Bennett and Australian Postal Corporation [2003] AATA 859 (2 September 2003)

Last Updated: 5 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 859

ADMINISTRATIVE APPEALS TRIBUNAL ) A2002/263, A2002/278,

) A2002/345, A2002/381,

GENERAL ADMINISTRATIVE DIVISION ) A2003/93

Re

ROBERT BENNETT

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Mr S. Webb, Member

Date 2 September 2003

Place Canberra

Decision

A2002/263 1. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant's employment materially contributed to aggravate or accelerate his constitutional lumbar spine condition in relation to which the Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 on and after 20 February 2002. A2002/278 2. The decision under review is affirmed. A2002/345 AND A2002/381 3. The decisions under review are set aside. The Tribunal decides the Applicant was totally incapacitated for work from 18 July 2002 until 30 August 2002 inclusive. A2003/93 4. The decision under review is set aside. The Tribunal decides that the Applicant's employment materially contributed to cause, aggravate or accelerate the condition of major depression. 5. The matter is remitted to the Respondent to calculate the Applicant's correct entitlement to compensation in accordance with these reasons. 6. The Respondent is to pay the Applicant's reasonable costs as taxed or agreed in accordance with the Tribunal's General Practice Direction.

...........(sgd)...................................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - liability - back, hip and leg conditions - whether an injury - whether injury has ceased - whether entitled to compensation

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 sections 4, 14

CASELAW

Comcare v Lees (1997) 151 ALR 647

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Westgate v Australian Telecommunications Commission (1987) 17 FCR 235

Federal Broom Company v Semlitch (1964) 110 CLR 626

Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173

REASONS FOR DECISION

August 2003

Mr S. Webb, Member

APPLICATIONS

7. Application A2002/263 by Mr Robert Bennett ("the Applicant") is for review of the decision of an Australia Post review officer ("APRO") dated 19 June 2002 (AT37). The APRO affirmed a primary decision dated 16 May 2002 (T27). The decision under review involved Australia Post ("the Respondent") denying liability to pay compensation in respect of a back injury claimed by the Applicant.

8. Application A2002/278 by the Applicant is for review of the decision of an APRO dated 2 July 2002 (AT42) to affirm a primary decision dated 7 June 2002 (AT32). The decision under review concerns the Respondent's determination that compensation is to be calculated on the basis that the Applicant is able to work 20 hours per week.

9. Application A2002/345 by the Applicant is for review of the decision of an APRO dated 28 August 2002 (BT9) to affirm a primary decision dated 6 August 2002 (BT4). The decision under review denied liability for total incapacity during the period 18 July 2002 to 15 August 2002.

10. Application A2002/381 by the Applicant is for review of the decision of an APRO dated 4 September 2002 (BT13) to affirm a primary decision dated 27 August 2002 (BT11). The decision under review denied liability for total incapacity during the period 15 August 2002 until 30 August 2002.

11. Application A2003/93 by the Applicant is for review of the decision on an APRO dated 26 February 2003 (DT23) to affirm a primary decision dated 5 February 2003 (DT20). The decision under review concerns the Respondent's denial of liability to pay compensation for a psychological condition claimed by the Applicant.

HEARING

12. The Tribunal convened a hearing in this matter on 23 and 24 June 2003 in Canberra. At the hearing the Applicant was represented by Mr R. Livingstone, Counsel. Miss R. Henderson, Counsel, represented the Respondent. The Applicant, Dr Barry, Dr Speldewinde, Dr Davis and Dr Maxwell gave oral evidence. The Tribunal took into evidence the following materials:

Exhibit	Description	Date
AT1-46	Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 - applications A2002/263 and A2002/278.
BT 1-13	Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 - application A2002/345.
CT 1-2	Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 - application A2002/381.
DT 1-25	Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 - application A2003/93.
A1	Report by Dr Jeremy Price.	2 April 2003
A2	Report by Dr Malcolm Thompson.	10 April 2003
A3	Report by Dr Geoffery Speldewinde.	5 June 2003
A4	"All in a Day's Work at Australia Post Mail Centres" information brochure.	February 1998
A5	Clinical notes of Dr Alan Shroot.
A6	Medical certificate by Dr Saba Somasundaram.	29 April 2003
A7	Applicant's Statement of Facts and Contentions	20 June 2003
R1	Respondent's Statement of Facts and Contentions	18 June 2003
R2	Report by Dr David Maxwell.	2 June 2003
R3	Report by Dr John Saboisky.	8 April 2003
R4	Clinical notes of Dr Saba Somasundaram.

BACKGROUND

13. The following background is provided for information and is not in dispute between the parties.

14. The Applicant was born on 2 August 1962.

15. The Applicant commenced employment with the Respondent on or about 8 February 1996 as a Mail Officer working at the Fyshwick Mail Centre.

16. On 20 February 2002 the Applicant signed an Incident Report Form in which he recorded an injury to "right-hand side groin muscle" (AT4).

17. On 13 March 2002 the Applicant signed a Claim for Rehabilitation and Compensation in relation to "strained right groin and back" (AT8).

18. On 16 May 2002 the Respondent denied liability to pay compensation in relation to a back injury and stated (AT27):

"It is Dr Whittaker's view that your back symptoms are not related to your groin condition or to the incident at work on 20/2/02. He points out that the radiological studies show significant degenerative disease of the lower spine which has obviously developed over many years. It would appear your pre-existing spinal disease is responsible for your back symptoms. Dr Whittaker notes that the back symptoms were not experienced after the incident at work on 20/2/02.

...

On the basis of Dr Whittaker's report I determine that Australia Post is not liable, under section 14 of the Safety, Rehabilitation and Compensation Act, to pay compensation to you for any injury to your back."

