Temur and Australian Postal Corporation [2009] AATA 479 (29 June 2009)

Last Updated: 28 July 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 479

ADMINISTRATIVE APPEALS TRIBUNAL ) 2007/0805

)

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GAZI TEMUR

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Ms G Ettinger, Senior Member Dr J D Campbell, Member

Date 29 June 2009

Place Sydney

Decision

The Tribunal affirms the decision under review. Pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, costs may not be awarded.

.................[sgd]..............................
Ms G Ettinger
Senior Member

CATCHWORDS:

Compensation – in 1986 Applicant suffered lower back pain while emptying mail bag in the course of his duties at Australia Post – Compensation claim made, liability accepted – Applicant slipped and fell in 1989 – various claims for neck and back pain, reports of numbness and burning sensations in the legs – Applicant dismissed from Australia Post in 1996, then reinstated – redundancy in 1999 – Tribunal finds Applicant’s accounts of pain inconsistent - physical signs found to be inconsistent and unreliable - no permanent impairment – decision under review affirmed.

Safety Rehabilitation and Compensation Act 1988 ss 24, 27, 67

Guide to the Assessment of the Degree of Permanent Impairment, First Edition Tables 9.5 & 9.6

Canute v Comcare [2006] HCA 47; (2006) 229 ALR 445

REASONS FOR DECISION

29 June 2009	Ms G Ettinger, Senior Member Dr J D Campbell, Member
INTRODUCTION

1. Mr Gazi Temur who is 44 years of age came to Australia from Turkey with his parents when he was a child. He commenced employment as a postal officer doing mail room duties with the Australian Postal Corporation (Australia Post), in 1984. He says that at the time he was fit, had no back problems, and was a good athlete engaging in cricket, swimming, running and other sports.
2. Mr Temur told us that on 17 February 1986, during the course of his duties emptying mail bags which weighed between five and 35 kgs, he felt pain in his lower back. He sought medical assistance the next day from his general practitioner, had three weeks off, followed by a return to work which involved clerical work, and less lifting. He did some work but did not return to his normal duties between the 1986 incident, and 1989, when on 12 October 1989, he slipped and fell at work. He described feeling more severe pain in his lower back and other parts of his body at that time. Liability was accepted by Australia Post.
3. We found considerable inconsistencies in Mr Temur’s evidence regarding the incidents for which he claimed compensation, and the location of his pain. There are some issues of credit which we have discussed below.
4. We are satisfied on the basis of the medical and other evidence before us that liability for permanent impairment as claimed by Mr Temur, should not be accepted.
5. Our reasons follow.

ISSUES BEFORE THE TRIBUNAL

6. We have to decide whether Mr Temur suffers permanent impairment of the lower back, the hip area, the full length of his legs, and around the back-side of his neck area as he claims, and whether it is compensable pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988, (“the Act”).

LEGISLATIVE FRAMEWORK

7. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 24 and 27.
8. We are mindful that liability for work related injury was accepted pursuant to section 14 of the Act in relation to the 1986 and 1989 incidents. Section 14 provides as follows:

“...
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.
...”

9. Section 24 of the Act and the Comcare Guide are relevant and follow.

“24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

• (a) the duration of the impairment;
• (b) the likelihood of improvement in the employee’s condition;
• (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
• (d) any other relevant matters.

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

10. The relevant parts of the Guide to the Assessment of the Degree of Permanent Impairment, First Edition, are set out below:

“9 MUSCULO-SKELETAL SYSTEM

TABLE 9.5
Limb Function – Lower Limb
(Percentage Whole Person Impairment)

% DESCRIPTION OF LEVEL OF IMPAIRMENT

10. Can rise to standing position and walk BUT has difficulty with grades and steps
    
20. Can rise to standing position and walk but has difficulty with grades, steps and distances
    

30 ...

50 ...

65 ... ”

TABLE 9.6

Spine
(Percentage Whole Person Impairment)

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

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

DESCRIPTION OF LEVEL OF IMPAIRMENT

% CERVICAL SPINE THORACO-LUMBAR SPINE

0 X-ray changes only X-ray changes only
5 Minor restrictions of movement Minor restrictions of movement
OR
Crush fracture – compression
25-50 percent

10 Loss of half normal range of Loss of less than half normal
movement range of movement

OR
Crush fracture – compression
greater than 50 percent

15 ... ...

20 ... ...

