Duffy and Comcare

[2003] AATA 1015

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1015

ADMINISTRATIVE APPEALS TRIBUNAL      )     N2000/1371; N2001/1198

) N2002/397

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN DUFFY

Applicant

And COMCARE

Respondent

DECISION

Tribunal P.J. Lindsay, Senior Member
Dr J. D. Campbell, Member

Date 8 October 2003

PlaceSydney

Decision

The Tribunal determines that:
(a) the determination of 17 May 2001 be set aside and in substitution therefor it is ordered that the Applicant is entitled to payment of expenses reasonably incurred in attending medical examinations on 16 August 2000, 18 October 2000, 21 February 2001 and 22 February 2001, where such expenses are quantified, actual and necessary expenses of a self employed person incurred to maintain his self employment activities whilst attending an examination pursuant to s.57 of the Safety, Rehabilitation and Compensation Act 1988. The issue is remitted to the Respondent to further assess the Applicant’s claim in this regard.

(b) the reconsideration determination of 12 February 2002 be affirmed thereby rejecting the Applicant's claim for an increase in the level of his accepted permanent impairment.

(c) the Applicant has no entitlement to weekly incapacity payments as and from 4 April 2000.

(d) Costs are awarded to the Applicant. 

(sgd) P.J. Lindsay   

CATCHWORDS

COMPENSATION - pre-existing degenerative disease of the lumbar spine - workplace injuries - aggravation of pre-existing condition - issue of continuing incapacity - issue of further permanent impairment – whether expenses associated with section 57 medical appointments are compensable - whether entitled to further weekly compensation payments – decision affirmed in part – decision remitted in part

Safety, Rehabilitation and Compensation Act 1988 ss 19, 20, 24, 27, 57, 62

Power v Comcare (1998) 89 FCR 514

REASONS FOR DECISION

8 October 2003	P.J. Lindsay, Senior Member
Dr J. D. Campbell, Member

1. In this application, John Duffy ("the Applicant") seeks a review of the following determinations made by Comcare ("the Respondent") pursuant to section 62 of the Safety, Rehabilitation and Compensation Act1988, namely:

(a) In matter N2000/1371: the determination made by an independent review officer dated 12 July 2000 to affirm the decision taken by the Respondent on 27 April 2000 which:

(i) awarded the Applicant the sum of $103.96 as reimbursement for wages lost as a consequence of attending an appointment for medico-legal assessment pursuant to section 57 of the Act; and

(ii) determined that the Applicant was not entitled to compensation in relation to gardening services for rental properties owned and managed by the Applicant, which the Applicant was unable to perform due to his compensable injuries.

(b) In matter N2001/1198: a reconsideration of own motion by the Respondent on 17 May 2001 which noted an earlier determination of 13 March 1995 deeming that the Applicant was able to earn, in suitable employment, an amount equal to his pre-injury earnings which equated to a nil entitlement, the result being:

(i) revocation of the Respondent's earlier determinations of 4 December 2000 and 15 March 2001 which accepted liability for incapacity payments for attending medical appointments

(ii) an indication that overpayments would have to be repaid

(c) In matter N2002/397: a determination made by the Respondent dated 12 February 2002 affirming an undated determination rejecting the Applicant's claim for an increase in permanent impairment compensation.

2.      A hearing was held before the Tribunal in Sydney on 29 and 30 April 2002, and further on 15 November 2002. The Applicant was represented by Mr Grey of Counsel. The Respondent was represented by Mr Johnson of Counsel.  The Applicant, Dr Yeo and Dr McGill presented oral evidence before the Tribunal.

3. The Tribunal had before it three sets of documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, one relating to proceeding N2000/1371 (T documents), a second relating to proceeding N2001/1198 (2T documents), and a third relating to proceeding N2002/397 (3T documents). The Tribunal also had before it the following documents tendered at the hearing:

Exhibit	Description	Date
A1	Bundle of letters: Letter from Applicant to Respondent Letter from Respondent to Applicant Letter from Applicant to Respondent Letter from Applicant to Respondent Facsimile from Respondent to Applicant	21 December 2000 29 December 2000 22 January 2001 9 March 2001 13 March 2001
A2	Direction of DP Handley in proceeding N2001/1198	7 September 2001
A3	Report of Dr Harvey	1 February 2001
A4	Report of Dr Yeo	23 February 2001
A5	Report of Professor Sambrook	27 September 2002
R1	Letter from the Tribunal to the Respondent enclosing the Application for Review dated 14 August 2001	15 August 2001
R2	Bundle of letters: Facsimile from the Respondent to the Applicant Letter from the Applicant to the Respondent Letter from the Respondent to the Applicant Facsimile from the Responent to the Applicant Letter from the Respondent to the Applicant Letter from the Applicant to the Respondent	14 August 2001 8 June 2001 15 June 2001 20 June 2001 2 July 2001 25 June 2001
R3	Correspondence from Trenches to Barker Gosling	14 August 2001
R4	Report of Dr McGill	13 March 2002
R5	Canberra Physiotherapy Centre Notes	22 April 2002
R7	Applicant’s Tax Return for financial year 1995/96	23 July 1996
R8	Applicant’s Tax Return for financial year 1996/97	19 July 1997
R9	Applicant’s Tax Return for financial year 1997/98	1998
R10	Applicant’s Tax Return for financial year 1998/99	1999
R11	Applicant’s Tax Return for financial year 1999/2000	24 August 2000
R12	Applicant’s Tax Return for financial year 2000/01	2001
R13	Original sick leave records for the Applicant	1974 -1993

issues

4.      The relevant issues in this application are:

(a) whether the issues of compensation for incapacity and further permanent impairment are within the Tribunal's jurisdiction; and if so

(b) whether the Applicant is entitled to compensation under any provision of the Act for time off work whilst attending a medico-legal examination at the request of the Respondent, and if so, what amount of compensation is payable, and

(c) whether the Applicant is entitled to compensation for incapacity and for an increase in permanent impairment.

legislation

5.      The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 19, 20, 24, 27, 57, 62.

background

6. The Applicant is a 54 year old man formerly employed by the ACT Department of Education as a Level 1 teacher. The Applicant is now self employed. The Applicant first suffered an injury to his back in 1974 when teaching basketball. On 4 June 1990 the Applicant claims to have suffered a further injury to his back while lifting a stack of chairs at work (T56). On 6 November 1990 the Applicant re-injured his back lifting files from a drawer at work (T67). On 9 April 1992 the Applicant underwent a L4/5 discectomy (T98). On 16 November 1992 the CMO recommended that the Applicant be redeployed. The Applicant accepted secondment to a clerical position on 1 March 1993. On 14 July 1993 the Applicant accepted a voluntary redundancy and commenced managing his investment properties on the North Coast of New South Wales. From time to time the Applicant has made periodic claims for aids and appliances and medical treatment in respect of his injury.

7.      On 17 September 1993 Comcare determined that it was no longer liable in respect of the Applicant's claim (T139). In its letter to the Applicant, the Respondent noted that liability was ceased for "back strain" resulting from the injury of 22 July 1974 on 28 November 1989. It then advised the Applicant that liability for "low back strain" resulting from the injury of 4 June 1990 was being ceased on 13 July 1993. Following a request for reconsideration by the Applicant the decision was affirmed on 11 February 1994 (T145). The Applicant appealed this determination to the Administrative Appeals Tribunal as evidenced by the Respondent's letter of 10 May 1994 (T148). On 13 March 1995 the Respondent issued a further determination superseding the determination of 11 February 1994 (T156). This in effect frustrated the Applicant's claim before the Tribunal at that time, leaving the Applicant with an option to replace his appeal against the determination of 11 February 1994, with an appeal against the new determination of 13 March 1995. The Applicant elected to accept the determination of 13 March 1995 (T156).

8.      The determination of 13 March 1995 (T157) varied the determination of 17 September 1993 (T139) by accepting that:

(i) Mr Duffy suffers a 10 % impairment as a result of his injury of 4 June 1990. Compensation is payable in the following amount:

Section 24 (permanent impairment): $10,300

Section 27 (non-economic loss):       1.  $1,931

2.  $11,780

(ii) Pursuant to the provisions of section 19(4), Mr Duffy is deemed to be able to earn in suitable employment an amount equal to his pre-injury earnings. His weekly entitlement under section 19 of the Act is therefore nil

9.      On 24 April 1995, in response to correspondence and several phone calls from the Applicant, the Respondent advised the Applicant that Comcare would “continue to be liable in regard to all reasonable medical expenses incurred for the condition of degenerative changes of the lumbar spine" (T158). The Respondent denied the Applicant's claim for sandshoes on 7 March 1996 (T155), aids and appliances on 16 October 1995 (T168), medication, namely Zantac on 20 October 1995 (T170), purchase of a bed on 9 January 1996 (T197), and ongoing physiotherapy on 28 June 1996 (T215). Following a reconsideration of own motion, and after the Applicant had applied to the Administrative Appeals Tribunal for review, the Respondent considered that the Applicant was entitled to a pair of shoes at reasonable cost on 11 October 1996 (T219). The Applicant subsequently withdrew his appeal (T221).  

10.     On 27 November 1996 the Respondent notified the Applicant that in relation to his condition, liability has been amended from  "low back strain" to "aggravation of degenerative changes of the lumbar spine" (T228).

11. On 30 January 2000 the Applicant again raised the issue of some form of reimbursement for time occasioned attending medical appointments on 12 October 1999 and 11 December 1995 (T282). On 27 April 2000 the Respondent noted that such payments under section 57 of the Act (attending medical appointments) should be based on the actual loss of earnings for that day payable to the employee in the same fashion as other expenses such as meals or travel (T295) and not as a form of incapacity entitlement. (The resultant expense subsequently becoming an administrative cost to the liable agency as opposed to consideration under section 19 or 20 of the Act (T295).) On 27 April 2000 the Respondent approved payment of an amount in relation to income lost by the Applicant in attending a medical appointment with Dr Wearne on 12 October 1999 (T296). On 12 July 2000 the Respondent affirmed the determination of 27 April 2000 that the Applicant was entitled to $103..96, as previously determined, for loss of a day’s earnings when attending the medical appointment on 12 October 1999. The Applicant was informed that he was not entitled to compensation in relation to gardening services at his rental properties (T312). The Applicant appealed to the Tribunal on 21 September 2000 for review of this decision.

12. On 24 October 2000 the Applicant sought compensation for leave from his income earning activities to attend medical appointments on 16 August 2000 and 18 October 2000 (2T11). The Respondent approved payment under section 20 of the Act on 15 December 2000 (2T17). Additional compensation for leave from similar activities to attend further medical appointments on 21 and 22 February 2001 were approved by the Respondent on 15 March 2001 (2T29). On 20 April 2001 the Applicant lodged a claim for "incapacity payments" replacing his previous claim for gardening assistance at rental properties (2T34).

13. In a reconsideration of own motion, on 17 May 2001 (2T38), Comcare noted the determination of 13 March 1995 (T139) and in particular the finding that the Applicant was able to earn, in suitable employment, an amount equal to his pre injury earnings which equated to a nil entitlement. It then determined that the earlier determinations of 15 December 2000 and 15 March 2001 should be revoked. In substitution, it determined that the Applicant had no entitlement under section 20 of the Act for compensation of loss incurred when attending medical appointments (2T38). The Applicant appealed to the Tribunal on 24 May 2001 for review of this decision.

