Cleary and Australian Postal Corporation [2003] AATA 509 (30 May 2003)

Last Updated: 25 November 2003

DECISION AND REASONS FOR DECISION [2003] AATA 509

ADMINISTRATIVE APPEALS TRIBUNAL )

)N2001/574; N2002/310

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Colin James CLEARY

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal P. J. Lindsay, Senior Member, Dr P. Lynch, Member

Date 30 May 2003

Place Sydney

Decision The Tribunal:

(a) Affirms the respondent's decision of 27 April 2001 denying liability to compensate the applicant for a low back injury;

(b) Varies the respondent's decision of 10 September 2001 by remitting the matter to the respondent with a direction that the applicant has suffered 10 per cent whole person impairment of the right knee under the Guide to the Assessment of the Degree of Permanent Impairment and is entitled to compensation under ss.24 and 27 of the Safety, Compensation and Rehabilitation Act 1988 but the Tribunal affirms the decision in all other respects; and

(c) Orders the respondent to pay the applicant's costs.

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

Senior Member

CATCHWORDS

COMPENSATION - claim for compensation for injury to low back - claim for compensation for permanent impairment of the back, right knee and left knee - whether injuries work related - decision denying compensation for permanent impairment of the back and left knee affirmed - decision denying compensation for permanent impairment of the right knee set aside - matter remitted to the Commission to determine the amount payable for permanent impairment of the right knee

Safety, Rehabilitation and Compensation Act 1988 ss. 14, 16, 18, 20, 21, 24, 25 and 27

Comcare Guide to the Assessment of the Degree of Permanent Impairment, Australian Government Publishing Service, Canberra, 1989.

REASONS FOR DECISION

P. J. Lindsay, Senior Member, Dr P. D.Lynch, Member

1. Mr Colin James Cleary, the applicant, has made two applications to the Tribunal for review of decisions made by the Australian Postal Commission (the respondent):

* Proceeding N2001/574: Mr Cleary seeks review of a decision made on 27 April 2001 that affirmed a determination of 16 January 2001 to deny liability in relation to a claim the respondent treated as being for a low back injury.

* Proceeding N2002/310: Mr Cleary seeks review of a decision by the respondent on 10 September 2001 that varied the decision of 27 April 2001. The respondent varied its decision so as to "remove any doubts which may exist regarding the AAT's authority to consider [the applicant's] claims under sections 24 and 27". The decision of 10 September 2001 thus denied liability for compensation "... in respect of any injury to the low back and knees. The denial of liability encompasses all relevant provisions of the [Safety, Rehabilitation and Compensation Act 1988], including section 14, 16, 18, 20, 21, 24, 25 and 27" (T5). Prior to the hearing, the Tribunal granted the applicant an extension of time to lodge his appeal against the respondent's decision of 10 September 2001.

2. At the hearing Mr T Reilly of counsel appeared for the applicant. Mr B Kelly of counsel appeared for the respondent. The applicant gave evidence and Dr P Giblin, an orthopaedic surgeon, gave evidence by telephone on his behalf. The Tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.

BACKGROUND

3. Mr Cleary was born on 1 May 1938 and began his employment with the respondent in 1967. Throughout most of his career with Australia Post, Mr Cleary was a postal delivery officer.

4. On 9 January 2001, Mr Cleary made a claim for rehabilitation and compensation for an injury described in the claim form as `disc dislocated bottom of spine' (T19). He cited riding a motorbike for postal delivery purposes over the course of thirty years and standing at the V frame for sorting mail as the things that caused his injuries. On 16 January 2001 the respondent advised Mr Cleary that his claim had been unsuccessful (T21). In reviewing the claim, the respondent found that there was little evidence that the applicant's employment had caused or had materially contributed to his lower back condition. The applicant sought reconsideration of this decision and in support of his claim, submitted a report from his general practitioner, Dr Sims, dated 30 January 2001 (T23). In this report, Dr Sims stated:

I saw him on 4^th January when he presented with right knee pain. The description was consistent with sciatica and after his description of his work duties, I felt confident that this was a work related problem. I arranged x-rays of his knees and a CT scan of his lumbar spine. ... His CT scan shows bulges both at the L4/5 disc space and the L5/S1 disc space. There are also spondylotic changes at the level of L5/S1. Interestingly, when compared with a previous CT scan of lumbosacral spine attended for him in August of 1998, there has been significant deterioration.

