Isik and Australian Postal Commission [1990] AATA 411 (16 March 1990)

Last Updated: 3 June 2008

DECISION AND REASONS FOR DECISION

COMPENSATION - injury at work - extent of injury

Compensation (Commonwealth Government Employees) Act 1971

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N87/1265
GENERAL ADMINISTRATIVE DIVISION )

AAT Decision No 5776

Re: BELGIN ISIK
Applicant

And: AUSTRALIAN POSTAL COMMISSION
Respondent

DECISION

Tribunal: The Hon. Justice P.J. Moss (Presidential Member)
Dr D.J. Howell (Member)
Mr C.J. Stevens (Member)

Place: Sydney

Date: 16 March 1990

Decision: That the determination under review be affirmed.

...............................
The Hon. Mr Justice P.J. Moss

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N87/1265
GENERAL ADMINISTRATIVE DIVISION )

Re: BELGIN ISIK
Applicant

And: AUSTRALIAN POSTAL COMMISSION
Respondent

REASONS FOR DECISION

16 March 1990
The Hon. Justice P.J. Moss (Presidential Member)
Dr D.J. Howell (Member)
Mr C.J. Stevens (Member)

1. In these proceedings the applicant sought a review of a determination made by a relevant delegate on 17 September 1987.

2. The effect of the determination was, first, that the applicant had sustained personal injury in the course of her employment with the respondent on 21 May 1986 such injury being to the left arm (shoulder) and back; second, that in accordance with the Compensation (Commonwealth Government Employees) Act 1971 the respondent was liable to pay compensation in respect of the said injury; and third, that that liability did not extend beyond 7 January 1987.

3. That portion of the determination which was challenged by the applicant in these proceedings was that which determined that the respondent's liability ceased on and from 8 January 1987. It was submitted on behalf of the applicant that the Tribunal should find on the evidence that the applicant was entitled to be compensated in respect of the said injury up to 5 November 1987 this being the occasion on which Dr Bannister, who had been seeing the applicant, last saw her. On this occasion Dr Bannister certified that the applicant should be confined to light duties. This was put forward as being what was described as the applicant's "strongest" submission. In an alternative submission it was put that the Tribunal should find that the applicant remained unfit for work as a result of the said injury up to about 20 February 1989 (this date refers to the date of Exhibit "2", a report from Dr Mellick, consultant neurologist).

4. In the opinion of the Tribunal the limited nature of the claim contained in the above submissions, merely (but realistically) reflects the weakness of the applicant's claim. However, for the reasons that follow, the Tribunal is of the view that the applicant is not entitled to succeed on either of the bases put forward in the said submissions and that the Tribunal should affirm the decision of the relevant delegate referred to above.

5. So far as the injury sustained on 21 May 1986 is concerned, suffice it to say that in Exhibit "A" (which comprise the T-Documents) there appears a statement made on behalf of the respondent that on that day the applicant carried a box weighing thirteen kilograms approximately forty feet on a level surface. It is this activity or some similar activity which the applicant claims caused the onset of the injury of which she now complains.

6. Within a day or so after the relevant incident, the applicant sought medical treatment from her local practitioner Dr Ozme, whose initial diagnosis (26 May 1986) was of pain in the left arm (shoulder) and back pain. Later reports simply referred to "low back pain".

7. In about the middle of July 1986 Dr Ozme sent the applicant to see Dr John Bannister, orthopaedic surgeon. A number of his reports and his certificates are in evidence. He last saw the applicant in November 1987. So far as his reports are concerned the Tribunal finds that they provide little assistance in ascertaining the basis on which Dr Bannister came to the diagnosis in the said reports. His conclusion was that the applicant was suffering from "disc pathology".

8. Apart from medical reports by Dr Ozme, the only other medical report tendered on behalf of the applicant was that of Dr Conrad (Exhibit "D"). This report is as unhelpful as are the reports of Dr Bannister. Dr Conrad saw the applicant once only some three years after the date of the alleged injury. There is no indication that he ever saw any reports from Dr Bannister, or from Dr Tomlinson who had seen her more than two years previously on behalf of the respondent. The report records the briefest of histories, notes symptoms which are inconsistent with those noted by Dr Bannister and Dr Tomlinson, not to mention Drs Mellick and Ehrlich (each of whom saw her on behalf of the respondent), then proceeds to opine that "a prolapsed lumbar inter-vertebral disc cannot be ruled out". In the circumstances of this case the Tribunal finds that it can place no reliance on the report of Dr Conrad.

9. On 8 January 1987, the applicant was seen by the late Dr Tomlinson, on behalf of the respondent. That report was tendered by consent as part of the T-Documents (Exhibit "A"). In that report Dr Tomlinson noted that the symptoms complained of were, in effect, pain in the left hip and thigh and left foot; no complaint of pain was made in respect of the right leg and there was some complaint of neck pain. These symptoms are significantly inconsistent with symptoms given to the other medical practitioners who have seen the applicant. Dr Tomlinson found that the applicant was able to carry out all tests that he put her through in a satisfactory manner and he concluded that there was no clinical evidence to support any relevant diagnosis.

10. Notwithstanding the content of Dr Tomlinson's report, within a month from that date Dr Bannister is still writing reports to the effect that the applicant was suffering from "very severe pain" (with no location stated) and "movements still impaired" (no specification of what movements were referred to) while in November 1987 Dr Bannister reported low back pain radiating down the right thigh to the knee.

11. In Dr Mellick's report of 20 February 1989 (Exhibit "2") the inconsistencies are even more glaring. According to that report the applicant claimed pain in the area of the left buttock and towards the region of the left hip. She claimed the pain radiated down the left limb to the upper thigh and down to the knee. She said that she never experienced pain below that site. As well she told Dr Mellick that "there was never any experience of tingling numbness or pins and needles". She also told Dr Mellick that she was not troubled by any symptoms in the right leg or elsewhere.

12. When the Tribunal turns to the results of the straight leg raising tests on the applicant as those results appear from the various medical reports the pattern of those results is seen to be quite extraordinary.

13. The conclusion of Dr Mellick was that the symptoms described by the applicant included none "which suggest them to arise as a result of a spinal lesion and, in particular, there were no features suggesting a prolapsed disc ...".

14. When the applicant gave evidence before the Tribunal, she said, in effect, that whenever she bent her back she got pain in the low back which radiated down both legs and at the same time she had a sensation of pins and needles in both feet. The Tribunal found her evidence most unconvincing. In particular, in addition to her evidence about her present complaints, the Tribunal found her evidence as to the time of the first onset of the symptoms to be unconvincing and her evidence that she could not, without pain, open the drawer of a typical filing cabinet even more so.

15. No attempt was made in the submissions of counsel on behalf of the applicant to reconcile the various contradictions in her evidence and in her complaints to the various medical practitioners who have seen her. In the opinion of the Tribunal these inconsistencies cannot in fact be reconciled or explained away. The result is that the Tribunal is unable to place any reliance upon the applicant's evidence as to her present complaints and is unable to place any reliance on the reports of the two medical practitioners whose reports were tendered on her behalf.

16. None of the medical practitioners were called to give viva voce evidence. The report of Dr Tomlinson was not objected to, and Dr Mellick was not required for cross examination. In all the circumstances the Tribunal feels confident that reliance may be placed on the reports just mentioned.

17. For these reasons it is the opinion of the Tribunal that the determination under review should be affirmed.