Bessey and Australian Postal Corporation [2003] AATA 127 (7 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 127

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/134

) No A2002/346

GENERAL ADMINISTRATIVE DIVISION	)
	Re	DEREK ERNEST BESSEY

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Mr M J Sassella, Senior Member Dr M D Miller AO, Member

Date 7 February 2003

Place Canberra

Decision

The decisions under review are affirmed. The applicant is entitled to no costs associated with the applications.

....................[Sgd]......................

CATCHWORDS

WORKERS' COMPENSATION - lumbar disc disease - lumbar spondylosis - whether injury - whether employment made material contribution to aggravation of lumbar spondylosis - whether aggravation occurred - permanent impairment - compensation not available for permanent impairment in absence of liability to pay compensation for injury

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("ailment", "disease", "impairment", "injury", "permanent"), 14(1), 24, 27, 62

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385

Bessey, Australian Postal Corporation v (2001) 32 AAR 508

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Denison-Smith and Comcare, Re (2000) 31 AAR 210

Tippett v Australian Postal Corporation (1997) 27 AAR 40

REASONS FOR DECISION

7 February 2003

Mr M J Sassella, Senior Member Dr M D Miller, AO, Member

APPLICATION

1. Application A2001/134 is an application to the Administrative Appeals Tribunal ("the tribunal") by Derek Ernest Bessey ("the applicant"), born 16 January 1957 (ex TD1/T1). The applicant sought review of a reviewable decision by a delegate of Comcare within the Australian Postal Corporation ("the respondent") dated 19 February 1998 (T42) which affirmed a primary decision taken on 16 December 1997 (T38). These decisions were that the effects of a compensable injury to the applicant's lumbar spine had ceased on and from 16 December 1997.

2. On 8 September 1999 a delegate conducted a reconsideration on his own motion within the respondent agency utilising powers under s 62 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act")[1]. He decided that the determination dated 16 December 1997 was to be varied to deny liability to pay compensation to the applicant under ss 14, 16, 19, 20, 21, 22, 24, 27, 29 and 39 of the Act. This clarified that the applicant was not, as far as the respondent was concerned, entitled to lump sum compensation for permanent impairment and non-economic loss. The applicant sought review of that decision in application A2002/346.

HEARING

3. The tribunal convened a hearing in this matter in Canberra on 2, 3 and 4 September 2002. Mr D O'Gorman of counsel represented the applicant. Mr P Jones of counsel represented the respondent. The tribunal took oral evidence from the applicant, Dr J L Cummine (an orthopaedic surgeon), Dr N W McGill (a rheumatologist), Mr N Pellow and Dr T J Claffey (an orthopaedic surgeon).

4. The tribunal had access to the following documentary evidence:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T38, T45 - T64) provided by the respondent for application A1998/123.

Exhibit A1 - Applicant's statement of issues, 28 May 2001.

Exhibit A2 - Applicant's statement of facts and contentions, 5 November 2001.

Exhibit A3 - Applicant's statement, 10 January 2002.

Exhibit A4 - Report by Dr R A MacIver, general practitioner, 8 August 2001.

Exhibit A5 - Report by Dr MacIver, 13 January 1999.

Exhibit A6 - Report by Dr MacIver, 7 May 1999.

Exhibit A7 - Report by Dr MacIver, 30 January 1997.

Exhibit A8 - Report by Dr G G Griffith, surgeon, 29 August 2001.

Exhibit A9 - Report by Dr Griffith, 1 June 1999.

Exhibit A10 - Report by Dr D McGrath, musculoskeletal and occupational physician, 21 July 2001.

Exhibit A11 - Report by Dr McGrath, 10 December 1997.

Exhibit A12 - Applicant's outline of submissions, 4 September 2002.

Exhibit R1 - Respondent's statement of facts and contentions, undated.

Exhibit R2 - Statement by Mr N Pellow, 29 September 1999.

Exhibit R3 - Report by Dr Cummine, 23 September 1999.

Exhibit R4 - Report by Dr Cummine, 15 September 2001.

Exhibit R5 - Report by Dr McGill, 11 November 1998.

Exhibit R6 - Report by Dr McGill, 26 March 1999.

Exhibit R7 - Report by Dr McGill, 28 October 2001.

Exhibit R8 - Report by Dr McGill, 15 November 2001.

Exhibit R9 - Statement by Mr Pellow, 2 September 2002.

Exhibit R10 - Report by Dr Claffey, 27 September 1999.

Exhibit R11 - Report by Dr P N Smith, orthopaedic and trauma surgeon, 15 June 1998.

Exhibit R12 - Transcript of evidence of Dr McGrath, 30 September 1999.

Exhibit R13 - Transcript of evidence of Dr Griffith, 30 September 1999.

Exhibit R14 - Transcript of evidence of Dr Smith, 30 September 1999.

Exhibit R15 - Transcript of evidence of Dr MacIver, 30 September 1999.

Exhibit R16 - Transcript of evidence of Dr McGill, 30 September 1999.

Exhibit R17 - Transcript of evidence of Dr J Chen, occupational physician, 30 September 1999.

Exhibit R18 - X-ray report of lumbosacral spine and right knee, 15 January 1987.

Exhibit R19 - Photograph of motorcycle.

Exhibit R20 - Photograph of motorcycle.

Exhibit R21 - Videotape footage taken on 27 February 1999, 17 March 1999 and 20 March 1999.

Exhibit R22 - Videotape footage taken on 30 November 2001 and 1 December 2001.

Exhibit R23 - Surveillance report by Brimar Investigations, 23 March 1999.

Exhibit R24 - Surveillance report by Adroit Business Advisers, 6 December 2001.

Exhibit R25 - Dr MacIver's clinical notes.

Exhibit R26 - Report by Dr McGrath, 17 November 1997.

Exhibit R27 - Report by Dr G Danta, neurologist, 28 May 2001.

Exhibit R28 - Article, "Genetic influences on cervical and lumbar disc degeneration" by Sambrook, MacGregor and Spector from Arthritis & Rheumatism Vol 12, No 2, February 1999.

Exhibit R29 - Article, "Spine update" by Videman and Battié from Spine Vol 24, No 11.

Exhibit R30 - Report by Dr Claffey, 27 September 1999.

Exhibit R31 - Outline of respondent's submissions, 4 September 2002.

5. At the close of the hearing the applicant's representative sought to provide further documentary evidence to be obtained from medical experts touching on some medical issues that arose during the hearing. The tribunal issued directions requiring this material by 27 September 2002. The directions permitted a response from the respondent by 25 October 2002. This material arrived on 14 November 2002 as a result of injuries to counsel and Dr McGill. The applicant was allowed to respond to this material and did so on 29 November 2002. This later material appears as exhibits:

Exhibit AH1 - Applicant's submissions, 18 September 2002 (including report from Dr Griffith dated 5 September 2002 and report from Dr McGrath dated 9 September 2002).

Exhibit AH2 - Report by Dr McGill, 19 October 2002.

Exhibit AH3 - Email message, 29 November 2002.

A report by Dr P N Smith dated 7 April 1999 was also before the tribunal. It was not accorded an exhibit number at the hearing through an oversight and probably because it relates only to Mr Bessey's knee problem which is not before the tribunal in this application. This report has been labelled ex AH4 because it is referred to in ex R14 and in certain paragraphs below.

LAW

6. The Act provides in s 14(1) that an applicant such as Mr Bessey is to be paid compensation if he or she has suffered an injury that has resulted in incapacity for work or impairment. The Act defines an injury in an extensive fashion in s 4(1):

injury means:

(a) a disease suffered by an employee; or

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

being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

7. In the present case the applicant was arguing that his work for Australia Post had caused him a direct injury, notably to his lumbar spine, or that it had aggravated a pre-existing condition in the lumbar spine. This would involve the aggravation of an orthopaedic disease. A disease is defined in s 4(1) of the Act as:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

8. An ailment, under s 4(1) is:

any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

9. This is a case where the respondent admitted liability and paid compensation for a period. A particular incident was said to have occurred on 29 January 1997 resulting in a claim on 1 July 1997 (ex A3/5, paragraph 22) for aggravation of degenerative spondylosis (T10/33) which was accepted by a delegate on 3 October 1997 (T10/33). On 16 December 1997 a delegate decided that, as of that date, Mr Bessey was no longer entitled to compensation in respect of aggravation of pre-existing degenerative lumbar spine spondylosis (T38).

