Coles and Australian Postal Corporation [2011] AATA 62 (4 February 2011)

Last Updated: 9 February 2011

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/5162
GENERAL ADMINISTRATIVE DIVISION )

Re: Ronald Coles
Applicant

And: Australian Postal Corporation
Respondent

DIRECTION

TRIBUNAL: The Hon. Brian Tamberlin QC, Deputy President

DATE: 8 February 2011

PLACE: Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. The date in paragraph 16 of this decision should read 6 December 2001 not 6 December 2011.
   

...............[sgd]....................................................
The Hon. Brian Tamberlin QC
Presiding Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 62

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. 2007/5162

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RONALD COLES

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

The Hon. Brian Tamberlin QC, Deputy President Mr Dean Letcher QC, Senior Member Dr M E C Thorpe, Member.

Date 4 February 2011

Place Sydney

Decision

The decision under review is set aside and in its place the Tribunal substitutes a decision that the Respondent is liable to pay compensation to the Applicant pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 from 25 July 2007 to date and continuing.

.................[sgd].............................
The Hon. Brian Tamberlin QC

Presiding Member

CATCHWORDS

WORKERS COMPENSATION – Aggravation of back condition – whether aggravation of condition had ceased - pathological change not necessary to constitute aggravation - issue estoppel and res judicata submissions rejected - Applicant has present and continuing entitlement – decision set aside

Safety Rehabilitation and Compensation Act (Cth) 1988: ss 4, 5A, 5B, 14, 16, 19

Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 104 ALD 595

Telstra Corporation v Hannaford (2006) FCR 253

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; [1964] 110 CLR 626

Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 361; (1981) 53 FLR 191

Australian Postal Corporation v Bessey [2001] FCA 266; (2001) 32 AAR 508

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Coles v Australian Postal Commission (2001) AATA 997

Coles v Australian Postal Commission (2003) AATA 1157

REASONS FOR DECISION

4 February 2011

The Hon. Brian Tamberlin QC, Deputy President, Mr Dean Letcher QC, Senior Member and Dr M E C Thorpe, Member.

1. Mr Coles applies for review of a Decision dated 23 August 2007 which held that after 25 July 2007 he was not entitled to receive compensation for aggravation of a pre-existing lower back condition. Earlier Tribunal hearings concerned other aspects but in this hearing the question was whether an incident at work on 22 December 1998 continued to be an aggravation of his back condition after 25 July 2007 and if so for what period.
2. Liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) was accepted in a determination in respect of a back injury sustained 22 December 1998. The accepted injury was "an aggravation of pre-existing degenerative changes in cervical and lumbar spine".
3. The major question was for how long that aggravation lasted and whether it had ceased to have any significance on 22 December 1998.
4. A submission made that earlier decisions of this Tribunal have constituted an issue estoppel or res judicata was rejected. The Tribunal has a statutory duty to review a decision within its jurisdiction and if that decision has not been reviewed previously, it has a duty to proceed whether allied issues have been decided or not. (Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558; (2008) 104 ALD 595, Telstra Corporation v Hannaford (2006) FCR 253).
5. One legal question was whether an increase in pain frequency or intensity without further pathological damage may constitute an "aggravation" under the 1988 Act. Sections 5A and 5B of the Act give wide definitions of "injury" and "disease". "Aggravation" is defined in s 4 to include both acceleration and recurrence and in past judicial decisions has been seen as synonymous with "exacerbation". The point arose because there was an issue between medical experts as to whether the incident of 22 December 1998 caused pathological change or not. In the event, the Tribunal's decision did not turn on that point.
6. As far back as Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; [1964] 110 CLR 626 the High Court approved a judgement which said:

"There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms."

and went on to say:

"In other words there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition."

7. In Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 361; (1981) 53 FLR 191 it was held by the full Federal Court that pain brought on by work activity without pathological change may constitute aggravation of injury within the meaning of the previous Compensation (Commonwealth Government Employees) Act (1971) . It was held that "aggravation" and "exacerbation" were synonymous. Commonly an injury causes pain to the victim and is considered to be part of the injury. Aggravation may properly refer to the increased effects the injury produces in the victim rather than the worsening of the injury itself.
8. Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176 agreed with the view held in previous decisions that the symptoms of a disease form part of the disease itself (at pg 179-180) and held that a recurrence or worsening of symptoms could constitute aggravation.
9. In Australian Postal Corporation v Bessey [2001] FCA 266; (2001) 32 AAR 508 it was held that the mere fact of pain occurring at work may be the usual and expected sequelae of a disease process or it may be the result of an aggravation of the condition. The judge was not referred to the cases above and found an error of law in the Tribunal’s reasoning that:

