Rusiecki and Australian Postal Corporation [2002] AATA 69 (6 February 2002)

Last Updated: 6 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 69

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/678

GENERAL ADMINISTRATIVE DIVISION )

Re ZIEMOWIT RUSIECKI

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 6 February 2002

Place Sydney

Decision The Tribunal determines that the decision under review be affirmed.

[SGD] Dr J D Campbell

Member

CATCHWORDS

Workers Compensation - incident - compensation denied - affirmed at reconsideration - consent decision accepting injury and liability for closed periods of incapacity and continuing medical expenses - new medical evidence - cessation of liability - cessation affirmed on reconsideration

Safety, Rehabilitation and Compensation Act 1988 - sections 4, 14, 16, 19, 62, 69, 70

Administrative Appeals Tribunal Act 1975 - sections 25, 43 and 44

Hanna v Australian Postal Corporation (1990) 12 AAR 511

Australian Postal Corporation v Bessey [2001] FCA 266

Power v Comcare (1998) 89 FCR 514

Comcare v Grimes (1994) 50 FCR 60

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

REASONS FOR DECISION

Dr J D Campbell, Member

1. In this matter Mr Rusiecki ("the Applicant") seeks a review of the decision of the reconsideration officer at Australian Postal Corporation ("the Respondent") dated 21 March 2000 which affirmed the decision of the Respondent dated 23 February 2000, to cease the payment of compensation on and from 28 January 2000 in respect of the Applicant's back condition.

2. A hearing was held before the Tribunal on 20 September 2001 at which the Applicant was represented by Mr Wright of Counsel. The Respondent was represented by Mr Johnson of Counsel. The Applicant, Dr Clery and Dr McGill presented oral evidence.

3. The following written material was placed into evidence before the Tribunal:

Exhibit Description Date

T1-T27 pp1-78 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")

ST1-ST6 pp1-14 Supplementary T-documents

A1 Medical Report Dr Selby Brown 18 December 2000

A2 Medical Report Dr Selby Brown 16 February 2001

A3 Medical Report Dr Selby Brown 9 March 2001

A4 Medical Report Dr Lewington 2 March 2001

A5 Medical Report Dr Korber 20 February 2001

A6 Applicant's Statement of Facts And Contentions 13 June 2000

R1 Medical Report of Dr Clery 15 November 2000

R2 Medical Report of Dr Clery 3 April 2001

R3 Medical Report of Dr McGill 2 February 2001

R4 Medical Report of Dr McGill 20 March 2001

R5 Video Tape 6 September 2001

R6 Booklet "All in a day's work" (Australia Post) 28 January 2001

R7 Respondent's Statement of Facts and Contentions 13 February 2001

issues

4. The relevant issues in this matter are:

* whether any back injury sustained by the Applicant in the course of his employment with the Respondent ceased on 28 January 2000; and

* whether the Applicant is entitled to compensation, under the Safety, Rehabilitation and Compensation Act 1988 in respect of any back injury, after 28 January 2000.

legislation

5. The relevant legislation in this matter is:

* the Safety Rehabilitation and Compensation Act 1988 ("the SRC Act") and in particular sections 4, 14, 16, 19, 62, 69, 70; and

* the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), sections 25, 43, 44.

background

6. On 17 November 1997 the Applicant completed an incident report (T4), in which the Applicant stated that while opening and tipping mail bags on 5 November 1997:

"...I had been opening several heavy mail bags when I started lifting a particularly heavy one I felt some strain in my back, so I dropped it on the ground and dragged it to the scales. It weighed 29.5 kg. I notified my supervisor Kim Chen and then MPC2 Evergisto Guerea. I kept opening and tipping the mail. When I woke up on the next day I experienced stiffness in my back, but as I did not feel any pain I did not consult my doctor. I did it on 14 November 1997 when my condition deteriorated..."

7. The Applicant consulted Dr Bennett, a general practitioner, on 14 November 1997 and was reported by Dr Bennett as having a back strain, caused by lifting approximately 30 kg. Dr Bennett considered the Applicant unfit to work for one week (T3). Upon a review on 21 November 1997, Dr Bennett considered the Applicant unfit to work for a further week (T5), but on 28 November 1997 Dr Bennett considered that the Applicant was fit to return to work on light duties (T7). On 29 November 1997 the Applicant completed a claim for compensation (T8).

8. On 18 February 1998 the Respondent denied liability in relation to the Applicant's claim (T10). The Applicant requested reconsideration of the denial of liability, on 24 February 1998 (T11). On 27 March 1998 the reconsideration of the determination affirmed the earlier decision to deny liability (T13).

9. On 23 July 1998 the Applicant was examined by Dr Gliksman, a specialist occupational physician, who provided the following advice to the Respondent (ST1):

"...1. There are no signs on today's physical examination, which could cast light on Mr Rusiecki's presenting problems. I note his apparent dislike of night shift work and this may bear some relationship to today's presentation, although this observation is speculative only.

2. It is possible that some degree of right latissimus dorsi muscle strain is present but the persistence of symptoms is not entirely consistent with this provisional diagnosis.

3.It is my suggestion that current modified duties be continued for a further month and the situation then be reviewed. If Mr Rusiecki's symptoms are not improved, I recommend that a CT scan of the thoracolumbar spine be performed at that stage, before concluding whether today's symptomatology represents a medical or a non-medical problem. I would also recommend re-examination of the inguinal region at that time..." (ST1)

10. On 23 September 1998, Dr Clery, a consultant orthopaedic surgeon, detailed the following opinion (ST2):

"...Ziemowit Rusiecki gives a most unusual history of back pain gradually extending from the mid-thoracic level down his back to his right buttock and down his right leg to groin and knee. He also claims to have lost control of both legs for a time.

Examination reveals apparent loss of power in his right leg but in the absence of measurable muscle wasting this is spurious. There is also a complaint of pain in the front of the left (non-symptomatic) thigh on resisted straight leg raising.

