Fu and Australian Postal Corporation [2003] AATA 779 (11 August 2003)

Last Updated: 12 August 2003

DECISION AND REASONS FOR DECISION [2003] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1086

GENERAL ADMINISTRATIVE DIVISION	)
	Re	LINA FU

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Mr S. Webb, Member

Date 11 August 2003

Place Sydney

Decision

The Tribunal varies the decision under review with the effect that the Applicant's compensable soft tissue injury to the lower back ceased to cause any incapacity for work or to warrant any further medical treatment on and after 6 January 2003.

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

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - liability - back condition - whether an injury - whether injury has ceased - whether entitled to compensation

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections 4, 14

AUTHORITIES

Commonwealth v Borg (1991) 20 AAR 299n

Commonwealth v Muratore (1978) 141 CLR 296

REASONS FOR DECISION

11 August 2003

Mr S. Webb, Member

1. This matter concerns an application by Mrs Lina Fu ("the Applicant") for review of the decision of an authorised review officer ("ARO") on 6 June 2002 (T87) to affirm the prior decision of a delegate of the Australia Postal Corporation ("the Respondent"). The ARO stated (T87 folio 200):

"I have considered the evidence provided and in particular a report of Dr Shenstone, Consultant Rheumatologist, dated 15 April 2002, 20 May 2002 and MRI scan report dated 11 May 2002. Dr Shenstone concluded that Ms Fu suffers from a longstanding low back pain with L5 radicular features with a persistent regional component to her pain, historically relating this to her employment.

The MRI scan reveled [sic] a normal study and a later report of Dr Shenstone states that the study is essentially normal with no evidence of disc protrusion, disc fragmentation or a disc tear.

Having regard to the evidence before me I prefer to [sic] the opinion of Dr Maxwell, Orthopaedic Surgeon who opined that Ms Fu did not suffer any pathological lesion in the course of her employment. I therefore affirm the decision dated 25 February 0202 [sic] to cease liability."

2. A hearing before the Tribunal was convened in Sydney on 18 June 2003. At the hearing, the Applicant was represented by Mr J. Mrsic, Counsel, and the Respondent was represented by Mr P. Jones, Counsel. The Applicant gave oral evidence at the hearing as did Dr Michael Gliksman, Dr David Maxwell, Dr Bain Shenstone, Mr Laurence Forner and Ms Liana Bartholomeuz.

3. The following documents were taken into evidence:

Exhibit	Description	Date
T1 - T95 p1-271	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1	The Applicant's Chinese qualifications and associated translations
A2	Health Insurance Commission statement of claims and covering letter from the Applicant	22 October 2002
A3	Australia Post Information Bulletin number 2001/15	28 February 2001
A4	Productivity reports	24 October 2002 13 November 2002
A5	Report by Dr Bain Shenstone	12 February 2003
A6	Report by Dr Alex Ganora	13 December 2002
A7	Letter by Michael Short, Slater and Gordon, to Forners Solicitors and Consultants	6 November 2002
A8	Letter by the Applicant to Mr Brendan Sydes, Slater and Gordon	15 October 2002
A9	SP10 5am Team "A" Memo	31 May 2000
R1	Letter by Rachel James to Forners Solicitors and Consultants	19 February 2003
R2	Clinical progress notes of Dr Tam
R3	X-ray report by Dr Leonard Bank	26 April 2000
R4	Report by Dr Michael Gliksman, Occupational Physician	12 November 2002
R5	Report by Dr M. Gliksman	17 June 2003
R6	Report by Adroit Business Advisers and associated surveillance video.	Report dated 16 May 2003
R7	Report by Dr D. Maxwell	10 October 2002
R8	Report by Dr D. Maxwell	17 June 2003
R9	Surveillance video of Strathfield Mail Centre dock
R10	Clinical notes of Dr Goh

ISSUES

4. The issues in this matter are whether:

(a) the Applicant was injured at work;

(b) the effects of that injury ceased on or before 25 February 2002; and,

(c) the Applicant is entitled to compensation in respect of the injury.

LEGISLATION

5. The relevant legislation that applies in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), especially sections 4 and 14.

6. Section 14 of the Act provides:

"14 Compensation for injuries

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."

`Injury' is defined at section 4(1) of the Act:

"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."

The term `incapacity for work' is given the following meaning at s 4(9) of the Act.

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

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

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

BACKGROUND

7. The following information is provided by way of background and is not in contention.

8. The Applicant has been employed by the Respondent as a Mail Officer since 1996. She gave birth to her first child on 13 April 1998. In January 2000, she was transferred to Sydney West Mail Centre in Strathfield to work on the morning shift. She completed an Incident Report Form on 21 March 2000 (T4) and attended Dr Tony Goh, General Practitioner, on that day. Dr Goh certified her as unfit for work for a three-day period as a result of a sprained lower right back attributable to lifting weights at work (T3 folio 7).

9. On 22 March 2000, the Applicant attended Dr George Papatheodorakis, General Practitioner, at the request of the Respondent, who diagnosed a soft tissue injury of the lower back but found her fit for work forthwith with restrictions (T5 folio 12).

10. The Applicant lodged a claim for compensation in respect of pain in her lower back on 28 March 2000 (T6).

11. On 10 April 2000, the Respondent accepted liability for a soft tissue injury of the Applicant's lower back (T9) and provided restricted duties (T10).

