Barnes and Comcare - [2000] AATA 785

DECISION AND REASONS FOR DECISION [2000] AATA 785

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/156

GENERAL ADMINISTRATIVE DIVISION          )
           Re      CHRISTOPHER ROBIN BARNES
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr B.G. Gibbs, AM, Senior Member

Date6 September 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

.....…(Sgd) B. G. Gibbs............
Senior Member
CATCHWORDS
COMPENSATION – whether applicant sustained injury in September 1971 while employed with Department of Defence – whether any effects – date of cease effects – whether any entitlement to compensation – whether incapacitated for employment – whether effects contributed to incapacity for employment – whether medical treatment required since date of cease effects – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 16
Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

6 September 2000 Mr B. G. Gibbs, AM, Senior Member

Introduction

This is an application by Christopher Robin Barnes for review of a reviewable decision made on 24 December 1997 by a delegate of the Military Compensation and Rehabilitation Service, Department of Defence ("MCRS").
The reviewable decision is expressed in the following terms:
"I refer to your request for reconsideration on 25 March 1997 of a determination issued on 28 February 1997 regarding the rate of incapacity payments to be made to Mr Barnes. I also refer to correspondence forwarded to you on 14 October 1997, 7 November 1997 and 17 November 1997 concerning your client's LOWER BACK, SCIATIC NEURITIS LEFT FOOT AND ANXIETY condition.
After a complete review of your client's compensation file I have formed the view that your client does not have a valid compensation claim for the above conditions and I hereby determine pursuant to Section 62 (1) of the above Act, that there is insufficient evidence before me to justify the making of incapacity payments or payment of medical expenses to your client. In making my decision I have had regard to the representations contained in your letters including your letter dated 18 December 1997.
I have examined all the evidence available to me and I have taken note of the reasons put forward in your request for reconsideration of 25 March 1997, namely the amounts calculated as gross weekly payments are incorrect as they do not accord with salary details as notified by the National Australia Bank, the information provided by the National Australia Bank is both incorrect and incomplete and the reduction in entitlements as a result of the deletion of the mobility allowance from 1 July 1994 is incorrect. I have also taken note of all the evidence you have provided since your initial request for reconsideration.
On 14 October 1997 we advised that on reviewing your client's file we had come to the conclusion that the Department of Defence was not liable for your client's lower back condition nor the subsequent anxiety disorder and sought reasons why the claims should not be revoked. Copies of service medical documents on your client indicated that medical treatment was received for a shoulder injury, not for any back injury from the incident on 29 September 1971. We further advised that at no time did he advise this office that he had suffered a back injury when he fell off a stool on 1 July 1971 whilst in the employ of the National Australia Bank for which compensation was paid.
On 7 November 1997 we provided you with additional medical reports and made the offer for you to see our records. In this letter we raised concerns about significant variations between Mr Barnes' reports of the incidents to which he attributes his present condition. We also stated our position with regard to all your client's conditions and invited your response. On 17 November 1997, as a result of your representation to us on 14 November 1997, we agreed to continue to make incapacity payments to your client until 5 December 1997, although it should not be construed as an acceptance of liability.
Your letter of 18 December 1997 provides no effective response to the concerns raised by the Department or evidence to show that we had made a determination accepting liability for your client's back condition. As a result there is insufficient evidence on file to convince me that your client has a valid compensation claim and that we a re liable to continue making incapacity payments or paying medical expenses.
To summarise I have taken the above decisions for the following reasons:
* there is no report of injury in which the back is mentioned from an incident which occurred on 29 September 1971.
* there is no record of a determination accepting liability for a back condition.
* Mr Barnes had an accepted compensation claim for a back condition with the National Australia Bank relating to an incident which occurred in July 1971, about 3 months prior to the incident in the Army Reserve.
* the National Australia Bank rejected a claim for payment of further expenses for Mr Barnes back condition in August 1983 based on medical assessments that his ongoing problems were not related to the incident in 1971.
* in September 1989 Mr Barnes approached the National Australia Bank to see if the bank would meet the cost of surgery on his back. He was advised that he would need to be medically assessed and arrangements were made but Mr Barnes did not attend the appointment. Within two months he had approached Defence about his back condition.
* Mr Barnes never disclosed his back injury whilst in the National Australia Bank to the Department or to any doctors who have examined him in relation to his claims with the Department.
* there are significant variations between the contemporaneous reports of both the incidents to which Mr Barnes attributes his injuries and the injuries themselves and his history as later given to his doctors.
* Mr Barnes submitted a claim for stress and anxiety with the National Australia Bank in July and October 1992 whilst still employed with the bank."

The reference to "the above Act" is a reference to the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The National Australia Bank is hereinafter referred to as "the Bank".
Representation

At the hearing before this Tribunal Mr Barnes was represented by Mr Fehring, of Counsel. Mr McInnis, of Counsel, appeared for the respondent on the first day of the hearing. Thereafter, Ms McMahon, of Counsel, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. A substantial amount of material, to some of which it shall be necessary to refer, was also tendered and received in evidence during the hearing.
Witnesses
Evidence was given before the Tribunal by:

Mr Barnes (the applicant)
Mrs Marie Anna Barnes
Dr B. M. Kinloch
Dr A. J. Gisjbers
Professor G. D. Burrows
Dr J. G. van Bavel
Dr N. H. M. Strauss
Dr M. J. Shannon

Contentions – applicant

A number of facts and contentions relevant to this matter were identified on behalf of Mr Barnes in a statement dated 11 August 1999, as follows:
"1.       The applicant seeks to review the decision made by J.B. O'Shaanessey [sic], Delegate, made 24 December 1997 affirming the determination made on 28 February 1997 which was to the effect that incapacity payments were to cease.
2.        The applicant seeks from these proceedings to have the reviewable decision set aside and an order that –
(1)        A declaration and/or order that the Respondent is liable to pay compensation pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988.
(2) The Applicant is entitled to weekly payments of compensation pursuant to s.19 of the Act for incapacity from 5 December 1997.
(3)        Medical and like expenses pursuant to s.16.
FACTS
3.        The Applicant was employed by the National Australia Bank between 1968 and 17 December 1992.
4.        The Applicant joined the Australia Army Reserves in August 1969 and served thereafter with the Reserves from time to time as required.
5.        The Applicant was carrying out training at Puckapunyal during September 1971. On the morning of 29 September 1971 the Applicant was required to use live ammunition on the rifle shooting range and suffered injury to his right shoulder and neck when the gun he was using exploded ("the explosion") (see T64).
6.        The Applicant was in bed after the explosion. He went to the shower block as his shoulder was very painful and he intended to have a hot shower. The Applicant slipped and fell in the shower block early on 30 September 1971 ("the fall"). The Applicant suffered injury as a result of this fall.
7.        Following the incidents the Applicant saw medical practitioners and had x-rays taken of his shoulder. The Applicant continued to have difficulties following these incidents particularly with his shoulder, neck and initially his cervical spine. He also suffered from headaches. The Applicant was referred to specialist medical advisors including Mr Max Wearne and further x-rays were taken. He was also seen by Mr Bruce Whitehead, physiotherapist, and the accounts for these treatments were paid for by the Defendant.
8.        The Applicant has had extensive medical treatment since the incidents and details of payments for such treatments are setout in T71.
9.        The Applicant suffered further injury while he as an in-patient at Bethesda Hospital on 14 September 1990. The Applicant was travelling in a lift at the hospital which suddenly dropped six feet which caused his to fall onto his buttocks and exacerbate his back condition. (see T67)
10.      The Applicant developed depression and anxiety reaction as a result of the injuries he has suffered since 1971. The depression and anxiety reaction are a sequelae to the physical injuries suffered as a result of the two incidents. The developments of the Applicant's psychological condition was first noted in the medical report of Dr Graeme Burrows dated March 1992 (see T37). A Determination was made on 25 March 1992 to accept the payment of compensation for an anxiety disorder (see T40).
11.      The Respondent determined on 25 May 1993 to accept that the Applicant suffered sciatic neuritis of the left foot as a sequelae to the injuries suffered in 1971. (see T43)
12. The Applicant received payments from the Respondent pursuant to s.19 of the Act up to the date of the Determination made by the Respondent (see T48).
13.      The Applicant has at all material times since the 28 February 1997 been incapacitated for employment.
CONTENTIONS
A.        The Applicant suffered an injury arising out of or in the course of his employment on –
(1)        29th September 1971 when his gun exploded;
(2)        30th September 1971 when he fell in the shower.
B.        The injuries suffered by the Applicant from the two incidents involved injury to his right shoulder, neck, cervical spine and lumbar spine. The Applicant also suffered various sequelae from the injuries including nerve root irritation of the cervical spine, sciatic neuritis affecting the left foot and anxiety reaction and depression.
C.        As a result of the injuries suffered by the Applicant he has been incapacitated for employment since his resignation with the National Australia Bank on 17 December 1992. The Applicant has remained incapacitated at all times since 28 February 1997 for employment of any kind whatsoever.
D. The Applicant continues to attend upon doctors for treatment as a result of the injuries and is entitled to medical and like expenses pursuant to s.16 of the Act for the treatment received for all of the injuries arising out of or in the course of his employment."