"The pain suffered by the respondent whilst riding the bike was an aggravation and, as that pain was incapacitating, there was therefore an entitlement to continuing compensation." (at 511)

10. However, in Mr Coles' case it is not said that simply riding the bike was an aggravation. It was the incident when he "came down heavily on my back - on my bottom" which aggravated the pain symptomatology. It was a distinct incident in the course of work activity which worsened the effects of his prior condition by increasing the frequency and extent of the pain part of his condition (see also Tippett v Australian Postal Corporation (1998) 27 AAR 40).
11. We are of the view on the decided cases and given the medical evidence that further pathological change is not necessary to constitute aggravation of a condition within the meaning of the 1988 Act.
12. Mr Coles' description of the particular incident is that:

"...at one point of my run, J stood up on a motor cycle foot peg to mount off the kerb and at that point, I came off the kerb side, the foot path side, onto the road surface and seemed to have lost control, in a sense. And came down heavily on my back - on my bottom." (T. p.46 para. 30)

13. When he consulted Dr Nigro, his general practitioner, on 29 December 1998, his evidence was he was feeling extreme pain and tenderness in the lower back mainly, and tenderness in the neck area as well. He had no recollection of previously experiencing that kind of pain in that location ( identified as being just below the belt line in the pelvis) and that it was totally different to pain and stiffness experienced previously when working as a fencing contractor, prior to commencing work with Australia Post.
14. Dr Wilding, Orthopaedic Surgeon, in his report of 28 January 1999 considered on balance that Mr Coles’ work activities had aggravated the underlying degenerative condition and that the continuing symptoms (constant dull ache in his lower back) indicated continuation of the aggravation. Dr Vote, Orthopaedic Surgeon, also noted in a letter dated 2 January 1999 degenerative changes on radiology of the spine.
15. An x-ray of the lumbosacral spine 30 December 1998 revealed slight narrowing of the L5/S1 disc space and osteophytic lipping at L2/L3 and L3/L4 levels. A CT scan 4 January 1999 revealed slight degenerative bulging of the L5/S1 disc. There were also degenerative changes in the apophyseal joints at the L4/L5 and L5/S1 levels.
16. Further liability was denied from 21 April 1999, relying on a medical report dated 29 March 1999 from Dr Wilding a decision reversed by the first Tribunal decision on 6 December 2001, Coles v Australian Postal Commission (2001) AATA 997, based primarily on medical evidence of Dr Harvey-Sutton, namely that the Applicant continued to suffer the effects of aggravation of his lumbar spine condition.
17. A further denial of continuing liability on 7 June 2002 was reliant on Dr Maxwell, Orthopaedic Surgeon's opinion of 2 May 2002:

“consider any symptoms he has presently are constitutional and not related to any work incident."

18. The second Tribunal Decision on 4 November 2003 Coles v Australian Postal Commission (2003) AATA 1157 relied substantially on Professor Sambrook's opinion supported by Doctors Wolfenden, Neurologist, Dr Berry, Surgeon and Dr Davis, Occupational Physician and to an extent the original report by Dr Harvey-Sutton in coming to their decision of ongoing incapacity. Opposing opinion came from Dr Maxwell, Dr Cant, Rheumatologist and Dr Hodgkinson, Orthopaedic Surgeon. In addition to ongoing incapacity the Applicant was granted 10 per cent whole person impairment for permanent incapacity for the lumbar spine.
19. Professor Sambrook's opinion was that the bulging of the disc was related to the motor bike incident and the CT scan of the Applicant's lumbar spine showed more than would be seen from normal age degeneration. The basis of that opinion was modified at the present Tribunal hearing, but he repeated his substantive opinion.
20. In his evidence to the Tribunal, Dr Maxwell was critical of Professor Sambrook's suggestion that the x-ray of 5 February 1998 of Mr Coles’ lumbar spine showed only mild narrowing of the L5/S1 disc and that 12 months later on 4 January 1999 the CT scan showed definite bulging which led to a conclusion of a change or worsening of the condition. Dr Maxwell said it is impossible to say whether he had any bulging at the time of the previous x-ray in 1998 without comparing the two CT scans. Professor Sambrook was comparing an x-ray with a CT scan - "apples with oranges".
21. In evidence before this Tribunal Professor Sambrook did not disagree with Dr Maxwell's comment. He modified his reasoning:

"What I'm saying is that suggests that the history of back pain is consistent with the finding on the CT, namely some bulging on the CT some 12 months later He has acute onset of back pain and we have a CT scan that shows definite bulging and that, to my mind, was linked in time"

22. Mr Coles was again denied entitlement to compensation for ongoing incapacity on 23 August 2007, the determining officer relying on medical reports from Dr Maxwell and Dr Pierides, occupational physician. Dr Maxwell again found no specific pathology and did not consider "there is any specific pathological condition to explain [your] symptom complex which is vague and fits no pattern of disease nor injury". He did not consider Mr Coles had sustained any specific injury.
23. Dr Pereides opined:

"I don't believe he has any permanent restrictions with respect to a physical injury. His investigations reveal nothing more than may be expected for a man his age group. His major limiting factor is his perception of his injury and his anxiety."

