Bickerton and Telstra Corporation Limited - [2000] AATA 172

DECISION AND REASONS FOR DECISION [2000] AATA 172

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/921

General Administrative DIVISION )

Re JEFFEREY MARK BICKERTON
Applicant

And TELSTRA CORPORATION LIMITED
Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date7 March 2000
PlaceBrisbane

Decision 1. For the above reasons and pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that the respondent is liable to pay compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 in respect of incapacity and medical expenses associated with the applicant's claimed condition. 2. The Tribunal, pursuant to s.67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs associated with these proceedings up to and including 14 September 1999, but the applicant to be responsible for his own costs relating to the proceedings thereafter. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
COMPENSATION – back injury – material contribution considered – whether a work related incident caused back problems – medical evidence – credibility of applicant – balance of probabilities considered
Safety, Rehabilitation and Compensation Act 1988 ss.14, 67
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

7 March 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Jefferey Bickerton (the applicant) for review of a decision of a delegate of the respondent dated 27 July 1998 (T34) which affirmed a decision of a previous delegate dated 27 March 1998 (T14) to deny liability for the claimed condition of lower back lumbar spine sprain injury with probable disc protrusion pursuant to s.14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T38), together with 12 exhibits, 6 lodged by the applicant (Exhibits A1-A6) and 6 lodged by the respondent (Exhibits R1-R6). In addition, the Tribunal heard evidence from the applicant, who also called Dr R. Packer, an Orthopaedic Surgeon. The respondent called as witnesses Mr R. Reseigh, Telstra Supervisor, Dr I. Low, Occupational Physician, and Dr W. Ryan, Orthopaedic Surgeon. The applicant was represented by Mr D. O'Gorman and the respondent was represented by Ms E. Ford, both of counsel.
The parties being in agreement that the applicant does have a back condition, the issues before the Tribunal are whether or not the applicant's condition arose out of the course of his employment with the respondent, or whether the applicant's employment with the respondent materially contributed to his condition.
history of the application
The applicant is a 35-year-old man who has been employed with the respondent since about March 1994. On 25 February 1998, he lodged a claim for rehabilitation and compensation with the respondent (T5) in which the diagnosis at question 13 was stated as "lower back lumbar spine sprain injury with probable disc protrusion". In response to question 17, asking as to the sequence of events leading to the injury, he stated:
"WOKE UP ON 2/2/98 AND STARTED SHIFT BACK WAS PAINFUL FROM TIME I WOKE UP. DURING NEXT 2 HOURS AT WORK PAIN ON MOVEMENT CAUSED ME TO SEEK MEDICAL ATTENTION. PAIN WAS IN LOWER RIGHT HAND SIDE OF BACK AND GIVEN TIME OFF BY DOCTOR AS UNABLE TO CONTINUE NORMAL DUTIES."
On 27 March 1998, a Senior Claims Officer of the respondent denied the claim (T14) and stated (inter alia):
"…
1.The said Jefferey Bickerton did not sustain and [sic] injury which arose out of, or in the course of, his employment with Telstra Corporation Limited; and
2.Telstra Corporation Limited is not liable to pay compensation under section 14 of the Act to the said Jefferey Bickerton in respect of lower back lumbar spine sprain injury with probable disc protrusion."
In her statement of reasons (T15), she stated (inter alia):
"…
Whilst the claimant appears to suffer a medical condition stated by Dr Ryan to be a disc prolapse at L4/5, there is no evidence currently available to indicate that this condition/injury arose out of, or in the course of, the claimant's employment with Telstra Corporation Limited.
The incident report provided in this matter clearly indicates that no specific work event occurred to which the commencement of the symptoms may be referable, and this is confirmed by the information provided by the claimant in completion of the claim papers. It is apparent that the claimant awoke on the morning of 2 February 1998, and immediately experienced pain in the lower back. At the time of commencing duty on this date, he was already experiencing problems in the lower back, and these symptoms prevented him from performing his duties on this date, at which time medical attention was sought.
…"
This decision was affirmed on review dated 27 July 1998 (T35). The review officer stated in his statement of reasons (inter alia):
"…
On 2/2/98 the claimant commenced his shift but subsequently rang the supervisor to advise that he was unable to continue working due to back pain and the restricted movement caused by the back pain.
The supervisor immediately visited the claimant at the job in Riding Road, Balmoral and observed the claimant in considerable discomfort. The supervisor's first question to the claimant was … Had this occurred at work that morning due to a work related incident …? The claimant replied that it had not been work related.
This is born out by the statement made by the claimant on his claim , on Friday afternoon. He did not work in his employment with Telstra over that weekend, and on Monday morning 2/2/98 he woke up with a painful back.
After reviewing the evidence on file I have not found any evidence that would lead me to draw any conclusion other than that contained in the determination of 27 March 1998."

