Hancock and Comcare - [2000] AATA 802

DECISION AND REASONS FOR DECISION [2000] AATA 802

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/149

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CHRISTOPHER SHANE HANCOCK
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr B.G. Gibbs, AM, Senior Member

Date12 September 2000
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
COMPENSATION – claim for "low back pain" – preliminary issues – whether election made to institute civil proceedings – whether injury suffered – whether injury resulted in a permanent impairment – whether additional compensation payable for any non-economic loss suffered as result of injury or impairment – fall during course of employment – whether respondent liable to pay compensation from certain ("cease effects") date – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss. 14, 16, 24, 25, 27, 44, 45, 62.
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Treloar and Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

12 September 2000 Mr B.G. Gibbs, AM, Senior Member
Introduction

This is an application by Christopher Shane Hancock for review of the reviewable decision of a delegate of the respondent made on 3 December 1997, which affirmed a determination made on 22 July 1997.
The determination made on 22 July 1997 was as follows:
"I determine that the Department of Defence is not liable to pay compensation on and from 27.5.97 as the available evidence indicates that you are no longer suffering from the service related injury."

Representation

At the hearing before this Tribunal Mr Hancock was represented by Mr Rolston, of Counsel, and Mr Elliot, of Counsel, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. A number of other documents (including a video recording), were also received in evidence during the hearing.
Witnesses
Evidence was given before the Tribunal by:

Mr Hancock (the applicant)
Dr N. McGill
Dr M. Aroney
Professor S. Nade
Dr A. Searle

Contentions – Applicant

In a Statement of Facts and Contentions lodged with the Tribunal it was contended on behalf of Mr Hancock, as follows:
"1.That he has suffered an injury which arose in the course of his employment with the Respondent, or alternatively an aggravation of a pre-existing condition.
2.That there is a casual link between the Applicant's back injury, and the work related incident of February, 1991 or in the alternative the nature and condition of the Applicant's employment with the Respondent from 1990 to 1992.
3.The Applicant alleges that any medical or hospital treatment required for the treatment of such injuries and continuing, arise from an injury sustained in the course of the Applicant's employment with the Respondent.
4.The Applicant submits that he is incapacitated to work with the Respondent from 5 June, 1992 to date and continuing, and is therefore entitled to weekly payments of compensation.
5.The Applicant alleges that he is restricted in the type of employment he is able to undertake in the open labour market because of the injuries sustained whilst in the course of his employment with the Respondent."

Contentions – Respondent

In an amended Statement of Facts and Contentions lodged with the Tribunal it was contended on behalf of the respondent, as follows:
"9.That the Applicant is not suffering from any condition or symptom which can be causally related to the alleged incident which (if it occurred) took place on or about February 1991.
10.As a result of the incident in February 1991, the Applicant could have suffered an aggravation in the form of a muscular ligamentous strain of the lumbo-sacral area of the lower back which would have been present for a period up to 12 weeks.
11.There is no relationship or causal link between the Applicant's alleged present symptoms of low back pain and the incident in February 1991, as the present symptoms are related to the applicant's pre-existing abnormality.
12.The Respondent will allege that any medical or hospital treatment required by the Applicant is not related to any injury that may have been sustained by the Applicant in the course of his employment with the Respondent.
13.The Respondent submits that there is no causal link between the Applicant's inability to resume employment on a full or part time basis due to a low back condition and the alleged incident in or about February 1991, and that the inability to resume full or part time employment is alleged by the Respondent to arise out of factors wholly unrelated to February 1991 incident.
14.The Respondent further submits that the Applicant is not incapacitated for work and therefore is not entitled to weekly payments of compensation from the Department of Defence in respect of his back condition.
15.That any claim under section 24 or 27 of the Act is precluded by operation of sections 44 and 45 of the Act."

The Law

The word "injury" is defined in section 4(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), as follows:
" 'injury' means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

"Disease" is also defined in s.4(1):
" 'disease' means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth;"

The word "ailment" is defined as follows:

" 'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)."