10. On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413:

"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression `onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.

"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:

`Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:

"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."'

"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."

11. In the present case, as it was the respondent that changed the status quo by deciding to cease liability, there is a practical onus on the respondent to convince the tribunal that the decision was the correct or preferable decision should the merits of the parties' cases be of similar strength.

12. The applicant's case is built on an argument that Mr Bessey's work for the respondent aggravated his underlying degenerative lumbar back condition. Some of the legal principles affecting injury in the form of aggravation appear from the authorities to be as follows:

* For the purposes of paragraph (c) of the definition of an "injury" in s 4(1) of the Act, an aggravation occurs when the experience of the injury for the employee is increased or intensified without any alteration to the underlying physical or mental condition (Tippett v Australian Postal Corporation (1997) 27 AAR 40).

* "If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury" (Tippett (above)).

* If the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment that will be a compensable injury (Tippett (above)).

* It must be the employee's activities at work that cause him or her to suffer pain, or to suffer pain more intensely, if the employee is to receive compensation. Compensation is not payable if the employee would suffer the pain whether or not he or she was at work (Tippett (above)).

* The aggravation will be only temporary and will attract compensation only for the duration of the pain where the pain ceases after a time and leaves the underlying condition no worse than before (Australian Postal Corporation v Bessey (2001) 32 AAR 508).

* Where an employee experiences symptoms only when at work, but the employee has become more susceptible to a disease, eg dermatitis, because of his or her employment, that enhanced susceptibility constitutes an aggravation of the disease (Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385).

EVIDENCE

APPLICANT

13. Mr Bessey gave evidence. He endorsed a written statement (ex A3) with minor amendments. The salient features of that statement, together with additional material from his oral evidence, were:

* Mr Bessey did sheet metal work from 1973 to 1979 (T14). He had to lift sheets of metal every day. Some were heavy and some twisting was required if he lifted a sheet alone.

* He began work for Australia Post as a postal delivery officer ("PDO") in 1979.

* In 1985 he was promoted to senior PDO grade 3. He was still at this level at the time of hearing.

* On 1 October 1986 he left Australia Post to work as a cellarman at Canberra Workers Club. This involved Mr Bessey in assisting to unload beer kegs from trucks. He rolled them into the cellar for others to pick up and place. He moved them by rotating them on their edge into position for tapping. There were two types of kegs, Carlton brand about 2.5 feet high and Tooheys about 3.5 feet high. The Carlton kegs were 22-litre capacity. Mr Bessey said that he had to bend to rotate the kegs on their edge. He moved these kegs about four or five metres. The Tooheys kegs were "probably" 44 litres. Mr Bessey said that rotating the kegs was not heavy work. Utilising principles of balance the weight was virtually nothing. He did not have to lift cartons of bottles. He did move 750 ml bottles from shelves into lower baskets for conveying on a trolley to the bar area. The trolley was conveyed by an elevator to the service zone. The bottles were then moved onto bar shelves. This was how the bar was "stocked".. Mr Bessey also fixed taps but this required no awkward posture. Mr Bessey said he had to do little lifting or bending.

* Mr Bessey denied orthopaedic back problems during his work as cellarman. He said that he had only a case of gravel rash. Mr Jones, for the respondent, tabled an x-ray report concerning the lower back dated 15 January 1987 (ex R18). Mr Bessey said that the x-ray was not his idea as he complained only of rash. The x-ray report noted that the examinations required were of the lumbosacral spine and right knee. He was said to have had a "MBA" (ie motor bike accident) with painful lumbar spine and lateral right knee injury. The lumbosacral spine was described as follows: "Schmorl's nodes are noted at the T12 and L1 levels. There is some osteophytic lipping of the margins of the L1 and L2 vertebral bodies and there is slight narrowing of L1,2 disc space. There is also some narrowing of the L4/5 disc space. The remaining disc spaces appear relatively well preserved." Mr Bessey said that he came off his cycle at about 2.00 pm one day early in 1987, but that it was a mountain push bike. He went to Calvary Hospital the next day, which led to the taking of the x-rays. He could not explain the reference in ex R18 to "painful lumbar spine" and "MBA".. He was not informed of the degenerative changes noted in this x-ray report.

* In 1989 he returned to work at Australia Post.

* His duties for Australia Post were to sort mail and deliver mail to houses. At first he delivered on pushbike for two years. In 1981 he began using a motor cycle. He used a cycle from then until 1986 and then from 1989 to 1997.

* More particularly, Mr Bessey worked a five-day week. He started the day sorting mail to ready it for his mail run. He loaded it into two pannier bags on the back of the motor cycle. The total weight was said by the applicant to be between 25 and 45 kg, although in oral evidence he placed the maximum weight at 30 kg. In ex A3 Mr Bessey said that the round took four hours to complete. At the hearing he learned that he had told the tribunal in 1999 that the round took 2 ½ to three hours. He settled on an estimate of between two and four hours at this tribunal hearing. At each delivery point he leant back and took mail from a pannier bag and leant forward to post it in the customer's letterbox using his right hand. The pannier bags were sorted so that he exhausted the right bag first and then moved to the second as the round continued. For part of the round the cycle was unbalanced. Mr Bessey said that he had been trained to work this way. He said that he often drove over uneven ground, having to mount footpaths, etc. Much of this was challenged in Mr Jones's cross-examination. In the transcript from Mr Bessey's earlier tribunal matter, at page 69 from 29 September 1999, Mr Bessey had agreed before the tribunal that he had been trained to keep the panniers at a roughly equal weight. Further, there was a mail bag on the front of the motor cycle. Thus, the mail was to be moved progressively through the panniers and into the front receptacle from where delivery was effected. Mr Bessey, however, said that, while there was a front bag, he was not told to move items into it from the panniers. He then said that he was told this but it was not pressed.

* Mr Bessey has also been required to load and unload mail bags in mail trucks. This was up to 1995 when letter bins came into vogue. Since then he has loaded and unloaded letter bins. The mail bags weighed 16 kg. In oral evidence he said that the weight could be greater than 16 kg.

* In 1997 Mr Bessey was placed on restricted duties and was given a walk beat in the Belconnen business district. He pushed a walk cart (or trolley) when doing this work. This work involved walking up and down seven flights of stairs. Some streets were steeply sloped.

* From August 1997 to date Mr Bessey's restricted duties have involved being an "indoor postman". He has sorted mail and set up postal runs for other postmen. He wrote in ex A3, "I worked from 6.00 a.m. until 11.00 a.m. I was sent home when there is no further work for me".

14. He gave a run-down of workplace injuries to his back.

* On 6 September 1983 he reported a back injury said to be sustained in the course of employment. He fell off his motor cycle when he lost control of the back wheel which locked. This caused back pain. He was off work for four days.

* On 12 February 1986 he lost his footing while unloading large bags from a van. He twisted his back and yelled with pain. He was off work for three weeks.

* In 1995, Mr Bessey said, he had low back pains after finishing his delivery run. He said the condition worsened in the next 18 months.

* In January 1997 Mr Bessey saw Dr MacIver, his treating doctor, about his "constant pain ... experience[ed] when [he was] performing [his] employment duties". He had a lumbo-sacral spine x-ray.. Dr MacIver was described as saying that Mr Bessey had a chronic back problem which was being aggravated by riding a motor cycle. Dr MacIver recommended that Mr Bessey be transferred to drive a van.

* On 6 February 1997 Mr J Andrews and Mr N Pellow of Australia Post offered Mr Bessey a walk beat. Mr Bessey said he could not do a walk beat because of a left knee injury dating from 20 years earlier. Mr Andrews said that Mr Bessey had to do a walk beat or spend his time at home because Australia Post had no work for him. This would affect Mr Bessey's sick leave. Mr Jones in cross-examination noted that Mr Bessey had not complained of any symptoms related to motor cycle riding earlier and was taken off motor cycles immediately he did complain. Mr Bessey disagreed. He said that there had been problems. He had seen Dr Doherty in 1995.

