Ceric and Military Rehabilitation and Compensation Commission
[2007] AATA 1709
•28 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1709
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200500325
VETERANS' APPEALS DIVISION ) Re BESIM CERIC Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate28 August 2007
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent dated 17 March 2005 and, in substitution therefor, decides that:
· pursuant to s 124(1A) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") the applicant is entitled to compensation under that Act in respect of the lumbar spinal injury which he suffered in November 1973 in the course of his service in the Australian Regular Army;
· the respondent has since 19 October 2004 continued to be liable, and is presently liable, under s 16 of the SRC Act to pay compensation to the applicant in respect of the cost of reasonable medical (including chiropractic) treatment obtained by him in relation to his abovementioned lumbar spinal injury, including compensation in an appropriate amount for the purchase of an orthopaedic mattress and base;
· the respondent has since 1 January 2004 been liable, and is presently liable, to pay compensation, in accordance with s 19 of the SRC Act, to the applicant for incapacity for work resulting from his abovementioned lumbar spinal injury in an amount per week to be determined on the basis that since 1 January 2004 he has been, and is presently, “able to earn”, within the meaning of s 19 of the SRC Act, an amount per week as an employed accountant or bookkeeper on a part-time basis.
Either party may make an application in relation to the costs of these proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
.........[Sgd S D Hotop]...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Australian Army from July 1973 to January 1974 – applicant suffered lumbar spine injury in course of Army service in November 1973 – applicant incapacitated for work as result of injury – respondent accepted liability to pay compensation to applicant – applicant suffered lumbar spine injury in motor vehicle accident in April 1999 – applicant underwent spinal surgery in November 2000 – motor vehicle accident not a novus actus interveniens – applicant continues to be incapacitated for work and to require medical treatment as result of 1973 injury – respondent continues to be liable to pay compensation to applicant in respect of 1973 injury – quantum of compensation – incapacity payments – suitable employment – applicant able to earn an amount per week in suitable employment – medical expenses – reasonable medical treatment for applicant includes orthopaedic mattress and base – reviewable decision set aside
Compensation (Commonwealth Government Employees) Act 1971 (Cth), s 27, s 37, s 45 and s 46
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, s 16, s 19 and s 124
Esam v ASP Ship Management (1998) 87 FCR 82
Klinkert v Australian Postal Corporation (1992) 16 AAR 86
Martin v Australian Postal Corporation (2000) 32 AAR 199
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
REASONS FOR DECISION
28 August 2007 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. In November 1973 Besim Ceric (“the applicant”) suffered a lower back injury in the course of his service in the Australian Regular Army, and, on 14 June 1976, a delegate of the Commissioner for Employees’ Compensation accepted liability under the Compensation (Australian Government Employees) Act 1971 (Cth) to pay compensation to the applicant for an injury described as “lumbar disc injury”. In the meantime, the applicant was discharged from the Army on 15 January 1974.
2. On 22 April 1999 the applicant was involved in a motor vehicle accident in which he suffered an injury to his lower lumbar spine, and he subsequently underwent surgery in respect of that injury.
3. On 19 October 2004 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination that the respondent was not liable to pay compensation to the applicant, by way of medical expenses and incapacity payments, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of the “lumbar disc injury” which he suffered in November 1973. That determination was affirmed by a “reviewable decision” of the respondent dated 17 March 2005.
The Issue and the Tribunal’s Determination
4. The general issue for the Tribunal’s determination is whether, notwithstanding the lumbar spine injury suffered by the applicant in the motor vehicle accident of April 1999, the applicant continues to have an incapacity for work and to require medical treatment as a result of his “lumbar disc injury” of November 1973, in which event compensation would continue to be payable to him by the respondent under the SRC Act.
5. For the reasons which follow, the Tribunal has determined that compensation continues to be payable by the respondent to the applicant under the SRC Act in respect of medical treatment required by him, and in respect of his incapacity for work, as a result of the “lumbar disc injury” which he suffered in November 1973.
The Legislation
6. Pursuant to s 124(1A) of the SRC Act, the applicant is entitled to compensation under the SRC Act in respect of the injury suffered by him in November 1973 provided that compensation was, or would have been, payable to him in respect of that injury under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”).
7. The 1971 Act relevantly provided:
“27(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
…”
“37(1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.
…”
Section 45 provided for the payment of compensation by way of weekly payments to an employee who was “totally incapacitated for work” as a result of a compensable injury. Section 46 provided for the payment of compensation by way of weekly payments to an employee who was “partially incapacitated for work” as a result of a compensable injury.
8. An employee’s entitlement to compensation for the cost of medical treatment, and compensation by way of weekly incapacity payments, has, since 1 December 1988, been provided for in, respectively, s 16, and s 19, of the SRC Act. Section 16 of the SRC Act relevantly provides:
“(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…”
Section 19 of the SRC Act prescribes a formula for determining the amount of weekly compensation which is payable to an employee who is incapacitated for work as a result of a compensable injury. An element of that formula is:
“the amount per week (if any) that the employee is able to earn in suitable employment”.
Section 19(4) prescribes the matters to which regard must be had in determining “the amount per week that an employee is able to earn in suitable employment” as follows:
“(a)where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.”
The expression “suitable employment” is defined in s 4(1) to mean (relevantly):
“any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv)”, namely,
“(i) the employee’s age, experience, training, language and other skills;
(ii)the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter”.
Section 4(9) provides:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
The Evidence
9. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T163, pp 1-254) lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·documentary material tendered in evidence by the applicant (Exhibits A1-A11) and by the respondent (Exhibits R1-R30); and
·the oral evidence of the applicant and the following additional witnesses:
- Mr Richard Vaughan, Dr Michael Beinart and Mr Perry Heynen (who were called by the applicant); and
- Mr Philip Hardcastle, Mr G Wayne Thomas and Mr Gregory Forrester (who were called by the respondent).
The Factual Background
10. The relevant undisputed background facts, as found by the Tribunal on the basis of the T Documents and certain exhibits, are as follows.
11.
The applicant, who was born on 15 September 1954, enlisted in the Australian Regular Army on 3 July 1973 and he was discharged, at his own request, on
15 January 1974. At the date of his discharge he held the rank of Craftsman.
12. The applicant’s Army medical record contains the following information:
· 15 November 1973 – injury to back about 1 week ago – no tenderness – LS region affected;
· 27 November 1973 – pain returned….
His discharge medical examination records, dated 7 January 1974, indicate that he strained his back in November 1973 but that it was “OK now”, and that his spine was “normal”. (T7, T10)
13. On 22 November 1974 the applicant made a claim for compensation under the 1971 Act in which he indicated that:
· he was claiming compensation in respect of an injury described as “continuous pain in lower spinal area”;
· the injury occurred in the fitters workshops at the RAEME Training Centre, Bandiana, Victoria when he “picked up a tool box which was supposed to be empty”;
· the injury occurred approximately mid morning in early November 1973. (T9)
14. On 6 May 1976 Mr George Nunn, Orthopaedic Surgeon, provided a report regarding the applicant to the Government Medical Officer, Australian Department of Health, as follows:
“I saw this patient at your request on 30.4.76, he was complaining of low back pain which radiates to the left buttock and he told me that this started in November 1973 when he was lifting a tool box. He reported to the RAP and it was some time later before, apparently at his request, he was seen by a medical officer. He was put on light duties and treated with heat and tablets and discharged from the Army in January 1974. Apparently about September 1974 he was still having symptoms and he reported to his general practitioner Dr Olden and at other times he has reported to the Health Centre at Port Hedland where he was given tablets. He said that he has lost several days from work now and then. Bending and lifting aggravate the pain, coughing does not. He has numbness over the anterior thighs to the knees after walking some distance. Apparently he has been employed as a salesman from January until September 1974, then I gather he was doing labouring type work at Mt Newman but has been doing clerical duties since July 1975.
The examination showed him to be apparently fit, with a normal stance and a full range of lumbar spine movement. The straight leg raise was normal and sensation was normal. Reflexes were difficult to elicit but I do not think this is significant.
Xrays however, do show degenerative changes and diminution of the 4/5 lumbar joint, which at the age of 21 yrs is very significant.
…”
Mr Nunn, in answer to questions asked of him, stated that:
· the condition suffered by the applicant is “lumbar disc injury”;
· that condition is due to an injury that resulted from “the incident in November 1973 (lifting tool box)”;
· the effects of that condition are of a “permanent” nature;
· no form of treatment is indicated;
· as regards restrictions on the applicant’s capacity for work as a result of his condition, he should have “restrictions on heavy work, too much lifting or prolonged bending”. (T16, Exhibit A10)
15. On 14 June 1976 a delegate of the Commissioner for Employees’ Compensation made a determination under the Compensation (Australian Government Employees) Act 1971 (Cth) as follows:
“The said Besim CERIC sustained personal injury arising out of or in the course of his employment in November 1973 namely, lumbar disc injury.” (T18)
16. In the period 1979-1999 various determinations were made under the 1971 Act and the SRC Act that the applicant was entitled to compensation for the cost of “medical treatment” (including the cost of a “posturepedic bed” ($812.00) on 20 January 1983) and compensation by way of weekly incapacity payments in respect of certain periods of incapacity for work.
17. In February 1982 the applicant commenced studies towards a Bachelor of Business degree at The Western Australian College of Advanced Education, and he successfully completed that degree course in December 1986. He commenced full-time employment with the Australian Taxation Office (“ATO”) in January 1987.
18. X-ray reports regarding the applicant’s lumbar spine, dated 17 December 1982 and 20 March 1992, found that there was “mild reduction of the L5/S1 disc space” and that the other disc spaces and vertebral bodies appeared to be normal. (Exhibits R7 (part) and R8, respectively)
19. On 22 April 1999 the applicant was involved in a motor vehicle accident. On 3 November 1999 the applicant gave notice to the Insurance Commission of Western Australia (“ICWA”) of his intention to claim damages for injuries resulting from that accident. The nature of those injuries was described by the applicant as “spinal lower back injury, shoulders and neck injury (spinal)”. (T97-T99)
20. A CT scan regarding the applicant’s lumbo-sacral spine, dated 3 November 1999, found;
“1. Small central and right paramedian L4/5 disc protrusion.