applicant's evidence

The applicant prepared a statement dated 24 May 1999 (Exhibit A3) in which he stated (inter alia):
"…
13.I asked Reseigh to notify me or arrange to have me notified about the safety testing of the clothing and to log in his diary my complaint about the discomfort and restrictions I was experiencing whilst wearing the clothing and performing my duties.
14.I do not know if my complaint was ever logged in Reseigh's diary. I never received a response to my complaint.
15.On or about 21 January 1998, whilst I was installing cabling in the ceiling of a customers premises at Carina I became wedged between battens where the level of the roof line changed and in spite of a considerable amount of struggle and straining I was unable to free myself for a period of about 10 to 15 minutes.
16.In accordance with standard protocols I reported this incident, verbally, to Reseigh but no response or discussion was forthcoming from him regarding this.
17.By about 24/25 January 1998 I noticed that a niggling irritation or strain had developed in my lower back. I presumed at the time that the strain had been caused by my attempts to free myself from the ceiling on 21 January 1998 but I did not raise the subject again with Reseigh because of my previous interactions with him.
18.On 2nd February 1998, I went to work at premises at Suvla Street, Balmoral After about two hours of work and in a stooped position I experienced a sharp pain in my lower back to the point where I could not continue my duties.
19.I telephoned to inform my supervisor (Reseigh) and the work management centre of the situation and I asked for someone to relieve me so I could seek medical attention.
…
22.I subsequently returned to work and on 13 February 1998, late in the day, …again in a stooped position, I again experienced severe and extremely excruciating pain in my lower back to the point where I had to lay down on the ground.
…
32.On 22 February 1998, I consulted Dr William Collyer who examined me. He informed me that (t)he suspected a pro-lapsed disc due to my work conditions and referred me to Dr Ryan, a specialist Orthopaedic Surgeon.
33.On Dr Collyer's recommendation I then completed an application for Worker's Compensation…My wife helped me complete the form. At no time did I state that this was not a work-related incident.
…
51.I am seeking compensation for what is and was a work related injury based on the medical evidence and legal opinions given to me.
…"
In oral evidence, the applicant stated that he weighed approximately 100 kilograms, and was 180cm tall. He told the Tribunal that his work in the relevant period in 1998 involved installation of telephone services in residential homes, and that this work involved climbing into ceiling and floor spaces.
In relation to the conversation with Mr Reseigh about wearing his old uniform, he stated that he did not believe that the conversation occurred on 30 January 1998, but was earlier in that month.
He reaffirmed, under cross-examination, his contention that he was stuck in ceiling batons on or about 21 January 1998, that he did tell Mr Reseigh about this and may have told one or more of the doctors.
He told the Tribunal that he first noticed irritation in his back on or about 23 or 24 January 1998, and that he told doctors and Mr Reseigh that the onset of pain was 2 February 1998. He stated that he woke up with the pain on that later date, that it was noticeable upon moving and particularly when crouching on the job. He further stated that he told Mr Reseigh that he had woken up with the pain. He also may have told Mr Reseigh that the pain was work related, but in any event, he was definite that he had not told Mr Reseigh that the pain was not work related on 2 February 1998.
He stated that he believed that he woke up with the pain on 2 February 1998 as a result of his work duties. He told the Tribunal that he may have told Dr Ryan that the injury was sustained as a result of lifting, and believes that this lifting might have been his toolbox.
He told the Tribunal that the pain became progressively worse from 2 February 1998 onwards. After several days off, he returned to work, but on 9 February 1998, he experienced pain in his back and required time off until 13 February 1998, at which time he again developed further back pain, resulting in his incapacity until September 1998.
He agreed, under cross-examination, that he would have had a conversation with Mr Reseigh on 30 January 1998, but denied that he would have told him he was going to be gardening that weekend.
