Borrett and Military Rehabilitation and Compensation Commission

[2005] AATA 559

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 559

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/475; W2004/314

VETERANS' APPEALS  DIVISION		)
Re		STEPHEN BRADLEY BORRETT

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal MJ Allen, Member

Date13 June 2005

PlacePerth

Decision The decisions of the respondent made on 20 November 2002 and 1 September 2004, the subject of proceedings W2002/475 and W2004/314 respectively, are affirmed.

[sgd. M J Allen]

Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for permanent impairment arising from injury suffered in 1981 – that injury previously the subject of accepted liability to pay compensation – subsequent decision in 2004 that respondent no longer liable to pay compensation for the 1981 injury after 1 December 1988 to the present date – consideration of nature of injury prior to 1988 and whether applicant’s low back pain and facet joint condition in 1991 and thereafter were causally related to the 1981 injury – finding that there was no causal relationship and that effects of the 1981 injury had ceased prior to 1 December 1988 – reviewable decisions affirmed

Compensation (Commonwealth Government Employees) Act 1971

Veterans’ Entitlement Act 1986 s 70

Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 62

Australian Postal Corporation v Lucas (now Owen) (1991) 25 ALD 266

REASONS FOR DECISION

13 June 2005 M J Allen, Member  

1.These proceedings involve the review of two decisions made by the respondent concerning the applicant:

(a)On 20 November 2002 the respondent made a decision to affirm a decision made on 26 September 2002 to deny liability to pay the applicant compensation for permanent impairment in respect of “low back pain” under s 24 and s 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). This decision is the subject of proceedings W2002/475;

(b)On 1 September 2004 the respondent made a decision that the applicant was not entitled to any compensation under the Act after 1 December 1988 to the date of the decision. This decision is the subject of proceedings W2004/314.

2. At the hearing of the proceedings the applicant was represented by his solicitor, Mr Christie, and the respondent was represented by Mr Lenczner of counsel. Oral evidence was given by the applicant and on his behalf by Dr P Woodland. Evidence was given on behalf of the respondent by Dr W A Plozza and Dr A Home. The respondent also called as a witness, but at the applicant’s request, Dr PJ Zilko. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act5, 1975 (T1 – T184) in proceedings W2002/475 and Exhibits A1 – A3 tendered on behalf of the applicant and R1 – R6 tendered on behalf of the respondent.

Background

3.      The applicant was born in September 1962 and served as a member of the Australian Army between July 1980 and July 1986.  He was not discharged for any medical reason.

4.      In February 1986 the applicant lodged a report of an injury (T14) and a claim for compensation (T12) under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) in respect of an injury or disease that was described as “lower back pain”.  The date on which the injury occurred or the symptoms of disease first became apparent was said to be 14 July 1981 and the period of incapacity for work as a consequence of the injury was said to be “5 days from 30 July 1982”.  The applicant’s description of how the injury occurred or what he was doing when the symptoms of disease first became apparent was “jumping off trucks practising vehicle ambush drills … “. (T p26).

5.      On or about 1 October 1986 the respondent determined that the applicant “… sustained personal injury arising out of or in the course of his employment on 14 July 1981 namely, low back pain” and that the Commonwealth was liable to pay compensation in respect of that injury (T p34).  It is possible that decision was made on a date somewhat earlier than 1 October 1986 because T p33 is a letter from the Department of Defence to the applicant dated 3 September 1986 advising that liability had been admitted for low back pain.  For the purposes of this decision I will treat 1 October 1986 as the applicable date.

6.      In August 1988 the applicant lodged a claim for a pension in respect of his lower back under the provisions of the Veterans’ Entitlements Act 1986 (“the VE Act”). That claim was initially refused in January 1989 (T pp 307-310) but on 3 March 1989, on reconsideration, the applicant’s claim for a pension was accepted as a defence-caused disease or injury within the meaning of s 70 of the VE Act, and a pension was granted at 10% of the general rate with effect from 22 May 1988.

7.      In February 1994 the applicant lodged a claim for compensation for permanent impairment in respect of his low back pain under the Safety, Rehabilitation and Compensation Act 1971 (“the Act”).  He described the permanent injury or impairment as “I suffer from constant low back pain which restricts me from doing any form of exercise or repetitive movement” (T98). 

8. On 13 May 1994 the respondent determined that the applicant was not entitled to compensation for permanent impairment under the Act because his back condition was considered to have become permanent before 1 December 1988 (that being the date on which the Act came into effect) and that under the 1971 Act there was no provision for the payment of lump sum permanent impairment compensation in relation to back injuries (T 103).

9.      On 30 August 1994 the respondent reconsidered that decision at the request of the applicant’s solicitors and affirmed the decision for the same reasons (T 108).  No steps were taken by the applicant at that time to have that decision reviewed by this Tribunal.

10. In May 2002 the applicant submitted a claim under the Act for compensation for permanent impairment in respect of the condition of low back pain (T 171). On 26 September 2002 the respondent determined that the impairment from which the applicant suffered became permanent in 1981 and that because the 1971 Act did not provide for the payment of lump sum compensation for back conditions, no liability could be accepted under the Act. On 20 November 2002, on reconsideration, the respondent affirmed the decision of 26 September 2002 because the applicant’s impairment was considered to have become permanent before 1988 and compensation in respect of back injuries was not payable under the 1971 Act.