* Mr Bessey wrote that he experienced constant lower back pain up to July 1997. He wrote that he was absent from work on a number of occasions in 1997 because of back problems. Sick leave records in T44 show leave for a back condition as occurring 1 to 18 July 1997 and 13 August 1997.

* On 1 July 1997 Mr Bessey lodged a compensation claim (T4) which was the subject of cross-examination. The claim was for "thoracolumbar scoliosis concave to the right off [sic] the lumbosacral spine disc height loss etc".. In describing the lead-up events the form stated, "delivering mail on motor bike riding of bike gives me lower back pain - experienced lower back pain intermittently - initially checked by dr in 1995 - pain gradually increased - checked by dr again in Jan 97 - problem established". Mr Bessey agreed that his lower back pain was intermittent but gradually increased. Mr Bessey confirmed that the pain was first perceived in 1995. He was very sore after a mail delivery on motor cycle but was unaffected on weekends. Prior to 1995 he had had back pain only after specific incidents: in 1983 and 1993 he had fallen from a bicycle with ill-effects. In 1986 he had lost his footing when unloading a van and twisted his back (T12).

* He wrote that he had work absences in January, February, July, October and December 1998 because of back problems. The sick leave records, however show no instances of absence because of lower back problems.

* On 8 September 1997 the applicant joined Woodhaven Golf Club. He told Mr Jones in cross-examination that he had played golf for perhaps a year before joining Woodhaven. He said that he could no longer play soccer. In cross-examination Mr Jones noted Dr MacIver's note on 20 October 1997 that Mr Bessey had played soccer two days earlier (ex R25). Mr Bessey dismissed this as probably just a kick with a friend as the season was over by then in any event. He said that he played as a "goalee" so as not to have to do a great deal of running. He agreed that he had to dive for the ball and contact the ground. He denied any soccer injuries at any time. This was not correct. As Dr McGill's report in ex R5 indicated, Mr Bessey had ruptured the cruciate ligament in his left knee in the early 1970s and had been operated on twice in connection with those injuries. Dr Smith's report dated 7 April 1999 (ex AH4) recorded a history of problems with the left knee. "He was a keen sportsman and played soccer for many years. Following a left knee injury in his teens he underwent medial and lateral open meniscectomies of the left knee." He had always been physically active and decided to play golf as a social outlet. He wrote that he uses a buggy most of the time, not doing so only when he cannot afford it. He wrote that a golf round takes four or five hours. After playing golf Mr Bessey took a hot bath "to ease the discomfort".. In relation to golf, Mr Bessey agreed with Mr Jones that he was playing weekend golf when he complained in 1997 to Australia Post that he was suffering because of motor cycle riding. Mr Bessey agreed that he sometimes played golf twice a week, usually a nine-hole game. His game improved to an 18 handicap.

* Mr Bessey wrote that he had limited his golf since a child was born in 2001.

15. Mr Bessey was critical of aspects of his management by his supervisors from November 1997 to date.

* He was allegedly told that the respondent would not create a position for him to allow him to drive a van.

* He wanted to work Sunday overtime leading up to Christmas 1997. However, he was told he would have to work doing sorting after delivering his mail to make up full hours. Mr Bessey alleged that this was not common practice. He argued that sorting made his back "hurt because of the constant twisting and bending involved".

* Late in 1997 and early in 1998 Mr Bessey's walk beat involved additional bending to put mail under the doors of closed businesses.

* Mr Bessey refused to assist another senior PDO grade 3 to set up the sorting for his beat.

* By mid-1998 Mr Bessey customarily went home at 1.00 pm. His shift ended at 1.30 pm. He was docked a half-hour's pay. At the same time, another PDO on compensation payments was to finish at 2.30 pm but left soon after Mr Bessey, allegedly with no salary deduction. Other PDOs on restricted duties also allegedly spent some time at work reading and watching television. Mr Bessey referred to several other incidents suggesting that he was discriminated against regarding the hours he had to work to obtain full benefits as compared to the expectations demanded of others treated more favourably.

* From September 1999 until the date of hearing Mr Bessey was sorting as an indoor postman using a V-frame. This is done for outdoor PDOs. He wrote that he worked all day at the V-frame standing. He had to turn and twist. This caused back pain. He said he also had to lift containers of mail.

* In cross-examination Mr Jones ascertained that Mr Bessey was dissatisfied with Australia Post in 1995 when he took anxiety leave. He had worked at Dickson Mail Centre until 1994 when he was transferred to Belconnen. He was unhappy with the transfer and felt hard done by. The transfer followed an inquiry at Dickson into Mr Bessey's relationship with other employees. Mr Bessey was described by Mr Jones as having accepted a transfer rather than dismissal following the inquiry. He had been suspended for five weeks, counselled and placed on a year's good behaviour. Mr Bessey later became disgruntled, feeling that someone else should have been transferred. Mr Jones suggested that Mr Bessey pictured the low back pain as having its onset in 1995 when he was annoyed at having been transferred.

16. Mr Bessey described the effects of his alleged back injury.

* He has constant pain in his lower back which restricts his work capacity and ability to help around the house.

* When gardening he has to rest and apply heat to his back. He said he frequently has to perform stretching exercises and apply heat.

* He has difficulty sleeping because of back pain.

* Frustration because of constant pain has caused difficulty and arguments in the family.

* He has been restricted in his ability to assist with the youngest child.

* Back pain has caused him difficulties in concentration. It has caused him to become depressed. His doctor prescribed antidepressants. He has had stress and lost "a lot of" weight.

* Mr Bessey has worried about the lack of money coming into the house.

* Mr Bessey has taken pain relieving medication and anti-inflammatory drugs because of injuries to his knee and back.

* Mr Bessey was challenged by Mr Jones to the effect that it was 5 ½ years since he had ridden a motor cycle at the date of the hearing. Mr Bessey said that his more recent duties had aggravated his problem. He was unable to say when the motor cycle effects ceased and were replaced by other causes.

* In cross-examination Mr Bessey discussed the progress of his pain from December 2000. He had pain at the time in his low back, central back, shoulder and neck. His own doctor referred him to neurologist, Dr G Danta, who saw him in May 2001 (ex R27). By then he reported a tingling down the left side of the body. He had pins and needles for 15 seconds recurrently. They started on the left side of the face, moved to the left arm, left leg and left foot. He was referred for investigations in the form of MRI and EEG. Dr Danta could see no cause for the symptoms. He then developed pain in the shoulder blades and right shoulder.

* By August 2001 Mr Bessey had pain in the lower back, mid back, upper back, shoulders, pins and needles in the left side of face, the same in left arm, left leg and left foot. Mr Bessey clarified that he was not attributing the pins and needles to his Australia Post work. Mr Bessey said he played golf throughout 2001 on a weekly basis. Sometimes, he said, he had better days than other days. He was playing competition golf and in club championships. He said that he "did it with the best of [his] ability and a few pain killers"..

* Between 1999 and 2002 Mr Bessey said the pain had gradually worsened because he was required to sort using a "V-frame", a newer type of pigeon hole sorting frame. Mr Jones put to Mr Bessey that he had told Dr McGill on 28 October 2001 (ex R7) that over the previous three years there had been no substantial change in his low back. Mr Bessey denied this as true and said that the back was getting worse.

17. From Mr Bessey's oral evidence the following new information emerged. Mr Jones asserted that Mr Bessey had told doctors that he had no back problems before 1995. The tribunal's research showed this to be so as regards Dr R J Scott (T21, 24 February 1997) and Dr McGill (ex R5, 11 November 1998) but he did claim earlier problems when giving history to Dr Chen (T23), for example. Mr Jones summarised the evidence relating to earlier back problems.

* On 6 September 1983 he complained of painful back from a motor bicycle accident and was given four days off work (T34).

* On 15 January 1987 Mr Bessey attended Calvary Hospital after falling from his motor cycle or mountain bicycle and complained of a painful lumbar spine (ex R18).