12. On 2 May 2000, the Applicant complained to her supervisor of discomfort (T14) following use of a BT Loader machine (a small wheeled forklift device operated by a standing driver) and attended Dr Papatheodorakis, who certified that she was suffering an exacerbation of lower back pain (T15). On 3 May 2000, the Applicant consulted Dr Goh, who certified her as unfit for work until 5 May 2000 (T15 folio 31) and referred her to Dr Donald Kuah, Sports Physician. Dr Kuah diagnosed suspected right discogenic back pain and requested a CT scan (T15 folio 32 and T16).

13. On 9 May 2000, the Applicant lodged a claim for compensation in respect of discogenic low back pain and an exacerbation of low back pain arising from the incident on 2 May 2000 (T19).

14. On 15 May 2000, the Applicant underwent an X-ray and CT scan of her lumbar spine and was reviewed by Dr Kuah on 17 May 2000 (T21). Dr Kuah referred her to Britt Caling for physiotherapy treatment (T22), which commenced on 18 May 2000 (T23).

15. On 6 June 2000, the Applicant was assessed by Dr Gregory Carr, Rheumatologist, who requested an MRI scan be performed of her lumbar spine (T28).

16. On 14 June 2000, the Respondent accepted liability to pay the Applicant compensation in respect of discogenic low back pain until 20 August 2000 (T29). On 8 July, the Applicant sought a reconsideration of this decision (T36).

17. On 16 August 2000, Dr Robin Chase, Occupational Physician, assessed the Applicant and found her to be pregnant and recommended that she was fit for duties normally allocated to pregnant Mail Officers (T44). The Applicant remained on restricted duties until commencing maternity leave on 18 January 2001. She gave birth by Caesarian section on 7 February 2001 and remained on maternity leave until 21 November 2001, when she returned to work performing restricted duties.

18. Dr David Maxwell, Orthopaedic Surgeon, assessed the Applicant on 20 December 2001 and reported on 18 January 2002 (T60).

19. On 12 February 2002, the Respondent directed the Applicant to commence a rehabilitation program (T66). The Applicant requested a reconsideration of this decision on 20 February 2002 (T68). The Respondent affirmed the decision on 17 July 2002 (T91).

20. On 25 February 2002, the Respondent determined that the Applicant was not entitled to compensation for her lower back condition (T70). The Applicant sought reconsideration of this decision on 12 March 2002 (T73). The Respondent affirmed the decision on 6 June 2002.

EVIDENCE OF THE APPLICANT

21. The Applicant told the Tribunal that her normal duties as a Mail Officer at the Strathfield Mail Centre receiving dock involved loading and unloading Unit Load Device ("ULD") containers (meshed gated crates). She described this work to involve removing the ULD container gate, which weighed approximately 20 kilograms, removing large (up to 16 kilograms) and small (up to eight kilograms) mail trays and turning to place these on a conveyor belt. The Applicant gave evidence that each ULD could contain approximately 50 trays and several ULDs would be unloaded in a shift. She gave the example of unloading eight ULDs on 23 January 2000, representing approximately 400 mail trays.

22. In her evidence in chief, the Applicant stated that ULDs were often placed on the floor for unloading, whereby she would have to bend and reach into the ULD in order to extract the mail trays. She contended that her diminutive stature increased the difficulty of extracting mail trays in such circumstances. The Applicant gave evidence that some ULDs contained airmail bags, some of which exceeded the 16 kilogram weight limit. The Applicant told the Tribunal that she and her team were often required to work under pressure to unload ULDs quickly and that individual and team performance was closely monitored.

23. The Applicant informed the Tribunal that she experienced pain in her lower back and right hip in the course of her normal duties on 19 March 2000, but did not inform her supervisor or report her symptoms. She claimed that, on 21 March 2000, she was required to load approximately 400 mail trays. In her evidence she said that it was on this day that she experienced significant pain in her lumbar spine, right hip, right thigh and right calf, in consequence of which she completed a P-400 Incident Report Form and consulted her general practitioner, Dr Goh. She stated that she consulted Dr Papatheodorakis, a general practitioner retained by the Respondent, on 22 March 2000. The Applicant told the Tribunal that Dr Goh certified her unfit for work for a three day period and Dr Papatheodorakis certified her fit to return to work on reduced hours and with restrictions on lifting, bending and twisting.

24. The Applicant explained that she was placed on restricted duties which involved sorting mail for a time and, thereafter, involved administrative duties in the receiving dock area. She claimed that on 2 May 2000 she was directed to operate a BT Loader (a steel-wheeled forklift device operated by a standing driver) to manoeuvre ULDs, in the course of which it was necessary for her to twist, especially when reversing. This, she claimed, was contrary to the medical restrictions then applying to her duties. It was her evidence that she experienced a sharp pain in her lower back and right leg "like an electric shock" when driving the machine over a joint in the concrete floor of the receiving dock. Her evidence was that the floor in the loading dock area was bisected by compression joints which made operating the BT Loader very bumpy. She said she reported the incident to her Team Leader and consulted Dr Papatheodorakis who certified her unfit for work for one week. She told the Tribunal she received physiotherapy treatment over a two week period during which she took analgesic medications (Valium, which caused gastro-intestinal problems, and subsequently Panadol).

25. The Applicant told the Tribunal on 29 May 2000 that she was transferred to the large letter team on light duties. She claimed her duties involved taking mail from an SP10 machine, placing it into trays on a trolley and pushing the trolley. Her evidence was that the trolley was hard to push when it was full and, contrary to medical advice concerning her restricted duties, there was some bending involved. She stated that she worked the morning shift, from 5.00am to 12.51pm, and at the end of each day her back would be sore and she would have to lie down for at least one hour to rest.

