Beattie and Comcare
[2004] AATA 696
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 696
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/411
GENERAL ADMINISTRATIVE DIVISION
Re: KATHLEEN BEATTIE
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date:30 June 2004
Place:Melbourne
Decision:The Tribunal affirms the decision under review
(sgd) G. D. Friedman
Member
COMPENSATION - lower back pain - sciatica - ride on motor boat - pre-existing lumbosacral condition - whether contributed to disc prolapse
Safety, Rehabilitation and Compensation Act 1988 s 14(1)
REASONS FOR DECISION
30 June 2004 G.D. Friedman, Member
1. This is an application by Kathleen Beattie (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 7 March 2003. The delegate affirmed a determination of the respondent dated 3 October 2002 that the respondent was not liable to pay compensation in respect of a lower back injury suffered by the applicant.
2. At the hearing of this matter on 2 April 2004 and 16 June 2004 Mr M. Carey of counsel represented the applicant and Mr I. Gourlay of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T40), plus twelve exhibits (Exhibits A1‑A12) lodged by the applicant and one exhibit (Exhibit R1) lodged by the respondent.
BACKGROUND
4. The applicant was born on 27 June 1970. In 1989 she commenced employment with the Department of Defence (the Department) as an Administrative Service Officer. On 17 July 2001 she obtained a medical certificate from her general practitioner (Dr H. Konopnicki) requesting the Department to provide special seating for the applicant because she suffered from a lesion at the L5/S1 level.
5. On 8 August 2001 a rehabilitation consultant undertook a workplace assessment and recommended minor changes to the applicant's work environment and practices.
6. On 8 August 2001 the applicant and other personnel from the Department participated in a familiarisation trial involving a commando operational watercraft (the boat) which departed from Williamstown dock and travelled in Port Phillip Bay before returning after about 90 minutes (the boat incident).
7. In about February 2002 the applicant attended Dr Konopnicki in relation to back pain, and on 8 June 2002 he provided a medical certificate in which he diagnosed L5/S1 protrusion, L V5 disc fragment caused by trauma while in boat assessment trial in August.
8. On 3 July 2002 the applicant lodged a claim for compensation for lower back pain and pain in her left leg arising from the boat incident. On 6 August 2002 the applicant underwent back surgery.
9. In a determination dated 3 October 2002 the respondent rejected the claim on the basis that the applicant's employment did not contribute materially to the claimed condition of aggravation of displacement of intervertebral disc - lumbar because it was not a direct result of the boat incident. In a reviewable decision dated 7 March 2003 the respondent affirmed the determination.
10. On 16 April 2003 the applicant lodged an application with the Tribunal for review of the decision of 7 March 2003.
EVIDENCE
11. In a written statement dated 29 March 2004 (Exhibit A1) the applicant said that she has had Iower back pain in the past. In particular she noted that in June 2001 she developed left hip pain, shooting sensations and pain in the left leg and lower back pain. She stated that Dr Konopnicki arranged an x-ray which showed a problem with the L5-S1 disc but no problems with the hips. She said that she told Dr Konopnicki that she could recall suffering back pain 10 years earlier, and that the pain had ceased after physiotherapy followed by exercise. The applicant stated that she commenced biphasic (electromagnetic) treatment in June and July 2001 and observed some improvement, and an assessment by an occupational therapist on 8 August 2001 resulted in recommendations about posture and the layout of her workstation. The applicant said that by the date of the boat incident she had minimal leg and back pain.
12. In her statement the applicant described the boat incident. She said that the boat had space for eight passengers, who had to straddle the unpadded metal seats and hold onto a bar. She said that the trip from Williamstown in Port Phillip Bay in the direction of Geelong was relatively smooth, but on the return journey the water became choppy. She said that passengers were jolted and the spray splashed all the occupants of the boat.
13. The applicant explained that during the return journey she developed severe back pain. She said she arranged to be moved to a position next to the coxswain, where the vibrations were less, although the jolting was very severe and painful. She stated that on disembarking at Williamstown she experienced severe Iower back pain, but no lower leg pain at that stage. She said that the Iower back pain continued, particularly when she stood or remained standing, although she continued full-time work.