No objective abnormality was found on examination and X-rays do not show any cause for his complaints.

In my opinion Ziemowit Rusiecki may have suffered mild muscle strain in the para-spinal muscles to the right of the midline of his back in the incident on 5 November 1997. In my opinion any such strain has now fully recovered. The complaints regarding his right leg are non-anatomical and they are not due to any physical injury.

In my opinion Rusiecki is fit for all normal duties at work and no further treatment is required."

11. In a supplementary report, dated 16 October 1998, Dr Clery clarified his opinion and stated that it was a probability that the Applicant had suffered mild muscle strain in his para-spinal muscles of his back in the incident of 5 November 1997, and that he would have expected full recovery within one month of the injury (ST2).

12. Dr Robert De Costa a consultant radiologist, detailed the following findings and comments in relation to a CT scan of the Applicant's lumbosacral spine (ST4):

"Findings: L2/3: There are moderately degenerative facets. No focal disc lesion or stenosis is seen.

L3/4: There are mildly degenerative facets. There is mild generalised disc bulge but no associated stenosis.

L4/5: There is generalised disc bulge and moderately degenerative facets without associated stenosis.

At L5/S1, there is generalised disc bulge. In addition, there is a suspect right lateral disc protrusion with potential impingement of the foraminal segment of the right L5 nerve root. There are moderately degenerative facets at this level as well. There is no central or lateral recess stenosis. There is convex deformity of the right side of the theca beneath the L5/S1 disc level, almost certainly related to a conjoined right S1/S2 nerve root.

Comment: There is no evidence of central or lateral recess stenosis at any level. There is a suspect right lateral disc protrusion at L5/S1, with potential impingement of the right L5 nerve root in its foraminal segment. A right S1/S2 conjoint nerve root is seen.

MRI or CT myelography may be of use in this patient to determine how significant the impingement of the right L5 nerve root is."

13. On 11 November 1998, Dr Pattinson, a consultant orthopaedic surgeon, stated in a fitness for work certificate (ST5) that the Applicant was:

* fit for full hours, but restrict overtime;

* lifting to a maximum of 8 kg repetitively;

* no repetitive bending or twisting of back;

* standing tolerance 30 minutes per hour maximum;

* able to travel to work by walking; and

* no other restrictions.

14. On 19 February 1999, Dr McGill, a consultant rheumatologist, stated the following, consequent upon examination of the Applicant and a review of investigations (ST6):

"1. From what condition does the Applicant suffer?

The reproduction of right low back discomfort with right lateral flexion that he demonstrated is in keeping with a mechanical problem in the right low back region. The sign does not differentiate discomfort derived from a right-sided facet joint from discomfort from a right lateral disc protrusion. I think it is probable that he does have a small lateral disc protrusion at L5/S1 which has been the primary cause of his back symptoms. He did not have evidence of nerve root irritation or dysfunction.

2. Is it probable that any condition diagnosed above is attributable to the employment Corporation? If so, please state the nature of the connection.

Yes. Although it is not possible to attribute the small L5/S1 lateral disc protrusion to any particular event, in light of the fact that his work did involve fairly heavy lifting, I think it is probable that during one or more of those lifts that he did aggravate the L5/S1 disc contributing to the minor protrusion of that disc...".

15. On 10 May 1999 the Administrative Appeals Tribunal ("the AAT") issued pursuant to section 42C of the AAT Act 1975 the following agreed decision (T14):

(a) (i) The Applicant suffers from an injury, namely, aggravation of mechanical low back condition contributing to a small lateral disc protrusion of the L5/S1 disc, which arose out of or in the course of his employment with the Respondent, date of injury 5 November 1997;

(ii) The above injury resulted in incapacity for work from 14 November 1997 to 28 November 1997, 25 March 1998 to 27 March 1998, 14 May 1998 to 15 May 1998 and 27 July 1998 to 29 July 1998; and

(iii) The above injury resulted in the need for reasonable medical treatment from 5 November 1997;

(b) (i) The Respondent shall pay compensation to the Applicant under s 19 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of absence from work from 14 November 1997 to 28 November 1997, 25 March 1998 to 27 March 1998, 14 May 1998 to 15 May 1998 and 27 July 1998 to 29 July 1998;

(ii) The Respondent shall pay compensation to the Applicant under section 16 of the Act in respect of reasonable medical treatment required as a result of the above mentioned injury from 5 November 1997; and

(III) The Respondent shall pay the Applicant's costs of this application as agreed or as taxed."

16. Dr Bennett, the Applicant's treating general practitioner, certified the Applicant unfit for work from 1 June to 4 June 1999 because of recurrence of back injury (T16); and thereafter fit for suitable duties in July 1999, October 1999 and January 2000, each for a period of three months (T16).

17. On 5 August 1999, Dr Gliksman again provided advice to the Respondent in which he stated (T18):

"1. No inguinal herniation is currently present. I can find no objective clinical signs to confirm the existence of a radiologically suspected right L5 nerve root impingement. There is clinical evidence of functional overlay or voluntary exaggeration of signs.

2 ...In the event that such investigation has not been performed, I recommend that an MRI of the lumbar and lumbosacral spine be performed...."

18. On 27 January 2000 Dr Bennett indicated in a fitness for work certificate that the Applicant was fit for full hours, including overtime, and that the other restrictions were those as nominated by Dr Pattinson and the further restrictions of no squatting, or forceful pushing or pulling. The period of the certificate was six months from 21 January 2000 to 21 July 2000 (T18, p46).

19. On 7 December 1999, Dr Carr, a consultant rheumatologist, detailed the following opinion as a consequence of his examination of the Applicant and a review of the CT Scan of 22 October 1998 (T19):

"No firm diagnosis can be reached in Mr Rusiecki's case. His pain appears to be predominantly constitutional. He is suffering minor symptoms at the present time, more of stiffness and tightness. He may have a far lateral disc bulge at the right side of L5/S1 which could explain his symptoms. He certainly has no neurological deficits in the lower limbs. The only clinical findings to support his diagnosis are the restriction of right lateral flexion movements which do tend to reproduce his pain.