* On 20 May 1991 Mr Bessey saw Dr MacIver complaining of back pain and was given manipulation and Voltaren (ex R25). Mr Bessey told the tribunal that he thought this could have referred to the aftermath of a sneezing incident.

* On 28 March 1992 Mr Bessey saw Dr MacIver complaining of lumbar back pain (ex R25).

* From 4 to 13 October 1995 the applicant took time off work for anxiety state (T17/49-50).

* February 1997 was when the applicant first complained of lower back problems stemming from his motor cycle (T19).

18. In cross-examination Mr Jones quizzed Mr Bessey extensively about golf. He suggested that golf requires a player to twist his or her back. Mr Bessey responded that the lower spine does not twist. Mr Bessey said that he "gets stiff in his back" when he plays golf. There was no particular point in the golf swing that produced any particular pain. Mr Bessey said that he plays golf on successive days only about four times a year. He told the tribunal that his back muscles "play up". They

"stiffen up a bit". His back aches as he goes around the course. His back muscles feel like a pulled muscle or a muscle spasm. On a scale of 10, 10 being maximum, excruciating pain, Mr Bessey said his pain would rate 5 or 6 out of 10 after 18 holes and 3 or 4 out of 10 after nine holes. He plays 18 holes on a Saturday and nine holes on non-competition days. Mr Bessey said he took pain killers prior to playing golf. Sometimes they relieve the pain from golf, but sometimes they do not. Mr Bessey said that he bends when playing golf and it is painful. When teeing up he bends only the right knee when crouching. The left leg is projected straight out behind him.

19. Mr Jones queried whether Mr Bessey had continued playing golf when he complained on 4 February 1998 of upper back pain caused by a sneeze (T41). In May 1998 Mr Bessey ceased his walking beat because of knee problems but he agreed with Mr Jones that he still played golf for four or five hours a week at that time. He hired a golf buggy when he could afford it.

20. Mr Jones completed his cross-examination of Mr Bessey by putting a number of matters to him:

* Mr Bessey had experienced back pain over many years. Mr Bessey disagreed.

* The pain had become worse over time. Mr Bessey said it had become worse lately.

* Any lumbar spine aggravation flowing from Mr Bessey's riding of motor cycles ceased after he stopped using motor cycles at work. Mr Bessey said "no".

* Any lumbar spine aggravation had ceased by 16 December 1997. Mr Bessey said "no".

* Any lumbar spine condition was not such as to prevent Mr Bessey from joining a golf club and playing golf every Saturday. Mr Bessey agreed that that was the case up to a year before the hearing.

* Mr Bessey had worked overtime for the respondent. Mr Bessey agreed and said he was working overtime to the date of the hearing.

* Mr Bessey had played in a recent golf competition. Mr Bessey agreed that he had played in a competition in the last two weeks.

* Mr Bessey said in evidence that he was playing golf on two successive days only about once a year. Mr Jones referred to the Woodhaven Golf Club records which showed that Mr Bessey had also played on Wednesdays. These records commenced in October 1997 and ended in September 1999. They showed that Mr Bessey played on consecutive days as follows: 15 and 16 November 1997, 17 and 18 October 1998, 14 and 15 November 1998.

VIDEO EVIDENCE

21. The respondent had arranged for a considerable quantity of covert surveillance of Mr Bessey to be undertaken. The footage was taken in 1999 on 27 February, 17 March and 20 March, and in 2001 on 30 November and 1 December. The tribunal's own observations from viewing that material are:

* On 27 February 1999 Mr Bessey was able to bend forward very easily on the golf course (11.29 am).

* On the same day he played golf with an easy, fluid swing at practice (11.33 am), although Mr Bessey observed that the video did not show him performing warm-up exercises.

* On the same day Mr Bessey was observed to twist on the back swing and follow through when golfing (11.33 am), although Mr Bessey insisted he did not twist the lumbar spine. Mr Bessey may have a point here. While he twisted the spine in an overall sense the movement, as localised at the lumbar region was not strictly a twist. However, experts sometimes refer to an ability to twist at the lumbar level when discussing a person's range of movement. In any event, Mr Bessey seemed readily able to engage in a body twist motion.

* Mr Bessey stood for an extended period in no clear discomfort (11.35 am).

* Mr Bessey walked briskly up hill dragging his golf bag and leaning forward (12.44 pm).

* Mr Bessey bent forward bending his knees on the putting green (12.45 pm).

* Mr Bessey bent his knees in a "semi-squat" to pick up the ball (12.47 pm).

22. On 30 November 2001 at 12.54 pm Mr Bessey lifted a golf bag and stand onto the tray of a 4-wheel drive vehicle without any assistance.

23. On the same day at 1.24 pm he was seen setting up his golf bag and stand with a great deal of bending.

DR J L CUMMINE

24. Dr Cummine provided reports on 23 September 1999 (ex R3) and 15 September 2001 (ex R4). Dr Cummine did not examine Mr Bessey until 15 September 2001. He conducted a document review in 1999 and commented on the video evidence in 2001. As regards the back, Dr Cummine diagnosed mild multilevel degenerative spondylosis of the lumbar sacral spine. He regarded Mr Bessey's employment as "a mild temporary aggravating factor".. He considered that Mr Bessey had developed degenerative disc disease with age and had experienced a number of temporary aggravations or precipitation of symptoms as a result of work. He thought these aggravations and precipitations had ceased within three months of each occurrence. He wrote that "[t]hese same precipitations or aggravations could just as well have occurred if he had been carrying out the activities of daily living away from the work environment".. Dr Cummine saw Mr Bessey as fit for all forms of office, clerical and sedentary work, light and selected duties. The non-compensable knee problem precluded much walking and climbing of stairs.

25. In 2001 Mr Bessey told Dr Cummine (ex R4) that he took medications only during the week as, on the weekend, his back and knee were not major problems. He said further that after 20 minutes of standing and bending the pain increased. He said it was "definitely better on the weekend".. He was avoiding gardening but was mowing the lawn. He said that he was playing golf on Saturdays and that the golf swing seemed to help his back. When examined, Mr Bessey indicated the area of discomfort as "a broad expanse over the lumbar spine predominantly to the right of the midline but with a component to the left". Spinal range of movement was "generally within normal limits with some restriction of flexion" but he could extend fingertips to the mid tibia.

26. Dr Cummine saw an x-ray from 30 January 1997 which demonstrated changes "consistent with a diagnosis of in situ degenerate disc disease with mild associated deformities". Dr Cummine diagnosed degenerate disc disease of the lumbar sacral spine. He said it was "likely that [Mr Bessey's] back symptoms in particular ... are aggravated by his occupation but" he considered that "aggravation [was] symptomatic and [he did] not think it [was] altering the natural history of the degenerate process".. Dr Cummine considered Mr Bessey unfit for motor cycle deliveries as negotiating gutters and bumps would aggravate his symptoms. He was unfit for a walking beat because of his knee disability which was non-compensable.

27. In oral evidence Dr Cummine said that the x-ray report dated 15 January 1987 (ex R18) indicated mild degenerative disc disease at multiple levels. These were said to be constitutional changes.

28. Dr Cummine said that he had seen the video evidence. He described it as showing an unrestricted functional range of movement of the back. He referred to a golf swing that was very full on a number of occasions. The video showed a free and full spinal rotation. Mr Bessey was seen to flex down and rise smoothly in picking up a golf ball. A twisting motion to the lower back was perceived by Dr Cummine. Dr Cummine was adamant that Mr Bessey's former motor cycle work in no way contributed to his ongoing symptoms. Dr Cummine saw Mr Bessey's condition as entirely consistent with degenerative disc disease. He could expect intermittent restrictions in times of flare-ups but he could go for years at a time without symptoms. Asked if Mr Bessey's taking of pain killers might explain his ability to play golf without noticeable restriction, Dr Cummine doubted this was so as Mr Bessey had told him he confined his ingestion of pain killers to week days. In cross-examination Dr Cummine answered hypothetically that ingestion of pain killers would assist a person to play golf with reduced pain but the person's swing would not be as free as Mr Bessey's was on the videotape.