In Dr Sims' opinion:

I have no doubt whatsoever that Mr Cleary's presenting complaint of right knee pain is due to sciatica from a prolapsed intervertebral disc and facet joint osteoarthritis of the lumbar spine and this in turn is a result of his work duties over many years riding a motor cycle delivering mail.

5. The respondent had Mr Cleary assessed by Dr J Downes, orthopaedic consultant, whose report dated 3 April 2001 (T27) made the following findings:

My diagnosis is that he has severe arthritis affecting both knees, particularly the medial compartments leading to genu varum or bow legs. This is a clinical and radiological picture. He has facet joint arthritis of his spine. This is a clinical and radiological diagnosis. ...

With all due respect to those treating Mr Cleary, I believe the condition would be the same, irrespective of his employment. In fact, I would go further and say it is the same. This patient has a constitutional condition, namely Osteoarthritis of the joints. It is bad, but that does not imply that it is specifically related to his work duties.

Further, commenting on the applicant's claim that his condition arose from riding his motorbike, Dr Downes noted that most orthopaedic surgeons would suggest that riding a bike is the best way of avoiding damage to the knee because the body weight is supported by the bike.

6. The respondent informed Mr Cleary on 27 April 2001 that the original determination of 16 January 2001 was affirmed (T28).

7. On 9 July 2001, Mr Cleary lodged a compensation claim for permanent injury to his back, his right knee and left knee. By decision dated 10 September 2001, the respondent varied its decision of 27 April 2001. Among other things, the decision of 10 September 2001 denied liability under ss.24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of any injury to the low back and knees.

EVIDENCE

8. Mr Cleary said his daily duties as a postal delivery officer included sorting the mail for his run, putting it into bags and then delivery. His duties could require him to lift heavy bags. The sorting would take roughly three hours a day. He always rode a motorbike when delivering the mail. At times, he would have to ride the motorbike on grassy and uneven footpaths. On average he would ride the motorbike for about 3 ½ to 4 ½ hours a day.

9. Apart from a break of about two years from 1 July 1992, Mr Cleary worked on a full-time basis for Australia Post continuously from 1967 until his retirement on 6 May 2002. Mr Cleary received radiotherapy and chemotherapy treatment for some months following diagnosis of lymphoma in his chest in September 1991. He had to take intermittent leave for treatment until the end of January 1992 and then full-time leave. Eventually he resigned in June 1992. The applicant returned to Australia Post as a casual employee in November 1994. He had also been employed on a casual basis as a doorman by the Warilla Bowling Club for approximately fourteen years and continued this work following his resignation from the respondent in 1992. His duties as a doorman involved sitting down for most of his shift.

10. The applicant was re-employed full-time by the respondent at the end of 1995. He was given a medical assessment by Australia Post and he was required to complete a medical history on 11 March 1996. Mr Cleary stated in the assessment that he did not suffer from either "26. Back or neck pain or injury; 27. Joint pain or arthritis; ... 29. Pain in lower limbs or feet" (T15-101). In cross-examination, Mr Cleary allowed that he must have made a mistake when completing the assessment form because his knees were troubling him in March 1996.

11. On the applicant's return to full-time delivery work in 1996, there was no heavy lifting required as all his mail was sorted before he started his shift. It is noted that Mr Cleary had further radiotherapy in 1998 for a recurrence of lymphoma, apparently in his stomach. Mr Cleary retired in May 2002 following diagnosis of leukemia and bone cancer.