30 ... ... ”

BACKGROUND

11. Mr Temur made a claim for compensation after he suffered an incident at work on 17 February 1986 while performing his duties emptying mail bags. He first reported that it was while emptying a mail bag into the bins provided that he felt pain in his back (Incident Report at T4/9 & Compensation Claim PT4/12) . Later on, to his orthopaedic surgeon, Dr Guirgis, (T9, dated 16 October 1987), he stated that a quarter of the mail inside the bag fell outside the bin so he tried to pull it to orientate it inside the bin, and as he did so, he felt snapping pain in his lower back.
12. He also had two accounts of the severity of the incident, one on his incident report at T4/9 dated 17 February 1986, the day of the incident, in which he indicated that he had suffered “some” pain, and the other on his claim form at PT4/12 dated 5 March 1986, less than a month later, in which he stated he had suffered “severe” pain. In his oral evidence before the Tribunal Mr Temur stated that he suffered severe pain in his back on 17 February 1986.
13. Mr Temur sought assistance from his general practitioner Dr Ozme the day following the incident, had three weeks off, and returned to work on a modified work program with more clerical, and less lifting work. There were a number of determinations, liability for the injury was accepted by the Respondent, and some months later it was held that there was no present liability to pay compensation.
14. Mr Temur had not returned to full duties before the second incident which occurred on 12 October 1989. In that incident he described slipping on a greasy patch of floor and hitting a wall with his back, before sliding down a wall and landing on his buttocks with his legs in front of him, on the floor. In his oral evidence Mr Temur stated that this caused him severe pain in his lower back, neck, shoulders and both hips. He said that he then developed problems with his legs in which he suffered burning sensations, numbness and pins and needles. Mr Temur told the Tribunal that these developed a week or two later, but that he did not tell his doctors until three or four months later. Liability was accepted for musculo- ligamentous sprain of the lumbar spine incurred on 12 October 1989. Some months later it was held that there was no present liability to pay compensation.
15. We were mindful of inconsistencies in Mr Temur’s accounts of his pain, and in particular with regard to the commencement of the neck pain. Initially Mr Temur gave oral evidence that his neck pain was associated with his 1986 injury. However there is his statement dated 25 September 2008 before the Tribunal as Exhibit A3 in which he states at paragraph 2: “Firstly I did not have any neck pain prior to my injury on 12 October 1989. However, since soon after that injury I have suffered from ongoing neck pain and restriction of movement.” We noted further that there was only mention of back pain, (and no other body part), in both his incident claim and his compensation claim for the 1986 injury, and similarly for the 1989 incident (Incident Report T49).
16. Mr Temur was dismissed from Australia Post in 1996, then took action which reinstated him the following year. He continued to work on restricted duties, and was made redundant in 1999. He says that between 1999 and 2004 he was not getting better, and considered his injury was permanent. He says that he did not work at all between 1999 and 2004, until his family purchased a Michel’s coffee and cake franchise in 2004, which they had for a year before moving to a smaller one closer to home. He told us he assisted in both on a parttime basis, doing light work such as serving, and wiping tables, with no lifting. He said the family sold the second franchise because his wife became ill due to overwork, and in 2007, they purchased a child care centre. He says he only does light work in connection with that.
17. Mr Temur claims to remain incapacitated, and now permanently incapacitated as a result of the incidents of 1986 and 1989, with pain in his back, neck and legs, and claims that he can only do restricted household duties and parttime light work outside the home (e.g. at the childcare centre). Mr Temur made a claim for permanent impairment (T141) on 23 August 2005 which was refused by the Respondent. His appeal is before us.
18. We were mindful that the incidents about which the Applicant told us occurred some 20 years ago, but were concerned with the accuracy and consistency of Mr Temur’s evidence. Mr Moffet, his counsel, commenced his closing submissions by acknowledging that his client’s recollection of events, and hence his evidence, was less than satisfactory. He submitted however that Mr Temur was struggling with recollections rather than lying, and that the Tribunal should exercise caution if it were to find he was not telling the truth as he recalled it.

WHETHER MR TEMUR SUFFERS PERMANENT IMPAIRMENT WHICH IS COMPENSABLE

19. A reviewable decision refusing liability for permanent impairment was issued by the Respondent on 17 May 2006 affirming the determination made 17 October 2005 to disallow the Applicant’s entitlement for compensation for permanent impairment, pursuant to sections 24 and 27 of the Act, for “lower back area, the hip area, along the full length of my legs and around the backside of my neck area” as a result of the 1986 and 1989 incidents.
20. A summary of the medical evidence in regard to permanent impairment which we had to take into account follows.

