Camden and Australian Postal Corporation
[2003] AATA 655
•11 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 655
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos. N2001/1446;
) N2002/407
GENERAL ADMINISTRATIVE DIVISION ) Re CAROL ANN CAMDEN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J Campbell, MemberDate11 July 2003
PlaceSydney
Decision The decisions under review are AFFIRMED.
(Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION - back injury in 1986 unrelated to employment – re-injury at work in 1989 - whether work injury temporary aggravation or permanent injury and whether work injury contributed to later disc prolapse in 2000.
Safety, Rehabilitation and Compensation Act 1988 - s14
REASONS FOR DECISION
Senior Member M D Allen
Dr J Campbell, Member
1. This matter concerns two applications lodged by the Applicant seeking review of "reviewable decisions" made by the Respondent pursuant to s62 of the Safety, Rehabilitation and Compensation Act 1988.
2. The first decision is that of 31 July 2001 affirming a prior determination of 28 April 2001 ceasing liability in respect of a back injury that occurred on 9 November 1989 (matter No N2001/1446). The second decision, which subsumed the earlier decision, was made on the 19 February 2002. That decision varied the reviewable decision of 31 July 2001 to read:
"Australia Post is not liable to pay compensation to Ms Camden in respect to any injury to the back/spine and lower limbs. The denial of liability encompasses all relevant provision of the Act, including sections 14, 16, 19, 20, 21, 24, 25 and 27."
(Matter No N2002/407).
3. The substance of both applications for review was the effect of a work injury on 9 November 1989 when the Applicant hurt her back whilst moving office furniture at her place of employment. The Applicant claimed that the said work injury in November 1989 caused or aggravated an injury to her lower back, which led to a permanent impairment. The Respondent contended that the Applicant on 9 November 1989 merely suffered a temporary aggravation or exacerbation of a pre-existing injury.
4. It was not disputed that there were three specific incidents that led to the Applicant's current condition.
5. The first incident was on or about 23 August 1986 when the Applicant injured her back whilst collecting firewood at mother's property near Mudgee in New South Wales. Eventually on 3 April 1987 a laminectomy at L5/S1 was carried out by orthopaedic surgeon Dr Trevitt.
6. On 9 November 1989 the Applicant injured her back at work whilst moving office furniture. An incident report dated that day and signed by the Applicant states inter alia:
"Was moving desks and cabinets…after ½ hour of this I became aware of pain in the lower back."
7. The third incident occurred on 11 February 2000 when the Applicant went to "flick away" an insect variously referred to as a cricket or a grasshopper that had alighted on her right hand. This involved a twisting action of her back and she experienced severe pain. As a result of this injury she underwent a laminectomy and disc excision at L5/S1 and neurolysis on 3 March 2000.
8. As stated above the real question in this matter is the physiological effect the 9 November 1989 incident had upon the Applicant. As put by Professor Fearnside in his report of 18 October 2001:
“There was a causal relationship between the injury in November 1989 and the need for surgery in February (sic) 2000”.
9. In her evidence to the Tribunal the Applicant stated that following surgery in 1987 she made a full recovery and was symptom free. She stated that after taking six to eight weeks to recover from the operation itself she went back to full-time work and again undertook activities such dancing and playing squash.
10. This sanguine view of a post-operative recovery does not accord with records made at the time. In a report dated 3 August 1987 (T34) Dr Trevitt, the Applicant's then treating surgeon stated:
"…she is now managing work with what sounds to be fairly occasional and relatively mild symptoms. There is mild intermittent low back pain and some paraesthesia in the right foot occasionally, with occasional spontaneous pain in the posterior aspect of the right leg.
…I think her symptoms will continue to slowly improve during this time, as they are now mostly related to residual fibro muscular stiffness rather than to any suggestion of disc swelling."
11. At document T95 are notes made by the Rehabilitation Service of Australia Post. Entries in those notes read inter alia:
"5/87 - ...Pain in right leg had eased but it flared up again after yesterday's trip.
5/87- Rang Carol: She saw Dr Trevitt today. Dr Trevitt seemed concerned about leg pain.
7/87 - Carol a bit sore last night and some referred pain left leg…
7/87 - …Survived week 1: her back was a little sorer but not in need of medication etc.
