995 and was still physically fit enough to undertake 18 holes of golf every Friday, spending three or four hours at a range of different courses including the hilly Eastlakes course. Why would undertaking a postal run in Balmain, which is hilly, cause him to develop symptomatology which the hilly course of the Eastlakes golf course did not induce in him, Ms Henderson asked.
113. In relation to the issue of permanent impairment, Ms Henderson noted that Dr Horsley increased the assessment of permanent impairment, which was originally given in his report of April 2001, because Dr Horsley believed that Mr Corben has problem with walking distances. The Tribunal was once again reminded of the video, which Ms Henderson submitted showed Mr Corben playing golf with no difficulty in walking what was clearly in excess of 400 metres. When told of this evidence, Ms Henderson submitted that Dr Horsley himself had difficulty reconciling Mr Corben's ability to continue playing golf with that claimed limitation.
114. While Dr Horsley's evidence is that he considers Mr Corben has chronic foot pain which is likely to last indefinitely, he has made no attempt either in his written reports or in oral evidence to the Tribunal to explain how the chronic foot pain could be related to Mr Corben's duties. In fact, Dr Horsley's report makes it quite clear that he cannot associate the symptoms with Mr Corben's duties. Even if the Tribunal accepted a situation where no diagnosis has been offered for the current symptoms, Ms Henderson submitted that no one has offered a work causation explanation for these symptoms. So on either or both of these scenarios, the application must fail, she contended.
115. In relation to the assertion by Mr Grey that Mr Corben does not exaggerate or embellish his evidence and in fact understates it, this does not sit well with Mr Corben's claim of difficulty continuing on after 400 metres, Ms Henderson submitted. In so submitting, Ms Henderson noted that prior to working with Australia Post in 1993, Mr Corben was playing golf once per week. He belonged to the Taxi Social Club and played at least 18 holes. His evidence to the Tribunal is that he now attends a very flat course and does 9 or 10 holes. If he goes to another golf course he will use a golf cart and undertakes 18 holes. These claims both altered significantly under cross-examination when he agreed that he did not use a golf cart when he played golf at the Eastlakes Golf Course, a few moths ago. Furthermore, Mr Corben's evidence in relating to the number of holes he played went from 9 or 10 up to 11 or 12. In the face of this shift in evidence, Ms Henderson submitted that the Tribunal should have serious doubts as to Mr Corben's claims of his limitation, just based on that evidence. Mr Corben clarified that if the weather is permitting then he may be able to play more. He also told the Tribunal that he manages a seven-hour working day before he plays his game, which occurs every Friday. Mr Corben's evidence is that he forces himself to play golf. Ms Henderson submitted that there was nothing from the video and in Mr Corben's demeanour that demonstrated he had any discomfort, restriction or had to force himself to continue.
116. In relation to Mr Grey's assertion that the Tribunal should prefer the evidence of the expert who undertook the bone scans, in that it ought to conclude there was stress fracture, Ms Henderson reminded the Tribunal that Dr Horsley, the treating doctor, had ruled out stress fracture as has Dr McGill. As to the suggestion that the Tribunal should find a diagnosis of bilateral sesamoiditis, Ms Henderson pointed out, that Dr McGill made it clear that one has to correlate features of a bone scan with actual clinical examination and the reporting by the patient of symptoms. Furthermore, Dr Horsley quite categorically ruled out right sesamoiditis. Dr McGill equally confidently ruled out left sesamoiditis on the basis that the complaints of diffuse symptoms cannot be reconciled with that diagnosis.
117. Ms Henderson submitted that the Tribunal should be extremely cautious and reluctant to accept the submission, in the absence of any evidence, that the diffuse symptoms of which the Applicant complains can be attributed to a psychiatric problem related to sesamoiditis.
118. In conclusion, Ms Henderson stated that the Tribunal does not have a satisfactory diagnosis for Mr Corben's complaints. Furthermore, there is no evidence of work causation for such complaints particularly with the clear video evidence, which significantly undermines the restrictions and symptoms, which the Applicant claims he suffers from. In all of these circumstances, Ms Henderson submitted that the decisions under review should be affirmed.
findings
119. The Tribunal has reached decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
120. Mr Corben is seeking a review of decisions which ceased liability for a left foot condition; denied liability for compensation for ongoing incapacity of a bilateral foot condition; and denied a claim for permanent impairment of at least 10 per cent whole person impairment or possibly 20 per cent impairment under Table 9.5 of the Comcare Guide.
121. It is asserted that Mr Corben has ongoing bilateral foot problems which is an organic condition likely to be bilateral sesamoiditis and causally related to work at Australia Post. The diffuse symptoms, which Mr Grey acknowledged are difficult, are attributed, in the Applicant's submission, to bilateral sesamoiditis.
122. There is no dispute that Mr Corben had an acute injury in 1997 for which liability was accepted by the Respondent for the condition of a stress fracture of the left sesamoid bone.