2. Broadbased L5/S1 disc protrusion with impression on the lateral recesses and possible impediment to the traversing S1 nerve root.” (T100)
21. On 4 November 1999 Dr Robert Todd, Doctor of Chiropractic, reported to Dr Michael Beinart, the applicant’s treating general practitioner, as follows:
“…
HISTORY
Mr Besim Ceric first consulted me in 1990 and was suffering neckache and headache with minimal rotation for a few days.
He also reported that his lower lumbar spine was playing up but had been since the Army in 1974 at which time he was required to lift a great deal of tool boxes and pass them to another soldier.
Apparently this was done with one arm and as it happened one of the boxes was full and Mr Ceric strained his lumbar spine which had never been good since and that the Army accepted responsibility for treatment.
Since 1990 Mr Ceric has had almost continual treatment on his lumbar spine which has always responded very well with just one or two visits.
CURRENT INJURY
On 22nd April 1999 Mr Ceric attended this clinic with acute cervical pain and a headache after a motor vehicle accident… At the same time he had lumbar soreness but basically told me to worry about the cervical spine.
I used corrective spinal adjustment on both and cleared the cervical spine with two visits. The lower lumbar spine continued to nag.
In June the cervical spine again flaired and a series of treatments eased the pain with the lower lumbar still not changing.
On September 30th Mr Ceric complained of annoying lumbar pain with pain around the tops of the hips where the skin was sensitive to light pressure and had a number of visits till October 20th at which time he decided to leave it for a while.
On October 28th Mr Ceric returned to the clinic with moderate persistent lumbar pain and tenderness to his belt or trousers around his hips and stated he was worse than he had ever been.
…
Mr Ceric had treatment on the 28th October 1999, 1st November 1999, 3rd November 1999 and is still not improving.” (T101)
22. On 12 January 2000, Dr Michael Beinart provided a report to the ICWA in which he stated:
“…
DIAGNOSIS & PROGNOSIS
Mr Ceric suffers from current spinal pain in his neck and particularly his lower back. The origin of his pain and current muscle spasm is in my opinion, due to soft tissue injury involving the muscular and facetal structures of his spine. It is also likely that he has aggravated some underlying degenerative intervertebral disc disease and is symptomatic, particularly from the L5/S1 level.
Mr Ceric claims to be functioning at only 20% of his normal capacity, and claims to have had numerous half days off away from work since April 1999, as a result of particularly his low back pain. This has led to anxiety depressive symptoms, and extreme agitation which in turn has also affected his work capacity.
It must be noted that Mr Ceric does have a pre-existing low back complaint, which was aggravated in the traffic accident of 22 April 1999.
…
I last consulted Mr Ceric on 29 December 1999, at which time he complained little of his neck discomfort, but claimed to be in constant low back pain. …
In summary Mr Ceric’s neck condition has largely settled. He continues to experience low back symptoms, which in my opinion are in the main related to a previous injury. The time he has missed off work has been due to his low back symptoms.
…” (T110)
23. A report of a MRI scan in respect of the applicant’s lumbar spine on 22 July 2000 relevantly noted:
“…
L4/5: There is disc desiccation. A small central posterior disc annulus tear is seen associated with a shallow fairly broad based central posterior disc protrusion. This results in mild canal stenosis. There is no nerve root compromise seen at this level.
L5/S1: There is disc space narrowing and desiccation at this level associated with oedema within vertebral body end plates. A global disc bulge is seen and in addition there is a left paracentral posterior disc protrusion. This abuts and posterior displaces the left S1 nerve root.
...” (part of Exhibit R7)
24. On 24 November 2000 the applicant underwent surgery comprising a left L5/S1 microdiscectomy and rhizolysis of the S1 nerve root performed by Mr G Wayne Thomas, Neurosurgeon. (T129)
25. On 22 March 2001 Dr Peter Silbert, Neurologist, provided a report regarding the applicant to the ICWA in which he stated:
“…
In view of increasing low back and left leg radicular pain, he ceased work in June 2000. By that stage his walking tolerance was about 100 metres and continued to gradually decline leading to a left L5/S1 microdiscectomy and rhizolysis of the S1 nerve root on 24 November 2000. Following surgery he noted that his left leg radicular pain had improved significantly. He continues however to experience low back pain, with left buttock discomfort, and a burning feeling down the left leg with a tingling sensation on the sole of the left foot. These symptoms have improved in comparison to pre-operatively, but continue to occur on a daily basis. He also experiences testicular pain which is usually right sided, on average every fortnight, and with his symptoms being proportional to his low back pain.
The low back pain is present on a daily basis, and increases with prolonged standing. He is very cautious about lifting. He develops a burning pain in both calves with walking.
He experiences occasional cervical discomfort, which has also been present previously, and was treated with manipulation.
Prior to the motor vehicle accident, he had experienced intermittent low back pain, but had not taken time off work for 10 years prior to the accident. He received maintenance chiropractic treatment, although he did state at my initial consultation that he had chiropractic treatment for exacerbations on average three times per year.
…
In answer to your specific questions:
1. History and examination:
As above. Mr Ceric continues to experience daily low back pain, with frequent radiation of symptoms down the left leg in an S1 distribution. His symptoms are aggravated by prolonged standing, or lifting.
He also experiences occasional cervical discomfort.
2. Diagnosis:
As a result of the motor vehicle accident, Mr Ceric sustained a left L5/S1 disc protrusion, which gradually progressed over a period of 12 months, eventually leading to surgery in late 2000.
Although he had pre-existing symptoms, which also localised to the L5/S1 level, these symptoms were significantly aggravated by the motor vehicle accident.
He has cervical discomfort, which is predominantly soft tissue/muscular.
3.In your opinion, are you of the view that the motor vehicle crash in question is the cause of Mr Ceric’s ongoing problems, which resulted in the need for his recent operation, or does it relate to his pre-existing condition from his army low back injury received in 1974 (sic)?
Mr Ceric had pre-existing low back and left leg symptoms prior to the motor vehicle accident, but they were significantly aggravated as a result of the motor vehicle accident. He states that he did not have time off work for his low back problems in the 10 years prior to the accident, but has had a significant amount of time off work since the accident as a result of his low back pain.
I feel that the motor vehicle accident was a significant contributor to Mr Ceric’s need for surgery for his back and left leg radicular pain.
4.Details of any disabilities:
Mr Ceric continues to experience low back pain on a daily basis, with frequent left leg radicular symptoms. His ongoing spinal symptoms suggest instability and discogenic pain at the L5/S1 level.
He has occasional cervical discomfort, but this symptom is relatively mild in comparison to his back problems.
…
6.Permanent residual disability:
I would consider that Mr Ceric does not have any significant permanent residual disability related to his cervical problem, but has a 30% permanent residual disability of the lumbar spine as a result of the motor vehicle accident. This was in part pre-existing, probably at a level of 10% of lumbar spine function.
…” (original emphasis) (T131)
26. On 9 September 2002 the applicant settled with the ICWA his claim for damages for injuries suffered in the motor vehicle accident of 22 April 1999 for $190,633.00 (including costs of $9,000.00). (T139-141)
27. The applicant lodged with the respondent an “Incapacity Claim Form” dated 30 October 2003 in respect of a condition described by him as “continuous pain in lower spinal area”, in which he stated that he had “ceased working as a public accountant (CPA) on a salary of $80,000 to $100,000 gross per annum on 30-6-2000 due to invalidity low back pain” and that he had not worked since that date and had been receiving a disability pension since 4 August 2000. (T143)
28. On 12 November 2003 Dr Beinart certified that the applicant had been “unfit to work in any capacity… as from June 2000” and that he remained unfit to work. (T145)
29. By letter to the respondent dated 17 December 2003, the applicant made a claim “for financial assistance to purchase a suitable Orthopedic Mattress and Base”. (T150)
30. On 19 October 2004 a delegate of the respondent made a determination that the respondent was not liable under the SRC Act to pay compensation to the applicant:
· in respect of his “L5/S1 disc protrusion”;
· for the cost of medical treatment in respect of his “lumbar disc injury” for which liability had been accepted in June 1976;
· by way of incapacity payments in respect of his “lumbar disc injury”. (T155)
31. On 17 March 2005 a delegate of the respondent made a “reviewable decision” affirming the determination of 19 October 2004. (T158)
The Applicant’s Evidence
32. The applicant’s Summary of Evidence, which was filed on 6 June 2006, states as follows:
“…
2.During the beginning of 1973 at the age of 18, I had made enquiries with the Army about obtaining a metal trade qualification.
3.I was told by the Army recruitment staff in Perth, Western Australia, that in order to acquire a metal trade qualification, a fundamental condition was that I join as a Regular Soldier and that subject to passing the various physical fitness assessments as a soldier in ‘Boot Camp’, I could then elect a posting as a Trainee Craftsman through RAEME (or any other vocation/field).
4.I therein joined the Army as a Regular Soldier in July 1973 with the intention of ultimately qualifying as a metal tradesman, and successfully underwent full training at Kapooka Army Base, NSW (Boot Camp).
5.Whilst at Kapooka and over a period of 3 months or so, I fully and successfully completed every imaginable extreme form of physical activity expected of me and my fellow troopers. Physical demands included 40 km forced marches in platoon order, para/rope climbing, running up to 5 km practically every morning, standing to attention in the cold and rain for hours at a time, and many other such extreme activities. At the end of my soldier training I marched out extremely fit and able.
6.On passing basic training, I elected the trainee craftsman course and (along with other troopers) was transferred to the RAEME Base at Bandiana, which is situated on the border of NSW and Victoria.
7.At our trainee induction, I was introduced to Warrant Officer Lawson who was presumably assigned to look after new trainees. Through discussions with him, I discovered to my dismay that the so called ‘trade qualifications’ obtained through the Army were not recognised outside of the Armed Forces.
8.This was a fatal blow, as the main purpose of my joining the Army had been to acquire recognisable trade skills, and from my viewpoint, you could say that I had been misled by the recruiting office in Perth. Furthermore, as I had been ceaselessly goaded and physically assaulted on at least two separate occasions for my ethnicity, by a group of fellow soldiers, and having discussed my disappointment and concerns with Warrant Officer Lawson, I thought it best to elect for a discharge, which Warrant Officer Lawson supported.
9.Whilst waiting for approval of my application for a discharge I was put on general soldiering duties such as armed guard and payroll duty, guard and sentry duty, kitchen hand/steward, gardening etc.