Contentions – Respondent

In a statement dated 11 April 2000 the respondent also set out a number of contentions, as follows:
"1.The Applicant has not suffered a lumbar spine injury during the course of his employment with the Respondent.
2.The Applicant has not suffered from any compensable condition at least from 28 February 1997.
3.Alternatively, the Applicant's employment with the Respondent ceased to contribute to any claimed condition on and from at least 28 February 1997.
4.Further and in the alternative the Applicant has not been incapacitated and/or requiring reasonable medical expenses in relation to any claimed condition since at least 28 February 1997.
5.In relation to the claimed conditions of lumbar spine and anxiety the Applicant had recovered compensation from the State Workers Compensation for those conditions from NAB and accordingly compensation is not payable pursuant to s.118 of the Act for any claimed incapacity and/or medical expenses in relation to both anxiety and lower back conditions.
6.Further and in the alternative any claimed depression and anxiety conditions of the applicant are not a sequelae to physical injuries suffered during the course of employment with the Respondent.
7.Further and in the alternative any claimed depression and anxiety do not cause the Applicant to be incapacitated and/or require medical treatment.
8.Further and in the alternative any claimed physical condition to right shoulder, neck, cervical spine and lumbar spine do not cause the Applicant to be incapacitated and/or require medical treatment.
9.Accordingly the Applicant is not entitled to compensation under any provision of the Act for any conditions alleged to have arisen out of the course of his employment with the Respondent."

Issues

As agreed between the parties, there are a number of issues in these proceedings which require determination by the Tribunal. They are as follows:
(a)      What injury, if any, did Mr Barnes suffer in September 1971, in his employment with the Department of Defence;
(b)      If Mr Barnes did suffer an injury, does he continue to suffer any effects as a result of the injury suffered in September 1971 with the Department of Defence;
(c)       If Mr Barnes no longer suffers any effects as a result of an injury suffered in September 1971 with the Department of Defence, when did the effects cease;
(d)      If Mr Barnes continues to suffer effects as a result of an injury suffered in September 1971 with the Department of Defence, what entitlements, if any, does he have to compensation;
(e)      Is Mr Barnes incapacitated for employment;
(f)       If he is incapacitated for employment, do the effects of the injury suffered in September 1971 with the Department of Defence contribute to that incapacity on and from 28 February 1997, being the "cease effects" date;
(g)      Does Mr Barnes require any medical treatment in respect of the September 1971 injury with the Department of Defence since 28 February 1997, being the "cease effects" date.
The Law
The word "injury" is defined in section 4(1) of the Act, as follows:
" 'injury' means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

"Disease" is also defined in s.4(1):

" 'disease' means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth;"

The word "ailment" is defined as follows:

" 'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)."

The words "aggravation" and "ailment" are defined in section 4(1) of the Act as follows:
" 'aggravation' includes acceleration or recurrence"
" 'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)"
Section 14(1) of the Act provides that the respondent is liable to pay compensation in accordance with the Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In so far as is relevant, section 16 of the Act provides as follows:
"16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment."
In Federal Broom Co PtyLtd v Semlitch (1964) 110 CLR 626, Windeyer J at page 641 said in respect of the meaning of the term "the employment":
"When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
In Treloar v Australian Telecommunications Commission(1990) 97 ALR 321 the Full Court of the Federal Court said at page 328:
"In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to 'a state of affairs to which he would otherwise not have been exposed' or to 'some characteristic of or condition in which the work was to be performed' and that such exposure was in truth a 'contributing' factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a 'contribution'."

The Full Court then went on to consider what is meant by the requirement that a contribution be material:

"Consistently with what was said by Windeyer J, 'contribution' does not require that the contributing factor be a causa sine qua non; the 'but for' test is not appropriate nor is the causa causans or 'real effective cause' or 'proximate cause' formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not 'contribute'.
The use of the word 'material' in conjunction with the words 'contributing factor' in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."