14. The applicant stated that she did not consult Dr Konopnicki about the Iower back pain until February 2002. She said that she did not mention the back pain to him or to other doctors she consulted in the period after the boat incident because she believed that she could manage the pain. She noted that the Iower back pain was constant but varied in intensity, and said that from time to time in addition to this pain she felt strange sensations in her left leg and her left buttock. The applicant stated that the pain became worse as time passed, and she could not lie on her back, causing difficulty in sleeping.
15. The applicant said that she moved house in late 2001, but did not participate in the lifting of heavy items. She said that by February 2002 the back pain had become worse and the buttock pain began to extend down her left leg. She stated that she consulted Dr Konopnicki in February and March 2002 and resumed biphasic treatment, as well as a CT scan on 26 March 2002. The applicant said that the scan showed a large central and left paracentral protrusion at L5/S1 disc and a probable disc fragment in the anterior spinal cavity. She said that she attended a physiotherapist, but the recommended exercises were painful and she discontinued the treatment. She stated that the symptoms became worse and caused difficulty in walking, to such an extent that on 13 May 2002 she could no longer travel to work on public transport, so she stopped working on that day.
16. The applicant stated that she was referred to an orthopaedic surgeon, Mr R. Carey, who on 12 June 2002 recommended back surgery. She said that an MRI scan on 5 August 2002 showed a large disc protrusion and severe compression of, the left S1 nerve root which was causing the leg pain. She said that laminectomy surgery to remove the disc herniation was performed on 6 August 2002, and she was discharged from hospital on 12 August 2002. She noted that she commenced a graduated return to work program on 14 October 2002, starting with 4 hours per day for 3 days per week, and built up to full-time duties without restriction by January 2003. She said that during this time she obtained a promotion to Administrative Service Officer Grade 5, and has continued to occupy that position.
17. In oral evidence the applicant stated that her back and leg pain was minimal by 8 August 2001, although she did suffer from pain in her left hip, particularly when walking. She said that after the boat incident her back was sore for several days and she took Panadol to ease the pain. She added that her buttock and leg pain developed later. She said that between August 2001 and February 2002 she consulted Dr Konopnicki regularly, but not for the back pain.
18. Under cross-examination the applicant said that in June 2001 her visit to Dr Konopnicki was primarily in relation to her left hip, although she agreed that she had experienced some sensations or shooting pain in her left leg and pain in her lower back. She agreed that the hip pain was the reason Dr Konopnicki sent her for an x-ray. She said that in June and July 2001 she discussed her problem at the L5‑S1 level, together with similar back problems 10 years earlier, with Dr Konopnicki. The applicant acknowledged that following these discussions she was referred for a worksite assessment.
19. She also agreed that before the boat incident she experienced a similar type of pain (low back pain and left sciatica) as she did after the boat incident, although the degree of pain was much less before the boat incident. The applicant conceded that after the boat incident she should have discussed her back pain with Dr Konopnicki and other practitioners, but stated that she had learned to live with the pain, and thought it would disappear. The applicant disagreed with the proposition that her actions in lifting household items and moving house in late 2001 aggravated her condition and caused her to seek medical advice and treatment including physiotherapy. She maintained that the pain was caused by the boat incident. The applicant agreed that when she first consulted Mr R. Carey on 12 June 2002, she completed a questionnaire in which she stated that she had experienced back pain for about seven months (from November 2001) and leg pain for about five months (from January 2002).
20. In a written statement dated 29 March 2004 (Exhibit A2) Mr S. Cossar, a colleague of the applicant, said that he shares accommodation with the applicant. He stated that he was aware the applicant suffered from minor back pain before the boat incident, and that afterwards she appeared distressed. He said that she told him that she suffered severe pain to her lower back, and later to her left hip, as a result of the boat incident. Mr Cossar stated that after the boat incident he noticed that the applicant appeared to be in a lot of pain on a day-to-day basis.
21. In oral evidence Mr Cossar confirmed the contents of his statement. Under cross-examination he said that in late 2001 he assisted her to move into his residence. He also maintained that after the boat incident her pain worsened until she underwent surgery.
22. In a written statement dated 25 March 2004 (Exhibit A3) Major A. Tripley, another colleague of the applicant, said that the applicant was living with him as his partner until about September 2001. He stated that he was present during the boat incident and on that day the weather conditions on Port Phillip Bay were rough. He said that the applicant told him during the trip that she was in pain, so he moved her from the front of the boat to a more comfortable seat behind the console and next to the coxswain. He said that he visited her in January 2002 when she was camping in Tamworth, New South Wales, and that she complained of back pain which seemed to worsen, so that in February 2002 she attended her doctor. He described the applicant as stoic, and said that she was in a lot of pain when she took time off work because of her injury.
