Burns and Comcare - [2000] AATA 880

DECISION AND REASONS FOR DECISION [2000] AATA 880

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1998/475

GENERAL ADMINISTRATIVE DIVISION          )
           Re      LEXENE JENNIFER BURNS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date5 October 2000
PlaceAdelaide

Decision      The decision of the Tribunal is that the decision under review is affirmed.
  .........……(Signed).................
  Deputy President B H Burns
CATCHWORDS
COMPENSATION – claim for skeletal back pain in lumbar region being an aggravation of degenerative changes at L5/S1 – cessation of liability under the Safety, Rehabilitation and Compensation Act 1988 – whether applicant suffered injury to the right sacroiliac joint or surrounding ligaments – non specific low back pain diagnosed – decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 – s14

REASONS FOR DECISION

5 October 2000 Deputy President B.H. Burns

This is an application by Lexene Jennifer Burns ("the applicant") for review of a reviewable decision made by Comcare ("the respondent") dated 9 November 1998 (T265), affirming a determination dated 7 August 1998 (T255) which determined that on and from 31 July 1998 the respondent was no longer liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") for what was described as the applicant's claim for "skeletal back pain in lumbar region being an aggravation of degenerative changes at L5/S1."
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) together with exhibits tendered by the parties. The applicant tendered 19 exhibits including medical reports by Dr Lee (Exhibits A5, A6 and A7), and a statement by the applicant (exhibit A3). The respondent tendered 13 exhibits including video surveillance tapes of the applicant (Exhibit R6) and a statement of agreed facts and issues (Exhibit R5). In addition, the Tribunal heard oral evidence from the applicant, and the applicant's husband Mr Burns. Dr Norman Broadhurst and Dr Roy Lee gave medical evidence on behalf of the applicant, and Dr Mark Awerbuch gave medical evidence on behalf of the respondent.
The applicant was represented by Ms Kelly and the respondent was represented by Mr Cole, both of counsel.
A statement of agreed facts and issues was tendered before the Tribunal (Exhibit R5). The agreed issues are:
(i)Whether the applicant continues to suffer from any symptoms which incapacitate her for work;
(ii)Whether any symptoms which the applicant continues to suffer result from the injuries which occurred in 1994 or from any other injury arising out of or in the course of her employment with the Commonwealth; and
(iii)Whether the applicant is entitled to compensation in accordance with Sections 4, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
The Tribunal also finds as fact the following which is contained in the statement of agreed facts and issues (Exhibit R5):
1.        The applicant was born on 14 August 1951.
2.The applicant first commenced employment with the Commonwealth Bank of Australia in 1968.
3.In 1976 the applicant sustained a whiplash injury in a motor vehicle accident.
4.The applicant subsequently resigned from her employment with the Commonwealth Bank in 1981 when she became pregnant. In 1982 she rejoined, working part-time. The applicant became pregnant again in 1983 and resigned when a miscarriage was threatening.
5.The applicant later worked as a casual check-out operator/packer with Coles and with Woolworths Big W as a Cash Office cashier.
6.The applicant rejoined the Commonwealth Bank in Darwin as a part time employee in 1989 and became full time in 1990.
7.On 17 January 1994 the applicant suffered an injury when getting up from a chair. At this time the applicant was employed as a Customer Service Officer at the Commonwealth Bank's Casuarina branch.
8.On 12 February 1994 the applicant lodged a claim for compensation in relation to this incident. In her claim form the applicant stated that her injury occurred when she "stood up quickly" from a chair. The applicant reported that when she put weight on her right foot she felt a "grabbing pain" in her right lower back and that her back continued to hurt and deteriorated throughout the day.
9.The applicant was totally incapacitated for work until 31 January 1994. She continued with full-time work until after her transfer to Darwin.
10.       The applicant received physiotherapy treatment.
11.On 19 January 1994 an x-ray of the applicant's back showed no abnormality.
12.On 21 February 1994 the applicant claimed her injury was aggravated by an incident in which she tripped over a phone cord at work at Casuarina Branch.
13.On 7 March 1994 the applicant was transferred to the Darwin branch of the bank to undertake a Return to Work Program performing clerical duties.
14.The applicant was incapacitated for work from 14 March 1994 and recommenced the Return to Work Program on 5 April 1994.
15.The applicant was again incapacitated for work from 20 April 1994 to 6 May 1994.
16.The applicant commenced a further Return to Work Plan on 30 May 1994, performing two hours of alternative duties per day.
17.On 29 July 1994 the applicant returned to a loans position in the back office at the Casuarina branch, increasing her hours to five per day on 21 October 1994.
18.The applicant was incapacitated for work from 29 September 1994 until 10 October 1994 on which date the applicant was certified as being fit for two hours of work per day for a period of four weeks.
19.The applicant was certified as incapacitated for work from 28 October 1994 to 9 December 1994.
20.A CT scan conducted on 21 March 1994 showed no abnormality in the applicant's back.
21.      An MRI scan was conducted on 18 November 1994 (see T34).
22.The applicant was incapacitated for work from 23 December 1994 to 13 January 1995.
23.The applicant commenced a further Return to Work Program on 23 January 1995, performing two hours of alternative duties per day.
24.By March 1995 the applicant was performing duties for five hours per day.
25.The applicant was incapacitated for work from 16 March 1995 to 27 March 1995. The applicant claimed that an examination by Leanne Copp, physiotherapist, on 8 March 1995, resulted in a flare up of her back pain.
26.The applicant recommenced a further Return to Work Program on 28 March 1995 performing three hours of alternative duties per day.
27.On 25 May 1995 the applicant was examined by Dr Jan Isherwood-Hicks, psychologist, who reported that the applicant was not suffering from a psychological disorder.
28.By August 1995 the applicant was performing five hours of duties per day.
29.The applicant was further incapacitated for work from 9 August 1995 to 12 August 1995 reported as a result of having stubbed her toe at work on 8 August 1995.
30.The applicant was further incapacitated for work from 22 August 1995 to 15 September 1995. The applicant reported neck and lower back pains resulting from changes to her work station.
31.The applicant resumed working five hours per day on 16 September 1995.
32.On 22 September 1995 the applicant was examined by Mr Hooker, orthopaedic surgeon. Mr Hooker diagnosed variable back pain due to degenerative changes at the base of the spine and expressed the opinion that the applicant's current condition was the result of degenerative changes rather than the incident in 1994 (this is a reference to the incident which occurred on 17 January 1994) which had a temporary aggravation only and which had ceased.
33.Following an examination by Mr Hooker, the applicant was certified unfit to work from 25 September 1995 to 13 October 1995 when she returned to three to five hours of alternative duties per day.
34.In a report dated 5 October 1995 Dr Adams expressed the opinion that the applicant was suffering from a previously asymptomatic degenerative back condition and that the incident at work in 1994 (this is a reference to the incident which occurred on 17 January 1994) had caused problems for the first time. Dr Adams stated that the aggravation resulting from the incident in 1994 (this is a reference to the incident which occurred on 17 January 1994) was continuing.
35.On 8 February 1996 Mr Baddeley, orthopaedic surgeon, stated that the applicant's degenerative condition was exacerbated when she tripped over the telephone cord in March (correction – February) 1994. He was of the opinion that the applicant would improve within six to twelve months and that she was fit for normal duties provided that she did not move around and avoided heavy lifting etc. (see T116).
36.On 10 March 1996 Dr Thomson, sports physician, expressed the opinion that the incident in 1994 where the applicant had tripped over the telephone cord had exacerbated a previously symptom free degenerative change in her lower lumbar spine.