26. The Applicant gave evidence that, from 27 July 2000, she was required to pick up reject mail, some of which was in the SP10 machine and some of which had fallen to the floor. This work, she claimed, involved repetitive bending and pushing a trolley, which caused her to experience pain in her lower back and right leg.

27. The Applicant informed the Tribunal that she discovered she was pregnant in July 2000 and continued to work on light duties until January 2001, six weeks before the birth of her daughter. She claimed she had a difficult pregnancy because of her back problems, in consequence of which she would take Panadol to alleviate the pain. The Applicant told the Tribunal that she went to China for a four-month holiday after the birth of her daughter, during which period she received physiotherapy, massage and heat treatment for her back while staying with her brother. She claimed this treatment improved her condition and she felt somewhat better on her return to Australia in July 2001.

28. The Applicant told the Tribunal she returned to work in November 2001 and worked in the Spectrum 10 Team. She stated that initially she worked on coding and clearing large letters (up to 16 kilograms) for a two week period, but this hurt her back, so she obtained a medical certificate and was placed on light duties with a restriction on lifting weights greater than ten kilograms. Her evidence was that her duties thereafter included coding and entering mail, and clearing letter jams. She informed the Tribunal that in order to clear a letter jam it was necessary to lift a plastic cover in order to retrieve the jammed letters. This, she claimed, was difficult, especially for a person of her height when working under pressure.

29. The Applicant told the Tribunal she has not had any time off work since November 2001, but has been working within medical restrictions certified by Dr Goh and Dr Kuah. She stated her current daily duties include two forty-five minute periods coding letters and one thirty minute period feeding mail onto a conveyor, as well as labelling, quality control and wrapping duties. She stated she is required to sort large letters into the wings of a machine while sitting on a high chair. This work, she claimed, involved some twisting and lifting that was made more difficult because of her short stature.

30. The Applicant told the Tribunal her back condition improved when she was not working "by about 60 percent", but she continues to experience symptoms of constant "dull pain" in her lower back and right leg. She stated that she can do most things initially but repetition causes an increase in her symptoms, especially repetitive lifting, bending and twisting. She said she experiences pain in her back constantly, and takes Panadol "a couple of times each day", and Mobic at the rate of 15 mg/day in one week blocks when the pain is severe. She told the Tribunal she uses heat packs on her lower back when the pain is bad and sometimes uses traditional Chinese medicines prepared by her father.

31. In her evidence in chief, the Applicant stated that she lives with her husband and her parents, who help with the housework, the shopping and looking after her children. She stated that her husband does the vacuuming and her parents do the washing. She claimed that she has been unable to lift her daughter (born on 7 February 2001) because of her injury. In cross-examination, the Applicant agreed that she could lift her daughter in cases of need but avoided this whenever possible.

32. The Applicant told the Tribunal that her weight has been reasonably stable at 58 kilograms since she was a teenager. She claimed she has lost three kilograms in weight since the birth of her second child and gained little benefit from a gym program that concentrated on her upper torso in 2002. She stated that she is 156 centimetres in height.

33. In cross-examination, the Applicant acknowledged that she experienced back pain during her two pregnancies but claimed this pain was significantly different than the pain she experienced in consequence of her work related condition. She described the former as a pressure on her back in the early stages of pregnancy, and the latter as shooting pains from her lower back into her right leg, each clearly distinguished from the other.

34. It was put to the Applicant, in cross-examination, that she consulted Dr Tam on 26 April 2000 and reported experiencing intermittent back pain that was caused by moving furniture six weeks before. She strenuously denied moving furniture in March 2000. The Applicant agreed that she had consulted Dr Tam but rejected the assertion that moving furniture caused her back pain. Her evidence was that she experienced severe back pain while in a shopping centre one day and consulted Dr Tam, who spoke Cantonese and practiced in that location. She explained that she did not want to tell Dr Tam her back pain was the subject of a compensation claim because Dr Tam was not her usual doctor. She agreed that she had consulted Dr Tam over a period of years since 1995.

35. In response to questions concerning lifting her children, the Applicant explained that her difficulties lifting her son when at the age of two were different than the difficulties she experienced with repetitive lifting at work. She explained that she found it difficult to push a trolley at the supermarket and relied on her father or her husband to carry heavy items of shopping. Her evidence was that pushing a trolley required her to twist, especially if the trolley tracked off-line, and that she preferred to carry items in a basket if they were not too heavy. The Applicant stated that her problem with lifting is repetition, even with light weights, and she has the same problem with bending. She stated that she has no difficulty squatting and squats when bathing her daughter.

36. The Applicant told the Tribunal that she was diagnosed with a thyroid problem after the birth of her son, and the problem became persistent after the birth of her second child in 2001. This problem, she explained, is unrelated to the symptoms she experiences in her back and her right leg.

MEDICAL EVIDENCE

DR MICHAEL GLIKSMAN

37. The Tribunal had before it reports by Dr Michael Gliksman (Occupational Physician), dated 17 November 2002 (Exhibit R4) and 17 June 2003 (Exhibit R5), who gave oral evidence.

38. Dr Gliksman told the Tribunal he had viewed the surveillance video (Exhibit R6) and the video of the Applicant's workplace (Exhibit R9). He reported (Exhibit R5, p2):

"Videotape date stamped 1 May 2003 showed Ms Fu to squat, bend and reach above shoulder height, without evident impairment. Additionally she was seen to carry a basket of shopping which gradually became laden, requiring carrying of one bag of items in the right hand while the basket was carried in the left. She was able to carry these items up the stairs and into a car park. She was noted to negotiate the stairs and to walk without apparent limp or other overt evidence of physical impairment.

