Hocking and Australian Postal Corporation [2002] AATA 963 (22 October 2002)

Last Updated: 24 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 963

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/123

GENERAL ADMINISTRATIVE DIVISION )

Re TARYN HOCKING

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr G A Mowbray

Date 22 October 2002

Place Canberra

Decision The Tribunal sets aside the decision under review of 8 March 2001 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal that the Applicant's annular tears are responsible for her back pain the operation of the V-Sort frames was a cause of the Applicant's annular tears therefore the Applicant suffered an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 at 4 January 2001 the Applicant continued to suffer from this injury as she did in December 2001 as a consequence the Applicant has been partially incapacitated for work the Applicant is entitled to medical expenses and incapacity payments under sections 16 and 19 of the Act. The Tribunal directs the Respondent to determine the quantum of the compensation payments to which the Applicant is entitled under sections 16 and 19 of the Act. The Tribunal orders the Respondent to pay the Applicant's costs as agreed or taxed.

..............................................

Member

CATCHWORDS

COMPENSATION - nature and cause of injury - what constitutes continuing injury - cessation of injury

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19

Re Carson and Telstra Corporation (2001) 33 AAR 351

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

Commonwealth v Borg (1991) 20 AAR 299n

Comcare v Nichols [1999] FCA 209

Australian Postal Corporation v Bessey (2001) 32 AAR 508

Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157; 61 WN (NSW) 87

Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Re Bessey and Australian Postal Corporation (2000) 60 ALD 529

Willcocks v Comcare (2001) 66 ALD 119

REASONS FOR DECISION

22 October 2002 Mr G A Mowbray

1. This is an application by Ms Taryn Hocking for review of a decision made by the Australian Postal Corporation (referred to in these reasons as Australia Post) on 8 March 2001 that its liability for Ms Hocking's lower back pain had ceased with effect from 4 January 2001.

2. At the hearing of this matter counsel for Ms Hocking was Ms Jane Godtschalk and counsel for Australia Post was Mr Geoffrey Johnson. The main hearing was held on 13 and 14 December 2001 during which a new summons for documents was issued to Australia Post in place of one it had failed to answer. A further hearing was conducted with counsel by telephone on 9 April 2002 confined principally to addressing issues arising from the new summons material.

Background

3. Ms Hocking was born on 2 March 1964. She first worked for Australia Post from 1987 to 1991. She then left to travel and on her return pursued other work including as a builder's labourer and self-employment as a landscape gardener. She rejoined Australia Post in January 1998.

4. As part of her new application for employment Ms Hocking was medically examined. She disclosed a history of back pain following exertion but was passed as medically capable of performing all duties of her position. Australia Post's concerns were not totally allayed and Ms Hocking was asked in March or April 1998 to provide a report from a medical practitioner confirming her fitness for duty. She duly did so.

5. On 6 July 2000 Ms Hocking made a claim for rehabilitation and compensation in relation to lower back pain. In it she stated that she had first noticed the injury in October 1999, although she had not obtained medical treatment until the day before making the claim. She attributed the injury to turning and reaching while sorting and delivering mail.

6. Australia Post initially denied liability for lower back pain but accepted liability on 18 September 2000 after Ms Hocking asked for a reconsideration. On 30 November 2000 Australia Post notified Ms Hocking it intended to cease liability. On 2 January 2001 it determined it would cease to be liable from 4 January 2001 to pay compensation under any of the "benefits" provisions of the Safety, Rehabilitation and Compensation Act 1988 (the Act) including sections 16, 19, 24 and 27.

7. Ms Hocking sought a reconsideration of this determination, but it was affirmed in the reviewable decision of 8 March 2001. The Tribunal received an application for review on 15 March 2001.

Legislation

8. The relevant provisions of the Act are as follows

"4 Interpretation

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

...

"injury" means:

...

(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;

...

"medical treatment" means:

(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

...

(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

...

(h) ... the provision of medicines, ... whether in a hospital or otherwise;

...

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

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

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

..."

"14 Compensation for injuries

(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.

..."