7/87 - Carol came to see me. Feels public transport is causing her back some aggravation. Was in pain on Friday.
7/87 - Carol's back discomfort still there but not severe. She says that Dr Trevitt has told her to expect some aggravation of symptoms and expects to have some nerve pain for 12 months."
12. On 5 January 1988 and 19 February 1988 the Applicant was absent from her employment because of back pain. In Exhibit R14 the clinical notes of the Applicant's general practitioner reference is made to the fact that the Applicant was having back pain in 1987 and early 1988. On 4 September 1988 she was referred to Dr Trevitt for low back pain.
13. In evidence in chief the Applicant stated that on 9 November 1989 while pushing a two-door filing cabinet, she experienced pain in her lower back that radiated down her right leg. She put up with that pain and returned to work the next day. After consulting a medical practitioner she then took two days of work. Although pain continued she then returned to work.
14. As pain continued in March 1990 she obtained a referral to Professor Fearnside. At that consultation the options given to her were either a further operation or conservative treatment and she opted for the latter.
15. The Applicant continued to work full-time up until August 1991 when she accepted a voluntary redundancy package. It is noteworthy that although the Applicant's evidence was that she had no periods in this time that she was pain free, her only absences from work because of back pain were from 9 to 12 April 1990 and on 24 May 1990.
16. Subsequent to leaving the employ of the Respondent she completed a university degree by correspondence as well as a course in Bowen therapy and course in hypnotherapy.
17. In November 1993 the Applicant sought employment as a factory hand at Cadbury-Schweppes (Cottees) factory at Liverpool. In Exhibit R25, Ms Munn the Occupational Health and Safety Rehabilitation Coordinator for Cadbury-Schweppes states inter alia:
"3. I note that there is a document headed Pre-placement Health Assessment Evaluation dated 26 November 1993 in which it is stated by the occupational health nurse that "back injured in 1987 - surgery performed for laminectomy. No ongoing pain or disabilities. To avoid heavy manual handling duties."
4. Ms Camden continued in her employment with Cadbury-Schweppes until she resigned on 27 January 1994 citing her need to return to full time studies. Her last day of employment was 11 February 1994.
5. There is no record in Ms Camden's file of her having complained of, or taken sick leave in relation to, a sore back."
18. Cross-examined the Applicant stated that her work at Cadbury-Schweppes involved her standing on a production line from 0630 hours to 1430 hours with a half hour break for lunch. Her duties required her to bend and to lift items off pallets and to lift packing components. She agreed company records indicated that she had no time off work for a sore back.
19. Subsequent to her employment with Cadbury-Schweppes the Applicant in 1994 obtained her degree being a Bachelor of Arts and in 1995 obtained a position with QBE Insurance at Parramatta dealing with workers compensation claims. Prior to obtaining this position she had worked in a Video Ezy store, ie hiring out video films. This job involved standing and replacing video films on shelves.
20. The Applicant was employed by QBE insurance for the period 1995 up until February 2000. In a statement dated 21 November 2002 (Exhibit R23) Mr Noel Evans, a former manager of the Applicant at QBE Insurance stated inter alia:
"I do not recall Carol ever having complained (of) a bad back or having previously suffered a back injury. Her duties were of a clerical nature and as such she was required to sit to perform those duties although she would also have to walk around and stand to do some filing."
21. At the same time as working at QBE Insurance the Applicant together with her partner Ms Carol Falconer started a business titled Yorich Hypnotherapy Pty Ltd as well as a business as a Bowen therapist. In Exhibit A15 Ms Falconer says of the Bowen Therapy business:
"Carol was required to bend, lift and get into awkward positions in order to manoeuvre patients and lift parts of the patient’s bodies with their assistance."
22. Ultimately the Bowen Therapy and Hypnotherapy business ceased at Christmas 1999. The Applicant now conducts a workers compensation assessing business from her home. She has various aids to assist her in this and she can adopt a recumbent posture in order to cope with pain.
23. Although the Applicant stated that pain had been constant since the incident on 9 November 1989, she conceded that at the time she accepted a voluntary redundancy she had not thought of back pain as being an issue at that time. Her pain continued to get worse however, and the incident in February 2000 was "the last straw".