Videotape date stamped 2 May 2003 did not show additional activities that would cast doubt on the unimpaired range of movements observed earlier."

39. Dr Gliksman informed the Tribunal that he had observed the applicant's movements in his office and rooms and had not observed any impairment or restriction in her movements, for example removing her shoes and socks, and getting up from the examination couch. These movements, he asserted, were inconsistent with the flexion responses on examination. Dr Gliksman stated (Exhibit R4 pp 4 and 5):

"... [W]hen testing the range of voluntary movements, lumbar flexion became limited to 30°, although extension and bilateral rotation remained full range. Similarly, straight leg raising on the left became limited to 40 degrees and on the right to 20 degrees. However, the stretch test was negative, bilaterally.

...

At the conclusion of today's examination, Ms Fu was noted to raise herself from a lying to a seated and then standing position from the examination couch, without evident impairment, unaccompanied by the audible or visible expression of pain. In the process of doing so, she demonstrated an unimpaired 90° flexion equivalent of the lumbosacral spine, while under load."

40. It was Dr Gliksman's opinion that the Applicant's reported problem in her right leg matched the L5 dermatone, but he would expect someone with medical training to be aware of that dermatone. Dr Gliksman concluded (Exhibit R4 p5):

"1. There are no objective clinical signs or investigatory findings to explain Ms Fu's symptomatic complaints. Although she appears to describe radiated symptoms in an area corresponding to the right L5 and S1 dermatones, it is apparent that no sciatica is present.

Therefore there is no medical diagnosis applicable to this situation.

...

3. It is my medical opinion that Ms Fu is fit to return to the usual and unrestricted duties of a mail officer."

DR DAVID MAXWELL

41. The Tribunal had before it medical reports by Dr Maxwell (Orthopaedic and Spinal Surgeon) dated 10 October 2002 (Exhibit R7), 17 June 2003 (Exhibit R8) and 18 January 2002 (T60). Dr Maxwell gave oral evidence concurrently with Dr Shenstone.

42. Dr Maxwell reported on 18 January 2002 (T60, p153):

"Mrs. Lina Fu has extremely poor power and tone of the trunk muscles. She is also overweight and generally in poor physical condition. She appears not to be using her back leading to wasting of the lumbar supporting muscles and some stiffness of the facet joints. Her trunk muscle power has become worse since her caesarean section and she does not appear to have been informed of the importance of regaining her trunk muscle tone as a way of protecting her back. She has also put on 11Kg in weight. It is not surprising that without a rehabilitation programme and after leading a relatively sedentary existence on maternity leave that she has developed some back discomfort on returning to hard physical work.

I do not, however, consider that she has suffered any pathological lesion in the course of her work."

43. On 10 October 2002, Dr Maxwell reviewed the Applicant and reported (Exhibit R7, p3):

"Mrs. Lina Fu has lost weight and her physical condition generally seems to have improved. However, paradoxically she appears to have a decreased range of movement of her back on this occasion than she had on my previous examination. This appears to be voluntary. I have seen the MRI scan which is essentially normal, indicating that she has no discogenic lesion to account for her symptoms.

I do not consider she suffers any condition of her back which could be classified as a work related injury. It is possible her back is a little stiff from disuse. She appears to have adopted postures habitually protecting her back leading to stiffness of the joints and weakness of the supporting muscles.

I consider her condition is constitutional and there is no effect of any work related condition.

I consider she is fit to perform her usual duties as a mail officer without restrictions."

44. Dr Maxwell confirmed his opinion in oral evidence, stating that he had viewed the surveillance video of the Applicant and observed her to display a normal range of movement of the thoracolumbar spine without restriction. Dr Maxwell did not consider the Applicant's claims of pain in her lumbar spine, right hip and right leg were the result of any organic pathology that constituted a work related injury, observing that the applicant could benefit from an exercise program.

DR BAIN SHENSTONE

45. The Tribunal had before it reports by Dr Bain Shenstone (Rheumatologist) dated 12 February 2003, 6 January 2003, 4 November 2002 (Exhibit A5), 20 May 2002 (T85) and 15 April 2002 (T80). Dr Shenstone gave oral evidence concurrently with Dr Maxwell at the hearing.

46. Dr Shenstone reported on 15 April 2002 (T80, folio 190):

"In summary [the Applicant] has long-standing low back pain with L5 radicular features with a persistent regional component to her pain. This historically appears to be related to her work activities."

On 20 May 2002 Dr Shenstone reported (T85, folio 196):

"Since last seen [the Applicant] has had the MRI scan. This essentially was normal with no evidence of disc protrusion, disc fragmentation or a disc tear. ...

Essentially I cannot find any lesions that are likely to be helped by surgical intervention or epidural steroid or peri-radicular nerve root sleeve injections. ... She should continue with her regular exercise and reconditioning program and essentially will need to stay on her current level of duties to avoid any exacerbations. If this isn't possible from an employment point of view she will have to seriously consider looking for alternative employment."

Dr Shenstone reviewed the Applicant and reported on 4 November 2002 (Exhibit A5, Attachment 1):

"Since last seen [the Applicant] continues to have low back and radicular symptoms. She continues with restricted duties at work. She has recently found that housekeeping activities which involve repetitive bending and some lifting with a twisting action has resulted in exacerbation of her symptoms over the last couple of weeks.

...

Given this and the lack of progress and lack of other therapeutic options we discussed whether or not she wished to consider a right L5 peri-radicular nerve root sleeve injection with steroid. ... [S]he has agreed to give this a trial."