37.Throughout early 1996 the applicant increased her hours of work to seven hours per day.
38.From 29 March 1996 to 4 April 1996 the applicant was working eight hours a day.
39.When the applicant returned to work from annual leave on 20 May 1996 she went back to seven hours per day.
40.On 18 July 1996 Mr Williams, orthopaedic surgeon, stated that in his opinion the applicant's symptoms were no longer related to the incidents at work which occurred in early 1994 but were the direct result of her underlying condition.
41.On 6 August 1996 Comcare issued a determination ceasing liability from 2 September 1996 on the basis that the effects of any work related back injury had ceased.
42.The applicant was certified incapacitated for full-time work from 16 September 1996 to 30 September 1996 and worked 7 hours per day until 1 November 1996.
43.On the advice of Dr Thomson, the applicant requested that she reduce her hours of work to four hours per day for a period of six weeks from 14 October 1996 to enable her to complete an exercise program. The applicant worked 4 hours a day and the other 4 hours a day were paid as sick leave from 1 November 1996 to 11 March 1997.
44.In a report dated 3 November 1996 Dr Thomson expressed the opinion that the applicant's degenerative change of the disc and joint structures of the lumbar spine had been aggravated by the incidents in January and February 1994.
45.During December 1996 the applicant suffered an injury at home which resulted in her being unfit for work on 23 and 24 December 1996.
46.On 30 December 1996 the applicant returned to alternative duties performing four hours of work per day and the remainder of the day was paid as sick leave.
47.On 11 March 1997 Comcare issued a reconsideration revoking the determination of 6 August 1996 ceasing liability. The reconsideration varied the applicant's accepted condition to "musculo-skeletal back pain in lumbar region being an aggravation of degenerative changes at L5/S1".
48.By April 1997 the applicant had increased her hours to five per day and a further return to work plan was implemented.
49.      By June 1997 the applicant was working six to seven hours per day.
50.The applicant was incapacitated for work form 16 June 1997 to 18 June 1997 and returned to four hours of alternative duties per day from 19 June 1997.
51.The applicant was incapacitated for work from 9 July 1997 to 11 July 1997 and returned to six hours of modified duties per day on 14 July 1997.
52.The applicant was incapacitated for work from 13 August 1997 to 22 August 1997, returning to four hours of alternative duties per day on 28 August 1997. The applicant was transferred back to Darwin on 13 October 1997.
53.The applicant was incapacitated for work from 16 October 1997, apart from 20 October 1997, and returned to alternative duties five hours per day on 27 October 1997 in the Operations Section (not the Customer Service Area) and with restrictions and modifications to her work.
54.In late 1997 and during early 1998 the applicant was working six hours per day as per a Return to Work Plan.
55.In a report dated 6 May 1998 Dr Awerbuch expressed the opinion that the applicant was suffering minimal degenerative change in the lumbar sacral disc and may have minor degenerative change at L4-5, consistent with her age. Dr Awerbuch stated that changes of this kind do not normally result in symptoms and that there was no evidence of any material aggravation, other than the applicant's complaints. Dr Awerbuch also expressed the opinion that the accidents at work in 1994 resulted in temporary sprains only and that these should have spontaneously resolved within days or weeks and was of the view that there was no reason why the applicant could not return to full time work without restriction.
56.On 14 May 1998 Comcare wrote to the applicant informing her of its intention to cease compensation.
57.On 15 June 1998 Dr Awerbuch provided a further report commenting on video surveillance of the applicant between 10 March 1998 and 2 May 1998.
58.On 23 July 1998 Dr Broadhurst provided a report expressing the opinion that the applicant had suffered an injury to her sacroiliac joint on the right side. Dr Broadhurst also expressed the view that the video surveillance of the applicant was not inconsistent with her complaints and the diagnosed condition.
59.On 7 August 1998 Comcare issued a determination ceasing liability as from 31 July 1998 on the following grounds:
·     the applicant had not suffered any substantial injury
·     it was not accepted that the applicant's symptoms existed
·     any symptoms which the applicant did suffer were the result of a non-specific lower back condition, unrelated to her employment
·     the applicant did not require any active medical treatment
·     the applicant was not suffering from any incapacity
60.At the time of this determination, the applicant was working 7 hours per day.
61.      On 28 August 1998 the applicant requested a reconsideration.
62.As from 1 September 1998, the applicant increased her hours of work to 8 per day still doing modified duties in the Operations Section. The applicant has had 1-2 days off work claimed to be due to her back condition since that time.
63.On 7 October 1998 Dr Awerbuch provided a further report disagreeing with Dr Broadhurst's opinion.
64.On 9 November 1998 the Independent Review Officer confirmed the determination of 7 August 1998. The reasons given for the determination are as follows:

the Independent Review Officer preferred the evidence of Drs Awerbuch, Williams and Hooker
the Independent Review Officer was satisfied that the applicant was not suffering from any physical injury
the Independent Review Officer was satisfied that the applicant did not require further treatment.
65. On 18 December 1998 the applicant lodged with this Tribunal an application for review of the determination of Comcare dated 9 November 1998.

evidence
LEXENE BURNS

The applicant is 48 years old, married with one child aged 18. She began working for the Commonwealth Bank at the age of 16, and worked there until 1981 when her child was born. After the birth of her child she worked in various other jobs and then rejoined the Commonwealth Bank on a part time basis in 1989 at the Darwin branch. She commenced full time work at the bank in 1990 and later transferred to the Casuarina branch. In 1994 the applicant worked at the Casuarina branch as a customer service officer. She gave evidence that she enjoyed her work at the bank, and that she had ambitions to become a loans manager.
When questioned about her lifestyle prior to January 1994, the applicant gave evidence that she had lived an active and full life. She testified that she liked to go camping, fishing, and walking. Other interests included aqua aerobics and bike riding. She also did the housework, and liked to do some gardening and painting, as well as travelling to her property at Dundee Downs, renovating houses, and going to the cinema and barbecues.
The applicant also gave evidence about her health prior to January 1994. She had backache and treatment in her late teens, early twenties, for curvature of the spine that did not require time off work. After that point in time she received treatment intermittently in relation to her lower back and also in relation to a whiplash injury which she sustained from a motor vehicle accident in 1976, which caused pain in her upper back and between the shoulder blades. The last time the applicant received treatment for this prior to January 1994 was in 1991-92. The applicant also reported that she had treatment on her back, including the lower back, arising out of a gardening incident in 1992-1993, but aside from that she did not consider herself to have major back problems, and the problems did not impact on her lifestyle.
The applicant gave evidence that her life changed after her first work related injury on 17 January 1994. When describing the incident in examination-in-chief, she said that she was sitting at her work-station which was situated diagonally to a customer service counter. On seeing a customer, she swung her chair to the right and as she was putting her weight on her right foot to lift herself out of the chair she felt pain in her lower back. The applicant testified that the pain was at the base of the back, at the top of the buttocks slightly to the right of centre. She described the pain as a cramp, or "grabbing" sensation, and said that she felt the pain every time she put weight on her right foot. That evening she went home and rested, but the next morning her husband had to help her out of bed. She gave evidence that she then went to see Dr Adams who prescribed two weeks off work, x-rays and physiotherapy. The applicant testified that she returned to work full time after two weeks.
The applicant then gave evidence about an incident in February 1994 when she tripped over a telephone cord while at work. She testified that when she tripped she managed to keep herself upright and stumbled forward a few steps. She came down heavily on one leg and experienced a shooting pain from her lower back up her spine. She did not require time off work for this incident, but she testified that her back injury from 17 January 1994 had been aggravated by the phone cord incident and she required further physiotherapy.