The words "aggravation" and "ailment" are defined in section 4(1) of the Act as follows:
" 'aggravation' includes acceleration or recurrence"
" 'ailment' means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)"
Section 14(1) of the Act provides that the respondent is liable to pay compensation in accordance with the Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In so far as is relevant, section 16 of the Act provides as follows:
"16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment."
In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, Windeyer J at page 641 said in respect of the meaning of the term "the employment":
"When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 the Full Court of the Federal Court said at page 328:
"In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to 'a state of affairs to which he would otherwise not have been exposed' or to 'some characteristic of or condition in which the work was to be performed' and that such exposure was in truth a 'contributing' factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a 'contribution'."

The Full Court then went on to consider what is meant by the requirement that a contribution be material:

"Consistently with what was said by Windeyer J, 'contribution' does not require that the contributing factor be a causa sine qua non; the 'but for' test is not appropriate nor is the causa causans or 'real effective cause' or 'proximate cause' formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not 'contribute'.
The use of the word 'material' in conjunction with the words 'contributing factor' in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."

Preliminary Issue

Mr Elliot, Counsel for the respondent, made certain submissions in respect of this matter which raise preliminary issues requiring determination by the Tribunal.
The issues are:
(a)Whether the Tribunal has jurisdiction to determine liability under sections 24 and 27 of the Act;
(b)Whether the Mr Hancock has made an election pursuant to section 45 of the Act.

Issue (a)

Section 24 provides that where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
Section 27 provides that where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
The Act provides for determining authorities to make determinations in respect of claims and for determinations thus made to be reconsidered upon request pursuant to section 62.
On 22 July 1997 a determination was made by a determining authority who stated in part:
"I determine that the Department of Defence is not liable to pay compensation on and from 27 May 1997 as the available evidence indicates that you are no longer suffering from the service related injury."
Upon request by Mr Hancock the determination thus made was reviewed pursuant to section 62 on 3 December 1997 by an authorised review authority ("ARO"), who stated:
"It is my decision to affirm the determination dated 22 July 1997."
It was Mr Elliot's submission that by its terms the determination made on 22 July 1997 was a "cease effects" determination only, and that the decision made after reconsideration under section 62 did no more than affirm this to be so.
Mr Rolston observed that on 31 January 1997 a delegate of the respondent wrote to Mr Hancock's solicitor, stating:
"As discussed, Section 45 of the Safety Rehabilitation and Compensation Act 1988 requires the claimant to have an entitlement under sections 24, 25, or 27 in respect of an injury before any common law action can commence. To assess whether such an entitlement exists, the claimant must nominate to be assessed for a lump sum. If eligible the department will make an offer to pay a lump sum which the claimant may refuse and subsequently begin common law proceedings.
As your client has not requested a lump sum assessment at this stage no common law action can proceed."
The solicitor acting for Mr Hancock duly sought the assessment referred to by the delegate. As a consequence Mr Hancock was assessed by Dr Robert Smith who stated that he did not consider him to be impaired.
As pointed out by Mr Rolston, in his determination made on 22 July 1997, the determining authority stated:
"In making my decision I referred to the report of Dr Robert D. Smith dated 27 May 1997. A copy enclosed states that you currently suffer no impairment as a result of the compensable injury."
Mr Rolston also invited attention to two medical reports referred to by the ARO in her reasons for decision. The first was a report by Dr Bec. However, in his report the doctor did not express a definitive view as to percentage impairment.
The second medical report referred to was by Dr Searle, who was silent as to percentage impairment.
It was submitted by Mr Rolston for the applicant that inherent in this history is a determination that Mr Hancock is not entitled under section 24.
I agree this to be so, and find accordingly.
Issue (b)
Section 45 of the Act relevantly states:
"45(1) Where:
(a)compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b)the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.
(2) Where an employee makes an election:
(a)subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and
(b)compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
(3)An election is irrevocable."
Mr Elliot submitted that Mr Hancock has made an election pursuant to section 45 and that, consequently, he is barred from any entitlement under sections 24, 25 or 27.
In asserting thus Mr Elliot invited attention to a letter dated 5 February 1997, in which the solicitor acting for Mr Hancock informed the respondent that:
"Our client proposes to proceed with his common law claim; whether you wish to instruct the Australian Government Solicitor to act on your behalf is entirely a matter for you. However, we formally advise you that if you do not file a Defence within a reasonable period, we shall apply to the Court for an order for Judgment."
It was further asserted by Mr Elliot that the Statement of Facts and Contentions lodged by Mr Hancock in respect of these proceedings do not raise issues relating to sections 24 and 27.
Mr Rolston submitted that the letter dated 5 February 1997 should be read in conjunction with a letter dated 4 February 1997, from Mr Hancock's solicitor to the respondent. In that letter the solicitor stated in part:
"We refer to the writer's discussion with one of your Departmental officers on 30 ultimo in respect of the provisions of section 44 et seq. of the Act.
Your officer was of the opinion that it is necessary for our client to have secured a determination of an entitlement pursuant to section 24 before he could have elected to pursue a common law claim.
We would refer you to the decision of the Court of Appeal of Queensland delivered on 15 March 1993 in Commonwealth v Janssen in which the Court held a contrary view. The Court specifically referred to the situation where the limitation period applying to a plaintiff's suit may expire before a determination is made.
In respect of our client's claim, the primary reason for the issue of the Statement of Claim served on you is that the relevant limitation period applicable to his claim would seem to expire some time this month. Obviously, it would have been most imprudent for our client (and for ourselves for that matter) to have refrained from issuing the Statement of Claim and to await a Determination by your Department.
However, on a without prejudice basis, so far as the Statement of Claim and his suit are concerned, our client welcomes the opportunity to attempt a settlement of his claim by way of a Determination by your Department."