10.It was during this period that I was ordered to move a large quantity of toolboxes off a wooden pallet on the floor, onto the stores counter. I had been instructed by the warrant officer in charge, that they were all empty.
11.Approximately half way through shifting the stack of empty tool boxes, I lifted one tool box that was actually full of tools and very heavy, and in that moment in the process of lifting that tool box and shifting it to the counter, I injured my back. I was doubled up with intense pain. Having called for assistance was eventually carried/assisted to first aid by two other servicemen. I was barely 19 years old.
12.Subsequent to that injury and continuing to this day, I have suffered continuous pain, discomfort and misery. My troubles have not been just limited to continuous physical pain and discomfort but also to the denial of a normal and ordinary life, material restrictions to work and career pursuits, and financial hardship.
…
15.Generally, my symptoms have been constant (daily) debilitating chronic low back pain and by 1992 pain was materially extending to the left buttock, left leg, left ankle and soles of both feet, along with a most unpleasant harsh throbbing pain to the right testicle.
16.I have had to lie down frequently, throughout the day, or where that was not possible stand up and move around. Sitting has always been difficult and to that end, the Department procured an ergonomic office chair and home seating to assist. They also saw fit to procure an Orthopaedic bed for me in 1983.
17.Furthermore, I have frequently experienced exacerbations through routine life activities such as gardening, light manual work, lifting, sitting, squatting, sneezing, jarring the heels and the like; occasioning acute, intense low back pain, necessitating frequent periods of sick leave, which the Department also funded in the past.
18.Despite finally obtaining and completing a metal trades apprenticeship with Mt Newman Mining (1978 to 1980), by the end of my apprenticeship (1980), I was physically incapable of working as a metal tradesman and abandoned my life long aspiration of ever being a tradesman.
19.I then worked as a clerk and/or cleaner until by 1982, I commenced studies towards a Degree in Accounting which the Department partially funded. I successfully finished those studies in December 1986.
20.In January 1987, I commenced work with the Australian Tax Office, however Dr Carrivick, the examining medical officer for the Australian Tax Office, reported that due to a history of recurrent low back pain, I was not of sufficient sound health to serve efficiently for a minimum period of three years.
21.Consequently I had to endure an additional 12 months probation, on top of the standard 3 months probation.
22.As it turned out, I could not cope with my work at the Australian Tax Office due to my ongoing symptoms and terminated employment with the Australian Tax Office in approximately July 1988 (having completed only 18 months employment in total).
23.The problem was that I could not sit for even relative short periods, nor could I lean forward whilst reading or writing. Unfortunately, sitting for sufficiently lengthy periods was absolutely essential in order to concentrate and focus and achieve set productivity targets. I simply could not do this, as sitting causes major pain to the lumbar region.
24.In March 1992, I experienced a particularly severe bout of acute low back pain with pain now markedly radiating into the left buttock and left leg, with numbness and tingling in the leg and foot. This exacerbation required my taking further sick leave, which the Department also funded.
25.This particular period, ie 1992, saw the beginning of emerging new symptoms with significantly marked increase in my impairment in that I was now experiencing chronic low back pain and shooting/burning pain in the left leg, calf and foot …
26.By this stage in my life, having applied for dozens of jobs, I realised that my employment prospects ‘in any field’ were abysmal. I was in an impossible dilemma; even if I got a job despite the medical exam, how was I going to hold down a job, when I could not be productive and was having great difficulty managing my chronic low back pain. I was aged 38 with a wife, child and a home loan to support and service. I had little superannuation, had never been on unemployment benefits and had no desire to do so.
27.My enquiries to the Defence Department either in writing or by telephone had typically and historically been either ignored, or their attitude unhelpful, secretive and evasive so, eventually I all but gave up on them for help and support. There was really nowhere for me to go other than so called ‘self employment’.
28.In November 1992, I requested the Department procure ergonomic office and home seating for my use, which they eventually agreed to in July 1993.
29.Also in November 1992, I held face to face discussions with… a delegate of the Department, and informed her that I had left the Tax Office because I was unwell with ongoing low back pain and had been unable to meet the productivity standards expected by the Tax Office, due to my inability to sit and concentrate (my constantly standing up and moving around was not accepted behaviour, and was disruptive to my own productivity and annoying those officers seated near me).
30.I also made [her] aware of my financial poverty, and difficulties in my endeavour to remain independent and gainfully employed. It had been virtually impossible getting employment and thus through the need for independence and economic necessity which finally drove me into self-employment as a tax agent; despite my business ignorance, general inexperience and insufficient accounting and tax knowledge.
31.Since 1973 to the present I had managed my low back condition through regular (generally monthly) non invasive chiropractic treatment, maintaining my weight and fitness through hydrotherapy, whilst also taking various prescription medication as required.
32.From 1974 to 1980 (6 years) and then approximately 1990 to 1991, I lived in Port Hedland where I received free medical treatment through the Port Hedland Regional Hospital for my low back condition (other than chiropractic).
33.Whilst being self employed, (1992 to 2000) I maintained regular chiropractic treatment along with prescription medication as required, and continued to have periods of incapacity and sick leave. Whilst self employed, my productivity was likened to a ratio of 3/4:1 – that is, I was likely to take 3 to 4 times as long to complete a given task.
34.In April 1999, I was involved in a motor vehicle collision. My understanding is that as a result of this accident, a piece of disc matter in the L5/S1 disc had lodged onto the sciatic nerve, resulting in a further impairment to the left side. By June 2000, I was having difficulty walking, with sciatic pain on the left side.
35.In November 2000, I underwent successful surgery to remove the dislodged disc matter in the L5/S1 joint and alleviate sciatic nerve pressure and regained full mobility.
36.I ceased work in my tax practice in June 2000 and am presently on a disability pension.
…
39.My present symptoms are: I find no relief or respite sitting, standing, bending, squatting etc. Even lying down is not completely without remission of pain. Essentially I must constantly move to shift the pressure ‘as it were’. I am unable to maintain a stationary seated position for even short periods, and continue to experience depressive and relentless chronic low back pain.
40.With regard to the car accident in April 1999; apart from the period in which I experienced sciatic leg pain and for which I underwent successful surgery, my condition now is as it was before the car accident, being continuous low back pain.
41.I note that immediately after the November 2000 operation, I was able to walk without the stabbing pain associated with a pinched sciatic nerve.
42.I note that the sciatic symptoms are quite different from continuous chronic low back pain.
…”(Exhibit A1)
33. In his examination-in-chief the applicant confirmed that the abovementioned Summary of Evidence accurately represented his case, and he also attested as follows:
· after ceasing his employment with the ATO in July 1988 (see paragraphs 22-23 of the abovementioned Summary of Evidence), he worked as a tax accountant for a “boutique accounting firm” in Mt Lawley but his employment was terminated after 18 months because he could not meet the firm’s productivity targets owing to his inability to sit and concentrate for long periods of time by reason of his back pain, and because he was taking sick leave for that reason;
· he was subsequently employed as a tax accountant by Perry Heynen in Port Hedland from March 1990 but he eventually resigned at Mr Heynen’s request in 1991 because he “couldn’t cope with the work, couldn’t concentrate, couldn’t focus, couldn’t sit still”;
· in 1992 he commenced self-employment as a tax accountant, having obtained registration as a tax agent, and he operated that business, together with his wife who from 1995 performed reception, book-keeping and billing duties, until June 2000 when, following a motor vehicle accident in April 1999 which aggravated his back condition, he found that he was “no longer able to even attend to” his work, and he accordingly sold that business;
· he made a claim for damages in relation to the abovementioned motor vehicle accident and that claim was settled in September 2002 on the basis that he would receive a lump sum payment of $181,000 (plus $9,000 costs) which included $50,000 for past economic loss and $50,000 for future economic loss;
· following the motor vehicle accident of April 1999, he was “severely in pain from the very stabbing sort of pain” and was “immobilised”, but the surgery which he underwent in November 2000 removed that “stabbing pain” but left him with the same kind of back pain which he had before the motor vehicle accident;
· his present symptoms comprise “low back pain that is relentless… a burning type of sensation” on both sides of his spine – predominantly on the left side in that the pain extends into his left buttock and down to his left leg, whereas on the right side the pain does not extend to his right leg but it does extend to his right testicle;
· his registration as a tax agent was “revoked” in December 2000 because he was not meeting his “lodgment programs”, and he has not undertaken any accountants’ professional development courses since 2000;
· his employment experience has been in tax accounting, rather than general accounting, and the only practicable way for him to resume practising as a tax accountant would be through employment with a firm of accountants.
34. In cross-examination the applicant acknowledged that:
· in the financial year ending on 30 June 1996 he earned professional fees of $128,445 and, after expenses, his net profit was $85,315;
· in the financial year ending 30 June 1997 he earned professional fees of $120,575 and, after expenses, his net profit was $91,662;
· in the financial year ending 30 June 1998 he earned professional fees of $111,209 and, after expenses, his net profit was $77,617;
· in the financial year ending 30 June 1999 he earned professional fees of $105,725 and, after expenses, his net profit was $68,778;
· in the financial year ending 30 June 2000 he earned professional fees of $83,043 and, after expenses, his net profit was $45,124.
35. The applicant explained that the reason for his not having maintained his professional development as an accountant was that he has been unable to afford to do so because he has been on a disability pension. He said that the cost of a half-day professional development seminar was $500-$700.
36. The applicant said that he was aware that the employment market for accountants was “very wide”. He added that there was a period during which he made about 50 unsuccessful job applications, but he acknowledged that he had not made any proposals to try to do some part-time work in order to minimise his loss and to cover the cost of maintaining his professional development. His cross-examination continued:
“If your condition is the same as it was now, if your condition now is the same as it was prior to the car accident why aren’t you working as an accountant, a self-employed accountant?---Because it - - -
As you were prior to the car accident?---Because when I was working as an accountant I had difficulty then. I had to work four hours to recover one hour. Now if I was working for an employer they wouldn’t tolerate that. I would be unemployed so I wasn’t really self-employed, I was under employed, if you like, unemployable.
But you were able to - - - ?---To answer your question I would have to do 70 hours – I would be on call as it were the whole time. I would go home, I would have to have a rest, have a sleep for a couple of days and then back into it.” (Transcript, p 91)
37. In re-examination the applicant said that in the period 2002-2003 he had “applied for a variety of accounting-related positions throughout commerce and even taxation” but that the response to those applications was “negative”. He added that by mid-2003 he stopped applying for positions because he had then come to the realisation that there was “no scope in it” and there was “nothing there for [him]”.