Under cross-examination, the applicant conceded that the action of getting out of the swivel chair was an ordinary movement, and that there was little to distinguish the movement from any other occasion when she rose out of the chair. Mr Cole also suggested that there was no twisting involved in the phone cord incident, and queried the use of the word "twisting" in the history given to Dr Broadhurst. The applicant testified that she would not normally use the word "twisting" to describe the movement, and that Dr Broadhurst had perhaps adopted the word himself.
When questioned about her working patterns since the two incidents in 1994, the applicant gave evidence that she was placed on a series of return to work programs which reduced her hours temporarily with a view to increasing her stamina so that she could eventually work a full eight hour day. Other initiatives aside from reducing her working hours included varying the height of her work stations so that she could sit or stand as she needed, the provision of an ergonomic chair, and scheduled exercise breaks where she could do stretching exercises. The applicant testified that she was also removed from her customer service position at one stage so that she worked behind the scenes where there was more flexibility for her to move around on a needs basis. The applicant gave further evidence that in 1997 she was transferred from the Casuarina branch to the Darwin branch as the latter was considered more suited to her ergonomic needs.

The applicant reported that some of the initiatives were successful, and others were not. She testified that ultimately her life became consumed with attempting to comply with the return to work programs. She required pain-killers to get her through the working days, and when she came home from work she lay on the floor with an ice pack and watched some television before going to bed.
When questioned further about her personal life since January 1994, she testified that it had changed dramatically. In particular, she gave evidence that she had become housebound since the back pain began. She said that she could not socialise the way she used to because of the need to continually move around. She gave evidence that she rarely went to barbecues or to the cinema because of her difficulty in sitting for long periods. For a number of years she has not been able to go with her husband and son to their property at Dundee Downs because of the pain caused by car travel over the unsealed road, and she could not do any gardening. Her ability to do housework such as mopping and cleaning the bath and shower has also been restricted.
The applicant also gave evidence that she has started drinking more since 1994, and now bites her fingernails. She testified that she began playing the pokies at the casino towards the end of 1995 to help cope with the boredom of her life. She gave evidence that playing the pokies helped to block her mind to the pain, and that she sat on medium height stools and moved around regularly to ease the pain.
Mr Cole showed the applicant some video surveillance of her doing activities such as shopping, driving the car and playing the pokies at the casino between 10 March and 2 May 1998. The applicant testified that she was working reduced hours of 6 hours per day at the time. The respondent put to the applicant that remaining at work for two more hours would not have been more strenuous than playing the pokies at the casino or shopping. The applicant gave evidence that a few minutes of shopping bore no comparison to the stresses of an extra two hours work, and she said that shopping was a necessary thing that she had to do. When the respondent put to the applicant that her symptoms were not as bad as she was suggesting, as evidenced by activities such as playing the pokies for long periods of time, the applicant denied this and said the allegation was "entirely untrue" (Transcript p123). The applicant gave further evidence that the surveillance video showed that she is always moving and bracing, and trying to keep the weight off her right leg. She admitted that she could have stayed on to work if she had taken painkillers, but testified that she could not understand why she should not be allowed to do anything outside of work hours.
When questioned about the doctors she had seen and treatment she had received for her back since January 1994, the applicant explained at length the efforts she has gone to seek relief for her pain. Her self-treatment included stretching and strengthening exercises given to her by a physiotherapist which she did at home, and pool exercises which she did all year round. She personally met the expenditure for exercise equipment and took a bank loan to help heat her pool. She also gave evidence that she received acupuncture and massage according to her needs.
In 1996, the applicant went to a health farm in Queensland while she was on leave. She gave evidence that the health centre helped her immensely, as by the end of her stay she could do a brisk walk for an hour, go swimming and had stopped taking drugs. However, she gave evidence that this relatively pain free state did not last. Under cross-examination she was asked whether she could walk briskly now, and she gave evidence that she could do a "limping brisk walk". Mr Cole suggested that she had walked briskly into the hearing room that afternoon because she thought she was late, but the applicant denied that and testified that it was her normal walk.
The applicant testified that when her back pain continued on into 1998, she was sent to see Dr Awerbuch for an assessment. She gave evidence that she felt quite apprehensive about seeing Dr Awerbuch. She had a one-hour appointment with him, in which he took her history for approximately 50 minutes, and conducted a physical examination which took only 5 to 10 minutes. She testified that she felt worse after the examination, as it aggravated her back.
The applicant gave further evidence that during her leave in June or July of 1998, she went to see Dr Broadhurst who made a diagnosis of her pain as being that of the sacroiliac joint. The applicant testified that Dr Broadhurst prescribed a sacroiliac belt for her to wear and gave her an injection in the sacroiliac joint. The injection reduced the pain by about 50% initially and then by about 25%. She said that these measures helped her pain as she felt more free when walking and could bend further, her need for pain-killers was reduced and she needed acupuncture less frequently. She gave evidence that she now wears the sacroiliac belt when she requires it to reduce pain, but due to the Darwin climate it causes a rash when she wears it full time
When cross-examined about her visit to Dr Broadhurst, the applicant gave further evidence that after the injection she could hop on her right leg. She conceded that the anaesthetic component of the injection may have also worked to reduce pain, but she gave evidence that she has needed fewer pain-killers since the injection and feels that this proves that there were longer term benefits gained from the injection.
At the conclusion of the applicant's evidence-in-chief, she informed the Tribunal that her period of leave ended on 27 January 2000 and that she would return to work. However, she gave evidence that she does not think that she can return to the customer service area, and that she needs an ergonomic chair and a place to sit away from the customer service area so that she does not have to stand all day.
MR TERRY BURNS
The applicant's husband gave evidence. When asked to recall the day on which his wife was injured for the first time, he testified that when he came home that night she was lying on the bed which was very unusual for her. The next morning he had to help her out of bed. He gave evidence that his wife had problems with her back for the next few weeks, and then she tripped over the phone cord at work and exacerbated the problem.
Mr Burns testified that his wife's back injury has had a big impact on their lives. He said that his wife had to sleep in a single bed for twelve months, and that sexual activity has decreased. He gave evidence that his wife does not complain much, but that she cannot do things she used to do around the home such as mopping floors, cleaning high and low areas, and gardening. Her movements are slow now, and she does not go out socialising with friends much. She does very little lifting and bending, drives a car for short periods of time and does some clothes washing. Mr Burns also gave evidence that the applicant regularly does swimming exercises and from time to time takes various types of medication for pain relief.
DR ROY LEE
Dr Lee is a specialist in rehabilitation medicine, and is Director of Rehabilitation Medicine at the North-West Adelaide Health Service. Dr Lee testified that he assessed the applicant on 14 December 1998. He compiled three reports tendered as Exhibits A5, A6 and A7. Dr Lee also testified that he has seen a report from Dr Broadhurst dated 29 April 1999 and Dr Awerbuch's report of 16 April 1999.
Dr Lee gave evidence in examination-in-chief that his diagnosis of the applicant's condition was that of chronic low back pain. Dr Lee considered the applicant's use of massage and acupuncture was an aid to easing symptoms, but added that these treatments should not be regarded as a cure but as an adjunct to try and improve the applicant's situation.
Dr Lee was confidently of the view that one of the factors causing the applicant's chronic low back pain was a right sacroiliac joint dysfunction although he testified that this diagnosis did not exclude other possible reasons for her having continued and chronic low back pain. Dr Lee gave evidence that he thought the work related incidents in 1994 were consistent with sacroiliac dysfunction, and that apparently simple and innocuous actions could cause such pain.