24. Dr Pereides could offer no reasonable explanation for the pain.
25. We are content to accept that at the time of the incident on 22 December 1998, there were radiological changes present being variously described as degenerative spinal disease, spondylosis, disc bulging and degenerative changes at the apophyseal joints. The interpretation of these changes should not be taken in isolation but as part of the overall clinical picture.
26. An MRI scan of the lumbar spine 3 April 2008 revealed a broad based annular bulge at L4/L5 with disc material extruding in the right L4/L5 intervertebral foramen with a small right foraminal annular tear and with a mass effect on the right L4 nerve root. There was a shallow disc protrusion.
27. There was no medical opinion supporting radiculopathy disease or inflammation of the spinal nerve roots and the Respondent did not pursue the argument that acceleration of constitutional degeneration was responsible for the symptoms.
28. The balance of medical opinion was that patients with the radiological changes similar to Mr Coles will vary in symptomatology, from asymptomatic to symptomatic and that degenerative spinal disease with age will vary in symptomatology not necessarily related to the radiology.
29. As indicated by Professor Sambrook, the argument is whether the aggravation was permanent or temporary. Or, in the words of Deputy President Tamberlin, has the aggravation ceased.
30. Dr Wallace, Orthopaedic Surgeon has examined Mr Coles on three occasions from 2003 to 2009 and he gave oral evidence at the hearing. In his initial report 3 June 2003 he recounted the history of the injury:

"He suffered a second injury in the course of his duties at work 22 December 1998. At that time he was riding his Australian Post motor bike delivering mail in Ramsgate. As he approached the end. of the street, he drove off the gutter while standing on his foot pegs and then came down forcefully on his seat."

31. He found a consistency of complaints over the six year period. His diagnosis was musculo-ligamentous strain of the lumbar spine and exacerbations of pre-existing lumbar spondylosis as a result of injuries sustained on 22 December 1998. His assessment was based on the consistency of the clinical findings over the six year period.
32. He acknowledged that he only once took a history of onset of symptoms and said that the:

"consistency I was referring to was in terms of his complaint of pain".

33. Dr Wallace on 6 August 2009 reported that Mr Coles continued to take analgesic and anti-inflammatory drugs including Panadeine Forte, Mobic, Pariet and Lyrica.
34. Dr McGill first examined Mr Coles on 22 September 2008 and subsequently 2 September 2009. He did not have the benefit of an account of the accident proximate to his examination, relying principally on the papers. He reported that at the subsequent consultation on 2 September 2009 Mr Coles' symptoms had not changed since his original consultation in September 2008 and that he continued to experience pain in the low back, pelvic region, buttocks, thighs and neck.
35. In a further report of 8 September 2009 Dr McGill made reference to Dr Wallace not providing any detail in regard to the two work incidents. It would appear Dr McGill only had the benefit of Dr Wallace's 2009 report .This does provide details of the work incidents.
36. On examination Dr McGill considered Mr Coles demonstrated a lot of pain behaviour with reduction of thoraco-lumbar movement and had apparent difficulty in demonstrating muscle strength because of back pain. Straight leg raising was reduced. Dr McGill reported radiological evidence of widespread degenerative spinal disease involving the cervical, thoracic and lumbar spine. In his summary OF 2 September 2009 he reported:

"Although it is likely that the degenerative changes in the spine have played a role in his symptoms he also demonstrated a pattern of behaviour which I think is appropriately labelled 'abnormal illness behaviour'."

