Bullock and Comcare - [2001] AATA 390

DECISION AND REASONS FOR DECISION [2001] AATA 390

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1998/121

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PAUL JOHN BULLOCK
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date8 May 2001
PlaceHobart

Decision      The decision under review is affirmed.
   [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Compensation – lumbar sacral back strain – whether effects of injury sustained during service with Navy have ceased.
Safety, Rehabilitation and Compensation Act 1988 – ss.4, 7

REASONS FOR DECISION

8 May 2001 Ms A F Cunningham (Part-time Member)

The applicant has sought the review of a decision dated 7 August 1998 made by a delegate of Comcare which varied the determination dated 29 November 1995 and instead determined that the Department of Defence is liable to pay the applicant compensation in respect of lumbar sacral back strain sustained in 29 January 1974, and that the effects of the injury had ceased and the Department was not liable to pay compensation on and from 30 April 1974.
In the reviewable decision particular consideration was given to the report of Dr. B. J. Eionder, dated 23 March 1998 which stated that the applicant was asymptomatic after leaving the Army in April 1974 until January 1993 when he sustained a back injury whilst working as an orderly for St. Lukes Hospital. It is the applicant's contention that he has continued to suffer the effects of the back injury that he sustained in the course of his employment with the Royal Australian Navy, and that it was the ongoing effects of this injury that caused him to resign from his employment in February 1995.
Whilst it was conceded on behalf of the respondent that the applicant suffered a back injury on 21 January 1994 during the course of his employment with the Navy, the respondent maintains that the effects of the injury, namely lumbar sacral back strain ceased as and from 30 April 1974. The issue for the Tribunal to determine is whether the effects of this injury or an earlier injury which occurred on 2 December 1973 are ongoing, and if so, up until which period of time.
The claim for compensation is made pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988.
At the hearing, the applicant was represented by Mr. Ross Hart and Mr. B. Morgan appeared as counsel, together with Mr. D. Wilson for the respondent. The applicant gave oral evidence, as did the following medical witnesses, Dr. Geoffrey Smith, Dr. Andreas Ernst and Dr. Tim Stewart. The 'T' documents were submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, together with the following medical reports and documents:

document from W.A. State Government Insurance office (dated 14 January 2000)
Dr. Smith's notes and records
Report of Dr. Ernst (dated 1 October 1998)
Report of Dr Ernst (dated 5 November 1999)
Worker's Compensation file
Dr. Stewart's report (dated 12 January 1999)
Dr. Stewart's report (dated 20 September 2000)
Report of Gary Fettke (dated 31 March 1995)
Report of Gary Fettke (dated 21 December 1995)
Report of Gary Fettke (dated 16 February 1996)
Report of Gary Fettke (dated 30 July 1996)
St. Lukes Hospital files

