Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 185
ADMINISTRATIVE APPEALS TRIBUNAL	)
	)	No 2007/6059
GENERAL ADMINISTRATIVE DIVISION	)	
	Re	EDGELENE TIGHE	
	Applicant
	And	AUSTRALIAN POSTAL CORPORATION	
	Respondent
DECISION
Tribunal	Dr J D Campbell, Member	
Date	18 March 2010
Place	Sydney
Decision	The decision under review is affirmed.	
	...................[sgd]...........................
	Dr J D Campbell
	Member

CATCHWORDS
COMPENSATION – Commonwealth employee – work incident – lower back pain, neck pain and headache – whether injury/condition arose out of or was aggravated by the employee’s employment – whether employer liable to pay compensation – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988, section 14
REASONS FOR DECISION

18 March 2010	Dr J D Campbell, Member 	

1.	Ms Tighe lodged a claim for compensation on 15 August 2007.  In her claim (T14) Ms Tighe, a part-time mail sorter with Australian Postal Corporation (Australia Post) at that time, stated that she experienced lower back pain, headaches and sore eyes when sorting mail on 8 August 2007.  Ms Tighe detailed that she considered that the sorting frame (V-Sort) was incorrectly arranged with shelves being both below her knees and above shoulder level.  Ms Tighe noted she had first reported difficulties to Mr Russell, her supervisor, on 7 August 2007.
2.	Ms Tighe partially completed an incident report on 13 August 2007 (T13) in which she detailed symptoms of lower back pain and headaches and an unspecified injury to her neck.  Such symptoms are detailed as occurring on 7 August 2007, at which time she reported to Mr Russell that she was getting a headache while sorting to a frame.
3.	Ms Tighe visited her general practitioner Dr Bazergy on 9 August 2007.  Dr Bazergy noted in his certificate (T12, p 37) dated 9 August 2007 that the injury occurred on 7 August 2007.  Dr Bazergy considered that Ms Tighe had suffered soft tissue injuries to her lumbar and cervical spine, and that Ms Tighe was unfit for work from 9 August 2007 to 11 August 2007.  In a subsequent review dated 11 August 2007 (T12, p 38), Dr Bazergy considered that Ms Tighe was able to resume suitable duties from 12 August 2007 and her management plan consisted of receiving physiotherapy and medication for pain relief.  Duties involving lifting, repetitive neck movements, bending and overhead work were not considered suitable.  Dr Bazergy completed further reviews on 14 August 2007 (p 39) and 17 August 2008 (p 40) in which he concluded that Ms Tighe was fit to continue with restricted duties.  On 21 August 2007 Dr Doan concluded that Ms Tighe was unfit for work until 24 August 2007 because of right S1 nerve impingement (p 41).  A further review by Dr Bazergy on 4 September 2007 concluded that Ms Tighe was unfit to work until 17 September 2007 (p 43).
4.	On 22 August 2007 an X-ray of the lumbosacral spine and a CT of the lumbosacral spine were reported as showing no bony abnormality detected and no focal disc protrusion nor spinal stenosis demonstrated, respectively (T17, p 52).
5.	On 12 September 2007 Australia Post denied liability in relation to Ms Tighe’s claim of 15 August 2007 (T20).  This decision was affirmed in a reconsideration determination dated 16 October 2007 (T24).
ISSUES
6.	The relevant issues in this matter are:
(a)	What is the nature of the conditions giving rise to Ms Tighe’s complaints of symptoms?
(b)	Did such conditions arise or, if pre-existing, were they aggravated or accelerated by the events in the work place on the morning of 7 August 2007?
(c)	Is Australia Post liable to pay compensation in relation to the claim for Ms Tighe on 15 August 2007?
EVIDENCE
7.	Ms Tighe detailed her educational, life and employment history which included:
•	Born 1972, completed higher school certificate in 1990.
•	Completed an enrolled nursing course in 1992.
•	Employed in Land Titles Office in 1995 for six months, during which she completed some computer courses.
•	Employed as a receptionist at Tranby Aboriginal College in 1995.
•	Worked in Telstra accounts for two years from 1995.
•	Employed by City Rail for three years from 1997.
•	Moved to Queensland for a few years in 2000.
•	Moved back to Sydney and was employed as a bookkeeper in 2003, prior to undertaking a business management course, a funeral marketing activity over eight months and a taxation course.
8.	Ms Tighe stated that she commenced with Australia Post as a part-time night sorter in December 2006.  Ms Tighe stated that her hours of work were 4:00 am to 8:00 am Monday to Friday, and that her duties involved slotting mail on a vertical frame as well as sorting bigger parcels.
9.	Ms Tighe stated that the frame was no good, with the five shelves extending above shoulder height and below the knees.  She stated that she spoke to Craig Russell, her supervisor, about two days before the incident, stating that her back was bad and that she was experiencing pain in the right lower back, with radiation down the right leg.  Ms Tighe stated that this became more severe at about 6:00 am on 7 August 2007.  Ms Tighe also noted that she was experiencing an associated headache and had difficulty in reading.  Ms Tighe stated that she reported her difficulties to her supervisor.