On 6 January 2003, Dr Shenstone reported (Exhibit A5, Attachment 2):

"[The Applicant] is seeing me earlier than organised as her back symptoms have improved significantly and she is not sure she should proceed with the peri-radicular nerve root sleeve injection. The symptoms are much better over the last 6 weeks or so with her changes in work activities. She still has some discomfort with bending, lifting and carrying. ...

Essentially as she is improving I suggest that we defer the peri-radicular nerve root sleeve injection."

On 12 February 2003, Dr Shenstone reported (Exhibit A5, Attachment 3):

"My diagnosis is that of a regional low back pain with referred pain to the right leg in an L5 distribution. She describes features suggestive of nerve root irritation however there is no evidence of nerve root compression to cause this. ... The history obtained by me is consistent with her pain being precipitated by work activities and I did not determine any non-work activities that were likely to contribute to the development of the symptoms.

... In general terms ... she should avoid repetitive bending, lifting and twisting activities and avoid lifting heavy weights more than 15-20kg. Also prolonged static postures will tend to exacerbate her symptoms and any sedentary activities should be altered every 20-30 minutes to allow her to do some stretches or at least change posture.

At present she has improved since last seen with anti-inflammatories. ..."

DR ALEX GANORA

47. The Tribunal had before it a report by Dr Alex Ganora, Consultant in Rehabilitation Medicine, dated 13 December 2002 (Exhibit A6). Dr Ganora reported his examination of the applicant in the following terms (Exhibit A6, p2):

"She presented as a woman of normal short build, mildly overweight. Behaviour and affect were normal and there was no attempt to exaggerate her symptoms or disability. She avoided full weight bearing on the right leg, associated with pain over the right sacroiliac region. She localised this pain clearly to the right sacroiliac and gluteal area. Trunk movements were painful in full flexion but not on extension. Side flexion and rotation to the right provoked pain over the right lumbrosacral region. Neurological examination in the lower limbs was normal although sensation was slightly diminished over the lateral aspect of the right tibia and lateral right foot. Straight leg raising in the seated position was not restricted and the femoral nerve stretch test was negative. There was tenderness over the right sacroiliac ligament along its attachments to the iliac crest. The CT scan and the MRI study of the lumbar spine showed no structural pathology.

The clinical picture suggests a chronic strain of the right sacroliliac ligament consistent with the effects of repetitive twisting and bending movements, and it seems likely that her work activities have been the primary factor in leading to this strain. There is no clinical or radiological indication of any disc pathology or nerve root compression. She may respond favourably to soft tissue infiltrations of the tender sacroliliac ligament ... . In the meantime, she is likely to continue to experience persisting symptoms and further aggravations when performing repetitive work that involves bending or twisting of the trunk."

EVIDENCE OF MR FORNER

48. Mr Laurence Forner, solicitor for the respondent, gave oral evidence that the video of the Applicant's workplace (Exhibit R9) was filmed between 12.45pm and 2.00pm on 15 May 2003 at the South West Sydney Mail Centre in Strathfield. He gave evidence that he attended the filming on that day and that no special instructions or requests concerning work activities or performance had been given. Mr Forner stated that a ULD gate was placed on a weigh-station in his presence, indicating that the gate weighed 10 kilograms.

EVIDENCE OF MS BARTHOLOMEUZ

49. Ms Liana Bartholomeuz, a Team Leader at the South West Sydney Mail Centre, gave oral evidence that she supervised the Applicant between May 2000 and May 2002. She stated that the Applicant worked on restricted duties coding mail and sorting mail into pigeon holes while seated on an adjustable swivel chair. Ms Bartholomeuz explained performance data in evidence before the Tribunal (Exhibit A4), noting that the Applicant's coding rates were "below average to average" and that the Applicant was "not a fast worker".. Her evidence was that the Spectrum 10 machine would jam, on average, two to four times each shift, whereupon the operator would be required to lift a cover, which is spring assisted, and clear the jam. She stated that reject mail would only fall to the floor in the event that the feeder gate was not shut. Ms Bartholomeuz gave evidence that plastic tubs were positioned to catch reject mail once the feeder gate was opened, noting that the majority of such mail would fall into the tubs, the remainder falling to the floor.

50. In cross-examination, Ms Bartholomeuz acknowledged that the Applicant commenced work using the Spectrum 10 machine before receiving training in its operation, but noted that the Applicant had received training in the operation of a different coding machine. She agreed that coding was repetitive work and observed that the Applicant had been directed between several different restricted duties involving coding mail, sorting mail, reject mail and dead letter mail.

51. Ms Bartholomeuz identified a memo, dated 31 May 2000, (Exhibit A9) as one she had issued to a work team, observing more leeway was given to workers on restricted duties.

SUBMISSIONS, CONSIDERATION OF THE ISSUES AND FINDINGS

52. The Tribunal carefully considered all of the evidence, the submissions of the parties, and the relevant legislation and caselaw.

INJURY

53. The Respondent submitted that the Applicant did not sustain an injury, as defined at section 4 of the Act, in the course of her employment, noting that there was no precipitating incident. This submission is not supported by the facts. The fact is that on 10 April 2000 the Respondent accepted liability to pay compensation to the Applicant for "a soft tissue injury to lower back", determining that the date of injury was 21 March 2000 (T9). The Respondent's determination is supported by an Incident Report Form that the Applicant lodged with her supervisor on 21 March 2000 (T4). In that form, the Applicant recorded that she noticed symptoms of "pain between lower back and ... upper right thigh" at 9.00 am and her supervisor Mr Le Van Ngoc records "the incident happened because of the job (loading the S/L tray to the TMS)". The Respondent's determination is also supported by medical certificates issued by Dr Goh on 21 March 2000 (T3 folio 7) and Dr Papatheodorakis on 22 March 2000 (T3 folio 6).