Whilst the applicant's original claim for compensation received by the respondent on 27 January 1995, sought compensation for "lumbar sacral back strain and thoracic spine spondylosis and disc disease", it was conceded on behalf of the applicant at the hearing that the claim relates solely to the applicant's lumbar sacral back strain condition and that the thoracic spine injury occurred as a result of the lifting incident whilst the applicant was employed by St. Lukes Hospital.
The applicant gave evidence that he is 47-year-old man, currently unemployed and in receipt of a disability support pension as well as a pension from the Department of Veterans' Affairs at the intermediate rate. The applicant stated that he had enlisted with the Royal Australian Navy on 12 July 1970 and was discharged on 1 March 1974. He stated that he first injured his back in late 1973 whilst lifting boxes in a medical store. He said that he found that he was unable to stand, collapsed and then spent 5 days in hospital on a mattress supported by wooden boards. The applicant gave evidence of a further incident which occurred when he collapsed after attempting to stand at a cricket match and that this occurred 6 weeks after the initial injury. The applicant said that as far as he was aware the medical diagnosis for the injury at the time was lumbar sacral back strain.
The applicant recounted his employment history following his discharge from the Navy. He said that he had worked for Comalco for a period of 10 months and then as a fireman with the Tasmanian Government Railway for 12 months, with Hammersley Iron for some 6 years and for 2 years with Queensland Alumina. He said he then returned to Tasmania where he had employment with Repco and then at a bowling alley, which was followed by a period of just under 7 years with St. Lukes Hospital as an orderly.
The applicant described other back injuries sustained during the course of his employment. This included an injury whilst he was employed with Hammersley Iron in 1976 and for which he was absent from work for a period of 3 weeks. The injury occurred when he was changing points on a railway line. A similar injury occurred on 10 March 1977. Whilst the injury did not result in any lost working hours, the applicant stated that he was rostered off for 5 days following the injury.
The applicant contended that he continued to suffer ongoing problems with his lower back, but conceded that he had not sought any medical treatment until he saw his general practitioner, Dr. Smith in 1998.
The applicant agreed that he had taken no further time from work as the result of any back injury until he injured his back in 1993 during his employment with St. Lukes Hospital. He recounted how he was lifting a split mattress when he "tore the muscles off his thoracic spine". He said that he had 3 months leave from work as a result of this injury and consulted Dr. Smith, a physiotherapist and Professor Einoder. The applicant stated unequivocally that the area of his thoracic rather than his lumbar spine was injured as the result of the injury during his employment with St. Lukes Hospital for which he received worker's compensation payments and ultimately resigned his employment. When asked whether he had experienced problems with his lumbar spine during his employment with St. Lukes Hospital, he responded that he could not really remember, but would have to say "yes". The applicant went on to describe the pain that he currently suffers, both in the area of his thoracic and lumbar spine and contended that the pain from his lumbar spine area is more intense and persistent and effects his daily activities. He described the medication and therapy that he currently undertakes. The applicant stated that he could not recall being free of lumbar pain since ceasing his employment with St. Lukes Hospital.
The Tribunal has no reason to doubt the veracity of the evidence given by the applicant in respect of the pain that he currently suffers to his lumbar spine area and the limitations that it imposes on his daily activities. The question for the Tribunal to determine is whether the pain that he currently suffers in the region of his lumbar spine is the result of an injury sustained during his employment with the Royal Australian Navy or whether he had fully recovered from the effects of that injury as contended by the respondent.
The applicant conceded that he had not sought any medical treatment for pain to his back apart from that sustained during his employment with Hammersley Iron for the intervening period up until 1988.
There is no reliable evidence from the applicant that he suffered any back pain during the period from when he was discharged from the Navy in 1974 and the first of the 2 incidents during his employment with Hammersley Iron. The reports on the Hammersley Iron file reveal that the applicant's back injuries occurred as a result of him having to remove points that were stiff. One would expect that some force would have been required in such a situation, which could have resulted in the injury to his back. Again there is no evidence that the applicant sought any medical treatment for back pain following the second of the 2 incidents at Hammersley Iron until he consulted Dr. Smith in 1988. The applicant's recollection as to any pain suffered in the lumbar region during this period is inconclusive. There is no evidence that he was required to take any leave from work as a result of any injury or pain to his back during this period of time.
The Tribunal was urged to rely on the conclusions of Dr. Ernst who stated that in his opinion and on the balance of probabilities, the current injury to the applicant's lumbar spine area is related to the incident that occurred during the applicant's employment with the Navy in 1973. He said that in his opinion, the 1973 incident "is the operative incident".
On the other hand the opinion evidence of Dr. Tim Stewart who was called to give evidence on behalf of the respondent, was that there is no association between the applicant's back condition and any incapacity that he experienced as a result of the 1973 and 1974 incidents sustained during his employment with the Navy. He also saw no connection between any subsequent injuries suffered by the applicant during his employment with Hammersley Iron, St. Lukes Hospital and his current situation. Dr. Stewart stated that in his opinion, the applicant currently suffers with mechanical low back pain and concluded that there is no history between 1974 and 1993 of substantial ongoing medical problems which would lead him to conclude that there was any medical association between his condition in 1994 of mechanical low back pain and his original problem in 1974. Dr. Stewart commented that for 80 per cent of the population who suffer mechanical low back pain there is no specific diagnosis as to the cause of their pain, as is the applicant's situation.
When commenting on the findings contained in Dr. Stewart's report, Dr. Ernst concluded that the reason for the disparity in their respective opinions, was due to the different histories given by the applicant to the two specialists. In particular, Dr. Ernst referred to Dr. Stewart's finding that there was no history between 1974 and 1993 of substantial ongoing medical problems.
Dr. Ernst commented in his report dated 1 October 1998, that the applicant could not remember any major problems with his back following the incident in 1974, but that he may have had occasional niggles which were not bad enough to seek medical advice. He noted that the applicant saw his treating doctor for the first time in 1988 because of "ongoing low back complaints". He commented that the condition in 1988 became severe enough to seek medical advice.