Dr Guirgis

21. The earliest indication of Mr Temur coming under the care of an orthopaedic surgeon was the medical certificate dated 15 October 1987, of Dr M Guirgis, on referral from Dr Ozme, Mr Temur’s general practitioner. On 16 October 1987 (T9), Dr Guirgis wrote a medical report to Dr Ozme regarding Mr Temur in which he stated that given the examination results, he had referred Mr Temur for a CT scan. The results of that CT scan were at T10. The radiologist stated at T10 that the L4/5 intervertebral disc space appeared a little narrowed, and noted that at the L4/5 level there was a central to left postero-lateral disc protrusion over a broad base. Dr Guirgis prescribed a corset and physiotherapy. Mr Temur continued to consult Dr Guirgis who produced medical certificates through 1988 and 1989, specifying restrictions on Mr Temur’s work activities.
22. A further CT dated 8 January 1990 (T54), again indicated a mild broad based posterior disc protrusion at L4/5. Dr Guirgis referred Mr Temur for an MRI of the lumbar spine with a report issuing on 15 November 1996. The result indicated degenerative changes at the L4/5 level with minor bulging.
23. On 7 May 1997 Dr Guirgis wrote to Mr Temur’s solicitors indicating that after the 1989 incident, Mr Temur continued to have considerable problems with his back, suffering:

“episodic severe pain and stiffness in the lower back on a base of constant dull ache and discomfort ... also described attacks of radiation down the right lower limb ... similar radiation was felt on the left side but to a lesser extent .... During his 10.6.92 visit he it (sic) was indicated to me that since the 1989 fall there was mild intermittent complaints in the neck but these were masked by the more serious problems discussed earlier. As time passed the neck problem gradually and steadily worsened ...”

24. Dr Guirgis opined that the 1986 injury had created a disc injury with a state of biomechanical instability, and that the 1989 incident caused further musculo-ligamentous sprain of the lumbar area. He also referred to the chronic physical problems leading to chronic pain syndrome, and assessed the following permanent impairment, cervical spine (Table 9.6, 5%), thoraco-lumbar spine (Table 9.6, 10%) and lower limb function (Table 9.5, 10%) with a combined value of 24%.

Dr Marshman

25. Dr Marshman, a consultant surgeon examined Mr Temur on 17 December 1987 (T13). He had before him various reports and an X-ray done the day after the 1986 incident, which showed slight tilting of the spine to the left, and slight asymmetry with lateral narrowing of the L4/5 disc space. He also had before him the CT of 20 October 1987, and commented as follows:

“There has never been any history given of any violent incident to account for a posterior protrusion, albeit mild, of L4-5 disc, and whatever description is accurate regarding the incident of 17 February 1986 this incident has not been the cause of the mild protrusion.”

26. Dr Marshman considered that the 1986 incident was minor, and probably initiated symptoms from the mild posterior protrusion of L4-5 disc allowed by the minor developmental anomaly, giving poor natural disc support there. He added: “History and examination have been characterised by exaggeration, embellishment, inconsistency and contrivance ...” Dr Marshman recommended that due to the increased susceptibility to injury at the L4-5 level, Mr Temur was not fit for mail officer work, but could do light duties with lifting of not over 10kgs.

Dr Funnell

27. Dr Funnell, Director of Rehabilitation Medicine at Bankstown Occupational Health Clinic examined Mr Temur and wrote a report dated 30 June 1988 (T33). He commenced with: “I do not regard that Mr. Temur’s presentation indicates that he is in any way suitable for rehabilitation management. Following his injury a conveyor belt was installed to reduce the amount of manual handling activity ....Mr Temur feels that this later response by management indicated the difficulty of the task he was undertaking. ... He regards that he and his fellow workers were not treated fairly ... Mr Temur’s pain and disability was well entrenched, and continue to be reinforced by both medical and legal influences.”

Dr Alexander

28. Dr Alexander who is a surgeon, reported on his examination of Mr Temur on 25 May 1990 (T61). He stated: “As a result of my examination today I had the greatest difficulty in accepting his apparent diminution in movements of the lumbo sacral spine, and the apparent diminution in straight leg raising. I do not believe that he has any nerve root irritation or compression, but probably has suffered from some degree of musculo ligamentous strain.... I believe that he has a minor disability in his back and a substantial degree of psychological overlay, in part related to his conception of his employer’s attitude to him.”