He stated that the only gardening activities he performed were weeding and mowing a five metre square section of lawn, and that he may have weeded on the weekend of 31 January 1998 and 1 February 1998. He stated that he does not agree that his injury may have resulted from lifting objects in the garden.
mr r. reseigh's evidence
Mr Reseigh was the applicant's supervisor during the relevant periods.
In his oral evidence, he stated that he supervised approximately 14 or 15 people in February 1998.
In relation to the incident on 21 January 1998, he stated that he does not recall the applicant informing him of any problems, but that it could be his memory at fault. He further stated that if the applicant had informed him of an injury on that day, he would have filled out a P400 form.
He stated that on the basis of a diary entry, he believed the conversation regarding the provision of a new uniform to the applicant occurred on 30 January 1998. He told the Tribunal that he had told the applicant that he could wear different shorts when he was inside ceilings but had to change into the new uniforms when out in public.
He gave evidence that he had a recollection of a passing conversation on 30 January 1998 in which the applicant told him that he would be working around the house on the weekend, but he could not inform the Tribunal as to what constituted "working around the house".
In relation to the incident on 2 February 1998, he told the Tribunal that he noticed the applicant was in pain, and inquired of him either "did it happen at work?" or "is it work related?" and that the applicant said "no". He referred to an entry in his diary at that date, which stated (Exhibit R3(2)):
"JB OFF SICK 11 AM TO 4 PM ASKED IF BACK CAUSED BY WORK AND OFFICER REPLIED NO IT WASN'T THEN WENT TO DOCTORS."
He stated that on 23 February 1998, the applicant rang him and said that the doctor had informed him that the back problem was work related. He subsequently attended the applicant's house to complete an incident form (T3/11).
dr i. low's evidence
Dr I. Low, Occupational Physician, prepared two reports in relation to the applicant. In the second report dated 8 September 1998 (Exhibit A4), he stated (inter alia):
"…
… The postural requirements of his usual job would increase the likelihood of a mechanical derangement of his back. The ladder, weighing 27kgs, and drum of drop wire would exceed the recommended weight limit, as defined by the National Institute for Occupational Safety and Health (USA), the handling of the ladder being associated with asymmetric loading of the spine. …
Albeit that Mr Bickerton states that he is currently not experiencing low back pain, I would estimate that Mr Bickerton would be towards or at a moderately increased risk of further low back trouble if he returned to his usual duties in view of the underlying spinal pathology and job requirements."
In oral evidence in support of his reports, Dr Low referred to an extract from a publication by the National Institute in Occupational Safety in America when defining how disc injuries occur. He stated that repetitive compression on the discs from lifting causes small micro fractures and the repetition of such activity causes bulging, protrusion and eventual prolapse.
He stated that it is possible to get damage to discs without any pain being recorded and pain may not be experienced in the events immediately leading up to the prolapse. He agreed, in cross-examination, that lifting and posture can cause problems in discs, but that the applicant's job would not produce enough stress to produce micro fractures. He told the Tribunal that the bending, crouching and crawling performed by the applicant would not produce micro fractures.
He gave evidence that to produce such fractures there needs to be quite a degree of stress from the activities performed and that, in his opinion, such stress was not apparent in the applicant's case. He stated that the applicant may have experienced mechanical back pain associated with his work, but that it would not have produced disc damage.
He expressed his opinion that either the applicant experienced a series of fractures and suffered the "final insult" on the weekend immediately preceding 2 February 1998, or that the applicant was simply one of those people to whom these things happen for no apparent reason.