54. The Respondent submitted, however, that the medical records of Dr Tam reveal that the real cause of the Applicant's symptoms was that she hurt her back moving heavy furniture. Dr Tam recorded in her clinical notes on 26 April 2000 (Exhibit R2, p4):

"Intermittent LBP for 6/52 since moving heavy furniture. Now getting worse with radiation down R leg."

The Applicant strenuously denied moving heavy furniture six weeks prior to 26 April 2000, stating that she had not told Dr Tam she had done any such thing. The Applicant's evidence was that she did not want to tell Dr Tam that her lower back pain was work related because Dr Tam was not her regular doctor. There is no other evidence before the Tribunal concerning the assertion that the Applicant hurt her back moving heavy furniture in March 2000.

55. There is insufficient evidence to determine whether Dr Tam recorded what she was told by the Applicant or whether she recorded her understanding of events based on a miscommunication with the Applicant. Dr Tam was not called upon to give evidence. In any event, the Tribunal is satisfied that Dr Tam was not the Applicant's regular doctor. Dr Tam's clinical notes (Exhibit R2) reveal that the Applicant had no consultations with Dr Tam between 5 June 1998 and 26 April 2000, whereas the clinical notes of Dr Goh (Exhibit R10) reveal that the Applicant had numerous consultations in this period. The Respondent's submission that the Applicant hurt her back moving heavy furniture is not made out on the evidence. The Tribunal accepts the Applicant's claim that she sought to conceal from Dr Tam her workers' compensation claim in respect of her lower back pain and finds, in all likelihood, the Applicant was not truthful with Dr Tam concerning the origin of her complaint.

56. It follows there are questions concerning the Applicant's reliability as a witness of truth. The Applicant was expansive in giving her evidence, especially in relation to complaints about her employer and the lack of training and care in the workplace. It is not the purpose or the intention of this Tribunal to embark upon a review of the Applicant's industrial complaints that are better dealt with in an appropriate forum. Nonetheless, questions of credit are indicated by inconsistencies in the evidence concerning restrictions on the Applicant's range of movement. Dr Gliksman and Dr Maxwell, for example, recorded significant restriction in the Applicant's range of movement on physical examination (Exhibits R4 and R7), in response to the Applicant's reports of pain on flexion, extension and straight leg raising. Both doctors, however, observed the Applicant displaying an unrestricted range of movement at other times (Exhibits R4, p5 and R7, p2) and in the surveillance video recording (Exhibits R6 and R9). In his oral evidence, Dr Shenstone acknowledged that there were inconsistencies between the restricted range of movement reported on physical examinations in the medical evidence and the range of movements the Applicant displayed during the surveillance video (Exhibit R6), without any apparent restriction.

57. Considering all the evidence, the Tribunal is satisfied the Applicant has exaggerated her symptoms, casting doubt upon her reliability as a witness. The Tribunal will take these matters into account when deciding the weight to be given to the Applicant's uncorroborated evidence.

58. It was submitted for the Respondent that the Applicant's lower back pain pre-dates the onset of symptoms in March 2000. The evidence is that the Applicant experienced "pressure on lower back and front" on 3 October 1997, while pregnant with her first child (Exhibit R10, p2). There is no medical evidence supporting the connexion of this report and the Applicant's subsequent reports of lower back pain in March 2000. Dr Goh's clinical note is consistent with the Applicant's description of the pain as "pressure", which is clearly distinguished from the low back pain radiating into her right leg that she described to Dr Donald Kuah, Sports Physician. On 17 May 2000, Dr Kuah reported "[t]here was tenderness maximal over the L4-5 intervertebral space which radiated to the right paraspinal and buttock region" (T22, folio 50). The Tribunal is satisfied that the Applicant's experience of back pain during her first pregnancy is not related to her experience of low back pain in March 2000.

59. The contemporaneous medical evidence of Dr Papatheodorakis, Dr Goh and Dr Kuah (T3, T5, T8, T10, T12, T16, T21 and T22) leaves the Tribunal in no doubt that the Applicant suffered a "soft tissue injury to lower back" ("the compensable injury") in the course of her employment on or about 21 March 2000. Furthermore, the Tribunal is satisfied that the Applicant aggravated the compensable injury on 7 May 2000, jarring her back while driving a BT Loader at work.

COMPENSATION

60. Section 14 of the Act provides that compensation is payable under the Act in respect of an injury that results in death, incapacity for work or impairment, unless the injury is intentionally self-inflicted or caused by the serious and wilful misconduct of the employee. There is no evidence, in this case, that the injury was self-inflicted or caused by any misconduct on the part of the Applicant. In issue is the question whether the injury results in any incapacity for work on and after 25 February 2002.

61. It was submitted for the Respondent that the Applicant no longer suffers from a work-related condition as the effects of her compensable condition ceased on or before 25 February 2002.