In referring to the letter Mr Rolston contended that, whereas section 45 requires a clear unequivocal election to be made, the content of the letters of 4 and 5 February 1997 do not amount to an election:

"What we have in the present case is not a clear unequivocal election. We have a potential plaintiff whose claim as at that time has not been determined and was in fact not determined until in our submission, June 1997 or July 1997, who does not have that clear and open choice.
He has a situation where he – if he does not do something he may lose any rights he has at common law and that in my submission is not an election of the type foreshadowed by the section, particularly in circumstances where in the present case we have the situation where the Department is now arguing against the advice that he was tending to the applicant at the time so in my submission it does not constitute an election. It is in my submission what it constitutes is a document by the solicitor.
How true it is that the solicitor in general circumstances accessed the agent of his client and his acts are referable to his client but in the situation in the present case, you have heard the evidence of the applicant when cross examined that really he did not really know what was going on in terms of the procedural business and we have a situation where I submit that that letter of 5 February 1997 cannot be construed as the second section in terms of the applicant's election to the election – it is an action by his solicitor to preserve not only his rights but also the solicitor's position in relation to any negligence claims. So in my submission it is not an election."

Mr Elliot asserted, however, that no evidence had been given by Mr Hancock to the effect that the letter of 5 February 1997 was merely sent in a "guarding form". What was said in the letter was correct, so that the "only evidence we have is what appears from the face of the document and the face of the document cannot be clearer". Therefore, submitted Mr Elliot, "section 24 is barred in this matter by the effect of section 45".

In making his submissions Mr Elliot cited Walsh v Commonwealth of Australia (1998) NSWSC 28 May 1998, a matter heard by the NSW Court of Appeal.
The issue in Walsh was whether a determination by Comcare that compensation is payable under sections 24, 25 or 27 of the Act is an essential pre-condition of a valid election for the purposes of section 45 of the Act. The Court of Appeal held that it was not. In doing so, the Court of Appeal relied upon the decision in Commonwealth of Australia v Flaviano and Another (1996) 40 NSWLR 199, in which the NSW Court of Appeal held that the election was required to be in writing and that the requirements of section 45(1) of the Act are not met by conduct from which an election could be implied, such as the institution of proceedings to recover damages.