19. On 7 June 2002 the Respondent accepted liability to pay compensation in relation to "right inguinal hernia", the date of injury being 20 February 2002, and stated (AT32):

"The reports of Dr Whittaker and Dr Davis make it clear that your hernia is not preventing you from attending work and performing light duties, which can be made available by the Mail Centre. Dr Whittaker does not put any restriction on your work hours, but Dr Davis recommends 2-4 hours per day. ... It would appear from Dr Shroot's certificates that the main factor contributing to your incapacity during this period was your non-compensable back condition. ... To formalise the matter, I issue the following determination:

"From 3/5/02 to a date to be determined, compensation under section 19 of the Act shall be calculated on the basis that you are able to earn in suitable employment for four hours per day (20 hours per week). This means that, regardless of the amount you have actually earned, you will be regarded, for compensation purposes, as having earned 20 x your base hourly salary each week from 3/5/02.""

20. On 19 June 2002 an APRO affirmed the decision dated 16 May 2002 (AT37), in response to a request for reconsideration by the Applicant on 14 June 2002 (AT35), observing:

"In his report of 6 May 2002 Dr R. Whittaker considered that Mr Bennett did not present with any work related back condition. ...

... Dr Davis does not consider Mr Bennett has a work related back condition.

In his report of 28 March 2002 Dr A. Shroot writes that "it makes sense that the pain in the back and groin are from the same cause" and that "I believe that both injuries arose as a result of moving large amounts of goods." Subsequent to this opinion the confirmation of Mr Bennett's inguinal hernia would not support this diagnosis. It would appear that any referred pain is related to his accepted claim for right hernia and I do not consider that I have been presented with any further specific evidence to alter the determination of the delegate."

21. On 2 July 2002 an APRO affirmed the determination dated 7 June 2002 (AT42) in response to a request for reconsideration of that decision by the Applicant on 25 June 2002 (AT38).

22. On 6 August 2002 the Respondent determined to deny liability to pay compensation for total incapacity in relation to the Applicant's right hernia condition for the period 18 July 2002 to 15 August 2002 (BT4). On 26 August 2002 an APRO affirmed this determination (BT9) in response to the Applicant's request for reconsideration on 22 August 2002 (BT7), stating:

"Having regard to the evidence before me, I prefer the opinion of Mr Bennett's treating surgeon, Dr Barry. The evidence provided from Dr Somasundaram, certifies your client unfit for work in relation to a back injury which I note was denied by the Compensation section on 16 May 2002 ... .

The specialist evidence indicates that your client is fit to perform light duties in relation to his compensable condition and I note from the evidence on the file that light duties have been made available within his work area."

23. On 27 August 2002 the Respondent determined to deny liability to pay compensation for total incapacity in relation to the Applicant's right hernia condition for the period from 15 August 2002 to 30 August 2002 (BT11). On 4 September 2002 an APRO affirmed this determination (BT13) in response to the Applicant's request for reconsideration on 27 August 2002 (BT10), observing:

"I note the certificate provided from Dr Somasundaram dated 16 August 2002 certifying your client unfit for work for the period 16.8.02 to 30.8.02 due to "R/S groin pain, backpain & depression".

Dr Barry certified in his certificate date 3 July 2002 that Mr Bennett was unfit for work for a two week period from 2.7.02 and subsequently fit for light duties only for four weeks thereafter. Following the two weeks incapacity Mr Bennett returned to see Dr Somasundaram who certified him unfit for work for a further two weeks.

On 19 July 2002 the Compensation delegate wrote to Dr Somasundaram asking him to provide an explanation as to what had prevented Mr Bennett from returning to suitable duties ..., in accordance with Dr Barry's certificate of 3 July 2002. To date there has been no response.

A further certificate dated 15 August 2002 from Dr Barry certifies your client unfit for work for the period 15.8.02 to 30.8.02. Dr Barry has failed to provide a diagnosis and explanation as to what has prevented Mr Barry [sic - Bennett] from returning to work on restricted duties as arranged in accordance with his previous certificate of 3 July 2002.

... without evidence that details what has prevented Mr Bennett from returning to restricted duties as previously certified, I have no other choice but to find that Compensation is not payable under section 19 of the Act."

24. On 28 January 2003 the Applicant lodged a claim for compensation in relation to "Psychological/psychiatric injury sequelae of injury to groin and/or back" (DT19).

25. On 5 February 2003 the Respondent determined to deny liability to pay compensation in relation to a psychological injury (DT20). On 26 February 2003 an APRO affirmed the determination (DT23) in response to the Applicant's request for reconsideration on 17 February 2002 (DT22), stating:

"Having regard to the available evidence I am not satisfied that Mr Bennett has developed a psychological illness as result of his inguinal hernia. I find the medical evidence provided does not establish an employment nexus or state that your client suffers from a diagnosable medical condition in accordance with DSM-IV.

Accordingly I determine that Compensation is not payable ... in respect of any mental/psychological illness. The denial of liability encompasses all of the benefits provisions of the Act, including the provisions of sections 14, 16, 19 & 24."

LEGISLATION

26. The relevant legislation in the case is the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), especially sections 4 and 14.

27. 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) ..."

It follows that for the Applicant to be eligible for compensation he must have suffered an injury as defined at section 4 of the Act:

"4 Interpretation

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

...

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."

28. The Applicant claimed compensation for "strained right groin and back". A right inguinal hernia was diagnosed and the claim relating to his right groin was accepted. The inguinal hernia constitutes an injury in the terms of the Act and the Respondent is liable to pay compensation for incapacity, impairment or death arising from that injury as the case may be.

29. The Respondent did not accept the Applicant's claims for compensation relating to a back condition and a psychological condition, finding in relation to the former that there was no injury under the Act and in relation to the latter that there was no diagnosable condition or nexus with his employment. These matters are before the Tribunal for determination.

30. The Applicant has claimed compensation for incapacity. Subsection 4(9) of the Act provides:

"(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."