23. In oral evidence Major Tripley confirmed the contents of his statement and said that he could not recall the applicant complaining about back or leg pain before the boat incident. He said that afterwards she seemed to be less flexible in her movements, and she continued to participate in her interests including dancing, camping and socialising with friends and colleagues. Under cross-examination he said that he helped the applicant pack her belongings when she decided to leave his residence in late 2001.
24. In a written report dated 2 January 2003 (T37), Dr Konopnicki said that he had been treating the applicant since 2000. He confirmed that she had a pre‑existing back problem and had consulted him about back pain, in June 2001, which he diagnosed as an L5-S1 lesion. He stated that he did not see her again for back pain until February 2002, when she related the circumstances of the boat incident. Dr Konopnicki said that he arranged a CT scan which identified multiple pathologies at L4/5 and L5-S1. He said that of particular note was the presence of a dark fragment at L5 and a huge herniated disc lesion, and noted that there was a significant progression of symptoms after 8 August 2001. Dr Konopnicki concluded:
Thus this further substantiates that there had been a significant change in her condition. In the light of no other aggravating factors and the proximal relationship with the boating incident there is very strong evidence to suggest that the incident in question represented a material aggravating factor to her prior lumbar spine condition.
26. In oral evidence Dr Konopnicki stated that in May 2002 the applicant was distressed and in severe pain, so he referred her to Mr Carey and that surgery was ultimately successful. Under cross-examination Dr Konopnicki agreed that in his clinical notes dated 21 June 2001 (Exhibit A4) he recorded that the applicant reported shooting pain down her left leg for several months, and pain in her right hip. He agreed that the shooting pain could have been sciatica. He also agreed that on 25 June 2001 after an x-ray he diagnosed a degenerative lesion. Dr Konopnicki told the Tribunal that the applicant consulted him several times between August 2001 and February 2002 but did not refer to lower back pain. He said that her failure to do so might have been due to a number of factors, including her circumstances at the time. He said that such situations were not uncommon
27. Dr Konopnicki agreed that although the applicant told him in February 2002 about her back pain, a further four months elapsed before she discussed with him the possible link with the boat incident, and to that extent his report dated 2 January 2003 was inaccurate. However, he said that people do not always present in a logical sequence. He stated that the applicant's back pain became worse in May 2002 and she was unable to work, so he referred her to Mr Carey
28. In a written statement dated 26 March 2004 (Exhibit A5) Ms C. Beattie, the applicant’s mother, said that when she celebrated her birthday on 22 August 2001 she observed that the applicant was suffering from severe back pain. She said that the applicant had told her about the boat incident and she understood that the applicant’s back had been sore since then. Ms Beattie noted that the applicant is a stoical person who has always been healthy and who does not normally complain of pain.
29. In oral evidence Ms Beattie stated that she has regular contact with the applicant. She told the Tribunal that in the months following the boat incident the applicant’s pain appeared to become worse, and the applicant’s behaviour and attitude changed. Under cross-examination Ms Beattie agreed that the applicant’s situation worsened in November 2001 and that she suffered severe leg pains in February 2002. She agreed that the pain became more intense before surgery in August 2002.
30. In a written statement dated 26 March 2004 (Exhibit A6) Mr L. Beattie, the applicant’s brother, said that the applicant described the boat incident in detail and told him that she was in considerable pain soon afterwards. He said that all family members were stoical, but he was concerned about her and advised her to consult a doctor. Mr Beattie said that several weeks after the boat incident he asked the applicant whether she had sought medical advice, and was told that she had not, but that she would be fine. In oral evidence Mr Beattie said that the applicant’s description of the boat incident was graphic, and that she had been shocked by the experience. He said that he observed her to be hunched over, and in pain afterward.
31. In a written report dated 28 August 2003 (Exhibit A7) Mr R. Carey, orthopaedic surgeon, stated that he examined the applicant on 12 June 2002 and diagnosed a lumbosacral disc herniation/sequestration producing left S1 sciatica with neurological signs. He concluded that on the basis of the history given by the applicant the boat incident was the likely cause of the disc prolapse at L5-S1. He stated:
Whilst she may have had some transitory back discomfort beforehand and one could make a case that this was therefore an “aggravation” of a previously degenerate L5‑S1 disc, it was on the basis of the history as given that she developed left sciatica for the first time and the sciatica was on this basis caused by the boating incident.