Evidence

The history in respect of this matter dates back to September 1971.
On 30 September 1971 Mr Barnes made a report of injury (T8), that on 29 September 1971, while serving in the Australian Army Reserve, he was firing an SLR rifle which "nicked" his right shoulder on recoil. The rifle gas plug was on setting number two.
Mr Barnes was diagnosed with a fractured right shoulder blade and on 6 October 1971 he attended Dr Bignell with a fracture of the scapula. He was treated with rest, a sling and referred for x-ray (T9).
On 7 October 1971 an x-ray report (T10) showed no bone injury or abnormality. On the same date Mr Barnes again attended Dr Bignell who diagnosed shoulder injury and treated with rest.
It is noted that in a report dated 13 March 1973 (T24), Dr Bignell reported that he saw Mr Barnes regarding a right shoulder injury. He further reported that he gave Mr Barnes three days off work and that he had arranged for an x-ray.
On 26 October 1971 Mr Barnes signed a report of injury, in which he stated that he had suffered a fractured right shoulder blade, after firing 60 rounds from an SLR:
"I noted that my right shoulder was sore and it progressively became worse. The gas regulator was found to have been set on two. I could not raise my right arm approximately one (1) hour after the incident." (T12)
On the same day, 26 October 1971, Mr Barnes made a claim for compensation in respect of a "Broken right shoulder blade" sustained on 29 September 1971, stating that the "rifle jarred shoulder". Mr Barnes attended the Regimental Aid Post at 0800 on 30 September 1971, and was absent from work from 4 October 1971 until 8 October 1971 (T11).
On 29 November 1971, Lieutenant G. F. Armfield signed a witness statement (T13), in which he said:
"1.No. 351960 Gunner C. R. BARNES was at Puckapunyal from 19th Sept. '71 to 3rd Oct. '71 attending a C.M.F. Camp of continuous training, 4/71 3 Div. Recruit Course. He was posted to 2 Pl. B Coy. 22 R.V.R.
2.As the Comd. Of 2 Pl., I was present when Gr. BARNES participated in a range of practice with the S.L.R. L1. Aq. At a later time during that day, Gr. BARNES complained of an injury to the shoulder. Gr. BARNES was ordered to report to the R.A.P., who confirmed the injury."
In an undated statement (T14), Mr Barnes reported:
"On 29 Sep 71 approximately 1100 hrs, I was firing the SLR L1A1 on the 25m No 7 mini range at PUCKAPUNYAL.
I had fired 60 rounds in rapid bursts and noticed that my right shoulder was sore and very tender to the touch. I did not have full control of my right arm – it was impossible to raise my right arm above shoulder level without great pain.
The gas plug on the SLR L1A1 was set on two (2).
I immediately notified the range conducting officer – Lt G. Armfield, of the injury.
At 0800 hrs on 30 Sep 71, I attended the RAP of 22 RVR, S Block PUCKAPUNYAL – they immediately transported me to 3 Camp Base Hospital, where I was x-rayed, and my arm was placed in a sling."
In December 1971 an investigation report (T15) records that at 1100 on 29 September 1971 Mr Barnes fired a total of 60 rounds from three full magazines in both normal and rapid fire. Upon completion of the firing Mr Barnes noticed a lack of control of his right arm, which over the next hour became progressively worse, until by 1200 hours he could not raise his right arm without incurring considerable pain.
On 16 March 1972 Mr Barnes was seen by Dr M. Wearne, an orthopaedic surgeon (T18). Mr Barnes gave a history at that time of having trouble with his right shoulder in September 1971; that he was at that time in the Army Camp at Puckapunyal; that he slipped over while in the shower, and that he experienced transient pain in the shoulder. He further stated to the doctor that on the following day he fired 75 rounds from an SLR, and that his right shoulder became so painful that he had to cease firing.
Again on 16 March 1972 Mr Barnes informed Dr Wearne that he was experiencing aching in the region of the right scapula, and that his right shoulder seemed to have dropped. He also stated that he had a "clicking" sensation when he moved his right shoulder.
X-rays were taken on 21 March 1972 which revealed no bone or joint abnormality. In the course of his examination Dr Wearne found a full range of movement with no convincing tenderness or muscle weakness. The doctor was uncertain as to the cause of pain and referred Mr Barnes for physiotherapy. On 25 August 1972 Mr Barnes was again reviewed by Dr Wearne. The doctor noted that Mr Barnes symptoms had changed. His pain was now referred to the base of his neck on the right side and right shoulder (T18). He had pain in the occipital area. On examination he had tenderness of the right trapezium, and neck movements, though full, were painful, particularly forward flexion. Right shoulder movements were full and free. X-rays of the cervical spine revealed no significant bone or joint abnormality.
Dr Wearne at this stage diagnosed a nerve root irritation of the cervical spine. On 24 June 1972 Mr Barnes' cervical spine was manipulated under anaesthetic by Dr Wearne. In his report dated 25 August 1972 the doctor stated his conclusion as follows:
"As a result of a fall in September, 1971 this man has developed pain in the neck and right shoulder. Following conservative treatment the condition has improved and he now has a mild disability. It is my impression that further improvement will occur."
On 13 July 1972 liability was admitted for a fracture of the right shoulder sustained on 29 September 1971 (T16).
On 21 July 1972 the Bank wrote to the Department of Defence, advising that Mr Barnes was absent from work on a number of days "due to injuries incurred whilst in CMF Camp" (T17). The days in question were:
  4.10.71
  7.10.71
  8.10.71
  15.11.71
  16.11.71
A further claim for compensation was made by Mr Barnes against the Department of Defence in about November 1972, for right shoulder damage sustained on 29 September 1971. In his claim Mr Barnes stated (T19) that he "Fell over in shower and Rifle Range".
On 21 November 1972 Mr Barnes made a report of injury (T20), in which he stated that at 1100 hours on 29 September 1971 he damaged his right shoulder:
"I fell in the shower on camp at Puckapunyal and had a slight cramp type pain in shoulder. Next day while firing rifle shoulder cracked and locked up condition did not improve."
In or about February 1973 Mr Barnes made a third claim for compensation (T22), in which he claims an injury to his right shoulder and back sustained on 29 September 1971 in the shower:
"I dropped the soap and slipped and fell against a steel pole."
On 29 May 1973 Mr Barnes wrote to the Minister for Defence (T27), in which he stated in part:
"Whilst undergoing C.M.F. Training at Puckapunyal with 2FD Regt. R.A.A. (Annual Camp) during late August and early September 1971, I slipped in the showers injuring my back. The following morning while rifle shooting at the rifle range I received a severe recoil from the rifle I was firing.
That same morning 29.9.71 I reported sick at the unit R.A.P. I was immediately referred to 3 camp hospital, where my right shoulder was X rayed. My right arm was placed in a sling, my shoulder remained painful, frequently clicking and locking, during the remainder of the camp. A.A.F. D11s were raised in respect of the injuries.
On the night of Tuesday 5th October, I attended the C.M.F. depot for home training. Capt. Ball (2FD Regt. R.A.A. Medical Officer) referred me to Dr. Bignall [sic] (Preston Area Medical Officer).
The following day I reported to Dr Bignall who referred me to Dr. Hugo Mackay (Radiologist) where X rays of my right shoulder were again taken. Upon the X ray results being available to Dr. Bignall, he prescribed retention of the sling and rest for the shoulder for several weeks.
I had constant difficulty with the shoulder, neck and spine plus headaches, so I contacted Col. J. Hogan, H.Q. S Comd. Medical Officer. He referred me to Mr. W. Max Wearne, Specialist of Collins Street, Melbourne. Mr Wearne referred me for further X rays (Comprehensing) [sic ?]. Mr. Wearne also referred me to Mr. Bruce Whitehead (Physiotherapist) for night treatment. (4 nights per week).
The treatment did not create any satisfactory results.
Mr. Wearne subsequently had me admitted to Coonara Private Hospital, where he performed manipulation under general anaesthetic. I remained in hospital for …. days. Some very temporary relief was obtained. The shoulder and neck soon deteriorated and it became necessary to visit Mr. Wearne regularly."
On 8 June 1973 liability was accepted (T28) for nerve root irritation of the cervical spine suffered on 28 September 1971. Mr Barnes was paid compensation from 4 October 1971 to 8 October 1971, together with medical expenses.
On 11 September 1973 Mr Barnes was examined by Dr Hembrow. Mr Barnes complained of headaches and pains in the upper arms and grating of the right shoulder on movement. On examination the doctor found slight congenital abnormality in the right scapula, in that the right scapula is higher than the left:
"The range of movement of his back and shoulders is normal but there is some limitation of range of side bending of his neck. No neurological abnormality is evident. Movements seems to produce pain in the lower dorsal region on the right side. The pain is probably referred from his neck region."

It was the doctor's opinion, on the balance of probabilities, that it is likely that Mr Barnes' symptoms resulted from the injury in September 1971, that the effects were of a permanent nature, however no further treatment was indicated.