123. The Tribunal is faced now with somewhat of a diagnostic dilemma. Dr Horsley's evidence to the Tribunal is that there is currently a left chronic sesamoiditis condition and no such sesamoiditis condition on the right. Dr Horsley holds this opinion and is unable to explain other matters such as the diffuse symptoms complained of by Mr Corben including heating on the soles of his feet, pain in his calf and thigh and the fact that continuing to walk provides relief and standing still causes discomfort.
124. Dr Horsley is the treating orthopaedic surgeon and has examined Mr Corben on at least eight occasions since 1997. Dr McGill cannot agree with Dr Horsley's diagnosis of chronic left sesamoiditis because he could find no local tenderness on examination either under the left or right great toe. Such tenderness would be expected, Dr McGill opined, if the conditions were present. Furthermore, Dr Schutz could not find on his examination any evidence of focal tenderness and therefore also concluded there was no sesamoiditis either on the left or right. Dr Chen, in her most resent report of 30 June 1999 having previously examined Mr Corben, diagnosed bilateral metatarsalgia with chronic bilateral foot pain. Dr Browne in his report of 12 September 2000 reported sesamoiditis as was supported Dr Roebuck's opinion in his report of 18 January 2000.
125. The Tribunal considers that while Dr McGill clearly did not find the clinical signs on examination which would allow him to find a diagnosis of sesamoiditis on the left or right, Dr Horsley's opinion is more persuasive in view of his long term consideration and understanding of Mr Corben's condition. On this basis, the Tribunal considers that Mr Corben does have chronic sesamoiditis of the left foot causally related to his work at Australia Post in November 1997. The Tribunal does not consider, again, based on Dr Horsley's opinion, that there is sesamoiditis on the right. Any problem with the right foot cannot be explained satisfactory by Dr Horsley as relating to work nor by any of the other doctors.
126. In relation to there being psychological component to Mr Corben's bilateral foot pain, the Tribunal is unable to make any such finding based on all of the available evidence to it.
127. The other symptoms complained of by Mr Corben of calf and thigh pain, aching and hot soles of his feet are not able to be explained in the sense of any of the doctors reaching a firm diagnosis apart from metatarsalgia. Even if this is the correct diagnosis, based on Dr Horsley's opinion and the opinion of Dr McGill, such diffuse symptoms cannot be explained by Mr Corben's work. They certainly do not relate, on Dr Horsley's clear evidence, to sesamoiditis, which the Tribunal has accepted is still present on the left.
128. In relation to Mr Corben's claim for permanent impairment, the Tribunal notes his evidence of difficulty climbing grades and steps and walking beyond 400 metres. The Tribunal saw Mr Corben playing golf and while it is not troubled by the normal gait as this is reported by Dr Horsley and also Dr McGill, the Tribunal is troubled however with the seeming effortlessness with which Mr Corben climbed up the hills on the Eastlakes Golf Course and the lack of any objective evidence of pain. Mr Corben did not use a cart on the course yet he had provided evidence that he would be required to use a cart on hilly courses or courses other than his usual course. While Mr Corben may put his feet in hot water after the game of a golf, this is not sufficient, in the face of other evidence, to persuade the Tribunal that Mr Corben has difficulty with grades and steps to the degree contemplated by the 10 per cent rating in Table 9.5 of the Comcare Guide. Dr Horsley did not see the video, but stated he had some difficulty reconciling Mr Corben's description of his difficulties with the evidence that he is actually continuing to play golf. Furthermore, the Tribunal notes the evidence that Mr Corben's symptoms are changeable and finds they are requisite not to the level envisaged by the relevant Table. It was also noted that Dr Horsley and indeed the Tribunal, has difficulty in understanding the biomechanical processes involved in Mr Corben finding it easier to keep walking rather than to stay still.
129. In all the circumstances, the Tribunal finds that Mr Corben did have an injury for which liability was accepted in respect of the left foot and on all of the evidence, it prefers the opinion of the treating specialist, Dr Horsley that Mr Corben has continued to have left sesamoiditis, originally referred to as a stress fracture and that liability should continue for this.
130. Pursuant to section 43 of the Administrative Appeals Act 1975, the Tribunal has decided:
(i) In relation to matter N2001/267, the Tribunal sets aside the decision under review and substitutes its decision that pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, liability continues for left sesamoid bone condition. Mr Corben is also entitled to compensation for reasonable medical treatment pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988.
(ii) The decision under review in relation to permanent impairment for the left lateral sesamoid bone condition (N2000/1473) is affirmed.
(iii) The decision under review in relation to the denial of liability for Mr Corben's chronic bilateral foot pain (N2001/1356) is affirmed.
I certify that the 130 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J Campbell, Member.
Signed: .....................................................................................
Ms Jessica Purches, Associate
Date/s of Hearing 13 & 14 September 2001
Date of Decision 22 May 2002
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Carroll & O'Dea Solicitors
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Ms L Rieper, Dibbs Barker Gosling Lawyers
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