62. The Applicant made a contrary submission that the effects of the compensable condition are on-going and cause partial incapacity for work, to the extent that medical restrictions on the Applicant's work activities continue to apply. The Tribunal notes, however, that the Applicant's claims of continuing pain symptomatology relating to repetitive bending, twisting and lifting are unsupported by any radiological evidence and are subjective. The Applicant's submission is supported by medical certificates from Dr Goh (T59, T61, T63, T67, T76, T78, T82 and T90). A workplace assessment conducted by Ms Claere Kay, Physiotherapist, reflected restrictions recommended by Dr Goh as follows (T65, folio 161):

"RESTRICTIONS: Lifting up to or less than 10 kgs (No continuous lifting)

No frequent turning

As per Stage One of work schedule

Certificate Dr Goh dated 20/1/02 to 20/3/02"

63. On 12 February 2002, the Respondent determined, pursuant to section 37(1) of the Act, that the Applicant commence a rehabilitation program (T66):

"Duties and Restrictions: As per Stage 1 of attached Upgrade program dated 12/2/02.

Part of the rehabilitation program is a gym based work hardening program for three months ..."

The evidence is that the Applicant participated in the work hardening program and performed restricted duties in accordance with Stage 1 of the rehabilitation program from February 2002. Dr Goh revised the restrictions on the Applicant's duties on 27 June 2002 and certified (T90):

"[A]s per STAGE 1 schedule dated 26/3/02 with short periods of extra feeding and clearing (=20 mins. Max 2 x/day) No house keeping/No B.T. operation."

There is no evidence before the Tribunal that Dr Goh reviewed the Applicant's restrictions after 31 August 2002, on which day he recorded in his clinical notes (Exhibit R10):

"Review re - suitable duties. More stable. Still has occas. pain - doing hydrotherapy."

However, there is no evidence that Dr Goh certified any on-going restrictions applying to the Applicant's work activities. Indeed, there is no evidence that the Applicant consulted Dr Goh about her on-going complaints concerning her lower back after that date.

64. It was submitted for the Applicant that her claims concerning her symptomatology were consistent. However, a careful reading of the medical evidence reveals significant inconsistencies in the applicant's clinical presentation. The Applicant was examined by Dr Maxwell on 10 October 2002 who reported that her physical condition had improved but her range of movement of her back had decreased from a prior examination on 20 December 2001 (Exhibit R7, p3). Dr Shenstone examined the Applicant on 4 November 2002 and reported that there had been no improvement in her clinical presentation since a prior examination in May 2002, and concluded that arrangements should be made for the Applicant to undergo a nerve root sleeve steroid injection (Exhibit A5, Attachment 1). Dr Gliksman examined the Applicant and reported on 12 November 2002 (Exhibit R4, p2):

"Ms Fu complains of a constantly present pain, located in the lumbar region of the spine ....

...

She states that the symptoms are made worse by any task requiring lifting or bending, by the maintenance of a prolonged posture, by pushing or pulling against resistance, or by any activities involving Valsalva manoeuvres. The symptoms are improved by the avoidance of the above, and by adopting a non-weight bearing position..

...

Ms Fu advised me that she had experienced some symptomatic improvement following the first occurrence of the presenting problem. Since then it has become stable."

Dr Ganora examined the Applicant and reported on 13 December 2002 (Exhibit A6, p2):

"She complains of pain which localises to the right sacroiliac region and which radiates into the lateral and posterior thigh and calf. The pain is worse on forward flexion and on maintaining a forward posture. There is a tight sensation in the back of the right thigh. She also has difficulty at home with housework especially bending, such as when bathing her baby or performing ironing or cleaning duties.

...

She avoided full weight bearing on the right leg, associated with pain ... ."

Dr Shenstone examined the Applicant and reported, on 6 January 2003, that her "back symptoms have improved significantly and she is not sure she should proceed with the peri-radicular nerve root sleeve injection. The symptoms are much better over the last 6 weeks or so with the changes in her work activities." (Exhibit A5, Attachment 2). Dr Shenstone reported again on 12 February 2003 "At present [the Applicant] has improved since last seen with anti-inflammatories" (Exhibit A5, Attachment 3).

65. Curiously, the improvement in the Applicant's symptoms reported in January 2003 was not apparent to either Dr Maxwell, Dr Gliksman, Dr Ganora or Dr Shenstone in their respective examinations of the Applicant in the three preceding months. It is clear from Dr Shenstone's report that the Applicant attributed her rapid improvement to changes in her work activities, and yet in her oral evidence the Applicant complained that her work activities exacerbate her condition and leave her tired and in need of rest on most days. There is no evidence that the Applicant's work duties changed significantly in the period from October 2002 to January 2003. The Applicant's own evidence, supported by the evidence of Ms Bartholomeuz, was that the pressure of work increased in the lead up to Christmas. The evidence is that the Applicant was working full time on restricted duties involving coding mail, sorting mail, reject mail and dead letter mail during this period. The Tribunal is satisfied that there was no significant change in the Applicant's work activities between 10 October 2002, when she was examined by Dr Maxwell, and 6 January 2003, when she was examined by Dr Shenstone, that would explain the significant improvement in her symptoms.

66. In his report dated 6 January 2003, Dr Shenstone stated "[the Applicant] still has some discomfort with bending, lifting and carrying. She finds the Paracetamol is sufficient to help her pain" (Exhibit A5, Attachment 2). The Tribunal finds that the Applicant did not display any visible discomfort with bending, lifting and carrying when she was filmed on 15 May 2003 shopping in a supermarket, carrying a full shopping basket and accessing her car without difficulty (Exhibit R6). The medical evidence concerning this video is that the Applicant was able to display a full range of movement without apparent restriction. The Tribunal so finds.