32. In a further written report dated 5 November 2003 (Exhibit A8), Mr Carey said that he did not record the precise amount of time or any causative factors concerning the applicant’s back discomfort before the boat incident. In a further written report dated 15 December 2003 (Exhibit A9), Mr Carey said that he again examined the applicant. He noted that the applicant told him that at the age of 21, while in Queensland, she developed some back discomfort without sciatica and that after physiotherapy and exercise she made a full recovery. He noted that about five months before the boat incident the applicant developed left hip achiness spontaneously, while walking at work.
33. Mr Carey said that hip x-rays were normal, and the applicant’s doctor observed an achy lower back without sciatica, at least without the severe sciatica which she had after the boating incident. Mr Carey maintained his opinion that the boat incident was the likely cause of the disc herniation at L5-S1. Under cross‑examination Mr Carey agreed that he relied on the history given by the applicant when drawing conclusions about the cause of her pain.
34. In a written report dated 17 September 2003 (Exhibit A10), Mr J. Rush, orthopaedic surgeon, stated that the applicant had a history of back pain and had been suffering from back pain two months before the boat incident and the pain was ongoing; but there was no left leg pain at the time of the boat incident. He said that it was only afterwards that the applicant developed pain radiating down the left leg due to a prolapsed disc with pressure on the S1 nerve root. Mr Rush concluded:
I think it is reasonable to state that the patient’s work and in particular the incident in August 2001 did not cause the disc degenerative disease but rather aggravated the injury and caused or produced the development of the lumbar disc prolapse and sciatica necessitating the surgery in August 2002.
35. In a further written report dated 16 December 2003 (Exhibit A11), Mr Rush said that he re-examined the applicant on 11 December 2003. He noted that the applicant stated that she had some left leg pain before the boat incident but it was not as severe as the shooting pain she experienced after the boat incident. He noted that the applicant saw Dr Konopnicki in June 2001 with low back pain or left hip pain. Mr Rush concluded:
It is difficult to be sure about this but I suspect that the patient may have had lumbosacral disc degenerative disease for some time perhaps with referred left hip and some left leg pain but no true sciatica, ie shooting pain down a specific nerve route, on this occasion the S1 nerve route. This classic sciatic pain down the distribution of the S1 nerve route came on after the boating incident. Having spoken to the patient again today I therefore contend that the disc prolapse with nerve route involvement occurred just after the boating incident… The boating incident produced further damage to the degenerative disc with some tearing of the annulus febrosis of the disc and the subsequent development of a disc prolapse at the L5/S1 level.
36. In a written report dated 18 August 2003 (Exhibit R1), Mr M. Shannon, orthopaedic surgeon, noted that the applicant gave a history of backache at the age of 21. He reported that she had back trouble in mid‑2001, and initially the pain began in her left hip and groin, with shooting pain in the left buttock and thigh. He said that the applicant then described the boat incident as a nightmare, and she suffered back pain and difficulty in standing. Mr Shannon said that the applicant’s symptoms deteriorated between August 2001 and May 2002, and she underwent surgery in August 2002, returning to full-time work in January 2003.
37. In Mr Shannon’s opinion there was no doubt that the applicant had a pre‑existing lumbosacral disc degeneration, on which was superimposed a major lumbar disc prolapse. He said that it was documented that the applicant’s back was causing problems in the boat incident, and that it can be stated with some confidence that such impact as was described when the boat repeatedly bottomed out would place significant stresses on the lumbar spine, and particularly on a previously symptomatic degenerate lumbosacral disc. However, Mr Shannon noted that there did not appear to be any documented problems with the applicant’s back in the six months or so after the boat incident. He concluded that while the boat trip had a potential to cause significant damage to a degenerate spine, I can find little evidence from her general practitioner’s notes that that any significant aggravation occurred.
38. In oral evidence Mr Shannon said that the shooting pain experienced by the applicant in June 2001 suggested a disc bulge which was probably sciatic pain. He told the Tribunal that the disc prolapse might have occurred spontaneously or as a result of a minor incident, and did not necessarily require any trauma such as that reported by the applicant in the boat incident. Under cross-examination he said that he was surprised that after the boat incident the applicant attended her doctor on several occasions and did not mention back pain.