31. In order to succeed in his claim for compensation for incapacity, the Applicant must establish that he has suffered an injury that has given rise to his claimed incapacity.

EVIDENCE OF THE APPLICANT

32. The Applicant told the Tribunal he worked from approximately 8.50am to 6.25pm, four days per week. His evidence in chief was that in the course of his normal duties he would sort mail trays from up to 20 Unit Load Devices ("ULD") per day. He explained this work involved removing trays from one ULD and placing them in another ULD for delivery to regional mail centres. He estimated that each ULD could contain up to 62 mail trays but would usually contain 56 mail trays, each weighing approximately six and a half kilograms. The Applicant's evidence was that this work involved frequent repetitive bending when moving mail trays in and out of ULDs. He explained that ULDs were not at a constant height: the ULD being unloaded would usually be on a dolly but the ULD being loaded would be on the ground.

33. The Applicant's evidence was that on 20 February 2002 he and another worker unloaded eight ULDs containing approximately 480 mail trays before lunch. He said he continued this work after lunch until about 3.00pm when he felt an "excruciating pain in the right groin" which radiated to his right hip and right lower back. He told the Tribunal his work mate advised him to fill in an Incident Report Form and consult a doctor, which he did. His supervisor, Alison Morris, arranged for him to see Dr Shroot.

34. The Applicant told the Tribunal he consulted Dr Shroot on 21 February 2002. His evidence was that he was in considerable pain and that the pain in his right groin radiated into his right hip and lower right back. He said he told Dr Shroot about the extent of the pain he was experiencing at the time. The Applicant informed the Tribunal that Dr Shroot diagnosed a sprained right groin and sent him back to work on restricted duties. He said he returned to work on a mail-sorting machine but continued to experience pain and subsequently consulted Dr Shroot, who certified him unfit for work and referred him to a physiotherapist, Ms Cassandra Carey.

35. The Applicant informed the Tribunal that he continued to consult Dr Shroot until he lost confidence in him, as he continued to experience pain in his right groin, hip and back but was found to be fit for restricted duties. His evidence was that he attempted to return to work performing light duties sitting at a sorting frame, but couldn't cope with the pain and consulted his usual general practitioner, Dr Somasundaram and subsequently Doctors Whittaker and Barry.

36. The Applicant told the Tribunal that Dr Barry performed an operation to repair his hernia in the course of which some mesh was inserted in his groin. His evidence was that he experienced "excruciating pain where the mesh was put in" after the operation. He told the Tribunal the pain did not subside and has remained constant to date.

37. The Applicant gave evidence that he has been in constant and severe back pain since 20 February 2002 and also has a constant throbbing ache in his groin because of the operation. These pains, he explained, cause him to walk with his right foot "bent out" in order to avoid "shooting pain in the hip from the groin" with each step. He claimed he has walked with a limp since the injury on 20 February 2002. The Applicant told the Tribunal he takes Tramil twice per day for pain relief and Dr Somasundaram referred him to Dr Speldewinde. The Applicant said Dr Speldewinde told him his conditions were likely to continue and injections in his spine and groin may reduce the pain. His evidence was that Dr Barry administered an injection to his right groin without positive effect. The Applicant gave evidence that he consulted Dr Barry on three occasions after the operation on 3 July 2002, 15 August 2002 and 5 September 2002. He told the Tribunal that when he complained to Dr Barry about the pain in his groin after the operation on 3 July 2002, Dr Barry told him to "give it more time to settle down".. He explained that Dr Barry was overseas for a six-week period after the operation, in consequence of which he consulted Dr Somasundaram on 17 July 2002.

38. The Applicant told the Tribunal Dr Somasundaram referred him to Ms Sue Hays, a psychologist, because he was depressed. He acknowledged in cross-examination that he was experiencing emotional difficulties at the time. His evidence was that he consulted Ms Hays regularly once per week for an extended period and continues to see her once per fortnight. He informed the Tribunal that he is on medication for depression and takes one Avanza tablet per day. The Applicant explained that he became depressed with the pain and because "Australia Post let me down". He said he feels "thrown away and worthless" and is unable to work. His evidence was that he would not be able to work two hours per day in his present condition and he has not looked for work outside Australia Post.

39. In cross-examination, the Applicant told the Tribunal that for the past 14 months he has driven his 12-year-old son to and from school and to sporting activities. He explained he waits while his son trains, sometimes for "a couple of hours", during which time he alternates between sitting and standing. His evidence was that he is uncomfortable and in pain during this time but feels the need to "do something for my son" and not let him down. He agreed that he is able to drive "as far as Yass".

40. The Applicant acknowledged that Dr Somasundaram treated him for depression and prescribed Avanza in November 2001 following the break down of a defacto relationship, which left him with nowhere to live. He explained that he formed another relationship thereafter but this relationship broke up when his girlfriend left him on his birthday on 2 August 2002, after which he "became emotional and felt let down by everyone".. The Applicant related his financial difficulties following his loss of income from employment and the delay in payment of social security benefits by Centrelink. He explained he was forced to live in his car on at least two occasions and was destitute after Australia Post ceased paying him "sometime after the operation".

MEDICAL EVIDENCE

DR SPELDEWINDE

41. The Tribunal had before it reports by Dr Geoffery Speldewinde, Consultant in Rehabilitation, Pain and Musculoskeletal Medicine, dated 10 January 2003 (DT13), 11 February 2003 (DT21) and 5 June 2003 (Exhibit A3).

42. Dr Speldewinde stated (Exhibit A3, folios1 and 2):

"... He describes being bent over in an awkward reaching posture into a ULD, during the course of which he developed this wrenching injury....

...

Robert Bennett presents with a discogenic L4/5 lumbar back strain due to the disc protrusion, with referral of pain locally, and it may be contributing to his right groin symptoms.

There is also a probable symptomatic right hip intra-articular labral tear. This is causing him his right groin pain.