"16 Compensation in respect of medical expenses etc.

(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.

..."

"19 Compensation for injuries resulting in incapacity

(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

..."

Evidence

9. The documentary evidence before the Tribunal consisted of the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (labelled T1 to T48 within the set), exhibits A1 to A13 submitted by the Applicant and R1 to R6 submitted by the Respondent. Exhibits A6 to A13 and R6 were admitted into evidence at the telephone hearing on 9 April 2002 and relate to other employees of Australia Post. The names of those employees are subject to a confidentiality order under section 35 of the Administrative Appeals Tribunal Act.

10. The Tribunal heard oral evidence from Ms Hocking, Dr Owen White, a neurologist, Dr Michael Downes, an orthopaedic consultant and Dr Neil McGill, a consultant rheumatologist.

Issues

Scope of the decision under review

11. In this matter Australia Post has made a determination to cease liability under what it calls the "benefits" provisions of the Act, specifically mentioning sections 16, 19, 24 and 27 (T34). In doing so it has adopted an approach consistent with the decision of Deputy President Estcourt in Re Carson and Telstra Corporation (2001) 33 AAR 351, rather than purporting to revoke the initial acceptance of liability under section 14 of the Act as occurs in many compensation matters before the Tribunal.

12. However the precise scope of the decision under review is unclear. Although four sections of the Act are specifically mentioned, the determination purports to apply to all "benefits" provisions of the Act. In theory this could extend to various other sections of the act such as 29 (household and attendant care services) and 39 (cost of alterations where an employee is undertaking a rehabilitation program). However Ms Hocking does not appear to have sought or obtained compensation under any provision other than sections 16 and 19.

13. In addition there is no evidence before the Tribunal that Ms Hocking ever sought compensation under sections 24 and 27, which relate to permanent impairment. Of the four sections referred to the documentary evidence only relates to sections 16 and 19.

14. The issues therefore as I see them are

* what is the nature of Ms Hocking's injury

* what is the cause of that injury

* what constitutes continuing injury

* is Ms Hocking's injury continuing or has it ceased

* is Ms Hocking entitled to incapacity payments and medical expenses.

Consideration of Issues and Findings

The burden of persuasion

15. It is not particularly apt or appropriate to refer to a common law concept of a burden or onus of proof placed on a particular party in administrative proceedings in the Tribunal. However there has been a line of authority in both the courts and the Tribunal on what has been described as the "burden of persuasion" in these matters.

16. Where the reviewable decision is one "ceasing liability" the authorities place an obligation on the Tribunal to be satisfied on the balance of probabilities that the particular condition has ceased. In Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525 Justice O'Connor and Mr Barbour spoke of an obligation to produce material supporting a change in circumstances

"In our view, as it is clear from the statutory intention that the respondent can only reconsider a determination when there has been a change in circumstances, it seems justifiable to expect the respondent to be able to produce material in these proceedings supporting its assertion that the applicant is no longer entitled to compensation. There is no strict burden of proof as such but there must be additional evidence to indicate that there has been such a change in circumstances."

17. Justice Jenkinson in Commonwealth v Borg (1991) 20 AAR 299n at 307 put it in these terms

"I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist."

18. In Comcare v Nichols [1999] FCA 209 Justice Heerey said at [22]

"In the present case, Mrs Nichols was receiving compensation in respect of an injury (RSI) which had been found in 1985 to result in incapacity for work. Comcare contended in 1996 that she no longer suffered from RSI. Comcare therefore had to establish this fact. Perhaps more accurately, it was the Tribunal, as an administrative decision-maker, which had to satisfy itself that this was the case. It was so satisfied."

Nichols is consistent with the earlier authorities and is the approach I will adopt in these proceedings.

History of the injury

19. Ms Hocking gave evidence that she had been healthy during her first period of work at Australia Post in the late 1980s. There was no family history of back problems except for one of her seven sisters. During her employment as a labourer and landscaper she would occasionally have a stiff back after a day of heavy work. This could be fixed by rest and was part of a feeling of general tiredness. By the following day her symptoms had always resolved entirely.