I feel there could be relationship (sic), by way of aggravation, to the incident of lifting bags on 5.11.1997. The strange thing about this is that he didn't report symptoms and went home and said this episode seemed to settle, although ten days later he awoke with pain. This appeared to relate more to sleeping postures.

I suspect that he most likely has a constitutional degenerative disc problem in his back which does restrict his work capacity and that it is this condition, rather than work related injury, that leads him to suffer symptoms presently. I suspect that he will have to live with this on and off over the next few years.

To this end I think he should be restricted to light duties, avoiding prolonged standing and sitting beyond thirty minutes and avoid lifting weights over 15 kg."

20. Dr Duncombe, a consultant radiologist, detailed her findings of a MRI scan of the lumbar spine in a report dated 11 January 2000 (T20):

"Findings: All the lower discs are normal in height and signal intensity. No focal disc protrusion is demonstrated. There is no evidence of thecal sac or nerve root compression.

In particular there was no evidence of a foraminal or far lateral disc, protrusion at the L5/S1 level. There is preservation of the epidural fat around the right side of the thecal sac at L5/S1 and within the foramen. The exiting right L5 nerve root appears normal. The previous CT scans were viewed. The soft tissue density demonstrated in the right L5/S1 foramen is not visible on the current MRI scans.

A conjoined nerve root is incidentally noted on the right at S1 - a normal variant.

The conus is normal and ends at L2.

Summary: No evidence of a disc protrusion or neural compression on the current scan."

21. In a further report dated 28 January 2000, Dr Carr, following his review of the MRI scan of 11 February 2000, concluded that (T21):

* the MRI scan was entirely normal, except that a conjoined nerve root is incidentally noted on the right side at S1;

* all discs in the lumbar spine were normal; he has no disc prolapse;

* the Applicant has no specific injury with Australia Post that would be likely to account for his ongoing nuisance back symptoms; and

* it is reasonable to be more aggressive with returning him to full time duties with minimal restriction.

22. On 2 February 2000 the Respondent advised the Applicant of his intention to consider terminating liability and provided opportunity for the Applicant to address such issues (T22). On 23 February 2000 the Respondent, in the absence of a response from the Applicant, determined that the Applicant was no longer entitled to payment of compensation in respect of his condition. (T23).

23. On 24 February 2000 Dr Gliksman in a further report to the Respondent concluded, that after a review of the MRI scan that (T24):

"...there is no credible basis on which to extend modified work duties and that Mr Rusiecki is fit to return to unrestricted work duties, without further delay..."

24. On 21 March 2000 the Respondent advised the Applicant that a reconsideration affirmed the decision of the delegate dated 23 February 2000 that the Respondent is no longer liable to pay his compensation on and from 28 February 2000, in respect of his back condition (T26).

applicant's evidence

25. The Applicant told the Tribunal that he was born in Poland in 1961, that he is married and has two sons aged five and one. In 1984 he undertook opportunities in Korea, completed three years of Korean language studies and an economics degree. In 1988 he was working as an interpreter and an accountant for a Korean Shipping Company. In 1990 he was in Spain and in January 1992 came to Australia. He undertook a certificate course in English at TAFE and in December 1994 commenced working as a mail sorter with Australia Post, sorting and indexing letters. The Applicant stated that he had no prior injury to his back before commencing work with Australia Post.

26. The Applicant informed the Tribunal that his duties as a mail sorter also involved sorting large letters and parcels and that his duties were rotated. He stated that his duties involved standing for periods up to two hours and twisting and bending over when operating machines, which he did four days out of five, and particularly when operating the OCR machine. The Applicant also stated that he would lift up to 8 kg, large letters up to 12 kg and mailbags normally up to 16 kg but occasionally over 16 kg and up to 28 kg. The Applicant stated that his duties have changed, he no longer deals with large letters or parcels, and his workday involves six hours standing and two hours seated.

27. The Applicant stated that on 16 April 1996 he was working opening mail bags and tipping the mail into cages for sorting, with small letters being prepared for loading into the OCR and the parcels being directed to the parcel area. The Applicant said he filled a cage for two hours and then pushed the heavy cage. When he sat down he felt pain on the right side, at the level of the belt line. He went home, but the next day the right side of his back around the belt line was very painful and he was unable to lie down. He went to see Dr Iskander, a general practitioner nearest his home, who recommended physiotherapy for two weeks. The Applicant stated that he was off work for two days, then returned to normal work completely recovered and was on normal duties until 5 November 1997.

28. The Applicant told the Tribunal that at 4 to 4.30 PM on 5 November 1997, he was working in the tipping area and there were plenty of heavy bags - one of three bags was so heavy that he dropped it on the ground. The Applicant stated that he felt strain on his right side above the belt line. He complained to his supervisor, and also to another supervisor that he had strained his back. He eventually placed the bag on the Kingfisher trolley and found out that the bag weighted 29.5 kg. The Applicant stated that on feeling the strain in his back, he sat down and felt that his back was stiff. He went home an hour later, at the end of his shift, and returned the next day to work his normal duties.

29. The Applicant stated that on 14 November 1997 (? 13 November 1997) he noticed his back was stiff and on several occasions he was asked to open mail bags and to undertake heavy lifting. These activities increased the stiffness in his back. He stated that on the Friday, which was 14 November 1997, he woke up and had difficulty walking downstairs on account of a painful right leg. The Applicant stated that he went to see his general practitioner, Dr Bennett, who treated him with rest and analgesies. He returned to work on 29 November 1997 on light duties, and on 14 December 1997 his duty restrictions were lifted and he returned to full duties, with which he was able to cope.