He remains unfit to return to the workplace in any capacity without further intensive pain management counselling, physical therapy, and further specialist orthopaedic and psychiatric assessments. He may be a candidate for a right hip orthopaedic operation, as well as more specific treatment to a symptomatic L4/5 disc by having a transforaminal epidural injection."

43. Dr Speldewinde was of the opinion that the L4/5 disc protrusion is consistent with back pain, noting that such a protrusion can cause neuritic irritation and referral of pain into the leg. His evidence was that repeated bending and twisting, such as undertaken by the Applicant when loading and unloading ULDs, may create a predisposition to strain the structures in the groin and hip and, in the Applicant's case, such activity was the final precipitating event causing injury to his back, hip and groin. In cross-examination, Dr Speldewinde agreed that he had not taken a detailed history concerning the degree of bending or the construction of ULDs, and acknowledged that the Applicant had a history of manual labour over many years. This, Dr Speldewinde observed, may have give rise to a predisposition to back, hip or groin strain.

44. It was Dr Speldewinde's opinion that pain in the groin radiating to the hip and back was indicative of a hip problem, whereas if the pain radiated from the back to the groin the structures in the back would be the likely cause of the pain.

DR BARRY

45. The Tribunal had before it reports by Dr Peter Barry, Consultant Surgeon, dated 6 September 2002 (DT5), 10 September 2002 (DT6) and 7 November 2002 (DT10).

46. Dr Barry told the Tribunal that the Applicant presented on examination on 19 June 2002 with a small inguinal hernia and major lower back pain radiating into the right buttock, hip and groin crease. It was his opinion that the pain was not due to the hernia. Hernia pain, he explained, could be expected to radiate in front to the scrotal area and the inner thigh.

47. Dr Barry gave evidence that the Applicant underwent open mesh hernia repair on 2 July 2002, but developed new symptoms after the operation which included pain within the wound radiating to the genital area. He informed the Tribunal that approximately 20 percent of such operations may result in nerve entrapment problems, but in the Applicant's case he was not convinced the post operative pain was attributable to nerve entrapment. Dr Barry noted that he had not identified such problems either during surgery or in follow-up examinations.

48. Dr Barry commented that the pain from a hernia would not radiate to the back and that such pain may indicate a hip problem, however he had not examined the Applicant's hip.

49. Dr Barry stated (DT5, folios 10 and 11):

"7. As I related to Mr Bennett in my initial letter he was to perform no heavy exertion which would put any strain on his lower abdomen for a period of 4-6 weeks following surgery. I did encourage him, however, during that time to have ongoing physiotherapy and possible hydrotherapy and, of course, intensive rehabilitation from the point of view of his lower back pain.

... I am, however, keen for Mr Bennett to see another general surgeon for a second opinion regarding his current post-operative problems.

I last reviewed Mr Robert Bennett on 15 August 2002, approximately six weeks after his hernia repair. I was disappointed that Robert was in a lot of pain, both from the back and also the right groin and scrotum. He had casual shooting pains radiating into the right testis. I expressed some concern that this may be due to some nerve irritation which would be expected to have settled down by two to three months time. It was not my opinion that Robert should take further time out from work regarding this. I was disappointed that Robert was not undergoing any active rehabilitation during the post-operative period."

dr maxwell

50. The Tribunal had before it a report by Dr David Maxwell, Orthopaedic Surgeon, dated 2 June 2003 (Exhibit R2).

51. Dr Maxwell reported (Exhibit R2, folio 4):

"Mr Bennett describes an unusual pain which he states was mainly in the right groin initially. A severe pain like this is unlikely to be due to a small hernia and it would be abnormal for the severe pain to persist. The hernia has now been repaired but he continues to complain of right groin pain.

I cannot find any organic explanation for this pain. I am convinced that it is not due to nerve root irritation and there is abnormality on examination of his right hip. There is evidence of non-organic overlay particularly with regard to some of his signs. He walks with a limp on his right leg although there is no thigh muscle wasting indicating the limp may be habitual or transient. I did not consider the MRI of the lumbar spine showed any relevant lesions and I did not consider it was consistent with a work-related disc protrusion.

...

I consider at the present he is fit for normal duties without restrictions and I consider he is fit for all forms of physical activity.

I consider any physical effects of any compensable condition have ceased.

I do not consider he is entitled to ongoing medical treatment as a result of any compensable condition and I would not recommend any continuing medical treatment.

I do not consider that he needs to be examined by a practitioner in any other field of medicine."

52. Dr Maxwell told the Tribunal that the action of limping may make the thigh muscle larger and acknowledged that the labrum artilaginous structure can be torn in traumatic twisting injuries.

53. In cross-examination, Dr Maxwell accepted that the Applicant was genuinely feeling pain and agreed that he could find no cause for the pain. He was of the opinion that the Applicant would be "better off working" even though there was some evidence of chronic pain behaviour. Dr Maxwell agreed that a hernia would not cause back pain.

DR DAVIS

54. The Tribunal had before it reports by Dr Thomas Davis, General and Orthopaedic Surgeon, dated 30 May 2002 (AT31), 19 August 2002 (DT3) and 20 November 2002 (DT11).

55. Dr Davis reported (DT11, folios 20 and 21):

"3. Conditions currently suffered from:

a) Right hernia

The right inguinal hernia previously diagnosed has been satisfactorily repaired. The claimant is going through a prolonged but not unusual recovery phase.

b) Lower back injury

The claimant has a pre-existing degenerative condition of the cervical and lumbar spines which may have been aggravated by the nature and condition of the claimant's employment and the alleged incident of February 20, 2002.

...

5. Has condition been aggravated by some aspect of employment?

As stated above, the right inguinal hernia, on the balance of probabilities, was caused by the incident of February 20, 2002 which also aggravated but did not cause the degenerative changes in the cervical and lumbar spines.

...