11.     The applicant applied for the review of that decision in this Tribunal and the matter originally came on for hearing in February 2004.  The final witness at that time was Dr Zilko.  The matter was adjourned so that a transcript of Dr Zilko’s evidence could be considered by Drs Woodland and Home (who had given earlier evidence) and the matter was eventually scheduled to resume in September 2004, so that Drs Woodland and Home could give further evidence.

12. In the meantime, the respondent initiated a reconsideration of its liability to pay compensation to the applicant pursuant to s 62(1) of the Act and on 10 August 2004 the respondent informed the applicant that liability for his compensable low back pain condition would be ceased under ss 16, 19 and any other section of the Act. The applicant was given the opportunity to respond and on 1 September 2004 the respondent, acting under s 62(1) of the Act, varied the determination dated 1 October 1986. The applicant was advised that “liability is accepted for your ‘low back pain condition’ with a date of injury of 14 July 1981. I further find that you are not entitled to compensation under section 16, 19 and any other relevant section of the Act in respect of the period since 1 December 1988 to the present day, and any condition which you suffered after 1 December 1988, incapacity for employment and/or any requirement for medical treatment was a result of non-compensable factors, including your employment as a backhoe operator.”. In making that determination the respondent relied on the evidence given at the February hearing by Dr Zilko and a subsequent report prepared by Dr Home - and concluded that the applicant’s accepted compensable condition resolved prior to 1 December 1988 and that, consequently, the applicant was not entitled to compensation under any section of the Act for the period since 1 December 1988 to the present day.

13.     The applicant then lodged an application in this Tribunal for review of the 1 September 2004 decision and the parties agreed that the two sets of review proceedings should be determined together.

14. It was not in dispute between the parties that the applicant did suffer an injury in the course of his employment in 1981 and that he became entitled to receive compensation in accordance with the 1971 Act. Likewise, it was not initially in dispute that the applicant was entitled to receive compensation by way of periodic payments and medical expenses after 1 December 1988 when the Act came into operation – but as a consequence of the decision made in September 2004, that position changed. It has at all times been in dispute that the applicant was entitled to receive permanent impairment compensation under the Act. The parties agree that lump sum compensation for permanent impairment of a back condition was not possible under the 1971 Act and for such a condition to be compensable under the Act any current permanent impairment must be causally connected to the 1981 injury and be quantitatively and qualitatively different to any permanent impairment due to that injury that may have been present at 1 December 1988.

Evidence of Events Prior to Discharge from Army

15.     In his witness statement (Exhibit A1) and in his oral evidence the applicant described an incident in July 1981 in which he jumped approximately 1.5 metres to the ground from the back of a truck whilst in full combat gear.  He fell to the ground with severe pain in his lower back and required assistance from his colleagues to get to his feet.  He sought medical attention on that day, when his range of movement was described as “quite full” and he was assessed as fit for full duty (T3).   The applicant said that he had been placed on light duties before returning to full duties and Exhibit R5 is a letter dated 14 February 1991 from the Director of Army Health Services that advises that the applicant “…was absent  from duty for 2 days as a result of low back pain which he sustained on 14 July 1981.”

16.     The applicant said that thereafter he suffered recurrent episodes of back pain, which usually followed significant activity involved in army training or other activities – but that for several years after 1981 he was generally able to continue with his military duties.  T4 records that the applicant attended for medical attention on 30 July 1982 complaining of a recurrence of low back pain that was described as the “second occurrence”, with the first described as “jumping down from back of truck.  Jarred back.  Ok after heat and massage.”  On that occasion he was considered fit for sedentary duties only for 5 days (R4 and T4).  An X-ray taken on 30 July 1982 of the applicant’s lumbar sacral spine was described as showing “…..no evidence of a spondylosis or other developmental abnormality.  There is no obvious disc pathology or other degenerative change.  The vertebrae and the appendages present normal radiological features.” (T5).  On 4 August 1982 the applicant was assessed as fit only for sedentary duties for a further 5 days and on 10 August 1982 the applicant was again fit only for restricted duties – being unable to do PT, sporting runs or heavy lifting for a week.  A history of low back pain for three weeks was recorded with a further reference to his back trouble originating from jumping from a truck (T7).

17.     On 13 April 1983 the applicant again sought medical attention for low back pain that was described as having been present for about a year as a dull ache that was sharp with lifting on and off.  He was noted as having a decreased range of movements (T8).  An X-ray of the applicant’s lumbar-sacral spine was taken on 14 August 1983 and was reported as showing no vertebral or disc lesion (T9).  In May 1983 the applicant was referred to a physiotherapist for instruction regarding back care and back extension exercises (T10).  In February 1986 the applicant reported for medical attention and a notation was made that he continued to get low back pain after heavy lifting, although no abnormalities were detected on examination.  He was assessed as fit for restricted duties, with the notation “no heavy lifting till discharged from the Army.”  In March 1986 the applicant had a Medical Board Examination and was judged to be fit for discharge.  He was noted as having had a back injury with the notation being “Injured back July ’81 jumping down from truck.  Troubled since.”

18.     The applicant said that there were a number of other occasions during the time of his army service when he had sought medical attention and had been put on light duties because of his back problems but which were not recorded in the Army medical records that were available in the proceedings.  He said that he had seen the chits from these attendances when he had been at Hollywood Hospital on one occasion.  He said that he had been on and off light duties for a prolonged period prior to his discharge in the middle of 1986 and that for the last few months prior to discharge he had been answering telephones and delivering messages because he was not fit for other duties.  The applicant said that it was because he was not able to perform all Army duties to the required level, and because his physical fitness had been downgraded for ‘no service overseas’,  that he eventually decided to leave the Army when his term of enlistment expired.