14.     In a letter dated 21 December 2000 (Exhibit A1) the Applicant's solicitors, in addressing both the Respondent's solicitors and the Administrative Appeals Tribunal, clearly indicated that the Applicant wished to pursue a claim for ongoing weekly compensation at a nominated rate from April 2000. In a response dated 29 December 2000, (Exhibit A1), the Respondent's solicitors indicated that a claim for ongoing weekly compensation would need to be made. In a letter to the Respondent’s solicitors, the Applicant's solicitors indicated that the Respondent's solicitors had accepted the letter to the Administrative Appeals Tribunal dated 21 December 2000 as an application for ongoing weekly compensation by the Applicant. On 9 March 2001 the Applicant's solicitors again requested advice as to the outcome for the claim by the Applicant in relation to ongoing weekly wages, with the Respondent's solicitors advising that they were still considering the claim for weekly payments on 13 March 2001 (Exhibit A1).

15. The determination made by the Respondent on 17 May 2001 (2T38) was a reconsideration decision of its own motion pursuant to section 62 of the Act and dealt with liability to pay compensation for wages lost by the Applicant when attending specialist medical appointments. On 24 May 2001 the Applicant sought reconsideration of the reconsideration decision of 17 May 2001, and in particular his entitlement for incapacity payments from the date of 4 April 2000, being the date of Dr Harvey's report (T293). On 15 June 2001, the Respondent's solicitors advised the Applicant's solicitors that the correct mechanism for review was to lodge an application for review with the Administrative Appeals Tribunal pursuant to section 64 of the Act (Exhibit R2).

16. On 20 June 2001 the Respondent's solicitors, having previously advised the Applicant's solicitors that the Applicant's claim for incapacity payments was being reconsidered, advised that this was not the case (Exhibit R2). They further advised that in their opinion the determination of 17 May 2001 was sufficiently wide to give the Tribunal the jurisdiction to review the Applicant's entitlement under section 19. On 25 June 2001 the Applicant's solicitors wrote to the Respondent's solicitors claiming on behalf of the Applicant an increase in his lump sum entitlement from 10 per cent permanent impairment to 20 per cent permanent impairment and noting that the issue of ongoing weekly incapacity payments from April 2000 had not been resolved (Exhibit R2). It was requested that these two matters be addressed appropriately and urgently. On 25 July 2001 the Respondent's solicitors replied advising that the claim for an increased level of permanent impairment had been forwarded to their client (Exhibit R2). They also advised that in accordance with their letters of 15 and 20 June 2001, the correct course of action was to lodge an application for review with the Administrative Appeals Tribunal of the reviewable decision dated 17 May 2001.

17.     On 7 August 2001 the Applicant effected service on the Respondent's solicitors of the Applicant's statement of facts and contentions for proceedings before the Tribunal.  In this document, the Applicant nominated two issues to be resolved by the Tribunal. These concerned the Applicant's entitlement to ongoing weekly compensation from 4 April 2000 and the Applicant's entitlement to an increase in the lump sum payment for permanent impairment from 10 per cent agreed upon already to 20 per cent.

18.     On 14 August 2001 the Applicant’s solicitors wrote to the Administrative Appeals Tribunal (Exhibit R3) stating that in their view there were three matters before the Tribunal, namely:

·the respondent’s determination of 17 May 2001 refusing to grant the Applicant ongoing weekly incapacity payments from April 2000. In a facsimile dated 17 May 2001 (Exhibit R1) Comcare advised the Applicant's solicitors that the determination dated 13 March 1995 would need to be looked at by the Administrative Appeals Tribunal and advised the solicitors to contact Mr Brown to see if a new AAT application needs to be lodged (Exhibit R1); 

·the respondent’s determination of 17 May 2001 requiring the Applicant to repay three days compensation previously awarded for attending medical appointments;

·a claim in relation to an increase in permanent impairment from 10 per cent to 20 per cent.

19.     In that same letter of 14 August 2001 the Applicant's solicitors sought an extension of time for the application to be lodged, noting that the 60 day time limit had expired (Exhibit R3). A copy of that letter was sent to the Respondent solicitor’s on 14 August 2001 (Exhibit R3) The Tribunal granted an extension of time in a consequence of this request on 7 September 2001 (Exhibit A2).

20.     It is noted that the Respondent has issued an undated determination stating that it has no further liability to pay further compensation to the Applicant for permanent impairment to his back as this arose out of degenerative changes which were not compensable (2T54). On 12 February 2002 the Respondent affirmed this undated decision (3T15). The Applicant appealed to the Tribunal on 19 March 2002 for review of this decision.

preliminary issue

21.     Much argument occurred between the parties as to what was correctly before the Tribunal, and indeed as to what decision the extension of time granted by the Tribunal on 7 September 2001 referred to. In detailing the particulars of the interactions between the parties, it would appear that although the Applicant may have seemed to expand the issues for consideration, there also seems to have been an unwillingness by both parties to correctly address in a timely fashion processes necessary to bring all the matters properly before the Tribunal.

22. On examination of the documentation, it is clear to the Tribunal that the Applicant wished to pursue a claim for wage expenses associated with attending medical appointments on 12 October 1999 (Dr Wearne) and 11 December 1995 (Dr Downes) and for compensation in relation to gardening expenses at his rental properties. In this regard the Tribunal observed that the claim for loss of income was initially treated as a reasonable expense claim under section 57 of the Act and that the reconsideration decision of 12 July 2000 allows for these matters to be heard by the Tribunal.

23. In relation to the Applicant's claim for ongoing weekly incapacity payments, this appears to have arisen from the Applicant's claim for compensation for loss incurred in attending medical appointments on 16 August 2000, 18 October 2000, 21 February 2001, and 22 February 2001. These claims were accepted by the Respondent on 15 December 2000 and 15 March 2001, with the Respondent seemingly calculating the amount of compensation pursuant to section 20 of the Act. Despite further and continual efforts by the Applicant to lodge a claim for weekly compensation payments, and to have that claim addressed by the Respondent, the Respondent issued an own motion reconsideration determination on 17 May 2001. In this determination, the Respondent, in relying on its decision of 13 March 1995, revoked the determinations of 15 December 2000 and 15 March 2001, on the basis that the Applicant had no entitlement under section 20 of the Act.

24.     The Tribunal notes the continual episodic interchanges of correspondence between the parties subsequent to this determination. In its opinion, the extension of time granted by the Tribunal on 7 September 2001 relates to the own reconsideration decision of 17 May 2001. While the issue of four days compensation to attend medical appointments had been subject to a process of primary determination, it is difficult for the Tribunal to point to material which would allow it to conclude that this decision dealt with anything more than it purports to do on the face of the record. The Tribunal does note, however, that the determination of 17 May 2001 refers to an earlier decision of 13 March 1995 which clearly deals with issues pertaining to incapacity payments.

25.     As a consequence, the Tribunal concludes that at this point in the proceeding the following matters are properly before the Tribunal :

·     the reconsideration decision of 12 July 2000 relating to the quantum of compensation payable for attending a medical examination on 12 October 1999 and the issue of entitlement to compensation in relation to gardening expenses at the Applicant's rental properties;

·     the reconsideration decision of 12 February 2002 concerning the issue of further compensation for an increase in permanent impairment from 10 per cent to 20 per cent;

· the reconsideration decision of 17 May 2001 concerning the issue of compensation for expense by way of a loss of earnings for attending medical appointments pursuant to section 57, with loss of earnings being calculated by reference to section 20 and actual compensation payable with reference to section 19 of the Act. It is noted that the reconsideration decision referred to the reconsideration decision of 13 March 1995 which varied an earlier determination of 17 September 1993 by granting compensation for permanent impairment of 10 per cent pursuant to section 25 and 27 of the Act and deeming the Applicant to be able to earn, in suitable employment, an amount equal to his pre injury earnings pursuant to section 19(4a) of the Act, the resultant entitlement under section 19 of the Act being nil.

26. In noting the above the Tribunal is able to appreciate the reasoning that the loss of earnings associated with attending a medical appointment by a self employed individual should be treated as an expense pursuant to section 57 of the Act, with the loss of earnings being a calculated actual loss. The Tribunal notes that it has been deemed by the Respondent that the Applicant is able to earn, in suitable employment, an amount equal to his pre injury employment. The result of this is that if calculated in accordance with section 19 of the Act the resultant entitlement under the Act will always be nil in circumstances such as this. It would appear to the Tribunal that in circumstances where there is an actual loss of earnings, regardless of whether there is entitlement to compensation under ss.19 or 20, the quantum of the loss would as a minimum equate to an applicant’s pre-retirement employment daily rate less daily pension benefit. However, where an applicant’s income earning activity is confined to deriving passive income from rental properties, s.57 entitlement would be limited to reimbursement of expenses the applicant incurs in acquiring services required in carrying on the income earning activity that the applicant would have performed had the applicant not been attending a medical examination.

27.     The Tribunal continues to express a concern that the reconsideration determination of own motion of 17 May 2001 could be narrowly construed as limited only to the issue of compensation for earnings lost in attending a medical appointment (section 57 issue), and failing to encompass or address the issue of weekly incapacity payments. 

28.     The Tribunal, however, following further discussion between Counsel concerning the issue of weekly incapacity payments, received from the Applicant an application for an extension of time to allow the Applicant to make an application for review of the determinations of 13 March 1995 and 17 May 2001. The Respondent concurred and consented to the application for extension of time and the Tribunal made an order extending time until 29 April 2002 for the Applicant to apply for review by the Tribunal of the reviewable decisions dated 13 March 1995 and 17 May 2001 to the extent that such order is necessary.

29.     As a consequence of the Tribunal's order the issue of weekly compensation payments is properly before the Tribunal, the issue having been considered in the reconsideration decision of 13 March 1995. 

applicant's evidence

Examination in chief

30. Mr Duffy stated that he was born on 21 December 1948 and commenced working as a schoolteacher in the ACT with the NSW Teaching Service in 1969. He transferred to the Commonwealth Teaching Service in 1972 and completed a Bachelor of Arts degree in 1974.

31.     Mr Duffy informed the Tribunal that on 22 July 1974 while teaching at Narrabundah Primary School he suffered an injury to his back, when while teaching students to shoot baskets in basketball, he bent, twisted and somehow put his back out. Mr Duffy stated that he was off work for a few days, visited his general practitioner, Dr Marinos, and received analgesics and anti–inflammatories, as well as attending physiotherapy. Mr Duffy indicated that he saw Dr Marinos on some 14 or 15 occasions between 1974 and 1989. Some occasions involved compensable days off work. These included episodes of back pain associated with moving furniture (1987), setting up gym equipment (1988), setting up an open day display (1988), moving materials during craft lessons, and teaching softball batting technique.

32.     Mr Duffy told the Tribunal that he had episodes of back pain prior to the incident in 1974, but that his back had never locked up before. The Applicant indicated that he experienced an increase in back pain during the years 1986 to 1989. He attended Dr Rees in Sydney in 1987. A bilateral rhizolysis was performed on several occasions. Mr Duffy indicated that between episodes of back pain there was some restriction of back movement but it tended to resolve. In 1988 the Applicant saw Dr Chandran, a Consultant Neurosurgeon, and he was treated for facet joint problems with facet joint blocks at L3/4, 4/5 and L5/S1 with little effect. By the beginning of 1990, the Applicant stated that he was experiencing intermittent back pain once or twice a week and some restriction of his back movements.

33.     Mr Duffy stated that on 4 June 1990 he suffered an injury to his back when he twisted his back while lifting three or four chairs off a stack of chairs. He stated that he experienced a severe pain in his lower back above and below the belt line. He stated that he then stepped backwards, overbalanced and fell on his behind. He stated he was helped to the staffroom, where he lay down, prior to attending at Dr Marinos' rooms an hour later. Mr Duffy considered the pain in his back was more severe than he had ever experienced. The Applicant told the Tribunal that he was seen by the locum, Dr Vett, at Dr Marinos' rooms and he was treated with digesic, valium and told to continue with his anti-inflammatory medication. He was off work for a week, during which time he undertook gentle mobilising exercises in a heated pool. He was reviewed by Dr Marinos on the Friday prior to his return to work. On return to work the Applicant continued to experience a sore back, his duties were modified and at times he was able to lie on a couch. The Applicant indicated that his back pain slowly improved over time, but he noticed the development of left leg pain some two months after the incident of 4 June 1990.