He stated that a person with the amount of disc damage the applicant has should not return to the duties performed by him in February 1998.
He stated that occupational medicine was a more appropriate discipline in terms of diagnosing back problems than orthopaedic surgery.
dr w. ryan's evidence
Dr W. Ryan, Orthopaedic Surgeon, prepared a report dated 17 March 1998 (T12) in which he stated (inter alia):
"…
I think he suffers from disc prolapse at L4/5
The balance of probability is that I think his condition is due to a work incident which I understood was on the 22/02/98 [sic].
…
I think his incapacity is related to his employment.
I think he is unfit for work at this time.
…"
In oral evidence in support of his report, Dr Ryan stated that a significant injury was not necessary to cause a disc prolapse. He told the Tribunal that disc prolapse can occur without injury as a result of naturally occurring degenerative change, and that the most common cause was the increased pressure on the back during the night resulting in people suffering a prolapse in the morning. He further stated that in this case, it would not matter what the applicant did on the preceding weekend, and that it was highly likely that it was just a naturally occurring prolapse.
He stated that the applicant's work activities did not contribute to the prolapse. He told the Tribunal that whilst the work activities might have contributed to the pain the applicant suffered, it would not have contributed to the development of his underlying pathology.
dr r. packer
Dr R. Packer, Orthopaedic Surgeon, prepared two reports dated 8 October 1999 (Exhibit A5) and 30 November 1999 (Exhibit A6). In the first report he stated (inter alia):
"…
His condition has reached a reasonably stable state although it is possible that some further improvement may occur. Nevertheless, he would be advised not to return to work involving heavy lifting, constant bending, twisting movements or having to get into confined spaces for a fear of further aggravating the degenerative condition.
I would assess a permanent disability of 5% loss of body function in relation to the incidents described in early 1998, in particular to the additional episode where he was working in an awkward position and further aggravated by the episodes on 2nd February 1998 and 13th February 1998."
In the second report he stated (inter alia):
"…
I would say the incident that this man suffered at work in mid January 1998 aggravated a pre-existing condition of lumbar spondylosis but the incident on 2nd February 1998 contributed to this aggravation and on 13th February 1998 caused the condition of disc protrusion in an already degenerate disc and resulted in radiation of pain from his back to his right leg."
In oral evidence, in support of his reports, he stated that the history he had received from the applicant of leg pain on 13 February 1998 indicated that there had been some progression in the condition since the first onset in January 1998.
In response to questions asked during cross-examination, he stated that he does not agree with the theory that fluid flows into the discs during the night and can cause problems as a result. He further stated that it would be unusual for a man in his thirties with normal degeneration for that age to have a disc prolapse as a result of bending or being stooped but not impossible. He also stated that it would not be unusual for such an occurrence in the presence of pre-existing degeneration.
He stated that the most significant incident in terms of the applicant's back pain was that on 21 January 1998, which caused an annulus tear in the disc rim, which was compounded subsequently on 13 February 1998 when leg pain was developed as a result of nerve irritation. He further stated that if the applicant had the injury causing the annulus tear, then he could develop a disc injury by turning in bed or twisting because the annulus of the disc would already be damaged.
other medical evidence
The Tribunal also notes the following written medical opinions contained in the documentary evidence.
In a report dated 7 April 1998 (T26), Dr B. Collyer, General Practitioner, stated (inter alia):
"…
The disc protrusion is in all probability due to his work."
In a report dated 5 May 1998 (T27), Dr S. Hunt, General Practitioner, stated (inter alia):
"…
In my opinion the most likely cause of his back condition is the work duties being the installation of telecommunications equipment in confined spaces."