It is my view, and I find, that the terms of the letter dated 5 February 1997 do no more than place the respondent on notice that Mr Hancock was at that time considering proceeding with a common law claim. While it may be argued that the terms of the letter provide a strong indication as to the nature of the action Mr Hancock might take, the terms, however, are not conclusive and therefore in my view do not satisfy the requirement of subsection 45(1), for an election made in writing. As stated in Walsh, the requirements of subsection 45(1) are not met by conduct from which an election could be implied.
In view of the findings thus made, the Tribunal directed as follows:
(a)That Mr Hancock did not, by virtue of a letter dated 5 February 1997, make an election to institute an action or proceeding pursuant to subsection 45(1) of the Act; and
(b)That the Tribunal has jurisdiction to determine:
(i)whether Mr Hancock has suffered an injury within the meaning of section 14 of the Act;
(ii)whether, if Mr Hancock has suffered such an injury, the injury has resulted in a permanent impairment pursuant to section 25 of the Act;
(iii)if the injury has resulted in a permanent impairment and compensation is payable in respect of the injury under section 24, what additional compensation is payable to Mr Hancock pursuant to section 27 for any non-economic loss suffered by him as a result of that injury or impairment.

Evidence – Mr Hancock

Mr Hancock was born on 17 November 1972. He was educated to Year 11 at High School. Upon leaving school he joined the Royal Australian Air Force, in February 1990. His mustering was initially that of Aircraftsman. His duties were of a general nature, cleaning, restocking stores. He was promoted to Leading Aircraftsman, which he described as being in the nature of a reclassification, without much in the way of a change in duties.
Mr Hancock said that while serving in the Air Force he did not obtain any trade qualifications, nor has he obtained any since his discharge.
It was Mr Hancock's evidence that in February 1991 he assisted in carrying a safe up some stairs. The carrying strap began to give way. The other personnel involved in helping to carry the safe managed to get clear, however he "was left with the entire weight and it pulled me forward off my feet down the steps".
Mr Hancock stated that afterwards he experienced "sharp pains in my lower back but I just presumed it was a pulled muscle or something". He explained that the pain was "just above the buttocks area towards the middle, but it was radiating out like across the whole region". He said that the pain was quite severe and that he had to rest for the remainder of the day. After the incident he did not immediately seek medical treatment.
Over the next few days the pain was quite severe and his Corporal gave him light duties, for a period of some two or three months. The Corporal then instructed him to attend the Medical Centre.
Mr Hancock said that he had no time off work because of the injury. The pain continued but varied in intensity, depending on what he was doing physically. He stated that in terms of treatment he took "pain relievers", and that he had physiotherapy, blood tests, x-rays and scans". He said that the physiotherapy did not provide any relief.
It was Mr Hancock's assertion that prior to the incident involving the safe he had not experienced any problems with his back. He is now aware that he does, however, have a congenital abnormality in his back.
Mr Hancock said that prior to the incident with the safe he was "very active, a very active night life, sports, football, basketball, volleyball, martial arts".
Mr Hancock was discharged from the Air Force in June 1992. Before leaving the Air Force he underwent manipulation by Dr Hammond, but without relief. Following discharge from the Air Force he came under the care of Dr Bec.
Mr Hancock stated that after leaving the Air Force he attempted to find work. Eventually he obtained odd jobs, including selling vacuum cleaners door to door, and as a wine steward. However, he had to give up selling vacuum cleaners because of the need to carry the equipment. This caused him pain and he could not concentrate on his work. Prior to commencing work as a wine steward he underwent a part-time course in that field of work. However, because of pain "I only lasted a few months because it was taking me a couple of days, up to a week sometimes, to get over a night's work".
Mr Hancock said that at the time of his discharge from the Air Force he was experiencing pain in his lower back, down into both his legs and feet. Sometimes the left leg would be worse than the right. He said that because of the pain which he experiences his "night life is non-existent, none of my sports, martial arts, everything's gone". Sport aggravated his back "a hell of a lot".
Mr Hancock said that he obtained a security licence (issued by the NSW Police), enabling him to work as a security officer. He was then able to work as a doorman for a night club as a regular part-time employee every weekend. However, because of the need to be constantly on his feet and having to break up fights, this caused his level of pain to increase and he ceased working in this capacity after a couple of months. He then undertook further work as a security officer for "Black Tie", checking on the security of buildings. However, the long periods of time spent walking again increased the level of pain causing him to cease that particular work. He could not recall exactly when this was, although he said it was "a few years ago, I suppose".
Mr Hancock said that he has not worked since ceasing his employment as a security officer and that he has not looked for work because "basically there was not much point".
Mr Hancock said that since leaving the Air Force he has been under the care of Dr Searle who presently prescribes Panadeine Forte, Doloxene, Di-gesic, Perudis and various other medications the names of which he could not recall. He has also undergone physiotherapy on a couple of occasions since leaving the Air Force, but without relief. He has also tried acupuncture, but again without obtaining relief.
It was Mr Hancock's evidence that since his discharge from the Air Force his pain has become worse, "it's there all the time but it peaks", becoming "higher and sharper for longer periods". The episodes of pain are becoming more frequent. He also finds that sitting increases the level of pain. He cannot sit still for more than five minutes. "Standing is virtually the same".
Mr Hancock said that he is a single parent and looks after his two children aged 5 and 3 years. He does the household chores, but has to take "pain killers" to enable him to cope. Because of pain he has to lie down for a couple of hours each day.
Although as already stated Dr Searle has prescribed a range of medication, the evidence of Mr Hancock was that presently he is only taking Panadeine Forte, the reason apparently being that this is all he can afford.
Mr Hancock was asked about his participation in martial arts, but stated that he could not recall participating in February 1991. In this connection it is noted that in the history recorded by a Consultant Surgeon, Dr Smith, on 27 May 1977 (T18), Mr Hancock last participated in martial arts on about 12 February 1991.
On 24 April 1991 Mr Hancock was referred for physiotherapy, with the Physiotherapist (Ms Kerr) reporting (T6) that after 6 weeks Mr Hancock was "pain free and fully functional". It was Mr Hancock's evidence, however, that this was not correct because "I probably went back to her a couple of weeks later". This, he said, was because he was still experiencing pain.
While serving in the Air Force, Mr Hancock was seen as an outpatient between June 1991 and September 1991 complaining of a rash on his face, dermatitis and a pulled muscle in his left thigh while jogging. The medical record makes no reference to problems with his back. Mr Hancock agreed that during this period he was possibly on full normal duties and that at no time during that period was he in hospital. He asserted that nevertheless he did continue to experience varying levels of back pain.
Mr Hancock was seen by an Orthopaedic Surgeon, Dr Harrington, on 6 November 1991. In his report of that date (T11), the doctor recorded:
"He tells me that he has had pain in his back on the left side, down low, with some radiation into his buttock but rarely into his legs for about 12 months. He remembers no problems with his back previously. He is a keen sportsman and comes from Coffs Harbour – he works as a general hand in the airforce and he is keen on staying in the airforce."