Dr Hammond

29. Dr Hammond, a consultant orthopaedic surgeon, examined Mr Temur and produced a report dated 13 March 1996 (T91). He noted that Mr Temur made little mention of any neck problems, and emphasised that his back problems were his main concern. Dr Hammond noted that Mr Temur mentioned having developed a limp, but opined that he found “nothing amiss” in that regard. He suggested that if there was any question of significant disc pathology with nerve root impingement, then a CT/myelogram or MRI was required. Dr Hammond opined that the fall may have caused Mr Temur inter-spinous ligament trauma and possibly disc injury but he questioned that because of the “obvious gross functional overlay” he observed. The results of the CT which followed are dated 22 August 1996, and report: “This was a normal examination and in particular there were no signs of protrusion or bulging of the L4/5 disc and the neural structures were intact.”

Dr McDougall

30. Dr McDougall, staff specialist, neurology, at Liverpool Hospital wrote a report dated 17 December 1997, (T109) to Dr Ozme, with copies to Dr Guirgis and Dr Chaudhary (psychiatrist). He noted that the nerve conduction studies carried out had been normal, and the CT of the lumbar sacral spine showed no significant disc or bony abnormalities, a normal bony vertebral alignment and no soft tissue abnormality. We noted that the report of the nerve conduction studies at PT107/241 indicated that there was no evidence of neuropathy, but some evidence of a mild radiculopathy affecting the L2, L3 and L4 nerve roots on the right.
31. Dr McDougall prescribed medication for neuropathic pain.

Dr Chaudhary

32. Dr Chaudhary first saw Mr Temur on 20 November 1997, on referral from his general practitioner. His report dated 19 March 1998 was at T111. He referred to Mr Temur having consulted Dr Younan, another psychiatrist, in 1990, and opined that whilst Dr Younan was hopeful Mr Temur would be able to improve from his adjustment disorder and restore his life, he, Dr Chaudhary, was not hopeful. He felt the prognosis for Mr Temur was poor as he had undergone extensive attempts at regaining his health, and at the time of the report suffered from major depressive illness with suicidal ideation, severe anxiety disorder, chronic back pain affecting his thighs, particularly the right one, cervical pain and adjustment disorder.

Dr Crooks

33. Dr Crooks is a doctor specialising in musculo-skeletal assessment of the spine, and upper and lower extremities. His report of his examination of Mr Temur was Exhibit A1, dated 2 April 2007. In it he referred extensively to the earlier medical examinations and investigations which were carried out. Dr Crooks stated that on examination he could not see any physical deformity on observation of Mr Temur’s spine. He also noted the absence of specific radiological evidence to detect any disc prolapse or other pathology. Dr Crooks also diagnosed radicular symptoms to the right and left leg, worse on the right side, although he added that he could not find any hard signs of radiculopathy. He declined to comment on anxiety, depression or other psychiatric condition which Mr Temur may suffer, as it was outside his expertise.
34. Dr Crooks recommended Mr Temur attend a pain clinic, and suggested an inter-foraminal block at the L4/5 regions on both sides could be trialled. He opined that Mr Temur was suitable for limited employment such as clerical work to a maximum of five hours, (presumably a day), with restrictions on lifting and the ability to have rest or stretch breaks.
35. Dr Crooks assessed Mr Temur at 10% permanent impairment of the cervical spine on Table 9.6, 20% for the thoraco lumbar spine on Table 9.6, and 28% combined.

Dr Beran

36. Dr Beran is a neurologist who examined Mr Temur and produced a report dated 7 November 2008 (Exhibit R4), in which he summarised the large number of medical reports which had resulted from the many medical examinations Mr Temur has undergone. He concluded as a result of his history taking and examination: “As regards diagnosis, the only diagnosis possible in this man is that of voluntary exaggeration of symptoms and signs based on a range of reasons.”
37. In commenting on the reports he had studied, Dr Beran stated that he agreed with the prescription of Amitriptyline by Dr McDougall, as it has a whole range of benefits including muscle relaxation and pain relief, and is a tricyclic anti-depressant, allowing minor musculo-skeletal problems to resolve without further intervention.
38. Dr Beran stated that he would question the finding of positive sharp waves in a single muscle EMG as strong support for there being widespread radiculopathy, particularly in the absence of any significant loss of reflexes and non-organic sensory deficits.
39. Dr Beran stated that he accepted Mr Temur suffered some injury in the incident with the mail bag in 1986, but believed that subsequent to that, the symptoms, signs and complaints were grossly exaggerated. In relation to whether Mr Temur’s complaints continued to be caused by work related incidents when Mr Beran saw him, Dr Beran opined that there was no objective evidence of any neuropathology, and the only possible connection would be psychiatric, which was outside his area of expertise.
40. Dr Beran also opined that it was more likely than not that Mr Temur did not suffer a disc prolapse in the 1986 injury, and that what he suffered at that time should have resolved, as well as any musculo-ligamentous injury suffered in 1989. Dr Beran did not give any rating for permanent impairment.