24. We accept the Applicant's evidence that she had a work ethic and wished to continue in some remunerative activity, and also that whilst working in the Respondent's workers’ compensation section, there was a bias against making compensation claims, although the Applicant did claim for the two days she had absent from work following the incident of 9 November 1989.
25. However, when one examines the clinical notes of the Applicant's general practitioner, although the Applicant in the period from November 1989 to February 2000 had numerous consultations there are only two recorded complaints of back pain. This is also reflected in Exhibit R27, the Schedule of Pharmaceutical Payments, which show a low level of analgesia until the year 2000.
26. In 1999 the Applicant began playing golf and squash. Both the Applicant's partner Ms Falconer and her friend Mrs McDonald stated that the Applicant's condition deteriorated post February 2000 although from the evidence of the Applicant and Ms Falconer it is clear that the Applicant's condition had become worse by Christmas 1999 when they went on holidays to Queensland. For example the Applicant stated that although she had taken golf clubs away on holidays she did not play. Ms Falconer on the other hand said they did play golf in Queensland. Ms Falconer also stated that during this trip the Applicant had problems with her back from travelling.
27. Other activities in which the Applicant had taken part in the period 1990 to the year 2000 were garden maintenance, including starting a motor mower and whipper snipper with a pull start, and some bushwalking along fire trails. In stating this we also accept that the Applicant was motivated to achieve a degree of normalcy in her life.
28. On 30 March 1990 Professor Fearnside in a report to the Applicant's general practitioner (T41) stated inter alia:
"…A CT scan of the lumbar spine dated 28/12/89 showed what looked like a prolapse of the L5/S1 disc and the right S1 root was not visible.
...
It is a little difficult to be sure what is going on here. I imagine her pain is due either to adhesions or due to a recurrent disc prolapse…"
Later on 1 May 1990 Professor Fearnside reported (T43):
"A follow up note that Carol Camden's repeat myelogram shows some distortion of the right S1 nerve root sheath consistent either with a recurrent disc prolapse or adhesions. It is really not possible to tell on the x-rays."
Later on 13 November 1991 Professor Fearnside opined (T57):
"Although her symptoms had been relieved following the initial lumbar disectomy, the fact that a recurrent disc prolapse has occurred has been made more likely in view of the original injury in April 1987. Both lumbar myelography and MRI scanning have confirmed a disc prolapse at the operated level…"
29. In a report to the Applicant's solicitors dated 18 October 2001 (Exhibit A5) Professor Fearnside opined:
"Over the decade following the time Ms Camden was seen in 1991 by me, I assume she has continued to experience both back pain and right lower limb radiculopathy. The operative findings from Dr New are not clear as to whether there was a current disc prolapse present or whether there was epidural scarring.
It is a well recognised phenomenon for patients who have sustained a lumbar disc prolapse and undergone surgery to develop a post-operative foraminal stenosis over the years due to scar tissue and often the remnants of disc prolapse. Therefore, if this was present, I think it is a consequence of her earlier disc prolapse. Further, recurrent disc prolapse is also a well recognised phenomenon even a decade or so later. When I last saw Miss Camden she did have evidence of a recurrent disc prolapse but chose conservative treatment. It is quite possible that she was able to cope with the disability until a further prolapse occurred which caused the deterioration in her condition in the year 2000. Therefore, I believe with either scenario there is a causal relationship between the incident in November, 1989, and the need for surgery in February, 2000."
30. In coming to that opinion Professor Fearnside stated that he assumed that Dr New, who performed a laminectomy in March 2000 had obtained a history from the Applicant that she continued to experience back pain and right low limb radiculopathy between 1991 and 2000.
31. Dr Yeo saw the Applicant for a second opinion in May 1990. His report of 29 May 1990 is document T44. We do not place any reliance upon the history as detailed in that report as the history recorded is apparently in precis form and the whole report is quite superficial. Dr Yeo does say however:
"This lady's symptoms and signs suggest some continuing irritation of the S1 ?L5 nerve root and the myelogram confirms the presence of an L4 5 disc herniation. There is also some suggestion of continuing compression of the right S1 emerging nerve root."