7. Have effects of work related condition ceased?

The claimant currently is following a protracted recuperative phase following repair of his right inguinal hernia and his current condition is directly related to that.

With respect to his lower back pain, this condition may have been aggravated by the incident of February 20, 2002 but as the claimant has not worked for a considerable period since, it is my view that any aggravation that resulted from the nature and condition of his employment has also ceased.

...

9.2 Is any of incapacity related to his right hernia?

A small percentage of the claimant's incapacity may be related to the post-operative phase of the right inguinal hernia repair ... . He would be fit for light selected duties that do not require standing for long periods of time or heavy repetitive physical work.

9.3 Is any incapacity related to lower back injury?

It is my opinion that the major incapacity relates to the claimant's lower back condition. This would prevent the claimant standing for any length of time, walking any distance as well as carrying out repetitive physical activities that involve bending and lifting."

56. Dr Davis told the Tribunal that the right labral tear may be responsible for the pain in the Applicant's right hip and that such a tear may be caused by trauma involving heavy lifting and rotation. He considered the L4/5 lesion to be significant in the Applicant's back pain and told the Tribunal it was possible that pain could radiate into the lower back and right groin area.

57. In cross-examination, Dr Davis agreed that the L4/5 disc protrusion was the likely cause of the Applicant's back pain. He noted that, if the Applicant's degenerative lumbar spine condition was asymptomatic before the incident on 20 February 2002, it was probable that the incident or the nature and condition of the Applicant's work aggravated the condition, triggering pain symptomatology, in which case he expected that the pain may persist for a variable period but would lessen with appropriate treatment once the aggravating factors were removed. Dr Davis agreed that the main thrust of treatment had been the repair of the hernia and not the treatment of back pain. He concluded that the protracted period of rest after the hernia operation should have helped the back condition but the pain persisted and was the major cause of incapacity.

58. Dr Davis found no evidence of nerve entrapment following the hernia repair operation.

DR SABOISKY

59. The Tribunal had before it a report by Dr John Saboisky, Consultant Psychiatrist, date 8 April 2003 (Exhibit R3).

60. Dr Saboisky reported (R3, folio 4):

"2. I believe [the Applicant] suffered a major depressive disorder and continues to suffer residual symptoms despite taking the anti-depressant drug Avanza. He also has a chronic pain syndrome which might very easily be the result of a disc protrusion at the L4/5 level ... .

3. His depression appears inextricably linked to the development of a chronic pain syndrome, which was thought to be due to an inguinal hernia, but has continued despite an operative procedure. The loss of his partner of twelve months at least in part because of his illness and his inability to function sexually is a major contributing factor.

4. I believe his psychiatric condition is primarily related to his physical injury.

5. The only other factor is the loss of his partner.

6. There is no evidence that I could find that he suffered from a personality disorder or any pre-existing psychiatric condition.

7. The conditions of major depression and chronic pain have not ceased."

MS HAYS

61. The Tribunal had before it a report by Ms Sue Hays, treating Psychologist, dated 25 November 2002 (DT12).

62. Ms Hays reported:

"Mr Bennett had clinically significant elevations on a number of scales. These included:

* ...

* Depression - Mr Bennett's score reflects a degree of depression which is likely to be consistent with a diagnosis of major depression. ...

* ...

...

Mr Bennett displayed the cognitive and affective components of depression ... . It is my opinion that he is suffering from depression. He would also benefit from pain management counselling and perhaps an injury/pain management group."

CONSIDERATION OF THE ISSUES, SUBMISSIONS AND FINDINGS

63. The Tribunal found the Applicant to be a witness of truth and no serious attack was made on his credit or reliability. The Tribunal had the benefit of observing the Applicant during the hearing over a two-day period and accepts that his evident physical discomfort and difficulty remaining seated for long periods of time was genuine. While Dr Maxwell reported "evidence of non-organic overlay" and discussed the absence of thigh muscle wasting "indicating that the [Applicant's] limp may be habitual or transient" (Exhibit R2, folio 4), in oral evidence Dr Maxwell agreed that such a limp could cause an increase in thigh muscle.

64. The Applicant claimed he injured his groin and his back unloading ULDs at work on 20 February 2002 in consequence of which he became clinically depressed and totally incapacitated. The Respondent accepted that a right inguinal hernia was compensable, but denied the Applicant was entitled to compensation for the claimed back condition and depression.

BACK CONDITION

65. The Respondent submitted that the Applicant did not complain about lower back pain when the injury occurred or at first consultation thereafter with Dr Shroot on 21 February 2002. It is a fact that Dr Shroot made no reference to back pain in the medical certificate he provided the Applicant with on 21 February 2002 (AT3) but referred to back pain in subsequent medical certificates (AT5, AT6, AT9, AT11, AT14, AT15, AT19, AT23, AT26). Dr Shroot reported (AT16):

"Mr Bennett first appeared on 21^st February with a history of removing many items from a ULD on the previous day and he had felt pain later in the day. The pain was particularly in the groin and at that time there was no complaint of pain in the back. When the physiotherapist examined him, she detected that he also had pain in the back and when I next reviewed him on 27 February there was indeed tenderness on the right side of the lower back.

It makes sense that the pain in the back and groin are from the same cause and while there was no specific complaint of pain in that area at the first consultation, I nevertheless believed that, on the balance of probabilities, the back condition is work-related.

I believe that both injuries arose as a result of moving large amounts of goods from the ULD as stated."

66. The Tribunal accepts the Applicant's evidence that the pain he experienced on 20 February 2002 was particularly in his right groin, but also in his right hip and lower right back. It is clear that Dr Shroot's report that the pain the Applicant complained of was "particularly in the groin" is not inconsistent with the Applicant's description. The particularity reported is not exclusive of, and indeed suggests, the existence of lesser pain in other parts. The deficiency, if one is to be found, resides in Dr Shroot's report of the symptoms complained of by the Applicant where the location of pain, other than the particular pain in the groin, was not recorded. Dr Shroot's report that the Applicant did not complain of back pain at first consultation was not consistent with the Applicant's account but Dr Shroot was not called to give evidence. The Tribunal accepts the Applicant's evidence that he experienced pain in his right hip and lower back as well as in his right groin on and after 20 February 2002 and so finds.