applicant's submissions

Mr O'Gorman submitted, on behalf of the applicant, that the applicant's employment in early 1998 contributed in a material degree to his back problems. He submitted that the applicant was forthright and that given the time delays before he gave his evidence, it was not surprising and indeed consistent with his honesty that he was vague on occasions.

He contended that the Tribunal should not place any weight upon the applicant's apparent comments to Mr Reseigh that the injury was not work related as the applicant is not a medical practitioner and was therefore not in a position to say whether or not his injury was work related.
He submitted that the combination of the facts that the applicant had no history of back problems prior to 1998, was above average size and had employment which placed pressure on his back in conjunction with the medical evidence, support the conclusion that the employment materially contributed to the applicant's injury. It was not uncommon for such problems to have a gradual onset in his submission.
respondent's submissions
Ms Ford submitted, on behalf of the respondent, that the applicant has been inconsistent in his history of events in evidence before the Tribunal and in what he has told various doctors and Mr Reseigh.
In relation to the alleged 21 January 1998 incident, she submitted that the Tribunal should rely on the fact that Mr Reseigh worked overtime with the applicant on that day and has no recollection of a complaint of the applicant being stuck in the ceiling batons. In relation to the 2 February 1998 incident, she submitted that the best evidence was that the applicant woke up with pain and that there was no specific incident at work on that day. She further submitted that there was no incident on 13 February 1998.
She submitted that there is no contemporaneous record of the applicant indicating work activities causing back problems and that there is no specific incident to which the applicant can point, merely having "pain upon movement" (T5/15).
On the balance of probabilities in her submission, there is no causal connection between the applicant's injury and his work activities.
discussion and findings
In determining this matter, the Tribunal notes that it must be satisfied that the applicant's work contributed in a material degree to the underlying incapacitating disease or injury, not simply that such disease or injury rendered him incapacitated for work. The question of causation is to be determined on the balance of probabilities. The Tribunal was referred by both counsel to the consideration given to both of these aspects by the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 which stated (inter alia) at p328 as follows:
"…
The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the sections 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.
…"
The two core assessments the Tribunal must make in this matter concern what medical evidence it prefers and whether, as a matter of fact, it can be said that there was some work related incident that could be said to be causally related to the applicant's back condition.
Turning to the medical evidence, the Tribunal notes that the two General Practitioners are favourable to the applicant, and that Doctor Hunt's report arose as a result of a contemporaneous consultation dated 2 February 1998.
In respect of the specialist medical evidence, the Tribunal found the evidence of Dr Ryan to be confusing and contradictory. His oral evidence was in direct contradiction to his written reports and his explanation of this contradiction was unsatisfactory in the Tribunal's opinion. To change from a position whereby he stated that the applicant's injury was caused by his work to one whereby he asserted that it was caused by his being asleep is such a shift that the Tribunal does not consider either position advanced by Dr Ryan to be of benefit to this enquiry. The Tribunal disregards his evidence as being of little value.
Dr Low is of the opinion that the applicant's work would produce mechanical pain, but would not contribute to the underlying condition. Dr Low noted in his report dated 19 June 1998 (T31) that the applicant told him:
"… that the only work-related activity he thought it may be related to was crawling through a small ceiling space a week or so previously. …"
The Tribunal accepts Dr Low's evidence as to the general proposition that the type of work performed by the applicant would not normally be causally linked to such a back injury. Where the Tribunal was not assisted by Dr Low's evidence, however, was in relation to whether any specific abnormal work instances could cause such a problem. To produce the micro-fractures described by Dr Low, something must have happened to the applicant, whether or not it was work related. The Tribunal was not entirely satisfied with Dr Low's explanation that since he did not think the type of work could cause micro-fractures, this must simply be one of those cases where "these things happen". If one can categorically rule out activities such as carrying a heavy, bulky ladder and crawling through roof spaces as not being activities of sufficient stress to cause the applicant's problem, it would seem logical to the Tribunal that there should probably be some other ready explanation beyond the assertion that these things just happen. If these things do just happen, it would appear just as logical not to discount the type of work as to causation.
Dr Packer told the Tribunal that if the incident described by the applicant occurring around 21 January 1998 happened as the applicant described, then that incident would have caused an annulus tear of the disc, which in turn could lead to further problems. The Tribunal prefers this evidence of Dr Packer in that it is consistent with Dr Low's general proposition, but also notes the potential of abnormal work events to cause such an injury. This seems the most reasonable proposition to this Tribunal and the Tribunal so finds.
With this in mind, the Tribunal turns its attention to the factual evidence before it. In relation to the events of 2 February 1998 and 13 February 1998, the Tribunal notes that the most consistent version of events, taking into account the applicant's evidence and the documentary evidence (see report of Dr Ryan (T12) and Dr Hunt (Exhibit R6) in particular, the latter of which contains the entry "LBP since the weekend") is that the applicant woke up with pain on those mornings, and on attempting to work, found that the pain in his back was such that he was unable to work. The Tribunal cannot be satisfied that there was an "event" on either occasion that could be said to be causally related to the applicant's back problem. It was more likely the case on those occasions that the applicant was prevented from working because of his back problem, not that work was adding in a causal sense to his problem on those occasions and the Tribunal so finds.