38. Asked why he was not actively looking for accounting work at the present time, the applicant responded:
“Because I know that I’m unproductive, I know that I could not make a profit for an employer. I couldn’t turn a profit out and he wouldn’t – an employer wouldn’t consider me because of that reason. In life – in the professions – you know, you charge out on a six-minute basis or 10-minute basis. I don’t know how I could possibly be productive for an employer in that capacity. To be able to sit and do the sort of work that needs to be done and to concentrate on what needed to be done would be very difficult for me. I don’t have the professional skills any more, and there’s a great risk of exposing myself to liability for misadvice.” (Transcript, pp 97-98)
The Evidence of the Medical Witnesses
Dr Richard Vaughan
39. Dr Vaughan has been practising as a neurosurgeon/spinal surgeon since 1965. His Curriculum Vitae was tendered in evidence by the applicant (Exhibit A3). He confirmed that, at the request of the applicant’s solicitors, he had prepared 2 reports regarding the applicant, and he also confirmed that he adheres to the comments and opinions expressed by him in those reports. Dr Vaughan’s reports were tendered in evidence by the applicant.
40. Dr Vaughan’s report of 30 November 2005 (Exhibit A4) states as follows:
“That you for seeking my views on Mr Ceric’s state.
In response to your specific questions –
(a) The history obtained
Mr Ceric gave a history, indeed a long history, of back problems commencing whilst servicing (sic) in the Australian Army in 1973. He had been ordered to move a stack of, apparently empty toolboxes, from one location to another but halfway through the stack he lifted one toolbox which was full of tools and heavy – in the process of lifting the box he felt a straining pain causing him to double up and having to be assisted to first aid by two other Servicemen. At that time he was 19 years old.
Mr Ceric went on to state that from that time he had had almost constant, debilitating low back pain with periods of exacerbation and referred pain patterns to both hips in the area he described as the belt line to the buttocks and sometimes below with referred patterns gradually more to the left including the buttock regions and groin but sometimes the right testes region. He experienced varying exacerbations through routine life activities; gardening, manual lifting, sneezing and has had periods of low back pain necessitating sick leave which he said the Department of Defence had funded up to the recent past.
In 1980 he was physically incapable of working as a metal tradesman or similar and commenced self funded studies towards a Degree in Accounting finishing his studies in December 1986 and with the Department of Defence apparently funding the latter part of the course.
In 1987 he commenced work with the Australian Taxation office noting there were concerns about his being able to sit for long periods and particularly concerns about recurrent low back pains. Later it became apparent when he could not cope with employment with the Australian Taxation office and his job was terminated.
He reported being unable to sit for normally short periods but coping by leaning forward. When sitting for longer periods the pain was of intensity to cause him to lose concentration and focus.
Sometime in March 1992 he had a new and worsening pain, again to the left buttock/left leg associated with parasthesiae in the foot requiring further treatment and the costs agreed to by the Department of Defence.
Xrays taken at about that time showed a reduction in the L5/S1 space and from that time onwards he had further discomfort further down the left leg to the foot with then ongoing physical therapy.
He had attempted employment as a home Accountant, working sometimes as a Tax Agent or at least trying to do so, but not remaining gainfully employed. There continues non invasive Chiropractic treatment apart from the short bursts of physical therapy and he was concerned about taking medication because of the ulcerous colitis which had been diagnosed sometime over this period.
In April 1999 he was involved in a motor vehicle collision further aggravating the back condition and leading in the ultimate to radiculopathy for which surgery was undertaken by Mr Thomas with a good result. That was to the same L5/S1 level though there were also degenerative changes to L4/5 managed conservatively.
At the time of the car crash he had also developed cervical region pain which he said was present to a much lesser extent than the back pain and with which he coped. Mr Ceric believed he had had a good response to the surgery by Mr Thomas but still required ongoing physical therapy – Chiropractic as he had in the past. He still took medication including that for his bowel condition.
(b) The dates of consultations/treatment.
I saw Mr Ceric only the once on 7 November 2005.
(c) Your findings on physical examination and diagnosis.
There was stiffness of motion of the lumbar spine noting during the examination persistence of pain down the left leg and discrete patchy losses and the tenderness noted in the right testes. Extension aggravated the back pain, flexion more the left leg symptoms. There was tenderness too over the lower facets but the primary loss was in motion of the lumbar spine.
(d) The treatment administered.
I have not administered any further treatment.
(e) Whether our client is totally incapacitated for work as an accountant.
It would be difficult to say that there is complete loss of working ability for Mr Ceric and, whilst he should be able to cope with at least part time work with satisfactory seating, in the past that has not proven possible. It could be improved perhaps by further block therapies but not necessarily so. I had discussed further with him whether a fusion procedure would help, but the results uncertain and Mr Ceric of the belief that he did not wish to have further invasive treatment, worried as he was about potential complications and worsening.
(f)What restrictions, if any, you would place on the type of work our client is capable of performing and the number of hours he is capable of working.
Mr Ceric, it would appear from his qualifications, has the ability to proffer the appropriate work in taxation having been trained therein though it would come down to the hours he could work, the seating arrangements and taking the appropriate medication to cope. I would think him capable nevertheless of working in a restricted capacity on a part time basis but, as I stated, in the past that has not been successful , however there is still, I believe, some capacity for work further improvable with potential gain from injection therapies.
(g)Whether in your opinion any incapacity for work can be attributed to the injuries sustained by our client in the accident.
There is the long term problems associated with the incident in 1973 and ongoing symptoms from that time. The accident of 1999 aggravated that state leading to minimalist surgery which improved the severe symptoms at the time, the symptoms as I understand returning to what was present then prior to the motor vehicle crash. Given the history and the opinions over the period of time I would say there has been a continuum of the original injury as the main pain driver and that he has returned to the level of complaint prior to that experienced with the car crash – the crash may have aggravated the state further, probably by a factor of 10% but the underlying majority problem rests still in the L5 level and to a lesser extent L4/5 following the original lifting strain.
(h)The likely duration of any period of incapacity for work.
That capacity (sic) I think will be into the future and I don’t see the incapacity being lessened unless Mr Ceric takes the risks of surgery and at this time he is not prepared for that.
…
(j)Whether our client is likely to require any medical treatment (including chiropractic treatment) as a result of his original back injury in 1973 and if so
i)the nature of the treatment
(a) Ongoing Chiropractic - Yes
(b) Possibility of injection treatments - Yes
(c) Possibility of fusion - Yes
ii)the likely frequency of the treatment
(a) Chiropractic as he has in the past
(b) & (c) Possible but undeterminable.
(k)Whether our client requires an orthopaedic or other bed specially designed for his back condition as a result of mechanical back pain arising from his original back injury in 1973.
He needs a regular support bed with the appropriate intersprung mattress.
…”
41. In his report of 3 April 2007 (Exhibit A5) Dr Vaughan stated:
“…
Presentation:
Mr Ceric presented this morning appropriately and said he had the same complaint as before, predominantly low back pain with sometime referred patterns to the left calf and the right testes but always worrying him most has been low back pain.
…
Current Presentation:
He now presents as he did before with problems in the low back aggravated by sitting, standing, long distance walking, driving and may still experience discomfort in certain lying down positions unless his legs are flexed.
…
Mr Ceric is not working and has not worked since 2000 – that on the basis that he couldn’t sit to do his work as a tax accountant and could not give his clients the necessary advice because of the pain state, particularly that associated with sitting.
He has problems squatting, leaning forward and is unhappy that he is currently unproductive. He fatigues easily, has poor concentration and currently has no income.
Current Medication:
He takes a combination of Doloxene, Panamax, sometimes Vioxx, sometimes Novalus and takes Zoloft for underlying depression. …
…
Examination:
The main finding on examination was of a very mild depression of the left ankle reflex but the muscle masses equal throughout the lower limbs and no spasm observed during the examination time. He had problems with supporting his full weight standing on the left side and had lost some spring from the crouching position to standing. It was sitting that he experienced most discomfort and then leaning forward. The range of motion of the lumbar spine was reduced in flexion because of some pain aggravation to the left buttock and likewise aggravation of low back pain left to right in full extension.
Investigations:
Past CTs and MR scans were reviewed – before the car crash he had significant degeneration at L5/S1 and at L4/5. The changes were chronic, particularly L5/S1 and the later MR and that preceding his surgery showed those significant changes with a further improved extrusion at the L5/S1 segment complicating the underlying long standing degeneration.
There were no recent films.
Post Examination:
I re-examined Mr Ceric’s history and he was quite adamant that his current symptoms were those he had prior to the motor vehicle crash. The symptoms (sciatica) following the crash were resolved by the operation.
Mr Ceric had, following the crash, some cervical symptoms but that did not concern him nor did the sometimes discomfort in the left calf – what did concern him was the low back pain and the results of that pain on his life, of depression, of his business opportunities and of what he termed ‘a normal life’.
In response to your specific questions –
…
3. Your diagnosis;
That of significant accelerated degeneration across L5/S1 into L4/5 needing now reassessment by MR scanning.
4.Whether, in your view, Mr Ceric continues to suffer from the effects of the injury sustained in 1973;
Yes.
5.Whether, as a result of that injury, Mr Ceric has a requirement for ongoing medical treatment and, if so, the nature and frequency of treatment required;
Mr Ceric has had ongoing treatment for his medical condition following the original injury in 1973 – the motor vehicular incident created a sciatica which was managed by a microdiscectomy but the symptoms then returned to the position as was before the crash and following the lifting incident of 1973. I believed when I saw Mr Ceric first and now that the need for ongoing treatment relates to the incident in 1973 and thereafter.
6.Whether Mr Ceric presently has a capacity for work:
(a) performing his pre-1973 injury duties;
No.
(b)as an accountant;
(c) in any other capacity,
if so, whether he has a full capacity or partial capacity for work
I think Mr Ceric would be capable of returning to the workplace if he could have now the appropriate management of his low back condition and for a fusion to be considered.
I discussed with Mr Ceric what a fusion would offer – previously he was very anxious about further surgery and the potential complications but given the changes in 2000 and what I think would be a worsening state now I do believe he could be helped significantly by fusion surgery and with that he could work for himself and with his expertise in tax accounting. With an appropriate response to surgery his need for ongoing care should be reduced.