30. The Applicant stated that he claimed compensation for his time off work and in February 1998 was advised by the Respondent that his claim was denied. Towards the end of February 1998, at a time when his mother in law returned from Poland, the Applicant stated that he was changed to night shift. The Applicant stated that he had no problems during his first week, but in the second week, he lifted a lot of mailbags and experienced soreness in his back and unsteadiness in his legs. In the third week, that is early March 1998, the Applicant stated that he consulted Dr Bennett, who treated him with rest, analgesies and nominated particular work restrictions. The Applicant said that he recovered, but problems with the right side of his lower back, and some variable symptoms around the waistline, remained during the period March - June 1998 and he never returned to normal duties.

31. The Applicant described the following episodes/activities to the Tribunal:

(a) 25 March 1998 - off work for two to three days; symptoms were the same, namely back strain and difficulty in controlling his legs; started limping; left leg was stiff; no control of legs from waist; difficulty walking up stairs.

(b) 14 May 1998 - back remained stiff; similar symptoms; off work for a few days; saw Dr Bennett.

(c) 27 July 1998 - off work for a couple of days with similar symptoms of back soreness on the right side, sometimes on the left side; stiff legs; saw Dr Bennett.

(d) 22 October 1998 - CT scan of back.

(e) November 1998 - saw Dr Pattinson (orthopaedic surgeon).

(f) December 1998 - saw Dr Lewington (Rehabilitation Physician) who recommended rest and rehabilitation.

(g) May 1999 - AAT proceedings: his back had settled down, though it remained stiff and he continued on restricted duties; Dr Bennett remained his treating general practitioner.

(h) 31 May 1999 - while working on the OCR machine, he had cleared a lot of mail boxes and placed them in a Kingfisher trolley, when after sitting down for a period, he noticed back stiffness. The next day his back was very painful and stiff and he consulted Dr Bennett, who gave him a medical certificate for four days. His claim for worker's compensation was denied, and he was paid three days sick leave. He returned to restricted duties and his back condition settled down to the normal stiffness.

(i) December 1999 - saw Dr Carr and underwent an MRI scan on 11 January 2000.

(j) 15 March 2000 - Dr Lewington provided a certificate for light duties; Dr Bennett's recommendations no longer accepted by the Respondent.

(k) Late February/early March 2000 - discussion with employer; sent home on four weeks sick leave as injury not work related.

(l) 7 April 2000 - rostered day off. On 9 April 2000 again directed on sick leave, as his back stiffness had increased.

(m) 4 June 2000 - received letter from employer stating that he could resume work on 7 or 8 June 2000; Dr Bennett recommended light duties; Said he was on annual leave to July and would not be coming back until completed.

(n) 26 July 2000 - six months review by Dr Bennett who again recommended restricted duties.

(o) 6 October 2000 - returned to work on restricted duties; experienced only a slight strain in his back, but by the end of 2000 was experiencing more strain.

(p) 2001 - restricted duties, involving no lifting greater than 8 kg and no standing greater than half an hour.

(r) 23 July 2001 - a further medical certificate for restricted duties.

32. The Applicant concluded by stating that he was unable to carry out the unrestricted duties of a mail officer, as the heavy lifting/standing caused him pain and strain in his back.

33. In response to questions in cross examination, the Applicant stated:

* That following the incident of 5 November 1997 and the stiffness in his back the following day, he was able to carry out the full duties of a mail officer up to 14 November 1997 when he saw Dr Bennett. Such duties were detailed as:

- small letter sorting, OCR activities, indexing;

- letter preparation line (no more then two hours);

- hand rolling (no more than two hours per shift);

- preparing mail for OCR (nor more than two hours per shift);

- bag racks (no more than two hours per shift);

- docks;

- post code sorting (no more than few hours per shift);

- small letter sorting (one to two hours per shift);

- optical characters reader (OCR) (maximum four hours); and

- indexing (maximum four hours per shift).

* He was not trained on the letter mail labelling machine or the multi line OCR.

* That he was able to do all tasks associated with his employment duties, except those nominated by his restrictions, namely standing for more than half an hour or lifting more than eight kilograms.

* That he denies being able to stand for more than half an hour or lift more than eight kilograms, but does admit to being concerned of consequences if he exceeds the restrictions.

34. In response to further questions in cross examination, the Applicant stated:

* That in response to Dr Clery's findings on the examination in September 1998 that he had a full range of movement of his spine, he had difficulty in movements involving his back and a right leg,

* That in response to Dr McGill's findings on examination in February 2001 that he had a full range of movement, he had some restrictions.

* That in response to Dr Brown's findings on examination of a mild degree of restriction to all movements of the lumbar spine and that he did not have a limp, he stated that he does have a limp in his right leg from time to time.

* That in response to a statement that his back condition is aggravated after periods of prolonged sitting, the Applicant said his back would stiffen, but that sitting is not a big problem.

* That he denies exaggerating symptoms; that walking is not a problem and that lifting may be a problem.

35. A video was shown during cross examination which demonstrated the Applicant's stance and his walking to work.

36. The Applicant, in answer to questions in re-examination, stated that in his work situation he was not able to pick and choose his duties. Nevertheless he stated that he was coping with his duties.

medical evidence

dr clery

37. Dr Clery, a consultant orthopaedic surgeon, in his report dated 15 November 2000 (Exhibit R1), following an examination of the Applicant on 13 November 2000 detailed the following opinion, having reviewed the Applicant's clinical history and special investigation undertaken, including a CT scan of the lumbar spine and a MRI scan of the lumbar spine:

"Ziemowit Rusiecki continues to complain of pain in his back radiating down his right leg as far as his knee. Examination reveals no abnormality and both CT scan and MRI scan are normal.

