Peckham and Australian Postal Corporation [2003] AATA 1229 (5 December 2003)

Last Updated: 8 December 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1229

ADMINISTRATIVE APPEALS TRIBUNAL ) Nos. N2001/1768, N2003/154

) and N2003/890

GENERAL ADMINISTRATIVE DIVISION	)
	Re	GEOFFREY PECKHAM

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Senior Member M D Allen; Dr MEC Thorpe, Member

Date 5 December 2003

Place Sydney

Decision

The decisions under review are affirmed.

(Sgd) M D Allen

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

Presiding Member

CATCHWORDS

WORKERS' COMPENSATION - whether fall from an Australia Post motorcycle caused back injury or resulted in a temporary aggravation of an existing condition - reliance upon notes made by medical practitioners at the time of their examinations.

Safety, Rehabilitation and Compensation Act 1988 - s4, s14

REASONS FOR DECISION

5 December 2003

Senior Member M D Allen; Dr MEC Thorpe, Member

1. The matter before the Tribunal concerned the review of a series of "Reviewable Decisions" made pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988. The first, being matter number N2001/1768 concerned a decision made on 12 October 2001 refusing a claim in relation to "back strain" suffered on 12 December 2000. The second matter N2003/154 denied a claim for permanent impairment and non-economic loss for what was described as injury to the back or lower limb. The third matter, bearing reference number N2003/890 related to a claim in respect of a temporary aggravation of a degenerative back condition, which was accepted but for the period 20 March 2000 to 20 May 2000 only.

2. The said applications for review came on for hearing before us in Sydney on 15 October 2003. At the hearing, the following documents were taken in as exhibits and marked as follows:

Exhibit No.	Description	Date
T1 to T28	Section 37 documents in matter N2001/1768
T1 to T9	Section 37 documents in matter N2003/154
T1 to 15	Section 37 documents in matter N2003/890
A1	Applicant's Amended Statement of Facts and Contentions	7 April 2003
A2	Clinical notes of Dr A Eshragi
R1	Respondent's Amended Statement of Facts and Contentions	Undated
R2	Copy of Incident Report	6 October 1989
R3	Clinical notes of Dr H Gorban
R4	Clinical notes of Dr D Tang
R5	Clinical notes of Dr West

3. The Applicant's evidence was that on 6 October 1989, he had a work accident when he fell from his bike while delivering a telegram. He hurt his lower back but it settled.

4. On 7 February 1991, the Applicant fell from the motor cycle he was riding in the course of his duties as a postman. He hurt his lower back but again it settled down after a day or two.

5. The major injury to the Applicant occurred on 20 March 2000, a Monday, when he again fell from his motor cycle. He experienced a sharp pain in his lower back and shooting pain in his left leg. He telephoned his manager who arranged for his motor cycle to be taken back to the mail centre and the Applicant was taken to a medical practitioner for examination. That medical practitioner, Dr Eshragi, arranged for an x-ray of the Applicant's lower back and right hand.

6. In an undated claim form for compensation (T7 in N2001/1768), the Applicant refers to an injury to his lower back. In the form, he was asked the question "Have you ever had a similar injury/illness" and he had ticked a box marked "no". The Applicant also referred to suffering a "cut finger".

7. The Applicant stated that he obtained a medical certificate authorising two days absence from work and than returned to work. Although he felt fine at the beginning of the week, by the week's end he had developed a limp in his left leg. He said that the limp continued for months, although he never related it to his back injury.

8. During the night of 12 December 2000, the Applicant woke up in bed with sciatica in his right leg. He was taken to a medical practitioner by his wife and it has not re-occurred since. The evidence before us is that this incident is not material to any of the issues before the Tribunal.

9. The Applicant was dismissed from his employment on 9 July 2002 for disciplinary reasons and currently is not in employment. As he put it, "I am having a bit of a break at the moment from work".

10. Cross-examined, the Applicant candidly admitted that his memory is not good and that he "needs a hand with it".. He said that when he attended doctors, he told them "how it was" and that therefore the most accurate account of what he was experiencing would be in the documents.

11. In the view of the Tribunal, the Applicant was a totally honest witness and tried to recollect events and sensations as best he could, but conceded he did not have a good memory. We therefore give more credence to the contemporary notes or histories as to the Applicant's state then his recollections before the Tribunal.

12. Exhibit A2 is the clinical notes of Dr Eshragi to whom the Applicant was first taken after falling from his motorcycle on 20 March 2000. Dr Eshragi took a history of pain in the left lower back radiating to the left lower thigh and knee. On 27 March 2000, Dr Eshragi took a history that the Applicant "feels better" and noted that on examination, the Applicant had a full range of movement with no tenderness and no neurological deficit. He noted that the Applicant was fit for normal duties.

13. The Applicant again attended Dr Eshragi on 31 August 2000 following a fall from a ladder whilst at home. Although the Doctor noted a complaint of pain and tenderness in the chest, there is no note of any complaint of back or leg pain.

14. On 21 February 2001, Dr Eshragi's notes read "feels ok, no pain. On examination no abnormality detected. For normal duties".