DR N W MCGILL

29. Dr McGill provided five reports or stated opinions to the tribunal. Mr Bessey did not tell Dr McGill that playing golf relieved his back. On 11 November 1998 (ex R5) Dr McGill recorded that, at the end of a game of golf, Mr Bessey had a hot bath to relieve his low back. He told Dr McGill he could mow the lawn and that he did stretching exercises for back flexibility. At examination Mr Bessey had a full range of movement of the back but lumbar flexion was slow and rising again was slow. Dr McGill saw x-rays dating from 3 February 1993 and 30 January 1997. There was no difference between them. Dr McGill diagnosed degenerative change in the lumbar spine particularly at L1/2 and L4/5, changes reported in x-ray reports as early as 1987 (ex R18). Dr McGill noted that Mr Bessey had experienced a progressive increase in low back discomfort without symptoms of nerve root irritation. Dr McGill noted also that at times Mr Bessey's work-related motor cycle riding was over bumpy ground and that his general work activities would have involved quite some twisting of the spine. Dr McGill wrote that the low back symptoms are related to constitutional degenerative disease. Dr McGill wrote that "[r]iding on the motorbike increased his back symptoms while he was performing that activity but riding on the motorbike (including over bumpy ground and with work duties involving back twisting) would not have altered the progression of his degenerative low back disease. His back problem is entirely related to constitutional degenerative change." Dr McGill said that the current state of Mr Bessey's low back would have been the same regardless of his work with Australia Post. He went on to say that the motorbike riding would have aggravated symptoms from the low back while he was performing that activity but would not have changed the underlying disease and that the aggravation caused by motorbike riding would have settled within a week or so after stopping that activity. Dr McGill saw the prognosis as reasonable. He predicted that the degenerative changes would slowly progress in accordance with the natural history of constitutional degenerative lumbar spine disease but that Mr Bessey was likely to maintain reasonably good back function in the coming years. He reiterated that the low back incapacity was unrelated to Mr Bessey's employment.

30. On 26 March 1999 Dr McGill reported (ex R6) that Mr Bessey had no impairment of the lumbar spine as he had demonstrated a full range of back movement upon examination.

31. On 28 October 2001 Dr McGill reported (ex R7) that Mr Bessey's situation was very much as it had been in 1998. He said that the low back symptoms were entirely due to constitutional degenerative disease. He thought that standing work would increase the discomfort Mr Bessey felt during the day but neither his then current sorting activities which were being performed standing nor his previous motorbike delivery work would have made any difference to the underlying pathology or Mr Bessey's capacity for work. Dr McGill said that Mr Bessey's work activities in the past, and his then current work activities, had the capacity to increase the symptoms he was experiencing as a result of the degenerative changes in his low back but that those work activities would not have any impact other than for the time that he was working and for the next day or two thereafter.

32. In examination at the tribunal Dr McGill addressed the video evidence. He said that the video showed Mr Bessey's back movements look fine. Asked about some stretches and leaning back that Mr Bessey was seen to do while golfing Dr McGill said that such movements were consistent with his observations of Mr Bessey in his first report. Dr McGill said that the video evidence indicated that Mr Bessey had a normal golf swing. The video demonstrated the type of normal function often found with a person having Mr Bessey's level of pathology. Asked whether pain killers might assist Mr Bessey in his golfing, Dr McGill said that they might improve his movements and reduce his symptoms a little but that they would not much affect the range of movement of the lumbar spine. They would simply relieve a little discomfort.

33. Dr McGill suggested that inheritance is a prominent factor in degenerative disease of the sort Mr Bessey has in his lumbar spine. He said that factors such as occupation and physical activity were not so influential. He referred to the article by Professor Sambrook and two others (ex R28) and the article by Videman and Battié (ex R29) as support.

34. At the earlier tribunal hearing in this matter on 30 September 1999 Dr McGill discussed the Professor Sambrook article (ex R13). He said that the article looked at the causes of this disease and found that heritability was by far the most important cause. He said the study was done by looking at twins, comparing identical twins with non-identical twins. The study was therefore able to differentiate genetic factors from environmental factors. Environmental factors included ageing. There were some 326 people studied. The findings were that for severe disease such as Mr Bessey's, heritability was 64 percent in the lumbar spine and 79 percent in the cervical spine. The effects of other factors were small so that, for example, combining age, weight, height, smoking, occupation and physical activity there was only minimal effect on the development of the disc changes that they measured by using MRI.

35. At the earlier hearing Dr McGill proceeded to say that there was no doubt that substantial trauma could cause disease such as that suffered by Mr Bessey, however in Mr Bessey's case there was no substantial trauma. Dr McGill said that the discussion was about minor forces being put through the spine and he was unaware of any evidence to suggest that this degree of minor repetitive forces through the spine has any effect on the spine.

36. In cross-examination Mr O'Gorman suggested that there were numerous studies that suggested that the person's work activities could cause an aggravation of lumbar disc disease. Dr McGill said that he agreed if the aggravation referred to meant a change in the immediate symptoms. However, he disagreed if what was meant was that the underlying condition had changed. Dr McGill said that there were no good studies showing such a connection between work and a fundamental change to an employee's underlying condition. Dr McGill said that sorting at a V-frame, as Mr Bessey was doing, could cause transitional soreness but not a worsening of Mr Bessey's underlying condition.

37. Mr O'Gorman asked Dr McGill whether it would be reasonable to say that if a person has a predisposition to a lumbar spine disorder, then that condition can be accelerated by environmental factors. Dr McGill responded that that was a very popular view but that it had been tested in more recent times, notably by Videman (ex R29), and found not to be true. Dr McGill said that such a theory was not applicable to the sorts of activities in question in the present case.

38. Mr O'Gorman put to Dr McGill comments made by Dr McGrath in his report dated 10 December 1997 (ex A11) where he said, "In simple terms, there is weakening and vulnerability produced by low-grade repetitive strain". Dr McGill said that a comment of that nature by a doctor, without studies to support it, is useless or worthless. He said he did not agree with the comment and that there was no literature to support the comment. Further, he said, that the Videman review indicated that there was literature to refute the suggestion.

DR CLAFFEY

39. Dr T J Claffey reported for the respondent on 27 September 1999 (ex R10) on the basis of a document survey. He said that Mr Bessey's work caused neither the back nor the left leg problems. Dr Claffey said that Mr Bessey may have suffered pain in these areas "in the process of his work" but that would have "constituted nothing more than a temporary aggravation". In cross-examination he said that such pain would settle after a few days. There was, he said, no aggravation still in existence because of work. He did not believe Mr Bessey's then current work was contributing to any incapacity. He foresaw continued pain after activity due to the underlying degenerate condition. That would slowly progress over the years and might ultimately limit Mr Bessey's ability to continue working.

40. Dr Claffey gave oral evidence reiterating the views above. He had seen the video evidence and commented that the tapes showed Mr Bessey well able to walk and pull a cart on a golf course. He observed a "not bad" swing. He saw no deterioration in Mr Bessey's activity between the 1999 and the 2001 footage. Mr Bessey had been seen to twist his lower back "as one would expect". Mr Bessey did appear "a tiny bit stiff" later in the video. That was the sole impairment Dr Claffey perceived. Mr Bessey picked up a golf ball in a normal, co-ordinated way. Dr Claffey said that, if Mr Bessey took painkillers prior to playing golf, that could assist him to perform unimpeded. They would not restore full movement if Mr Bessey had an organic condition.

41. Asked about Dr Griffith's views discussed later in paragraphs 61 and following, Dr Claffey said he did not believe Dr Griffith to be correct. He said there was no evidence anywhere to say that degeneration of the back can be due to "minor injuries" or prolonged work.