32. On 13 September 1991, Dr Drew, surgeon, reported to the Respondent stating inter alia (T51):
"OPINION:
Diagnosis: She has disc degeneration of at least the lowest two discs. There has been some suggestion of irritation of nerve roots about L5-S1 but there is no objective evidence of this at present.
Causation: …Her symptoms appear to have been precipitated by that incident in 1986 and were greatly relieved by the subsequent laminectomy. The incident at work in 1989 appeared to cause considerable aggravation of her previous condition.
…
COMMENTS:
Despite the fact that an incident at work appears to have aggravated her condition, it appears that the major part of her impairment would be due to the incident in 1986."
33. In a further report dated 24 September 1991 (T53) Dr Drew stated:
"The incident at work on the 9/11/89 caused low back pain and shaking or spasm of the right leg. However, she was able to continue at work for two more days and then ceased work for two more days. She then returned to her normal duties.
Therefore I consider that this incident was a fairly minor one, compared with the first incident. In my opinion the aggravation would have persisted for some weeks or months, although it would be impossible to exclude the possibility that she is still suffering from some of that aggravation. In summary I would say that the operation is being done because of her underlying condition but it might not have been necessary if she had not had the incident at work on the 9/11/1989."
34. The operation referred to by Dr Drew did not in fact take place, as stated above, the Applicant opted for conservative treatment.
35. The Applicant's general practitioner in a report dated 28 October 2000 opined that the Applicant would not have required further treatment but for the injury on 9 November 1999. This opinion was predicated on the Applicant having remained pain free in the period from 1987, when the first laminectomy was performed, to November 1998, whereas this is not the history given by contemporaneous reports.
36. A further report by the Applicant's general practitioner Dr Southern dated 12 October 2001 became Exhibit A2 in these proceedings. In that report Dr Southern again states that the Applicant was never pain free post the November 1989 incident. He then adds:
"I feel that there are two factors that need to be considered here. The first is that Ms Camden was never pain free-following the incident in 1989. CT scans and myelograms that were performed at that time confirmed the presence of pathology on the right-sided at the level of L5/S1. The only question that existed at that time was the nature of this pathology, ie recurrent disc prolapse or adhesions. The second factor that needs to be borne in mind is that the simple action of shaking away an insect would not result in the level of trauma that Ms Camden subsequently suffered in an otherwise healthy back…"
37. Cross-examined Dr Southern stated that the history he obtain from the Applicant regarding the November 1989 incident was that she was lifting - as opposed to her evidence of pushing along the floor. He conceded that Professor Fearnside was unable to say in 1990 whether the Applicant was suffering a prolapsed disc or fibrosis as a result of the earlier operation in 1987. He further added that Dr New on surgery in 2000 found fibrosis.
38. Dr New in his report of 24 July 2001 (T91) refers to the Applicant after 9 November 1989 as having " quite debilitating pain". This is not consistent with the Applicant's evidence that she continued in her employment as confirmed by her sick leave records and that she said that at the time of her voluntary redundancy she had not thought of her back as being an issue.
39. At page 2 of his report Dr New refers to the Applicant having "quite a significant amount of epidural fibrosis".
40. Professor Sambrook, Rheumatoligist, saw the Applicant on 4 April 2002 and his report to her solicitors of 29 April 2002 became Exhibit A11. In that report Professor Sambrook opined that the episode in November 1989 led to a significant exacerbation of the Applicant’s disease and should be regarded as a contributing factor of her ongoing symptoms.
41. Cross-examined Professor Sambrook stated that his opinion was based on a prior history of absence of symptomatology. Given this he saw a definite temporal relationship between the pushing of the filing cabinet and exacerbation of symptoms.
42. Dr Browne, specialist physician, saw the Applicant on 20 December 2001 at the request of her solicitors. He obtained a history that the Applicant after the laminectomy in 1987 returned to work "feeling very well". Then on 9 November 1989 she had to "lift and drag desks and filing cabinets". In his report he opined:
"I consider that the November 1989 incident represented an exacerbation of the original intervertebral disc disorder at the L5/S1 level and the CT scan performed on 28 December 1989 suggests that there has been further disc protrusion at L5/S1 causing compression of the right S1 nerve root which had been decompressed by the earlier laminectomy."