Concurrent Evidence of Drs Conrad and Maxwell

41. We had the benefit of having concurrent evidence from Dr D Maxwell who is an orthopaedic and spinal surgeon, and Dr P Conrad who is a general surgeon, as well as the reports of their examinations of Mr Temur. We noted from Dr Maxwell that he carries out regular spinal surgery and sees a lot of patents with back pain, which is of course quite a significant matter in this case, whereas Dr Conrad is a general surgeon.
42. Drs Conrad and Maxwell’s reports were the most recent assessment of Mr Temur, with examinations carried out in 2008/9. Dr Maxwell had two reports before the Tribunal, being Exhibit R6, and Dr Conrad, had four reports, Exhibit A2. Both doctors had been provided with each other’s reports, spoke to them, and then were questioned by both the Tribunal Members, and later on, counsel for the parties.
43. In summary, Dr Conrad opined that Mr Temur had suffered a disc protrusion as a result of his incidents at work in 1986 and 1989. However both doctors agreed that Mr Temur does not presently suffer radiculopathy.
44. Dr Maxwell considered that the investigations indicated that Mr Temur has pre-existing developmental changes at L4/5 which would not be expected to cause long term problems. He was of the opinion that there had never been any history of true radiculopathy, and that none of the investigations showed any nerve root impingement. He stated that he agreed with Dr Beran, and would question the finding of positive sharp waves in a single muscle EMG as strong support for there being widespread radiculopathy, particularly in the absence of any significant loss of reflexes and non-organic sensory deficits. Dr Maxwell stated that none of the investigations showed any nerve root impingement, adding that: “His symptoms are vague and fit no particular pattern of injury or disease. His symptoms appear to extend the length of his spine and involve both legs. He experiences intermittent burning and pins and needles. His physical signs are inconsistent and unreliable. ... There are no radicular signs.”
45. In support of his opinion that Mr Temur had a developmental defect, being Schmorl’s nodes at L4/5, Dr Maxwell referred to the description given by the radiologist on 8 January 1990 when reporting on a CT of the lumbar spine.

“At the L4-5 level, there is a mild broad based posterior protrusion of the disc. This has extended to flatten the ventral aspect of the dural sac with partial obliteration of the antero-lateral fat pads. Localised bony infraction is also evident along the posterior margin of the upper L5 end-plate. In reviewing the previous scan, it is noted that a mild retraction of the disc protrusion is evident.”

46. Dr Conrad disagreed with the notion of a developmental defect, stating that he relied on radiologists interpreting their investigations, and none had actually found any sign of, or mentioned Schmorl’s nodes. Dr Maxwell opined that the radiologist’s description in the paragraph above was that of Schmorl’s nodes, whereas Dr Conrad opined that if the radiologist had intended that, he would have explicitly said so.
47. Unfortunately Dr Conrad was not able to clearly decide the attributability for any of Mr Temur’s disability or impairment between the 1986 and 1989 incidents. He varied his view several times both in his reports and orally, from half and half (report of 9 July 2008 and his oral evidence), to two thirds for the 1989 incident, and one third for the 1986 incident (report of 7 October 2008). In giving his oral evidence, Dr Conrad stated that the 1986 incident would have been the more significant, whilst the 1989 incident could be characterised as an aggravation of the first. Dr Maxwell on the other hand, felt that neither was significant, and both would have resolved after a matter of weeks.
48. Dr Maxwell commented on Mr Temur’s reports of burning sensations in his legs and stated that many people experience that, further that it had no connection with the Applicant’s back, and did not follow any specific dermatomal distribution. It simply radiated up from the feet according to Mr Temur.
49. In his July 2008 report Dr Conrad assessed Mr Temur at 15% whole person impairment. It seems Mr Temur told Dr Conrad he suffered neck pain after the 1986 incident, and also limped when he came to see him. Dr Conrad thought Mr Temur could work 12 – 15 hours a week at light work not involving heavy lifting (i.e. nothing over 5 kgs), or repetitive bending. Dr Conrad told us he was satisfied that Mr Temur suffered ongoing back pain, and that he would not have submitted himself to an invasive investigation such as a myelogram if he had not been thus suffering.
50. Dr Maxwell opined that Mr Temur was fit for work without restrictions as he may have sustained a sprain of the back in 1986, and some contusions in 1989 which would have healed after some four to six weeks.
51. Dr Maxwell assessed zero permanent impairment based on the events of 1986 and 1989, and attributed Mr Temur’s stated problems to psycho-social factors.

