Trevethan and Australian Postal Corporation [1990] AATA 832 (20 December 1990)

Last Updated: 12 June 2008

ADMINISTRATIVE APPEALS TRIBUNAL

DECISION AND REASONS FOR DECISION

COMPENSATION - Postal Assistant - back injury - kick starting a motor bike in 1984 - injury resolved by October 1989 - employee no longer incapacitated for work.

Commonwealth Employees' Rehabilitation and Compensation Act 1988 - Section 124
Compensation (Commonwealth Government Employees) Act 1971 - Sections 27 and 29

Re F.T. Willis and Australian Telecommunications Commission and Commonwealth of Australia (No 2) (1990) 19 ALD 677

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N89/1196
GENERAL ADMINISTRATIVE DIVISION )

Re: DENISE JOY TREVETHAN
Applicant

And: AUSTRALIAN POSTAL CORPORATION Respondent

DECISION

AAT Decision No 6538

Tribunal : Senior Member R.N. Watterson

Dr D.J. Howell (Member)

Mr C.J. Stevens (Member)

Date : 20 December 1990

Place : Sydney

Decision : The decision under review is affirmed.

(Sgd) R.N. WATTERSON ........................
Presiding Member

ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N89/1196
GENERAL ADMINISTRATIVE DIVISION )

Re: DENISE JOY TREVETHAN

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

REASONS FOR DECISION

20 December 1990 Senior Member R.N. Watterson
Dr D.J. Howell (Member)
Mr C.J. Stevens (Member)

1. This is an application by Denise Joy Trevethan ("the Applicant") to review a decision of an officer of the Reconsideration Section of Australia Post Compensation (dated 18 October 1989) that on and from 3 October 1989 the Australian Postal Corporation ("the Respondent") was no longer liable to pay her compensation in respect of back injury (Documents T53, T54 & T56).

2. On 27 March 1985, a Delegate of the Commissioner for Employees' Compensation determined that the Applicant was entitled to be paid compensation, pursuant to the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"), in respect of a personal injury, namely, "sprained muscles of the right subscapular region", arising out of or in the course of her employment by the Commonwealth on 13 November 1984. Additional determinations of liability were made until 14 September 1988 (Document T15) and compensation payments continued to be paid to the Applicant until 3 October 1989.

3. The application for review of the decision here under review is dated 20 November 1989. The Commonwealth Employees Rehabilitation and Compensation Act 1988 ("the 1988 Act") came into operation on 1 December 1988, repealing and replacing the 1971 Act. However, following Re F.T. Willis and Australian Telecommunications Corporation (1990) 19 ALD 677, the Applicant's entitlement to compensation upon this review falls to be determined in accordance with the provisions of the 1971 Act.

4. In determining the Applicant's entitlement to compensation on and from 3 October 1989, we have had regard to the documents produced by the Respondent pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents - Exhibit A1) and to other documents tendered at the hearing of this matter (Exhibits A2-A5 and Exhibits R1-R4). At the hearing we heard from the Applicant and, on her behalf, Melvin Robert Trevethan (the Applicant's husband), Brian Anthony Trevethan (the Applicant's son), Ms Margaret Ann White (a former workmate of the Applicant), Dr Mangalore Surya Rai (the Applicant's treating general practitioner), Dr Abraham Isaacs (the Applicant's treating orthopaedic specialist), and Dr William Henry Neild (a general surgeon).

5. On behalf of the Respondent we heard from Ms Sandra Louise Tattersall (an investigator employed by Australian Industrial Investigations), Associate Professor Gordon Kerridge (an orthopaedic surgeon), and Dr David B. Chapman (an orthopaedic surgeon).

6. The Applicant is now thirty-nine years of age. She first joined Australia Post as a contract mail deliverer, operating from Beresfield Post Office, in about 1974. In 1984 the applicant was employed part-time by Australia Post at Beresfield Post Office as an Assistant Grade 1. Her duties included mail sorting and, from time to time, counter work and delivering telegrams.

7. On the afternoon of 13 November 1984 the Applicant was engaged on telegram delivery duty. She was attempting to kick start a step through motor cycle with either her right or left leg. The kick start lever did not fire but jumped back and she felt a sharp ripping pain. At the hearing the Applicant said she had felt this pain in the middle of her back on the right hand side. She pointed to the place on her back where she felt the pain on that day. The place she so indicated was identified by Dr Howell of the Tribunal as a point above the belt line slightly to the right and just below the right scapula. Later, under cross- examination, she said she called the area where she felt her pain in November 1984 her lowback. She also said that the pain she now experienced was a pain travelling down from the point she had earlier indicated in her evidence in chief to the bottom of her back.