Events prior to 1 December 1988 

19.     The applicant’s evidence was that on his discharge from the Army in July 1986 he worked for about eight weeks as a truck driver delivering bags of fertiliser weighing between 5kgs and 30kgs.  He lifted bags weighing up to 20kgs on occasions but usually bags weighing 20 or 30kgs were unloaded by forklift.  He did not recall any particular periods of trouble with his back during that time.  The applicant then got a job as a security guard and for about 2 years undertook duties that involved mostly driving vehicles or doing foot patrols.  He said that the walking sometimes caused discomfort to his back, but did not cause major difficulties, although he had the occasional bout of pain. 

20.     On 27 August 1987 the applicant saw his general practitioner, Dr Plozza, in connection with his back problems.  Dr Plozza noted (R1) that the applicant complained of aching at the L4/5 and L5/S1 parts of his lower back, that his extension was grossly limited, and that physiotherapy had aggravated the condition in the past. 

21.     In July 1998 the applicant stopped working as a security guard and obtained a job with a firm of drainage contractors, his duties including backhoe driving, lifting and placing of cable, and shovelling.  He held that job until 23 January 1991 when he resigned because of his back problems.  (T20 p 42). The applicant said that his work with the drainage company was quite labour intensive and he found that digging with a shovel was difficult and caused pain in his back.  His employer knew about his back problems and over time he was able to avoid most of the heavy labouring work and spent increasing amounts of time operating the backhoe, which was much less physically demanding, although it did at time cause back problems from jarring if he was digging limestone.

22.     The applicant said that he had given up playing football and cricket after leaving the Army but that he continued to play golf up until the end of 1988 or early 1989 when he gave it up because he found that it was causing increasing pain.

23.     On 17 August 1988 the applicant again saw Dr Plozza, who noted that the injury suffered in the Army had never cleared and that the pain had slowly worsened over the previous two weeks because of shovelling and heavy work.  It was worst while working but improved with rest.  On examination Dr Plozza found that the applicant had a stiff back, that his extension was limited by half and that his lateral flexion was limited in both directions.  He diagnosed lumbar-sacral strain (R1).

24.     In late September 1988 Dr Plozza completed a report to the Department of Veterans’ Affairs in connection with the applicant’s claim for a disability pension.  The report was in similar terms to the notation made by Dr Plozza on the 17 August consultation.  Dr Plozza noted that he had not ordered any investigation of the applicant’s back because he understood from the applicant that his back was X-rayed by the Army in 1982 and that no bony injury was found (R1).

25.     In October 1988 the applicant was examined by a medical officer from the Department of Veterans Affairs in connection with his disability claim.  The doctor recorded that the applicant claimed to get pain daily and that he moved around to relieve the pain.  Anything might cause the pain – eg. bending or walking – and it may last for minutes to half an hour.  The pain was mild most of the time but may get severe and sometimes it felt like a cramp.  It was noted that the applicant’s leisure activities were golf and model train sets and that he used to play cricket, football and darts.  The doctor recorded that the applicant had a full range of movement in his thoraco-lumbar spine, his straight leg raising was normal and he had no muscle spasm.  The doctor’s diagnosis were low back pain and referral to a specialist rheumatologist was considered necessary: T pp 367-371

26.     The applicant was referred to Dr Zilko, a specialist rheumatologist, who saw him on 23 November 1988.   In a report dated 1 December 1988 (T p364) Dr Zilko reported that the applicant had told him that the pain in his low lumbar region had been present for six years although it had been gradually getting worse over the last 12 months and was exacerbated by physical activity such as shovelling and decreased rest.  Dr Zilko reported that: “examination revealed that his lumbar spine movement had a normal lordosis and had a normal range of movement with a flexion of 6.5 cms and an extension of 1.5 cm over a 15cms span.  The lateral flexion rotation was not painful.  Straight leg raising was normal and equalled to 90 degrees and neurological examination of the lower limbs was normal.  I arranged for an X-ray of his lumbar spine and this was normal. … The exact cause of his low back pain is not clear, but I suggest it is more likely to be on a mechanical basis than any inflammatory disease.  It is unlikely that he has either ankylosis spondylosis or any significant back disorder induced by previous injury.  I am afraid I have no other suggestions to make regarding his management.”

Events after 1 December 1988

27.     As noted above, in January 1989 a delegate of the Repatriation Commission refused the applicant’s claim for a disability pension under the VA Act, but on reconsideration in March 1989 the decision was made that it was more probable than not that the applicant injured his back during strenuous defence service and that injury had been the cause of the low back pain from which he suffered in 1989 (T184).

28.     On 4 August 1989 the applicant saw Dr Plozza again in relation to his back, who recorded (R1) that the applicant had “back pain again after digging in trench at work”.  Dr Plozza referred the applicant to a chiropractor and on 21 August 1989 recorded that the chiropractor had not helped the applicant’s condition.  The applicant was then referred to a physiotherapist on several occasions.

29.     On 1 May 1990 the applicant saw Dr Plozza again complaining of pain in the lower pelvis brought on by squatting to lift because of low back pain.  On that day Dr Plozza referred the applicant to an orthopaedic specialist at Hollywood Hospital.