On 8 November 1973 a determination was made (T32) that Mr Barnes had suffered a 5 per cent loss of efficient use of the right arm at or above the elbow, and determined that he was entitled to an amount of $450.
On 30 November 1973 Mr Barnes wrote (T33) to the Office of the Commissioner for Employees Compensation, concerning the determination dated 8 November 1973 in respect of his right arm.
On 10 December 1973 a determination was made (T35) for payment of reasonable medical and like expenses in respect of cervical spine nerve root irritation ($38). On 23 April 1974 a further determination was made for payment of medical expenses ($7). On 1 September there was yet another determination for the payment of reasonable medical expenses ($15.20) (T35, T36, T38).
On 11 June 1978 a determination was made (T44) for medical expenses ($10).
It was the respondent's submission that from 11 June 1978 until 1989, no payments were made with respect to Mr Barnes' neck or shoulder injury, and that the injury sustained on 29 September 1971 (or 28 and 29 September 1971), was an injury to the right shoulder and that Mr Barnes was treated by Dr Bignell and Dr Wearne for that condition.
As I have indicated, by mid-1992 Mr Barnes' symptoms had changed, with Dr Wearne diagnosing nerve root irritation to the cervical spine. As I have also already indicated, on 8 June 1993 liability was accepted for that condition and right shoulder.
With respect to the histories given by Mr Barnes in respect of his claim for the fall in the shower (T19 and T20) and paragraphs 31 and 32 above), Mr Barnes complained of cramp in his shoulder, injury to his shoulder and back. As noted by Ms McMahon, in his letter to the Minister for Defence (paragraph 34 above), Mr Barnes refers to his shoulder, neck, spine, headaches and that his shoulder and neck are still painful.
Again as observed by Ms McMahon, neither Mr Barnes' claim for compensation made in November 1972 nor his letter to the Minister for Defence, indicated that part of his back with which he is concerned, nor how the back was injured.
As I have mentioned, Dr Hembrow examined Mr Barnes on 11 September 1973, at which time Mr Barnes was complaining of pain in the lower dorsal level on the right which, according to the doctor, was referred pain from his neck and shoulder.
From the material before me it appears that the shower incident occurred prior to the incident involving the SLR.
As submitted by Ms McMahon, the material before me reveals no complaints in the two year period between 1971 and 1973, of any back pain or, as Mr Barnes stated in evidence (and to some of the doctors), that from that time he suffered referred pain.
Mr Barnes was employed by the Bank from 14 January 1969.
On 6 February 1971 Mr Barnes was involved in a motor vehicle accident which incapacitated him for work from 8 to 9 February 1971. There is no evidence of what, if any, injuries Mr Barnes sustained as a result of that accident.
On 1 July 1971, Mr Barnes records (T7) that he fell off a stool. On 6 July 1971 he stated that he was handling coin while acting as a teller. He further stated that he was compelled to seek medical advice due to pain in his back and that he had a suspected fracture of his spine. He was treated by Dr Edwards, who stated that he saw Mr Barnes on 6 July 1971 and that he had:
"Injured his back, he had pain in the upper and mid-thoracic region of the spine, he fell on to his buttocks one week ago. Today carried heavy coin in a flex position and had an increase of pain."
On 12 July 1971 a medical certificate was provided by Dr Edwards in which he stated (R19) that Mr Barnes was fit to return to work from 13 July 1971.
It is noted that on Mr Barnes' claim for compensation in respect of his fall off a stool on 1 July 1971 (T7) there is a notation dated 13 July 1971 that the claim was admitted. The notation was initialled by the claim administration officer and workers' compensation was paid to Mr Barnes by the Bank.
On 2 June 1976 the Bank wrote to Mr Barnes, referring to a claim form dated 23 June 1976, stating that the Bank was not able to process the claim as it required a medical certificate.
In a Memorandum from the Melbourne Office of the Bank to the Personnel Manager of Victoria dated 30 March 1977 (T40) it is recorded that on 18 March 1977 Mr Barnes stated that he "Just sat back in his chair and his back seized up".
Following this incident Mr Barnes was admitted to Casualty (Royal Melbourne Hospital), but sent home that evening. He later attended his local doctor, Dr Middleton, who referred him to a physiotherapist, Mr Bishop.
It is understood that Mr Bishop was of the view that Mr Barnes' latest injury was an aggravation of the back injury suffered in July 1971, being the back injury sustained at the Bank.
On 18 March 1977 Mr Barnes attended the Royal Melbourne Hospital Out Patients. He also claimed workers' compensation against the Bank (T39).
On 21 March 1977, Dr Middleton provided a medical certificate (Exhibit R12) stating that Mr Barnes had suffered an aggravation of his back injury, and that he was totally incapacitated for work from 21 to 22 March 1977.
In a document dated 15 April 1977 (T41) the Bank stated as follows:
"As the medical opinion given indicates that the claimant has suffered an aggravation of the back injury which he originally sustained on 1/7/71, we have no alternative but to pay the expenses associated with the treatment recently received."
On 19 April 1977 Dr Blake, of the City Medical Centre, rendered an account in respect of an examination of Mr Barnes carried out on 18 March 1977, and the provision of a final certificate on 30 March 1977.
In August 1983, Mr Barnes requested that the Bank pay the cost of chiropractic expenses in respect of his back (T185). At that stage the Bank arranged for medical assessment and reports to be obtained from Mr Barnes' treating doctors.
On 17 November 1983 a firm by the name of Sedawie and Company provided an investigation report (T49). The report encloses a signed statement by Mr Barnes that:
"In 1971 I was working in the Port Phillip Arcade, I had a fall from a chair fitted with rollers, which slid on the linoleum floor cover and I fell backwards, striking a steel ledger bucket with my back. I was forced to seek medical assistance from Dr. C. Edwards of 445 Upper Heidelberg Road, Heidelberg, who arranged x-rays to be taken, it was suspected at the time that I had sustained a fracture of the spine.
Approximately five years ago I sustained an aggravation of the original injury, whilst I was working at Hothlyn House, Collins Street, Melbourne, when I sat down in a chair in which a spring broke, allowing the back to tip back. I instinctively threw myself forward and suffered a sharp and extremely painful result, I became rigid and had to be assisted by two male employees' to seek medical assistance at the Medical Centre in Elizabeth Street.
I was unable to receive satisfactory treatment at the Medical Centre and was transferred to the Royal Melbourne Hospital by ambulance and was admitted to the Casualty Section and was later sent home by ambulance on instructions from the Hospital.
I then presented to Dr. Middleton of Boronia, who referred me to a Physiotherapist Mr. C. Bishop, also of Boronia. I presented on a number of occasions to him and he expressed the opinion that this later injury was an aggravation of my original injury.
Since this episode I have not sustained any major incidents of aggravation but I have experienced a number of neck aches and headaches and lower back pain, but since treatment with the present Chiropractor that I attend, I have experienced a considerable improvement. It still attend approximately once every 3 weeks."
On 16 September 1983 the Bank obtained a report from Dr Doig (T46); a report from a chiropractor, Mr Lawrence, dated 14 September 1983 (T45); a report dated 3 January 1984 from Dr Lenaghan (T50); a report from Mr Bishop (Boronia Physiotherapy) dated 27 January 1984 (T51); and a report from Dr Zlatnik dated 13 February 1984 (T53).
In his report dated 16 September 1983 (T46), Dr Doig stated that he had x-rays taken in 1983 which revealed no abnormality in Mr Barnes' neck or low back, and that his opinion at that stage was:
"I find it very difficult to correlate the injury in 1971 with the troubles that he has now. Any injury which occurred this long ago and for which he has virtually no trouble apart from one small episode some five years ago over the past twelve years has almost certainly settled down. As this type of trouble in the lower part of the back and in the cervical spine has an occurrence rate in the community of between 20-25% I do not think that there is any need to postulate an injury twelve years ago to account for it. Furthermore if there had have been an injury which would account for it I would have thought that by now there would have been x-ray changes in his cervical or lumbar spine and I can see no sign of these in his x-rays at all."
In his report dated 14 September 1983 (T45), Mr Lawrence recorded as follows:
"HISTORY
Mr Barnes said that he first injured his back in July 1971 while attempting to sit down at work. The chair moved away underneath him, and he hit his spine against a steel box.
PREVIOUS TREATMENT
Mr Barnes consulted his G.P. and was referred to a chiropractor, Mr Chris Bishop. Mr Barnes received treatment periodically for episodes of neck pain. There was one episode of acute lower back pain which was treated with manipulation at the Royal Melbourne Hospital.
PRESENTING COMPLAINTS
(1)       Chronic intermittant [sic] sore and stiff neck.
(2)       Chronic intermittant occipital and frontal headaches.
(3)       Chronic intermittant low back pain. (All of the above for three months)
(4)       Vertigo since November 1982."

As to his physical examination of Mr Barnes, Mr Lawrence stated:
"All active and passive cervical movements were restricted by pain. Passive shoulder movements were essentially unrestricted, but there was a general restriction bilaterally on acitive [sic] movement. Biceps and triceps were normal and no areas of paresthesis were noted. Palpation of the neck and upper thoracic spine was difficult due to tenderness. There was a moderate spasm of the posterior cervical, upper trapezius, and rhomboid musculature bilaterally. Orthopedic tests were essentially normal although cervical flexion produced pain between the shoulders.