20. Ms Hocking stated that Dr Downes' report (T18) contained an inaccurate history. She had not been involved in labouring work before her first period at Australia Post, nor had she joined Australia Post on that first occasion to protect her back and left once her back was strong again. The history of labouring work and back pain only took place between her first and second periods of employment at Australia Post as recorded in every other doctor's history.

21. When this was put to Dr Downes during his oral evidence he indicated it would not alter his conclusion. On that basis Mr Johnson for Australia Post was prepared to concede that Dr Downes might have made a mistake in his history.

22. In about June or July 1997 Ms Hocking experienced what she described as a muscle spasm while going to the toilet. She went to casualty but recovered while waiting to be seen by a doctor. The pain had lasted for a few hours. She was still sore when seen but could move by that time. She received no treatment and did not consult her general practitioner. She rested for one day and did not experience ongoing problems.

23. When she reapplied to Australia Post in January 1998 she attended a medical examination and disclosed her prior history of back problems related to heavy work. She agreed with the doctor's notes of that examination (T4). She was then asked to get clearance from her own doctor and did so. Her back was not causing any problems at this time and an X-ray taken at this time was normal.

24. During cross-examination Ms Hocking was questioned as to whether she had mentioned the episode of acute pain in mid-1997 to various doctors. She was uncertain whether she had told anyone other than Dr Jackson, the doctor who gave her the clearance requested by Australia Post. The purpose of seeing Dr Jackson at that time was to get a medical clearance, so Ms Hocking had told her everything she could recall. Later specialists had had access to Dr Jackson's report (T9). I remark here that Dr Jackson recorded the incident in her notes from a consultation on 8 April 1998 (Exhibit A2).

25. Ms Hocking said she experienced no problems in sorting and delivering mail throughout 1998. A new sorting system was introduced in September 1999. The new "V-Sort" system had three sorting modules to the front and either side, and shelves above shoulder height and below knee height. The previous system had only had one sorting module in front and only required arm movements. When shown a picture of a V-Sort frame (Exhibit R2) Ms Hocking indicated that the system she used had more shelves and thus was higher at the top and lower at the bottom. Sorting took place in the first part of the day and could take from 1½ hours up to 3 or 4 hours.

26. About a month after the introduction of the new system Ms Hocking felt pain in her left leg, which was entirely new. It progressively worsened and spread into her back. She saw a doctor in November 1999 and to the best of her recollection underwent some physiotherapy treatment. In about February 2000 she took about 10 weeks off to look after her partner who had given birth to a child. During this time off her pain reduced but did not resolve entirely. It increased again when she went back to work in about May 2000.

27. It was June or July 2000 when she completed an incident report attributing her pain to the V-Sort frames because it was while working on these that she experienced severe pain. She consulted Dr Shroot who reduced her hours. When she continued to complain of pain, Dr Shroot restricted her to working on two sorting frames at a time. Her pain continued and her own general practitioner Dr Bicknell restricted her to working on one frame at a time. According to Ms Hocking these work restrictions eased her pain but did not resolve it entirely.

28. At some time Ms Hocking reverted to working on two sorting frames, but sitting down rather than standing. She found this was more comfortable and she was able to meet the time requirements of the job. In about May 2001 she was told by Australia Post that she was not allowed to sit because ergonomic reports indicated it was better that she stand. She had since asked for a copy of these reports on numerous occasions without receiving a response. She had then tried only sitting when needed but found this strategy did not work. In about September 2001 Dr Bicknell certified her as unable to use the V-Sort while standing. At the time of the hearing in December 2001 she was no longer sorting mail at the V-Sort and performed the task of "streeting" mail while sitting at the old style of frame.

29. Ms Hocking was adamant that the pain she experienced while sorting was of a different intensity to that she experienced performing other activities. It was also different to the sharp immediate pain she had felt in mid-1997.

30. In giving her oral evidence Ms Hocking presented as a straightforward and honest individual genuinely trying to give an account of her circumstances as she saw them. This impression was confirmed by the medical witnesses. I accept Ms Hocking as a reliable and credible witness.