I think he has the potential for full work capacity if he would consider fusion and that was conducted without complications.
7. If Mr Ceric does have a capacity for work, what restrictions or limitations apply so as to affect his work capacity;
The current incapacity is the problem of sitting and with that pain aggravation and all the components thereafter, particularly of depression; anxiety, some catastrophisation of symptomatology and within that his real concerns about complications from surgery. As he is he does not cope well but I thought would have the opportunity of improvement by modern surgical fusion.
8. Whether, in your opinion, any incapacity for work can be attributed to the injury sustained by Mr Ceric in 1973;
Yes.
9. The likely duration of any incapacity for work;
On/Off over a very long period – he has not been able to continue in the workplace uninterrupted for any long period and has sought varying jobs over that long period. I believe he is improvable by the appropriate stabilising surgery.
10. Whether Mr Ceric would benefit from an orthopaedic mattress;
Possibly but I think better if he would consider stabilisation of the spine after the appropriate investigations.
…”
42. Dr Vaughan also provided, at the request of the respondent’s solicitors, a report, dated 14 May 2007, based on a review of documentation provided to him by those solicitors. In that report (Exhibit A6) Dr Vaughan stated that, having regard to that documentation and to his own records, he had not changed his views (as previously expressed in his abovementioned reports) regarding the applicant.
43. In cross-examination Dr Vaughan confirmed that the applicant is suffering an ongoing process of degeneration of his lower lumbar spine which was precipitated by the toolbox lifting incident which occurred in the course of his Army service in 1973. He said that he accepted the applicant’s history that he had had ongoing low back pain since the 1973 incident and that, although the 1999 motor vehicle accident had exacerbated his low back pain and added a “sciatic component”, subsequent surgery significantly relieved the sciatica but he has thereafter continued to experience the same kind of back pain which he had previously experienced as a result of the 1973 incident.
44. As regards the applicant’s work capacity, Dr Vaughan confirmed that he is of the opinion that the applicant is capable of working in a restricted capacity on a part-time basis as an accountant. He also confirmed that self-employment or working from home would be most appropriate for the applicant because his need for flexibility in being able to stand and move around from time to time in order to alleviate his back pain would best be able to be accommodated in those circumstances.
Dr Michael Beinart
45. Dr Beinart said that he has been practising as a general practitioner since 1982, chiefly in the area of occupational health. He said that the applicant first attended his practice in 1992 and that he assumed management of the applicant in November 1999.
46. Dr Beinart confirmed that he had prepared numerous reports regarding the applicant’s low back condition and its impact on his capacity for work, and he confirmed that he adheres to the opinions expressed in those reports. Some 15 reports prepared by Dr Beinart, in the period from 8 November 1999 to 31 March 2005, were in evidence before the Tribunal (Exhibit A9). In his report of 31 March 2005, addressed to the respondent, Dr Beinart stated:
“Mr Ceric has requested I submit a report in support of his lower back injury claim against the Department of Defence.
Mr Ceric is a long-term patient of this practice. He first attended in September 1992, and his first entry is that of treatment for mechanical low back pain. He first attended myself in May 1995.
The history I obtained is that his low back symptoms date back to an incident which occurred during his time in the Army in 1974 (sic), and is supported by his treating Neurologist at the time Dr Peter Silbert.
On 22nd April 1999, he was involved in a traffic accident, which further aggravated his low back condition, resulting in an L5/S1 disc prolapse, impinging on the left exiting S1 nerve root. This required surgical decompression by way of a microdiscectomy and undertaken by neurosurgeon Mr G Wayne Thomas in November 2000.
Mr Ceric has a progressive degenerative low back condition, likely to have been initiated by an event that occurred in 1974 (sic), for which he remains symptomatic thereafter and received ongoing medical treatment. The traffic accident only further aggravated his pre-existing condition in that it likely resulted in a disc protrusion requiring decompressive surgery.
Mr Ceric has a history of being in receipt of treatment for his chronic low back mechanical pain dating back to 1974 (sic). The progressive degenerative nature of that condition required ongoing treatment and that will remain the case for the foreseeable future.
Mr Ceric would be well advised to remain as active as possible, to maintain optimal body weight through exercise. He would also benefit from a stretching and exercise water based program as well as muscle strengthening exercises in a gymnasium under suitable supervision. He would also benefit from maintaining optimally ergonomic positions at all time including suitable chairs and bedding in his home.
Mr Ceric also claims to be afforded significant symptomatic relief from spinal adjustments from his treating chiropractor, Mr Robert Todd, who he has attended over many years.
…”
47. In his examination-in-chief Dr Beinart said that his most recent review of the applicant was on 3 May 2007 and that he had been seeing him at monthly intervals since 2003. He confirmed that, in his opinion, the applicant has been “unfit to work in any capacity” from June 2000 and that, at the present time:
· he is not fit to do any work of a physical nature; and
· on the basis of his reported inability to sit and maintain a static position for any length of time, he is not fit for work of a clerical nature.
48. In cross-examination Dr Beinart said that, when he first saw the applicant in 1995, that consultation was not related to his low back pain. He said that the applicant first consulted him about low back pain in November 1999. He confirmed that he was unaware of the applicant’s occupation prior to seeing him in November 1999.
49. Dr Beinart confirmed that he had completed a Treating Doctor’s Report dated 11 August 2000, in connection with a claim by the applicant for a disability support pension, in which he described the applicant’s disability as “mechanical low back pain with sciatica” and indicated that the date of onset was April 1999. That document was tendered in evidence by the respondent (Exhibit R20).
50. Dr Beinart likewise confirmed that he had also completed a Treating Doctor’s Report dated 5 October 2000, in connection with a claim by the applicant for a disability support pension, in which he described the applicant’s disability as “discogenic back pain and sciatica – low back pain extending into left leg” and indicated that the date of onset was April 1999. That document was tendered in evidence by the respondent (Exhibit R21).
51. In re-examination Dr Beinart confirmed that, in a report dated 12 January 2000 to the ICWA in relation to the applicant’s motor vehicle accident of 22 April 1999, he referred to the applicant’s “ongoing claim against the Department of Veterans’ Affairs” in relation to an “injury to his low back, dating back to 1976 (sic)” and he later stated:
“It must be noted that Mr Ceric does have a pre-existing low back complaint, which was aggravated in the traffic accident of 22 April 1999.
…
… He continues to experience low back symptoms which in my opinion are in the main related to a previous injury. …”
Mr G Wayne Thomas
52. Mr Thomas has been practising as a neurosurgeon since 1974. His Curriculum Vitae was tendered in evidence by the respondent (Exhibit R14).
53. Mr Thomas confirmed that the applicant had been referred to him by Dr Beinart with respect to his low back condition, and that he first saw the applicant on 31 October 2000. He provided a report dated 31 October 2000 to Dr Beinart as follows:
“Thanks very much for asking me to see this 46 year old accountant who injured his back in a motor vehicle accident which occurred on 22nd April 1999. He was driving his Toyota Landcruiser when another vehicle started to turn in front of him. There was a collision. At the time Mr Ceric was travelling at somewhere around 50 – 60kph and the other vehicle estimated to be travelling at 20 – 30kph. There was extensive damage to the whole front end of the other vehicle whereas the Landcruiser seemed to sustain only superficial damage to the right hand front. Nevertheless it cost
$3000 - $4000 worth of damage for repair of the Landcruiser. Straight after the accident he had pain in his neck and back and attended his local doctor straight away either that day or the next day. The pain progressively worsened and he sought medication from his general practitioner around December 1999. In addition about three months after the accident he experienced numbness and burning discomfort in the soles of his feet. From the outset the right testes had been painful and throbbing. As time went by during the early part of this year his symptoms did not improve and in fact worsened. Now he reports that the pain at times is unbelievably excruciating. He cannot walk more than 50 or 60 metres without severe pain and the pain is mostly in the left buttock and leg. He always has a burning feeling in the left foot too. He has become very dependent on Doloxene and Panamax and takes numerous pills on a daily basis.
In 1973 he sustained a low back injury when he was in the army. This was responsible for a certain level of ongoing symptomatology but there had been substantial recovery from that injury by the time he sustained the injury in the motor vehicle accident of 22nd April 1999. The only other medical problem was a fracture of the right wrist as a child and he is also an asthmatic.
He is a smoker and rarely drinks alcohol.
…
The MRI scan done in June 2000 has revealed the presence of a sharply profiled disc protrusion at L5/S1 on the left. This would be consistent for his ongoing left sciatic pain. At L4/5 there is a lesser lesion which I do not believe is significant in the circumstances.
It is my opinion that he did sustain a genuine injury to the L5/S1 disc in the motor vehicle accident of 22nd April 1999. It has progressed and he now has ongoing severe left S1 nerve root compression. I put it to him that should his symptoms be genuinely severe then he would benefit by undergoing a left L5/S1 microdiscectomy and rhizolysis of the S1 nerve root. I made sure that he was aware of the nature of the surgery and described it using the model that I have for the purpose in my office. I also referred to the MRI scan. I made sure that he was aware of the risks and complications which do include a disappointing outcome. One reason that there could be a disappointing outcome is the great length of time over which he has been symptomatic.
…” (T127)
54. On 24 November 2000 Mr Thomas performed surgery, namely, a left L5/S1 microdiscectomy and rhizolysis of the S1 nerve root, on the applicant and he subsequently prepared an operation report on that date (T129).