67. The preponderance of the medical evidence indicates that the pain in the Applicant's right hip is unlikely to radiate from the lumbar spine or the inguinal hernia. Doctor Maxwell noted the existence of a tear in the anterior labrum in an MRI of the right hip but considered it "of doubtful significance" (Exhibit R2, folio 3). Doctor Speldewinde reported (Exhibit A3, folio 2):

"There is also a probable symptomatic right hip intra-articular labral tear. This is causing him his right groin pain."

68. The Tribunal is satisfied, on the balance of probabilities, that the Applicant's right hip pain is not related to the inguinal hernia or the claimed back condition. It may be that the right hip pain is caused by the labral tear, however, that condition is not the subject of any claim for compensation and is not in issue in these proceedings: Comcare v Lees (1997) 151 ALR 647.

69. The Respondent submitted that there was no evidence to suggest the Applicant has suffered a back injury arising out of, or during the course of his employment. As will appear, the Tribunal does not agree. There is considerable concurrence in the expert medical evidence that the Applicant has constitutional degenerative conditions of the cervical and lumbar spines. Dr Davis gave evidence that the nature and condition of the Applicant's work and the incident on 20 February 2002 may have aggravated his underlying cervical and lumbar spine conditions (DT11, folio 20). There is radiological evidence of "multilevel disc pathology with a right far lateral disc protrusion at L4/5 possibly impinging on the exiting right L4 root" (Dr Speldewinde at Exhibit A1). Dr Shroot reported that the Applicant's back and groin symptoms were the product of the same cause, being the incident on 20 February 2002 (AT16). The Applicant's evidence was that he experienced back pain as well as hip and groin pain on and after the incident on 20 February 2002. The Applicant's credit was not seriously challenged during the hearing and the Tribunal has no reason to diminish the weight to be given to his evidence in this regard.

70. The Respondent submitted that the L4/5 lesion did not account for the Applicant's low back symptoms, contending that Dr Maxwell found no relevant lumbar spine lesions and considered the "apparent bulging disc was a normal variant" that was "not ... consistent with a work-related protrusion" (Exhibit R2, folios 3 and 4). Dr Maxwell concluded that there was no L4 nerve root irritation and the protrusion was not the cause of the Applicant's symptoms. However, Dr Maxwell's opinion is not supported by the weight of the medical evidence. Dr Price indicated it was possible the L4/5 protrusion was impinging on the L4 nerve root. Dr Davis concluded that the L4/5 lesion was significant and the likely cause of the Applicant's lower back pain, observing that the L4/5 lesion may give rise to pain in the Applicant's lower back and groin. Dr Barry was of the opinion that the Applicant's symptoms could be consistent with an L4/5 protrusion but the Applicant did not present with L4/5 radiculopathy. Dr Barry noted that an L4/5 lesion could cause local inflammation, spasm and tenderness over L4/5 if palpated. It is relevant to note that Dr Shroot reported that there was "tenderness on the right side of the lower back" (DT16) and Dr Whittaker reported "some tenderness in the lower lumbar spine and the paralumbar musculature" (AT25, folio 36).

71. Whether the L4/5 disc pathology caused the Applicant's back symptoms is an unresolved question. The Tribunal is satisfied, however, that the Applicant's constitutional cervical and lumbar conditions were asymptomatic prior to 20 February 2002 and became symptomatic thereafter. Dr Somasundaram's clinical note dated 13 January 1997 "history of fall. Muscular injury upper R1 back" (Exhibit R4) does not disturb this finding.

72. This being the case, the Tribunal finds, on the balance of probabilities, that the Applicant's constitutional back conditions were aggravated or accelerated by the nature and condition of his employment activities culminating in the incident at work on 20 February 2002. It does not appear that the question whether the Applicant's employment aggravated his constitutional lumbar condition was addressed by the APRO. Curiously, the APRO considered Dr Shroot's opinion that the "[the back and the groin] injuries arose as a result of moving large amounts of goods" but concluded (AT37, folio 56):

"Subsequent to [Dr Shroot's] opinion the confirmation of Mr Bennett's inguinal hernia would not support this diagnosis. It would appear that any referred pain is related to his accepted claim for right hernia ... ."

This proposition is contrary to the medical evidence and cannot be sustained. On the evidence before the Tribunal it is clear that the Applicant's back pain was not referred from his inguinal hernia but was the product of an aggravation of an underlying and previously asymptomatic constitutional degenerative condition of his lumbar spine. The Tribunal so finds.

INCAPACITY

73. The Applicant claimed total incapacity during the periods in issue in consequence of his claimed injuries. The Respondent paid the Applicant compensation for total incapacity after the injury until 2 May 2002, thereafter denying that total incapacity could be justified on the sole basis of the Applicant's accepted condition of inguinal hernia. The Respondent denied that the Applicant's back condition was compensable and, relying on the reports of Doctors Whittaker and Davis (AT25 and AT31), determined that the Applicant was "able to earn in suitable employment for 4 hours per day (20 hours per week)" from 3 May 2002. In so doing the Respondent's delegate observed that "[i]t would appear from Dr Shroot's certificates that the main factor contributing to your incapacity [between 27 February 2002 and 2 May 2002] was your non-compensable back condition" (AT32, folio 51).