What is the nature and cause of Ms Hocking's injury?

31. Dr Michael Gliksman, an occupational physician, examined Ms Hocking at Australia Post's request on 25 October 2000. He was not called to give oral evidence but several of his reports and letters were before the Tribunal (T26, T27, T28, T30 and T31). As part of his investigations he requested a MRI scan of Ms Hocking's lumbosacral spine.

32. The report of the MRI scan appears at T29. The findings were as follows

"There is loss of signal from the L5/S1 disc, associated with a tear in the posterior annulus and a small posterior disc bulge. No neural compromise has been demonstrated.

There is a small tear in the right postero-lateral annulus at the L4/5 level and there is minimal loss of signal of the disc. No disc prolapse is seen. No neural compromise has been demonstrated. There is no evidence of signal loss from the other discs. No other abnormality has been demonstrated in the lumbo-sacral spine."

33. Having received this report Dr Gliksman wrote that

"These findings provide the pathophysiological basis for Ms Taryn Hocking's presenting problems. However the history obtained by me on 25 October 2000 does not identify clearly the mechanism of causation of tearing.

The annulus of the discs is a tough fibrous band that can be weakened or torn but usually requires significant trauma for this to occur. Usual activities on a V-sort frame would not provide a source for such trauma but could make symptomatic pre-existing annular tears." (T30)

34. The three doctors who gave oral evidence all differed in their opinions as to the significance of the annular tears and their origin. In both his oral evidence and his report (T43) Dr McGill ascribed Ms Hocking's low back pain to degenerative changes in her lumbar discs. He considered annular tears to be part of the natural history of disc degeneration and did not think it at all likely that using a V-Sort would cause an annular tear. The action of standing and doing the amount of twisting required for the apparatus would not put strain on the discs or cause damage.

35. While he did not consider her work duties to have any causative role, Dr McGill believed that standing at a V-Sort apparatus had the potential to increase the level of Ms Hocking's symptoms for up to a week. If she continued to work at the V-Sort she would continue to feel an increase in discomfort. This would not in any way increase her ongoing susceptibility to injury or affect the underlying pathology.

36. Dr White agreed that the annular tears were responsible for Ms Hocking's symptoms. In his opinion the bending and twisting involved in using the V-Sort could well have caused the tears and was certainly sufficient to have aggravated any prior injury as Dr Gliksman had suggested. In his oral evidence Dr White seemed more convinced that the V-Sort was the cause of the tears, without suggesting that it was absolutely certain. Significant trauma was required to tear the annulus but the repeated application of small amounts of trauma over a period of time was sufficient, especially if the bending and twisting was rapid. He used the analogy of breaking a paper clip by bending it backwards and forwards repeatedly.

37. Dr White also disputed Dr McGill's finding that Ms Hocking had degenerative disease. In his opinion, evidence of degenerative changes apart from the tears themselves would be required before making a finding of any significant degenerative disease. Examples of these degenerative changes included thickening of facet joints, osteophyte formation on the intervertebral joints and gas formation within the discs. None of these other changes were visible either in the MRI scan or in a CT scan performed at about the same time. It was true that people with advanced degenerative change required less trauma to create an annular tear, but tears in themselves were traumatic.

38. In his reports Dr Gliksman similarly excluded a pre-existing degenerative condition as a likely cause (T26 and T31).

39. Dr Downes concluded that Ms Hocking had a non-specific backache for which the cause had not been determined. The contents of the MRI report did not alter his conclusion, as he did not accept that the damaged disc was likely to be the source of her pain. Even if the annular tear was relevant it was very unlikely that it had been caused by use of a V-Sort. Annular tears were not usually associated with injury and degenerative tissue could develop tears spontaneously.

40. Dr Downes accepted that use of a V-Sort could irritate Ms Hocking's symptoms, but said it would not worsen the pathology. Accepting for the sake of argument that the annular tear was relevant, then twisting and putting stress on a weak disc through rotatory movement could cause pain.