During cross-examination, Mr Cole put to Dr Lee that there was not much objective evidence to support the diagnosis of chronic low back pain, and that Dr Lee had relied on the applicant's subjective account of her problems. Dr Lee testified that "disability is there by the fact of what happens functionally" (Transcript p204), and that there has been a history of restrictions regarding the applicant's activities.
In relation to the diagnosis of the sacroiliac joint dysfunction, Mr Cole suggested that that type of injury would require something notable in terms of force or trauma. Dr Lee testified that that was usually the case, but his opinion was that a minor incident "doesn't necessarily counter against that" (Transcript p205). Dr Lee later testified that he had relied to a large extent on the apparent benefit the applicant received from the sacroiliac joint injection in July 1998. When Mr Cole produced a record of an earlier sacroiliac joint injection given in March 1997 from which the applicant received no beneficial effect, Dr Lee agreed that this might show that the sacroiliac joint was not contributing to the applicant's back condition. Dr Lee agreed that an explanation for the beneficial effects felt by the applicant after the July 1998 injection could be that Dr Broadhurst injected more fluid around the joint which then spread beyond the joint to other parts of the back. Alternatively, Dr Lee conceded that both the July 1998 injection and the sacroiliac belt might have produced a placebo effect.
Dr Lee also confirmed that he had viewed the video surveillance of the applicant, and informed the Tribunal that it did not change his diagnosis of the applicant's condition. He added that the video did not either support or counteract the diagnosis of sacroiliac joint problems, but it did show that the applicant has chronic low back pain. Dr Lee gave evidence that the video demonstrated that the applicant was unable to sit for long periods, and was often taking the weight off her back by resting against her knee or resting against the machine. Dr Lee agreed that the video showed the applicant had good posture.
In relation to the applicant's employment capabilities, Dr Lee testified that he considered her capable of doing light sedentary work, or work which allowed her to pace her activity and change her position intermittently. Dr Lee said that if she were regularly asked to carry files and to bend whilst filing, this would be likely to generate symptoms. Dr Lee gave evidence that the video footage was not inconsistent with the applicant's ability to work six hours a day. He stated that he doubted the applicant could work eight hours a day, or even six hours a day, without continuing restrictions on her sitting, standing and bending.
During cross-examination, Dr Lee was asked if the applicant's symptoms could conceivably last for six years. Dr Lee testified that pain can last that long, as a "syndrome" of pain develops. Dr Lee added that in his opinion the applicant's pain did have a physical basis and was not psychological. During re-examination, Dr Lee gave evidence he was still of the view that it was probably more likely that sacroiliac joint dysfunction was the diagnosis of the applicant's chronic low back pain consequent upon one or both of the 1994 incidents.
Dr Norman Broadhurst
Dr Broadhurst gave evidence that he is Associate Professor of Musculo-Skeletal Medicine at Flinders University, and that he has a special interest in the research of pelvic instability and the sacroiliac joint. He examined the applicant in July 1998, and formed the conclusion that the applicant had suffered an injury to the right sacroiliac joint. His opinion in this regard is to be found in his reports of 23 July 1998 (T254), 10 August 1998 (T257) and 29 April 1999 (Exhibit A8). Dr Broadhurst's Curriculum Vitae is to be found in Exhibit A17.
Dr Broadhurst gave evidence in examination-in-chief that when he examined the applicant he took a very detailed history of the applicant's two work incidents that occurred in January and February 1994. In cross-examination, Mr Cole questioned Dr Broadhurst as to who first used the word "twist" to describe the applicant's work related incidents in January and February 1994. Dr Broadhurst testified that the applicant most likely used the word as he wrote it down in his notes. He further added that he used the word "twist" interchangeably with the word "rotation".
Mr Cole put to Dr Broadhurst that the ligaments around the sacroiliac joint are very strong, and that there was no noticeable force in the applicant's manoeuvre in getting out of the swivel chair. While Dr Broadhurst agreed that the ligaments are very strong, he gave evidence that he has had patients who have been in agony after bending over to pick up material from the ground and that bending is no different to the swivel chair manoeuvre as it is the twisting motion which causes the discomfort.
Dr Broadhurst testified that he thought the phone cord incident most likely caused the applicant's sacroiliac joint injury as the applicant's foot would have been in one position when she tripped, with the rest of her body twisting awkwardly in the other direction. During cross-examination, Dr Broadhurst agreed that the swivel chair incident may well have been the cause of a ligamentous strain.
During the course of his evidence-in-chief, Dr Broadhurst outlined to the Tribunal the method by which he had reached his diagnosis that the applicant had pain in her right sacroiliac joint and surrounding structures. He gave evidence that he ruled out the hip as a source of pain, and attempted to reproduce the applicant's pain and symptoms by conducting pain provocation tests. He conducted a rectal examination that also reproduced a significant amount of symptoms pointing towards a diagnosis that the sacroiliac joint and surrounding structures were causing the applicant pain. He also used the sacroiliac belt as a diagnostic tool, and the applicant reported that when the pain provocation tests were repeated while she was wearing the belt, she was "less tender" and she could hop more freely on her right leg.
Dr Broadhurst testified that after the preliminary diagnostic tests were conducted, he then used an intra-articular block as a further diagnostic tool. The object of the intra-articular block was to assess how much pain was arising out of the sacroiliac joint. The intra-articular block was conducted at the Queen Elizabeth Hospital and involved injecting 4mils of fluid into the right sacroiliac joint. Dr Broadhurst gave evidence that the applicant reported to him a diminished amount of pain for the duration of the local anaesthetic, which she assessed as being a 60% improvement initially and then 25% improvement thereafter. The applicant had reported that she could sleep better and walk more comfortably with the sacroiliac belt on.
During examination-in-chief, Dr Broadhurst was shown exhibit R8 which showed that the applicant had had an injection to the right sacroiliac joint in March 1997. Ms Kelly put to Dr. Broadhurst that the applicant had reported that her pain became worse after the injection, and asked Dr Broadhurst whether this knowledge now affected his diagnosis of sacroiliac pain. Dr Broadhurst testified that the evidence of the prior injection did not affect his diagnosis, as the needle may not have gone in the joint with ease and the ligaments on the top of the joint are invariably stressed by such an injection. He also gave evidence that a quantity of fluid (i.e. 1mil) might not have been sufficient because in his opinion, depending on the size of the person, three or four mils may be required. Dr. Broadhurst's opinion was that insufficient fluid was injected, and there was not enough distribution of the active ingredient.
On re-examination at a later date Dr Broadhurst informed the Tribunal that he had now viewed the x-ray films of the injection performed by Dr Madigan in 1997. As a consequence of viewing the films and consulting two senior visiting consultants and one staff specialist in radiology, he expressed the opinion that the needle had been positioned higher up in the joint than it should have been, and was "half in and half out" of the joint. He also commented that the applicant's state of mind was an unknown factor that may affect the outcome of the injection. In cross-examination, Dr Broadhurst said that the less than optimal positioning of the needle meant that it was more difficult to get all of the "material" into the joint. He confirmed that he and Dr Awerbuch did not have any differences of opinion in respect to the methodology of the actual injection.
In cross-examination, Dr Broadhurst rejected the notion that excess fluid injected into the right sacroiliac joint could leak out of the joint and affect the areas around L5/S1. However, he agreed that the applicant's reported 60% improvement following the 1998 injection was a lesser response than he would have hoped for if the sacroiliac joint was the source of the applicant's pain. He also agreed that the injection did not assist in proving his "clinical suspicion" that the applicant's pain arose from the sacroiliac joint and surrounding structures.