74. The medical evidence clearly indicates that the Applicant's incapacity for work arose from the inguinal hernia and the claimed back condition, both of which are compensable conditions. Relying on medical certificates provided by Dr Shroot and Dr Somasundaram (AT3, AT30, AT33 and AT40) the Applicant asserted he was totally incapacitated during the period from 2 May 2002 until 2 July 2002, when he was admitted for surgery. The Tribunal is not satisfied, on this evidence, that the Applicant's claim of total incapacity has merit. Dr Shroot makes plain his opinion that the Applicant is fit for restricted duties up to three hours per day because of his back condition (AT29). The two certificates of Dr Somasundaram on which the Applicant seeks to rely do not specify any reason for incapacity (AT30) and therefore carry less weight than those of Dr Shroot. Dr Davis considered the totality of the Applicant's fitness for work, including his back condition, and reported he was fit to work within restriction for two to four hours per day (AT31, folio 49).

75. The Tribunal finds the Applicant was partially incapacitated for work during the period 3 May 2002 until 2 July 2002, being capable of performing restricted duties as specified by Dr Shroot and Dr Davis for up to four hours per day. This being the case the reviewable decision dated 7 June 2002 (AT32) must be affirmed.

76. The Respondent's determinations dated 26 August 2002 (BT9) and 4 September 2002 (BT13) concern periods of claimed total incapacity during a recuperative period following inguinal hernia repair surgery. Incapacity arising from the Applicant's back condition was not in issue before the decision-maker at that time. The Respondent relied on a medical certificate issued by the treating surgeon, Dr Barry, dated 3 July 2002, in which he prospectively certified the Applicant was unfit for work for a two week period after 2 July 2002 and would subsequently be fit for light duties for four weeks thereafter (AT44). Dr Barry is no more able to predict the future with certainty than any other member of his profession. The validity and weight to be given to such a prospective assessment of incapacity must be determined in the context of other pertinent evidence.

77. The evidence is that Dr Barry was not available to consult the Applicant two weeks after surgery but certified him unfit for work from 15 August 2002 until 30 August 2002 without specifying a reason (BT5). Dr Somasundaram certified that the Applicant was unfit for work during the periods in question because of "recovery from groin operation, work related back injury and depression" (BT3) and "work related injury r/s groin pain, back pain, depression" (BT6). The evidence is that post-operative recovery from a herniorrhaphy could reasonably be expected to last between six and ten weeks, in the absence of any complications. The fact is that the Applicant's post-operative recovery period was protracted and associated with ongoing shooting pain in his right groin and genital area. Dr Barry's prospective medical certificate dated 3 July 2002 (AT44) is not supported by any other contemporaneous evidence that the Applicant was able to perform light duties during his post operative recuperation prior to 30 August 2002 as submitted by the Respondent. On the contrary, the contemporaneous evidence is that he remained totally incapacitated and unfit to return to work at least until 30 August 2002.

78. The Tribunal is satisfied that the Applicant was totally incapacitated for work from 18 July 2002 until 30 August 2002 and so finds. This being the case the reviewable decisions dated 26 August 2002 and 4 September 2002 cannot stand and must be set aside.

79. Considering the matters before the Tribunal, it is not necessary to determine whether or not the Applicant's total incapacity for work continued past 30 August 2002. It is clear, however, that the Applicant had not fully recovered from the herniorrhaphy by that date. The Tribunal notes that Dr Davis reported on 20 November 2002 (DT11, folio 21):

"... His current incapacity for work is predominantly related now to his low back pain and to a lesser degree, the recovery following the right inguinal hernioraphy."

Dr Davis gave evidence at the hearing that he would expect the aggravation of the Applicant's constitutional degenerative condition to lessen after removal of the aggravating factors and with appropriate treatment. He acknowledged that treatment of the Applicant's symptoms had been focused on his inguinal hernia and not his back. Dr Barry reported on 7 November 2002 (DT10, folio 16):

"... I think at this stage it is absoulately [sic] essential that during this time [off work until 30 December 2002] he undergo rehabilitation for his back condition as well as seeing a specialist in this area.

...

While [the Applicant] has recovered from the actual hernia procedure I believe that all his secondary problems relating to his back need to be resolved before he can commence full time activities at work."

There is no evidence that the Applicant's back condition has yet been appropriately treated or rehabilitated. In the absence of such treatment and rehabilitation, it is reasonable to expect that the Applicant has an ongoing incapacity for work, as certified in serial certificates by Dr Somasundaram. However, the Tribunal makes no findings on this point.

DEPRESSION

80. It is clear from the medical evidence that the Applicant suffers from major depression, as diagnosed by Dr Saboisky (Exhibit R3) and Ms Hays (DT12). The Tribunal so finds. It is clear from Dr Somasundaram's clinical notes that the Applicant reported symptoms of depression in October 2001 following, on his own evidence, his separation from his then wife.

81. The Respondent submitted that the Applicant's claimed depression, which is a disease under the Act, was not related to his employment, contending that his depression was not present in May 2002 but became symptomatic in July 2002 following the Applicant's break-up with his girlfriend and the rejection, in part, of the Applicant's claims for compensation. In the Respondent's submission, for the Applicant to succeed it must be shown that his employment contributed to the development of his depression. In the words of Davies J in Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 242:

"... Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say the employment provided external stimulus to aggravate or accelerate the disease."

82. As Windeyer J pointed out in Federal Broom Company v Semlitch (1964) 110 CLR 626 at 643 "all that the statute requires is a contributing factor". It is sufficient that the employment contributes in a material way to the contraction, aggravation, acceleration or recurrence of a disease. The Full Federal Court observed in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323:

"...the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."

83. In the instance case, the evidence is that the Applicant's depression was multifactorial in causation. The Applicant's evidence was that his separation from his girlfriend was a factor, as was the pain he experienced in consequence of his injuries, the manner of his treatment thereafter by his employer and his loss of income. Most salient to his case is the claim of sequelae causation following injury in employment as reported by Dr Saboisky (Exhibit R3, folio 4)..