41. There was also some dispute as to the significance of Ms Hocking's previous episodes of back pain. Dr McGill gave evidence that gardening and landscaping duties such as heavy shovelling work were more likely to put strain on a disc and contribute to an annular tear than use of a V-Sort, although tears were also seen in people with no history of significant physical activity. However during cross-examination he also made clear that a significant aggravation from these activities would have caused a substantial increase in pain lasting for at least a couple of weeks. If pain resolved after a couple of hours then the activity would have not caused any permanent change in the back.

42. Dr White believed the previous episodes of back pain were simply muscular spasm as they had settled fairly rapidly. He agreed that an activity such as continuous digging and shovelling over five years would be likely to cause back problems, but that was not the history of physical activity he was given and there was no history of complaints occurring for substantial periods after Ms Hocking discontinued digging. A history of continuing back pain was different to a history of intermittent pain associated with physical activity. The absence of any back pain from July 1997 to September 1999 was consistent with a lack of injury at that time. One would not expect there to be a remote development of pain in relation to an annular tear that occurred some years previously

"It is somewhat akin to cutting your arm and waiting six months and saying, 'Oh, that hurts.' It does not happen." (Oral evidence)

43. He also did not consider Ms Hocking's general gardening and labouring activities to be any more likely to be associated with an annular tear than her V-sort usage. Use of a V-Sort did not simply involve standing at a box and putting letters in front. It involved quite large torsional stresses on the lower lumbar spine. A number of factors affected the amount of torsional stress involved in an activity, such as whether the spine was straight and whether a person moved their feet, but the weight of the load being carried was not a factor.

44. Neither Dr McGill nor Dr White had previously been told about the acute episode of back pain in mid-1997. When told of this episode Dr McGill initially stated that it was consistent with a small disc fibre tear as part of the history of degenerative lumbar disc disease. However he indicated it was unusual for the pain to only last a few hours, and in cross-examination acknowledged that an episode of this short duration could have been simply muscle spasm. Dr White considered the incident to be a minor episode of back muscle spasm similar to a person waking up with a wry neck.

45. None of the doctors who gave oral evidence placed great significance on the fact that Ms Hocking first felt symptoms in her leg rather than her back in late 1999. Dr White considered it significant in so far as it showed that this was not a further episode of muscle spasm. According to all of the doctors, leg pain theoretically suggested the possibility of nerve root compression but the more likely explanation was that it was simply referred pain. The CT and MRI findings appear to have excluded nerve root compression.

46. Mr Johnson for Australia Post submitted that if the annular tears were caused by some activity it was more likely to have been caused by labouring, gardening or even lifting a child than by the V-Sort. Ms Hocking had not ceased gardening or tennis until about the beginning of 2000 and had not ceased other activities that could cause the tears. However in truth the most likely scenario was that the tears were not caused by any specific trauma but were consistent with mild lumbar spine disease.

47. Ms Godtschalk for Ms Hocking submitted that there was a clear correlation between the amount of work at the V-Sort and the level of Ms Hocking's symptoms. Whenever she had spent time away from the apparatus her symptoms had reduced and they increased whenever she began using it again. There was no evidence that her symptoms correlated with any other activity such as lifting her child or standing at the sink. She had given up tennis by January 2000 and the child was not born until February 2000. The evidence of Dr White that there was no sign of degenerative disease should be accepted.

48. It is clearly impossible to completely reconcile all of the medical evidence as to the origin of Ms Hocking's symptoms. Having carefully considered each of the individual views I have come to the conclusion that I should prefer the evidence of Dr White which is supported on this point by Dr Gliksman. I find that the annular tears are the cause of Ms Hocking's back pain and that these tears were not caused by any pre-existing degenerative disease. I also find that the episodes of back pain experienced by Ms Hocking up to and including mid-1997 are not causally linked to her symptoms from late 1999 onwards.

49. On the question of whether use of the V-Sort frames caused the annular tears, Dr Gliksman shares the view of Drs McGill and Downes that this is unlikely whereas Dr White gave evidence that small repetitive trauma would be sufficient to cause a tear. Drs Gliksman and White agree that use of a V-Sort could render a tear symptomatic.