39. In a written report dated 10 August 2001 (T4) Ms F. Leahy, occupational therapist, stated that on 8 August 2001 she carried out an ergonomic assessment of the applicant’s workplace, following a referral after the applicant complained of back pain at her workstation. Ms Leahy said:
Kathleen currently experiences lower back pain and recent x-rays indicate a degenerative lesion at L5/S1. Kathleen has experienced sciatica radiating down both lower limbs however this has improved recently.
Ms Leahy made a number of recommendations including the provision of a footstool to ensure correct sitting posture.
40. In a written report dated 16 September 2002 (T24) Dr L. Van Geyzel, occupational physician, stated that she examined the applicant on 2 September 2002 and diagnosed a large prolapse of the L5-S1 lumbar disc with left S1 nerve root compression resulting in severe left-sided sciatica. Dr Van Geyzel reported that the applicant gave a history including the details of the boat incident and its aftermath:
She states she felt sore the following day, but attended work. She states that the soreness “tapered off” but by approximately November 2001, she started experiencing shooting left leg pain, left buttock pain, and numbness of the left foot, especially the toes. She states that there was associated lower back pain, but the left leg symptoms were her main problem. She states that her symptoms gradually worsened to the extent that she could no longer walk.
CONSIDERATION OF THE ISSUES
41. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 provides:
14.(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
42. Mr Gourlay submitted that that the Tribunal should make its decision on the balance of probabilities or on the basis of a reasonable satisfaction. He acknowledged that the applicant had shown considerable fortitude in continuing to work when she was suffering from significant pain and discomfort. However, he noted Dr Konopnicki’s evidence that the applicant had presented in June 2001 with symptoms of pain in her back and shooting pain in her left leg.
43. In respect of the boat incident Mr Gourlay stated that the applicant did not seek medical treatment immediately afterwards and when she did attend her general practitioner on at least three occasions after the boat incident, she did not refer to pain in the back, leg or buttocks, before mentioning the pain to Dr Konopnicki in February 2002. He noted that the applicant did not take time off work immediately after the boat incident. In respect of the flare-up in her back pain in November 2001, Mr Gourlay noted the applicant’s comments to Dr Van Geyzel about shooting pain in the left leg, left buttock and numbness in the left foot in November/December 2001. He said that the worsening of pain was also reported by the applicant to Mr Carey in a questionnaire completed on 12 June 2002 and to Ms H. Pollington, physiotherapist, on 28 March 2003. Mr Gourlay said that the deterioration in her condition at this time effectively discounted the role of the boat incident.
44. Mr Gourlay emphasised that from February 2002 the natural progression of the applicant’s disc prolapse resulted in the need for surgery in August 2002.
45. In respect of the applicant’s change of residence in 2001, Mr Gourlay stated that initially the applicant did not suggest that the move occurred gradually, but later indicated that the move took place over several months. He noted that she conceded that she assisted with some of the packing, although she said that she did no heavy lifting. Mr Gourlay also drew attention to Major Tripley’s evidence that after the boat incident the applicant continued to go dancing, although at a less energetic level, and that she went camping during a trip to Tamworth during the 2001 Christmas holidays.
46. Mr Gourlay submitted that before the flare-up in the applicant’s condition at the end of 2001/beginning of 2002 her symptoms were non-existent or moderate. He stated that the conclusions drawn by medical practitioners in this case were largely dependent on the accuracy of the history given by the applicant. He said that the shooting pain in the left leg and the associated lower back pain that were identified by Dr Konopnicki in June 2001 were indicative of left-side sciatica that culminated in surgery in August 2002. He acknowledged that the applicant’s family members supported her case, but noted that their evidence was consistent with the flare-up at the end of 2001, and did not necessarily link the pain to the boat incident. He submitted that there was insufficient evidence to show that any aspect of the applicant’s employment contributed materially to her condition between June 2001 and February 2002.
47. Mr Carey referred to the medical evidence and acknowledged that before the boat incident there was some degree of degeneration in the applicant’s lumbosacral spine. However, he submitted that the boat incident aggravated the degeneration or caused a simple tear in the annulus. He said that, in either event, it contributed materially to her condition. Mr Carey pointed to the definable increase in the applicant’s symptoms after the boat incident. He noted that the applicant and her family were stoical in the face of pain, and should not be penalised for this. He added that in mid-July 2001 the applicant’s condition had improved and that biphasic treatment had ceased.