34.     There was a further incident on 5 November 1990. Mr Duffy indicated that while sitting in a chair and bending down to lift files from a filing cabinet, he experienced a back twinge, then severe pain and muscle spasm. Mr Duffy went up to the office and made arrangements to see Dr Marinos later in the day. The Applicant stated that Dr Marinos did not change his treatment regime but referred him to Dr Andrews, a Consultant Neurologist.

35.     Mr Duffy informed the Tribunal that he saw Dr Andrews in early 1991, a CT scan having been performed in late November 1990. He was then referred by Dr Andrews to Dr Chandran. Dr Chandran informed the Applicant that his continuing symptoms of chronic back pain and left buttock pain were derived from facet joint problems.

36.     The Applicant described another incident which occurred in October 1991. Following a strenuous day at school he experienced severe back pain and felt numbness and weakness in his left leg on the next day. On the Monday the Applicant saw Dr Marinos who referred him to Dr Chandran who ordered a further CT scan. Mr Duffy stated that at this time he was somewhat dissatisfied with Dr Marinos and he visited a Dr Pryor who referred him to Dr Yeo for a second opinion. Following consultation and further x-rays ordered by Dr Yeo, the Applicant decided that he would proceed to surgery by Dr Chandran.

37.     Mr Duffy told the Tribunal that he underwent an operation on 9 April 1992 and that postoperatively he continued to experience chronic back pain and left leg pain. Dr Chandran performed another facet block some two months after surgery. Despite this, Mr Duffy stated that his back and leg symptoms continued to worsen over the ensuing months in 1992 during which he was experiencing pain on a daily basis. Mr Duffy indicated that he had returned to normal duties, but had to modify class and personal activities to ensure classroom tasks were completed.

38.     In November 1992 Mr Duffy was seen by a Commonwealth Medical Officer who, with Drs Chandran and Pryor, supported redeployment and the development of a case management plan. As a result Mr Duffy was appointed to a schools office project in March 1993, which essentially involved clerical work. This included visiting schools, liaising with school staff to ascertain their capital works needs, both major and minor, and compiling a report which was then typed up and collated before the end of the financial year. During this period Mr Duffy undertook activities associated with his case management plan but most of his time was spent at the office. He experienced aggravation of his back symptoms when sitting at a desk. Overall Mr Duffy indicated that during this period he was experiencing more chronic pain in his back and leg. Mr Duffy indicated that he was absent from work because of his back and leg problems for some 26 days over a period of five months, and he considered that he did not have much of a future in such activities. His position was not permanent, meaning that he would have to apply for a permanent clerical position at a lower salary grade, his compensation had been ceased retrospectively, he lacked particular skills, and he had exhausted sick leave entitlements.

39.     The Applicant considered an offer of redundancy in late June 1993 in the light of those circumstances. This gave him the opportunity to invest his lump sum redundancy payment, do some tutoring on the North Coast, and receive an indexed pension. He accepted redundancy in July 1993.

40.     In September 1993 there was a determination which ceased his incapacity payments. By this stage the Applicant had returned to Lismore, where he stayed initially with his sister and, in return, conducted some part time tutoring over a three hour period. This, however, aggravated his back, and as a consequence he was of the view that tutoring was not a long term viable option.

41.     The Applicant indicated that he had acquired about four rental properties in the Lismore area well prior to 1991, and others with his mother, brother and sister. Such properties were either single or multiple type occupancies. The Applicant had previously performed the maintenance of these dwellings when on holidays from Canberra, as far as he was able. In view of his difficulties experienced while tutoring, Mr Duffy stated that he decided to take a more active role in the management of the properties. His goal was that over time, and at his own pace, he would be able to renovate and do handyman type activities at the property, as well as accompanying the agents during inspections. By pacing his activities Mr Duffy commented that by the latter half of 1993 his back was a bit better and that during 1994 and 1995, while undertaking such activities, as well as delivering census forms, his back "wasn't too bad". He did, however, notice increasing difficulty with bending, sitting and standing.

42.     In 1995 the Applicant stated that he was awarded a 10 per cent permanent impairment payment. After 1995 he was walking daily, had increased his exercise regime to 20-25 minutes daily, was using Feldene as an anti inflammatory routinely, and was assisted by both physiotherapy and massage.

43.     By 1997, the Applicant was having increasing trouble with his leg, both from pain and foot drop at times, and more chronic back pain. Mr Duffy stated that he saw two neurosurgeons, Dr Sears and Dr Tan in 1997, who both suggested a conservative approach and in 1997 and 1998 he saw Dr Yeo, who was of a similar view as regards further operative intervention.

44.     Mr Duffy was asked to compare his current symptomatology with that in 1995. In response, the Applicant considered that he was not able to bend as much, could not sit for very long periods, gets more leg pain, has episodes of numbness down his leg, and experiences daily back pain which is both fairly constant and moderately severe (6-8 out of 10). Mr Duffy stated that he is now able to walk for 30-40 minutes and after that he starts to stiffen up. He walks every day with the exception of Sunday. Mr Duffy indicated that he has a range of special chairs in the house, is able to do housework and shopping at his pace, and carry shopping bags provided they are not too heavy. Mr Duffy indicated that he continues to take analgesics and Valium occasionally, and that he has started to use a lumbar corset and shoe inserts which have been helpful in limiting numbness, cramps and pain in the big toe area. He also uses a Tens machine.

45.     The Applicant expressed the opinion that currently he would be unable to undertake teaching activities because of both his physical disabilities and an increasing irritability and shortness associated with his sore back. Further Mr Duffy believed that he would be unable to work full time in an office capacity, nor could he think of any work activity he could undertake on a part time basis, even with training.

Cross Examination

46.     In response to questions asked in cross examination, Mr Duffy detailed the following responses:

·     He confirmed that he had experienced twinges in his back since his early twenties prior to the basketball episode in 1974, but that his back never locked up and there were no episodes of severe back pain;

·     He attended Canberra physiotherapy sometime during the 1980's or 1990’s for the first time, and concurred that it was possible that he had back problems when lifting a bag, but as it was 28 years ago, he is unable to remember;

·     Between 1974 and 1990 he had 26 days off work for which he was paid compensation for his back, but for the remainder of that time he was mostly able to continue working. There were also incidents between 1974 and 1990 in his private home life which caused severe back pain. These included activities associated with bending and gardening which would cause severe back pain and stiffening, as well as episodes associated with sitting for long periods, and turning over in bed and locking up after being in bed for four or five hours;

·     In November 1988, he told Dr Chandran that his pain was becoming more frequent, that it was associated with sitting, sneezing, bending, and turning over in bed; that the symptomology was intermittent with periods where he would be pain free; and that long car trips with poor seating caused pain;

·     In April 1988 he had been in less pain, able to sit comfortably and turn over in bed. In June 1988 there was an incident where he was kneeling and bending at school and he was in bed for three days.

·     In August 1988 his back locked up while gardening and he was off work for a week before it settled down. This was followed later by difficulties arising from turning around in a confined space, which eventually got to a point where he was able to get around during the day, but after four to five hours in bed his back would lock up;

·     By 1988 he undertook much less gardening than in 1978, because of a change of dwelling. Despite this, there were a number of incidents where gardening caused him back pain between 1974 and 1990;

·     In Christmas 1980/81, he fell off a motor bike, and was assessed and treated at hospital for a broken collar bone and scapula;

·     In his notification of accident on 12 June 1990 he did not mention anything about a fall. Similarly in his claim form of 12 June 1990 he did not mention the issue of falling onto his buttocks. As a consequence of the accident he was off work for the remainder of the week. He considered this event was of more significance and different to the gardening incident in August 1988;

·     The document of 21 November 1990 initiated by Ms Conroy of Canberra physiotherapy was altered by Mr Duffy to correct a typing error where three and half months should have been five and half months since experiencing a fall at work. Despite a further entry on 13 November 1990 in the same records by the same person that Mr Duffy had fallen on to his buttocks some three months earlier and had been off work for one week, Mr Duffy denied that he had had a fall in August 1990, but admitted that if his leave record so indicated, he would have taken two days off in August 1990 for low back strain. Mr Duffy further affirmed that the fall had occurred in June 1990;

·     Accounts for consultations and operative procedures undertaken by Dr Chandran prior to 1990 were paid by Comcare as a consequence of the determination in 1974, with the triggering incident in 1974 being "the shooting baskets" demonstration at school, albeit not a specific matter mentioned to Dr Chandran by the Applicant, nor detailed in his claim to Comcare at that time;

·     He had given Dr McGill a type-written history in which he had described his leg symptoms as not coming on until some months after the June 1990 incident, with foot drop and numbness and weakness in the leg in October 1991, some 10 days after receiving a facet block from Dr Chadran;

·     He did not attend Dr Marinos between 8 June 1990 and November 1990. The incident in November 1990 was not disclosed in the written history to Dr McGill. Symptoms after that incident settled down to the level prior to that incident enabling his return to work the following week;

·     Dr Marinos' records do not detail any history of a fall occurring on 4 June 1990, although he thought he had told Dr Vett at that time. Mr Duffy denied that the history of a fall was an elaboration to explain clinical progressions that he found out about later, particularly when he was made aware of spinal fractures some 18 months later during his assessment by Dr Yeo. Further, in Mr Duffy’s opinion Dr Marinos' report on his record on 8 June 1990 that "he appears to be settling and would like to undertake a swimming program" is consistent with a finding that swimming was helpful in mobilising and improving function; 

·     He does not exaggerate restrictions imposed by his back condition;

·     Looking after his rental properties became a full time occupation. His taxation returns indicated income and expenditure associated with the rental properties, including claims for car expenses (20,000km per year) and depreciation of equipment purchased by him for use on the property by either himself or others;

·     He has used a steel water pressure cleaner and Makita drop saw, Dirmax compressor, ride on mower (with help from his brother), whipper snipper (very occasionally as it hurts his back), a blower, spot sprayer, chain saw, and trailer to his motor vehicle.

·     He might not have informed Dr Yeo of the full extent of his activities in relation to the properties. Despite this, the amount of work undertaken in relation to the property was less over the last two years, as he sold one block of six units in November 2000, and he believed he was doing less physical work;

·     In April 2000 he was able to do general maintenance work at the properties. This included electrical work, plumbing work, minor painting, carpentry, cleaning of buildings (common areas and grounds), unblocking gutters, pest and weed control, and some gardening (with help). General ground maintenance was undertaken by contractors, or by Mr Duffy with assistance from his brother and/or lady friend. The remainder of the activities were done at his pace and with particular strategies to avoid lifting and bending on most occasions, with Mr Duffy agreeing that some of his activities undertaken when performing ground maintenance tasks were contrary to past and present medical advice;

·     His pre-redundancy duties when working on the school project involved travelling, liaison, typing, formatting documents, photocopying and filing. All of this caused him some difficulty, which in turn led to him accepting redundancy. Mr Duffy did not believe he would be able to work in administrative employment with his restrictions, as most positions involve long periods of sitting and computer typing skills, with his skills in the latter attribute negligible;

·     It is not his intention to advocate to doctors his own psychological illness, and he did not exaggerate his symptoms and restrictions to doctors;

·     The average time spent per week looking after his property was five hours and his back condition would prevent him from retraining.