50. At the telephone hearing on 9 April 2002 I admitted into evidence several documents relating to other employees of Australia Post but left undecided what weight I would give to them. The majority were tendered by Ms Hocking to refute Dr Downes' evidence that the V-Sort would not cause or worsen back problems. On reflection these documents are of little assistance as they do not relate to a situation sufficiently similar to Ms Hocking's. Exhibits A9, A10 and R6 all relate to a single individual who suffered back symptoms shortly after the introduction of the V-Sort frames but there is no evidence before me that the individual concerned has sustained an annular tear or similar pathology. Indeed Exhibit A9 suggests a significantly different basis for his symptoms. I have therefore had no regard to these documents.

51. I am persuaded that the operation of the V-Sort frames was a cause of Ms Hocking's injury. In doing so I take into account the history of Ms Hocking's symptoms including the absence of any problems at Australia Post until the introduction of the V-Sort system more than 18 months after she recommenced employment. There is also no evidence of any other changes in Ms Hocking's environment at around the time of the onset of symptoms in late 1999. While I still have some doubt whether use of the V-Sort was the sole factor causing the annular tears, I have no doubt that it was a major factor and that Ms Hocking suffered the annular tears in the course of her employment. I find accordingly. I am satisfied that Ms Hocking suffered an injury falling within paragraph (b) of the definition of "injury".

Is Ms Hocking's injury continuing?

52. The above discussion and findings are a lengthy but necessary prelude to dealing with the principal issue in dispute. Although the initial acceptance of liability is not itself in issue the true nature of the "lower back pain" for which liability was accepted is significant in determining whether or not that liability is ongoing.

53. All of the doctors agreed that it would take a considerable period of time for an annular tear to heal. Dr Gliksman indicated in his reports that tearing could take several months to heal completely but also implied that it might take longer than this (T31). Dr Downes indicated that it could take up to two years for a tear to heal by becoming calcified or scarred. Dr McGill stated that an annular tear would not effectively heal even though the MRI appearance of the annulus would change over a period of months or years.

54. Dr White was of the opinion that continued use of the V-Sort frames would further aggravate Ms Hocking's injury and delay healing. As a repair is made of scar tissue it will be more susceptible to recurring injury. If Ms Hocking returned to a situation where her back had already failed using the V-Sort the likelihood of repeat failure was very high.

55. Dr Gliksman considered that Ms Hocking should not return to overtime while she continued to experience symptoms. Her duties should be adjusted according to her level of symptoms. Neither Dr Downes nor Dr McGill believed that using a V-Sort would affect Ms Hocking's underlying condition, but both accepted that it would increase her symptoms. Dr Downes seemed to suggest that the effect would cease as soon as Ms Hocking stopped sorting, whereas Dr McGill considered the increased symptoms could last for up to a week. However both doctors accepted that if she continued to use the V-Sort she would continue to suffer an increase in symptoms.

56. Ms Hocking gave evidence that she had ceased some activities such as tennis and gardening due to her lower back pain. She also experienced pain when standing at the sink or lifting her partner's young child. All of the doctors giving oral evidence readily accepted that Ms Hocking could experience pain in these situations. For Dr McGill this was a consequence of degenerative disease and was no different to the pain experienced while using the V-Sort. In Dr White's opinion only a small amount of strain was required to produce symptoms once an annular tear was already established.

57. The evidence before the Tribunal at the time of the hearing in December 2001 was that Ms Hocking had ceased using the V-Sort approximately three months beforehand. Having found that use of the V-Sort caused the annular tears I also accept Dr White's evidence that continued usage would aggravate them and delay healing. Furthermore having regard to all the evidence I am not satisfied on the balance of probabilities that the tears had healed as at December 2001 (see Nichols). I do not have any evidence of Ms Hocking's condition or her use of the V-Sort since that date but because of the medical evidence I can not be satisfied that the annular tears have since healed.

58. I therefore find that at 4 January 2001 Ms Hocking continued to suffer from this work caused injury. Indeed she continued to suffer from this injury at the time of the main hearing in December 2001.