12. In evidence Mr Cleary said that he began to have a sore back around 1997. Periods of standing while sorting caused the soreness. Later, around 1998 or 1999, his knees started to ache, particularly while riding the motorbike but also while standing. His right leg and knee would lock up and he would have to walk around to loosen them up. He consulted Dr Mahon, his G.P at the time, in September 1999 about his painful knees. Dr Mahon wrote to the respondent on 8 September 1999 (Supp T3) about Mr Cleary's "known arthritic changes in his lower back [he] also has the complication of sciatica in [right] leg". Dr Mahon observed that the applicant's condition was aggravated by standing to sort mail for long periods and requested that Mr Cleary be permitted to sit while sorting. Mr Cleary said that he was given a chair for this purpose around this time. It provided some relief for the soreness in his back and knees. The applicant's evidence was that he did not have problems again with his knees until June 2000.

13. In his note to the respondent of 9 January 2001 (T19-119) Mr Cleary stated:

In 1998 I started to have back trouble. The doctor (Dr Mahon) treated me for arthritis and wrote to delivery manager stating that I should sit down and was issued with one. On Thursday 4^th left work because my legs and back were aching. Went to Dr Simms [sic] and was sent for x-rays, on the 8th, visit Dr Simms 9^th and was informed that I had disc trouble and was advise its work related and he thought it was cause of riding the motorbike over the years.

14. On 10 January 2001 the applicant saw Dr B Dominis, who worked in occupational health management. Dr Dominis diagnosed the applicant as having right knee osteoarthritis, osteoarthritic lower back pain in the L3/4, L4/5, L5/S1 discs, and disc protrusions at L4/5 and L5/S1 (T17-111). Dr Dominis suggested that the applicant should not do any motorbike delivery work or sorting at the V frame. Subsequently, Mr Cleary worked for four hours a day on restricted duties. His restricted duties did not include motorbike deliveries or V-frame sorting. Even so, he said that sitting down for too long caused soreness in his knees. He had physiotherapy for his back condition. Mr Cleary remained on light duties until he retired. He said that he would have stayed working for the respondent, on light duties had he not developed the leukemia and bone cancer.

15. Mr Cleary described his current symptoms. He develops soreness in his back and knees after standing for periods. When he develops the soreness he must go and sit down. He does not suffer pain in his knees or his back while in bed. Sitting for prolonged periods can cause his right knee to lock up.

16. The applicant lives with his son. A gardener cuts the lawn, though the son sometimes attends to the task.

17. In cross-examination the applicant agreed that he had injured his back at work on a couple of occasions prior to 1997. In July 1983 he suffered a back strain by picking up a heavy parcel bag and consequently had four days off work before returning on full duties. On 22 June 1989 he fell off his motorbike and injured his back but did not take time off work and made a full recovery.

18. Mr Cleary agreed that he was off work due to back pain from 13 October 1997 to 17 October 1997, on 16 December 1997, from 30 June to 3 July 1998, 14 September 1998, 1 July 1998 and 11 January 2000. On 8 September 1999 he was off work because of right side sciatica. He further agreed that he had taken sick leave at those times and did not make a compensation claim. It was suggested to Mr Cleary that these periods of sick leave had nothing to do with work and that he was well acquainted with the need to report accidents and claim compensation if appropriate. Mr Cleary said that he was aware of the procedures for claiming compensation and acknowledged that prior to April 1998 he had reported injuries to his employer on fourteen separate occasions. He said that Dr Mahon had told him his problems stemmed from arthritis. It was only later, after seeing Dr Sims in January 2001 who suggested that there was a connection with work, that the applicant claimed compensation at that time. Mr Cleary explained that he did not think his sore back and knees had anything to do with his work until Dr Sims advised him that riding the motorbike was the cause of his conditions.

19. The applicant said his work did not involve heavy lifting. He said that after his first complaint about back pain in 1997, his condition quickly deteriorated. The only medication the applicant has taken is that prescribed by Dr Mahon for his arthritis.