43. In a later report dated 27 March 2003 (Exhibit A16) Dr Browne refers to the report of Professor Doust (Exhibit R11) and opines:
"It is open to interpretation as to whether imaging is different, as in my view the December 1989 scan showed marked posterolateral bulging of the L5/S1 disc on the right side whereas there was more discrete sided L5/S1 disc protrusion seen in the 1987 scan.
There was potential compression of the right S1 nerve root in the 1989 scan.
On clinical grounds she did experience a significant exacerbation of back and right leg pain following the incident on 9 November 1989."
44. At the request of the Respondent the Applicant was examined by Dr McGill, Rheumatologist on 5 March 2001. In his report of that date (T80) Dr McGill opined:
"…The specific incident in late 1986 (lifting firewood) influenced the timing of her presentation with lumbar disc disease but is very unlikely to have been the primary cause. I think the firewood incident did however influence the timing of the need for treatment, including surgery in April 1987.
The November 1989 episode (moving office furniture) would have aggravated her symptoms at that time. The moving of the office furniture probably influenced the timing of the investigations, which occurred at that stage.
…
I think any significant role from her furniture moving activities in 1989 (as opposed to the effect of her underlying constitutional lumbar disc disease) would have been minimal (insignificant) by six months after that episode (ie by May 1990). The deterioration in February 2000 primarily reflected the natural history of degenerative lumbar disc disease. The minor action of flicking a bug from her wrist played some role in determining the timing of that exacerbation…"
45. In passing the Tribunal notes that in his evidence both in chief and in cross-examination, Professor Sambrook did not deny that the majority of disc lesions are likely to be genetic in origin although he made the important caveat that environmentaly caused represents 30 to 40 per cent of disc lesions which is not insignificant. As stated above, Professor Sambrook did state that there was a definite temporal connection with the 9 November 1989 incident. He did not specifically disagree however with Dr McGill's opinion that the majority of incidents of lumbar disc diseases are genetically caused. Indeed Dr McGill relied upon a paper of which Professor Sambrook was a joint author to support his opinion.
46. Dr McGill again stated in evidence in chief that the 9 November 1989 incident was typical of people with degenerative changes in the lumbar spine and that they will experience flare ups from time to time. More importantly he stated that if a disc protrusion was ready to cause symptoms you would expect playing golf and squash to bring on those symptoms. He stated:
"It is wrong to make a causal connection to a temporal connection."
47. Re-examined Dr McGill reiterated that in his opinion the incident of November 1989 had no relationship to the deterioration of the Applicant's symptoms but that the natural history of disc disease is one of gradual deterioration.
48. Orthopaedic surgeon Dr Maxwell examined the Applicant at the request of the Respondent’s solicitors on 21 October 2002. His report of that date is Exhibit R3 and in that report he opined inter alia:
"I consider that in 1989 she suffered a work-related aggravation of a pre-existing condition but this aggravation eventually settled and throughout the 90s she was suffering the effects of the previous disc protrusion which occurred in 1986. She then suffered a further disc protrusion in 2000 and subsequently had further surgery. On different occasions the L4/5 disc has appeared to be bulging on the scans but I do not consider that this has caused any significant symptoms and that almost all her symptoms are due to irritation of the S1 nerve root on the right.
…
She suffers from S1 nerve root irritation. I consider that she did suffer a disc protrusion as a result of the incident of 23/8/86 whilst holidaying near Mudgee.
I consider that the effects of the incident of 23/8/86 were continuing up to the time of the recent injury in February 2000 when she sustained a recurrent disc protrusion at the L5/S1 level and I consider that her symptoms subsequent to that as a result of the recurrent disc protrusion.
I consider that she suffered an aggravation of the previous injury on 9/11/89 at Australia Post. I do not consider that according to the available evidence that she sustained a further disc protrusion but did irritate the S1 nerve root and this irritation would have probably persisted for a period of six months"
49. In a later report dated 27 February 2003 he opined:
"I consider it is probable that the discectomy which was performed in 1987 left some residual scaring of the nerve root. There I consider it is likely that the affects [sic] of the discectomy did not in fact cease and that during the 1990s she was still suffering from some discomfort in her left leg due to recurrent irritation of the nerve root and in fact the 1989 episode was a similar episode.