Re-examination

47.     In response to questions asked in re-examination, Mr Duffy made the following comments:

·     He travelled approximately 8-44km (one way) to his various properties depending on which property he was travelling to;

·     The reason why he did not initially mention the fall on 4 June 1990 incident was that he attributed the injury to lifting and twisting his back. He first mentioned the fall to Dr Andrews in January 1991;

·     He felt that the effects of the 1990 incident was worse and lasted longer than the effects of the 1988 gardening incident;

·     His left leg pain commenced one month after the 1990 incident; that he did not further attend his general practitioner until November 1990, as he was undertaking exercise and taking medication; and he first learnt about his crush fractures when consulting Dr Yeo in February 1992.

medical evidence

(a) radiological evidence

48.     A plain X-ray of the lumbo-sacral spine taken on 3 January 1985 was reported as:

"Lumbar degenerative spondylosis including L2-3 and L3-4 disc degeneration - note disc volume loss at these levels, osseous secondary degenerative changes, a little abnormal vertebral body mobility at L3-4." (T13)

49.     A CT scan of the lumbo-sacral spine taken on 26 March 1987 was reported as:

"L2/3 level - there was posterior bulging of the disc and narrow canal.

L3/4 level - there was posterior bulging of the disc and a narrow canal. There was a small collection of gas in the spinal canal on the right side anteriorly probably in a fragment of extruded degenerate disc...

L4/5 level - no abnormality seen."(T14,)

50.     A further CT scan examination of the lumbo-sacral spine was undertaken on 21 November 1990 and is reported upon by Dr Hoy a Consultant Radiologist as follows:

"Scans have been performed from L2 to S1, a mild rotational lumbar scoliosis convex to the right is associated with osteophytes and disc narrowing at the L2/3 and L3/4 levels.

A mild transverse disc bulge is present at L2/3 and is causing mild transverse compression of the dural sac (scan 9). There is the suggestion of an anterior epidural mass lying behind the body of L3, this is probably due to venous structures rather than disc material (scans 10-13).

Mild to moderate transverse bulge of the L3/4 disc is causing transverse compression of the dural sac and narrowing of the right lateral recess (scans 20-22).

The L4/5 and L5/S1 disc levels appear normal. No bone destruction is seen.

Combined lumbar myelography and CT may be helpful for further assessment." (T65) 

51.     A CT scan examination of the lumbo-sacral spine was also undertaken on 29 October 1991. This scan was performed through the three lower intervertebral discs and reported on by Dr O'Neil in the following terms (T61):

"Gas was seen within a degenerate L3/4 disc which showed a diffuse posterior bulge. This was a little more prominent on the right. Osteoarthrosis was affecting the apophyseal joints.

At L4/5 there was a left lateral disc prolapse. Disc material was impinging on the L4 nerve root in and lateral to the neuroforamen. Again, there was osteoarthrosis affecting the apophyseal joints.

Osteoarthrosis was also affecting the L5/S1 apophyseal joints. No other abnormality was demonstrated at this level." (T61)

52.     A plain X-ray of the lumbar spine was undertaken on 23 January 1992. This was reported upon by Dr Macintosh:

"There is a crush wedge compression of the upper border of T12. There is degenerative disc change at virtually all levels in the lumbar spine with loss of disc height and marginal osteophytes and degenerative changes along the vertebral end plates. There is only a limited amount of flexion and extension." (T91)

53.     On 25 February 1992 an MRI scan examination was undertaken and reported on in the following terms by Dr Galloway:

"T1 and first and second echo T2 weighted sagittal images have been performed. In addition T1 weighted axial images have been performed through the last three disc spaces and also through the region of the thoracolumbar junction.

Degenerative changes are noted at all lumbar levels with the exception of L5-S1.

At the L3-4 level there is loss of disc height and uniform loss of signal. There is disc herniation posteriorly on the right which impresses the thecal sac and obliterates the epidural fat compressing the right L4 nerve root. There are associated reactive changes in the vertebral endplates of L3 and L4. On the previous CT examination the epidural fat is not clearly seen on either side and this makes it very difficult to exclude focal disc protrusion. The MR more clearly shows asymmetry consistent with a focal disc protrusion.

At the L4-5 level there is less marked loss of disc height. There is uniform loss of signal from the disc and a small anullar disc bulge is noted. The epidural fat planes on the right are well preserved. Comparison with the previous CT examination shows soft tissue density laterally in the nerve root foramen on the left. On the MR there is asymmetry of the fat in the foramen and the sagittal views are consistent with a far lateral disc protrusion.

At the L5-S1 level the disc height and signal intensity is preserved. There is a small extension of high signal posteriorly consistent with a radial tear of the annulus. There is no evidence of a focal disc protrusion.

There is wedging of the vertebral bodies of T12 and L2 with irregularity of their superior endplates and evidence of intravertebral disc herniation. The findings are consistent with previous trauma.

Conclusion

Multiple levels of disc degenerative change with a small right sided disc protrusion at L3-4. There is also a far left lateral disc protrusion at L4-5." (T92)

54.     On 2 March 1993 a further MRI examination was performed on the lumbo-sacral spine, with Dr Galloway concluding there were:

"Post operative changes at the L4/5 level with enhancing scar tissue which encases the descending L5 nerve root on the left." (T123)

A thoraco-lumbar CT myelogram study was undertaken on 10 December 1996 (T230). This revealed mild to moderate changes in the facet joints T11-12 through L5-S1 with thickening of the ligamenta flava. It also reported ”mild diffuse disc bulging without focal disc herniation” at L3-4. At the L4-5 level there was:

Left postero-lateral disc protrusion which significant indents the left side of the anterior margin of the thecal sac and results in posterior displacement of the left L5 nerve roots and narrowing of the left lateral recess

55.     On 2 October 1998, following a further MRI examination of the lumbar spine, Dr Macintosh reported that:

"There is posterior bulging at the L1/2 L2/3 and to a lesser degree L3/4 and then again more marked at L4/5. At the L4/5 level there is significant disc protrusion and bulging extending out into the left lateral recess area. There is some protrusion on the right side at the L3/4 level.

There is marked degenerative changes in the apophyseal joints but there are particularly marked at the L4/5 level where there has been a laminectomy on the left side. There is asymmetry of the canal. There is significant posterior bulging of the disc which extends to the left lateral recess and causes a significant degree of left intervertebral foraminal stenosis and a degree of overall canal stenosis with compression of the thecal sac on this left side. At the L2/3 level there is also significant degenerative change in the apophyseal joints particularly on the left which is causing asymmetry of the canal and causing minor compression of the thecal sac although the exit foramina appear clear. At this L2/3 level the generalised degenerative changes are causing an overall reduction in size of the spinal canal. At the L3/4 level the central right sided disc protrusion on the sagittal scans can also be seen causing minor asymmetry of the lateral recess area in the right side causing reduction in size of the canal on the right side. The appearances are very similar to those seen on the CT Myelogram in 1996. There may be a slight increase in reduction in size of the left intervertebral foramina at the L4/5 level as compared to that previous study." (T262)

56.     In a lumbar myelogram examination dated 21 February 2001, Dr Kos made the following comments:

"The left sided L2/3 disc protrusion would appear to be significant but this should result in left L3 sciatic symptoms not L5. The remaining myelographic features appear to be chronic and degenerative in nature." (2T26)

(b) clinical evidence

(i) dr marinos, general practitioner

57.     Dr Marinos issued a medical certificate on 27 July 1974 indicating that the Applicant was unfit for work on 23 and 24 July 1974 (T3). On 17 May 1988 Dr Marinos indicated in a letter that he had referred the Applicant to Dr Rees in Sydney and that Dr Rees had performed rhysolysis treatment at various levels of his lumbar spine (T19). On 25 July 1988 Dr Marinos certified the Applicant is unfit for work from 25 July 1988 to 29 July 1988 (T20), because of low back pain and again from 29 May 1989 to 30 May 1989 (T29). At this time it was recommended that the Applicant should avoid prolonged bending (T30).

58.     On 4 June 1990 Dr Vett (locum for Dr Marinos) certified the Applicant unfit for work from 4 June to 8 June 1990 on account of low back pain exacerbated after lifting chairs (T54). On 8 June 1990 Dr Marinos confirmed that the incident involved lifting chairs at work and noted that the Applicant "appears to be settling and would like to undertake a swimming program" (T55).

59.     On 7 November 1990 Dr Marinos certified the Applicant unfit for work until 9 November 1990, because of low back pain (T63). In a letter to Comcare, dated 4 December 1990, he stated that he had referred the Applicant to a physiotherapist, Mr Cousins, and to a neurologist, Dr Andrews (T74).

(ii) dr pryor, general practitioner

60.     On 2 March 1992 Dr Pryor indicated in a letter that he had seen the Applicant on several occasions in relation to his continued lower back pain and left leg sciatica. He felt that these symptoms indicated vertebral trauma and raised the possibility of surgery (T93). He referred the Applicant to Dr Yeo.

61.     On 22 May 1992 Dr Pryor advised Comcare that Mr Duffy suffered from an underlying back disease, which is susceptible to further exacerbation (T100). He stated:

"In my opinion, his current condition is attributable to his underlying condition which has been first apparent as far back as 1974 and has been aggravated on a number of occasions since". (T100)

(iii) dr chandran, neurosurgeon

62.     In a report dated 28 November 1989 (T39), Dr Chandran detailed a history of the Applicant's back pain, which had been intermittent since 1974. He noted that the Applicant had suffered further attacks of back pain associated with activities both at work and away from work. The pain was noted as being in the back and extending into the buttocks with a burning sensation. A fall from a motor cycle in 1981 is recorded with the Applicant stated as having "had a bruised left hip".

63.     Dr Chandran considered that the Applicant’s history of having developed symptoms in his back insidiously in 1974, and the fact that he had experienced intermittent attacks of pain associated with both work and non work activities, suggested that the Applicant's symptoms were in keeping with facet joint degeneration. Following radiofrequency facet denervation of the L5/S1 area in April 1989, the pain became more localised to the left. Dr Chandran was unable to find any evidence of any factor that caused the degeneration or the onset of back pain from his work.  Dr Chandran did note that "there had been episodes of locking of the back or aggravation of pain at work as much as activities such as gardening etc." (T39).

64.     In a further report dated 1 June 1990, Dr Chandran indicated that his opinion of 28 November 1989 had been formed as a consequence of the history he had been given. He was later provided with different information, which included the 1974 basketball incident, the Applicant's activities at work and that the fall from the motor cycle involved a fractured collar bone. Despite this, Dr Chandran concluded that repeated bending could lead to recurrent symptoms in a back which has underlying instability or degeneration (T53).

65.     In a memo dated 3 September 1992 Dr Chandran indicated that the Applicant had undergone a spinal operation and that he had underlying problems in his back at multiple levels. Mr Chandran suggested he be redeployed to a situation where he does not have to bend repeatedly or sit in one position for a long time (T101).

(iv) dr andrews, neurologist

66.     In a memo dated 28 November 1990, Dr Andrews indicated that he had seen the Applicant regarding his lumbar spine and had ordered a CT scan (T69). In a letter to the Applicant on 8 February 1991, Dr Andrews detailed his understanding of the Applicant's history including a fall associated with the accident in June 1990 and a further minor aggravation in November 1990 (T80). Dr Andrews also noted that the major problem seemed to be spinal canal stenosis at L2/3 and L3/4.

67.     In a report to Dr Pryor dated 16 February 1993, Dr Andrews detailed the following:

"In September 1991 he awoke with back pain and pain down the left leg. It radiated all the way down to the foot onto the dorsum of the foot strongly suggesting a left L5 nerve root lesion. Subsequent CT scanning, apart from showing the earlier spinal canal stenosis, showed a fairly large disc protrusion at L4-5, postero laterally on the left hand side. MRI scanning was also performed which confirmed that diagnosis." (T120)

68.     In the same report Dr Andrews noted that following an operation by Dr Chandran on 9 April 1992, the Applicant had experienced fairly good relief of his sciatic pain for two months, but that after this the back pain and left sided nerve root symptoms re-occurred. Dr Andrews considered that L4-5 disc lesion had developed since his referral of the Applicant to Dr Chandran in February 1991 and that, therefore, it was not associated with either the incident in June 1990 or November 1990. This opinion was based on the fact that the L4-5 disc prolapse was not in evidence in the scans of November 1990 nor March 1987 (T120).