30.     The applicant saw Dr Easton, an orthopaedic surgeon, on 25 May 1990.  In a report dated 28 May 1990 (T p 322) Dr Easton reported that the applicant complained of pain in the lower back associated with occasional pain in the right leg - with the latter being much less than the back pain.  Dr Easton recorded the applicant as being healthy and slim and with a little increased lumbar lordosis.  The lumbar spinal movements were a little stiffish but otherwise adequate.  The straight leg raise was slightly impeded and uncomfortable on the right.  There was no obvious neurological deficit in either lower limb.  There was tenderness in the back well localised to the lumbar-sacral disc and to the right – possibly over the right facet joint of the lumbar sacral level  X-rays taken in 1988 were noted as showing no obvious bony anomaly or disc narrowing.  Dr Easton said that the applicant “appears to have suffered a lumbar sacral disc strain probably involving the annulis.”  He anticipated “ongoing and probably increasing problems in years to come” and arranged for the applicant to wear a lumbar-sacral belt.

31.     In June and July 1990 an Orthopaedic Registrar, Dr Collopy reported (T -pp 320 and 321) that the applicant had a full range of movement of the lumbar spine and that his problems “undoubtedly stem from some muscular tenderness strain of the lumbar spine, possible exacerbated by his hypo-lordosis.”  In July the applicant’s problem was no better.  The lumbar support had been worn continuously but the applicant did not find that it provided any lasting relief.  The applicant’s job exacerbated the back pain and Dr Collopy discussed with him the need to seek alternative employment.

32.     In October 1990 the applicant saw Dr Plozza again, again complaining of back pain and on 10 January 1991 Dr Plozza certified the applicant as unfit for his work as a backhoe operator (T- p 40).  On 5 February 1991 Dr Plozza referred the applicant to Dr Genat, an orthopaedic surgeon, who saw him on 25 March 1991.  In a report dated 25 March 1991 (T29) Dr Genat referred to the applicant having at that time “a fairly constant dilating discomfort in the low back region and frequently has attacks of severe pain in the same area with radiation down into the posterior thigh on each side.  These severe attacks of pain may last up to two weeks at a time.  They are invariably brought on by bending or lifting, twisting or jolting to his spine or by sitting for long periods of time.”  Dr Genat reported that the applicant displayed normal general mobility, had a mildly increased lumbar lordosis and was tender at the L5/S1 level of his spine.  Although he had only a very mild restriction of the lumbar spinal movement in relation to extension, there was reported moderate pain when straightening from the extended position and at the end of the extension.  There were no neurological problems.  Dr Genat noted that he had seen a CT scan of the applicant’s lumbar spine from 21 March 1991 and, despite that scan not showing any abnormality, Dr Genat considered that the applicant “clinically has a significant instability in his low lumbar spine.  He thought that further investigation of the two lower lumbar discs was necessary and suspected that “…the L5/S1 level will show a significant pathology and that this man might be in need of a lumbar spinal fusion operation.”

33.     The applicant was then referred to another surgeon, Dr Bell.  In a report of 9 July 1991 (T34) Dr Bell reported maximum tenderness in the back over the spine at L4 and L5 and also that the applicant was tender in the facet joints both right and left at the L4/5 and L5/S1 levels.  Movements of the back were not remarkably impaired but the applicant had pains on the extremes of lateral flexion and hypo-extension.  Dr Bell initiated further investigations.

34.     In a report of 19 August 1991 (T37) Dr Bell reported that injections to the facet joints at the lumbar-sacral level had given dramatic relief for a few days, but the pain was as bad as ever thereafter and again the applicant presented evidence of facet joint injury.  Dr Bell believed that the applicant’s diagnosis had been “very firmly established” i.e. facet joint injury, and in December 1991 Dr Bell performed a lumbar-sacral joint fusion at the L5-S1 level (T39).

35.     By May 1992 the applicant continued to have pain and Dr Bell concluded that there was uncertainty about the fusion on the left side of his spine and that the screws used in the previous fusion should be removed and the graft augmented on the left side (T49).  That procedure was undertaken in June 1992.

36.     Thereafter the applicant took various courses of study and reported that his back condition did not significantly improve.

37.     In May 1993 Dr Prosser, an orthopaedic surgeon, reported (T78) that the applicant had moderately restricted lumbar movements mainly in extension and left lateral flexion.  He considered that the applicant had continued mechanical low back pain and that the pain in extension suggested the origin was in the facet joints.  He thought a trial of denervation was justified.  For that purpose the applicant saw Dr Graziotti, who reported in August and October 1993 (T84 and T88) that cryotherapy had brought no relief and that maximum tenderness was now lower than the L4/5 facet area.

38.     In February 1994 Dr Griffiths, an orthopaedic surgeon, reported (T96) that the applicant still had pain in the lower lumbar spine with referral to the left side.  There was good fusion at the L5/S1 level and a little narrowing of the facetal joint at L4/5.  CT scans showed no evidence of deterioration in the disc at the L4/5 level.  Dr Griffiths thought that the applicant’s problems originated from the L4/5 level but did not advise further surgery at that time.