48. In respect of the boat incident Mr Carey stated that the evidence from the applicant and Major Tripley was clear and unchallenged. He said that the evidence from the applicant’s mother, concerning the applicant’s condition at the birthday party on 22 August 2001, supported this evidence of a worsening in her condition and of continuous back pain after the boat incident. Mr Carey described the applicant as an active person who enjoyed dancing and other activities, but who, after the boat incident, changed as a result of pain that lasted until surgery was performed in August 2002.
49. Mr Carey submitted that the accounts given by family members were consistent and plausible, and filled any gaps identified by Mr Shannon. He said that this evidence complemented the reporting of sciatica and pain in the applicant’s left buttock, and showed that the boat incident contributed to the injury suffered by the applicant, or aggravated her existing condition.
50. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
51. The Tribunal accepts the evidence from the applicant, supported by Dr Konopnicki’s evidence and his clinical notes, that that when she consulted him in June 2001 she complained of shooting pain down the left leg consistent with low back pain and left-sided sciatica. She also related back pain that had occurred ten years previously. The Tribunal accepts Mr Shannon’s evidence that the x-rays taken in June 2001 demonstrate severe narrowing of the applicant’s lumbosacral disc space, and that she developed symptoms of aching in the left buttock and groin and in the low back and thigh, leading to a referral for workplace assessment and recommendations for ergonomic measures to be taken. The Tribunal finds that on 8 August 2001 the applicant told the occupational therapist, Ms Leahy, about the shooting sensations in her leg, and as at 8 August 2001 her symptoms were due to degenerative change.
52. In respect of the boat incident, the Tribunal accepts that over the ensuing months the applicant suffered pain in her left leg and buttock, although she did not take time off work. The Tribunal also accepts the evidence from the applicant’s mother and brother that at various times after the boat incident they expressed concern at her physical condition and inability to engage in her normal activities, such as dancing, to the same degree as before the boat incident. The Tribunal accepts that the applicant displayed stoical qualities in continuing to work before reporting the back pain to Dr Konopnicki in February 2002. The Tribunal finds that the applicant did not mention the boat incident to Dr Konopnicki until 1 June 2002.
53. The Tribunal takes into account that there were no documented problems with the applicant’s back in the months following the boat incident. The Tribunal does not accept that stoicism alone would have prevented the applicant from reporting severe back pain to Dr Konopnicki, who was her treating general practitioner and had been addressing her back pain in June and July 2001. The Tribunal notes that the applicant told Mr R. Carey in a questionnaire dated 12 June 2002 that her back pain had been present for about seven months and her leg pain for five months, which dates the back pain from November 2001 and the leg pain from January 2002. The Tribunal takes into account that the applicant told Dr Van Geyzel in August 2002 that after the boat incident the soreness tapered off, but that she experienced shooting pain in her left leg in November 2001, together with associated lower back pain that worsened at the end of 2001/beginning of 2002. This is consistent with the history given to the physiotherapist and various medical practitioners, leading to the need for surgery in August 2002.
54. In respect of the applicant’s change of residence in 2001, the Tribunal finds that the move took place over several months. The Tribunal accepts that she did not lift heavy items of furniture. However, on the available material the Tribunal is unable to determine, on the balance of probabilities, whether the applicant’s activities in assisting with the packing of personal possessions contributed to the worsening of her medical condition.
55. In view of the Tribunal’s findings about the applicant’s type of pain and treatment before the boat incident, her actions afterwards, the lack of documented back problems until February 2002 and her subsequent referral to Mr R. Carey, the Tribunal accepts Mr Shannon’s opinion which doubts that any significant aggravation of the applicant’s medical condition occurred during the boat incident. Therefore, the Tribunal accepts Mr Gourlay’s submission and finds that, on the balance of probabilities, there was insufficient evidence that the applicant’s employment contributed materially to her lower back condition arising from an incident on 8 August 2001. For these reasons the application must fail.
DECISION
56. The Tribunal affirms the decision under review.
I certify that the fifty-six [56] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Lake
Clerk
Date of hearing: 2 April 2004 and 16 June 2004
Date of decision: 30 June 2004
Counsel for applicant: Mr M. Carey
Solicitor for applicant: Maurice Blackburn Cashman
Counsel for respondent: Mr I. Gourlay
Solicitor for respondent: Sparke Helmore
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