69.     In a report to Dr Pryor dated 5 March 1993, Dr Andrews, having reviewed the latest MRI Scan, considered that the Applicant's re-occurrence of back pain and left sciatica was due to epidural scarring at L4/5 (T125). In a report to Comcare dated 12 March 1993, Dr Andrews confirmed that the Applicant's outcome from surgery has not been good due to scarring at the operation site (T129). Dr Andrews confirmed his view that the June 1990 and the November 1990 incidents did not have anything to do with the subsequent development of the disc prolapse at L4/5, and that the Applicant's pre-existing condition which predated the two incidents was not related to his present problem.

(v) dr harvey, general practitioner

70.     Dr Harvey has made many reports on various issues to Comcare since late 1995 onwards. In a report dated 1 February 2001 to the Applicant's solicitors, Dr Harvey detailed aspects of the Applicant's worsening low back and left leg symptoms stating that the consequential effect thereof included the following:

"1. He is unable to stand in one place, for any longer than 10-15 minutes. He finds he needs to keep constantly moving with regular changes of position.

2. Bending forward for longer than 5 minutes, or repetitive forward bending, aggravates his back and leg symptoms.

3. He is unable to sit for longer than 10 minutes at one time.

4. He is unable to perform repetitive manual bending - lifting tasks without significant discomfort.

…

The effects of these ongoing limitations (physically) and the ongoing chronic pain syndrome (with its psychological effects), will have a direct influence on his employability. What he was able to do in 1995 now finds very difficult. There has been a noted deterioration in his physical capacity over that time. He finds it difficult to socialise, to go out - as he is unable to sit still for longer than 10 minutes, cannot sleep on different beds, is unable to drive for long, needs his own chair and cannot stand for long. This has caused increasing emotional and psychological problems, leading to a general 'withdrawal' from society.

It would be difficult to find suitable employment, due to these same limitations." (Exhibit A3)

71.     In a further report dated 4 March 2002 (Exhibit A3) Dr Harvey detailed a summary of ongoing symptomology, which included:

·ongoing inability to sit/stand for long periods (5-10 minutes) without onset of disabling pain, relief by analgesics and lying down. A lumbar corset had been recommended;

·gradual increase in pain in both thighs, left greater than right;

·increasing periods of left foot drop/leg weakness and muscle soreness;

·symptoms of autonomic nervous system overactivity;

·increasing use of medications and use of a Tens machine;

·psychological effects associated with chronic pain, which include feelings of depression, irritability and helplessness.

(vi) dr yeo, consultant surgeon and rehabilitatist

72.     Dr Yeo, in his report dated 22 April 1994 (T147), stated that he had first seen Mr Duffy in January 1992. Mr Duffy had described a long standing history of low back pain since 1974 and, in June 1990, a history of falling heavily onto his lower spine while working, resulting in a week off work. He had experienced no accompanying altered sensation and/or pain in the lower limbs. In September 1991 Dr Yeo details Mr Duffy as recalling:

waking with a severe low back pain, but without radiation into the left lower limb.

…

He also complained of numbness in the left foot and leg since September 1991.

73.     Upon examination, Dr Yeo made the following observations (T147):

In summary, the compression wedge fractures previously identified at T12/L1 (CT scan February 1992) are consistent with the injury as described on the 4.6.90.

While having pre-existing degenerative changes identified in the lumbar spine there is no evidence that these degenerative changes have been significantly exacerbated by the fall in June 1990.

Treatment including surgery has not altered this patient's pain syndrome and in retrospect I would not have recommended surgery for treatment of the incident which occurred on the 4.6.90.

The disc prolapse identified at the L4/5 level was previously present in my opinion, before the 4.6.90 and is not now contributing to this patient's persistent history of back pain or pain in the left lower limb.

The fall on the 4.6.90 produced damage to muscles and ligaments in the region of the lumbar spine as well as damage to the bones which are now healed and stable.

His present symptoms are predominantly associated with the injuries that occurred at the time of his fall on the 4.6.90 although the clinical signs (loss of sensation in the left L5 dermatome) are the result of the operative procedure which was recommended by another consultant after my consultation on the 23.1.92.

Mr Duffy's previous employment teaching primary aged school children over a period of twenty five years would not in my opinion have contributed significantly or caused permanent aggravation or exacerbation to his pre-existing lower back condition.

In summary, Mr Duffy's persistent disability with susceptibility to recurrent back pain is the result of:

1. the fall which occurred on the 4.6.90 and

2. a pre-existing degenerative condition.

Sixty percent of his symptoms are the direct result of his work related fall and forty percent due to a pre-existing degenerative condition.

74.     In a report dated 16 December 1996 (T231), Dr Yeo made further comments to Dr Harvey concerning the Applicant's persistent pain at the L4/5 level. Further evaluation by Dr Sears was suggested to see whether exploration and decompression was warranted.

75.     In a report dated 23 February 2001 (Exhibit A4) and as corrected by his report dated 17 April 2001 (Exhibit A4), Dr Yeo detailed the Applicant's current circumstances as including low back pain on a daily basis, made worse by bending, and limitation in his ability to sit or stand for more than 30 minutes.  Dr Yeo also commented that the Applicant was prone to depression because of his persistent low back pain. He confirmed that the Applicant’s pain syndrome was a result of extensive scar tissue within and without the lumbar spinal canal associated with degenerative changes. This occurred as a result of his repetitive work related injuries and as an inevitable result of the operative procedures undertaken in 1992. Dr Yeo considered that the Applicant's permanent impairment has now risen to 20 per cent on the basis that he has lost more than half-normal range of movement.

76.     In a further report dated 14 March 2002 (Exhibit A4), Dr Yeo stated that:

"the fall in 1990, in particular aggravated the already degenerating discs and instability that was in the lumbar spine as a result of the progressive degenerative disease, which had occurred since 1974."

Dr Yeo noted that the Applicant was able to participate in limited gardening activities, drive for one and a half hours, shop, undertake some domestic activities, and, while avoiding repetitive bending or heavy lifting, continue to undertake his part time employment as a property manager for up to three hours per week. Dr Yeo further commented on the Applicant's complaint of increasing depression and irritability associated with his increasing pain over time.

77.     Dr Yeo summarised his opinion as follows:

"In summary, Mr Duffy appears to have had, on the balance of probabilities, pre-existing degenerative changes in the lumbar spine which have been exaggerated by the work related incidents which occurred between 1974 and 1990. These injuries which include recurrent lifting and a heavy fall resulting in fractures have accelerated the degenerative changes and exacerbated the original degenerative condition, which up until 1974 was asymptomatic. The perineural fibrosis which has been reported in the more recent x-rays and is contributing to the patient's symptoms is the direct result of the operative procedure which was necessary to relieve the prolapse of the L4/5 intervertebral disc. 

Mr Duffy's long history of chronic back pain and leg pain has resulted in his depression, introspection and irritability. These symptoms are the direct result of his regional chronic pain syndrome which results from underlying pathology which has progressed to produce serious disability as a result of work related injury."

78.     In oral evidence before the Tribunal Dr Yeo confirmed his identification of a compression fracture at the upper border of T12 as a consequence of the radiology of 23 January 1992. This also demonstrated degenerative disc changes virtually at all levels of the lumbar spine. Dr Yeo stated that the Applicant had suffered a significant injury to the vertebral column and surrounding muscles and ligaments at the time of the work related fall in June 1990, although he did not suffer any spinal cord or emerging nerve root damage at that time.

79.     Dr Yeo stated that it would require a significant impact injury to the vertebral column to achieve compression fractures but that such compression fractures would contribute little if anything to the ongoing pain syndrome. In Dr Yeo's opinion the fractures, and the trauma that has produced the fractures, have produced additional symptoms because of damage to the muscles and ligaments around the fractures. These established trigger points in the scar tissue, leaving the Applicant susceptible to pain, with this susceptibility continuing over time.

80.     Dr Yeo indicated that the Applicant's continued symptomology, evolving as it has over time, coupled with depression and irritability leading to chronic pain syndrome, would prevent the Applicant from returning to work.

81.     In answer to questions in cross-examination Dr Yeo made the following comments:

·complication of depression and irritability, as a consequence of chronic pain syndrome, prevented the Applicant from working;

·as an experienced clinician he was able to make such assessments and diagnoses; the assessment arising from an assessment of the degree of loss of movement for the spine;

·the Applicant may have a degree of insight as to what complications may arise as a consequence of chronic pain;

·he has not recorded any specific non work incidents which have caused the Applicant to take time off work or caused a flare up of his condition, but he has recorded a range of activities which the Applicant avoids in the non work situation to prevent an increase in symptomology;

·twinges of back pain prior to 1974 would not lead him to think some established pathology did exist, but it is possible that degenerative spinal problems may have existed;

·he was unaware of the history recorded in the document from Canberra Physiotherapy Centre (Exhibit R5) which details the Applicant having initial back problems at age 22 years when lifting a bag, with intermittent episodes since and gradually getting worse;

·the history of a fall was significant as to the causation of the compression fractures at T12. He conceded that if the description of the incident as provided by the Applicant in his claim relating to 4 June 1990 did not include a fall, it was not the type of incident which would give rise to compression fractures. If in the event the lower limb symptoms did not occur until months later, the most likely interpretation of the incident of 4 June 1990 is a temporary aggravation;

·further, if the incident in June 1990 did not involve a fall, then on the balance of probabilities, the incident would have had only a temporary effect, although a possibility still remains that a rotational injury as experienced may cause a disc prolapse which may subsequently be revealed.

82.     In response to questions asked by the Tribunal (Dr Campbell), Dr Yeo made the following comments:

·that if a fall did cause compression fractures, the Applicant would have felt significant pain at that level of the thoraco-lumbar junction and muscle spasm would have been present;

·that the history detailed in Dr Marinos’ letter of 8 June 1990 is not consistent with the presence of recent fractures to the spine;

·that the post-trauma history of symptomology immediately after the trauma of 4 June 1990 is inconsistent with his diagnosis of the crush fractures being caused by the incident;

·that the L4/5 discectomy undertaken was not related to the compression fractures, the latter being significant in relation to the fall because of concomitant damage to the muscles alongside the lumbar spine, which became a triggering source of pain and has led to the Applicant’s present condition;

·that the Applicant's permanent impairment arose from the combination of several factors, namely;         

-     pre-existing degenerative changes

-     a certain degree of canal stenosis associated with degenerative changes

-     the surgical approach with the laminectomy

-     multiple facet blocks in 1988 and 1993

-     direct injury to the spine in 1990.

83.     In response to questions asked in re-examination Dr Yeo stated that:

·     crush fractures are an indicator of the severity of damage that might have been done to the rest of the spinal column;

·     it is possible to have a fall without compression fractures which would create the clinical scenarios Dr Yeo had outlined;

·     he did not believe Mr Duffy to be malingering;

·     the Applicant does have a capacity to do some physical work if he feels up to it.

(vii) dr b m harvey, commonwealth medical officer

84.     As a consequence of his examination of the Applicant on 16 November 1992, Dr Harvey in his report (T109) concluded:

"I recommend that a case management plan be established to facilitate Mr Duffy's redeployment".