The complaint of the painful area of Ziemowit Rusiecki's back has changed considerably since the previous examination. It now does not extend proximal to L1/2 whereas previously the complaint was of pain extending up to T7. The back pain now relates to the midline rather than to the right paraspinal region as before. The pain is now stated to be aggravated by sitting.

My opinion remains as expressed in my report of 23 September 1998. That is to say in my opinion Ziemowit Rusiecki may have suffered mild muscle strain in the paraspinal muscles to the right of the midline of his back in the incident of 5 November 1997. In my opinion any such strain has now fully recovered. In my opinion Ziemowit Rusiecki is not suffering from any injury, disease or other abnormality in his back, whether work related or not.

Please note that contrary to your letter or referral of 9 November 2000 I never expressed the view that Ziemowit Rusiecki was suffering from "a small lateral disc protrusion at the L5/S1 level which was the primary cause of his back symptoms". As previously stated I never expressed that view and it is not my view now.

In my opinion Ziemowit Rusiecki does not require any further treatment and is fit for all normal duties at work without restriction".

38. In a further report dated 3 April 2001 (Exhibit R2), Dr Clery, following a review of Dr Selby Brown's reports of 18 December 2000 and 9 March 2001, and the report of Dr Korber of 20 February 2001, stated that at his examination on 13 November 2000 the only abnormal finding was a mild restriction of lateral flexion of the lumbosacral spine. He agreed with Dr Korber that the Applicant is not suffering from any disc pathology due to trauma. Dr Clery concluded that the Applicant "is not suffering from any work related permanent impairment of his back or permanent loss of efficient use of his right leg or of his left leg".

39. In the oral evidence Dr Clery confirmed his opinion and in response to questions in cross examination detailed what factors he considered and weighed in reaching his opinion. These included the history of injury, the history of treatment, the history of pain, the examination, the special investigations and the existence of any differences/inconsistencies with evaluation of such being a matter of his opinion.

dr mcgill

40. In a report dated 2 February 2001, Dr McGill, a consultant rheumatologist, summarised his opinion in the following terms (Exhibit R3):

"This 39 year old man experienced an episode of back pain in April, 1996 which settled in two or three days. He had a recurrence of right low back symptoms in November, 1997 and has continued to report symptoms in that area ever since. Both when I saw him in February, 1999 and today, he described mild symptoms. His examination on both occasions showed no objective abnormality and his examination today was entirely normal. A CT scan on 22 October, 1998 showed a possible small right lateral disc protrusion at L5/S1 and, on the basis of that scan, I concluded previously that his mild low back symptoms were probably due to the small disc protrusion at L5/S1. The MRI performed in January of this year indicates that he does not have a disc protrusion at L5/S1 nor does he have any abnormality involving that or the other lumbar discs. MRI is a much more sensitive investigation for disc disease than CT and, in light of the MRI findings the possible abnormality on CT can be disregarded.

I presume that he has some very minor mechanical abnormality in his low back to account for his symptoms but the entirely normal MRI in conjunction with a normal physical examination indicate that he does not have any significant low back problem and he does not require any restriction on his work or other activities.

I think he is fit for the normal duties of a postal delivery coordinator grade 1 without restriction. He may experience discomfort at times but there is no reason to think that his back is more vulnerable to injury than any normal back and he should simply follow the appropriate lifting and bending techniques that apply to everyone".

41. In a supplementary report dated 20 March 2001, following a review of Dr Selby Brown's report and the report of Dr Korber, Dr McGill confirmed his opinion expressed in the report of 2 February 2001, while disagreeing with the opinion expressed by Dr Selby Brown (Exhibit R4).

42. In oral evidence before the Tribunal, Dr McGill detailed his opinion in the following terms:

* That the MRI findings and the clinical findings indicate that there is not much wrong with the spine.

* That no significant injury has occurred and that the Applicant is able to carry out all duties.

* That the Applicant may have a minor problem with his back, but there is no radiological evidence of it and his back is not vulnerable to injury.

* That the Applicant's complaints were of stiffness in his back and he had no evidence of a limp.

* The video demonstrated the Applicant enjoyed a normal stance and had no difficulty with walking.

* That the MRI findings demonstrated that there was no structural problem in his back.

43. In response to questions in cross examination, Dr McGill confirmed:

* That multiple MRI views at different angles are beneficial, with sagittal scan demonstrating a disc lesion and an axial scan demonstrating a protrusion to one side.

* That the MRI scan demonstrated normal discs and no significant structural problems, although there was slightly less hydration of the L5/S1 disc.

* That there is always a possibility that disc degeneration may be there.

* That the CT findings, in light of the MRI scan findings, are of no consequence.

* That the Applicant may have minor mechanical back problems.

dr lewington

44. Dr Lewington, a consultant rehabilitation physician, in his report dated 2 March 2001 (Exhibit A4), formed the following opinion as a consequence of seeing the Applicant on 16 December 1998, 15 March 2000 and 28 February 2001:

"Opinion: I felt that Mr Rusiecki continued to suffer with mechanical back pain, probably of discogenic origin and related to a minor disc lesion at the L5/S1 level as reported on original CT scan. It was also possible that there was some injury to lower lumbar facet joints at this level.

Prognosis: I felt Mr Rusiecki's back condition was stable with little prospect for significant change in the foreseeable future. I would consider him fit for full time work with a lifting restriction of 8kg (10kg on an infrequent basis) and with nil recurrent bending, nil forceful pushing, pulling or twisting. Sitting and standing should be limited to half-hour durations and with regular rotation of job tasks.

At this stage he is best served by participating in a physical upgrading program based on therapeutic exercises in a gymnasium. The cost of such a program is approximately $2000.