The lumbo-sacral joint was extremely tender to touch and the paravertebral musculature contracted causing restriction of movement in the lower back.
Mr Barnes appeared extremely anxious although the cause of this anxiety was not able to be ascertained. He had made appointments to see two G.P.'s, and opthamologist and a neurologist in an effort to identify the cause of his problems."

In her report dated 3 January 1984 (T50), Dr Lenaghan stated that she saw Mr Barnes originally in 1980 with polyarthritis in the Arthritic Clinic, St Vincent's Hospital. The doctor further stated that Mr Barnes had swelling of his finger joints on both hands, pain and restriction of neck movements, and a little discomfort in the fall and minor swelling in the right knee.
X-rays taken at that time were normal.
Mr Barnes was then referred back by his GP, Dr Fewerda, in June 1983, in respect of headaches at the back of the neck, severe dizziness and elevated blood pressure.
In her report dated 3 January 1984, Dr Lenaghan further stated:
"On the 2/6/83 when I last saw Mr. Barnes there were really no abnormal physical findings, his joints seemed quite normal and his neck freely mobile. It appeared that his recent problems were due to stress and tension and he had already improved somewhat since his doctor had prescribed Serepax.
Reviewing my notes on this man I find no mention of a whip lash injury to his neck and if in fact he did suffer such an injury in 1971, then it does seem too remote to have been responsible for his recent problems. In view of the fact that an x-ray of his neck was quite normal in 1980 at St. Vincent's Hospital, I very much doubt that any neck pain or headache could be attributed to an injury in 1971 when there is no evidence of structural damage having occurred in his neck as a consequence of the old injury.
It would seem that Mr. Barnes does suffer from a mild rheumatoid type of polyarthritis which has been documented clinically and despite investigations being negative and as well as causing stiffness and swelling in the small joint of his hands and elsewhere, it can of course cause stiffness and neck pain. However the recent headaches and dizziness as mentioned did not appear to have organic basis. The prognosis of the arthritis seems very favourable and is most unlikely to result in any disability or prevent him from continuing his career in the bank. Although he may continue to experience occasional episodes of active arthritis requiring treatment, it appears he has had no medication now for several months and there is no reason to think that his situation will deteriorate."
In his report dated 27 January 1984 (T51), Mr Bishop stated that he had treated Mr Barnes for low back pain from 15 November 1979; that he had seen him earlier, but not with respect to low back pain. Mr Bishop reported that Mr Barnes informed him that the low back pain was an old injury and that he would be asking the Bank to pay compensation. Mr Bishop further reported:
"The back injury of C. R. Barnes was a problem related to lumbar spinal joint strain at the level of L2 and L3 vertbrae and the joints. This gave rise to pain across the back, the left side being worse than the right; there was a pain across the crest of the ilium, which is the pelvic bone, on the right hand side. He responded to treatment and was symptom free by the 14th of December ('79) the previous three weeks being treatment of one treatment per week. He had a slight recurrence of back strain in September, 1980. He improved more rapidly and was symptom free in five treatments. Since that time which was the 29th of September 1980, I have neither treated nor have I seen Mr. Barnes, [f]or any problems relating to his low back or anything else.
Although, as I have stated earlier, Mr. Barnes did indicate that this was an old workers compensation claim at the time that I treated him he gave me every impression of having the matter well in hand, and that he was dealing with it personally. He did not ask me, nor did he indicate any necessity for me to treat it as a workers compensation case, in which case I would have taken detailed history of the work injury etc; "
In his report dated 13 February 1984 (T53), Dr Zlatnik stated:
"I examined C.R. Barnes at your request on the 10th of February 1984. The man is a thirty two year old bank manager who is working at the present time. He told me that in 1971 he was about to sit on a chair with castors when it rolled away from him and he sat heavily on the corner of a steel cabinet and following this he experienced some low back and neck pain. Two days later because of increasing pain and stiffness he saw a local doctor who obtained an x-ray and he lost about ten days from work. On one of the films obtained there was a questionable fracture but this was not borne out on a subsequent film. In March of 1977 he experienced a recurrence of his symptoms while getting up from a falling chair. Over the intervening years he has had recurrent neck and low back pain, accompanied by sub occipital headache, and he has had extensive chiropractic treatment. At the present time he complains of a constant persistent dull ache in his low back, neck stiffness, sub occipital headache and vertigo. In addition the neck pain radiates into his left shoulder. He had approximately fifteen to twenty chiropractic treatments last year. He claims that his general health is good, he denies allergies, smokes twenty to twenty five cigarettes a day. In addition he drinks an average of three glasses of wine per day, and plays golf with a handicap of seven.
On examining the cervical spine, the neurologic exam is normal. All motion is reduced by about 30%. In the lumbar spine exam, the neurologic exam again is normal. Straight leg raising is limited to 80 degrees bilaterally, and flexion to 80 degrees.
An x-ray examination of both the lumbar and cervical spines was obtained on the day of consultation, and no significant abnormalities were seen.
I find it rather inconceivable that the alleged injury of almost thirteen years ago could be causing the man's present symptoms. Had the amount of force exerted upon his cervical and lumbar spines been great enough on that occasion, one would expect to find some radiographic evidence of such trauma. He certainly has been over-serviced by the chiropractor, and I suggested to him I would be more than happy to discuss his case with his treating doctor should he care to call me. I feel that this man could well be placed in a proper course of spinal mobilisation to improve the mobility of both his neck and back, and probably make him symptom free."
On 7 February 1984 the Bank paid an account rendered by Mr Bishop (T52), and on 27 February 1984 the Bank wrote to Mr Barnes (Exhibit R3) concerning the back injury, stating that the Bank was no longer liable in respect of any incapacity, or the need for medical treatment, and that liability was therefore denied.
In September 1989 (T185), Mr Barnes contacted the Workers' Compensation Department of the Bank, inquiring whether the Bank would meet the cost of surgery to his back. He was informed that he would need to be examined, however nothing further occurred.
Ms McMahon stated that:
"The respondent submits in respect of that documentation it is demonstrated that the applicant had two incidents in July 1971, one of which is recorded as involving a fall on to his buttocks, by Dr Edwards.
That he had a period of total incapacity from 6 to 13 July, and that he was paid compensation. That he had a second episode on 18 March 1977, where the chair gave way, that he was taken to the Royal Melbourne Hospital by ambulance, that he was cleared for work by Dr Blake on 30 March 1977, and that liability was accepted by the National Australia Bank on the basis of an aggravation of his 1 July 1971 injury.
That in August 1983 the applicant was still requesting the National Australia Bank to pay his chiropractic treatment for his back, and that as a result of that investigation reports and medical reports were obtained, leading to a denial of liability on 27 February 1984 by the bank in respect of a back injury, but again, in September 1989, the applicant was asking the bank to pay for his back surgery."
As observed by Ms McMahon, the reports of Dr Doig, Mr Lawrence, Dr Lenaghan, Mr Bishop and Dr Zlatnik record no history of a motor vehicle accident in 1971; no history of the September 1971 injury with the Department of Defence, and no history regarding sciatica. Dr Bignell, Dr Wearne and Dr Hembrow also have no history of any injury with the Bank on 1 July or 6 July 1971.
Ms McMahon further observed that in his statement given on interview by the investigator Sedawic and Company (T49), Mr Barnes gave a history that, since the incident on 18 March 1977, when he fell backwards due to a broken chair, he had suffered neck aches, headaches and lower back pain. Between 11 June 1978 and 14 December 1989, a period of 11 years, the Department of Defence did not pay any compensation or reasonable medical expenses to Mr Barnes.
It was asserted by Ms McMahon that the material to which reference has already been made, namely the reports obtained by the Bank; Dr Doig, Mr Lawrence; Dr Lenaghan; Mr Bishop and Dr Zlatnik, demonstrated very little, if anything, wrong with Mr Barnes' right shoulder or cervical spine.
Ms McMahon drew the Tribunal's attention to a medical report of Dr Lim, dated 8 April 1986 (Exhibit R9). Dr Lim treated Mr Barnes from 1986, taking a history that since 1981 he had been unwell, tired, lethargic and that he had some hypertension related to stress. Also that in 1984 Mr Barnes had had a pneumothorax. The only physical symptoms recorded by Dr Lim were stiffness in the shoulders, neck and joint pains, and that Mr Barnes had been investigated for rheumatoid arthritis.
In December 1988 Mr Barnes was seen by a psychiatrist, Dr Lan, in Adelaide. In his report dated 15 December 1988 (Exhibit R10), Dr Lan reported that he treated Mr Barnes for anxiety and depression. The doctor makes no reference to Mr Barnes complaining of physical injuries.