39.     In December 1994 the applicant saw Dr Woodland, an orthopaedic surgeon, who reported (T118) that the applicant had “activity related back pain often associated with numbness involving the anterior aspect of the right thigh although some pain radiated to the upper posterior leg.”  He thought that the applicant was genuine and gave no evidence of any inconsistency or exaggeration.  A CT scan of 18 January 1994 showed minor disc bulging at the L4/5 disc level.  He thought that the applicant had “continuing genuine mechanical lumbar back pain” and that the most likely cause of his pain was facet joint or disc pathology at the L4/5 motion segment.  

40.     In March 1995 Dr Woodland reported (T126) that the applicant had experienced total relief from bilateral L4/5 facet joint injections but then a recurrence of the usual pain.  In addition, an MRI scan from February 1995 did not show any evidence of disc degeneration at the L4/5 level.  There were no contra indications to further fusion surgery at the L4/5 level and Dr Woodland carried out that procedure in May 1995.  By November 1995 and March 1996 Dr Woodland reported (T142 and T147) that the fusion had progressed well; that there were obvious restrictions in his spinal movement but that there was no lower limb problems.  In March 1996 the applicant had a good range of spinal movement. 

41.     In his oral evidence the applicant said that after the second fusion he still had a lot of pain although it settled down to a degree.  He accepted that the pain would always be there and that he had to put up with it and “have a life”.  The applicant said that, on a scale of 1 – 10, the pain that he had experienced in the Army was at about 2 with peaks at times up to about 5 – at which times he would seek medical assistance.  That remained the case after he left the Army up to about 1989.  During that time he would have a fairly constant lower level ache which he rated at about 2 with daily episodes of pain on top of that which could go up to a level of 5 – but this was not constant, usually only about 30 minutes.  It was only occasionally that he had more severe pain that persisted and on those occasions he sought medical attention.

42.     However the pain increased during the period he worked as a backhoe operator, particularly in the last 12 months up to January 1991, so that he had persisting additional pain at the end of each working day.  However, he was able to carry out the work required in that job most of the time.

Other Evidence

43.     Dr Home (who is a specialist occupational physician) reviewed the applicant in January 2004 at the request of the respondent.  He provided a report dated 21 January 2004 (Exhibit R2) in which he reviewed the documentary material available (starting from August 1998) and took at detailed history from the applicant – which he described as being “a history of chronic low back pain commencing in July 1981 persisting in a chronic fashion until the present.”  He noted documented medical references to persisting back pain and stiffness from 1988 to the present but referred to their being “no documentation of medical treatment between his discharge and late 1988”.  He thought that there had been a significant aggravation of the applicant’s back complaint during the course of his work as a backhoe driver between 1988 and 1990.  Dr Home said that in general “…facet joint injuries impair lumbar extension and lateral movements, rather than flexion.  Therefore the finding of restricted lumbar extension and lateral flexion, as noted by Dr Plozza in August 1998, is consistent with the known pathology.”

44.     Dr Home said in Exhibit R2 that, on the assumption that the eventual diagnosis of lumbar sacral facet joint dysfunction arose in 1981, there was a “clear history” of the applicant suffering from a permanent medical condition.  He said that if the applicant’s history of persistent back pain following the 1981 injury was accepted, “maximal tissue healing would be anticipated by 1983” and that the applicant’s condition would in all probability have become permanent by 1983.

45.     In his oral evidence in February 2004 Dr Home said that on the basis of the history, including Dr Plozza’s reports from 1988, it seemed that the applicant’s main problem was facetal.  Facet joint disease causes stiffness in extension and lateral flexion and there was a “fair bit of evidence” that the applicant had a stiff back and at times the back was “quite stiff” and required mobilisation treatment to relieve the stiffness – but that was only transiently effective.  Dr Home noted that Dr Zilko, in his examination of the applicant in November 1988, had measured flexion and extension using a test (the modified Shober test) that Dr Home did not understand to be a usual test for extension.  He also noted that Dr Zilko did not refer to lateral flexion movement.  Dr Home said that all the patients he saw with facet joint pain have stiffness in extension and lateral flexion and that was part of the diagnostic process.

46.     Dr Home said that the measurement and assessment of a patient’s range of movement in the back differed substantially between doctors and contained a substantial degree of subjectivity.  Some practitioners only looked at a patient’s flexion and he thought the use of the modified Shober’s test by Dr Zilko to test extension might have involved too much margin for error.

47.     Dr Plozza said in his oral evidence that when he saw the applicant in the period 1987-89 in relation to his back he formed the view that the applicant was very careful of his back.  The applicant maintained a high level of physical fitness.  Dr Plozza said he only saw the applicant in relation to his back when the pain was above a normal “baseline level” and consequently he observed a restricted range of movements.  He was not surprised other practitioners (such as Dr Collopy and the Commonwealth medical officer) may have observed a full range of movement because they may have seen the applicant when his back pain was not exacerbated.  Dr Plozza said that when assessing the applicant’s range of movement he took into account the lordosis that he observed.

48.     Dr Woodland, in oral evidence in February 2004, said he thought the original injury in 1981 had caused facet joint or disc injury in the L5/S1 area.  There often cannot be a definite diagnosis of such injuries – and that was particularly true in the early 1980s compared to the more precise testing that has been developed since.  Because those types of conditions can flare up an examination of a person’s range of movement may give different results depending on whether the back had or had not flared up at the time of examination.  He thought a history of facet joint injury at the L5/S1 level in 1981 that got worse over the years was a fairly typical development of back problems.  Although other factors may present, wear and tear over the years can accelerate changes.