Liability: I would attribute Mr Rusiecki's back condition to his injury on the 5^th November 1997".

dr selby brown

45. Dr Selby Brown, a consultant orthopaedic surgeon, in his report dated 18 December 2000 (Exhibit A1), having examined the Applicant and reviewed the medical reports of Drs Bennett, Gliksman, Pattinson, Lewington and Carr as well as reports of the CT and MRI scans, formed the following opinion:

"Opinion: In my opinion Mr Rusiecki's above reported history, present complaints, and my findings on physical examination of him do indicate that he has most probably sustained some lower lumbar intervertebral disc damage and on the basis that such damage has occurred I would consider that he is permanently restricted in his capacity to perform physical activities requiring heavy or moderately heavy lifting, handling or bending, prolonged or moderately prolonged walking, standing, climbing or squatting and for activities likely to cause jerking, jolting or jarring of his back. As I have indicated above I consider that an independent review of his MRI scan films should be undertaken and dependent upon the result of such an independent review of these films it maybe necessary to proceed to further investigation, such as lumbar discography, in a further attempt to clearly identify whether or not there is evidence of lower lumbar intervertebral disc damage."

46. In a supplementary report dated 16 February 2001 (Exhibit A2), Dr Selby Brown stated that:

"...On the balance of probabilities I do believe that Mr Rusiecki's condition... is casually related to his injury incident at work on 15 November 1997..."

47. In a further report, after reviewing the report of Dr Korber of 20 February 2001 in relation to his review of the CT scan and the MRI scan, Dr Selby Brown stated (Exhibit A3):

"In my opinion Dr Korber's review does not clarify the clinical diagnosis. Mr Rusiecki's history and my recording of his present complaints as identified in my initial report to you dated 18.12.00 I believe supports my earlier indicated opinion that Mr Rusiecki has most probably sustained some lower lumbar intervertebral disc damage and as such is permanently restricted in his physical capacity as previously identified. As also earlier indicated it may be necessary to proceed to further investigation in a further attempt to clearly identify whether or not there is identifiable lower lumbar disc intervertebral disc damage which could either be in the nature of lumbar discography or CT myelogram investigation. I do not consider that such invasive investigation is warranted unless consideration requires to be given to surgical treatment and at the present time it is my opinion that such treatment is not indicated".

dr korber

48. In a report dated 20 February 2001, Dr Korber, a consultant radiologist, detailed his review of the two scans and stated the following opinion (Exhibit A5):

"In relation to the CT examination of 22.10.98 there is a definite difference between the right and left exit foramina at the L5/S1 level. In relation to the MRI there is no evidence of disc protrusion at the L5/S1 level on the right side. On the CT examination there is effacement of epidural fat in the right exit foramen. This also appears to be present on the MRI examination but with the absence of a disc protrusion. The changes on the examination would appear to be due to a rather more prominent nerve root sleeve, with some asymmetry of the thecal sac at this level. Whether this is causing the patient's current symptoms is a matter for clinical determination. I do not think that the appearances are likely to be consequent upon trauma. It is noted that at the level below there is also a developmental variation with two nerves roots coming off together (conjoint nerve root).

submissions

applicant

49. Counsel for the Applicant submitted that the Tribunal enjoyed a number of discretions in addressing the issues raised in this matter, namely:

* a discretion not to disturb the consent decision of 10 May 1999; and

* a discretion to review the material giving rise to the consent decision in so far as it assists the Tribunal in understanding the totality of issues before it.

50. In exercising any such discretions, Counsel submitted that the issue of fairness must be considered, and that the exercise of a discretion by the Tribunal to disturb the consent decision of 10 May 1999 would be unfair to the Applicant, in that prior to the making of the consent decision:

* there had been many medical opinions and investigations obtained and available to both parties;

* the Applicant had been on restricted duties for one year prior to the consent decision; and

* there had beenample opportunity to examine the merit of the Applicant's circumstances, including the facts surrounding the injury, the nature of the injury and the Applicant's credibility.

51. Counsel submitted that, following the consent decision, the Applicant had experienced periods of total incapacity, for example, between 1 June 1999 to 4 June 1999 and other times during the period 7 April 2000 to 2 October 2000, when the Applicant was directed to go on leave. Further, Counsel submitted that the effects of the original injury continued and that the Applicant was entitled to: compensation for his injuries, pursuant to section 14 of the SRC Act; compensation in respect of medical expenses, pursuant to section 16 of the SRC Act; and compensation for incapacity, pursuant to section 19 of the SRC Act.

respondent

52. Counsel for the Respondent submitted that the decision under review was the reconsideration decision of 21 March 2000, which affirmed the decision of the Respondent dated 23 February 2000 to cease the payment of compensation on and from 28 January 2000 in respect of the Applicant's back condition. Counsel submitted that the latter decision had been made pursuant to section 69(a) of the SRC Act and also sections 14, 16 and 19 of the SRC Act. The reconsideration decision was made pursuant to section 62(4) of the SRC Act. Counsel submitted that the decision of 23 February 2000 was not a reconsideration of the consent decision of 10 May 1999 pursuant to section 62(1) of the SRC Act, but as nominated earlier, a determination made pursuant to sections 69(a), 14, 16 and 19 of the SRC Act. As such, the reconsideration decision maker had to analyse all the necessary facts to determine whether it was a continuing liability. In such an analysis, Counsel submitted that the consent decision of 10 May 1999 was not disturbed, and the effect of the reconsideration decision having no effect on compensation payments made to the Applicant up to 27 January 2000 (inclusive). In making such submissions, Counsel relied primarily upon two cases, namely Power v Comcare (1998) 89 FCR 514 and Hanna v Australian Postal Corporation (1990) 12 AAR 511.