42. Dr Claffey produced a second report, apparently also written on 27 September 1999 (ex R30) critical of Dr Griffith's report of 1 June 1999 (ex A9 - see paragraphs 60 and 61 below). He said that the whole report was full of what he would call "fanciful etiological suggestions which are not based on acceptable proven scientific facts". He said that Dr Griffith had mentioned a scoliosis and it was blamed on the uneven load on a motorcycle. Dr Claffey said he could not accept this. He said he could accept that Mr Bessey may have had a tilt or so-called scoliosis at some stage due to acute muscle spasm but certainly the factor as described would not cause a structural spinal scoliosis. He also noted that a clinical examination by one of the other consultants did not reveal any evidence of scoliosis at that stage.

43. Dr Claffey said that Dr Griffith talked of subliminal trauma aggravating the back and the knee. Dr Claffey could not accept this. He said that, if there was an underlying condition such as degeneration in the back or the leg, then aggravation must be substantial, not merely minimal or temporary, and it must change the naturally expected course of the underlying degeneration. He said, "It is perfectly natural for someone to have a backache at the end of the day when underlying degeneration is present. It is perfectly natural with an arthritic left knee that on resuming prolonged walking he would have pain at the end of that period. Whilst he is now back playing golf and this is recorded on the video seen earlier this year, he does admit that after a round of golf he gets increased pain and aching. That I would expect but it does not constitute material aggravation of a substantial nature. In general terms I cannot accept any of the statements made by Dr. Griffith in regard to etiology and aggravation."

RESPONDENT'S DOCUMENTARY MEDICAL EVIDENCE

44. There was evidence also from Drs Smith and Chen. These witnesses gave evidence on 30 September 1999 in the earlier hearing, and provided written reports.

Dr Smith

45. Dr P N Smith is an orthopaedic and trauma surgeon who performed an arthroscopy on Mr Bessey's knee in 1998. A report from him dated 7 May 1998 related only to Mr Bessey's non-compensable knee condition (T51) as did a third report dated 7 July 1998 (T55). He wrote a second report on 15 June 1998 (ex R11) in which he said, among other things, that there was "no evidence to suggest that normal work or, in particular, motorcycle duties have any deleterious effect on [Mr Bessey's] spinal curvature". He said there was no evidence to support Mr Bessey not going on his motorcycle round because of spinal curvature.

46. In the earlier hearing Dr Smith gave evidence on 30 September 1999 (ex R14) addressing a report dated 7 April 1999 that was not before the current tribunal. Dr Smith's evidence, save for confirming what he was reported to have said in paragraph 43 above in relation to Mr Bessey's spinal condition, related to the knee problem.

Dr Chen

47. Dr J Chen, a consultant in occupational medicine, reported on 6 August 1997 (T23) in relation to Mr Bessey's lumbar spine that he suffered from lumbar spondylosis which was "essentially constitutional and degenerative in nature with episodes of exacerbation from unaccustomed exertion and activities". His condition at that time was said to be no longer attributable to Mr Bessey's employment. Any aggravation from riding a motor cycle would have ceased within approximately two weeks of discontinuing the activity.

48. She reported again on 21 November 1997 (T32) but that report related only to Mr Bessey's knee problem.

49. Dr Chen gave oral evidence at the earlier hearing (ex R17) but the transcript contained little of what she said. What appeared on the transcript agreed with her report dated 6 August 1997.

APPLICANT'S MEDICAL EVIDENCE

50. The applicant's representatives called no expert witnesses. It was explained at the outset of the hearing that this was because the respondent's solicitors had allegedly informed the applicant's solicitors that the applicant's doctors were not required for cross-examination. If they were to be called as witnesses, the respondent's solicitors allegedly said, they would oppose paying any costs in relation to those doctors in the event that the outcome of the matter is favourable to Mr Bessey. Assuming this to be accurate, Mr O'Gorman was understandably agitated about this and the tribunal, as currently constituted, would say the following:

* While the tribunal does not want to encourage the calling of a plethora of expert witnesses who might tend to give similar evidence, it is unfortunate to see allegations that a Commonwealth agency has made suggestions of the type involved here. If the information is accurate it suggests a misunderstanding on the part of the respondent's solicitors of the nature of a tribunal hearing. A tribunal hearing is meant to be part of a process that is inquisitorial rather than adversarial. An expert witness is theoretically made available by a party to assist the tribunal, not to assist one party to succeed at the expense of the other. It is not relevant that the respondent may have no questions for an applicant's expert witness. The tribunal may have some questions. That is especially so in a case such as this where, as the argument proceeded, a major difference of principle appeared to open up between the respondent's doctors, whom the respondent did call, and the applicant's doctors, whose views had to be communicated in writing.

* If the allegations are true there may be a hint of advantage being taken of the respondent's superior financial bargaining power in the matter. Commonwealth agencies are expected to behave as model litigants. The taking of such advantage would appear inconsistent with the spirit of the model litigant principle.

* The tribunal sometimes takes an expression of intent by one party ("the first party") not to cross-examine the witness of the other party ("the second party") as acceptance by the first party of the views of the witness of the second party. For a respondent there can, therefore, be a forensic risk in deciding not to cross-examine a witness with whom the respondent disagrees.

* Again assuming Mr O'Gorman's understanding to be accurate, if the applicant were to achieve a favourable outcome in this matter, the costs to be paid are a matter for the tribunal and, if on appeal, the courts.. While the respondent would be encouraged to express its views, the tribunal is not bound to implement them. Where an expert witness has been called by an applicant, and the tribunal refers to that witness's oral evidence in addressing a controversial issue in its decision, and if the applicant succeeds in his or her appeal, it would be most unusual for the tribunal to decide that the applicant is not to receive costs in respect of such a witness.

51. The tribunal in any event has access to a considerable number of written reports, the transcripts of evidence given in the earlier hearing of this matter on 30 September 1999 and to material provided by both parties after the hearing. It is to that material that we now turn.

Dr MacIver

52. On 30 January 1997 Dr MacIver, general practitioner, provided a medical certificate for the applicant (ex A7) identifying a chronic back problem aggravated by motor cycle riding.

53. On 13 January 1999 Dr MacIver provided a report (ex A5) in which he referred to Dr McGrath's assessment that Mr Bessey had been exposed to low grade repetitive trauma to the spine and that "bio-mechanical evidence confirms the destructive effects of repetitive strain at levels below the tensile strength of the structures".

54. On 7 May 1999 Dr MacIver reported (ex A6) that Mr Bessey suffers from a permanent impairment as a result of injuries to his back. He rated Mr Bessey at 10% "in accordance with the Comcare tables", but did not identify which table he had used.

55. On 8 August 2001 Dr MacIver wrote (ex A4) that Mr Bessey had developed a chronic pain syndrome in relation to the back that was caused by his riding motor cycles for Australia Post over a period of 10 years. The condition was continuing to be aggravated by sorting duties.

56. On 30 September 1999 Dr MacIver gave evidence before the tribunal (ex R15). Little came from that other than Dr MacIver agreeing that Mr Bessey's golf playing involves a large amount of walking and some use of his back. He agreed also that it was difficult to separate out the various causes, work-related and otherwise, of Mr Bessey's back condition.

Dr Scott

57. Dr R J Scott, an occupational physician, wrote on 24 February 1997 (T21) that Mr Bessey had constitutional degenerative spondylosis of his lumbar spine that would progress with time and which Dr Scott believed was aggravated by Mr Bessey's work of riding his motor cycle and twisting, as in setting up his run and placing mail in letter boxes. He recommended that Mr Bessey be taken off motor cycle duties.

58. On 24 March 1997 (T20) he wrote that Mr Bessey had degenerative spondylosis of his lumbar spine that was aggravated by his motor cycle riding and twisting movements. This would progress in time, he said, especially if further aggravated. Dr Scott was adamant that Mr Bessey was to avoid twisting movements.

Dr McGrath

59. Dr D McGrath, a consultant in occupational medicine, reported on 10 December 1997 (ex A11). It is noteworthy that Dr McGrath accepted a history at variance with other evidence surveyed earlier suggesting that postal delivery officers were to equalise the weight of the two pannier bags on motor cycles. Dr McGrath accepted that Mr Bessey was not told this. Dr McGrath wrote that, from the history given, it was clear that Mr Bessey had been exposed to low grade repetitive trauma to the spine. He said that a ten-year history of asymmetrical spinal forces is more than sufficient to produce significant spinal injuries. He said the recent bio-mechanical evidence in the scientific literature confirmed the destructive effects of repetitive strain at levels below the tensile strength of the structures. In simple terms, he said, there was weakening vulnerability produced by low grade repetitive strain.