8. After she felt the pain she kicked the start lever again. The bike started and she returned on it to Beresfield Post Office. She consulted her general practitioner (Dr Rai) that day. The next day she commenced work but discontinued because of pain. She has not worked since.
9. At the hearing the Applicant said that since 1984 her back pain had got worse and that around April 1986 she began to experience pain in her neck and right shoulder and to get headaches. She said that her main pain was now, and had been since 1984, her back pain.

10. In her evidence in chief the Applicant said that she now could not do heavier domestic tasks like cleaning blinds or shower recesses but she could hang out clothes and do the cooking. She said that since November 1984 she had not made any attempts to find alternative work with Australian Post or any other employer and that she did not think there was any work she could do. When asked whether there was any work which she felt physically capable of doing she said that she could not do anything heavy. She said she could not bend and she could not lift and she could not sit or stand in one spot. However, she agreed that she might be able to do a job that had no bending or lifting and which gave her the freedom to get up and move around and take rest breaks as she needed them.

11. Under cross-examination the Applicant said that she could walk reasonably freely but that she could not bend forward very far. She said she was not able to bend down to clean floors or to kneel down to do so. She said she might be able to put a feather duster over the venetian blinds but was not able to clean them. She said she was able to do some vacuum cleaning. She said she helped her husband with the shopping. She was capable of pushing an empty shopping trolley but her husband mainly pushed the trolley. He unpacked the trolley into the boot of the car but she was capable of unpacking and did unpack some light items.

12. The Respondent called Ms Sandra Louise Tattersall, an investigator employed by Australian Industrial Investigations. Ms Tattersall gave evidence that on 23 January 1990 she carried out surveillance of the Applicant's home. She said she observed the Applicant come to the open front door and carry out certain activities. She said she filmed these activities. The film purporting to show the Applicant engaging in these activities was shown at the hearing and tendered (Exhibit R4). On close inspection the activities shown on the film are reasonably clear but it is not possible to identify the person filmed as the Applicant. The Applicant said she could not identify herself from the film but agreed it was possible that she was the person shown in the film. We accept Ms Tattersall's evidence that the person shown in the film is the Applicant. The film of 23 January 1990 shows the Applicant on all fours on the floor vigorously cleaning the floor and the front door surround. It shows her bending freely. It shows her lifting and cleaning venetian blinds.

13. Ms Tattersall also gave evidence that she had filmed the Applicant on 25 January 1990 at various locations, walking in the street and shopping at a supermarket. The Applicant agreed that the person shown in this film was her. This film (Exhibit R4) shows the Applicant walking briskly and freely along a street. It also shows her packing a number of items into a number of plastic shopping bags from a shopping trolley and then placing these bags into the boot of a car. While carrying out this activity, she is shown to bend freely as she places the shopping bags into the boot.

Medical Evidence
14. Dr Rai is the Applicant's treating general practitioner. The Applicant consulted him after the work incident on 13 November 1984. At the hearing Dr Rai said that at that time the Applicant had complained to him of a backache but he had then diagnosed her not to have low backache pain but to have sprained muscles of the right subscapular region. He said that the complaints she now presented with were not consistent with the complaints she presented with in 1984. He said she started to complain of lower backache, that is lumbar region backache, sometime after November 1984 but he could not recall when. Dr Rai issued various medical certificates in respect of the Applicant's condition commencing on 15 November 1984. Prior to January 1985, each of these certificates refers only to "pain right subscapular region". However, a certificate issued on 7 January 1985 refers to "pain right subscapular and lumbar region" (Document T7).

15. Dr Rai said that he now continued to treat the Applicant for back pain, shoulder pain, neck pain and headaches and had, since 1984, referred her for physiotherapy treatment and for various specialist advice and treatment. In his opinion her condition had deteriorated since 1984 and she was not now fit to return to work as a mail sorter.

16. Dr W.H. Neild is a general surgeon. He examined the Applicant on 23 February 1990 and provided a report of that same date (Exhibit A2). He records that the Applicant's pain "occurs principally in the lower lumbar region, and is centred on the lumbo-sacral area". Dr Neild considered a CT scan which he notes "revealed degenerative changes in the facet joints of L5/S1, but there was no disc herniation in the lumbar region". He also records an x-ray of the Applicant's cervical spine which he notes revealed a congenital fusion of C4/5 with disc degeneration at C5/6. Dr Neild records that physical examination disclosed:

"... tenderness in the lower lumbar region, which was most marked at the lumbo-sacral junction, particularly over the right facet joint, at the level L5/S1. There was also left para-spinal tenderness as well.