Dr. Smith said in evidence that he had been treating the applicant as a patient since 13 November 1985. The first reference however in Dr. Smith notes to a consultation in relation to back pain was made on 21 October 1991 when the applicant suffered an injury to his shoulder region after helping somebody move house. Dr. Smith stated that he treated the applicant in relation to both his lumbar sacral and thoracic spine conditions which he saw as two dissimilar conditions and unrelated. He could not recall having issued any medical certificates in relation to the applicant's lumbar back injury, but understood that of the two conditions, it was the injury to his thoracic spine which was the dominant motivation for him ceasing his employment. He did not have any recollection of the applicant's lumbar spine condition having caused him any problems with his work situation. He further stated that the applicant's lumbar sacral spine problem has now become the dominant condition in that the applicant was no longer carrying out the activities of lifting and transferring patients associated with his previous employment with St. Lukes that tended to put a strain on the thoracic spine region.
Dr. Smith said in evidence that in his opinion the applicant's current lumbar spine condition was triggered by the injury sustained by the applicant during his employment with the Navy. However when it was put to him that this could only be an inferential conclusion, his response was that, an injury such as the one suffered by the applicant whilst with the Navy could have resulted in a small tear to part of the disc which had then healed and resulted in a weakness for future ongoing strain. The suggestion of a tear was rejected by Dr. Stewart, however who stated that there was no evidence in the Navy records that there had been a tear.
Due to the lack of documentation in relation to ongoing back problems, it was Dr. Stewart's opinion that the applicant had made a full recovery of the injury sustained to his lower back region whilst with the Navy and that each subsequent injury, for example, those sustained during the applicant's employment with Hammersley Iron were separate incidents from which the applicant had also made a complete recovery. Dr. Stewart said in evidence, that most cases of acute lower back pain are self limiting and within a period of 3 to 6 weeks the individual has usually made a full recovery. Dr. Stewart commented that the medical records support this conclusion, for instance, the clinical notes contained at T3 page 34, in relation to the injury sustained by the applicant whilst with the Navy state as follows:
"SUMMARY
Admitted on 1/12/73 with acute back pains. Tenderness was elicited at L1L2 area. Xrays were NAD and he settled quickly with conservative management. He was discharged on 6/12/73."
Dr. Stewart believed that his opinion was also supported by the fact that, if the applicant was having ongoing problems with his back, there would have been evidence of ongoing medical consultations. When Dr. Stewart was referred to the clinical notes at T3 page 33, in relation to an episode of severe back occasioned whilst the applicant was with the Navy, he commented that the notes refer to an initial injury sustained 2 months previously when the applicant was lifting a box. Dr. Stewart concluded that the applicant had made a full recovery from the initial injury sustained 2 months previously, for if he had not, there would be some evidence of ongoing consultations. This conclusion is consistent with his previous statement that in most cases one makes a full recovery from acute lower back pain within a period of 3 to 6 weeks.
Dr. Ernst's opinion that on the balance of probabilities, the applicant's present lumbar sacral condition is related to the incident sustained whilst the applicant was in the Navy, is dependent upon his concluding that the applicant had ongoing symptoms of lower back trouble in the intervening period. Dr. Ernst agreed that this was essentially the reason for the differing opinions between himself and Dr. Stewart. Dr. Ernst believed that Dr. Stewart had been given a different history from that which the applicant had given to him. However, under cross-examination by Mr. Morgan, it appeared that Dr. Ernst had largely relied on the applicant's contention that he had ongoing symptoms of back pain following the 1973 incident in the Navy rather than any documentary evidence. Without the applicant's contention of ongoing symptoms, there is little support for such a conclusion.
Following the incidents suffered by the applicant in the Navy, there is evidence of further incidents in 1976 and 1977 whilst the applicant was employed with Hammersley Iron. Whilst the first of these incidents resulted in the applicant having 3 weeks leave from work, there is little to suggest that the applicant made other than a complete recovery thereafter. The second medical certificate dated 14 March 1977 stated that whilst the applicant had suffered from a painful back as a result of an injury on 21 July 1976, he was sufficiently recovered to resume his occupation on 14 August 1976. The employers report form following the second injury sustained in March 1977 noted that there was no lost time from work.
The next occasion when the applicant suffered an injury to his back occurred during his employment with St. Lukes Hospital. This occurred in 1993 when he suffered an injury when lifting a split mattress. Following that incident he was involved in a three person lift of a patient. There seems to be no dispute that the pain symptoms suffered as a result of these injuries were to the thoracic rather than the lumbar region. It was the applicant's contention, supported by Dr. Smith, that he left his employment with St. Lukes because of ongoing thoracic pain occasioned as a result of the nature of his employment activities. The evidence was that the thoracic pain had subsided considerably after ceasing his employment with St. Lukes which had involved much bending and lifting.
Dr. Ernst stated to the Tribunal that if the applicant had not had ongoing symptoms of back pain between 1974 and 1993, he would be forced to revise his opinion that his current lumbar spine condition is related to the original injury in 1973.
Dr. Ernst said in evidence "… during that period of time he had several periods off work with recurrent back pain. In 1988, he saw his treating doctor because of ongoing lower back complaints and I think that is a crucial issue, that he advised in 1988 the back pain was severe enough to seek medical advice and prior to that he sort of managed it on his own with the exception of time …. One can conclude since 1988, according to Mr. Bullock, he had ongoing problems and sought regular medical advice and then in 1993 another incident when he lifted a mattress when he had significant deterioration of symptoms and in 1994 he eventually gave up work as a result of progression of symptoms."
The evidence before the Tribunal is that, for the intervening period from the original incident in 1973 apart from the 2 incidents of back strain sustained during the applicant's employed with Hammersley Iron, there is little to suggest that the applicant continued to suffer ongoing back problems. The applicant's evidence to the Tribunal as to his recollection of ongoing back problems is inconclusive. He confirmed that he continued to play squash and had sought employment that required physical activity. Whilst the applicant consulted Dr. Smith in 1988, Dr. Smith was unable to state that this was in relation to lower back complaints. The first entry in Dr. Smith's medical notes relating to back problems was in October 1991 and this was to the thoracic region, rather than the lumbar region. As already stated the injury sustained in 1993 during the applicant's employment with St. Lukes Hospital was to the thoracic spine area.
Dr. Ernst had concluded from the Navy's clinical notes (T3, page 33) that symptoms of the applicant's back injury had continued for a period of 2 months. However as Dr. Stewart pointed out, the notes simply state that the initial injury occurred 2 months previously and it could not be concluded that the symptoms were ongoing for a period of 2 months as suggested by Dr. Ernst. Instead it could be found on the basis of the material before the Tribunal, that the applicant had made a full recovery from this injury as contended by Dr. Stewart . The medical notes relating to the injury on 2 December 1973 contained in pages 33 to 37 of the 'T' documents refer to pain and tenderness at the L1/L2 area, which is inconsistent with a diagnosis of low back pain. On the other hand, the daily medical record appearing at page 38, which is dated 21 January 1974 and refers to an injury sustained during a cricket match, refers to L/S back strain.