53. In turning to the particulars in this matter, Counsel for the Respondent contended that the clinical history, the MRI investigation of the lumbosacral spine, and the opinions of Drs Korber, McGill and Clery, clearly show that the Applicant does not continue to suffer from any injury to his back contributed to by his employment with the Respondent as and from 28 January 2000.

consideration and finding

54. The decision under review is the reconsideration determination of 21 March 2000 which affirmed the decision of the Respondent dated 23 February 2000 to cease payment of compensation on and from 28 January 2000 in respect of the Applicant's back condition. In addressing the decision of 23 February 2000, the Tribunal notes that the Respondent could have determined that this was a reconsideration determination of the consent decision of 10 May 1999 pursuant to section 62(1) of the SRC Act, but that it did not elect to do so. Instead, the Tribunal accepts that the decision was made in exercise of the power pursuant to sections 69(a), 14, 16 and 19 of the SRC Act. Further, it is clear to the Tribunal that the reconsideration decision was made pursuant to section 62(4) of the SRC Act, following a request by the Applicant on 6 March 2000. As such, the Tribunal in reviewing the reconsideration decision, is able to exercise all the power and discretions conferred by the SRC Act on the reconsideration decision-maker (section 43(1) of the AAT Act).

55. In addressing the power and discretions available to the Tribunal in such a review activity, the Tribunal notes the following passage from the judgement of Sackville J in Power v Comcare 1998 [supra] at FCR 526:

"...I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the Applicant for his coronary condition, had power to consider whether that condition had ever been casually related to his work. The question of Comcare's liability arose because Comcare was empowered under s 69(a) of the SRC Act to make a determination "in relation to" to the claim made by the Applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease. It was requested to make that determination accurately (S69(a)) and in accordance with the "substantial merits of the case (s 72(a))..."

56. Further, in the subsequent paragraphs of his decision in Power v Comcare [supra] Sackville J stated that the reconsideration decision-maker had to analyse all the necessary facts, including fresh information, to determine whether Comcare had a continuing liability. Further, the Tribunal notes that the reconsideration decision-maker is not bound by any issue estoppel arising from the earlier determination (Comcare v Grimes (1994) 50 FCR 60), although it can exercise discretionary power to exclude evidence recanvassing the issues resolved in the earlier decision (Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526).

57. The Tribunal further notes that in Hanna v Australian Postal Corporation (1990) 12 AAR 511, Davies J at 513 concluded that by virtue of s 43(6) of the AAT Act 1975, a consent decision made by the Administrative Appeals Tribunal is deemed to be, for all relevant purposes, a decision of the Commissioner for Employees' Compensation and as such is subject to reconsideration pursuant to section 62(1) of the SRC Act.

58. Further, the Tribunal is reminded in Australia Postal Corporation v Bessey [2001] FCA 266 that for an aggravation of an underlying condition to occur, certain circumstances must be found to exist, as nominated at paragraph 6 of the judgement by Gyles J:

"6. It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity."

59. In addressing all the necessary facts in this matter the Tribunal has been particular in considering the entire medical opinions and investigations proffered and conducted in this matter. Relevant extracts of such opinions/investigations have been detailed earlier in this decision. The Tribunal is also mindful that the decision under review is the determination of 21 March 2000 and, while it is not intended to recanvas the consent decision of 10 May 1999, the Tribunal will, as part of its considerations, analyse and appreciate the longitudinal history of the Applicant's claim from the time of injury forward.

60. The Tribunal notes that the Applicant described the initial injury occurring on 5 November 1997 when opening and tipping mail bags; that he continued to work undertaking his full duties until 14 November 1997, when he reported to his general practitioner became of increasing pain in his back. The Tribunal notes that Dr Bennett, the treating general practitioner, considered that the Applicant had a back strain, and certified the Applicant unfit for work for two weeks, prior to returning to work on light duties for two weeks, prior to resuming unrestricted work on 14 December 1997. The Applicant's claim for compensation was denied on 24 February 1998. The Tribunal notes that the Applicant commenced on night shift towards the end of February 1998 and that his back symptomatology reappeared by the second and third weeks of March 1998. During the period March 1998 to June 1998 he had symptoms on the right side in his lower back and some variable symptoms around the waist line. The Applicant had nominated particular work restrictions.

61. The Tribunal notes the findings and advice of Dr Gliksman, a specialist occupational physician, in his report to the Respondent on 23 July 1998. In particular, the Tribunal notes that Dr Gliksman was unable to define the nature of the Applicant's problems, but believed that strain of the right latissimus dorsi muscle was possible. He advised that the Applicant continue on restricted duties for a month and that a CT scan of the lumbosacral spine be performed.

62. On 23 September 1998 Dr Clery, a specialist orthopaedic surgeon, detailed a report in which he concluded that the Applicant was fit for all normal duties and no further treatment was required. The Tribunal notes that in a supplementary report, dated 16 October 1998, Dr Clery clarified his opinion when he stated that it was a probability that the Applicant had suffered mild muscle strain in the para-spinal muscles of his back in the incident of 5 November 1997, and that he would have expected full recovery within one month of the Applicant's injury.

63. The Tribunal observes that in a report dated 22 October 1998, Dr De Costa, a consultant radiologist, nominated that there was a suspect right lateral disc protrusion at L5/S1 with potential impingement of the right L5 nerve root and that MRI or CT myclography may be useful in determining the significance of the impingement.

64. The Tribunal further observes that the Applicant continued on restricted duties as certified by Dr Pattinson, a specialist orthopaedic surgeon, on 11 November 1998. Further, the Tribunal notes that on 19 February 1999 Dr McGill, a specialist rheumatologist, opined that the Applicant may have a small lateral disc protrusion at the L5/S1 level and that work did aggravate the L5/S1 disc contributing to the minor protrusion of the disc.

65. The Tribunal also notes that the Applicant had further problems with his back in June 1999 and remained on restricted duties following quarterly reviews. On 5 August 1999 Dr Gliksman again advised the Respondent that he was unable to find any objective signs to confirm the existence of a radiological suspected right L5 nerve root impingement. Dr Gliksman also commented that "there is clinical evidence of functional overlay or voluntary exaggeration of signs." (T18).