55. On 28 December 2000 and 9 February 2001 Mr Thomas reported to Dr Beinart regarding the applicant’s condition following the abovementioned operation. In his report of 9 February 2001 Mr Thomas stated:
“Besim is now feeling really quite well and his only ongoing symptoms are mild burning across the low back to the hips and buttocks and a burning discomfort in the left calf. These symptoms are more or less constant but he says he can live with them and they are nowhere near as severe as the symptoms he had prior to his surgery. I therefore discharged him from my care and I believe he could look at a rehabilitation program at any time. He is aware of the importance of looking after his back in the future in an effort to avoid further problems.” (Exhibit R15)
56. In a report, dated 28 February 2001, to the solicitors who were representing the applicant in his action for damages resulting from the motor vehicle accident of 22 April 1999, Mr Thomas stated:
“I write in reply to your letter of 20th February 2001 about Mr Besim Ceric. The back injuries that Mr Ceric sustained in the army in November 1973 lead to him being troubled by back pain problems over a few years at a time quite remote from the present. The occurrence of back pain as a direct result of the accident which occurred on 22nd April 1999 and the continuity of symptoms from that point onwards up until his surgical treatment on 24th November 2000 indicate that he sustained an injury to the L5/S1 disc in the motor vehicle accident of 22nd April 1999 and that this was responsible for his ongoing symptoms and ultimately the surgical treatment that he underwent on the 24th November 2000. I therefore hold the motor vehicle accident to be entirely to blame for any degree of incapacity that Mr Besim Ceric suffered following the accident of 22nd April 1999 up until the present time.” (Exhibit R16)
As regards the opinion, regarding the relationship between the applicant’s motor vehicle accident of 22 April 1999 and his subsequent incapacity, expressed in the last sentence of the abovementioned report, Mr Thomas confirmed that that was his opinion at that time. He added that he had not seen the applicant “for a long time” and was not aware of his “current status”, but that, if it is the same now as it was in February 2001, he would have the same opinion.
57. In a report dated 15 May 2001 to the applicant’s solicitors, Mr Thomas referred to the applicant’s ongoing symptoms (as described in his report of 9 February 2001 set out in paragraph 55 above), and continued:
“I consider his ongoing symptoms to be a reflection of his pre-existing L5/S1 disc injury with compression of the left S1 nerve root. The ongoing symptoms are indicative of a degree of residual mild disturbance in relation to the injury to his disc and the compression of his S1 nerve root. The presence of the continuing symptoms does not indicate that there is still compression of his left S1 nerve root but rather that the nerve root has been left in a state of abnormal function due to the pressure that it had been subjected to prior to the surgery. As already indicated these symptoms are expected to improve.
…
I believe his condition has stabilised at this stage and that he will continue with relatively mild symptoms in his back and left leg.
Although patients who suffer disc injuries and undergo surgery for removal of disc protrusions to decompress nerve roots frequently experience some difficulties with sitting over prolonged periods of time, it is my opinion that Mr Besim Ceric would be fit for his pre-injury occupation as an accountant in a full time capacity. Such work is sedentary and light and does not involve effort in the use of the back. He would not be fit for work that involved heavy use of the back for lifting, bending etc.
…” (T133)
Mr Thomas confirmed that his reference to the applicant’s “pre-existing L5/S1 disc injury…” in the abovementioned report was a reference to the injury which the applicant sustained in the motor vehicle accident of 22 April 1999. Mr Thomas also confirmed that, “subject to any other intervening cause”, he would maintain the opinion, expressed in that report, that the applicant is fit for work as an accountant on a full-time basis.
58. On 31 July 2001 Mr Thomas, at the request of the applicant’s solicitors, reviewed the applicant and provided an updated report to those solicitors as follows:
“…
I went over the current symptoms of which Mr Ceric complains. He began by telling me of a stabbing pain which occurs in the centre of the low back on leaning forwards or sneezing. It is a momentary pain, but quite severe and sharp in nature and occurs 10 times per day on average. In addition, there is a constant dull ache in the low back which does not cause him to suffer greatly, but is more in the nature of a frustrating problem. He experiences what he described as a very mild deep left buttock pain and mild posterior leg pain, but a more severe and painful constant mid-calf pain. There was a strange burning sensation in the region of the left heel which doesn’t bother him that much. He also has symptoms on the right side beginning with a pain which extends from the low back around the iliac crest region or flank towards the right groin, and once a week he will have a flare up of this pain and it will be associated with pain in the right testicular region. He also has a dull burning pain in the right calf with numbness of the right heel. He also admits to being depressed.
…
In his estimation his symptoms have levelled off at the current level and do not seem to be improving.
…
I enquired as to whether Mr Ceric had continued working after the motor vehicle accident of the 22nd April 1999. He informed me that he had continued working under great sufferance until June when he sold his accounting practice.
When he entered my office today for the purpose of the review he appeared relaxed and moved quite freely in the manner that he walked. He sat in a chair opposite me whilst I was taking the history from him today and although he reported that he was experiencing some back discomfort at the time, he did not give the appearance of suffering greatly. On the other hand, whilst carrying out the clinical examination of Mr Ceric, he gave the impression of being in a lot of discomfort at times as in getting onto the examination couch and turning from the supine to the prone positions.
Looking at the objective evidence of injury in Mr Ceric’s case, it is clear that he did sustain an L5S1 disc protrusion in the motor vehicle accident which occurred on the 22nd April 1999 and that this was responsible for back pain and left sciatic pain for which he underwent the appropriate surgical treatment. He admits that this has made a very big difference to the level of pain that he was previously suffering and the pain that he now has is nowhere near that level of pain and discomfort that existed prior the surgery.
I have spent some time today ascertaining what his level of physical ability is judged by what he does in his daily life from day to day now. He is clearly physically active although quite definitely does vary his position quite a lot and it is difficult to refute what he says about sitting for a long period or standing for a long period causing pain.
It is my overall opinion however, that the level of symptomatic disturbance that he has would not be sufficient to preclude him from performing his work as an accountant. I therefore hold to my earlier opinion as expressed in my letter to you of the 15th May 2001.” (Exhibit R17)
59. In cross-examination Mr Thomas confirmed that his opinion that the applicant was fit for full-time work as an accountant was based solely on the applicant’s physical capacity to undertake that work.
Mr Philip Hardcastle
60. Mr Hardcastle has practised as an orthopaedic surgeon and spinal surgeon since 1980. His Curriculum Vitae was tendered in evidence by the respondent (Exhibit R13).
61. Mr Hardcastle confirmed that, at the request of the respondent’s solicitors, he had prepared 3 reports regarding the applicant, and that he adheres to the views expressed by him in those reports. Mr Hardcastle’s reports – dated 15 March 2006, 9 May 2007 and 11 May 2007 – were tendered in evidence by the respondent (Exhibits R10, R11 and R12, respectively).
62. In his reports of 15 March 2006 and 9 May 2007, and in his oral evidence, Mr Hardcastle opined that, in the toolbox lifting incident of November 1973, the applicant sustained a lumbar strain injury – probably at the L5/S1 level – the effects of which subsequently resolved. He further opined that the applicant subsequently developed “degenerative lumbar disc and facet disease”, as a result of the natural ageing process and the normal activities of life, which was exacerbated by the motor vehicle accident of April 1999 following which he underwent successful surgical treatment for a lumbosacral disc protrusion, and that his subsequent and current back pain symptoms are related to his degenerative lumbar spine condition and not to the 1973 lumbar strain injury. Finally, Mr Hardcastle opined that the applicant’s 1973 lumbar strain injury had no effect on his work capacity subsequent to his discharge from the Army (in January 1974), and that, in any event, the applicant, notwithstanding his back pain symptoms, has the physical capacity to work as an accountant, or in “alternative employment of a light to semi-physical nature”, on a full-time basis.
63. In cross-examination it was put to Mr Hardcastle that if, following the 1973 injury, the applicant had “virtually continual pain for 12 months directly thereafter”, that would indicate that the injury he sustained was more serious than a simple strain injury. Mr Hardcastle agreed that that would be the case “in most situations”.
64. It was also put to Mr Hardcastle that Dr Vaughan had opined that the 1973 toolbox lifting incident precipitated the applicant’s lumbar degenerative process. Mr Hardcastle said that he did not agree with that opinion. His cross-examination continued:
“Why don’t you agree with it?---Well, you don’t start a degenerative process with one lifting episode of lifting that sort of weight. A degenerative process is either got to come – if it’s going to start with a trauma, it’s got to be a very significant trauma such as a fall, associated fracture, the disc and that particularly L5-S1. It’s very strong and just bending down and lifting, whether you lift and drop, that is not enough force there to call that – to start a disc tear and degenerative process and I can’t – I can’t accept that.
All right. You don’t accept it. If there was- - -?---Let me just – let me just answer… If there was an injury of such significance that was going to start the degenerative process at L5-S1, in my opinion he would have had not only significant symptoms coming on within a week to ten days or two – the progression of such would not have allowed him to go back to the type of work that we saw him doing and subsequent---
What type of work? Well, he was a carpet salesman---
What, he couldn’t do work as a carpet salesman if he had had a disc injury? If – you’re talking a hypothetical situation now where this chap bends down, he lifts something. He sustains a major disruption to a normal disc because this thing has gone on for so long to start the degenerative process. Now he – he wouldn’t sort of get back to this sort of level of activity that we’re seeing within a few years. The symptoms would, I think, have been a lot more in terms of the leg pain developing a lot earlier and the necessity for surgery wouldn’t come 30 years later. It would be – the problem would have been, in my opinion, if he had a significant injury to his disc rather than a simple strain, the symptoms would have been brought forward a lot more. The car accident is the thing that seems to have precipitated the major problem.” (Transcript, pp 157-158)
He added that, if the applicant had suffered a significant lumbar disc injury in November 1973, that would have appeared in the x-rays of his lumbar spine that were conducted in 1982 and 1992, but no significant degenerative changes in his lumbar spine were referred to in those x-ray reports.
The Evidence of the Lay Witnesses
Perry Heynen
65. Mr Heynen confirmed that he had signed a Summary of Evidence, dated 12 March 2007, for the purpose of these proceedings. That Summary of Evidence, which was tendered by the applicant, states as follows:
“…
2.I have been asked to comment on Besim Ceric with regard to his work performance as an employee in my tax accounting practice in Port Hedland in 1990/91.
3.I first met Besim in mid 1980 in Port Hedland. Besim was about 25 years old then. He left the region permanently, shortly after the Christmas of 1980, returning to Perth.
4.I had no further contact with Besim until, by chance he responded to my advertisement in 1990 in which I was seeking a Tax Accountant for my tax accounting practice ‘Goldfinch Partners’ which was situated in South Hedland. I had taken on the ‘ITP’ franchise for the entire Pilbara region and needed additional tax accounting personnel.
5.Besim applied for the position and I was attracted to his job application, due to my knowing him previously, his exposure to the North West lifestyle and its people, and he could start immediately.
6.I was aware that Besim had a low back problem when I first met him in 1980 and he brought that up again during our telephone interview. I did not give it much thought at the time as I needed a tax accountant urgently.