49.     Dr Zilko in his oral evidence said that he was principally looking for causes of the applicant’s symptoms of pain.  He could not, in the end, explain the cause but he was able to exclude ankylosing spondylitis or severe degenerative change.  The most probable explanation was mechanical back pain but he couldn’t find a significant physical impairment that was significant at the time or that was disabling the applicant at the time.  If the 1981 injury had started facet or disc impairment then he would have expected some sign of that to start to show on x-rays within 4 or 5 years.  He could not exclude the possibility of a facet injury but the absence of signs on the x-rays by 1988 made that much less likely.  Dr Zilko thought that it was unlikely that any injury suffered by the applicant in 1981 or 1983 played any part in his condition in 1988 because there was no significant reduction in the range of movement, no pain on movement, and the x-rays were all negative.

50.     Dr Zilko said that it was possible to have an injury that healed and then subsequent mechanical problems could cause some symptoms – but these symptoms would be independent of the original injury.  He thought it was unlikely that there would be any link between the applicant’s 1981 injury and his condition in 1991.  It was drawing a very “long bow” to conclude that an event in 1981 that showed no signs by 1988 would suddenly show up after that time.

51.     After examining the transcript of Dr Plozza’s and Dr Zilko’s oral evidence Dr Home reported on 27 February 2004 (Exhibit R6) to the following effect:

(a)it was possible the applicant suffered mechanical back pain in late 1988 unrelated to the 1981 incident;

(b)if Dr Zilko did not find any clinical evidence of spinal injury in 1988 then it was most unlikely the applicant would later develop manifestations of an injury arising from 1981 or 1983;

(c)although it could not be determined whether the applicant, between 1981 and 1988, was asymptomatic between episodes of pain or had a continuous “baseline” level of pain that was exacerbated at the time, it did not appear from Dr Zilko’s evidence that the applicant had evidence of a facet joint injury in 1988 at the time of his examination by Dr Zilko.  If Dr Zilko’s testimony is accepted then the most likely explanation of Dr Bell’s findings of facet joint dysfunction in July 1991 is that the applicant experienced “a significant aggravation of his back complaint” between December 1988 and 1990 in the course of working as a backhoe operator.  Whilst driving, digging or lifting he suffered a trauma to the facet joints or intervertebral discs which lead to persistent clinical symptoms and findings.  The alternative hypothesis – that a spinal condition arose from the 1981/83 incidents,  caused intermittent exacerbation, was not evident in November 1988, and then progressed “spontaneously” between 1989 and 1991 – was not plausible;

(d)on the evidence of Dr Zilko, it was likely that if the 1981/83 incident caused an injury to the lumbar spine then that had resolved by 1988 – notwithstanding the subsequent history of intermittent back pain.  If that evidence is correct, and the episode of pain suffered in August 1988 did resolve, then it is more likely that the applicant’s work in 1989-90 did “significantly aggravate his back complaint and cause his disability”.

52.     In his later oral evidence Dr Home said he did not believe the applicant suffered a disc injury in 1981 because one would expect to see at least reactive changes in the end plates on a plain x-ray after 4 or 5 years and it would be “… inconceivable to have a disc injury in 1981 and no changes on a subsequent CT scan in 1991.”

53.     In relation to a possible facet injury in 1981 Dr Home said that he agreed Dr Bell’s findings in 1991 confirmed a diagnosis of facet injury at that time.  However, on the basis of Dr Zilko’s evidence of the tests he did in 1988 there were no signs of facet injury.  Facet injuries are diagnosed by the presence of pain and restricted lumbar extension and lateral flexion.  The fact the applicant was able to play golf until late 1988 or early 1989 also indicated there was no facet injury prior to then – because a golf swing involves back extension and rotation and “golf and facet joint disease don’t go together”.  Dr Home said his patients with facet joint injury “universally give up golf because they just cannot tolerate the rotation.”  Facet injuries are usually caused by unprotected extension or rotation of the back.  Work involving digging and twisting of the back could cause facet joint injury.

54.     Having reviewed the medical records relating to the applicant’s period of army service Dr Home thought the 1987 injury was probably some sort of muscular ligamentous injury, probably ligament type, that had healed at times and then flared up due to heavy lifting at other times.  The majority of such injuries heal within 3 months but a small percentage takes 12-18 months.  The fact that there was a gap of about 12 months between the 1981 injury and the 1982 recurrence means it would be “drawing a bit of a long-bow” to suggest the 1981 incident had anything to do with anything that happened after that.  The fact the applicant only had episodes of pain, was able to play golf up until the time he started work as a backhoe operator, had a full range of movement when seen by Dr Zilko, and that “things went downhill” from the end of 1988 suggests that prior to that time he had not “developed a particularly irreversible process.”

55.     Dr Home said the muscles and ligaments injured in the applicant’s soft tissue injury in 1981 may have healed “… with a bit of scar tissue and the scar tissue is a bit prone to getting – either … pain with heavy loading or … sometimes a frank sort of episode of back pain for a few weeks and that’s not [an] uncommon history that we get”.  By about 1988 “… we’re still seeing the same sort of process … up until … there’s more significant back problems occurring, in about ‘89/90 … [when] … he had to … start limiting his work … about that time … when things got particularly bad and so the diagnosis made in ’91 was a facet joint disease.”  However, there was not “,,, much evidence that he had a significant facet joint disease prior to that”  based on Dr Zilko’s evidence.