66. The next clinical episode involved the Applicant being reviewed by Dr Carr, a consultant rheumatologist, who opined (T19):

"I suspect that he most likely has a constitutional degenerative disc problem in his back which does restrict his work capacity and that it is this condition, rather than the work related injury, that leads him to suffer symptoms presently."

67. The Tribunal next notes the report of the MRI scan of the lumbar spine by Dr Duncombe, a consultant radiologist, on 11 January 2000 and the summary which states: "No evidence of a disc protrusion or renewal compression on the current scan."

68. On 28 January 2000, Dr Carr, following a review of the MRI scan of 11 January 2000, concluded that the MRI scan was entirely normal, with the exception of a conjoint nerve root on the right side; that all discs in the lumbar spine were normal and that there was no disc prolapse; that the Applicant's ongoing nuisance back symptoms were unlikely to be related to any specific injury with Australia Post and that the Applicant should return to full time duties with minimal restrictions. The Tribunal notes that on 24 February Dr Gliksman was of a similar opinion.

69. In further reports dated 15 November 2000 and 2 April 2001, and in his oral evidence, the Tribunal observes that Dr Clery remained firmly of the view that the Applicant is not suffering from any injury, disease or other abnormality in his back, whether work related or not; that he does not require any further treatment and is fit for all normal duties at work without restrictions.

70. The Tribunal next observes the opinion of Dr McGill, expressed in his reports of 2 February 2001 and 20 March 2001 and in his oral evidence, as follows:

* that the MRI findings and the clinical findings indicate that there is not much wrong with the spine; and

* that no significant injury has occurred to the lumbar spine and that the Applicant is able to carry out all duties.

71. The Tribunal notes the opinion of Dr Lewington, a consultant rehabilitation physician, in his report of 2 March 2001 (Exhibit A4), that the Applicant "continued to suffer with mechanical back pain, probably of discogenic origin and related to a minor disc lesion at the L5/S1 level as reported on the original CT scan", and that this was attributable to the injury of 5 November 1997.

72. The Tribunal notes the opinion of Dr Selby Brown, consultant orthopaedic surgeon, in his report of 18 December 2000, that the Applicant has most probably sustained some lower lumbar intervertebral disc damage and as such is permanently restricted in his physical capacity. Dr Selby Brown sought an independent review of the CT scan and MRI scan. After reviewing the report of Dr Korber, a consultant radiologist, Dr Selby Brown concluded that Dr Korber's review did not clarify the clinical diagnosis, which Dr Korber expressed in a further report dated 20 February 2001, while at the same time confirming his earlier opinion.

73. Finally, the Tribunal observes the report of Dr Korber, dated 20 February 2001 (Exhibit A5) in which he stated that "there is no evidence of disc protrusion at the L5/S1 level on the right side... I do not think that the appearances are likely to be consequent upon trauma."

74. Following the detailed review and analysis of the Applicant's clinical history and the specialist investigations and medical opinions given, the Tribunal has clearly identified that there are two streams of medical opinion in this matter. The first stream of opinion commences with Dr Bennett, the treating general practitioner, who diagnosed back strain as a result of the incident of 5 November 1997, but returned the Applicant to full duty on 14 December 1997. Dr Bennett related further episodes of similar symptomatology to the back strain and placed the Applicant on restricted duties, an opinion shared by Dr Pattinson. Continuing symptomatology is identified as being related to a suggested small disc protrusion at the L5/S1 level on the right side, in a CT scan performed on 22 October 1998. Such a view was initially held by Dr McGill, but was changed consequent to the MRI scan being undertaken in January 2001. Dr Lewington and Dr Selby Brown continued to opine that the Applicant's symptomatology is related to a small disc protrusion at the L5/S1 suggested by the CT scan.

75. The second stream of opinion also commenced with Dr Bennett, but, with the continuation of symptomatology, specialist opinion was sought. On examination in July 1998, Dr Gliksman was unable to find any signs or symptoms which could cast light on the Applicant's presenting problems but suggested a CT scan of the lumbosacral spine be undertaken. Dr Clery was of the opinion that the Applicant suffered mild muscle strain and was fit for full duties by September/October 1998. A CT scan was undertaken in October 1998 and Dr McGill formed an opinion as nominated earlier. However, following further examinations by each of Drs McGill, Clery and Gliksman and the performance of an MRI of the lumbar spine, the three specialists opined that there was no disc prolapse at the L5/S1 level, that any continuing symptomatology was not related to the Applicant's injury at work and that the Applicant was fit to return to full duties. Such an opinion was also shared by Dr Carr.

76. In addressing the two streams of clinical opinion, the Tribunal concludes that the second stream of opinion is to be preferred for the following reasons:

* the opinions expressed by Drs Gliksman, McGill, Clery and Carr are consistent with the MRI scan findings as nominated by the reporting radiologist and the independent reviewing radiologist, Dr Korber;

* the opinions expressed by Drs Lewington and Selby Brown are inconsistent with the MRI scan findings;

* the MRI scan findings exclude both disc prolapse and nerve root impingement at the L5/S1 level on the right side;

* there is inconsistency over time in the Applicant's reporting of symptomatology to the same clinician (Dr Clery) and to different clinicians (issue of limp); and

* the MRI scan findings do not demonstrate a clinical situation, where it could be concluded that an aggravation of a pre-existing condition could be demonstrated.

77. As a consequence of the its findings, the Tribunal concludes, having considered the clinical opinions of Drs McGill, Carr, Clery and Gliksman, that any continuing symptomatology is unrelated to the incident of 5 November 1997 and is not arising out of the nature and conditions of the Applicant's employment. Further, the Tribunal concludes that the effects of the injury sustained by the Applicant arising from the incident of 5 November 1997 had ceased by 28 January 2000.

determination

78. The Tribunal determines that the decision under review be affirmed.

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

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

Associate

Date/s of Hearing 20 and 21 September 2001

Date of Decision 6 February 2002

Counsel for the Applicant Mr Wright

Counsel for the Respondent Mr Johnson