I therefore consider the aggravation ceased and the later problems, apart from the recurrent disc protrusion, were aggravations of the 1986 incident."
50. In evidence in chief Dr Maxwell was of the opinion that on 9 November 1989 the Applicant had irritated a nerve root. He stated that in his opinion the MRI scan did not show anything but scaring around the nerve root. In re-examination he again stated that in his opinion the CT scan of 1989 showed fibrosis as a result of the 1987 operation and that this fibrosis had irritated the nerve root so that it became inflamed. However, the natural history is for such inflammation to resolve.
51. On being questioned by the Tribunal Dr Maxwell stated that the injury of 1989 had now been subsumed by the February 2000 prolapse.
52. Dr Maxwell also stated that in his opinion the activities of golf and squash were inconsistent with the presentation of significant continuing pathology.
53. A contrary opinion was given in the report of Dr Seex, neurological and spinal surgeon, dated 5 October 2001 (T3 in matter N2002/407). At page 2 of his report Dr Seex states:
"If the disc was not disturbed in the original operation and just as importantly even if it was then I think it is very clear that she developed a disc prolapse as a result of the injury at work in 1989. The disc is evident in the 1989 imaging and is substantially worse than in the 1987 imaging. This then underwent a severe exacerbation in February of 2000, requiring surgery…"
Dr Seex continues at page 3 of his report:
"There seems to be agreement by all parties that there was a significant increase of the size of the disc prolapse between 1987 and the CT scan of 1989. The clinical history is one of significant and dramatic deterioration in 1989 consistent with the progressive change as noted radiologically…On clinical grounds the L5/S1 disc remained symptomatic until the dramatic deterioration in February 2000, resulting in the requirement for surgery.
We know that discs do not adequately repair themselves or regenerate and once injured remain damaged. The clinical picture of a previously injured disc undergoing a dramatic deterioration is not at all uncommon. This situation I believe applies to Mrs [sic] Camden."
54. Professor Bruce Doust is a diagnostic radiologist as well as an Associate Professor at the University of New South Wales. He has co-authored numerous papers and book chapters on radiological topics, and we find that his is extremely well qualified to comment in this matter.
55. Professor Doust’s report of 16 March 2003 as well as his oral evidence was taken in over the objection of the Applicant's Counsel. Although the said report and the oral evidence of Professor Doust were adduced late, the Tribunal considered that his evidence was of material value to the Tribunal in making the correct or preferable decision in this matter and the Applicant was offered an adjournment in order to meet the evidence adduced. The Applicant by her Counsel did not avail herself of that offer.
56. The crux of Professor Doust's report is at page 2 thereof wherein he states:
"…I must conclude that there is no credible radiographic evidence to support the notion that the 1989 incident caused further significant injury to the L5/S1 disc."
He added:
"…I therefore conclude that the 1989 incident did not alter the patients subsequent course."
57. In examination in chief Professor Doust was taken to his opinion that there was no radiological evidence that the 1989 incident caused further significant injury to the L5/S1 disc. He then stated that the reason for his opinion was that any differences in the CT scans of 8 March 1987 and 28 December 1989 were explained by differences of technique. Allowing for this and that the scans were not quite in the same plane he could not find radiographic support for the idea that something new and significant had happened.
58. Later in examination in chief he stated:
"…when looking at the films and confining my views and comments to the film the changes between '87 and'89 are quite slight and had there been some significant event I would have expected to see something more like the changes in 2000, in the study of 2000. So on the basis - and restricting myself strictly to the images and having no comment whatever about the clinical side of it would say that I am not able to see evidence that allows me to offer support to the notion that a significant event took place in 1989."
59. Cross-examined Professor Doust stated:
"My view is that if there were another significant injury in '89 that I would expect to see something more than I did. I would expect to see something more than a slight change. I would expect to see something more than what I do see which could be adequately explained on the basis of the effluxion of time and the change in the architecture of the disc due to the removal of the material."
He was then asked:
"Q: Well, what I'm really suggesting to you, that you cannot draw any conclusions at all about what happened that led to the appearance in December 1989 without being a clinician, can you?
A: Well, I can draw the conclusions that come from the radiographic appearances. I think it is fair for me to draw the opinion that the changes that I see are very minor, that the chances have alternative explanation and that I would have expected something more if there had been a significant event."