Much was made of what the applicant may or may not have said to Mr Reseigh on these occasions, but the Tribunal did not find the evidence of Mr Reseigh to be particularly compelling. He was not an incredible witness, but rather, and perhaps understandably, had no great memory of events. There is also doubt in the Tribunal's mind as to whether his diary entries were in fact made with sufficient contemporaneity to be of relevance to this enquiry. It seems to the Tribunal that too much weight has been given by the Senior Claims Officer (T35) to Mr Reseigh's recollections. It is not a sufficient basis to refuse a claim because an employee might say to a supervisor, "no, it is not work related". Maybe if the employee was medically qualified this would be sufficient grounds to refuse the claim, but given the evident industrial tension, it is reasonable to conclude that the applicant either was not in a position to say at that stage whether his condition was work related, or did not want to say to that particular person. This applicant acted reasonably, in the Tribunal's opinion, in that he only later advised of a possible work relation having received medical treatment and having being told by the doctor that it was probably work related. He reasonably relied upon doctors to advise him how things might have happened.
In relation to the alleged incident occurring on or about 21 January 1998, the Tribunal heard evidence from the applicant that this event (being stuck in ceiling batons) occurred. In Ms Ford's submission, however, this was questionable due to a lack of time off, lack of consultation to any doctor, or of reporting it to Mr Reseigh, who was probably working with him at the time.
In relation to Mr Reseigh, the Tribunal again notes the industrial problems at the time, such that it would not be surprising had the applicant not told him anything. Mr Reseigh told the Tribunal that had anything happened, he would have completed the P400 form, but the Tribunal notes that when something did happen on 2 February 1998, (the applicant having to stop work because of pain) no such form was completed until weeks later, only after the doctor said it was probably work related. The Tribunal has no difficulty concluding that a P400 would perhaps have only been completed in respect of an incident on 21 January 1998 if a doctor had been consulted and had said any injury was work related. The absence of a P400 form is in no way conclusive. Further, Mr Reseigh told the Tribunal that something may well have happened and it could just be his memory at fault. The Tribunal cannot, therefore, attach much weight to Mr Reseigh asserting that such an incident did not occur, for he simply cannot remember.
The Tribunal found the applicant to be a credible witness. He did not try to embellish his evidence to the Tribunal and, though a poor historian, this does not take away from the Tribunal's overall impression that he was credible. In the Tribunal's opinion, had he made up an incident in order to manufacture a work related aspect to his back problem, given the nature of his work it would have been far easier for him to manufacture a story about lifting a ladder or a pit lid than one about being wedged in ceiling batons. The fact that the incident he alleges is of such an unusual character lends credit to his evidence in the Tribunal's opinion. It is further not an incident which he has claimed all along must be the sole cause of his problems. At all stages of the proceedings he has simply raised this incident as something which occurred around the time he began to feel back pain and which he feels may be related. He has rightly left this conclusion to the doctors.
Finding the applicant to be credible, the Tribunal is satisfied that an incident occurred on or about 21 January 1998 whereby the applicant became wedged in the ceiling batons, and that such an incident would have developed tightness and caused considerable abnormal strain in his back as he struggled to free himself. Having preferred the evidence of Dr Packer, the Tribunal is satisfied on the balance of probabilities that such an incident caused an annulus tear of the disc, this being an aggravation of his pre-existing back condition, and that such a tear developed into a disc problem without the need for significant incidents on 2 February 1998 or 13 February 1998. According to Dr Packer, "the damage to the annulus of the disc had already been done". The lack of time off in January 1998 is not fatal to the applicant, for it is reasonable to assume that the tearing aggravated the problem such that it caused pain which was not immediately incapacitating, but took some time until further aggravated by whatever slight means to become incapacitating.
The Tribunal is satisfied, on the balance of probabilities, that the applicant sustained an injury in the course of his employment, that being an aggravation on or about 21 January 1998 of his pre-existing back condition and that the applicant's work contributed in a material degree to his back injury. He is entitled to compensation for such incapacity and medical expenses under the Act, and the Tribunal so finds.
This Tribunal was not asked to determine the period of incapacity and leaves this for the relevant authority to determine.
In relation to costs, Ms Ford submitted to the Tribunal that in the event of the applicant being successful, the respondent should not bear the costs of the adjournment of these proceedings, that being an "indulgence" of the applicant. The matter was first heard on 13 and 14 September 1999 and adjourned at the applicant's request to enable Dr Packer to be called, resuming on 28 January 2000 The Tribunal agrees with Ms Ford that it would be unreasonable for the respondent to bear the costs of any proceedings subsequent to 14 September 1999, in that whilst Dr Packer's evidence was of assistance to the Tribunal, there is an expectation that parties come to a hearing in a sufficient state of preparedness to ensure finality of proceedings. It was at the applicant's request that the matter was adjourned, and given that it was through no fault of the respondent that the matter was not finalised in September 1999, the respondent should not be made to pay costs after that time.
decision
For the above reasons and pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that the respondent is liable to pay compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 in respect of incapacity and medical expenses associated with the applicant's claimed condition.
The Tribunal, pursuant to s.67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs associated with these proceedings up to and including 14 September 1999, but the applicant to be responsible for his own costs relating to the proceedings thereafter. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  13/14 September 1999 & 28 January 2000
Date of Decision  7 March 2000
Counsel for the Applicant        Mr D. O'Gorman
Solicitor for Applicant               Flower & Hart
Counsel for the Respondent    Ms E. Ford
Solicitor for the Respondent    Phillips Fox