(viii) dr carr, rheumatologist

85.     In a medico legal report dated 12 July 1994 (2T4) Dr Carr detailed a history which included a fall by the Applicant on 4 June 1990 resulting in chronic pain in the left side of his low back and the midline, aggravated by mechanical activities. The incident in November 1990 was noted, as was the Applicant’s referral to Dr Andrews because of progressive stiffness in his lower back. Dr Carr noted a history of onset of left leg symptoms in September 1991 together with intermittent symptoms of numbness and weakness in the left leg.

86.     In reviewing the radiological investigations Dr Carr stated :

"The scout views of CT scan of 20th November 1990 also demonstrate multisegmental degenerative disc disease and also clearly show up the fracture of superior endplate of T12 and some minor wedging of L2 (2T4,p10)

87.     Dr Carr then detailed the following opinion:

"Mr John Duffy has multisegmental lumbar spondylosis and left sided somatic referred pain from his lumbar spine into his left leg. He also has symptoms and signs suggesting nerve root scarring of the left L5 nerve root, as a consequence of the surgical treatment for the same condition.

My impression is that this gentleman is likely to have pre-existing degenerative disc disease which has been aggravated and accelerated by the incidents at work. I feel that his compression fractures were the result of a fall at work on 4.6.90 and this has affected T12 and L2, but these are likely to be well healed and not the source of his ongoing pain symptoms. To an extent there has been natural progression of degenerative disc disease in his back with age. His left leg symptoms came on around September 1991, probably as a consequence of this natural progression of degenerative disc disease." (2T4- 11)

88.     In a further report dated 23 August 1994 Dr Carr detailed the following opinion:

"You have also asked for me to comment on the contribution of the fall of 4^th June 1990 to any current impairment suffered by the Applicant. I thought that these compression fractures of T12 and L2 were likely to be the result of the fall at work on 4.6.90 but his physical examination did not demonstrate any tenderness over these sites and it is usual for pain from compression fractures to completely settle within about three months of injuries, hence I don't believe that they relate to his ongoing symptoms which clinically affect bilaterally mid and low lumbar as well as left buttock region. It is unlikely that fractures at a higher level relate to this level of back pain as described by the patient currently and therefore don't bear contribution to any impairment currently suffered by the Applicant." (2T5)

(ix) dr hammond, consultant orthopaedic surgeon

89.     In a medico legal report dated 12 December 1994 (2T7), Dr Hammond detailed a history of low back symptoms over ten years prior to an incident in 1974, a complaint of low back pain, and some left leg radiation with pain and numbness. The June 1990 incident was reported by Dr Hammond who noted that in moving to lift a pile of chairs the Applicant reached upwards and rotated somewhat to one side with immediate back pain resulting which was similar but more severe to the pain experienced in 1974. The pain was in the lumbo-sacral midline area but also somewhat left sided in the lower back. There was also a description of left leg pain coming on insidiously over the course of some weeks/months after the incident coupled with the sudden onset of numbness he experienced upon waking one morning. A third accident was recorded as occurring in November 1990.

90.     Dr Hammond, in examining the many radiological studies, noted “definite indenting of the upper surface of the 12^th thoracic vertebrae suggesting a wedge fracture, this not being evident in the scout films of 19 March 1987, in the scout films of 20 November 1990”.. Dr Hammond also noted that the CT scan dated 2 March 1993 clearly demonstrates the compression fractures of T12, L1 and L2.

91.     In Dr Hammond’s opinion, the Applicant has been incapacitated for work since 13 July 1993 as a result of an injury suffered in the course of his employment as opposed to constitutional degenerative conditions. Further, he assessed the Applicant as suffering a permanent impairment of 20 per cent, on account of his having a loss of half the normal range of movement.

92.     Dr Hammond summarised the causative elements of the Applicant's condition in the following manner:

"This patient suffers from degenerative changes in lumbar spine of a musculo-ligamentary nature, post-traumatic and related to the two accidents of 1990, possibly even to the happening in 1974 to some extent. The crush fractures are an indication of the degree of violence involved in his fall of June 1990 which I believe has also aggravated his degenerative changes in discs, muscles and ligaments and could have adversely affected his pre-existing spondylosis. The surgery resulting from work-related injury may have added a further element of disability with Nerve Root involvement in peri-neural Fibrosis."

(x) dr downes, orthopaedic surgeon

93.     In a report dated 11 December 1995, Dr Downes considered that the Applicant suffers from: chronic low back pain with pain referred to his left buttock; and intermittent symptoms of left sciatic nerve irritation (T189).

94.     Dr Downes considered the latter condition to be due to permanent irritation of the sciatic nerve roots, by scar tissue around those nerve roots as a result of the operation of 1992. Dr Downes believed the back pain to be due to a degenerative spondylosis of the spine.

95.     Dr Downes considered that the Applicant's problems did not arise from the injury of 4 June 1990 for the following reasons:

·     Mr Duffy has had trouble with his back throughout his lifetime as a young man and particularly from 1974 onwards;

·     Mr Duffy returned to work one week after the incident of 4 June 1990, which is most unusual in the presence of a crush fracture of an acute type;

·     that the pain experienced after the 4 June 1990 incident involved radiation to his left buttock typical of referred pain around the L4/5 - L5/S1 and not typical of a crush fracture of T12;

·     there is nothing to suggest that the incident of 4 June 1990 caused a crush fracture of T12 and in view of the recovery there is nothing to indicate it was a significant injury;

·     that the diagnosis by Dr Andrews following the CT scan of 21 November 1990, the report of which did not refer to a crush fractures at T12, was spinal stenosis which is purely related to degeneration and not to trauma;

·     that the return to work in a few days following the November incident is consistent with both episodes being trivial;

·     that the Applicant’s left foot drop and weakness commenced in September 1991, not in February 1990 as reported by Dr Hammond, and that this was consistent with a left lateral disc prolapse as demonstrated in the CT scan of 29 October 1991;

·     that the crush fractures of T12 occurred between November 1990 and October 1991;

·     that the lesion at L4/5 arose independently of any crush fracture; that this lesion was the reason for surgery and that the chronic tethering of the left sided L5 nerve roots is the consequence of the surgery.

(xi) dr wearne, consultant orthopaedic surgeon

96.     Dr Wearne, in his medico legal report dated 20 October 1999 (T276) detailed the Applicant's history to include the incidents of July 1974 and 4 June 1990. A history of the fall in June 1990 was included and it was noted that this resulted in the Applicant experiencing lower back pain and sciatic pain down his left leg. Dr Wearne records Mr Duffy as undergoing X-rays which revealed compression fractures of T12 and L1. Dr Wearne also noted that the Applicant experienced increasing numbness and weakness of the left leg during 1991.

97.     Dr Wearne considered that the appropriate diagnosis in this matter was "aggravation of degenerative changes of the lumbar spine", and that this aggravation was caused by the incident occurring on 4 June 1990, with the nature of the aggravation being evidenced by:

·Mr Duffy's modification of his lifestyle and use of regular exercise to keep himself fit, and

·An increasing need for medication and massage.

(xii) dr mcgill, consultant rheumatologist

98.     In a medical report dated 13 March 2002, (Exhibit R4), Dr McGill detailed a history of a work related basketball injury in 1974 causing the Applicant to be off work for four or five days, followed by a number of flare ups prior to 1990, usually without any apparent precipitant. Dr McGill detailed the Applicant's injury in June 1990 as falling onto his buttocks with some increased pain at that time and being off work for about one week. Dr McGill also records the Applicant as stating he experienced a new tender area near the thoraco-lumbar junction which settled after six months.

99.     Dr McGill described the Applicant as developing symptoms in his left lower limb over months, which resulted in an L4/5 laminectomy and discectomy. In the accompanying history provided by the Applicant to Dr McGill, Dr McGill noted that the increase in numbness and weakness in the left leg, associated with noticeable foot drop occurred in October 1991.

100.   Dr McGill summarised his opinion in the following terms:

This 53 year old man has widespread degenerative change in the lumbar spine. His symptoms commenced in 1974. Although when he initially reported his history to Dr Chandran, there was not thought to be any specific incident which precipitated his symptoms, he subsequently thought that demonstrating basketball technique may have been responsible. In light of the extremely widespread degenerative changes and the research which has clearly demonstrated the strongly inherited constitutional nature of lumbar disc disease … and the minor nature of the episode that may have occurred while demonstrated [sic] basketball technique in 1974 and the subsequent minor episodes which were associated with exacerbations of his back pain, I think there is no doubt that his lumbar disc disease and facet joint osteoarthritis are constitutional in aetiology.

With respect to the effect of the June 1990 episode, there is a substantial discrepancy between the description recorded in the incident report at that time and Mr Duffy's subsequent recollection of that episode. If he fell back heavily on to his buttocks then that would have had the potential to cause a significant aggravation of his degenerative back disease at that time. In that situation, I would have expected him to experience a substantial increase in symptoms over the following weeks and for him to have required medical attention at that stage. There was no documentation available today in regard to medical assessments in the weeks following the June 1990 episode. The documentation available today and the history he provided suggested that his left lower limb symptoms did not progress until months later, in which case they would have been a reflection of the underlying constitutional degenerative disease, not the June 1990 episode. From the information available to me currently, I think the June 1990 episode probably caused a temporary aggravation of symptoms but did not influence his subsequent course. If documentation recorded in the weeks following the June 1990 episode becomes available then I would like the opportunity to review that documentation to determine whether it would change my view.

…

I think he is not fit to perform primary school teaching because of the amount of bending required in that work which could be expected to increase his symptoms while performing that activity. I also accept his statement that he finds it intolerable to remain seated for prolonged periods of time. I think he is fit for work involving clerical type duties provided he has the opportunity to stand up and move around frequently. His current property managing activities are within his capacity and I think the fact that he can adjust his level of activity on any particularly day, depending on whether or not he has a flare of symptoms, is helpful in allowing him to continue that work.

…

With respect to permanent impairment, as the Comcare Guide states that if there is no work related component then the impairment rating should be nil, he does not rate impairment. If the question of causation is put aside, then he has 20% whole person impairment on the basis of loss of more than half normal range of lumbar spine movement.

101.   In oral evidence before the Tribunal, Dr McGill summarised his opinion in the following terms:

·the 1974 incident would have been sufficient to cause a temporary aggravation of the symptoms related to degenerative spinal disease;

·the 1990 episode, when the Applicant fell backwards onto his buttocks was potentially a more significant episode, for it was the sort of event that could cause a more significant aggravation of pre-existing changes. If this had been the case there would have been a history of the Applicant experiencing substantial symptoms in the period following that fall in the weeks and months thereafter;

·the description of the incident and its affects as described by the Applicant in the notification of injury of 12 June 1990 would be sufficient to cause a temporary aggravation of the symptoms, but not cause a change in the underlying pathology;

·the incident of November 1990 would have had a temporary effect on the level of symptoms experienced;

·if the incident of June 1990 did involve a fall onto his buttocks or back, there is a possibility of some permanent change as well as aggravation of the symptoms which would require some form of medical assessment and investigation;

·even if one allows for a compression fracture occurring at T12 at the time of the fall, one would have expected significant clinical symptomologly  relating to the area of T12, as opposed to the symptomology of the Applicant which related to his lower lumbar spine, which is typical of degenerative spine disease;

·the cause of lumbar disc disease is typically genetic (66-75 per cent) but may also be caused by environmental factors, including work practices, (25-33 per cent) as stated by Dr Sambrook. This does not, however, mean that 25 per cent can be nominated as arising from work/occupational factors, for there are many other variables which have to be included in the environmental factor area.

102.   In response to questions in cross-examination Dr McGill stated:

·that there is nothing in Dr Sambrook's paper that excludes the impact of specific trauma as an initiator or exacerbator of degenerative change. Similarly there is nothing in the paper that points us in that direction;

·that in the light of the evidence available to him, he could not be certain of the severity of the June 1990 incident;

·that the incident of June 1990 as recorded by the Applicant, could be the sort of exacerbation which could increase symptoms over a number of weeks but would not make a permanent difference, any permanent difference being most unlikely;

·that damage to ligaments of the spine as a result of the fall in 1990 without further damage to the disc or to the vertebral body would not change the symptoms, with those symptoms remaining for about three months after the fall.