Mr Hancock said he does not recall giving that history to the doctor. He did agree, however, that it was "most likely" he made no mention of the incident which occurred in February 1991.

When it was put to him that his claim for compensation in respect of his back was only made after he underwent manipulation in hospital in November 1991, Mr Hancock said he could not recall when he made his claim.
When it was suggested to him that in November 1991 he had gone "searching for a cause" of his back condition and that this was because he may have to pay for treatment, Mr Hancock replied that this was not so.
In December 1991 Mr Hancock was involved in a pub brawl. He asserted that he was drunk at the time and could not recall that he later told a doctor that it took four people to haul him off.
When asked to describe the nature of his Air Force duties from December 1991 to the time of his discharge in June 1992, Mr Hancock stated that he was "doing a bit of inventory work, cleaning work, that sort of stuff", meaning cleaning shower blocks and toilets. He disagreed that these were light duties for a person with back pain.
Mr Hancock stated that although his retirement from the Air Force was on medical grounds, he could have opted to remain serving, but in a different mustering. He could not recall, however, what that mustering was.
When asked how long he can drive a car without rest breaks Mr Hancock stated that, as an example, when driving from Port Macquarie to Sydney he would usually take between four to seven stops. He added that although he really did not know, but he guessed that in terms of travelling time he needed to have a break after about 45 minutes. In circumstances where a break is not feasible, for example when travelling on a freeway, he said "I've just got to take pain killers and grin and bear it".
During the hearing the Tribunal viewed a video showing Mr Hancock and a female passenger driving from Sydney on 9 June 1999, in the direction of Hornsby. Mr Hancock was driving. It was raining heavily. The time was 3.30 pm.
Mr Hancock drove non-stop to Raymond Terrace, arriving at 6.00 pm. At Raymond Terrace Mr Hancock got out of the car and refuelled the vehicle. He then purchased food and drink. After some five minutes Mr Hancock resumed the driver's seat and continued directly to Kew, arriving there at about 8.10 pm. After attending the toilet Mr Hancock and his passenger then drove on to Wauchope, again with Mr Hancock driving.
Evidence – Dr Aroney
Dr Aroney, a Consultant Surgeon, saw Mr Hancock on 24 September 1998, and prepared a report (Exhibit R1) of the same date, for the purposes of these proceedings. He also provided a supplementary report which is dated 24 November 1998 (Exhibit R2).
During his oral evidence Dr Aroney's attention was invited to an Air Force Outpatient Clinical Record dated 24 April 1991 (T5/11). The doctor stated that while he was aware that Mr Hancock had reported to a medical officer on that date, he did not recall having seen the Outpatient report at the time he saw Mr Hancock. When asked to read the Outpatient report Dr Aroney made the observation that it was interesting that whereas the report records Mr Hancock as reporting with low back pain for several weeks, it does not record any specific injury. The doctor's evidence was that when he examined him, Mr Hancock gave him a history of a specific episode of injury.
Dr Aroney's attention was also drawn to the consultation record completed by the Physiotherapist Ms Kerr on 24 April 1991, in which (as stated earlier), Ms Kerr reported (T6) that after 6 weeks Mr Hancock was "pain free and fully functional". It was Dr Aroney's evidence that this statement was "in contra-distinction of the history I had". He added that it was also interesting that Ms Kerr's record reports that the low back pain appears to have commenced early in April 1991, rather than February 1991.
The Air Force Outpatient Clinical Record (T5/13) for 3 June 1991 makes reference to Mr Hancock's back condition. The record, however, makes no further mention of a back condition until 2 October 1991 (low back pain). It was Dr Aroney's evidence that the history he obtained from Mr Hancock was as follows:
"It was getting difficult for him to carry his duties out as an aircraftsman. In November 1991 he came under the attention of Dr Harrison. So what he said after the 24th of the 4th '91 he reported to a medical post, 24th of the 4th '91 because of his continued back pains and he was ordered some physio and kept on light duties and had intermittent bed rest in hospital, sometimes spending a week or more in hospital."
Dr Aroney's evidence was that Mr Hancock has a congenital abnormality in his lumbar spine. He described this as follows:
"Well you can get – sometimes – normally we have five lumbar vertebrae and sometimes the fifth lumbar vertebrae can be incorporated as part of the sacral. The converse can apply. Sometimes you can get a sacral, the first sacral element made into a lumbar vertebrae and in that case you end up with six lumbar vertebrae but where the sacralization of the fifth lumbar vertebrae, you end up with four true, free lumbar vertebrae. The fifth one is incorporated in the sacral. Now if that incorporation is symmetrical, really this does not cause any problems throughout life. If it is asymmetrical, then it can possibly be the cause of problems in that any back injuries or strains may be further accentuated by this congenital abnormality."
When it was put to Dr Aroney that Mr Hancock's evidence was of pain in his lower back down into his buttocks on both sides, going down into his legs and feet, the doctor explained that quite often people will give these symptoms in relation to back strain. However, he added that the causes of back pain are multi-factorial, so it cannot be spotted on just one entity. He further explained that where there is a history of a form of sciatica with referred pain down into the lower limbs, this has to be based on a finding that the post nerve roots were being irritated or being compressed in some way. On the evidence available this is not the case with Mr Hancock.
In his report Dr Aroney noted that there was no wasting of Mr Hancock's lower limbs. In evidence he stated that with any nerve pressure that is chronic, one would expect a patient to have such wasting due to lack of usage because of pain.
Dr Aroney explained that if a patient has a muscular ligamentous strain, normally the life of the strain is about two to three months. He said that from the history taken from Mr Hancock he assumed this is what he had, rather than any permanent damage to his back.
In terms of capacity for work, Dr Aroney's evidence was that he could find nothing to stop Mr Hancock from working in whatever field he wished to do so. While he was aware of restrictions having been placed at various times of the weights Mr Hancock should carry, the doctor stated that he could not see the justification for such restrictions from his clinical examination of him.
On examination Dr Aroney found Mr Hancock was able to perform straight leg raising to 80 degrees. When it was put to him that Dr Searle, an Orthopaedic Surgeon, reported findings on examination of at most 45 degrees, Dr Aroney said:
"The only significance of that is that this test to a great extent is non objective. But it does become objective. It does become objective from the point of view that if there is real pain and you force that to a greater level, first of all the applicant will resist and he will have a – he will have a vast degree of spasm occurring in his buttock muscle and so therefore it is easy for an applicant to only move to 30 degrees and states that it hurts, be moving beyond that and this can vary from time to time. It can be that in an acute phase the applicant – in all fairness to the applicant, cannot move beyond that – that arc of movement at that time because he is in acute phase. At other times when he is better, he should be able to move more but it is not something that is ever – if it is going to be limited, it should be limited most of the time if that is the symptomatology. But there are times when it can get better, I have got to admit that, yes."
During his evidence Dr Aroney further discussed the fact that x-rays of Mr Hancock taken on 20 October 1993 demonstrated an asymmetrical congenital abnormality. In this connection Dr Aroney stated:
"Let's answer it this way. What I said before was, if you have an asymmetrical – first of all let me concede that I – my recollection was vague in that I thought there was symmetry but obviously there is not and I concur that. Let me say further that in the statement I made before about asymmetrical congenital abnormalities that this makes the person possibly a little bit more prone to muscular ligamentous strains, thus this should be expressing itself fairly early in life. Here we have an applicant who was involved in martial arts from a very early time. Now with the rough and tumble martial arts, if that congenital abnormality is going to make you pain and not everyone will, it should have expressed itself much earlier than it did. If it was going to blame the congenital defect for his back problems, it should have started giving symptoms way before this. It should have started when he started having a rough and tumble of martial arts or you know, just football at school, things like that."