Is Ms Hocking entitled to incapacity payments and medical expenses?

59. As I have previously found that it is the tears that cause Ms Hocking's lower back pain, it follows that Australia Post continues to be liable for the consequences arising from that pain.

60. It is not in dispute that back pain is the cause of any reduction in Ms Hocking's work hours or of her inability to work on the V-Sort frames. As a consequence she has been partially incapacitated for work as encapsulated in section 4(9)(b) of the Act. Therefore, Australia Post is liable to compensate her for lost earnings under section 19 of the Act.

61. Similarly Ms Hocking gave evidence at the hearing that she had continued to undergo physiotherapy to alleviate her condition and that she takes pain medication. There was no suggestion that this would not constitute medical treatment that it was reasonable for Ms Hocking to obtain in the circumstances in relation to her lower back pain - see paragraphs (d) and (h) of the definition of medical treatment in section 4(1). Australia Post is therefore liable to pay these medical expenses under section 16 of the Act.

62. Neither the decision under review nor the evidence goes into sufficient detail to enable the Tribunal to make detailed findings on the amounts of compensation payable to Ms Hocking under sections 16 and 19. The appropriate course is to remit the matter to Australia Post with directions.

What constitutes continuing injury?

63. In view of my findings it is not strictly necessary to deal with this issue. Nevertheless it was such an important aspect of Mr Johnson's submissions for Australia Post that I propose to cover it for the sake of completeness. For the purposes of the following discussion only I will accept the evidence of Dr McGill that the V-Sort did no more than produce an increase in Ms Hocking's pain without any other pathological effect or increase in susceptibility.

64. Mr Johnson submitted that in that case the injury for which liability had been accepted had ceased once that particular episode of pain had resolved. If Ms Hocking then returned to the V-Sort frames and again experienced pain it was a new injury for which a new compensation claim would need to be made and liability accepted separately. He placed emphasis on Dr White's notes that Ms Hocking experienced pain 50 to 60 per cent of the time. This meant that at least 40 per cent of the time she was free from pain. The pain was not continuous.

65. In contrast Ms Godtschalk submitted there was no evidence that her client had ever gone back to the pain-free state she was in when she was cleared to work with Australia Post in April 1998. Her symptoms had fluctuated but had never resolved since her compensation claim was lodged. The pain was ongoing.

66. Both counsel sought support from a passage in Australian Postal Corporation v Bessey (2001) 32 AAR 508

"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) 86 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.

7. In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.

8. This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition."

67. A careful reading of both Justice Gyles' judgment and the Tribunal decision that he set aside (Re Bessey and Australian Postal Corporation (2000) 60 ALD 529) shows that the error his Honour was correcting was a failure by the Tribunal to make a finding as to whether a work-related aggravation continued to impact upon Mr Bessey's condition after he ceased the activity of riding motorbikes that was causing the aggravation. The Tribunal had apparently thought its finding that Mr Bessey had a compensable incapacity on the day he ceased riding motorbikes automatically meant that his incapacity after that date continued to be compensable.

68. As is shown by his Honour's judgment and the cases cited therein, particularly Salisbury and Darling Island, it is necessary for the compensable injury to continue to have an effect for the entitlement to compensation to continue. However I also note that the decision in Salisbury and several of the judgments in Darling Island indicate that the progression of an underlying condition to the point of incapacitating an employee will not cease that person's entitlement to incapacity so long as the compensable injury still has an effect. In Salisbury Chief Justice Jordan said ((1943) 61 WN (NSW) 87 at 92-93)

"To say that the employment injury merely accelerated the occurrence of a disability which the disease alone would inevitably have produced later on, is to say that it caused disability to occur at a time when it would not otherwise have existed, but that subsequently the disease reached a stage which made it alone sufficient to produce the disability. But assuming that the worker would have been entitled to go on getting compensation if the disease had grown now worse, I cannot see how, consistently with the authorities, it can be held that the fact that the disease did get worse disentitles him to compensation. The question is, not whether the disease has caught up with the effects of the employment injury, but whether the employment injury has ceased to produce disabling effects."