15. The Applicant also attended the Farnham Road Medical Practice at Quakers Hill. One of the medical practitioners in that practice, Dr Tang, is also a medical practitioner who is a nominated doctor by Australia Post for its purposes. The notes of the practice contain an X-ray report obtained after the Applicant's incident of right-sided sciatica on 12 December 2000. The report reads inter alia:

"...The disc space is minimally decreased at L5/S1. No pars interarticularis defect. The height of the vertebral bodies is normal..."

16. Contained in Exhibit R3 is an x-ray report bearing date 20 March 2000, that is to say, the day of the Applicant's last motor cycle accident. It reads inter alia:

"The L5-S1 disc is narrowed posteriorly. The remaining lumbar disc spaces are maintained. The alignment of the lower spine is satisfactory. No evidence of spondylolisthesis. The facet joints are also defined normally."

17. The plain x-ray of 20 March 2000 is little different from that of 12 December 2000. What is important is the opinion of Dr McGill in his report of 14 March 2002 (T4 in N2003/890) that the narrowing of the disc space shown on the 20 March 2000 x-ray indicated a chronic disc abnormality at that time.

18. Dr van Gelder examined the Applicant at the request of his general practitioner, Dr Tang, on 29 August 2001. He later re-examined the Applicant at the request of his solicitors on 31 July 2002. In a report dated 10 April 2002 and in a second report dated 1 August 2002, to the solicitors Dr van Gelder makes the statement that the Applicant had plain x-rays performed on his lumbar spine on 20 March 2001 (Tribunal's emphasis).. He goes on to state (again in both reports):

"This showed reduced height at the intervertebral disc space at L5/S1 indicating lumbarsacral disc injury that had been present for some time."

19. Dr van Gelder was not called in these proceedings. Any x-ray or x-ray report of 20 March 2001 was not adduced in evidence before us but there is ample reference to an x-ray being performed on 20 March 2000, the day of the Applicant's fall from his motorcycle. It seems clear that this is the x-ray Dr van Gelder was referring to and thus his opinion agrees with that of Dr McGill, namely that there were chronic radiological chances present at the time of injury, ie 20 March 2000, and the L5/S1 disc disease is constitutional in aetiology.

20. In a report to Dr Tang dated 3 September 2001 (T20 in N2001/1768), Dr van Gelder took a history of the Applicant having had low back pain and leg pain "since February last year", that is to say pre-dating the March 2000 fall.

21. A submission was made regarding a lack of entries in the clinical notes of the general practitioners attended by the Applicant. This type of submission needs to be treated with some caution. Currently, most general practitioners, especially those that bulk bill, do not carry out a full medical examination of every patient who attends their surgery, but content themselves with dealing with the specific complaint. Similarly, if a condition is able to be managed with analgesics which do not require a prescription, there is little need for an injured employee to attend a general practitioner. On the other hand, that the Applicant was apparently able to avoid medical attention regarding his back for some 16 months is a valid comment on the degree of interference with his well being occasioned to him by any back injury.

22. The Tribunal took evidence from Dr Scougall, Orthopaedic Surgeon and Dr McGill, Rheumatologist conjointly. It is a fair summation of their respective positions to say that whereas Dr Scougall is of the opinion that the Applicant's current low back pain and sciatica in his left leg is referable to both the nature and condition of his work and the fall on 20 March 2000. Dr McGill's opinion is that the Applicant merely suffered a temporary aggravation of a pre-existing degenerative back condition following the said fall.

23. The opinion of Dr McGill is, even if inadvertently, supported by Dr van Gelder. More telling however is the history taken by Dr Downes, Orthopaedic Consultant, in a very comprehensive report dated 2 may 2001 (T15 in N2001/1768). In that report Dr Downes noted:

"...Mr Peckham explained to me that he was fine but that every now and then at the end of the day, he has had a pain in his lower back..."

And at page 5 of his report Dr Downes stated:

"...However, I certainly would not support the contention that the sciatic attack that happened in December 2000 was work-related or related to the initial attack on 20/03/00..."

And under the heading "On Examination" Dr Downes states:

"Mr Peckham presents well and he is moving quite normally. He pointed out to me today when he came into the room that he was not quite sure why he was seeing me because he was better. He is better."

And continued on page 6:

"He does not have any nerve irritation in his legs whatsoever. He is also moving freely without limitation of spinal movement. I still accept that he experiences backache but you will appreciate that backache is a symptom."

And again at page 6 of his report, Dr Downes opined:

"I believe that the episode on 20/03/00 simply rendered an underlying condition temporarily symptomatic but you will appreciate that there is still a question mark over that statement. I certainly do not have any evidence to suggest that it caused a specific injury or damage to the spine."

24. That the Applicant could state in May 2001 that he was well and he was observed to be moving quite normally confirms the opinion of Dr McGill that what the Applicant experienced after the fall from his bike was a temporary aggravation of a pre-existing degeneration.

25. As we do not find that there has been any injury caused to the Applicant's lower back as a result of his employment as opposed to a temporary aggravation of a pre-existing degenerative state for which he has already received compensation, the decisions under review are affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen;

Dr MEC Thorpe, Member

Signed: (K. Wong) .......................................................................................

Associate

Date/s of Hearing 15 and 16 October 2003

Date of Decision 5 December 2003

Counsel for the Applicant Mr J Mrsic

Solicitor for the Applicant Ms R James, Slater and Gordon

Counsel for the Respondent Mr N Polin

Solicitor for the Respondent Mr L Forner, Forners Solicitors