103.   In response to questions from the Tribunal (SM Lindsay) Dr McGill stated:

·     if leg symptoms commenced within two months of the fall and the symptoms were significant, then the fall may have contributed to the development of those leg symptoms by aggravating a disc protrusion, but if they started to develop after a two month period it is more likely a reflection of the underlying degenerative condition not related to the fall;

·     that in the situation where the pain arose within the two month period, the pain would continue as long as the nerve remained irritated, with any pain fluctuation arising from a fluctuating compression of the nerve.

(xiii) dr sambrook, consultant rheumatologist

104.   In a report dated 27 September 2002 (Exhibit A5), Professor Sambrook, noted Dr McGill's quotation of his article, and in particular his reference to the statement

that on average 26 per cent (or for the different components analysed between 19 and 36 per cent), of the cause of lumbar disc disease was accounted for by non genetic factors, which included environmental factors such as trauma or work related activity”.

In doing so, he observed that in Mr Duffy's case there are clearly identifiable injuries supporting the possibility they were a significant role in the development of his spondylosis. Further Professor Sambrook contends that despite Mr Duffy having genetically predisposed widespread spondylosis, this does not mean work related injuries do not account for aggravation of this predisposition at certain levels of the spine.

submissions

(a) mr grey

105.   In concluding submissions Mr Grey strongly contended that it would be unfair for the Tribunal to venture into the issues of causation, when for many years the matter has been regarded substantially as settled, with many decisions on the issue forming a background to the matters now before the Tribunal.

106.   In Mr Grey’s submission, Dr Hammond's report of 1995 was important as it had assisted the decision maker in making the determination of 13 March 1995 awarding the Applicant a 10 per cent permanent impairment compensation payment. Mr Grey contended that the Applicant’s evidence was consistent with Dr Hammond’s report of the incident of June 1990 which notes that the pain was more severe after that incident than after the 1974 incident, and that the onset of leg pain occurred over a period of weeks or months. Mr Grey further noted Dr Hammond’s observations that the T12 compression fracture was not in evidence in the CT scan of March 1987, but was evident in such scans taken on 20 November 1990, and that Dr Hammond considered that there was a work related contribution leading to an incapacity, with the June 1990 incident being the main contributor. Mr Grey also noted that as a consequence of the determination of 13 March 1995 Comcare wrote to the Applicant on 13 April 1995 advising that they would continue to be liable for all reasonable medical expenses for treatment of the condition of degenerative changes of the lumbar spine. It is Mr Grey's submission, that while the Tribunal undoubtedly has the power to revisit issues of causation, there are administrative factors to be considered, if the events of some 12 years ago are to be revisited. Further, he submitted that medical opinions formed after consideration of the earlier material are deficient, because there would be understandable difficulties in appreciating the nature and effect of the initiating injuries some 12 years ago.  

107.   Mr Grey contends that there are medical opinions, for example those of Dr Hammond and Dr Yeo, which clearly support a finding that at a minimum the June 1990 workplace incident caused an aggravation to the Applicant's pre-existing lumbar spine degenerative disease and that this was a material contribution which continues to this day.

108.   Mr Grey also submits that there is ample evidence from all doctors that the Applicant is unable to perform his pre-injury work; that the Applicant's acceptance of a redundancy package was reasonable in all the circumstances; and that there was also an absence of suitable employment available for the Applicant at that time. Further both Dr McGill and Dr Yeo found that, leaving aside the issue of causation (Dr McGill), the Applicant has a 20 per cent permanent impairment. Therefore, there may need to be a consideration of how much useful earning capacity the Applicant retains by virtue of his limited property management activities. 

(b) mr johnson

109.   Mr Johnson contended that the evidence of Dr McGill should be preferred to that of Dr Yeo. In considering Dr Hammond's report, Mr Johnson noted that Dr Hammond has not recorded or considered the effects of the Applicant's non-work incidents which may have affected his back and has not included a history of a fall in the June 1990 incident.

110.   Mr Johnson relied upon the decision of Sackville J in Power v Comcare (1998) 89 FCR 514. In this case, Mr Power, despite having previously received a considerable amount of compensation for permanent incapacity, was denied on review some years later for ongoing incapacity payments as he did not have a continuing injury. The Respondent submitted that similarly, Mr Duffy does not have a continuing injury.

111.   Mr Johnson referred to Dr Yeo's assessment of the elements of causation of pre-existing degenerative disease and his finding that these were complicated by the injury sustained to the para spinal muscles and ligaments around the area where the crush fractures occurred leaving the Applicant with trigger points in the scar tissue formed as part of the healing process. In contrast, he then referred to Dr McGill's opinion that if such did occur then the pain of which the Applicant continues to complain would relate to the area in which the compression fractures occurred but that it does not.

112.   In regard to Dr Yeo’s oral evidence, Mr Johnson observed that Dr Yeo accepts that the Applicant had a fall on 4 June 1990, but conceded that if there had not been a fall in the incident then the compression fractures would not have occurred. Further Mr Johnson points to Dr Yeo’s conclusion that if the lower limb symptoms did not occur until some months after the incident on 4 June 1990, then a temporary aggravation was more then likely.

113.   Mr Johnson also pointed to evidence given by Dr Yeo, in which Dr Yeo, in acknowledging the Applicant's degree of insight into his condition and its sequelae, admits to a possibility that the Applicant may not be experiencing any psychological complications. Dr Yeo also acknowledged that this possibility would be enhanced if the Applicant failed to mention non-work flare ups to examining practitioners.

114.   Mr Johnson also noted Dr Yeo’s evidence that the incident of 4 June 1990 caused on balance, only a temporary aggravation if the Applicant returned to work and continued normal duties in a situation where a fall was not involved.

115.   Mr Johnson contends that in relation to continuing weekly incapacity payments, the Applicant has a continuing capacity to undertake administrative/clerical work and that the Applicant's reasons for leaving work were essentially a matter of choice or preference. It is the Respondent’s position that the Applicant has no continuing injury.

consideration and findings

116.   In this matter, the Tribunal has been thorough in detailing both the particulars of the relationship between the parties since 1974 and the Applicant's history of his evolving back condition over that same period. These particulars stem from the facts as told to the Tribunal by the Applicant and as recorded in the considerable documentation before the Tribunal. The Tribunal observes a degree of variability in the Applicant's history of events as detailed to the Tribunal and that which has been recorded over time regarding the nature and effect of work and non work incidents. It also observes variability in the nature of symptomology experienced by the Applicant as a consequence of these incidents, particularly as regards back and lower limb symptomology. This, in the Tribunal's view is not surprising given the time span involved, the nature of the association between the parties, the many treating and assessing clinical reports from clinicians, and the evolving back condition experienced by the Applicant over some 30 years. The Tribunal will address the variations within the context of the relevant issues.

117.   The Tribunal observes that all the clinical opinions in this matter conclude that the Applicant suffers from a degenerative disease of the lumbar spine and notes that there is some evidence of the Applicant experiencing some lower back symptoms prior to 1974. The Tribunal subsequently finds that the Applicant suffers from a degenerative disease of his lumbar spine and that there is evidence of this condition having a clinical onset prior to the incident in 1974, in light of the history of some back twinges and soreness prior to this, and back difficulties associated with lifting a bag at age 22.

118.   In addressing the period between 1974 and 1990 the Tribunal notes the history of the work incident in 1974 and the Applicant's apparent return to normal work duties within a short period of time. It also notes the Applicant's comment that the 1974 incident was the first time his back "had locked up" (spasm). The Tribunal observes that the Applicant experienced intermittent difficulties in the period between 1974 and 1989, with particular episodes of back pain associated with both work and non work activities in the period 1986 to 1989. During this period the Applicant described his symptoms of low back pain as becoming more associated with some limitation of back movement, although the symptomology tended to resolve after each episode.

119.   The Tribunal observes that during the period 1986 - 1989 the Applicant sought specialist care for relief of his low back symptomology, underwent various rhizolysis treatments by Dr Rees in Sydney, and received advice and treatment from Dr Chandran, a Neurosurgeon for his intermittent back pain (twice a week) and restricted back movements. The Tribunal observes that in his report 28 November 1989 (T39), Dr Chandran described the Applicant's history as being intermittent pain since 1974, with more recent attacks involving pain in the lower back extending into the buttock with a burning sensation. Dr Chandran associated the Applicant's condition to facet joint degeneration, but was unable to find evidence of any factor which caused the degeneration or the onset of back pain from his work.  The Tribunal notes that Dr Chadran confirmed his opinion in his report of 1 June 1990, despite being provided with further details as to the nature of the July 1974 incident the Applicant's activities at work, and the injuries recorded in a 1981 motor cycle accident. The Tribunal also notes that Dr Chandran arrived at his opinion, noting that there had been episodes of locking or aggravation of pain at work as much as from activities such as gardening.

120.      The Tribunal notes liability had been accepted by Comcare for back strain as a result of the 1974 incident and that liability was ceased by the Respondent as of 28 November 1989 with reliance upon the opinion of the treating neurosurgeon. The Tribunal observes that such a determination was consistent with the evidence before the determining authority and before the reconsideration decision made on 30 November 1990.

121.   The Tribunal next notes that an incident occurred at work on 4 June 1990. The notification of injury and claim for compensation forms completed by the Applicant on 12 June 1990 detailed the nature of the incident but did not include details of the Applicant falling backwards onto his buttocks. The Tribunal observes that the first mention of a fall being experienced by the Applicant is in the clinical notes of Canberra Physiotherapy dated 13 November 1990, and again in Dr Andrews letter of 8 February 1991.

122.   The Tribunal also notes that the Applicant's description of symptomology to the Tribunal included severe pain (more severe than he had previously experienced) in the low back, above and below the belt line. Subsequently, he was off work for a week, during which time he undertook general mobilising exercises in a heated pool. He then returned to work on restricted duties with a sore back. The Tribunal notes that the Applicant described slow improvement in his low back pain with the development of left leg pain some two months after the incident.

123.   The Tribunal observes the absence of a note pertaining to a fall when seen in Dr Marinos surgery on 4 June 1990, with the nature of the accident being confirmed on 8 June 1990 when Dr Marinos notes that the Applicant's condition appears to be settling.

124.   The Tribunal observes that there is no further clinical note by Dr Marinos until 9 November 1990 when he certified the Applicant unfit for work because of low back pain for three days which was consistent with the Applicant's history of a work incident while lifting files and experiencing severe back pain.   

125.   As a consequence of Dr Marinos’ referral of the Applicant to Dr Andrews, a CT scan of the lumbosacral spine was performed on 22 November 1990 and reported upon by Dr Hoy as indicating degenerative changes causing spinal stenosis at L2/3 and L3/4. Dr Andrews considered this to be the Applicant's main problem. On referral to Dr Chandran, the Applicant stated that he was told his problem of continuing low back pain and pain in his left buttock was derived from facet joint problems.    

126.   In returning to the incident of 4 June 1990, the Tribunal notes the history given by the Applicant that his left leg pain came on two months after the incident. There was, however, an absence of such symptomology in the records of Dr’s Marinos, Andrews and Chandran (all treating clinicians) as are before the Tribunal; and an absence of such symptomology in the reports of Dr Carr, Dr Yeo, and Dr Downes. Dr Wearne described the immediate onset of left sciatic pain down the leg as associated with the incident of 4 June 1990. Dr Hammond described the pain as being not only in the lumbo-sacral midline, but also somewhat left sided in the lower back, with the leg pain experienced at the same time being rather insidious in onset, gradually coming on over the course of some weeks or months. Finally, Dr McGill noted that the left lower symptoms came on progressively. From this material the Tribunal concludes that there is an absence of left leg symptomology which is associated with the fall or commencing within a few months of the fall described in the clinical reports until Dr Hammond mentions it in December 1994, some four and half years after the incident. A later report by Dr Wearne in October 1999 appears to be inconsistent with the earlier reports and the report by Dr McGill in March 2002. The evidence by the Applicant appears to fall more within the ambit of that described by Dr Hammond.