However, during examination-in-chief, Dr Broadhurst agreed with Dr Lee's assessment that the second injection in 1998 may have only affected the intra-articular joint surface as opposed to the surrounding muscles and ligaments. He gave evidence that if the test was conducted properly and successfully it may have shown that the intra-articular joint surface was not the problem, but rather that the surrounding muscles and ligaments were the source of the pain. However, Dr Broadhurst said that he was not aware of the applicant following this line of inquiry through. During cross-examination Dr Broadhurst agreed that he was left with an unproven clinical suspicion that the structures around the sacroiliac joint were the source of the applicant's pain.
During the course of his testimony, Dr Broadhurst also addressed some of Dr Awerbuch's criticisms of his diagnosis of sacroiliac pain. Dr Awerbuch's report at T261 criticised, among other things, the absence of a series of intra-articular injections given to the applicant, and that the injections given were not given on a blinded basis. Dr Awerbuch also alleged that Dr Broadhurst had compromised his own standards by undertaking only two clinical tests instead of three. In examination-in-chief, Dr Broadhurst testified that the research had been done on a blinded basis, and he said that the patient did not know what was being injected. During cross-examination he agreed that the lack of controls does reduce the reliability of the test result, but he said that the alternative of giving the patient a series of injections with different substances would cause the patient pain. Dr Broadhurst testified that if there is a positive diagnosis on two tests then it is not really necessary to administer a third.
As to Dr Awerbuch's suggestion that the applicant may have experienced a placebo effect as a result of the intra-articular injection, Dr Broadhurst gave evidence that he could not really answer that, but that many people blame medical results on placebo effect if no other explanation can be found.
Dr Broadhurst, during examination in chief, raised questions about Dr Awerbuch's diagnostic technique. He criticised Dr Awerbuch's use of Waddell's Signs, testifying that they are unreliable in "producing the so called malingerer." He gave evidence that the signs had never been developed as an indicator of whether a person was malingering. In cross-examination Mr Cole put it to Dr Broadhurst that it was not correct to say that the medical profession generally was dismissive of Waddell's Signs, but Dr Broadhurst testified that there is less acceptance of the Signs now. Dr Broadhurst also suggested that Dr Awerbuch was not up to date on current sacroiliac joint literature. He testified that Dr Awerbuch was quoting in his reports International Association for the Study of Pain (IASP) standards that are out of date and do not incorporate the work of Fortin. During cross-examination, Dr Broadhurst agreed that the IASP publication is a reasonable starting point for a medical practitioner considering options for the diagnosis of chronic pain.

When questioned about the surveillance video (Exhibit R6), Dr Broadhurst confirmed that this evidence did not affect his opinion as to his diagnosis of sacroiliac pain. He cited the reasons for this as being the poor quality of the video, and the fact that people will often sit with pain while they are carrying out an activity. Dr Broadhurst gave evidence that the body has a mechanism of "shunting off pain". He also noted that in the video the applicant shuffled from one side of the buttocks to the other in order to get comfortable, and that if she had taken adequate medication then she could have undertaken such an activity.
When Ms Kelly asked Dr Broadhurst for his opinion as to the applicant's work capabilities, he testified that she could readily occupy a clerical position providing she had the opportunity to alternate between sitting and standing as needed. Dr Broadhurst gave evidence that the applicant could not stand behind a counter for 8 hours a day. In regard to the video surveillance, Dr Broadhurst testified that viewing the video did not alter his opinion as to the applicant's capacity to work.
In conclusion, Dr Broadhurst gave evidence that the applicant's pain was pelvic in origin, and it was more probable than not that the applicant had sustained an injury to the ligaments of the right sacroiliac joint as a result of tripping over a phone cord in February 1994. He testified that the applicant had not yet recovered from the effects of the injury, and that people with this condition rarely make a full recovery.
Dr Mark Awerbuch
Dr Awerbuch gave evidence that he is a consultant rheumatologist and physician in musculo-skeletal disorders, and director of a pain management unit at Memorial Hospital. He is involved in the assessment of patients who have chronic non-cancer pain, and this includes the testing and treatment of the sacroiliac joint. Dr Awerbuch's Curriculum Vitae is to be found in Exhibit R11.
Dr Awerbuch examined the applicant and compiled reports dated 6 May 1998 (T243), 15 June 1998 (T249), 7 October 1998 (T261), and 27 June 2000 (Exhibit R13). He gave evidence regarding his opinion that the applicant was suffering from non-specific low back pain of non-organic origin that was unrelated to the two incidents at work in 1994 or any other work related incident.
Dr Awerbuch gave evidence that the applicant exhibited "non-organic physical signs of low back pain". He informed the Tribunal that signs of this nature were originally given that description in a paper by Gordon Waddell in 1980. He testified that the first incident when the applicant injured herself standing up from a swivel chair was suggestive of a muscle strain from which the applicant had made a full recovery. He testified that the second incident when she tripped over a telephone cord was also suggestive of muscular pain because the applicant described the pain as radiating upward. He gave evidence that she did not complain of localised pain in the buttock region, or groin, which is common for patients with sacroiliac pain.
In cross-examination Dr Awerbuch testified that even if the two incidents involved twisting and stumbling, it did not change his opinion that the applicant did not have sacroiliac joint pain. In evidence-in-chief, he testified that the sacroiliac joint is the strongest joint in the body, and it is improbable that standing or twisting would injure it. He also rejected Dr Broadhurst's opinion that the applicant's injuries were pelvic in origin.
In cross-examination, he was also questioned about the tests he performed on the applicant. In relation to the straight leg raise he gave evidence that patients with sacroiliac joint pain often experienced discomfort when the straight leg raise was performed. He testified that while the straight leg raise does not diagnose sacroiliac pain, it can be a good indicator. In cross-examination he further admitted that he did not even consider the possibility of sacroiliac pain until he read Dr Broadhurst's report, and thus did not perform the "shear" test on the applicant.
In relation to the issue of pre-existing degenerative change, Dr Awerbuch testified that the applicant exhibited degenerative changes consistent with her age at the time of the incidents, and that there was no objective evidence that there was a material aggravation of pre-existing degenerative change. He noted that the applicant's history demonstrated that she had had back problems since the age of 17, and that she regularly saw an osteopath. He speculated as to the possibility that the applicant had a low pain threshold, or was not coping as well as before with the pain created by minor degenerative changes.
When questioned about the sacroiliac joint injections, Dr Awerbuch testified that the fact that the applicant reported the right sacroiliac joint injection performed on 24 March 1997 did not improve her pain levels, suggested it was unlikely that the sacroiliac joint was the cause of the symptoms. In cross-examination, he said he had not been aware that the applicant herself was unsure as to whether the injection or her increased workload had caused the pain. He gave evidence-in-chief and in cross-examination that 1 mil of Marcaine and Celestone was sufficient to alleviate the pain, and he disagreed with Dr Broadhurst's opinion that it was a waste of time. When asked in re-examination whether he thought Dr Madigan had performed the injection correctly in terms of positioning of the needle, he testified that he saw no reason to doubt that Dr Madigan had performed the procedure according to standard practice and best practice.
In examination-in-chief he testified that while the sacroiliac joint could accept a maximum of 2 mils in volume of fluid, it was not necessary or appropriate to fill the joint completely to get the desired effect. He gave the opinion that if too large a volume of fluid was used, it could inadvertently anaesthetise a structure not being intentionally tested.