20. In answer to a question from counsel for the respondent, the applicant said that he told Dr Downes that he did not experience problems with his knees or back while he worked restricted duties. He agreed that he jarred his right knee, bruised his left knee and left ankle on 1 May 1984 when he lost control of his motorbike. Consequently he had three days off work for which he was paid compensation. Mr Cleary told the Tribunal that he made a full recovery from this injury.

Dr Giblin

21. Dr Giblin, orthopaedic surgeon, examined the applicant on 27 April 2001. Dr Giblin obtained a history of pain in the back due to jarring from riding the motorbike on rough terrain and constant bending while delivering the mail. He also reported pain in the applicant's right knee from using his right leg to support the motorbike when placing mail in letterboxes. He noted knee soreness from prolonged standing and that the general ache in both knees was the applicant's chief complaint. All his symptoms came on gradually with no specific incident. Dr Giblin recorded an early knee injury which he thought was the cause of three weeks off work. In cross-examination, Mr Cleary agreed that he was absent from work for only three days.

22. On examination Dr Giblin found that the range of movement of the right knee was significantly less than the left knee. Extension of the lumbar spine was half the normal range. Dr Giblin's report of 27 April 2001 (Exhibit A1) contained the following diagnosis:

Post traumatic degenerative changes in the lumbar spine and both knees, reasonably causally related to the nature and conditions of his work environment, as being the substantial contributing factor.

There is an addition [sic] component, by virtue of normal age related changes.

23. At the hearing Dr Giblin said he thought the repetitious impact on the applicant's knees in getting on and off his motorbike when delivering the mail produced gradual aggravation of his underlying degenerative arthritis. In addition Dr Giblin said the twisting to get off the motorbike would have accelerated the underlying age related changes to the applicant's back. In cross-examination, Dr Giblin said that the applicant did not complain of knee soreness from riding the motorbike. Dr Giblin agreed that the applicant's putting out his right leg to stop himself while on the motorbike would not explain the degree of arthritis seen in the left knee. While accepting that the degeneration of the applicant's lumbar spine and knees could be entirely accounted for by age and degenerative change, Dr Giblin thought the nature and conditions of the applicant's duties contributed to 50 per cent of his arthritis in the back and knees. Dr Giblin's evidence regarding Mr Cleary's degree of whole person permanent impairment conflicted with his reports (Exhibits A3 and A4). His evidence was that, in relation to each knee, he assessed 10 per cent permanent impairment under Comcare's `Approved Guide to Permanent Impairment' Table 9.2 (Lower Extremity), although his initial assessment was 20 per cent impairment of the right leg alone under Table 9.6 (Spine). In relation to assessing the knees under Table 9.5 `Limb Function - Lower Limb', Dr Giblin would assess the level of permanent impairment at 20 per cent. However, Dr Giblin told the Tribunal that he did not take a history of "... difficulty with grades, steps and distances" (Table 9.5 - 20 per cent level of impairment).

Dr Wallace

24. Dr R Wallace, orthopaedic surgeon, examined the applicant on 16 October 2001. Dr Wallace obtained a history from Mr Cleary of onset of back pain in mid-1998 and right knee pain in June 2000. He also noted Mr Cleary's history of gout but no mention of problems with the left knee. On examination, Dr Wallace found that the applicant had less than half the normal range of movement in the lumbar spine without neurological signs. He also found that the applicant had less than half the normal range of movement in the right knee with some laxity and angulation of the knee below the legs.

25. Dr Wallace diagnosed the applicant with arthritis of both knees and musculo ligamentous degeneration of the lumbar spine. He stated that this was consistent with overuse and that this was due to the nature and conditions of the applicant's work.