56.     In relation to causation Dr Home said that “… it’s hard to say whether he had anything … any particular incident led to what happened afterwards, if it’s sort of episodic … we see someone who has an episode in ’81, another episode in ’83 … is there any relationship between a subsequent episode that occurs and a previous episode.  It’s very difficult to say … There’s not necessarily a relationship between one episode and the next.  They’re usually not.”

57.     Later in his evidence Dr Home said that although there may have been muscle or ligament problems over a long period the facet joint problems identified in 1991 was a new pathology and there was no causal relationship – because muscle or ligament damage does not go on to cause a facet joint condition.  The symptoms and medical evidence between 1981 and 1988 were most consistent with soft tissue injury continuing at a low level that would not prevent things like playing golf.  But something else happened to cause a facet joint injury later.  A continuation of the original problem as a “… sort of little grumbling complaint” could not be excluded, but by 1991 the dominant cause of the applicant’s back problems was a facet joint condition.  Once the first fusion operation occurred it becomes hard to determine whether the cause of pain after the fusion is the same cause as before because the fusion changes the anatomy of the spine.  Pain could come from the scar tissue at the level of the fusion and also from mechanical pain from the spinal segments above the fusion – because the fusion puts stress on the segment above.  Dr Home thought there was no sign of soft tissue injury in November 1988.

58.     In a further report dated 13 September 2004 (Exhibit A3) Dr Woodland expressed the following views:

(a)despite Dr Zilko’s opinion that there was no relationship between the 1981 injury and the applicant’s current condition, he believed that if the applicant complained of ongoing lumbar back pain specifically dating to an incident in 1981  (as Dr Woodland believed he had) then there is a strong causal relationship – assuming there had been no other specific incidents which might have occurred outside Army employment, which he was not aware of;

(b)it was impossible for him to be absolutely certain that the applicant did not have any significant back injury in 1981, but if the applicant complained of ongoing symptoms in the years following 1981 then there appears to be a causal relationship.  It was entirely possible that, for example, a lumbar spine disc injury with disc protrusion could have gone undetected because investigative tools in the 1980s were not as specialised as those now used – such as CT and MRI scans.

59.     In his subsequent oral evidence Dr Woodland said that mechanical back pain is an accepted term used by medical practitioners to describe back pain that is not due to inflammation or other unusual processes such as cancer or infection.  It “basically means pain which is made worse by certain activities”.  Back pain following a trauma would also fall into the category of mechanical back pain.  Although most back pain resolves in a few weeks a percentage does not and if a person has ongoing pain dating from a particular incident then in Dr Woodland’s opinion there is a strong causal relationship.  Although he couldn’t confirm that the applicant had ongoing pain since 1981 that is what he told Dr Woodland – and if that is so then Dr Woodland considered there was a causal relationship – although there were other possible explanations.  For example, a soft tissue injury in 1981 could have settled down and the applicant coincidentally developed back pain later.  For the applicant to require major surgery in 1991 at the age of 29 he must have had significant back pain at that time.   Whether that pain had developed coincidentally over the previous 2 years or so Dr Woodland could not say definitely either way – but it is unusual for a man aged 29 to have significant back pain without any obvious cause.  However, for there to be a causal relationship between events in 1981 and 1991 it was necessary to be sure that the applicant really did have continuous back pain and that there were no other injuries or causes.

60.     Dr Woodland said that although it was possible to have a disc or facet injury and still have a reasonable range of movement, if Dr Zilko had tested the applicant thoroughly and accurately then his finding that the applicant had a full range of movement was hard for him to reconcile.  Had there been a significant facet or disc injury in 1981 and had there been continuous pain thereafter then he would expect a medical practitioner to find some restriction of spinal movement.  He expected a disc injury would show on x-rays by 1988 and he noted that a CT scan in 1991 was normal – so it was difficult to argue the applicant had a disc injury in 1991 or in 1981, but he couldn’t exclude the possibility.  The fact the applicant appeared to have about a year free of symptoms after the 1981 incident and was playing football in 1983 suggested the 1981 incident was not of great relevance.

61.     In relation to possible facet joint injuries, Dr Woodland said that if the applicant really did have a full range of movement in about 1988 then that suggested there wasn’t a facet problem.  If a facet injury occurred in 1981 or 1983 then there would probably, but not necessarily, be an observation of lipping around the joint by 1988 or 1991.  Dr Woodland said he was not aware of an association between golf and facet problems, but he thought football would not be good for facet joints.  He agreed that work of the kind done by the applicant as a backhoe operator would put “a fair bit of strain on the spine”.

62.     Dr Woodland said that Dr Bell’s finding that facet injections at the L5/S1 level gave pain relief indicated only that most or all of the applicant’s pain was coming from that facet joint.  That “… could be because there were developing degenerative changes from some type of previous injury, or because even though he was only in his late 20s at the time, his particular occupation over the last 2 or 3 years was causing degenerative changes or  causing injury to the facet joint.  And I really cannot say which was which.”  He then agreed that degenerative changes could be excluded because the 1991 CT scan did not reveal any such change.  Dr Woodland then agreed that, although it was circumstantial, the most likely explanation for the damage between 1988 when the applicant saw Dr Zilko and 1991 when Dr Bell diagnosed facet joint problems was that he somehow injured his facet joints during that period.