In their respective reports, neither Dr Lim nor Dr Lan record a history of the 1971 Department of Defence injury, or the Bank injuries in 1971 or 1977. Nor is there a record of chronic pain syndrome relating to any low back injury, either diagnosed or recorded.
It was the respondent's assertion that there is, in fact, no history of low back pain or sciatica.
It was also the respondent's submission that in 1989 something changed in respect of Mr Barnes low back. On 27 February 1984 the Bank denied ongoing liability for incapacity and medical expenses in respect of the Mr Barnes' back (Exhibit R3). However, in September 1989 he again requested (T185) that the Bank pay for surgery to his back.
It was the respondent's submission that from September 1989, the history Mr Barnes gave concerning the original causation of his low back changed. On 4 September 1989 Mr Barnes gave a history to Ms Prudence McCahey, of the Ivanhoe Manipulative Physiotherapy Clinic that he had problems with his lower back "for 18 years following the incident when he fell in the shower onto concrete" (T125).
On 19 September 1989, Mr Barnes first attended Dr Koadlow regarding his low back pain and left lower limb pain. On that occasion he gave a history of a slip in the shower in 1971, injuring his back.
Dr Koadlow diagnoses an L5-S1 back injury, with a psychiatric disorder related to pain.
On 10 November 1999, Mr Barnes gave a history to Dr Koadlow that he sustained an injury to his cervical spine in 1972 while firing a rifle, the backfire impulse causing him to fall backwards. He further stated that in falling he hurt his neck, that he fractured his clavicle and scapula, and that subsequently he experienced low back pain. He also stated that he suffered a second injury, namely when he had a blackout while in the shower, causing him to fall and hurt his back and neck.
On 20 April 1993, Dr Neri took a history that Mr Barnes was firing a rifle which exploded, the force of which threw him violently backwards, causing him to land heavily on his buttocks and causing back pain with radiation to his left thigh and leg (T151).
On 15 April 1999, Mr Barnes gave a history to Dr Shannon, a psychiatrist, of a rifle explosion causing him to be thrown backwards eight or twelve feet, initially landing on his buttocks and then striking his head on the ground (Exhibit R2).
It was the respondent's submission that these histories do not fit with the evidence given by Mr Barnes in these proceedings, which seem to relate to the fall onto his buttocks as occurring in the shower incident.
As observed by Ms McMahon, Dr Gisjbers, a Drug and Alcohol Physician, stated (Exhibit A3) that he first treated Mr Barnes on 16 March 1996. On that occasion Mr Barnes gave a history of the rifle exploding, breaking his shoulder, back, collarbone, ribs, vertebrae in the mid-thoracic region plus the fall, that night, which led to him being caught on the back of the neck and the base of the spine, leading to L5-S1 nerve compression.
Professor Burrows, who is Professor of Psychiatry, The University of Melbourne, first saw Mr Barnes in August 1989. He took a history that Mr Barnes believed his low back pain originated in 1971, after he sustained three injuries in one week. That is to say he fell in the shower landing on his buttocks; several days later he fell backwards after firing a rifle; and subsequently he was in a motor vehicle accident in which he sustained both neck and low back pain.
Dr Kinlock, Medical Director of Rehabilitation, Bethesda Hospital, first saw Mr Barnes in 1990, taking a history that Mr Barnes slipped in a shower at Puckapunyal in 1971, developing severe low back pain with nerve root irritation two days later and that since that time he has experienced chronic pain in the left lower back (T62).
On 23 April 1991 Dr Kinlock recorded two accidents at Puckapunyal in 1971. First, that while firing a gun it exploded, throwing him backwards onto his buttocks, suffering a stress fracture of the scapula, and low back pain. Second, a few days later, that he slipped on a cake of soap while in the shower, causing him to catch the base of his neck on the tap and falling on his buttocks, causing him to develop severe neck pain about two days later (T72).
Dr Van Bavel, who has been Mr Barnes treating GP since mid-1984, took no direct history, but rather accepted the histories of events given by Mr Barnes to the various specialists. It is noted that none of the specialists concerned have recorded the 1971 Bank injuries or the flare up in 1983.
The respondent submitted that:
"The history changed after the National Australia Bank denied liability for the applicant's back injury in 1984 and again in 1989. From 1989 the applicant changed the history to relate his lower back injury to the 1971 army injury. Prior to 1989 there is not one recorded history regarding low back pain and/or sciatica being sustained in the September 1971 army episode. The histories given post-1989 are more florid regarding the 1971 army injury and not supported by the documentation, either completed by the applicant, the witness Armfield or the doctors who say him at that time.
The doctors called on his behalf before this Tribunal have accepted the history the applicant gave them and supported his ongoing claims against the Department of Defence on that basis. They rely on the new history, which the respondent submits, the applicant commenced to give in 1989. Dr Kinlock gave evidence that he had treated the applicant for the first time in August 1990, that he had diagnosed an L5-S1 disc lesion with some degree of nerve root irritation on the left, that he did not require surgery. He ceased treating him 1991 although he was referred back there in 1995 about 10 March because he was seeking narcotics from the Know Private Hospital. He also again saw him for a medico-legal review in 1999.
Dr Kinlock said the classic way to injure you L5-S1 is to fall flat on your buttocks. He felt that the fall on the buttocks was the important thing. He accepted, and as I took the Tribunal or too Mr Shannon, actually, through the evidence in transcript on page 259, he accepted that if he had a fall on his buttocks with the National Australia Bank in 1971, he would accept that that event would be responsible for his current problems and that that was a matter for the Tribunal to determine what they accepted occurred on that day.
Dr Gisjbers treated the applicant since March 1996 for pain management. He had been looking at an L5-S1 disc problem, that he had accepted the history regarding causation given by the applicant, that he noted on page 2 of his report that there was not a great deal of problem between 1971 and 1989, that occasionally the applicant needed physiotherapy, that the problem really became worse in 1989 when he developed severe nerve spasm. He felt that he had a capacity for light work from a physical point of view but raised issues concerning his back pain, his opiate injections, his depression, his sense of dependence and victimisation as matters that would need to be taken into account concerning Mr Barnes' capacity for employment.
He said he had a pain syndrome aggravated since 1988 and most particularly since he lost his job. He described that he expressed his psychological distress in physical terms. Professor Burrows has treated the applicant since 8 August 1989 for a major depressive disorder, anxiety and a chronic pain disorder. His major role was to treat the depression and anxiety and he said his back had been a major factor in his ability to cope. Professor Burrows certified the applicant is totally incapacitated for employment with the bank in 1992, due to anxiety and depression as a result of stress in his employment with the bank. He now suggested that this has ceased to play a role.
He said that he had suffered an increase in his psychiatric symptoms in late 1997 and that was due to his dispute with the Department of Defence when liability was ceased, and that that had had a dramatically traumatic effect on the applicant. If it was demonstrated to the satisfaction of the Tribunal that his back injury arose in circumstances other than with the Department of Defence, then Professor Burrows accepted that the pain disorder that arises from the back pain and symptoms would be related to that injury."
Dr Strauss, a Consultative and Occupational Psychiatrist, interviewed Mr Barnes on 20 April 1999. It appears that, from the oral evidence given before the Tribunal, there is no major disagreement between Dr Strauss and Professor Burrows in that they take the view that if there is found to have been a physical injury suffered by Mr Barnes to his low back in the course of his employment with the Department of Defence, then that would be contributing to his ongoing psychiatric problems. However, if it is not found to have occurred in the course of his employment with the Department of Defence, but rather with the Bank, then that would be the source of his ongoing psychiatric complaints.
Reference has already been made to Dr Van Bavel, who as indicated, has been treating Mr Barnes since mid-June 1984. On 19 September 1984 he took a history of headache, malaise, irritable aching groin, sore neck and aching back (Exhibit A9). Dr Van Bavel noted in early 1990; that Mr Barnes is having problems with pain killing medication. Dr Van Bavel ceased treating Mr Barnes on 25 August 1997. The doctor stated that there was an increase in Mr Barnes' symptoms in about May 1989, but no history as to why this was so. On 3 December 1989 the doctor recorded lumbar back ache with radiation down the legs. It was the respondent's submission that this is the first record of any radiation of back ache into his legs.
It is noted that the last report by Dr Van Bavel (Exhibit A9) records that on examination at that time he found Mr Barnes' neck to be normal and that he had no ongoing problems.