60. On 12 July 2001 Dr McGrath wrote (ex A10) that he remained of the opinion that Mr Bessey had a spinal disability arising from his occupation of postman and his spinal disability could not be ascribed to constitutional spinal spondylosis. He said that the disorder could not be described as an aggravation of a pre-existing disorder as his disability was continuing and should be regarded as permanent.

Dr Griffith

61. Dr G G Griffith, a surgeon, reported on 1 June 1999 (ex A9). He also accepted that Mr Bessey had not been told to equalise the weights of the pannier bags in use when he was a mail delivery man. He diagnosed multilevel degenerative disease, particularly affecting the upper lumbar vertebrate. There was significant degenerative disease present in 1987. He said that Mr Bessey continued to suffer from degenerative disease of the lumbar spine. Further, he said that, as a consequence of the continued symptoms from both his back and his knee, and the stresses which have occurred in the workplace, Mr Bessey was also suffering from significant anxiety and depression of a reactive nature. Dr Griffith said that the prognosis for the degenerative disease of the spine was for steady progression. He said that persistent jarring and heavy lifting were liable to produce periodic aggravation. He said that the natural history of the symptomatology of degenerative disease of the spine is the periodic aggravations and remissions, further predisposed to by excessive or inappropriate physical activity.

62. He went on to say that it was, in his opinion, too facile an interpretation of the history given and the background information available regarding the effects of repeated subliminal trauma on the structure of the lumbar spine to state that symptoms should remit totally within a week or two of ceasing such activity as riding the Australia Post motor cycle. He said that during the period of many years in which Mr Bessey engaged in this activity it was more likely than not that there was a significant contribution to the progression of degenerative change of a structural, as opposed to symptomatic, nature due to this cause. This must, on balance, be considered to have made a contribution to the structural injury which could be seen clinically, said Dr Griffith.

63. Dr Griffith reported again on 29 August 2001 (ex A8). Dr Griffith re-examined Mr Bessey and in his report largely reiterated what he had said earlier. However, in this second report he addressed the V-sort frame. He said that he remained of the opinion that Mr Bessey undoubtedly suffered constitutional spondylosis which was aggravated in the course of his motorcycle beat and his walking beat. He said that he was also of the opinion that the use of the V-sort frame, "which must be considered an appallingly non-ergonomic device (as judged by the large number of postal officers who complain of back pain after using it) currently aggravated his lumbar spondylosis on a repeated basis." He said this frame required constant standing and twisting of the spine, together with stooping and bridging overhead. Dr Griffith said that it would be difficult to conceive of a series of movements more calculated to cause aggravation of symptoms in individuals with degenerative back conditions.

64. Dr Griffith then made a remark that was somewhat curious in the context of the current application. He said, "I am of the opinion therefore that his underlying spondylosis suffered aggravation because of the necessity to repeatedly flex and extend his lumbar spine in the workplace. The lumbar spine does not contribute significantly to tortional movement of the spine, which is a function of the thoracic spine. Though spondylitic, it is not a source of major symptoms in your client. The repeated rotatory movement of the thoracic spine is necessary when operating the V-sort frame."

65. Later he was asked whether, in his opinion, the aggravation was likely to have continued or to be continued. He answered this in the affirmative referring to the use of the V-sort frame and lifting mailing containers in a non-ergonomic fashion, an unavoidable situation in the workplace, he said. However, he then said, "Any soft tissue aggravations of his lumbar spine... (in contradistinction to any structural injury incurred) occasioned by his duties as PDO, both as a motorcyclist and on the walking beat, must be considered as resolved at this time."

66. Dr Griffith gave evidence at the earlier tribunal hearing of this matter on 30 September 1999 (ex R13). That evidence was, however, of limited use in the instant proceedings. It largely involved Dr Griffith in being challenged regarding his lack of knowledge of Mr Bessey's earlier injuries and x-ray findings, eg those as early as 1987. This led to Dr Griffith accepting that Mr Bessey's problems were caused by a number of factors, not all necessarily connected to his employment. There was no discussion of whether or how Mr Bessey's work may have worsened the underlying spondylitic condition in his lumbar spine.

POST-HEARING MEDICAL EVIDENCE

67. Dr McGill's apparent certainty in his belief that normal occupational functioning, in the absence of a substantial trauma, could not produce a permanent worsening in an employee's underlying condition of lumbar spondylosis was identified by Mr O'Gorman as problematic for his client. As discussed above, the applicant had decided to call no medical witnesses, allegedly because of an understanding that to do so could incur a costs penalty, so the applicant was unable to call in aid any medical expertise to test Dr McGill's views. In addition, as the tribunal's references above to medical evidence given at the earlier hearing indicated, this issue was not central to considerations before the tribunal at that time[2]. It must be said, however, that Professor Sambrook's article was mentioned and summarised at that hearing. Apparently Mr O'Gorman was not made aware of that until shortly before the present hearing. It was agreed by the tribunal that, in fairness to the applicant, some opportunity should be accorded the applicant to provide additional evidence in response to Dr McGill. Dr McGill was also to have the opportunity to respond to any such additional evidence.

68. On 18 September 2002 the applicant's solicitors filed ex AH1. This contained a report by Dr Griffith dated 5 September 2002. Dr Griffith said that Mr Bessey's condition is an idiopathic or constitutional condition "which will not be altered by the nature and conditions of his employment; nor will it be in the future". This would appear to support Dr McGill's position. However, he said that he saw the issue as not whether Mr Bessey's occupation had caused the lumbar degeneration, but whether it had aggravated the symptoms. The tribunal pauses to observe that, in accordance with the legal principles summarised above in paragraph 11, a mere aggravation of symptoms permits compensation to be paid only during a period of such aggravation. In the absence of a worsening of the underlying constitutional condition there is no ongoing compensation payable. Dr Griffith agreed with the content of the Sambrook and Videman articles but regarded them as irrelevant, apparently misunderstanding the applicable legal principles.

69. Dr McGrath provided a report dated 9 September 2002 that formed part of ex AH1. He concentrated on the proposition that there is no necessary correlation between pain experienced by a person and measurable spinal degeneration. He said that having degenerative spinal changes constitutes a tiny risk of having back pain. He went on to say that in Mr Bessey's case the origin of his painful disability was unknown. He was content to accept the probability that Mr Bessey's work as a postman contributed to the origin of his problem through a 10-year history of "asymmetrical spinal forces". He wrote, "Biomechanical literature has supported the notion of repetitive spinal strain below the full tensile strength of spinal structures, leading to fracture and significant injury. It can only be surmised that this might be part of the process in the origin of his problem." He proceeded to say that occupational medicine data leant some weight to the argument that his problem may have arisen from his work as a postman. The average rate of sprains and strains to the spine from South Australian data is 12.7 injuries per 1000 person/years. This rate ranges from 2.4 for clerks to 31.2 for labourers and related workers. He estimated that being a postman under the conditions that Mr Bessey described could roughly translated to a trade person's rate of injury at 17.9. Dr McGrath said it was not known why Mr Bessey had chronic spinal pain while others presumably have healed from the recurrent sprains. He thought it could possibly be because of genetic factors.

70. Dr McGrath attached copies of 11 reference articles. The importance of those articles is perhaps best summarised by Dr McGill in his response (ex AH2). In his report Dr McGill said the following:

"...

The report by Dr David McGrath (9 September 2002) also indicates that he has no criticism of the 'methodology and the conclusion of the two articles' but he emphasises the relatively poor correlation between the level of symptoms and the degree of radiological change. Dr McGrath in fact claims 'in simple terms there is no cause or relationship between lumbar degeneration and painful disability'. He further recorded 'with respect to Mr Bessey, the origin of his painful disability is unknown'. Nevertheless, despite that statement and his acceptance that Mr Bessey's work duties would not have influenced his lumbar degeneration, he states 'I am content with the probability that his work as a postman has contributed to the origin of his problem through a ten year history of asymmetrical spinal forces'. He then refers to spinal strain 'leading to fracture and significant injury', despite the fact that his earlier comments had apparently indicated that he thought Mr Bessey's work had not changed the structure of his spine and the symptoms were apparently unrelated to the degree of lumbar degeneration (and presumably of any other physical abnormality).