She had gross loss of lumbar spinal movement, with only a few degrees of hyperextension, very little right and left lateral flexion, and forward flexion was to the knees only.

Straight leg raising signs were both positive at 30 degrees. The ankle jerks and knee jerks were present and equal. There was no wasting of either thigh, and she found it impossible to sit up from the lying position.

Examination of her thoracic region disclosed a mild kyphosis and a little para-spinal tenderness, and there was a little low grade tenderness over the right nuchal muscle. There was little in the way of tenderness elsewhere.

There was a little tenderness in the right supra-spinatus fossa, and gross loss of cervical spinal movement."

Dr Neild concluded his report as follows:

"This patient's low back pain was apparently consequent upon aggravation of pre-existing degenerative changes in her lumbar spine. These were quite serious, although apparently restricted. They did involve the facet joints at the level L5/S1. No improvement has taken place since, and she has not worked since.

As it is now over 5 years since her accident, and she claims that no improvement has taken place, the chances are that no improvement will.

Her neck and inter-scapular pain can hardly be blamed on her accident, as these did not occur until March 1986, nearly 18 months after her accident.

I would assess the loss of function of her low back region at 20% of the body as a whole."

17. At the hearing Dr Neild said that the Applicant had a degenerative osteo-arthritic change in the facet joint L5/S1 which predated the work incident of 1984. In his view this condition was symptomless until the work incident of November 1984. In his view this incident triggered the symptoms which the Applicant now has. Dr Neild said that the history which he had procured from the Applicant, of pain on the day of the work incident in November 1984, was one of pain in the lumbo-sacral area. He agreed that this history had led him to his conclusion that what she had suffered was an aggravation of degenerative changes in her lumbo-sacral spine, and that this history was different to one of pain in an area above the belt line to the right of the midline below the scapula. He added that if there were to be a lumbo-sacral aggravation of the lower lumbar degenerative condition, then he would have expected the pain experienced by the Applicant at work in November 1984 to have been located near the lumbo-sacral junction at L5/S1. He added, however, that it was possible for pain to be experienced higher up from a secondary muscular spasm. As to the Applicant's fitness for work, Dr Neild said:

"Well I do not see how you could employ this person again. If you look at the symptoms that are caused, it is very hard to think of anything that she could do for any protracted period. She cannot sit for long, she cannot stand for long; bend, lift anything heavy; I cannot think of any sort of occupation that she could undertake." (Transcript page 61)

18. Dr Woolard is a specialist in rehabilitation medicine. He examined the Applicant on 8 March 1990 and provided a report of that same date (Exhibit A4). Based on a history given by the Applicant, his examination and consideration of the radiological findings, Dr Woolard concludes that the Applicant sustained a soft tissue, musculo-ligamentous injury to her lower lumbar spine in the incident at work on 13 November 1984 with associated facet joint dysfunction most likely representing some degree of aggravation of degenerative changes at the facet joints lumbo-sacral level. He further concludes that there is evidence of a moderate degree of physical impairment with some indications of anxiety state contributing some degree of psychological impairment.

19. Dr Abraham Isaacs is an orthopaedic surgeon. He has treated the Applicant since January 1985. His most recent report, dated 14 March 1990, is a report of his examination of the Applicant of the same date (Exhibit A3).

20. The Applicant was first seen at Dr Isaacs' surgery by a locum, Dr Hyde Page. In his report of that examination (dated 26 November 1984 - Document T10) Dr Hyde Page notes that the Applicant "has acute low back pain". In his report of 21 January 1985 (Document T11) Dr Isaacs notes that on examination on that date the Applicant gave a history of pain in the lower back as well as the mid lumbar region. Dr Isaacs obtained a CT scan of the Applicant's lumbar spine (24 January 1985). This showed degenerative changes at the facet joints of L5/S1 but revealed no other abnormality (Report of 6 February 1985 - Document T14). A discogram of levels L3-4, L4-5 and L5/S1 (dated 2 April 1985 - Document T16) showed no signs of disc degeneration or disc prolapse.

21. In a report of 27 August 1987 (Document T29) Dr Isaacs records the patient's complaint of pain in the back of the neck, between the shoulder blades and in the lower back; notes that on examination all movements of the cervical spine were still very restricted to about 3/4 the normal range and advances the opinion that the Applicant was then still suffering from an aggravation of the cervical spondylosis and also soft tissue strain to the cervical spine as well as soft tissue injury to the lumbar and thoracic spines.