37. Dr McGill, whilst saying there was some degree of abnormal illness behaviour, did not consider there to be a falsification.
38. He considered whatever the psychological mechanism, Mr Coles’ restricted movements were not consistent with the degree of degenerative change evident on his imaging studies. He was also of the opinion the current state of his spine was the same as would have been the case had he not performed work for Australia Post. He thought the effect of the work incidents in 1997 and 1998 was to produce a temporary aggravation of spinal symptoms but no permanent change in the spine and that the effect of the incidents had long since ceased. Dr Maxwell was also of the opinion there were no permanent impairment. This is contrary to the decision of the 2003 AAT Decision based on the opinions of Dr Wolfenden, Dr Davis and Dr Wallace, there was a 10 per cent permanent impairment and Dr Hodgkinson five per cent.
39. The Tribunal accepts that there can be permanent impairment consequent to aggravation. This Tribunal is not concerned with the 2003 decision to grant permanent impairment. The question for this Tribunal is the same as it was for the Tribunal in 2000 and 2003, namely whether one set of medical opinions arguing that any aggravation would have ceased in a matter of weeks or months should be preferred to another set of medical opinions arguing the aggravation is chronic.
40. We are satisfied that Mr Coles was relatively pain free in his lower back prior to 22 December 1998. We acknowledge he had some back discomfort as a fencing contractor and that he had an accident off his motor bike in 1997. We are also satisfied on the weight of the medical evidence radiological changes were already present in the lumbar spine at the time of the 1998 accident.
41. Critical to our determination is the question of continuation of symptoms (pain and discomfort). Mr Coles' evidence was that he has experienced constant low back pain since the 1998 incident that was not present prior to that date. That is, a previously asymptomatic condition was made symptomatic. He is supported by Dr Wallace who records continuing lower back pain 2003-2009. Professor Sambrook reported Mr Coles gave a history of back pain that has been fairly constant since 1998. Dr McGill obtained a history of continuing lower back pain.
42. Dr Maxwell from the time of his first consultation 2 May 2002 considered any symptoms were constitutional and not related to the work incident. Subsequent reports indicate he did not consider the symptoms of pain were related to degenerative spinal disease but were due to psychosocial factors which prolong the experience of pain.
43. In cross-examination of Dr Maxwell:

"You said that the physical examination suggested conscious fabrication. By that do you mean out and out lying, do you? -Yes."

"All right. If he wasn't lying, then how would you explain it? — It's impossible to explain."

44. Dr Maxwell was alone in this view. Dr McGill, as previously stated, mentioned abnormal illness behaviour but specifically excluded falsification. Dr Maxwell has not altered his opinion from that expressed before the 2003 Tribunal that he does not consider the applicant was suffering from any incapacity resulting from the 1998 incident and that any aggravation has ceased. His opinion was not accepted by that Tribunal.
45. Dr McGill did not have the advantage of seeing the Applicant until 2008 and was uncertain about the nature of the injury sustained in 1998. Unlike Dr Maxwell, Dr McGill accepted that Mr Coles was symptomatic. In 2009 Dr McGill reported Mr Coles as having constant pain in the lower back which he attributed in part to degenerative spinal disease and also abnormal illness behaviour. This is quite different to the opinion of Dr Maxwell who has taken the view the Applicant is unreliable and does not have significant degenerative spinal disease. The Respondent has asked that we take its two doctors' opinions in the alternative.
46. Mr Grey submitted for the Applicant that in the present case all the Tribunal is faced with is the conflict of opinion between two sets of doctors (in which Dr Maxwell described as the poorly understood field of chronic back pain) as the Tribunal dealt with in 2001 and 2003. We are not bound by the earlier Tribunal decisions but remain mindful of the opinions expressed and the reasons for these opinions. We have a galaxy of medical opinion from 1998 to the present time.
47. We are required to look at the whole clinical picture, which includes the history, examination and radiology. The weight of medical evidence is that the Applicant has continuing low back pain. Physical examination by Dr Wallace, Professor Sambrook and Dr McGill demonstrates restriction of spinal movement similar to 2003 when a 10 per cent permanent impairment was granted. The doctors agree the radiology demonstrates lumbar spinal degeneration (except Dr Maxwell). Opinions are divided concerning the significance of the radiology changes.
48. The Applicant submitted the evidence did not provide any rational basis for determining that there had been some cessation of the aggravation between 2003 and 2010.
49. We are persuaded that the Applicant continues to suffer chronic lower back pain aggravated by the incident of 22 December 1998.
50. Accordingly, we set aside the decision under review and, in substitution, decide that the Respondent is liable to pay compensation to the Applicant pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 from 25 July 2007 to date and continuing.
    

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President, Mr Dean Letcher QC, Senior Member and Dr M E C Thorpe, Member.

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

Associate

Dates of Hearing 23, 24 November and 1 July 2010

Date of Decision 4 February 2011

Counsel for the Applicant Mr L Grey

Solicitor for the Applicant Carroll & O’Dea Lawyers

Counsel for the Respondent Mr G Johnson

Solicitor for the Respondent Australian Government Solicitor