Dr McGrath also provided a large number of articles, mainly to support the observation that symptoms and radiological changes do not correlate well.

The article by Symmons et al (A Longitudinal Study of Back Pain and Radiological Changes in the Lumbar Spines of Middle Aged Women) examined two groups of Dutch women and noted that recurrent back pain was associated with smoking, previous use of the oral contraceptive, pain in other joints, frequent headaches and restricted lumbar spine movement. Although the study might reasonably be thought to have little to offer of relevance to Mr Bessey's situation, it did demonstrate the high frequency of chronic back pain in the general population (one third of women aged 45 to 64 years reported recurrent back pain). The authors specifically noted that their study did not allow them to assess the effect of occupation, noting that only 24% of the participants in the study had ever worked with equal percentage (24% and 25%) in the groups with and without back pain.

The descriptive study by Horal (1969) titled 'The Clinical Appearance of Low Back Disorders in the City of Gothenburg, Sweden' included a lot of descriptive writing (more than 30 pages) but I was unable to discern any clear take home message. The author concluded on the basis of his study that 'the most common type of variation is a combination of lumbago and sciatica with low back insufficiency. (page 31). I presume this sentence included a typographic error as it does not make sense. The difficulty obtaining any useful message from such an old study is that the terms used to describe symptoms are even more imprecise than those used currently and in the case of this paper, typographic or other errors have not been eliminated leading to even greater difficulty in understanding what the author was suggesting. I note that despite the great length of this article provided by Dr McGrath, in his report he used it only to note the relatively poor correlation between radiological changes and symptoms.

Dr McGrath provided copies of a large number of other articles which, at least as far as I could ascertain, simply confirmed the relatively poor correlation between symptoms and radiological changes in the spine.

In summary, both Dr Griffith and Dr McGrath appear to acknowledge that the physical structure of Mr Bessey's spine has not been influenced by his work duties. Data have been presented which confirm the relatively poor correlation between the level of symptoms and the degree of radiological change. Neither Dr Griffith nor Dr McGrath have provided any data to support a conclusion that Mr Bessey's symptoms are any different than they would have been had he not performed the duties he performed in the past.

..."

71. On 29 November 2002 the applicant's solicitor informed the tribunal that the applicant had no further submissions in response to Dr McGill (ex AH3).

MR N PELLOW

72. Mr N Pellow, Manager of the Belconnen Delivery Centre of Australia Post, gave evidence at the tribunal hearing. He had provided two statements (ex R2 and R9) that were prompted by Mr Bessey's statements in ex A3 and in the earlier proceedings. The main messages emerging from these statements were:

* That each of the two pannier bags on a motor cycle could weigh a maximum of 16kg. In cross-examination Mr Pellow conceded that it was possible that a bag might weigh more than 16 kg, however that was said to be something that should not happen.

* At no time had Mr Bessey been sent home because of a lack of suitable duties.

* Motor cycle postal officers were instructed to move mail in batches from the rear pannier bags to the front letter carrier to reduce the amount of backwards reaching required. Mr Pellow thought the front carrier was introduced in the early 1990s.

* Mr Bessey was not offered van driving duties because he was not able to perform the full duties of a Postal Transport Officer position. He could have challenged this by producing medical evidence to substantiate his claim and the respondent would have taken appropriate action. Mr Pellow was unclear which duties Mr Bessey could not perform. The tribunal recalls a reference in Dr McGill's report at ex R5/2 to problems Mr Bessey would have changing a tyre, for example.

* Employees on rehabilitation programs are required to work hours in accordance with their graduated return to work program, whereas employees on light duties are required to work "to the extent of whatever work is available within their restrictions".

* Mr Bessey ceased motor cycle duty in February 1997. He undertook a walk beat from August 1997 to 14 May 1998.

* Mr Bessey has declined offers of referral to the Employee Assistance Program for assistance. This is a program offering free, confidential counselling.

* Mr Bessey has always had work available to him that complies with his medical constraints.

* Since 1999 Mr Bessey's duties have been mail sorting, including using a V sort frame, data entry into a computer, wheeling trolleys and placing empty letter tubs into large containers for collection by a driver.

* Mr Bessey starts works at 3.00 am Monday to Friday. He does overtime if required. He receives a 15% shift allowance for commencing prior to 6.00 am.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

73. The tribunal finds that Mr Bessey has not suffered an injury to the lumbar spine in the sense that an injury is defined in s 4(1) of the Act. As explained earlier, the applicant alleged in the present proceedings that his injury took the form of an aggravation of his pre-existing lumbar spondylosis in respect of which his employment, whether it be his use of a motor cycle for 10 years up to February 1997, or his more recent use of a V-sort frame, or both made a material contribution. The tribunal noted earlier that there was a practical onus on the respondent to justify its decision to cease liability for payment of compensation to Mr Bessey. The tribunal is satisfied on the basis of the evidence now before it that that was the correct or preferable decision.

74. The tribunal was impressed by the evidence of Drs McGill, Claffey and Cummine for the following reasons. First, they were aware of the legal requirements as explained in the Bessey case (above) when proffering their opinions. They expressed eloquently the requirement that there must be an aggravation that has an ongoing effect on the underlying or pre-existing condition.

75. The applicant's experts appeared to think that aggravation of symptoms was sufficient as a basis for payment of compensation. Such a temporary aggravation, as Tippett (above) held, will result in compensation, but only as and when the effects are being felt and bring about a need for medical treatment, household assistance, compensation for time off work or other items of compensation appropriate to the case. Such flare ups are not a proper basis for a general, ongoing liability to pay compensation in accordance with s 14(1) of the Act.

76. The second reason for the tribunal's preference for the views of Drs McGill, Claffey and Cummine was the fact that they agreed that the ordinary nature and conditions of work, without any significant incident of trauma, do not constitute a cause of permanent worsening of a pre-existing spondylitic condition. Dr McGill was able to cite two recent studies, one in support of this proposition and the other in support of a genetic explanation for lumbar disc disease. Those doctors who thought that minuscule traumas or repetitive minor traumas could cause or aggravate lumbar disc disease did not produce evidence that showed this in any affirmative way.

77. These findings mean that the respondent is not liable to compensate the applicant in accordance with s 14(1) of the Act and has not been liable to do so since 16 December 1997.

78. These findings dispose also of the applicant's claim for a payment in respect of permanent impairment. As Deputy President Burns held in Re Denison-Smith and Comcare (2000) 31 AAR 202, in the absence of liability under s 14(1) of the Act the respondent is not liable to pay compensation under ss 24 and 27 of the Act.

CONCLUSION

79. The above findings mean that the respondent was justified in ceasing its acceptance of liability with effect from 16 December 1997. The respondent was also justified in deciding on 8 September 1999 that it was not liable to pay compensation to the applicant under ss 24 and 27 of the Act.

DECISION

80. The decisions under review are affirmed. The applicant is entitled to no costs associated with the applications.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decisions herein of Mr M J Sassella, Senior Member and Dr M D Miller AO, Member

Signed: David Reed

Associate

Date of hearing 2 - 4 September 2002

Date of final submissions to tribunal

29 November 2002

Date of decision 7 February 2003

Counsel for the applicant Mr D O'Gorman

Solicitor for the applicant Howes & Kaye Solicitors

Counsel for the respondent Mr P Jones

Solicitor for the respondent Hunt & Hunt Lawyers

[1] http://www.austlii.edu.au/au/legis/cth/consol_act/sraca1988368/.

[2] As the citations above in paragraph 11 show, the learning in relation to aggravation was developed somewhat by the Federal Court in Bessey (above). That case involved the parties to this application and was decided after the earlier tribunal decision in Re Bessey and Australian Postal Corporation (2000) 60 ALD 529.