22. In a report of 21 April 1988 (Document T35) Dr Isaacs notes that his first examination of the Applicant on 21 January 1985 revealed that at that time she was suffering from lower lumbar instability as well as soft tissue injury to the cervical spine. He expresses the view that as of April 1988 the Applicant suffers from soft tissue injury to the cervical, thoracic and lumbar spines. Dr Isaccs reiterated the view that the Applicant suffered from soft tissue injury to the cervical, thoracic and lumbar spine in reports dated 3 May 1989 (Document T43) and 5 June 1989 (Document T47). In his latest report of 14 March 1990, Dr Isaacs notes that examination revealed that all movements of the cervical spine were limited at extremes, and expresses the view that the Applicant's present disabilities are directly related to the incident on 13 November 1984 and that she would not be able to take up any job at the moment.

23. At the hearing Dr Isaacs expressed the view that the degeneration of the facet joints L5/S1 revealed by the x-rays of January 1985 could be a factor in the Applicant's lower back condition and that the work incident of November 1984 could have triggered symptoms in that area which did not exist before.

24. Under cross-examination Dr Isaacs agreed that the view which he had expressed in all his written reports was that the Applicant suffered from a soft tissue injury. Dr Isaacs agreed that normally he expected a soft tissue injury to resolve with time and that in this respect the Applicant's history was exceptional. Dr Isaacs said that over the period 1984 to date he had conducted very little clinical examination of the Applicant. This was because of his view that as a soft tissue injury case, rehabilitative treatment was the best course. He had recommended such treatment for the Applicant. He also agreed that there were very little neurological signs to verify the Applicant's condition and that in arriving at his diagnosis he was totally depending on what the Applicant was saying. Dr Isaacs also agreed with Dr Neild that the significant time gap between the work incident and the onset of neck pain ruled out any connection between them.

25. Associate Professor Kerridge is an orthopaedic surgeon. He examined the Applicant on 29 March 1990 and provided a report of that same date (Exhibit R1). His report records the following opinion:

"On examination x-rays, CT examination and discograms are all within normal limits. She stands straight. On being asked to bend she bows her head but nothing else. Straight leg raising was 70 degrees on both sides. Knee jerks and ankle jerks are present. Sensation appears normal but on asked to dorsiflex her feet, her feet promptly flex instead. This was not a failure of communication because I kept repeating the request and explained exactly what I wanted her to do and the same thing applied. There was tenderness of her spine.

There is no way, I believe, that her symptoms can be explained on an organic basis. All tests for organic disease, as far as I can see, have proved negative. I do not feel that there is any organic orthopaedic disease that I can put my finger on and I think she should be seen by a psychiatrist."

26. At the hearing Dr Kerridge said that in his view the Applicant had suffered a sprained muscle at work on 13 November 1984, a condition he would had expected to have resolved in a matter of weeks. As to the Applicant's underlying arthritic condition (degenerative changes in her lumbar spine) revealed by the x-rays, Dr Kerridge expressed the view that such a condition was not of itself disabling and could not be made pathologically worse by the work incident. He agreed that a minor injury like that suffered by the Applicant could trigger symptoms in such a condition but expressed the view that such symptoms would amount to no more than an annoyance. He was emphatic that the symptoms of which the Applicant now complained were unlikely to have resulted from an aggravation of that underlying condition in her lower spine.

27. Dr David Chapman is an orthopaedic surgeon. He examined the Applicant on 15 June 1987 (Report - Document T26), 21 September 1989 (Report - Document T52), and again on 20 March 1990 (Report - Exhibit R2). Having regard to his clinical examinations and the results of the radiological investigations, Dr Chapman expresses the view in these reports that the Applicant's symptoms are not organically based, that there is no sign of physical impairment and that she is capable of work. His reports contain the following observations relating to the Applicant's capacity to bend:

"She said that she was unable to bend but I noted that she moved quite normally whilst undressing and also after dressing at the end of the examination."

(Report - Document T26)

"She would not bend when asked. She got onto the examination couch without assistance."

(Report - Document T52)

"She declined to bend when asked but moved quite normally when getting on and off the examination couch."

(Exhibit R2)

28. At the hearing Dr Chapman said that when he wrote his reports he was not aware that the Applicant had degenerative changes in her lumbar spine which pre-dated the work incident of November 1984. He said this information did not alter the views in his reports. Dr Chapman agreed that it was possible that the work incident may have caused pre-existing degenerative changes in the Applicant's lumbar spine to become symptomatic.