When it was put to him that a person with an asymmetrical sacralization would be more prone to suffer strains, the doctor agreed this was so.

Dr Aroney made it clear that when a patient has a congenital abnormality which is asymmetric, it does not follow that his injury will be of a different nature to a patient who does not have such an asymmetric abnormality.
Evidence – Dr McGill
Dr McGill, a Consulting Rheumatologist, examined Mr Hancock on 9 June 1999. He also provided two reports for the purposes of these proceedings, one of which was dated the same date as his examination (Exhibit R11) the other 30 March 2000 (Exhibit R12).
The doctor's second report qualified the opinions which he expressed in his first report, based on additional material that had been drawn to his attention.
In his second report Dr McGill stated:
"When I saw Mr Hancock on 9 June 1999 he could not recall when the incident, in which he fell while helping to move a safe up stairs on a trolley, occurred. I now understand that the fall occurred in February 1991.
I noted when I saw him previously, and recorded in my report of 9 June 1999, that the first medical entry in relation to back pain provided in the T documents was in April 1991, at which time it was recorded that there was no specific incident. At the time I prepared that report, I felt that there was a lack of supporting information in regard to events immediately following the injury but I prepared my answers on the presumption that the history he provided to me was accurate. I was aware that the information in the T documents did not support his comment in regard to the onset of pain immediately after the fall, but I thought it was possible that other documentation would come to light that would support his comments. At the time I prepared my report (9 June 1999) I specifically indicated in my answers (second paragraph of answer to question 1 and last paragraph of report) that the answers I provided were "On the presumption that the history he provided today was accurate (particularly in regard to the onset of back pain immediately after the fall and a progressive increase in pain over the next two or three months)". In the final paragraph of my previous report I stated "the acceptance that he has a significant back problem relies entirely on his history and the relationship between those back symptoms and his work further relies on the history he provided in regard to a fall down the stairs immediately prior to the onset of back symptoms".
In view of the fact that no other documentation has been provided to support his claim that he experienced pain immediately after the fall and had a progressive increase in pain over the next two or three months and in view of the fact that in April 1991, when back pain was first recorded in a medical entry, it was recorded that there was no specific incident, I think it is more likely than not that the incident in February 1991 was not significant with respect to his subsequent back pain.
At the AAT, my attention was drawn to a physiotherapy entry on the last two lines of page 21. That report was available to me when I saw him and prepared my original report but I overlooked the comment. The physiotherapy report stated "this fellow developed a severe bout of low back pain in early April 1991". That introductory sentence provides further evidence against the claim that his back pain commenced immediately after the fall in February 1991. The last sentence stated "After 6/52 he was pain free and fully functional". The next physiotherapy entry related to a referral on 2 October 1991 at which time it stated "attended with a recurrence of low back pain with no known cause".
The physiotherapy entries suggest that (1) his pain in April 1991 did not date from the injury in February 1991 and (2) that the symptoms in April 1991 fully resolved."