It is the Tribunal's understanding that the timing and content of the various documents to which reference has been made above are not disputed by Mr Barnes.
What is in dispute, however, was identified by Mr Fehring in the following terms in his closing submission to the Tribunal:
"You have to determine whether or not you accept that there was an injury to Mr Barnes' back, low back, in one or other of the incidents in September 1971. He has given evidence as to what happened and there is the T documents which we have been over and you can make an assessment of those. But his evidence is that he fell, landed on his buttocks and that he had ongoing difficulties thereafter varying from time to time but he had ongoing difficulties thereafter right up until today. That really is the nub of this case. It is a question of what evidence we can look at that can assist you in answering that question.
Because my submission – my friend in relation to the questions that she set out, the first question as indicated is the most difficult and the central question that you have got to determine. If you find in favour of the applicant that that date on the 28th or 29th September he suffered an injury to his low back then in my submission you can and should accept the opinion of Mr Kinlock and in essence all the other applicant's doctors that his ongoing difficulties and incapacities flow, at least in part, to the necessary contributions -–undoubtedly other matters are relevant – but for the purposes of this Tribunal we only have to show a material contribution and no more than that.
But that there has been a sufficient contribution from that event to his current situation and I think the respondent concedes that if there was an injury resulting in - an event resulting in injury to the low back, then Kinlock's position and the other doctors who have accepted his history, Mr Koadlow, Professor Burrows, link his current difficulties and the difficulties he has had, to that event. So it is my submission that …. Should answer question one as identifies by my friend that there was first of all two events.
One being what we have described here as the rifle incident and the second being the shower incident. As a combination of one or both of those incidents, which on the evidence my submission is, is overwhelming that there were two incidents occurred shortly close together but two separate incidents. That they resulted in an injury to the right shoulder or neck however you want to characterise it but there was some injury arising from those incidents.
What the respondent disputes is that there was any lower back injury from those incidents. So first of all it is necessary for you to determine whether one or both of those incidents occurred and then the consequences that would flow from those two events. My friend has taken you to the T documents but in particular sir, can I say that T20, both incidents are reported and in T22 there is reference to the back as a consequence. One of the matter which is in issue is a very difficult matter and one that sir, you will have to try and untangle is the question of credit and reliability.
My friend, I do not think goes as far as suggesting fraud, although I think her predecessor did. What she says in essence now is Mr Barnes is unreliable in some history sense and not to be accepted in terms of his evidence, as he gave it. That is, if you like, a reliability question not a knowing attempt to deceive."
In her closing submission Ms McMahon stated:
"So the respondent submits that the applicant's credit is in real issue in these proceedings. The Tribunal has had the opportunity to hear evidence both from the applicant and from his wife. The respondent raises the question of credit in respect to the separation of the 1977 September injury with the Department of Defence and the National Australia Bank 1971 and 1977 injuries; that the applicant has failed to disclose to the doctors treating him in respect of the army injury, namely Mr Wearne and Dr Hembrow, any history of injury with the National Australia Bank. Likewise, he has failed to disclose to the doctors treating him with respect to the National Australia Bank injuries, Mr Doig, Mr Lawrence, Dr Bishop, Ms Lenaghan, Dr Zlatnik, any history at all of the army injuries in September 1971."
As mentioned in paragraph 83 above, it was the respondent's submission that Mr Barnes' history changed completely in 1989, after the Bank ceased liability for his back claim in 1984, and in 1989 when it refused to pay for surgery for his back. Not one of the doctors who saw Mr Barnes after 1989 was given a correct history relating to both the Bank injuries and the Department of Defence injuries and claims, as demonstrated by the contemporaneous documents and the history taken by the various doctors at the time. The descriptions of the events that occurred in September 1971 with the Department of Defence became, from 1989 onwards, exaggerated and have little in common with the contemporaneous reports of the events. The respondent further submitted:
"And those are the histories that I have just taken you to of the applicant being thrown back a distance of 10 to 12 feet, of fracturing everything virtually from his shoulder, neck, ribs, et cetera, and they are referred to in those reports that add to a picture of Mr Koadlow, Mr Neery [sic], Mr Shannon, Gisjbers, Burrows and Kinlock; that the applicant has received both sick leave and compensation from the Department of Defence and from the National Australia Bank for the same periods of incapacity for various periods between 1990 and 1992; that the applicant gave evidence he was forced to do this; that the National Australia Bank said there was no other way, that he had to have payments from them for sick leave, and yet he did not return the payments for incapacity for the same period for the Department of Defence."
In a letter dated 26 September 1996 (T185) to the Department of Defence, the Bank sets out the history of the claims made by Mr Barnes against the Bank. In that document there is reference to the Bank not being aware that Mr Barnes was receiving payment from both the Bank and the Department of Defence, in respect of the same period. It is also noted that in 1992 Mr Barnes retired from the Bank as a result of an anxiety and depressive illness, which at that time he related solely to his employment with the Bank which, he said, caused him to be totally and permanently incapacitated for employment with the Bank.
As observed by Ms McMahon, there is no reference in the material that Mr Barnes retired because of an injury to his back.
On 7 December 1992 Mr Barnes wrote to Dr Mendelson (T143), setting out in great detail the history of his symptoms dating back to 1987. In the letter there is no reference to his suffering or retiring as a result of his back injury.
It was the respondent's submission:
"That the applicant has been content, when it suits him for financial reward, to put forward one story and then when he can no longer get a benefit for that position as he could not get payments any longer for his low back condition from the National Australia Bank from 1984 and 1989 onwards, to change his story, and that is what we see here today. We see the applicant giving a history now that is not supported prior to 1989 for the purposes of obtaining a financial benefit."
Shortly after receiving his retirement package (due to total and permanent incapacity), Mr Barnes established and successfully operated (as least for about two years) a business under the name of Southern Cross Auctions. In this connection it was the respondent's submission that this is inconsistent with a person who was presenting in 1992 as being totally and permanently incapacitated for work on psychiatric grounds. Also, that Mr Barnes' physical capabilities in operating such a business outweigh the presentation he gave to several doctors concerning his physical problems, that is to say his ability to play golf, currently on Wednesdays and Saturdays.
As observed by the respondent, Mr Barnes on at least one occasion gave a history of chopping wood for three hours, knocking down sheds, selling furniture, setting up and arranging clearance sales in respect of Southern Cross Auctions, that he had done some skeet shooting, and that he had done some football coaching.
Mr Barnes' evidence was that he has up to three pain relief injections per day, each injection apparently providing relief for up to four hours.
It was also Mr Barnes' evidence that in 1997 he applied for the position of General Manager, Victorian International Trade and Promotions Department. Also, that in November 1997 he made some 17 job applications and that his wife's evidence was that recently he had been applying for jobs.
It is understood that from early 1998 Mr Barnes has been in receipt of social security benefit, namely disability pension, even though his evidence was that in February 1999 he conducted an auction at the Box Hill Town Hall for a friend.
The evidence before the Tribunal is that Mr Barnes had a number of motor vehicle accidents, none of which he considered were sufficiently significant to merit telling his doctors about. In this connection it was the respondent's submission that this has been one of the difficulties with Mr Barnes' history of these events:
"He considered, he knows what is relevant and what the doctors ought to be told, rather than giving all of the evidence to all of the doctors and letting them reach their own conclusions."
Dr Gisjbers (or Dr Sharrock's) notes on 22 January 1998 (Exhibit R16), record that Mr Barnes, for the first time, told him about the fall in the Bank in June 1971. The note also records that "the report of this has been sent to the Army by someone who was sacked by Chris". In this connection the respondent posed the question:
"If the applicant had told the Department of Defence, as he now says, about his claims against the National Australia Bank, what would the relevance of that comment be? What harm could someone do sending a report to the Department of Defence about something they knew about, and the implication is the reason it was sent was spite, because Chris sacked him.
There cannot be any other sense of that note, if, as the applicant wants us to accept now, he was open with both doctors, both lots of doctors, the doctors for the National Australia Bank and the doctors for the Department of Defence. The question is one for the Tribunal to determine whether it accepts the histories given at the time of the September '71 incident, and shortly after, as to what occurred in that incident, and taking into account the claim running parallel with the National Australia Bank and the histories given contemporaneously, or to accept the histories given now and given since 1989, and that is a matter of credit for the Tribunal. The respondent submits that there is no evidence to support the applicant's claim that he suffered a low back injury with the Department of Defence in September 1971."