When these medical records were referred to Dr. Ernst, he commented that there appears to be a contradiction between what the applicant had told him in relation to an upper lumbar spine injury, which he noted is consistent with the medical records, whilst the proof of evidence referred to lumbar sacral spine injury.
It thus appears that the only reference to an injury resulting in pain to the lumbar sacral spine sustained during the applicant's service with the Navy is the "cricket incident" and from which Dr. Ernst concluded, the applicant had made a full recovery. The applicant's evidence in relation to this incident was that he had been watching a cricket match and suffered pain when rising from a sitting position. It was also Dr. Ernst's opinion that this incident was "unrelated to everything else".
Dr. Ernst stated that he believed there was a connection between the original injury at L1/L2 and the applicant's current problem in that region. However the applicant's claim for compensation refers to his lumbar sacral back condition. The only reference to an injury in this region sustained during the applicant's employment with the Navy is that which occurred during the cricket match.
The Tribunal is unable to conclude that the current symptoms suffered by the applicant relate to the applicant's service with the Navy. For the Tribunal to conclude that the applicant's current lumbar sacral condition is referrable to his period of service, there must be evidence of ongoing symptoms from the date of the original injury to the time of the applicant's claim for compensation. Whilst Mr. Hart urged the Tribunal to regard the two incidents in the Navy as being connected, there is no evidence to support such a finding. The initial injury in December 1973 was to the L1/L2 region whilst the second injury sustained in January 1974 was to the lumbar sacral region. It was Dr. Ernst's conclusion that the effects of this injury had ceased and this certainly was the opinion of Dr. Stewart.
The applicant's claim for compensation is made pursuant to the provisions of s.14(1) of the Act which reads:
"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."
In s.4(1) of the Act the word injury is defined as follows:-
"(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."
The Tribunal is unable on the evidence before it to find a link between any injury suffered by the applicant to his lumbar sacral spine region during the course of his employment with the Australian Navy and his current lumbar sacral spine condition. Accordingly the Tribunal affirm the decision under review and dismisses the appeal.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  27 and 28 March 2001
Date of Decision  8 May 2001
Counsel for the Applicant        Mr Ross Hart
Solicitor for the Applicant         Rae and Partners
Counsel for the Respondent    Mr Brian Morgan
Solicitor for the Respondent    Mr David Wilson (AGS)