Having expressly approved the reasoning in Salisbury, Chief Justice Barwick said in Darling Island at 26

"If the resulting incapacity is temporary, and has ceased by the time the award is made, the award will be limited to that period of incapacity. If the incapacity is temporary but continuing at the date of the award, as a rule, the award will be expressed to continue during the incapacity... or the award may simply be made without limitation as to the time... But the question in either case is whether the injury had ceased to cause incapacity."

69. During the telephone hearing on 9 April 2002 Mr Johnson referred me to Bessey and the cases cited in paragraph 6 of that decision as well as Willcocks v Comcare (2001) 66 ALD 119. However none of these cases expand on the meaning of an injury continuing. On the contrary they make it very clear that whether or not an injury continues is a question of fact.

70. I think it must also be a question of degree. During final submissions I explored the issue further with Mr Johnson. He was reluctant to agree with my suggestion that on Australia Post's reasoning Ms Hocking would need to lodge a new compensation claim each day she worked at the V-Sort if her pain had ceased overnight. He focused on the proposition that if the injury consisted purely of symptoms the cessation of those symptoms meant the cessation of the injury. A recurrence of symptoms would then be another injury for which liability would need to be accepted. Yet taking that proposition to its logical conclusion one arrives at precisely the suggestion I put to Mr Johnson at the hearing. A cessation of pain even for a period of less than 24 hours would cease Ms Hocking's entitlement to compensation.

71. In the absence of any authority to the contrary I would not hold that pain must be present 100 per cent of the time, which is literally continuous, for it to be continuing. Pain is a conscious process. A person would have to be a perpetual insomniac to experience pain continuously.

72. A need for pain to be literally continuous would also mean that a person whose compensation entitlement related to symptoms of pain would be instantly disentitled if a treatment succeeded in providing temporary relief. This would be contrary to the purpose of the Act to encourage the rehabilitation of employees to full working capacity.

73. In the present matter the evidence from Dr White's notes was that Ms Hocking was in pain 50 to 60 per cent of the time. There is no evidence of Ms Hocking being free of pain for any substantial period of time since the onset of her symptoms in late 1999, only of those symptoms fluctuating in intensity. Ms Hocking was free of pain for more than two years prior to this. The unanimous medical opinion is that continuing to work on the V-Sort frames will likely continue to increase those symptoms. Ms Hocking did in fact continue to work on the V-Sort up until about September 2001. There is evidence that as at December 2001 she continued to experience a degree of pain while performing other activities.

74. Even if I had found that use of the V-Sort did no more than increase Ms Hocking's symptoms I would not be satisfied on the balance of probabilities that the injury had ceased to have effect as at December 2001. I would certainly not be persuaded the effects had ceased at the time that Australia Post ceased liability in January 2001, that is while Ms Hocking was still using the V-Sort frames.

Conclusions

75. In summary I conclude

* Ms Hocking's annular tears are responsible for her back pain

* the operation of the V-Sort frames was a cause of Ms Hocking's annular tears

* therefore Ms Hocking suffered an injury for the purposes of the Act

* at 4 January 2001 Ms Hocking continued to suffer from this injury as she did in December 2001

* as a consequence Ms Hocking has been partially incapacitated for work

* Ms Hocking is entitled to medical expenses and incapacity payments under sections 16 and 19 of the Act, the quantum of which is to be determined by Comcare.

Decision

76. The decision of the Tribunal is to set aside the decision under review of 8 March 2001 and to remit the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal set out in these reasons for decision.

77. The Tribunal orders the Respondent to pay the Applicant's costs as agreed or taxed.

I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray

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

Associate

Dates of Hearing 13, 14 December 2001, 9 April 2002

Date of Decision 22 October 2002

Counsel for the Applicant Ms J Godtschalk

Solicitor for the Applicant Pamela Coward and Associates

Counsel for the Respondent Mr G Johnson

Solicitor for the Respondent Graham Jones Lawyers