The Tribunal

Inconsistent Reporting

52. In coming to a decision whether Mr Temur suffers permanent impairment which is compensable, we took into account the long time which has elapsed since Mr Temur’s incidents of 1986 and 1989, and the different accounts of his accidents and his pain which he has given the various doctors who examined him over the years. We accept the events occurred a long time ago, and one’s memory of events may be inaccurate at times. However Mr Temur has attended at so many doctors that he has constantly had to remind himself of the incidents of 1986 and 1989. Unfortunately, his evidence was inconsistent in many ways, from the description of pain in the notification of injury in 1986 being “some” pain, to “severe” pain in the compensation form completed less than a month later.
53. Mr Temur also gave an inconsistent account of the 1986 incident in that he first reported that the back pain occurred while he was carrying out his normal duties and emptying a mail bag into the bins provided, (Incident Report at T4/9 & Compensation Claim PT4/12). Later on, in October 1987, to his orthopaedic surgeon, Dr Guirgis, he stated that a quarter of the mail from the bag fell outside the bin, so he tried to pull it to orientate it inside the bin, and as he did so, he felt a snapping pain in his lower back.

The Neck

54. We noted that Mr Temur did not raise any neck injury in his report of his 1986 injury or in his claim form, both at T4. We noted at PT74/164, the Health Status Assessment Form, that Mr Temur stated in 1991 in his reply to question 26, that:

“The level of pain in my neck has also increased and the degree or the level of my neck movements has also decreased. The second injury certainly aggravated all these physical injuries or disabilities caused by my first injury...”.

This implied of course that the neck was injured in the earlier 1986 incident.

55. In July 2008 when Dr Conrad wrote a report (Exhibit A2), he referred to Mr Temur having injured his neck in the 1986 incident, presumably as told to him by Mr Temur. We are mindful however that by 25 September 2008, Mr Temur had recalled, as he stated at Exhibit A3, that: “Firstly I did not have any neck pain prior to my injury on 12 October 1989....” .
56. Accordingly we are satisfied that Mr Temur did not injure his neck in the first incident.

• In his oral evidence, after accepting that his neck pain arose after the 1989 incident, he said that the neck pain commenced a few weeks after the incident on 12 October 1989, but that he only reported it some months later.
• It was in 1992 that he first told Dr Guirgis his treating orthopaedic surgeon whom he had been seeing since 1987, that he had suffered injury to his neck in the 1989 incident.
• We noted from a CMO report dated November 1990 (T67), where Mr Temur was referred for assessment of his physical capacity for work, that the examination was in connection with the lumbar spine, and the neck was not mentioned.
• We noted that Mr Temur did not report any neck pain to his general practitioner until 18 June 1990.
• The majority of the radiological examinations for which Mr Temur was referred were for the lumbar spine.
• We found Mr Temur’s reports of neck pain unreliable.

57. We noted that Dr Crooks considered that Mr Temur had a 10% permanent impairment of the cervical spine, Dr Guirgis considered it was 5%, and Dr Conrad gave a 15% whole person impairment rating according to the Guide, Second Edition. The Guide, Second Edition does not apply in Mr Temur’s case because if there was any permanent impairment, it is likely to have occurred during the currency of the Guide, First Edition. Many of the other doctors who examined Mr Temur, including most recently, Dr Maxwell did not find he had any permanent impairment of his neck. We are satisfied from the evidence before us, as noted above, including the medical evidence, that Mr Temur suffers no permanent impairment in regard to his neck, and that he cannot sustain a claim in that regard.