Further questioned in cross-examination Professor Doust reiterated:
"It is my professional opinion that it is not a significant change."
And further stated:
"I revert to my previous statement that I would expect to see something more."
Finally adding:
"It is fair to say that what we see in the pictures of 1989 haven't changed and you would therefore have to say that if you want to say there’s a significant event, you must look for support other than radiographic support to your position."
Significantly at the end of his cross-examination Professor Doust stated:
"Radiologists write their reports for the benefits of doctors, not for the benefit of barristers"?
60. Re-examined the following passages occur in the transcript:
"Q: Now, if the clinicians were to hypothesise that the November '89 incident caused a recurrent disc prolapse, how would that sit with what you saw with your expert examination of the CT scans?
A: Well, all I could say is that they would have to - I would tell them that there wasn't much radiographic support for their opinion.
Q: And if it had caused a recurrent disc prolapse would you have expected to have seen the more significant pathology on the CT scans that you described to the Tribunal earlier?
A: You're referring I think to the MR scans.
Q: Yes.
A: I would have expected to see something more than I did, that's all.
Q: In those circumstances Professor, do you remain of the view that there is no credible radiographic evidence to support the notion that 1989 incident caused further significant injury to the L5-S1 disc?
A: That’s my opinion."
61. We have cited extensively from the evidence of Professor Doust as to our mind his objective evidence is crucial to the resolution of this matter. When one combines the evidence of Professor Doust, which we find compelling, with the opinion of the Applicant's treating surgeon Professor Fearnside on 1 May 1990 that it is not really possible to tell whether the Applicant had a recurrent disc prolapse or adhesions, the conclusion reached is that the most likely explanation for her back pain is nerve entrapment due to adhesions from her laminectomy in 1986, which event was totally unrelated to her employment.
62. We accept that the Applicant's doctors generally support her hypothesis that on 9 November 1989 she suffered a prolapsed disc or suffered such injury as to be a material cause of the prolapse to disc she did suffer in February 2000. Those opinions are to a large degree based on the Applicant's history as given to the investigating medical practitioners however, there are elements in the material before us that casts doubts on that history, namely:
I.That following surgery in 1987 and prior to the 1989 incident the Applicant was not symptom free.
II.In the period 1990 to 2000 she made some 47 visit to her general practitioner Dr Southern yet on only two occasions complained of back pain.
III.In 1998 or 1999 she commenced playing golf and squash - activities which normally would not recommend themselves to a person with chronic back pain.
IV.Her supervisor at QBE Insurance stated that he did not recall the Applicant ever having complained of a bad back or having previously suffered a back injury, further that her duties were of a clerical nature and she was required to sit to perform those duties although she would also walk around and stand to do some filing.
V.During the period from February 1990 until she took redundancy on August 1991 the Applicant only had five days absence from work because of back pain.
VI.She commenced a business as a Bowen therapist, which in the words of Ms Falconer her partner required her to bend, lift and get into awkward positions in order to manoeuvre patients and lift parts of the patients’ bodies with their assistance.
VII.Most telling of all however, is her application for employment as a factory hand at the Cadbury-Schweppes (Cottees) factory in November 1993. This type of work is not the type one would expect a person with a chronic back injury to undertake. Further, as stated above in her application for employment, her medical report reads that she had no on-going pain or disabilities.
63. For the above reasons therefore we are satisfied on the balance of probabilities that the hypothesis advanced by Professor Doust being based on observable radiology and Drs Maxwell and McGill is the correct one mainly that on 9 November 1989 the Applicant suffered an exacerbation or aggravation of back pain due to fibrosis from her original laminectomy in 1987. That exacerbation or aggravation was temporary and the prolapse suffered by her in February 2000 was the natural progression of her lumbar disc disease which first manifested itself in the injury of August 1986. The decision of the Tribunal is therefore that both decisions under review are AFFIRMED.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J Campbell, Member.
Signed: .......................................................................................
AssociateDate/s of Hearing 26, 27, 28 and 31 March 2003, 17 June 2003
Date of Decision 11 July 2003
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Grahame Goldberg Partners
Counsel for the Respondent Mr P Jones
Solicitor for the Respondent Sparke Helmore
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