10.	Ms Tighe stated that she went to work on 8 August 2007 before seeing her general practitioner on 9 August 2007.  Ms Tighe stated that she tried to return to work, but had difficulties standing up.  Ms Tighe stated that she resigned from Australia Post in September 2007.  Ms Tighe detailed that in the month preceding the commencement of the hearing she continued to experience pain radiating down (the front of) her right leg to her big toe, together with low back pain and some neck pain and she had noticed that she has a funny walk.
11.	Ms Tighe detailed a history of the following events:
•	car accident in Toowoomba in 2001 resulting in a soft tissue injury to her neck, a third party payout and continuing trouble with her neck for a few years.
•	Train derailment in 2004 causing injury to her left shoulder and ribs.  She did not receive any compensation payments, although she was in hospital for three to four days.
•	Ms Tighe stated that she has good and bad weeks, with the bad weeks associated with pain radiation to the leg, tingling and burning.
12.	In response to questions asked in cross-examination Ms Tighe detailed the following:
•	that she had no memory about consulting her general practitioner with a complaint of neck or back pain in August 2003, January 2004 (multiple pains and low back pain and referral to pain clinic), April 2004 (back pain and left sided musculoskeletal back pain), May 2004 (after train crash problems with pelvis and right leg), June 2004 (back pain and shoulder pain), August 2004 (nightmares and depression, with prescription of pethidine tablets), October 2004 (back pain no change) and December 2004 (referral to pain clinic).
•	Migraines suffered since the age of ten.
Medical Evidence
13.	A CT scan of the lumbar spine and pelvis dated 19 January 2010 (Exhibit A2) is reported as showing mild degenerative changes in the lumbar facet joints and no evidence of nerve impingement.
Dr Endrey-Walder – Consultant General Surgeon
14.	In his medical report dated 28 November 2007 (Exhibit A1) Dr Endrey-Walder noted the clinical history of Ms Tighe and the radiological study of August 2007 of the lumbar spine (no focal disc protrusion, no spinal stenosis, no significant abnormality).  He observed no meaningful movement of the back at examination, a moderate limp, together with para-lumbar muscle spasm and extreme tenderness to percussing the mid and lower lumbar region.  Dr Endrey-Walder concluded that from his clinical impression, “one must presume lumbo-sacral disc protrusion and right-sided sciatica,” despite the absence of radiological findings to support such a diagnosis.
Dr Richards – Consultant Rheumatologist
15.	In his report dated 22 June 2004 (Exhibit R8) Dr Richards detailed Ms Tighe’s complaints of continuing neck pain following the motor vehicle accident in November 2001.  Dr Richards also detailed heavy prescribed analgesic/narcotic use since the accident, as well as referral to a psychiatrist for depression.  Dr Richards noted a full range of passive movement of the neck as opposed to a limited range of movement at examination.  Dr Richards also noted “an exaggerated response to palpation of the soft tissues structures in the neck and shoulder region.”  Dr Richards concluded that Ms Tighe “presents with a significant subjective disability with widespread aches and pains mainly related to neck and paraspinal structures in the presence of normal radiological examination.”  Dr Richards concluded by finding that Ms Tighe’s disability was consistent with a functional rather than an organic problem.”
Dr Grant - Consultant Neurosurgeon
16.	In his report dated 21 April 2004 (Exhibit R9) Dr Grant concluded that Ms Tighe had suffered a soft tissue injury as a result of the motor vehicle accident of November 2001, and that widespread sensory disturbance, which he noted at examination, is indicative of a conversional hysterical response for which he recommended psychiatric evaluation.
Dr Maxwell – Consultant Orthopaedic Surgeon
17.	In his report dated 2 May 2008 (Exhibit R2) Dr Maxwell, after detailing Ms Tighe’s clinical history and his physical examination findings, concluded that he was not convinced that Ms Tighe had sustained any injury during the period of working with Australia Post on the V-Sort frame.  Further, Dr Maxwell noted that the physical examination was “characterised by paradoxical signs which suggest conscious fabrication.”
Dr McGill – Consultant Rheumatologist
18.	In his report dated 28 April 2008 (Exhibit R3) Dr McGill detailed Ms Tighe’s clinical history (no previous low back pain) and his findings at clinical examination.  Dr McGill concluded that:
•	Ms Tighe demonstrated abnormal behaviour during the physical examination, not consistent with a physical injury.
•	Ms Tighe’s imaging studies, including a CT scan of the lumbar spine, have not demonstrated abnormality.
•	He does not believe that any physical disorder is responsible for her current symptoms or behaviour.
•	It was unlikely that her work duties as described would have caused any damage to either her cervical or lumbar spine.