Findings

As indicated earlier in these reasons there is no dispute as to the essential issues requiring determination by the Tribunal. They are set out in paragraph 8 above.
In respect of the first issue, which is what injury, if any, did Mr Barnes suffer in Sept 1971, arising out of or in the course of his employment with the Department of Defence, I find that Mr Barnes suffered a shoulder injury and possibly a nerve root irritation of the cervical spine, and that there is no evidence of a low back injury.
As stated by the respondent, any reference to the back which first appeared in the claim form of February 1978, some 18 months after the September 1971 incident (see claim at T22) and the reference to Mr Barnes' letter to the Minister for Defence (T27), is inconsistent with the histories taken by Dr Hembrow and Dr Wearne, namely that he had aching in the right scapula trapezium and superior aspect of his right shoulder and upper back, and which (according to Dr Hembrow) was referred from his neck. Thus, as stated by the respondent, there is no dispute that Mr Barnes experienced symptoms in his back at that time, but these were in his upper back and not his lower back.
Nor is there a record of low back injury or sciatica, indeed quite the contrary when one examines the numerous documents which relate to Mr Barnes' back.
As was acknowledged by the respondent, there is evidence that Mr Barnes did suffer a low back injury in 1971 and 1977. However, these arose out of the course of his employment with the Bank. The Bank accepted liability and compensation was paid. The evidence does not support an assertion that Mr Barnes suffered a low back injury while employed with the Department of Defence.
In respect of the second issue, namely if Mr Barnes did suffer an injury, does he continue to suffer any effects as a result of the injury suffered in September 1971 with the Department of Defence, I find that Mr Barnes does not do so. That is to say he suffers no ongoing effects of any injury to his right shoulder or aggravation to his cervical nerve root irritation.
As to the third issue, that is if Mr Barnes no longer suffers any effects as a result of the injury which he suffered in 1971 with the Department of Defence, when did that injury cease, I find that the injury ceased at or about the time of the determination made on 11 June 1978, that the cost ($10) be paid to Dr Whitehead, in respect of medical treatment for nerve root irritation of the cervical spine. All subsequent periods of incapacity and treatment paid from 1989 onwards relate to low back problems.
Dr Doig noted on 16 September 1983 (T46), that x-rays of Mr Barnes' cervical spine were normal and that, if there was an injury in 1971 that would account for his trouble in 1983, there would be x-ray changes. Dr Lenaghan on 2 June 1993 (T50), reported that there were no abnormal physical findings. Mr Barnes' neck was freely mobile, there was no structural damage revealed on x-ray due to any old injury. Furthermore, on 13 February 1984, reports (T53) that the x-rays showed no abnormality and that by now he would expect to see changes resulting from the 1971 trauma.
It is noted that the history given to Dr Shannon on 13 April 1999 (Exhibit R2) by Mr Barnes, was that by the mid-1970s he was virtually free of problems with his shoulder and back. From 1989, all of Mr Barnes' physical problems related to his low back.
In the circumstances I agree with the respondent that the appropriate cease effects date relates to that period in 1983 or 1984, when there is no evidence of ongoing problems. Indeed, as again suggested by the respondent, the date could be earlier if Mr Barnes' own history to Dr Shannon is accepted, together with the fact that, as stated earlier, no medical expenses were paid by the respondent from 1978.
In respect of the fourth issue, that is to say if Mr Barnes continues to suffer effects as a result of an injury suffered in September 1971 with the Department of Defence, what entitlements, if any, does he have to compensation, I find that Mr Barnes has no such entitlement. There is no incapacity due to his neck and shoulder and there is no requirement for treatment to his neck or shoulder. Furthermore, Mr Barnes has been paid a permanent impairment with respect to his right arm (5 per cent), and there is no entitlement to permanent impairment for his cervical spine under the Compensation (Commonwealth Employees) Act 1971. Nor is there any evidence of permanent impairment to Mr Barnes' cervical spine.
In respect of the fifth issue, whether Mr Barnes is incapacitated for employment, I find that this is not so.
It was the opinion of Professor Burrows that Mr Barnes is totally incapacitated for work on psychiatric grounds. It was Dr Gisjberg's opinion that Mr Barnes has a capacity for light work on psychiatric grounds, due to his back injury.
Mr Barnes was able to work between 1971 and 1992 and, as stated earlier, he was able to play golf and perform certain other activities of a physical nature.
As to the sixth issue, which is whether the effects of the injuries suffered in September 1971 with the Department of Defence contributed to any ongoing incapacity from 28 February 1997, when payments were ceased, I find that this is not so. As stated earlier, any incapacity Mr Barnes now has is the result of his low back injury and is not related to his employment with the Department of Defence. His incapacity is contributed to by his chronic pain syndrome, or his anxiety and depressive condition. His chronic pain relates to his low back and is therefore a sequelae to his low back, being an injury which arose out of or in the course of his employment with the Bank. His anxiety and depressive condition was aggravated by his stressful employment situation with the Bank and led to his retirement from the Bank in 1992 on the grounds that he was totally and permanently incapacitated.
Finally, with respect to the seventh issue, whether Mr Barnes requires any reasonable medical or like treatment in respect of the September 1971 injury with the Department of Defence (since 28 February 1997), being the "cease effects" date, I find that no such requirement has existed. Any ongoing treatment is related to his low back injury, chronic pain, anxiety and depression, and not to his shoulder and neck condition.
Decision
In view of the findings set out above and the reasons therefor, the Tribunal's decision will be that the decision under review is affirmed.
I certify that the one hundred and thirty (130) preceding paragraphs are a true copy of the reasons for the decision herein of
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  26 April, 24–26 July and 7 August 2000
Date of Decision  6 September 2000
Counsel for the Applicant        Mr I. Fehring
Solicitor for the Applicant         Bullards
Counsel for the Respondent    Mr M. McInnis (first day) and Ms A. McMahon (cont.)
Solicitor for the Respondent    Australian Government Solicitor