26. In his report dated 30 November 2001 (Exhibit A6) he stated:

I believe this gentleman has suffered a recurrent musculoligamentous strain at his lumbar spine and exacerbation of pre-existing lumbar spondylosis as a result of injuries sustained due to the nature and conditions of his employment in the period 1998 to date and continuing. I believe he has suffered ligamentous strain and exacerbation of pre-existing osteoarthritis at his right knee, as a result of injuries sustained in the course of his duties at work in the period 2000 to date and continuing. These injuries are consistent with the mechanism described of repetitive lifting, bending and twisting movements at his lumbar spine and lower limbs in the course of his duties at work as a motorbike Postman.

27. In his supplementary report of the same date (Exhibit A6), he assessed Mr Cleary under Table 9.6 of the Comcare guidelines stating that he had a 20 per cent whole person impairment of his back. Under Table 9.2, Dr Wallace assessed 10 per cent whole person impairment of the right leg.

Dr Casey

28. On the respondent's referral, Dr B Casey, consultant orthopaedic surgeon, examined Mr Cleary on 4 December 2001 regarding his knees. Dr Casey diagnosed degenerative arthritis bilaterally, particularly involving the medial compartment of both knees (Exhibit R1). In relation to causation, it was his opinion that the pain was not related to the applicant's employment, but constitutional in nature, as it was a standard occupation with only moderate demand on the knees, much less than in some other occupations in the workplace. Specifically Dr Casey reported:

I would not regard the worker's employment as contributing towards the development of the knee osteoarthritis condition. I would not regard his work as producing an aggravation or deterioration of this osteoarthritic condition. There has not been any injury to flare up the pre-existing arthritis by way of an exacerbation.

29. With regard to the Comcare Guidelines, Dr Casey assessed the applicant as having a loss of half the range of movement in his right knee and a full range of movement in his left knee. Accordingly, he assessed the applicant as having a 10 per cent whole person impairment of the right knee and a nil whole person impairment of the left knee. Considering the functional impairment of both lower limbs he found that, as Mr Cleary was able to rise to the standing position but had difficulty with grades and slopes, the correct assessment was a 10 per cent whole person impairment. Dr Casey did not regard any of the impairment as attributable to Mr Cleary's employment.

Dr Maxwell

30. Dr D Maxwell, orthopaedic and spinal surgeon, examined the applicant on 29 May 2002 and provided a report dated 11 June 2002 (Exhibit R2). Mr Cleary told Dr Maxwell that the pain in his right knee came on gradually, that in January 2000 it started to lock up after he had been riding the motorbike, and that after this time when he first got off the bike he had trouble straightening his knee. In regards to his back, Mr Cleary told Dr Maxwell that his pain had started in 1998 in the right lower side of his back, but that he could not recall any specific injury. On examination, Dr Maxwell noted full extension of the thoracolumbar spine with slight discomfort and full lateral flexion to the right and left knee. Dr Maxwell noted that there was less flexion in the right knee than the left but no evidence of neurological compromise.

31. In his report Dr Maxwell diagnosed the applicant as having bilateral medial compartment osteoarthritis that was constitutional and not related to the nature and conditions of his work or any specific work injuries. Dr Maxwell also stated that the applicant had mild degenerative changes in his lower lumbar spine that were reasonable for his age and also not related to any injury in the course of his work or any nature and conditions of his work. In relation to the Comcare Guidelines Dr Maxwell assessed the applicant as having 10 per cent whole person impairment relating to both his right and left knees, and 5 per cent whole person impairment relating to his thoracolumbar spine.

FINDINGS AND CONSIDERATION

32. Sections 24 and 27 of the Act read as follows:

Section 24 Compensation for injuries resulting in permanent

impairment

(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, where Comcare determines that the degree of permanent impairment is less than 10%, an amount of compensation is not payable to the employee under this section.

...

Section 27 Compensation for non-economic loss

27 (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment. ...

Section 28 Approved Guide

(1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:

(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;

(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and

(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.

...

(4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.

(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.

The Act contains the following definitions:

Section 4

Interpretation

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

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

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 ...

permanent means likely to continue indefinitely.