7.When Besim arrived and commenced work, it became quickly apparent to me that he was having difficulty working in a sedentary position. In this regard:
(a)It appeared to me that he was in pain and discomfort when seated.
(b) He was unable to sit for any reasonable period of time and he needed frequent breaks, stretching and moving around.
(c)He would close the door to his office and lie down, on the floor, and I found him in this state frequently.
(d)It appeared to me that his symptoms precluded him to focus or concentrate on work at hand. He was easily distracted.
8.Besim’s productivity was well below what I reasonably expected. (I had 9 full time staff, of which 5 were tax accountants and his performance was well below any of them.)
9.It was not uncommon for Besim to take up to 4 times as long to complete an accounting assignment, due to his low back pain, constant breaks and work disruptions. Furthermore, his condition appeared to prevent him conducting the necessary timely professional and often lengthy client interviews; a discipline vital in an efficient tax accounting service environment.
10.Unfortunately, the commercial realities of my practice required I source an alternative tax accountant and Besim was thereafter offered casual ad hoc work which became untenable for both of us. I was saddened but relieved on his resignation.
11.I had not been in contact with Besim after he left my employ in 1991 until approximately 2000, at which time we bumped into each other in Leederville.
12.To date, I have no social contact or particular association with Besim.” (Exhibit A11)
Gregory Forrester
66. Mr Forrester confirmed that he is the Director of Forrester Manns Recruitment Pty Ltd, Recruitment Consultants, and that he had prepared a report, dated 10 May 2007, for the purpose of these proceedings. That report, which was tendered in evidence by the respondent, states as follows:
“Greg Forrester – Qualifications
Greg Forrester has been the director of Forrester Manns Recruitment Pty Ltd for the past 7 years. He is the current licence holder in WA for this organisation, and is currently a member of the Recruitment and Consulting Services Association of Australia and NZ. He has been actively recruiting for accountants in Perth for the last three years.
Availability of Accounting work in WA
Accountants, particularly Tax and Business Service Accountants are extremely rare in Perth at the moment, most public accounting firms are looking for suitable staff in professional tax services and accountants with 3 years plus experience are in high demand. My company, like most accounting recruitment companies, are unable to keep up with this demand.
Advertised Position
As of 7/05/2007 two of the largest job boards, ‘SEEK’ and ‘Career One’, had the following listings for tax accountants:
Tax Accountants
283 for SEEK
48 for Career One
General accounting search
798 for SEEK
486 for Career One
Direct advertising of this nature is considered to be the tip of the recruitment iceberg. A large number of firms find staff by word of mouth and direct applications rather than a recruitment company or a direct marketing campaign.
Salary Expectation
Currently lack of supply for public practice accountants has pushed salaries up over the last 3 years.
Most candidates with 3 years’ or more experience would be expecting to receive between $750 and $1200 per week depending on experience and the type of firm they are working with.
Summary
Given the lack of information provided and without interviewing and reference checking Mr Ceric, it is hard to give a definitive statement on Mr Ceric’s suitability to find work.
However the current shortage of accountants should make it quite easy for somebody with 12 years’ tax experience to find well rewarded work now and well into the foreseeable future.” (Exhibit R18)
67. In his examination-in-chief Mr Forrester confirmed that, in his experience, Perth accounting firms in general are presently “desperate” to find qualified accounting staff and, accordingly, are willing to employ such staff on a part-time basis and to offer flexibility in working hours.
68. In cross-examination Mr Forrester confirmed that there is a general expectation in accounting firms that employed accountants render bills for 80 per cent of their paid working hours and he agreed that it would be “much more difficult” for a person who “had a history of being unproductive in terms of meeting that 80 per cent target” to obtain employment in the open market. He also agreed that it would be more difficult for him to find employment as an accountant for a person who had not been practising as an accountant in the last 7 years than for an accountant who is simply returning from maternity leave.
69. Mr Forrester was referred to the Summary of Evidence of Perry Heynen (Exhibit A11 – set out in paragraph 65 above) and, having read that document, he agreed that “someone with [the applicant’s] track record” – as described by Mr Heynen – “would have difficulty obtaining placement in the open accountancy market”. He also agreed that that difficulty would be “compounded” by the fact that the person had not been practising as an accountant in the last 7 years.
70. In re-examination Mr Forrester gave the following evidence:
“…
Then you also said that you are aware of firms that are desperate for people to hand back (sic) office work and look at alternatives?---Yes.
Can you give examples to the Tribunal of the sorts of alternatives that people have looked at?---Given the current marketplace there’s a desperate shortage of accountants and tax and business solution accountants. Most firms are willing to bend – be flexible about their employment processes. Most firms are expressing an interest to look at all alternatives to get people into their office and doing the work that they desperately need to get billed.
What sort of alternatives are they? Part time or less work?---Part time, yes, a couple of hours a day, anything to get really people to do it. Work from home, yes.
Is that the big end of town type firms or is it - - -?---Most of the firms I deal with are small to medium size companies…
When you say that they’re looking at alternatives, would they be, in your experience, prepared to assist with training?---Yes, for sure.
When you say ‘flexible’, have you examples of firms that have set up different structures or expectations for particular people to fit in with their needs or abilities? Yes.
Can you give an example of any of them? I placed an accountant last year who was 68 years old. He was pretty much quickly snapped up by one of my smaller firms. He was fairly slow in his productivity and was forthcoming when he spoke to the client about, ‘You know, I’m a plodder. I will sit down and do my work. I will get it done by the end of the day,’ sort of thing. The client was quite happy to take him on board and allowed him to – you know, he’s a tournament bowls champion. He allowed him to go to his tournament bowls every Thursday afternoon to compete, you know, just to get him in the office and sit down and do some work.” (Transcript,
p 187)
Analysis and Findings
71. It is common ground that, in November 1973, the applicant suffered a personal injury, namely, an injury to his lower lumbar spine, in the course of his employment by the Commonwealth in the Australian Regular Army. It is also common ground that, in April 1999, the applicant suffered an injury to his lower lumbar spine in a motor vehicle accident which occurred in non-compensable circumstances.
72. The matter which is in dispute, and which must be determined by the Tribunal, is whether, notwithstanding the motor vehicle accident of April 1999, the applicant continues to be incapacitated for work, and to require medical treatment, as a result of the November 1973 injury – or, to put it another way, whether the April 1999 motor vehicle accident was a novus actus interveniens which broke the chain of causation between the applicant’s November 1973 injury and his incapacity (if any) for work and requirement for medical treatment such that any such incapacity for work and requirement for medical treatment since that motor vehicle accident have resulted solely from the injury he sustained in that accident.
Is the applicant incapacitated for work?
73. The applicant conceded that he is not, in a physical sense, totally incapacitated for work. Having regard to the whole of the medical evidence, the Tribunal regards that concession as appropriate.
74. The Tribunal is also reasonably satisfied, on the basis of the medical evidence, that the applicant, by reason of lower back pain symptoms which he has suffered since his November 1973 lower lumbar spine injury, has not, since that time, had the capacity to engage in physical work at the same level as that in which he was engaged in the Australian Regular Army immediately before he sustained that injury.
75. The Tribunal finds, therefore, that, at all material times, the applicant has been incapacitated for work (as defined in para (b) of s 4(9) of the SRC Act) for the purposes of the SRC Act.
Does the applicant’s present incapacity for work result solely from the April 1999 injury or does it continue to result from the November 1973 injury?
76. The medical evidence in relation to this issue is by no means consistent. Dr Vaughan and Dr Beinart have opined that the applicant suffers from ongoing degeneration of his lower lumbar spine which was precipitated by the November 1973 toolbox lifting incident and which was aggravated by the April 1999 motor vehicle accident resulting in surgery which largely alleviated the effects of that aggravation and following which he has continued to suffer lower back pain by reason of the degenerative spinal condition which was precipitated by the November 1973 incident, and that, accordingly, his ongoing incapacity for work results in part from the November 1973 injury. Mr Hardcastle, however, has opined that the applicant’s November 1973 injury was merely a lumbar strain injury which resolved shortly thereafter, and that his present degenerative lower lumbar spinal condition subsequently developed as a result of the natural ageing process and the normal activities of life, and was exacerbated by the motor vehicle accident of April 1999 following which he underwent successful surgery, and that, accordingly, his ongoing back pain symptoms and incapacity (if any) for work result, not from the November 1973 injury, but, instead, from the subsequently-developed natural degeneration of his lower lumbar spine. Mr Thomas opined (in 2001) that the applicant’s April 1999 motor vehicle accident was “entirely to blame for any degree of incapacity that [he] suffered following [that] accident”.
77. Having regard to the whole of the evidence, the Tribunal agrees with the analysis and opinions expressed by Dr Vaughan in his abovementioned reports and oral evidence.
78. The Tribunal does not accept Mr Hardcastle’s opinion that the applicant’s November 1973 injury had resolved by the time of his discharge from the Army in January 1974 or shortly thereafter because that opinion is inconsistent with the body of evidence before the Tribunal (which the Tribunal accepts) that, following his sustaining that lower lumbar spinal injury in November 1973, he has had ongoing medical and chiropractic treatment for lower back pain symptoms experienced by him as a result of that injury, and that treatment has continued to the present time. Likewise, the Tribunal does not accept the opinion of Mr Thomas that the applicant’s April 1999 motor vehicle accident was “entirely to blame for any degree of incapacity that [he] suffered following [that] accident” because that opinion is also inconsistent with that body of evidence.
79. On the basis of the whole of the evidence before it, the Tribunal is reasonably satisfied, and finds, that:
· the applicant sustained a lower lumbar spinal injury in the November 1973 toolbox lifting incident and that incident precipitated a process of degeneration in the applicant’s lower lumbar spine which has continued from the time of that incident and is presently continuing;
· the April 1999 motor vehicle accident aggravated the applicant’s lower lumbar spinal condition and the applicant underwent surgery in November 2000 which largely rectified the aggravation of the lower lumbar spinal condition caused by the motor vehicle accident;
· since the November 2000 surgery, the applicant has continued to experience lower back pain symptoms which are predominantly attributable to the ongoing degeneration of his lower lumbar spine which was precipitated by the November 1973 toolbox lifting incident;
· by reason of those ongoing lower back pain symptoms, the applicant’s physical capacity for work has been reduced to the extent that, since the November 2000 surgery, he has been, and continues to be, partially incapacitated for work.