Dr Awerbuch further testified that given the negative response to the injection performed in March 1997, there was no need to repeat the procedure. Dr Awerbuch gave evidence that the sacroiliac joint injection performed by Dr Broadhurst in July 1998 did not confirm a diagnosis of sacroiliac joint pain. He gave evidence that the applicant's self-reported improvement of 60 percent fell below Dr Broadhurst's own 70 percent threshold of pain relief, and it also fell short of the IASP's criteria. He testified that 60 percent improvement was consistent with a placebo response, and that injecting 4 mils of fluid would cause leakage into other structures and lead to a "systemic" effect, reducing inflammatory pain around the body. Dr Awerbuch gave evidence-in-chief and in cross-examination that controlled experiments were also very important to eliminate the problems of a "false positive" reaction from the patient.
When questioned as to the video surveillance of the applicant at the casino (Exhibit R6), Dr Awerbuch gave evidence that he thought the applicant had very good spinal posture when sitting on the bar stool with no back support, which suggested good abdominal muscle strength and tone. He expressed the opinion that the video surveillance did not indicate that the applicant had any serious problem or incapacity. In cross-examination, Ms Kelly described the applicant's routine of playing the pokies, and put to Dr Awerbuch that it was consistent with the diagnosis of an organic back problem and, moreover, a sacroiliac joint problem. Dr Awerbuch disagreed, and questioned why the applicant would engage in an activity that involved sitting and standing if that caused her pain. He added that the video did not suggest she was a woman experiencing back pain.
Dr Awerbuch rejected the allegation by Dr Broadhurst that he did not keep up to date with the reading of medical literature and publications. He gave evidence that he subscribed to five medical journals, and had access to "medline" on the Internet. In cross-examination, Dr Awerbuch gave evidence that he was not criticising Dr Broadhurst personally when he said Dr Broadhurst had a "vested" interest in the outcome of the injection. However, he was critical of the fact that Dr Broadhurst made both the diagnosis of sacroiliac pain and performed the test himself. In cross-examination Dr Awerbuch countered Ms Kelly's suggestion that he himself had a vested interest in discrediting Dr Broadhurst's diagnosis to cover the fact that he allegedly had not initially considered the possibility of sacroiliac pain.
applicant's submissions
Ms Kelly submitted that the applicant continues to suffer from compensable injuries sustained while at work in 1994, from which she never fully recovered. The Tribunal was taken through the history of the claim, in which particular reference was made to an earlier decision by Comcare made on 6 August 1996 to cease liability for the applicant's condition (T139), which was revoked when the decision was reconsidered on 11 March 1997 (T170). In the determination of 11 March 1997at T170, the medical evidence of Dr Thompson was accepted rather than that of Mr Williams and Mr Hooker. Comcare determined that on the balance of probabilities the applicant's employment had contributed to the aggravation of a previously asymptomatic back condition, and that the condition had remained symptomatic since the date of the injury.
It was submitted by Ms Kelly that the Tribunal cannot revisit the reports of Mr Williams, Mr Hooker and Dr Baddeley to support the proposition that the effects of the 1994 injuries have ceased, as this evidence was refuted by Comcare itself in its reconsideration of 11 March 1997 (T170). Counsel submitted that the onus is on the respondent to show that the applicant's medical situation has changed since the determination of 11 March 1997 (T170), and that Dr Awerbuch's evidence is the only fresh evidence on the issue which can be considered by the Tribunal. Ms Kelly rejected the respondent's submission that the determination of 7 August 1998 (the determination which was reconsidered for the purposes of these proceedings (T255)) was a reconsideration of the determination of 11 March 1997. It was submitted that the determination of 7 August 1998 was a fresh determination without reference to the 11 March 1997 determination. It was submitted that s62 of the Act cannot be relied on by the respondent in this case.
Ms Kelly submitted that the Tribunal could determine that the applicant's situation had not changed since the determination of 11 March 1997 (T170), in that the injuries sustained at work in 1994 were still causing aggravation to her degenerative back condition. Alternatively, Ms Kelly submitted that the Tribunal could determine that the aggravation of the degenerative back condition was an aspect of the overall problem, but that another aspect was that the applicant had sacroiliac joint dysfunction or ligament dysfunction.
In relation to the sacroiliac joint, Ms Kelly submitted that Dr Broadhurst's opinion that the applicant suffered from right sacroiliac joint/ligament dysfunction remained unshaken during cross-examination. Furthermore, his concerns about the 1997 injection were confirmed by viewing the films of the injection. In relation to expertise, it was submitted that Dr Broadhurst had the most experience of all the medical witnesses in dealing with the sacroiliac joint. He had been published on the issue of sacroiliac joint dysfunction, and his views were supported by that of Dr Lee who had no "axe to grind" on the issue.
Ms Kelly also referred to a workers compensation certificate from Dr Welch which suggested the possibility of sacroiliac strain in January 1994 (Exhibit A9), and submitted that this could be considered a perceptive diagnosis which was later confirmed by Dr Broadhurst.
In regard to Dr Awerbuch's testimony, it was submitted that he did not place much emphasis on the view that there were ongoing symptoms resulting from the aggravation of the applicant's degenerative back condition. Moreover, it was suggested that Dr Awerbuch was attacking Dr Broadhurst's motives in order to defend his own diagnosis that the sacroiliac joint was not an issue.
In relation to the applicant's testimony, it was submitted that the applicant should be accepted as a witness of credit. It was pointed out that the applicant was not saying that she could not work, but that modified duties with exercise breaks and the provision of medication and treatment were important. Moreover, the applicant had gone to extraordinary lengths to improve her condition by going to places such as health centres, in order to help her stay at work.
Ms Kelly submitted that the applicant's credibility was only questioned with the advent of the video surveillance evidence, and the Tribunal should accept the applicant's explanation that the visits to the casino were intended to be a distraction at the end of a hard working week. It was submitted that in any case, the video showed the applicant changing from a sitting or standing position every 4 or 5 minutes, and that the oral evidence and video evidence were not inconsistent with the applicant's condition.
Respondent's submissions
Mr Cole submitted that the essential issue for the Tribunal to determine is whether the applicant suffers from any work related injury giving rise to symptoms, such that she is entitled to workers compensation as of and from 7 August 1998. Mr Cole further submitted that an alternative way of viewing the issue would be to ascertain whether the applicant had by 7 August 1998 recovered from the effects of her injury sustained in January 1994.
When reviewing the evidence given by the applicant, Mr Cole submitted that the incident in January 1994 involving the swivel chair was a normal, ordinary manoeuvre, with no trauma involved. On the balance of probabilities, there could not be any ongoing effects from the injury. Likewise, Mr Cole submitted that the incident in February 1994 involving a telephone cord did not involve trauma. It was noted that the applicant stumbled but did not fall over, and that she could not recall which leg she fell heavily on.
Mr Cole submitted that the applicant had, as a result of the two incidents, suffered from a temporary aggravation or exacerbation of pre-existing degenerative change. In support of this view, oral medical evidence and medical reports from Dr Awerbuch were referred to, as were medical reports from Dr Baddeley, Mr Hooker, Dr Adams, Mr Peak and Mr Williams.
Other possibilities for the applicant's pain that the respondent submitted should be dismissed by the Tribunal, included the suggestion that the applicant had suffered a permanent aggravation or exacerbation of her degenerative condition as a result of the two work related incidents. Mr Cole referred to the reports of Dr Thompson and Dr Taylor as being the only reports that expressly or impliedly stated that view, and submitted that it was relevant to keep in mind the triviality of the two incidents. The possibility that the applicant had a psychological or psychiatric disorder was dismissed on the basis of Dr Hicks' report. Mr Cole also rejected the possibility that the applicant was exhibiting signs of learned pain behaviour as being irrelevant for the purposes of these proceedings, as pain behaviour is not an injury for which compensation is payable.