67. The Tribunal is satisfied that the Applicant's compensable injury improved significantly prior to 6 January 2003 to the extent that the Applicant was not restricted in her movements by that injury. The Tribunal notes that there is no evidence the Applicant has sought any medical treatment for her claimed condition since consulting Dr Shenstone in January 2003. Dr Shenstone reported on 12 February 2003 that (Exhibit A5, Attachment 3):

"With regards to work restrictions those are best determined by her local doctor who is regularly reviewing her progress. In general terms however she should avoid repetitive bending, lifting and twisting activities and avoid lifting weights more than 15-20kg."

68. This being the case, the Tribunal is not persuaded by the submissions made for the Applicant that her compensable injury results in on-going incapacity for work, that is, work at the same level she was engaged in immediately prior to 21 March 2000 pursuant to section 4(9) of the Act. The Tribunal is satisfied that the repetitive nature of the Applicant's work activities, involving bending, twisting and lifting, were the primary cause of her injury at first occurrence. The Tribunal accepts that this injury was aggravated on 7 May 2000 when the Applicant was driving a BT Loader. However, the Tribunal does not accept that the Applicant's injury or symptoms have been aggravated while performing restricted duties in accordance with the recommendations of her treating doctors thereafter. The Tribunal finds, in all likelihood, that the Applicant's symptoms improved significantly while she was on maternity leave during 2001 and continued to improve during 2002. In any event, the Tribunal accepts Dr Shenstone's assessment that the Applicant's symptoms had "improved significantly" by 6 January 2003 to the extent that Dr Shenstone cancelled treatment that had been scheduled at the time. While Dr Shenstone described general restrictions as a matter of prudence and good practice, in his report dated 12 February 2003, he stated that "work restrictions ... are best determined by her local doctor who is regularly reviewing her progress" (Exhibit A5, Attachment 3). The video evidence (Exhibit R6) confirms the improvement in the Applicant's condition, wherein the Applicant displayed a full range of movement of her lumber spine when shopping on 15 May 2003.

69. The Tribunal accepts Dr Maxwell's evidence concerning the benefit to the applicant of strengthening her trunk muscles in order to protect her back, especially following a Caesarian section. It also notes Dr Ganora's observation that "... she is likely to continue to experience persisting symptoms and further aggravations when performing repetitive work that involves bending or twisting of the trunk" (Exhibit A6, p2).

CONCLUSION

70. Considering all the evidence, the Tribunal finds that the Applicant's compensable injury is not the cause of any on-going incapacity for work, and that there is no diagnosable medical condition clinically present. The Tribunal is satisfied that the Applicant's symptoms are not clinically significant to the extent that any medical treatment is warranted. However, it is clear that the Applicant could benefit from strengthening the power of her trunk muscles in order to protect her back from injury in the future.

71. Nonetheless, the Respondent has failed to persuade the Tribunal that the effects of the Applicant's compensable injury ceased on or before 25 February 2002 to the extent that compensation was not payable from that date. For the Tribunal to find in the Respondent's favour, it would be necessary for the Respondent to persuade the Tribunal that the entitling circumstances had resolved by 25 February 2002: Commonwealth v Borg (1991) 20 AAR 299n. While there is no strict onus of proof in compensation cases before the Tribunal, the Tribunal is mindful of the caselaw on this point: Commonwealth v Muratore (1978) 141 CLR 296.. In the case at hand, it is for the Respondent to establish the facts sufficient for the Tribunal to achieve the requisite state of satisfaction. The Respondent has failed in this regard.

72. The Respondent's decision to cease compensation payments to the Applicant was based on Dr Maxwell's report dated 18 January 2002 (T60). Dr Maxwell was of the opinion that there was no work-related injury, but recommended a rehabilitation and strengthening program in consequence of the Applicant's excessive weight and poor trunk muscle tone, which he considered was related to the Caesarean section birth of her second child. The Tribunal has found as a fact that there was a compensable injury, but accepts that the Applicant's pregnancy, weight and poor trunk muscle tone following a Caesarian section may have contributed to prolong the effects of that injury. This, however, does not displace the Respondent's liability in relation to the compensable injury. The Tribunal is satisfied that the effects of the compensable injury persisted during 2001 and 2002, despite progressive improvement in the Applicant's condition, and so finds. Dr Maxwell may be right that she would have suffered back problems in any event, but that is a matter of conjecture.

73. It is clear that the Applicant continued to suffer a partial incapacity following her return to work in November 2001 and has remained on restricted duties. The Tribunal is satisfied, however, that the Applicant achieved the requisite state of fitness to return to full duties at some time between 31 August 2002 and 6 January 2003, on which date Dr Shenstone, the Applicant's treating specialist, reported that her symptoms had "improved significantly".. While noting the comments of Dr Maxwell and Dr Gliksman, the Tribunal is unable to determine with precision when the effects of her compensable injury ceased in this period. The Applicant's evidence concerning her symptoms during this period is unreliable and infects the medical reports of Dr Ganora (Exhibit A6) and Dr Shenstone (Exhibit A5) to some extent.

74. The Tribunal is satisfied, on the balance of probabilities, that the effects of the Applicant's compensable condition ceased to cause any incapacity for work or to warrant further medical treatment on or before 6 January 2003.

75. This being the case, the decision under review must be varied.

DECISION

76. The Tribunal varies the decision under review with the effect that the Applicant's compensable soft tissue injury to the lower back ceased to cause any incapacity for work or to warrant any further medical treatment on and after 6 January 2003.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

Signed: C. Gregson

Associate

Date/s of Hearing 18 June 2003

Date of Decision 11 August 2003

Counsel for the Applicant Mr J. Mrsic

Solicitor for the Applicant Ms Rachel James

Counsel for the Respondent Mr P. Jones

Solicitor for the Respondent Mr L. Forner