33. The following tables from the Guide are relevant:

Table 9.2: Lower Extremity (Percentage Whole Person Impairment)

Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.

%	DESCRIPTION OF LEVEL OF IMPAIRMENT
0	X-ray changes but no loss of function of hip, knee or ankle OR Ankylosis or lesser changes in any toes except the first hallux
5	Loss of less than half normal range of movement of ankle
10	ANY ONE of the following: - loss of less than half normal range of movement of hip or knee - loss of half normal range of movement of ankle - ankylosis of first hallux
15	Loss of more than half normal range of movement of ankle
20	ANY ONE of the following: - Loss of half normal range of movement of hip or knee - Ankylosis of ankle
30	Loss of more than half normal range of movement of hip or knee
40	Ankylosis of ankle

34. Table 9.5

Table 9.5: Limb Function - Lower Limb (Percentage Whole Person Impairment)

%	DESCRIPTION OF LEVEL OF IMPAIRMENT
10	Can rise to standing position and walk BUT has difficulty with grades and steps
20	Can rise to standing position and walk but has difficulty with grades, steps and distances
30	Can rise to standing position and walk BUT is limited to level surfaces
50	Can rise to standing position and maintain it with difficulty BUT cannot walk
65	Cannot stand or walk

35. Table 9.6

Table 9.6: Spine (Percentage Whole Person Impairment)

Note: Lesions of the sacrum and coccyx should be assessed by using the table which most appropriately reflects the functional impairment. This will usually be Table 9.5.

Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table

%	CERVICAL SPINE	THORACO-LUMBAR SPINE
0	X-ray changes only	X-ray changes only
5	Minor restrictions of movement	Minor restrictions of movement OR Crush fracture - compression 25-50 percent
10	Loss of half normal range of movement	Loss of less than half normal range of movement OR Crush fracture - compression greater than 50 percent
15	Loss of more than half normal range of movement	Loss of half normal range of movement
20	Complete loss of movement	Loss of more than half normal range of movement
30	-	Complete loss of movement

36. The Tribunal observed Mr Cleary to be an honest witness. Despite his early repeated claims for compensation for multiple minor injuries, the evidence shows that he accepted the advice of his general practitioner, Dr Mahon, that he had arthritis. He took sick leave for the onset of his symptoms of constitutional osteoarthritis.

37. Mr Cleary told the Tribunal that he had 25 years of service as a postman before he retired in June 1992 following diagnosis with lymphoma. He had a better than expected response to treatment and was re-employed by Australia Post on a full-time basis in late 1995. His evidence was that he had felt no significant symptoms relating to either his knees or his back at this time.

38. The symptoms of his definitively diagnosed condition of bilateral osteoarthritis of both knees and minor degeneration of his lower spine and hips began around 1997-1998. Mr Cleary confirmed in his evidence that there was no specific incident at work which provoked this onset. These symptoms caused him to cease mail deliveries and to carry out light duties from January 2001 until his retirement in May 2002 because of a recurrence of lymphoma.

39. There are conflicting medical opinions regarding the cause of Mr Cleary's back and knee conditions.

40. Dr Sims convinced Mr Cleary that his condition was work related. The Tribunal, however, places little weight on Dr Sim's evidence as he initially diagnosed the applicant as having a lumbar disc lesion causing the right knee condition despite the evidence of advanced osteoarthritis at this point in time.

41. Dr Wallace appears to have misinterpreted the applicant's back pain in June 1998 as indicative of Mr Cleary being required to repeatedly lift heavy mail bags. Whilst this may be the case for many postal workers it was specifically denied by Mr Cleary. Therefore, the assertion, which was not argued, of a relationship between Mr Cleary's work and the injury is considered by the Tribunal to be flawed.

42. Dr Giblin, who gave telephone evidence to the Tribunal, was unconvincing in his evidence regarding causation and in his interpretation of the Comcare guidelines. Dr Giblin conceded that the degree of degenerative change in the applicant's lumbar spine and knees shown on the X-rays that he viewed, would be no different to the change likely to be experienced by clerical workers.