Consideration

63.     It is convenient to consider first the correctness of the second decision made by the respondent – that by 1 December 1988 the applicant’s problems with his back, whatever they were at the time, were not a consequence of the 1981 injury.  The respondent’s position was, in essence, that the effects of the 1981 injury were likely to have been short lived as the applicant probably suffered no more than a soft tissue injury, there were few complaints of back problems after leaving the army and prior to commencing as a backhoe operator in July 1988, and there was no evidence to show that the facet condition that Dr Bell found to exist in 1991 had been caused by the army injury.

64.     The applicant’s position is that it is not possible to say with confidence that the applicant’s facet joint problems only arose after 1 December 1988.  The Tribunal should conclude that, after this long passage of time and the extensive surgery that occurred, it was impossible to say what exactly was the pathological process that caused the back pain in 1988 – but should accept the applicant’s history and conclude there was a causal connection between the 1981 injury and the ongoing problems.

65.     I have set out above in considerable detail the evidence given by the various witnesses in these proceedings.  It is apparent that the focus of the proceedings changed over its course.  Initially the focus was on the nature and extent of any permanent incapacity the applicant had in 1988 – and in that context it was in the applicant’s interests to minimise such incapacity and in the respondent’s interests to maximise it.  Those positions reversed once the issue of causation was opened up by the reviewable decision of 1 September 2004.  This is an unusual case in which the respondent asserts it has no liability for an admitted compensable condition after from 1 December 1988 to the present time notwithstanding that it has paid compensation by way of periodic payments and very substantial medical expenses since 1988.

66.     I am satisfied from the applicant’s evidence and the documentary evidence that the applicant suffered a soft tissue injury to the lower back in 1981 and that he experienced further episodes of back pain thereafter during his time in the Army.  These episodes did not cause him major inconvenience (in terms of pain or interference with his work or leisure activities) initially but during the last year or so of his army service he was incapacitated to the extent of having extended periods of light duties.  Whether those episodes were caused by scar tissue resulting from the healing of the original soft tissue injury (as Dr Home thought was possible – see [55] above) or were caused by completely fresh injuries to his back it is now not possible to say – if it ever was.

67.     Similarly, I am satisfied that in 1987 and 1988 the applicant had further episodes of lower back pain that were sufficiently incapacitating to cause him to see Dr Plozza.  It is relevant that the 1987 visit was while he was employed as a security guard but the August 1988 visit was within a month of starting the backhoe operator job and shovelling and heavy work had brought on the episode of pain.  At that time he was still playing golf.

68.     Although I consider the applicant to be a generally truthful witness, I am not satisfied that he did suffer from continuous low level back pain over the years up to 1988 with episodes of more severe pain.  Rather, the applicant’s ability to continue to play various sport and the long gaps between the bouts of pain indicates to me, and I so find, that the pain was episodic and activity related.

69.     Although Dr Plozza’s observations at the 1987 and 1988 consultations suggest that the applicant’s back problems at that time may have been related to his facet joints, I am satisfied from the evidence of Drs Zilko, Home and Woodland that in late 1988 there was no disc or facet joint injuries that were causing the applicant’s problems.  The absence of any evidence on x-rays over the years (or the CT scan in 1991) plus the various findings of a full range of movement (including the Commonwealth Medical Officer in October 1988, Dr Zilko in November 1988, Dr Easton in May 1990 and Dr Collopy in June and July 1990) all point to a conclusion, and I so find, that any episodes of back pain the applicant may have suffered up to 1988 were essentially acute and of a soft tissue nature.  I accept the evidence of Dr Home that when the situation began to go “downhill” after 1988, and certainly by 1991, a new pathology involving the facet joints came into play and that this new pathology was not causally connected to whatever “grumbling” condition might have pre-existed – because soft tissue damage does not go on to cause a facet joint condition.

70.     This is not a case where a sequence of events – such as an initial injury followed by intermittent (or even continuous) pain – can take precedence over or be a substitute for medical opinion that has provided an answer to the question of whether there was a causal relationship between the events prior to 1988 and the applicant’s admitted facet joint condition in 1991: see Australian Postal Corporation v Lucas (now Owen) (1991) 25 ALD 266 at 272 per Burchett J. In addition, the evidence in this case concerning the nature of the applicant’s employment after mid 1988 and the likelihood of that generating facet joint injury reinforces the view that the condition in 1991 was not causally related to the events prior to 1988.

71.     It follows that I am satisfied that the effects of the 1981 injury had ceased by 1 December 1988 and the incapacity suffered by the applicant after that date was not a consequence of the compensable injury.  Accordingly, the respondent’s decision of 1 September 2004 must be affirmed.

72.     Having reached the conclusion set out in the previous paragraph it follows that the applicant cannot succeed in a claim for lump sum compensation for permanent impairment arising from the 1981 injury.  No such claim could succeed under the 1971 Act and the applicant’s current permanent impairment cannot be said to have been the result of the compensable injury suffered in 1981.  Accordingly, the respondent’s reviewable decision made on 20 November 2002 must also be affirmed.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of MJ Allen, Member

Signed:
  [sgd June Rainey]
  Associate

Date/s of Hearing   2-3 February 2004; 17 September 2004
Date of Decision   13 June 2005
Solicitor for the Applicant            Henry Christie
Counsel for the Respondent       Joe Lenczner
Solicitor for the Respondent      Sparke Helmore