•	Ms Tighe has not suffered an aggravation, exacerbation or acceleration of a pre-existing physical disease.
CONSIDERATION AND FINDINGS
19.	In this matter I have paid particular attention to the history detailed of the events and the medical opinions expressed.  I do observe that Ms Tighe has been less than accurate when detailing particulars of her previous injuries, and the on-going symptomatology that she has complained of as arising from those incidents.  I do note her initial evidence that she did not seek compensation from the train accident in 2004, but clearly exhibit R7 details the medical information concerning both injuries she claimed to have suffered and the symptoms said to be associated with such.  I note that the injuries include injury to neck, back and left and right knees and that symptoms include headaches, pain and restriction of movement of neck and pain and restriction of movement in lower back.
20.	Furthermore, upon review of the medical material before me including the clinical notes of Dr Bazergy, I note there is a significant longitudinal history of pain in various areas, often abdominal and/or pelvic, a history of significant prescribed use of analgesic/narcotic medication and a continued reference to a depressive illness.  Further, I note continual reference by all the specialists involved in this matter, bar Dr Endrey-Walder, to abnormal response by Ms Tighe to elements of her physical examination (Drs Richards, Grant, Maxwell and McGill).
21.	While I note that Ms Tighe has described her version of the incident on 7 August 2007 and that Australia Post has detailed their version, the issue remains as to whether the work events involving the V-Sort frame could give rise to the outcomes as described by Ms Tighe.
22.	In finding as I do, that Ms Tighe is not an accurate historian on all occasions, I conclude that corroborative material is necessary before concluding that material provided by Ms Tighe is of probative value.  This is of particular import where issues of clinical history and clinical symptomatology are of relevance.
23.	I note that Ms Tighe in her case places great weight on the fact that a pre-employment medical conducted on 4 December 2006 concluded that she met all medical standards.  Clearly the answers given by her and detailed at T3 pages 9 and 10 are inconsistent with the clinical history as recorded in the composite of all the medical evidence before me.  I refer to the absence of any reference to the injuries arising from the rail derailment, migraines, the continuance of symptoms arising from the motor vehicle accident in 2001, depression, anxiety and panic attacks, back pain, and the continuing complaints of pain requiring significant analgesic/narcotics and referral to a pain clinic.  In such circumstances the outcome as nominated remains only a reflection on what Ms Tighe did detail.
24.	In addressing the issue of what conditions actually exist as a consequence of the events of 7 August 2007, I note the opinion of Dr Endrey-Walder that, despite the absence of any significant radiological findings on CT scan lumbar spine examination on one occasion to support the presence of nerve impingement or canal stenosis, he would clinically diagnose lumbar disc protrusion.  I note such an opinion is supported by Dr Huckstepp in his brief report of 29 August 2007 (T19).  I do note, however, that Dr Huckstepp does modify his diagnosis by stating that he had not seen the CT scan of the lumbar spine or the report, and that his diagnosis rates no higher than a possibility.
25.	I do not accept such a diagnosis.  In so doing, I note the absence of any corroborative radiological findings, and the opinions of Drs Maxwell and McGill as expressed in their written opinions and confirmed during oral evidence (Dr McGill).  I observe that both doctors find difficulty with the opinion of Dr Endrey-Walder and, in particular, some of his findings at examination and his interpretation of such.
26.	Further, I find that there is no physical condition that has arisen, been aggravated, exacerbated or accelerated as a consequence of the events complained of in the claim of 15 August 2007.  In so finding I rely upon the opinions of Drs Maxwell and McGill which are specific in defining the non-organic nature of Ms Tighe’s symptomatology.  I also note that the non-organic nature of such symptomatology receives added clinical support from the opinions of Dr Richards and Dr Grant in relation to the motor vehicle accident in 2001, and Ms Tighe’s response some years later.
27.	In such circumstances I conclude that Ms Tighe must fail in her endeavour to gain compensation from the incident detailed in her claim of 15 August 2007.  The reasons for such finding have been detailed in the preceding paragraphs.
28.	In conclusion, I affirm the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

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

Dates of Hearing		27 and 28 January 2010
Date of Decision		18 March 2010
Appearance for the Applicant		Self represented
Appearance for the Respondent	Mr M Gollan of counsel instructed by Mr S Matthews