43. Dr Casey, Dr Maxwell and Dr Downes all agreed that the lack of a specific incident and the diffuse degenerative nature of the pathology strongly indicated a constitutional nature rather than any work related trauma as being the cause of the applicant's impairment and incapacity. The Tribunal attaches more significance to these opinions and accepts their reasoning regarding the applicant's spine. As a result, the Tribunal finds that Mr Cleary suffers from constitutional degenerative osteoarthritis of the lumbar spine. There is little evidence to support a claim that this has been aggravated by Mr Cleary's work as a postman and, therefore, the Tribunal finds that his back pain is not work-related.

44. The Tribunal, therefore, affirms the decision by the Commission to deny the applicant compensation for injury to his lower back and for any permanent impairment of his lumbar spine.

45. The Tribunal notes, however, that none of the experts attempted to explain the significant difference of osteoarthritis and impairment between the right and left knees. The Tribunal, therefore, gave consideration to the nature of Mr Cleary's duties. In oral evidence Mr Cleary advised the Tribunal that he rode his motorcycle 3-4 hours a day and that this involved some rough terrain. Being right-handed he usually supported the motorbike with his right leg as he stopped to put mail into the letterboxes. The Tribunal notes Dr Downes' comment that riding with the knee bent protects the normal (standing) weight bearing surfaces of the knee and is, therefore, beneficial rather than harmful to the knee. It would seem, however, that repetitive weight bearing on the extended right knee to balance the motorbike on delivery of mail is a work-related additional stress to the knee. This stress has been repetitive over many years and became symptomatic in around 1998.

46. The Tribunal accepts Dr Casey's interpretation of the Comcare Tables. Dr Casey assessed the applicant as having 10 per cent whole person impairment of the right knee, being a decrease of less than half the normal range of movement. Dr Casey further assessed Mr Cleary as having nil whole person impairment of the left knee as a full range of movement could be observed. This assessment also satisfied the Tribunal that any attempt to reduce this impairment by a percentage for the constitutional causation was not appropriate under the Comcare Tables which are based largely on an assessment of range of movement.

47. The Tribunal, therefore, sets aside the decision of the respondent in this regard and determines that Mr Cleary is entitled to compensation for 10 percent whole person impairment of his right knee.

48. In regards to the left knee, the Tribunal finds that Mr Cleary has osteoarthritis. Further, there is also lumbar and other spinal degeneration. Dr Downes contended that Mr Cleary's radiological changes in the knees were constitutional and related to his age. The Tribunal finds on balance that there is little evidence to support a causal connection between the constitutional degenerative disease in the left knee or aggravation of the disease, and Mr Cleary's work as a postman. Consequently, the Tribunal affirms the decision to deny the applicant compensation for permanent impairment of his left knee.

DECISION

49. In summary, the Tribunal determines that:

* The respondent's decision to deny liability in respect of the applicant's claim for compensation for an injury to his low back is affirmed;

* The respondent's decision of 10 September 2001 is varied by finding that the applicant has suffered an injury to his right knee that has resulted in a permanent impairment of the right knee, the degree of permanent impairment being determined under the Guide to the Assessment of the Degree of Permanent Impairment to be 10 per cent and that consequently the applicant is entitled to compensation under ss.24 and 27 of the Act. The matter is remitted to the respondent for determination of the amount of compensation payable; and

* The respondent's decision denying liability for compensation for permanent impairment of the applicant's back and left knee is affirmed.

50. The respondent is liable to pay the applicant's costs of these proceedings in accordance with the Tribunal's General Practice Direction.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr P. Lynch, Member:

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

Associate

Date of Hearing 17 and 18 July 2002

Date of Decision 30 May 2003

Counsel for the Applicant Mr T Reilly

Counsel for the Respondent Mr B Kelly