The final possibility that Mr Cole submitted should be rejected was Dr Broadhurst's diagnosis that the applicant had right sacroiliac joint dysfunction. Mr Cole submitted that Dr Awerbuch's evidence should be accepted on this issue, and questioned Dr Broadhurst's objectivity. Mr Cole pointed out that by Dr Broadhurst's own admission, his diagnosis of sacroiliac joint dysfunction remained nothing more than a clinical suspicion. Furthermore, any doubts raised about the positioning of the needle in the 1997 injection reflected Dr Broadhurst's vested interest in discounting the results of the 1997 injection, which were at variance with the 1998 injection. Mr Cole submitted that Dr Broadhurst's evidence was in any case at odds with the information that Dr Awerbuch received from Dr Madigan about the 1997 injection.
Mr Cole further suggested that Dr Broadhurst had not turned his mind to the desiccation of the applicant's disc at L5/S1 level. It was also submitted that when Dr Broadhurst talked about the sacroiliac joint in his reports he did not mention the surrounding structures, whereas in his oral evidence he shifted ground to include discussion regarding the surrounding joint.
Mr Cole also dismissed Dr Lee's views, pointing out that he acknowledged that there could be reasons for the applicant's pain other than the sacroiliac joint diagnosis. It was further submitted that Dr Lee was focusing more on treating the applicant's pain rather than ascertaining its cause.
Mr Cole also referred in his submissions to the video surveillance of the applicant playing the pokies at the casino as evidence that the applicant's testimony should be treated with caution. While counsel submitted that he was not saying that the applicant did not have any symptoms, he made particular note of the fact that the applicant went to the casino after work during a period when she was working reduced hours, rather than staying on to complete her full hours.
Finally, Mr Cole made submissions in relation to the applicant's argument that the Tribunal should not have regard to the medical reports of Dr Baddeley, Mr Williams and Mr Hooker. It was submitted that the determination made on 11 March 1997 (T170) was reconsidered by a delegate of the respondent of its own motion in accordance with s62 of the Act. It would be an error of law to find that the respondent was not permitted to depart from its earlier determination (T170) as to do so would deprive s62 of its operation. Furthermore, it was submitted that it was not inappropriate to revisit the said determination, as that determination was based on the arguably wrong assumption that the applicant did not have lower back symptoms prior to 17 January 1994. Also, the determination did not find that the applicant had suffered a permanent aggravation to her back. Taking the above points into account, Mr Cole submitted that the Tribunal should not be limited in the use which it could make of the medical reports of Dr Baddeley, Mr Williams and Mr Hooker.
THE ISSUES
The reviewable decision before the Tribunal is the decision of 9 November 1998. This decision affirmed the respondent's earlier decision of 7 August 1998 which determined "that on and from 31/7/98, Comcare is no longer liable to pay compensation for your claim under any provision of the Act." The respondent's reasons for this determination appear at T255 and are in the following terms:
"…based on all of the evidence, I am not convinced on the balance of probabilities that;
(a)       you suffered any substantial injury as a result of the work related incidents of standing up too quickly at work on 17/1/94, tripping over a telephone cord at work on 20/2/94 or some other work related factor,
(b)       your symptoms, as reported, actually exist,
(c)       if such symptoms do exist, at whatever level, I feel they are the result of age related non-specific low back pain unrelated to your employment and
(d)       if such symptoms do exist, that they require any active medical treatment or incapacitate you for work in any way."
In short, it can be seen that the respondent's determination of 7 August 1998 was a comprehensive denial of any liability under the Act as and from 31 July 1998 with respect to the events of 17 January 1994, 20 February 1994 or any other work related factor. The initial claim by the applicant for rehabilitation and compensation was made on 12 February 1994 (T8). In this claim the applicant described her injury (or illness) as "pulled muscle in lower back and/or ligaments muscle spasm." Then followed the events of 21 February 1994 which were described by the applicant's treating general practitioner in a workers compensation medical certificate of 7 March 1994 as "low back pain … aggravated by tripping over phone cord at work …" (T10).

Liability for musculo skeletal back pain in the lumbar region was accepted by the respondent and compensation paid from time to time. On 6 August 1996 the respondent determined that liability to pay compensation would cease on 2 September 1996 (T139/249) as the respondent was satisfied that "continuing symptoms are no longer related to the events that occurred on 17 January 1994 and 21 February 1994". That determination was revoked on 11 March 1997 on reconsideration and the applicant's condition described above was amended to "musculo skeletal back pain in lumbar region being an aggravation of degenerative changes at L5/S1" (T170/304). In revoking the determination of 6 August 1996, the respondent was then satisfied on the balance of probabilities that the events of 17 January 1994 and those of 21 February 1994 contributed in a material degree to the aggravation of the applicant's "previously asymptomatic back condition and that the condition has remained symptomatic since the date of injury" (T170/303).
As a consequence of a review on its own motion, the respondent placed the applicant on notice in a letter to her of 14 May 1998 in the following terms:
"Based on all of the evidence, I am not convinced on the balance of probabilities that;
(a) you suffered any substantial injury as a result of the work related incidents of standing up too quickly at work on 17/1/94, tripping over a telephone cord at work on 20/2/94 or some other work related factor,
(b) your symptoms, as reported, actually exist,
(c) if such symptoms do exist, at whatever level, I feel they are the result of age related non-specific low back pain unrelated to your employment and
(d) if such symptoms do exist, that they require any active medical treatment or incapacitate you for work in any way.
However, before I make a decision regarding future liability on your claim I offer you the opportunity to submit such further evidence as you consider appropriate. Any such evidence should be forwarded within 28 days of the date of this letter. If I do not hear from you within this time I shall proceed on the available evidence, in which case I shall determine that no further liability exists."
(T244)
On 7 August 1998 the respondent determined that on and from 31 July 1998 it was no longer liable to pay compensation to the applicant under any provision of the Act.
As to the parties submissions concerning the effect of the respondent's determinations of 6 August 1996, 11 March 1997, 7 August 1998, 9 November 1998 and the scope of this Tribunal's review, the considered view of the Tribunal is as follows.
Section 62 of the Act provides the respondent with the power to reconsider at any time a determination it has made. On 7 August 1998 when the respondent came to consider the nature of the determination it would make it is useful to consider what the current status was as between the respondent and the applicant regarding liability under the Act. The relevant determination was that of 11 March 1997 which revoked the determination of 6 August 1996 denying liability and which then accepted liability for "musculo skeletal back pain in lumbar region being an aggravation of degenerative changes at L5/S1." (T170/304). And so the position just prior to the determination of 7 August 1998 was an acceptance of liability pursuant to s14 of the Act in relation to the injury as described. This determination would remain in force unless changed by any further determination of the respondent. And so it was until 7 August 1998 when the respondent made a determination in the following terms "on and from 31/7/98 Comcare is no longer liable to pay compensation for your claim under any provision of the Act" (T255/482). It is clear that this also was a determination pursuant to s14 of the Act and came about as a consequence of the respondent exercising its powers pursuant to s62 of the Act to reconsider the question of liability under the Act. Of necessity this involved a reconsideration of the then position with respect to liability governed by the determination of 11 March 1997. The determination of 7 August 1998 clearly brought to an end the determination of 11 March 1997. The next relevant determination is that of 9 November 1998 which is the determination before this Tribunal for review.