84. As will become clear, the Tribunal is satisfied that the Applicant's employment materially contributed to the development of his depression. The Applicant's injuries to his right groin and lumbar spine were the cause of incapacity for work, as already found, and in Dr Saboisky's report were the cause of sexual dysfunction and chronic pain leading to depression. The Tribunal is satisfied that the chronic pain and other symptoms of the Applicant's work-related injuries had a material role to play in the onset and progress of depression. There is no doubt that the loss of income from employment, loss of social contact with work mates and the Applicant's perception of problems in his relationship with his employer also played their part. Nonetheless, such factors do not displace the Applicant's claim. The external stimuli applied by the Applicant's employment to the onset and progress of his depressive disease are to be found in the symptoms of the injuries he sustained in that employment. Unlike Westgate (supra), in this case physical activities in employment gave cause to the physical injuries the Applicant suffered in the incident on 20 February 2002. Subsequently those injuries, their symptoms and the chronic pain thus, with the passage of time and with the contribution of other factors unrelated to employment, either caused or aggravated or accelerated the mental illness from which the Applicant suffers.

85. The Respondent submitted that the rejection of the Applicant's compensation claims and his loss of income were not factors that were contributed to by his employment. The Tribunal agrees. In Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 the Full Federal Court considered the role resentment towards the circumstances of employment may play in the material contribution of that employment to disease. Sweeney and Woodward JJ observed at 195 that:

"In our opinion, the resentment of a sick mind, directed towards the former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding ... that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work ... ."

In the case at hand, the Applicant's dissatisfaction with the outcome of his compensation claims and his resultant loss of income may have played some part in the progress of his mental disorder. It is clear, from the Applicant's own evidence, that these matters caused him to feel resentment towards his employer. It cannot be said, however, that his resentment was caused or contributed to by his employment.

86. This does not disturb the Tribunal's finding that the Applicant's work-related injuries materially contributed to cause, aggravate or accelerate the his depression. It follows that the reviewable decision dated 26 February 2003 (DT23) must be set aside.

CONCLUSION

87. After careful consideration of all the evidence, the submissions of the parties and the relevant legislation and caselaw, the Tribunal is satisfied, on the balance of probabilities, that the incident at work on 20 February 2002 and the events leading thereto caused injury to the Applicant's right groin and lower back.

88. The Tribunal is satisfied that the Applicant was totally incapacitated for work because of his injuries during the period 20 February 2002 until 3 May 2002. While Dr Shroot certified the Applicant was fit for restricted duties from 21 February 2002 until 28 February 2002 and was fit to resume light duties for 4 hours per day on 20, 21, 25, 26 and 27 March 2002, the Tribunal notes that the Respondent determined to accept that the Applicant was totally incapacitated for work during these periods.

89. The Tribunal is not compelled by the contemporaneous evidence to accept that the Applicant remained totally incapacitated for work because of his injuries during the period from 3 May 2002 until 2 July 2002. The weight of the medical opinion at that time was that he was fit for light duties working up to fours hours per day. The Tribunal so finds.

90. It is clear that the Applicant was totally incapacitated for work for a period of time after undergoing inguinal herniorrhaphy on 2 July 2002, at least until 30 August 2002. The Tribunal is persuaded by the medical evidence that the Applicant experienced a prolonged recuperative period following the operation during which time he experienced unexplained symptoms of pain in his right groin and scrotal area. On the evidence of Dr Barry, the treating surgeon, and Dr Somasundaram, the treating general practitioner, the Applicant remained totally incapacitated for work from 2 July 2002 until at least 30 August 2002. The Tribunal is persuaded to conclude accordingly by this evidence.

91. There can be little doubt that his total incapacity for work continued thereafter, despite the successful repair of the Applicant's inguinal hernia. As Dr Davis and Dr Barry observed in November 2002, the significant cause of incapacity was the Applicant's untreated back complaint being then compounded by persistent post-operative symptomatology and depression.. Dr Somasundaram certified that the Applicant's incapacity to work continued without cease until 30 July 2003 (Exhibit A6) because of "R groin strain, back pain + depression".. The question of incapacity for work past 30 August 2002 is not strictly before the Tribunal in this matter. However, there is little reason to doubt Dr Somasundaram's opinion as there is no evidence that the Applicant's compensable lumbar spine injury has been treated or rehabilitated during this period.

92. The Tribunal is satisfied, on the balance of probabilities, that the Applicant's depressive disorder has been materially contributed to by his employment, and is persuaded by the evidence of Dr Saboisky and Ms Hays. It is clear that other factors that are not related to the Applicant's employment also contributed to cause, aggravate or accelerate the Applicant's depression. However, following Treloar v ATC (supra) and Federal Broom Co Pty Ltd v Semlitch (supra), the requisite causal connection between the Applicant's employment and his mental illness is made out on the evidence. This found, it is not necessary to determine the material extent of the contribution, whether it is smaller or greater or more or less significant than any other material factor.

DECISION

A2002/263

93. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant's employment materially contributed to aggravate or accelerate his constitutional lumbar spine condition in relation to which the Respondent is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 on and after 20 February 2002.

A2002/278

94. The decision under review is affirmed.

A2002/345 AND A2002/381

95. The decisions under review are set aside. The Tribunal decides the Applicant was totally incapacitated for work from 18 July 2002 until 30 August 2002 inclusive.

A2003/93

96. The decision under review is set aside. The Tribunal decides that the Applicant's employment materially contributed to cause, aggravate or accelerate the condition of major depression.

97. The matter is remitted to the Respondent to calculate the Applicant's correct entitlement to compensation in accordance with these reasons.

98. The Respondent is to pay the Applicant's reasonable costs as taxed or agreed in accordance with the Tribunal's General Practice Direction.

I certify that the 98 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 2 May 2003

Date of Decision 2 September 2003

Counsel for the Applicant Mr R. Livingstone

Counsel for the Respondent Miss R. Henderson