Whether Mr Temur Suffers Permanent Impairment of The Lumbar Spine – Functional Overlay

58. We noted Mr Temur’s evidence regarding the pain he felt as a result of the 1986 incident and the 1989 incident at work. He reported pain, had time off work, attended at his general practitioner, and liability was accepted for the injuries which were found to have resolved after a certain time.
59. We have noted Mr Temur’s evidence that he continues to suffer pain, cannot lift weights, sit or stand for long periods, and can in general terms only do light work as he did when his family owned Michel’s franchises (from 2004), and in their current business which is a child care centre. We noted from the medical evidence that after both the 1986 and the 1989 incidents, doctors, including Drs Guirgis, Marshman, Crooks and Conrad recommended that he do light duties which included weight restrictions.
60. We were satisfied from the medical evidence that Mr Temur suffered a musculo-ligamentous injury to the L4/5 area of his spine in 1986, and more than likely, an aggravation of that by way of a further musculo-ligamentous injury in 1989. We are satisfied also that his L4/5 had existing minor developmental narrowing. This was commented upon by the radiologist who reviewed the CT scan carried out in January 1990. The radiologist did not positively identify Schmorl’s nodes, the developmental condition which Drs Maxwell and Marshman thought Mr Temur had, but described a situation which could be thus interpreted. As relevant it follows:

“At the L4-5 level, there is a mild broad based posterior protrusion of the disc. This has extended to flatten the ventral aspect of the dural sac with partial obliteration of the antero-lateral fat pads. Localised bony infraction it also evident along the posterior margin of the upper L5 end-plate. In reviewing the previous scan, it is noted that a mild retraction of the disc protrusion is evident.”

61. We noted that Dr Conrad did not agree that that was the case, stating that the radiologist would have stated so specifically, if he had thought Mr Temur had a developmental narrowing of the L4/5.
62. However we are satisfied from the radiological evidence and that of Drs Maxwell and Marshman that Mr Temur had a mild L4/5 disc protrusion which was as a result of a developmental condition. We noted further Mr Gollan’s submissions comparing the radiological findings made after the 1986 and the 1989 incidents, which he submitted did not show any substantial changes. We are satisfied from the radiological investigations reports of which were before us, that that was the case.
63. We are satisfied that the work activities Mr Temur undertook as a postal officer, his description of the 1986 and 1989 incidents, and the radiology and medical evidence do not persuade us that he suffered a disc lesion as a result of either incident. We noted that Dr Maxwell compared Mr Temur’s work to the activities of footballers who suffer much more violent physical activity and often do not suffer disc lesions as a result. By contrast, Dr Conrad referred to cases of disc prolapse occurring in baggage handlers and others whom he sees, and who suffer trauma through lifting. Dr Conrad assessed Mr Temur at 15% whole person impairment, stating that it became permanent in approximately 1990.
64. We are mindful that Drs Maxwell and Beran opined that musculo-ligamentous injuries such as Mr Temur suffered in 1986 and 1989 generally resolve in four to six weeks. We noted also that Dr Harvey-Sutton, in a report dated July 1998 (T117), opined that Mr Temur was totally and permanently incapacitated for any type of work. We reject Dr Harvey-Sutton’s opinion on Mr Temur’s evidence of his work capacity, alone.
65. We noted that when giving their concurrent evidence, both Drs Conrad and Maxwell agreed they were satisfied that Mr Temur did not presently suffer radiculopathy. Dr Crooks opined that there were no hard signs of radiculopathy, Dr Beran stated that there was no objective evidence of neuropathology. We also accepted the opinion of Dr Maxwell who opined that there was no dermatomal distribution in relation to Mr Temur’s reports of pain, and we are mindful that even Dr Conrad who supported Mr Temur’s position, found there was no physiological basis for his pain distribution.
66. We note in particular the burning sensation Mr Temur reports which he says rises up from his feet. We accepted Dr Maxwell’s opinion that the sensation of feet burning is not an unusual one, but that it has no connection with any back pain Mr Temur might suffer. Dr Conrad agreed that the burning in both feet and radiation of pain upwards from the feet could not be explained anatomically. Mr Temur told us that he had been prescribed Endep and that he took it to assist with sleep and with his burning feet.
67. We noted that Dr Maxwell opined:

“His symptoms are vague and fit no particular pattern of injury or disease. His symptoms appear to extend the length of his spine and involve both legs. He experiences intermittent burning and pins and needles. His physical signs are inconsistent and unreliable. ... There are no radicular signs.”