This latter determination affirmed the determination of 7 August 1998. To do so the respondent had, pursuant to s62 of the Act, to reconsider the determination of 7 August 1998 which of course involved a reconsideration of the question of liability. The reasons of the respondent for making the decision of 9 November 1998 clearly indicate a preference for Dr Awerbuch's evidence. They also indicate a preference for "the specialist medical evidence of Mr Williams dated 18 July 1996 and Mr Hooker dated 4 October 1995" (T265/506). The evidence of Messrs Williams and Hooker disclosed that the applicant was no longer suffering from symptoms related to the work related incidents of 17 January 1994 or 12 February 1994 and that any symptoms now suffered by the applicant were due to degenerative changes in the lumbar spine.
The Tribunal can find no reason why its review should in any way be bound by the determination of 11 March 1997. That determination remained in force only until 30 July 1998 and then a fresh situation came into being as and from 31 July 1998 courtesy of the respondent's determination of 7 August 1998. The determinations of 7 August 1998 and 9 November 1998 indicate that the relevant issue before this Tribunal is the respondent's liability or otherwise under any provision of the Act with respect to the applicant's claim. This would of course necessitate a consideration of the respondent's liability or otherwise under s14 of the Act. The reasons given for the reviewable determination disclose that the respondent was satisfied that the applicant is not suffering from any physical work related injury. And whilst the respondent's latest determinations of 7 August 1998 and 9 November 1998 do not determine that the applicant did not initially sustain work related injury in early 1994, they certainly make it clear that as and from 31 July 1998 any symptoms which the applicant may suffer from are not in any way connected with any work related incident. It must also be remembered that it was the applicant who submitted a report from Dr Broadhurst (T254) for the respondent's consideration in the lead up to the reconsideration determination of 9 November 1998. That report formally raised for the first time that the applicant had sustained injury to her right sacroiliac joint as a consequence of the work related incident of 21 February 1994. Dr. Broadhurst's views in this regard were predominantly at variance with the medical evidence previously submitted by the applicant suggesting that the applicant's injury was an aggravation of pre-existing degenerative changes of the lumbar spine in the work related incidents of early 1994.
The issue before the Tribunal is as to whether or not the respondent is liable, as and from 31 July 1998, to pay to the applicant compensation under any provision of the Act. This of necessity requires an examination of whether the applicant sustained any work related injury and if so as to whether such injury or injuries result as and from 31 July 1998 in any compensable sequelae under the Act.
THE TRIBUNAL'S FINDINGS, REASONS AND DECISION
At the outset, the Tribunal would indicate that it has given consideration to the whole of the material before the Tribunal, together with the submissions of the parties.
The Tribunal had the advantage of closely observing and listening to the witnesses who gave oral evidence. As to the applicant, the Tribunal gained the distinct impression from time to time that the applicant exaggerated the nature and extent of her symptoms in the giving of her testimony. The impression the Tribunal was left with was that the picture portrayed by the applicant in the above regard was not entirely accurate. The Tribunal was not impressed with this aspect of her testimony. Nor was the Tribunal impressed with the applicant's evidence which clearly suggested that all of her symptoms had their beginning in the work related incidents of 17 January 1994 and 21 February 1994. The Tribunal also gained the distinct impression that the applicant was somewhat reluctant to disclose any pre 1994 back problems and was prone to minimize the nature and extent of those problems when they were brought to light. Whilst these were unimpressive aspects of the applicant's evidence, the Tribunal would hasten to add that it does not consider that the applicant was deliberately or consciously attempting to portray an inaccurate picture of her symptoms. It may well be that the length of time that the applicant has been on what some may call the medico-legal treadmill is reason enough to provide the explanation. And so whilst the Tribunal accepts that the applicant has experienced pain, discomfort and restriction of movement from time to time, it does not accept the nature and extent of it as portrayed by the applicant in her testimony. The applicant's husband also gave evidence regarding his wife's symptomatology with a focus on the applicant's symptoms, restriction of movement and treatment post the work related incidents of early 1994. Mr Burns acknowledged that his understanding of his wife's condition was based on what the applicant told him and his own observations. The closeness of the relationship between Mr Burns and the applicant has led the Tribunal to a discounted acceptance of Mr Burns' evidence as to his wife's symptomatology which he acknowledged the general picture to be of varying levels of symptoms since 1994, "…Sometimes, like I said before, sometimes it's good – or not good but better than normal" (Transcript p183).
Oral evidence was also given by three medical practitioners - Drs Lee and Broadhurst for the applicant and Dr. Awerbuch for the respondent. The Tribunal found Dr. Awerbuch to be a most impressive witness whose evidence the Tribunal accepts. He was very thorough and objective in the giving of his testimony. It was very well researched and his reasoning most persuasive. The evidence of Drs Lee and Broadhurst was not as impressive as that of Dr Awerbuch. Whilst the Tribunal does not for one moment suggest that they were anything other than genuine in the giving of their testimony, the quality of their evidence fell well short of that given by Dr Awerbuch. In Dr Lee's case, he was not as well researched nor as thorough. His role was more focused on rehabilitation than on diagnosis. In Dr Broadhurst's case, the Tribunal gained the distinct impression that his evidence was lacking in objectivity. He gave the Tribunal the impression that his diagnosis regarding the applicant was more in the nature of a cause which was personal to him and one which he wanted to push. He was somewhat defensive when closely questioned and not as well researched as Dr Awerbuch. Dr Awerbuch had the advantage of being able to comprehensively review the medical history of the applicant. His was clearly the most objective and accurate assessment, both oral and in writing, of the issue before the Tribunal in diagnostic terms and the Tribunal so finds. The Tribunal accepts Dr Awerbuch's evidence and rejects the evidence (oral or written) which might be said to be at variance with it.
As to the video of some of the applicant's activities, the Tribunal accepts the views of Dr Awerbuch which were thorough and well reasoned. However, the Tribunal accepts that the applicant may still have experienced some pain or discomfort on occasions depicted in the video.
The Tribunal makes the following findings of fact.
1.On 17 January 1994 the applicant experienced pain in her lower back when rising from a chair at her place of employment in the manner described to the Tribunal in the giving of her evidence.
2.On 21 February 1994 the applicant again experienced pain in her lower back and up her spine when she tripped and stumbled over a telephone cord at her place of employment.
3.Any injury sustained on 17 January 1994 or 21 February 1994 would have been no more than a minor aggravation of pre-existing degenerative changes to the applicant's lumbar spine which changes were normal for her age at the time.
4.If any such aggravation referred to in 3. (above) occurred and if it produced symptoms then those symptoms would have lasted only for a limited period of time and certainly not until 31 July 1998.
5.There has never been any permanent aggravation of degenerative changes to the applicant's lumbar spine arising out of or in the course of the applicant's employment with the respondent.
6.The applicant did not sustain any injury to the right sacroiliac joint or surrounding ligaments in the work related incidents of 17 January 1994 or 21 February 1994.
7.At some time after January/February 1994 the applicant began to experience non specific low back pain unrelated to the incidents of 17 January 1994 and/or the incident of 21 February 1994 or any other work related incident.
8.Any low back pain symptoms experienced by the applicant as and from 31 July 1998 are not in any way related to any injury she may have sustained in her employment.
For the above reasons the decision of the Tribunal is that the decision under review is affirmed.

I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of DEPUTY PRESIDENT B.H. BURNS
Signed:         ..............................Signed)...................................
  D M Walkley (Personal Assistant)
Date/s of Hearing  13-15 October 1999, 27-28 January 2000,
  25 February 2000, 24 March 2000 and
  5 July, 2000
Date of Decision  5 October 2000
Counsel for the Applicant        Ms Kelly
Solicitor for the Applicant         Andersons
Counsel for the Respondent    Mr Cole
Solicitor for the Respondent    Phillips Fox