Conclusion
29. Dr Neild, a general surgeon who gave evidence on behalf of the Applicant, was of the opinion that the neck and inter-scapular pain which the Applicant now experiences is not related to the work incident in November 1984. Dr Isaacs, the Applicant's treating orthapaedic specialist, agreed with Dr Neild that the significant time gap between the work incident in November 1984 and the onset of the Applicant's neck pain early in 1986 ruled out any connection between them.

30. We are satisfied therefore that the Applicant's neck and inter-scapular pain cannot be said to be connected with her employment.

31. The medical evidence differs on whether there remains a connection between the Applicant's back pain and the work incident of November 1984.

32. The evidence of Dr Rai, the Applicant's treating general practitioner, is that he diagnosed the Applicant's condition shortly after the work incident in November 1984 to be sprained muscles of the right sub-scapular region.

33. Dr Isaacs, the Applicant's treating orthopaedic specialist, expressed the view in various reports between 1985 and 1990 that the Applicant suffered from soft tissue injury resulting from the work incident in November. He was of the view that this condition continued to substantially restrict her movements and to totally incapacitate her for work. However, at the hearing Dr Isaacs volunteered that he had conducted very little clinical examination of the Applicant over the period he had treated her. He also provided an additional diagnosis to that contained in his written reports, namely that the degeneration of the facet joints L5/S1 contributed to the Applicant's lower back condition and that the work incident of November 1984 could have triggered symptoms in that area. Dr Isaacs agreed that there were very few neurological signs pointing to the Applicant's condition and that he was dependent on the Applicant's reports of her symptoms in arriving at his diagnosis of her condition.

34. Dr Neild's view is that the work incident of November 1984 triggered symptoms of back pain in the Applicant. In his view those symptoms which prevented her from, amongst other things, bending or lifting anything heavy, continued to render her incapable of undertaking any sort of occupation.

35. Dr Neild's opinion, that the work incident of November 1985, triggered symptoms arising from pre-existing degenerative changes in the facet joints at L5/S1 is heavily dependent on the history which the Applicant gave him that she felt pain in the lumbo-sacral area in November 1984. At the hearing the Applicant indicated in her evidence in chief that the pain felt in the work incident of November 1984 was at a point above the belt line to the right of the midline (subscapular). Her general practitioner diagnosed her condition at the time to be "sprained muscles of the right subscapular region".

36. The Applicant's own indication at the hearing in the evidence in chief of the site of her pain on the day of the work incident in November 1984 and the diagnosis of her general practitioner shortly thereafter leads us to conclude that the Applicant suffered sprained muscles of the right subscapular region in November 1984. For this reason we can place little weight on Dr Neild's diagnosis of the Applicant's condition.

37. Dr Isaacs' opinion, expressed at the hearing, was that the work incident of November 1984 could have triggered symptoms in the Applicant's pre-existing degenerative condition at L5/S1. It was given as an after thought rather than as a considered opinion. Certainly he did not elaborate upon this diagnosis at the hearing.

38. Dr Isaacs' principal diagnosis of continuing tissue injury (as contained in his various reports) must be heavily discounted having regard to his oral evidence, particularly his evidence that in fact he had conducted very little clinical examination of the Applicant over the years.

39. Furthermore, the views of Dr Isaacs and Dr Neild (and indeed all the Applicant's medical evidence) as to the extent of the physical restrictions to which her condition gave rise and to the extent of her capacity for work in consequence of her condition were influenced by her reports of pain and her indication to them of the restrictions on her movements.

40. The restrictions on her movements recorded by these doctors are in sharp contrast to which we observed on the video film. The video film of the Applicant taken on 23 and 25 January 1990 which we carefully considered demonstrates that the Applicant has a much greater range of movement in her back than she has reported to her doctors.

41. These matters have led us to heavily discount the Applicant's medical evidence and to prefer the Respondent's medical evidence, particularly that of Dr Kerridge. Dr Kerridge's evidence is that the Applicant suffered a sprained muscle at work on 13 November 1989, a condition which we find had resolved by 3 October 1989.

42. We also prefer Dr Kerridge's view that the Applicant's underlying degenerative condition was not made pathologically worse by the work incident of November 1984 and that, on the balance of probabilities, the symptoms of which she now complains in her back are unlikely to have resulted from any aggravation of such underlying condition.

43. It should be noted that Dr Kerridge's view is generally supported by that of Dr Chapman.

44. It follows that, on the balance of probabilities, on and from 3 October 1989 the Applicant was not suffering from a condition arising out of or in the course of her employment or a condition to which her employment contributed by way of aggravation and which rendered her incapable of carrying out her former employment.

45. For these reasons the decision under review is affirmed.