80. Accordingly, the Tribunal finds that the applicant’s ongoing incapacity for work since the November 2000 surgery does not result solely from the injury he sustained in the motor vehicle accident of April 1999, but that, notwithstanding the effects of that injury, it continues to result from the injury he sustained in the toolbox lifting incident of November 1973.
The applicant continues to be entitled to compensation in respect of the November 1973 injury
81.
It follows from the finding expressed in paragraph 80 above that, notwithstanding the April 1999 motor vehicle accident and the injury sustained by the applicant in that accident, the applicant continues to be entitled to compensation in respect of the November 1973 injury. Pursuant to s 124(1A) of the SRC Act, however, the compensation to which the applicant has been entitled since
1 December 1988, and continues to be entitled, in respect of the November 1973 injury, is determined in accordance with the SRC Act, not the 1971 Act: Klinkert v Australian Postal Corporation (1992) 16 AAR 86.
What compensation is payable to the applicant?
Incapacity payments – s 19 of the SRC Act
82. In order to determine whether compensation by way of weekly incapacity payments is payable to the applicant, pursuant to s 19 of the SRC Act, the Tribunal must determine, for the purposes of that section, “the amount per week (if any) that the [applicant] is able to earn in suitable employment”. In order to determine that matter, the Tribunal must first determine what is “suitable employment” for the applicant.
83. The Tribunal, on the basis of the evidence before it and having regard to the matters referred to in the definition of the phrase “suitable employment” in s 4(1) of the SRC Act, is reasonably satisfied, and finds, that “suitable employment” for the applicant chiefly comprises:
· employment (including self-employment) as an accountant (including tax accounting, general accounting and bookkeeping);
· employment (including self-employment) as a tax agent;
· employment in clerical work.
84. In determining the amount per week (if any) that the applicant is “able to earn in suitable employment”, the Tribunal is required, pursuant to s 19(4) of the SRC Act, to have regard to the matters referred to in paras (a)-(g) of that subsection. There is no evidence before the Tribunal that, in the period since the applicant ceased working as a certified practising accountant on 30 June 2000, any of the circumstances referred to in paras (a)-(d) has occurred, and, accordingly, the Tribunal finds that paras (a)-(d) are inapplicable in this case. In relation to the matter referred to in para (e), the Tribunal is satisfied, on the basis of the applicant’s evidence, that he has in recent years sought suitable employment, but without success, and the Tribunal finds, therefore, that para (e) is inapplicable in this case. It necessarily follows from the abovementioned findings that para (f) is also inapplicable, and the Tribunal so finds.
85. Pursuant to para (g) of s 19, however, the Tribunal is required to have regard to “any other matter [it] considers relevant”. Such relevant matters will include not only the applicant’s physical and mental capacity to undertake the identified forms of “suitable employment”, but also the actual availability to the applicant of such “suitable employment” having regard to the state of the relevant labour market: Telstra Corporation Ltd v Warner (1994) 20 AAR 259 at 264; Esam v ASP Ship Management (1998) 87 FCR 82 at 86; Martin v Australian Postal Corporation (2000) 32 AAR 199 at 204-205.
86. As regards the applicant’s physical capacity (his mental capacity not being in issue) to undertake employment as an accountant or as a tax agent or employment in clerical work, the Tribunal agrees with Dr Vaughan’s opinion that the applicant is capable of undertaking such employment on a part-time (but not on a full-time) basis, provided that his employment circumstances are sufficiently flexible to allow him to leave his sitting position and to stand and move around from time to time in order to alleviate his back pain.
87. As regards the actual availability of the abovementioned forms of suitable employment, there is no evidence before the Tribunal regarding the availability of clerical employment, but there is some evidence regarding the availability of employment as an accountant in Western Australia – namely, the evidence of Mr Forrester (see paragraphs 66-70 above) – although the Tribunal notes that Mr Forrester’s evidence related only to the availability of such employment as at May 2007. Thus, there is no evidence before the Tribunal in relation to the availability of employment as an accountant in Western Australia prior to that date – in particular, in the period from 2000 to 2006.
88. On the basis of Mr Forrester’s evidence, the Tribunal accepts that there is presently very substantial availability of employment as an accountant, whether on a full-time basis or on a part-time basis, in Perth and that there is a preparedness on the part of some employers to be flexible in relation to the working hours and conditions of professional accounting staff. The Tribunal is, furthermore, prepared to accept that this has been the case for the last few years at least.
89. The Tribunal is also satisfied that, because of the present demand for accounting services in Perth (as indicated by Mr Forrester), self-employment as an accountant is also presently available to the applicant. The Tribunal is, furthermore, prepared to accept that this has been the case for the last few years at least.
90. There are, however, other matters which, it seems to the Tribunal, may be relevant to the question whether the applicant has been able to earn as an accountant since June 2000. According to the applicant’s evidence – which was uncontradicted and which the Tribunal accepts – he has not practised as an accountant since June 2000, his registration as a tax agent was discontinued in December 2000 and he has not subsequently obtained such registration, and he has not undertaken any relevant professional development programmes since June 2000. There was, however, no specific evidence before the Tribunal regarding the relationship (if any) between each of those matters and the applicant’s having been able, or unable, to earn as an accountant since 2000. The Tribunal is, nevertheless, prepared to accept that, having regard to those matters, the applicant is presently not able to earn as an accountant, or as a tax agent, in self-employment, and has not been able so to earn from 2001 to date. The Tribunal is not reasonably satisfied, however, that the applicant has not been able to earn as an employed accountant or bookkeeper from 2001 to date. The Tribunal notes the evidence of Perry Heynen (see paragraph 65 above), but it attaches little weight to that evidence because it relates to circumstances which existed in 1990-91 and are far removed from the present circumstances.
91. On the basis of the whole of the evidence and having regard to the abovementioned considerations, the Tribunal is reasonably satisfied, and finds, that, from 2001 to the present date, and as at the present date, the applicant has been, and is presently, “able to earn”, within the meaning of s 19 of the SRC Act, an amount per week as an employed accountant or bookkeeper on a part-time basis. The Tribunal, however, is not able, on the evidence before it, to determine the amount per week that the applicant has been, and is presently, “able to earn” in such employment, and, accordingly, it remits that matter to the respondent for determination.
Medical expenses – s 16 of the SRC Act
92. It follows from the Tribunal’s earlier conclusion that the applicant continues to be entitled to compensation in respect of the November 1973 injury, that he is entitled, in accordance with s 16 of the SRC Act, to compensation for the cost of reasonable medical (including chiropractic) treatment obtained by him in relation to that injury.
93. The only specific issue for the Tribunal’s determination in relation to the compensation which is payable to the applicant in accordance with s 16 of the SRC Act is whether the applicant is entitled, pursuant to s 16, to compensation comprising the cost of an “orthopaedic mattress and base”.
94. The Tribunal accepts Dr Vaughan’s opinion (expressed in his report of 30 November 2005 and confirmed in his oral evidence) that the applicant, by reason of his back condition, requires a “regular support bed with the appropriate intersprung mattress”. In his oral evidence he added that “back sufferers are worsened by loose, soft mattresses” and that spinal surgeons generally agree that such patients “should have a well sprung mattress to lie on” (Transcript, p 133).
95. The respondent did not dispute that an “orthopaedic mattress and base” unit falls within the definition of the phrase “medical treatment” in s 4(1) of the SRC Act. Having regard to the broad statutory definition of that phrase – and, in particular, paras (f) and (h) thereof – the Tribunal finds that “medical treatment”, within the meaning of s 16(1) of the SRC Act, may include an “orthopaedic mattress and base”.
96. The question then arises whether, for the purposes of s 16(1) of the SRC Act, the obtaining of an “orthopaedic mattress and base” by the applicant is “reasonable… in the circumstances”. On the basis of Dr Vaughan’s evidence, the Tribunal answers that question in the affirmative.
97.
Accordingly, the Tribunal finds that the applicant is entitled, pursuant to
s 16(1) of the SRC Act, to compensation in an “appropriate” amount for the purchase of an “orthopaedic mattress and base”.
Conclusion
98. The Tribunal notes, in conclusion, that the applicant submitted that, in the event that the Tribunal determined that he was entitled to compensation for incapacity in accordance with s 19 of the SRC Act, pursuant to his claim for incapacity payments dated 30 October 2003, the appropriate commencement date for the payment of such compensation was 1 January 2004 on the basis that he was fully compensated for the economic loss suffered by him as a result of the April 1999 motor vehicle accident up until 31 December 2003 by the payment of damages he received on 9 September 2002 in relation to that accident. The Tribunal regards that submission as a concession by the applicant that the payment of incapacity compensation to which he is entitled should appropriately commence on a date later than the date on which his entitlement to that compensation commenced. The Tribunal is, in the circumstances, prepared to accept the applicant’s concession and to incorporate that concession in its decision.
Decision
99. For the above reasons, the Tribunal sets aside the reviewable decision of the respondent dated 17 March 2005 and, in substitution therefor, decides that:
· pursuant to s 124(1A) of the SRC Act the applicant is entitled to compensation under that Act in respect of the lumbar spinal injury which he suffered in November 1973 in the course of his service in the Australian Regular Army;
· the respondent has since 19 October 2004 continued to be liable, and is presently liable, under s 16 of the SRC Act to pay compensation to the applicant in respect of the cost of reasonable medical (including chiropractic) treatment obtained by him in relation to his abovementioned lumbar spinal injury, including compensation in an appropriate amount for the purchase of an orthopaedic mattress and base;
· the respondent has since 1 January 2004 been liable, and is presently liable, to pay compensation, in accordance with s 19 of the SRC Act, to the applicant for incapacity for work resulting from his abovementioned lumbar spinal injury in an amount per week to be determined on the basis that since 1 January 2004 he has been, and is presently, “able to earn”, within the meaning of s 19 of the SRC Act, an amount per week as an employed accountant or bookkeeper on a part-time basis.
100. Either party may make an application in relation to the costs of these proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: ...................[Sgd Y Maker]..........................
AssociateDates of Hearing 15-18 May 2007
Date of Decision 28 August 2007
Counsel for the Applicant Mr J Criddle
Solicitor for the Applicant Mr C Fraser
Counsel for the Respondent Ms B Mangan
Solicitor for the Respondent Lavan Legal
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