127.   The Tribunal observes that a plain X-ray of the lumbar spine on 23 January 1992 describes a crush wedge compression fracture of T12. Subsequent re-reading of prior plain and CT examination films by Dr Carr resulted in his conclusion that the scout views of the CT scan of 20 November 1990 demonstrated compression fractures at T12 and a minor wedge at L2. This in turn was confirmed by Dr Hammond, who noted that the CT scan of 2 March 1993 clearly demonstrated compression fractures of T12, L1 and L2. None of these were evident in the radiology of 19 March 1987.

128.   The Tribunal concludes from this clinical evidence that the compression/wedge fractures of T12, L1 and L2 occurred at sometime between March 1987 and 20 November 1990. The Tribunal also notes the symptomology that has been described by the clinicians in their various opinions associated with such fractures and their resolution. It also notes the clinical history as described by the Applicant and recorded variously by the many doctors as well as the opinions of Drs Yeo, Carr, Downes and McGill. As a result, the Tribunal concludes that, on the balance of probabilities, these crush fractures were not associated with the incident of 4 June 1990 or 6 November 1990 in that:

·     the symptomology described was not consistent with that of an acute crush fracture

·     the resolution and relatively fast return to work (albeit with restricted duties) was not consistent with the clinical course of such a condition

·     the nature and location of the back pain was not consistent with the level of the compression fractures

129.   The Tribunal also notes the Applicant’s evidence that he experienced a sudden onset of severe lower back pain and weakness and numbness in the left leg upon waking one morning in September 1991. This is variously detailed as occurring in September/October 1991, with the Applicant being referred for a CT scan and neurosurgical opinion. The Tribunal notes that the Applicant sought a second opinion in January 1992 from Dr Yeo, and subsequently underwent a laminectomy of L4/5 in April 1992. His left leg symptoms of pain numbness and weakness re-occurred within two months of this operation. A subsequent MRI examination revealed scarring at the operation site, with all the clinicians concluding that L5 nerve root scarring from the operation has produced ongoing L5 symptomology, as opposed to the ongoing pain in the lower back extending into the left buttock.

130.   The Tribunal also notes that the Applicant was able to clearly differentiate the two areas of symptomology. In his letter of 7 October 1993 (T141) he defined the two areas as:

·A prolapse of the L4/5 disc causing symptoms in the left leg, which did not arise from either incident in June or November 1990. This required surgery after which epidural scarring occurred. This is the cause of ongoing symptoms. It is not compensable; and

·Aggravation and acceleration of a pre-existing condition causing chronic lower back pain which previously had been compensable.

131.   The Tribunal, in acknowledging the two different conditions concludes that the L4/5 disc lesion, subsequent laminectomy and discectomy, post operational scarring and ongoing L5 symptomology was not causally related to the incidents of June or November 1990. In so concluding the Tribunal acknowledges the opinions of Drs Andrews, Chandran, Downes, Yeo, McGill and Hammond.

132.   In turning to the particular issue, that is the incident of 4 June 1990 the Tribunal observes from the various clinical reports that the nature of the incident is of extreme importance in determining whether a significant and ongoing aggravation to the pre-existing degenerative condition has occurred. The Tribunal has already outlined the available medical records detailing the clinical symptomology and the nature of both incidents. Further, this symptomology has been detailed without the Tribunal necessarily distinguishing as to whether a fall was or was not involved in the incident.

133.   The Tribunal has, however, considered the issue of the compression fractures and has concluded that the clinical symptomology and the actions of the Applicant following both incidents, but more particularly the incident of 4 June 1990, were not consistent with the clinical features and resolution of acute compression fractures arising from such trauma. This finding is based on the balance of probabilities, the opinions of Drs Downes, McGill, Yeo (oral evidence) and Carr, having again been considered by the Tribunal.

134.   In so stating, the Tribunal recognises that many of the clinical opinions detailed in this matter have opined in the absence of definitive clinical material that the compression fractures were a consequent of the fall of 4 June 1990. This is due to limited evidence as to the severity of the trauma that occurred on that day which in turn allegedly caused a permanent aggravation of the pre existing degenerative condition. It is evident to the Tribunal that Dr Yeo, Dr Carr, Dr Hammond and Dr Wearne agreed with this view.

135.   Further, the Tribunal observes that the Applicant made no mention of a fall being involved in the incident of 4 June 1990 in his report of the injury and his claim for compensation lodged on 12 June 1990. The Tribunal, in noting the Applicant’s explanation for such an omission, notes that the injury was attributed to lifting and twisting of the spine, and concludes that such a statement does not necessarily assist the Tribunal in satisfying itself that a fall did occur on 4 June 1990.  

136.   Further the issue of the fall is further placed in focus on account of the changes made by the Applicant to correspondence written by Ms Conroy on 21 November 1990. In this correspondence, the Applicant’s statement that it had been three and half months since a fall was changed to a five and half month period. While the Respondent wished to make much of this change, in that there had been an absence from work for a few days in August 1990 because of back pain, the Tribunal can only comment that on both occasions the clinical history appears devoid of a severity that would indicate that a serious injury has necessarily been occasioned by a fall causing acute compression fractures.

137.   Further the Tribunal is unable to understand why Dr Marinos would not have included a history of a fall onto the buttocks on 4 June 1990 when he wrote the letter on 8 June 1990, if Dr Marinos had been advised of such circumstances.

138.   In addressing the central issue, that is the nature and effect of the incident of 4 June 1990, the Tribunal is left with a scenario in which an incident clearly happened. It is accepted that the Applicant suffered an increase in symptomology with very severe pain in his lower back requiring medical attention, analgesics, bed rest for three days, followed by settling of the symptoms and return to work after one week, albeit on a restricted teaching program initially due to physical restrictions imposed by his back. The Tribunal has no difficulty in concluding that Applicant has as a result of this incident and regardless of whether or not there was a fall, suffered an increase in symptomology and indeed a temporary aggravation of the underlying pre existing congenital disease of the lumbar spine.

139.   In assessing whether the aggravation was something more than temporary, the Tribunal takes notice of the subsequent clinical symptomology and in doing so notes a continuance of a sore back which slowly improved, together with some modified duties and the appearance of left leg symptomology after two months. The Tribunal has previously analysed the variability of the left leg symptomology and concluded that the first description recorded was that by Dr Hammond in 1994, some four and a half years after the incident, and that documentation up to September 1991 did not record symptomology relating to the left leg.

140.   The Tribunal, having considered all the evidence, and having concluded that the incident of 4 June 1990 on the balance of probabilities was not associated with the creation of compression fractures, and irrespective of whether there was a fall or not, concludes that there is an absence of clinical evidence sufficient to support a finding that the incident of 4 June 1990 was of sufficient severity to cause a permanent aggravation to the underlying degenerative lumbar spine disease.

141.   In turning to the incident of early November 1990 the Tribunal again notes the clinical features and progress and clinical opinions, particularly those of the treating clinicians at the time, namely Dr Marinos and Dr Andrews. It concludes that this incident was not significant other than in causing a temporary aggravation of the underlying pre existing condition, which clearly had been progressively evolving over many years. In fact, it had been more actively progressing since 1986 as evidenced by the increasing symptomology and the need for specialist intervention.

142.   In summary, the Tribunal concludes that on the balance of probabilities neither the incident of June 1990 nor the incident of November 1990 were of such a nature as to cause a permanent aggravation of the pre-existing underlying degenerative disorder of the lumbar spine.  Further, the Tribunal has concluded that the L4/5 disc lesion occurred spontaneously in September 1991; that it was subject to surgery in April 1992, and that consequential post-operation scarring involving the L5 nerve root and the resulting left sciatic symptoms arising are not work related.  The Tribunal concludes that the Applicant’s continuing symptomology is both a direct consequence of his degenerative disorder of his lumbar spine, and an indirect consequence in which post-operative scarring has occurred as a result of surgical intervention.

143.   Therefore, the Tribunal, in acknowledging both the chronicity and progressive nature of the Applicant’s degenerative disease of the lumbar spine, and also the adaptations made by the Applicant to cope with what is a significant disability, concludes that the Applicant’s claim for both weekly incapacity payments and compensation for an increase in permanent impairment from 10 per cent to 20 per cent must be denied.

144.   The Tribunal, having analysed this matter in some detail and having noted that the issue of ‘garden expenses’ in relation to tenanted properties was not pursued by the Applicant, affirms the decision under review in regards to this matter.

145. On the issue of lost earnings, it is the Tribunal’s view that a claim for loss of earnings under section 57 as an expense for attending medical appointments must be an actual and necessary expense, not a notional expense. Relevantly, subsection 57(3) provides that:

The relevant authority shall pay the cost of conducting any examination required under this section and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.

In this regard there would have to be an actual loss of earnings or alternatively, in a situation such as the Applicant’s, an actual expense associated with necessary activities to replace the absence of a self-employed individual. While a notional loss may clearly occur this is not necessarily an expense in a situation where income is derived by way of rent and/or pension.

146. It would seem to the Tribunal that any attempt to quantify a notional loss under section 19 or 20 is not consistent with the issue of claiming an expense under section 57 to attend a medical appointment. Further, any attempt to create a notional loss for a self employed individual, such as the Applicant, by some reference to average daily earnings (whether they be gross or net) creates a quantum which may have little to do with the claimants actual loss, the latter loss being an expense which may well fall within a section 57 claim.

147. In summary on this issue, the Tribunal concludes that a claim under section 57 must involve a claim for an actual and necessary expense. While an employed person is able to quantify a days loss of salary as an actual expense if he is forced to bear the cost of the time to attend a medical appointment, the issue of a claim for expenses for earnings lost by a self employed person must be defined by reference to expenses directly and necessarily incurred in the self employment situation. That is, it must be those associated with the cost of the maintenance of activities in the absence of the individual during his attendance at the medical appointment.

148. In the light of the Tribunal’s findings in relation to expenses claimed pursuant to section 57 of the Act, the Tribunal concludes that the issue of section 57 claims be remitted to the Respondent for determination in accordance with the defined reasoning.

149.   Further, in the light of such a finding the Tribunal determines that the Applicant is entitled to costs.

determination

150.   The Tribunal determines that:

(a) the determination of 17 May 2001 be set aside and in substitution therefor it is ordered that the Applicant is entitled to payment of expenses reasonably incurred in attending medical examinations on 16 August 2000, 18 October 2000, 21 February 2001 and 22 February 2001, where such expenses are quantified, actual and necessary expenses of a self employed person incurred to maintain his self employment activities whilst attending an examination pursuant to s.57 of the Act. The issue is remitted to the Respondent to further assess that Applicant’s claim on the issue.

(b) the reconsideration determination of 12 February 2002 be affirmed thereby rejecting the Applicant's claim for an increase in the level of his accepted permanent impairment.

(c) the Applicant has no entitlement to weekly incapacity payments as and from 4 April 2000.

(d) Costs are awarded to the Applicant .

I certify that the 150 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr J. Campbell, Member:

Signed:         .......................................................................................
  Associate

Dates of Hearing  29 and 30 April 2002
  15 November 2002
Date of Decision  8 October 2003
Counsel for the Applicant  Mr Grey

Counsel for the Respondent  Mr Johnson