68. We were mindful that several of the doctors, Funnell, Alexander, McDougall, Mistry, (CMO), Maxwell and Beran amongst others, referred to Mr Temur either exaggerating, or that there was a functional overlay in his presentation. We noted also that those doctors considered that Mr Temur’s reports of pain were not borne out by their physical examinations. We were mindful that Dr Guirgis did not refer to any exaggeration in his reports, and Dr Conrad disagreed with the other doctors. Dr Conrad opined that if a patient exhibited obvious exaggeration, he would pick it, but that otherwise it was a difficult call, and he was not able to conclude that Mr Temur was exaggerating. Dr Conrad told us that he accepted Mr Temur had genuine back pain, and that he would not otherwise have consented to an invasive procedure such as a myelogram. We do not accept that latter statement as applying universally or in this case, because patients tend to have the investigations their doctors order.
69. We noted also that Dr Guirgis, Mr Temur’s treating orthopaedic surgeon referred to chronic pain syndrome, Dr McDougall referred to neuropathic pain, and Dr Lovell, a psychiatrist opined in 1998 (T123), that Mr Temur did not suffer major depression, neither anxiety disorder, but that he has chronic pain disorder primarily determined by psychological factors. Both chronic pain disorder and neuropathic pain can be taken to mean that the pain is not associated with a physical cause. That does not make it unreasonable or non-existent. However, we prefer the medical evidence as noted above, which is that Mr Temur is exaggerating the pain he reports. We note in particular statements from Dr Marshman, for example:

“History and examination have been characterised by exaggeration, embellishment, inconsistency and contrivance ...”

70. We have further opinions from Dr Alexander:

“As a result of my examination today I had the greatest difficulty in accepting his apparent diminution in movements of the lumbo sacral spine, and the apparent diminution in straight leg raising. I do not believe that he has any nerve root irritation or compression, but probably has suffered from some degree of musculo ligamentous strain....

71. Dr Hammond, who stated that the fall may have caused Mr Temur’s inter-spinous ligament trauma and possibly disc injury, but questioned that because of the “obvious gross functional overlay ...”
72. We noted that Dr Reefman, CMO, wrote in 1991 with regard to assessment of Mr Temur’s occupational capacity that there was no change to previous restrictions. He added:

“I can find no physical signs to support this degree of disability. He is involved in a protracted litigation with Australia Post over his workers compensation claim and is unlikely to improve until this matter is settled.”

73. We are satisfied from the evidence before us that Mr Temur is not permanently impaired pursuant to sections 24 and 27 of the Act as he has claimed. We prefer the evidence of the doctors who found that he is exaggerating his claims. Accordingly even though some of the doctors have given assessments of the degree of permanent impairment, we find none which is compensable.
74. We were mindful that Mr Temur has been attending at psychiatrists since he consulted Dr Younan in 1990, and that Dr Chaudhary sees him on a regular basis, apparently without improvement occurring. By way of example we note that Drs Crooks and Beran who examined Mr Temur referred to the possibility of psychiatric illness, but added that they had no expertise in that area. As far as we are concerned there has been no claim made, and there is no appeal before us with regard to any psychiatric injury. We cannot comment further.
75. We noted that Mr Temur feels resentment towards his employer, and that he felt the conveyor belt which was installed after he hurt his back should have been there all along. We noted Drs Funnell and Alexander also commented on Mr Temur’s negative feelings towards Australia Post. We make no finding in that regard.
76. With the agreement of the Tribunal both counsel submitted short written submissions after the hearing with regard to the calculation of degree of permanent impairment, and the application of Canute v Comcare [2006] HCA 47; (2006) 229 ALR 445. We accept that the assessment for an injury is to be assessed in accordance with section 24, and the principles enunciated in Canute.
77. We have found no permanent impairment of either the cervical spine or lumbar spine which is compensable, so the issue of whether any assessments can be combined does not arise.
78. The Applicant does not suffer permanent impairment which is work related, and therefore compensable. His claim for permanent impairment must fail.

DECISION

79. The Tribunal affirms the decision under review.
80. Pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, costs may not be awarded.
    

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G Ettinger, Senior Member and Dr J D Campbell, Member

Signed: .......................[sgd]..................................................

Associate

Dates of Hearing: 6 & 7 May & 16 June 2009; final closing submissions 23 June 2009

Date of Decision: 29 June 2009

Solicitor for the Applicant Mr M Conn, Teakle, Ormsby, Conn

Lawyers

Counsel for the Applicant Mr S Moffat

Solicitor for the Respondent: Mr S Matthews, Australia Post

Counsel for the Respondent: Mr M Gollan