The reference by Dr McGill to a physiotherapy report is a reference to the report (T6) mentioned in paragraph 56 above.

In his second report the doctor went on to provide a summary of his opinion, and provided answers to certain questions, as follows:
"In my initial report I did not attempt to judge the validity of his history (which was probably an error on my part). I also failed to note an important physiotherapy entry. Taking into consideration the information I have provided above, in addition to the other information provided in my report of 9 June 1999, including the lack of any radiological change that could be related to a specific injury, and the presence of radiological change due to congenital anomaly sufficient to cause back pain, I now provide the following amended answers to the schedule of questions.
1.From what condition does the employee now suffer, or from what condition appear to have suffered in the past?
He has a congenital asymmetric anomaly at the lumbosacral junction at the site of his pain. Although congenital lumbosacral anomalies frequently do not cause pain, when the anomaly is asymmetrical it has the potential to produce abnormal strains on the structures in that area and I think it is likely to be the cause of his symptoms.
Taking into consideration the physiotherapy and medical entries in April 1991, I think it is unlikely that the fall in February 1991 produced any significant effect on his low back but, if that fall was responsible for a temporary aggravation of low back pain, it is evident from the physiotherapy note that the pain completely settled after six weeks of treatment. Given that history and the radiological findings, I think his subsequent back pains were a reflection of the congenital anomaly and were not likely to have been influenced by the February 1991 fall.
2.On the balance of probabilities (as distinct from possibilities) is this condition due to:
a)The employment of the employer or was the employment a contributing factor?
b)The aggravation, acceleration of recurrence of a pre-existing or underlying condition being an aggravation, acceleration or recurrence to which the employment was a contributing factor?
c)The natural progression of some pre-existing or underlying condition?
d)Some other fact, and, if so, what was the factor?
On the basis of probabilities, I think the correct answer is c), ie. The natural progression of a pre-existing (congenital) condition. I think there remains a possibility that he suffered a temporary aggravation related to the fall in February 1991 although that possibility is not supported by the documentation such as that recorded by the physiotherapist in relation to the April 1991 referral.
If there was an aggravation caused by the fall, then I think the effect was temporary and had ceased by the time the physiotherapist wrote her report, ie. Had ceased after six weeks of physiotherapy treatment following the presentation in April 1991."
In cross-examination Dr McGill confirmed that one of the reasons he qualified his earlier opinion was because he became aware of the physiotherapy report (T6):
"Yes, that is a key piece of information. I mean, in preparing my second report I think there were two separate questions. The first being was the fall a factor in the early symptoms that he experienced at that time in April and the second question was did his symptoms continue from that period of time. In terms of if the fall had caused symptoms at that stage, could that fall have accounted for ongoing symptoms, then the physiotherapy note is vital in terms of my opinion on that regard and I overlooked that."
When asked for his views concerning Mr Hancock's assertion that he experienced a continuation of unrelieved pain from the time of his fall in February 1991 through to October 1991, Dr McGill responded by stating:
"Well, as I mentioned before, there were two aspects of the difficulty. If the Tribunal came to the conclusion that his history of the onset of pain immediately after the fall was more accurate than what the physiotherapist had written, given the absence of any documentation I understand to support that, that would be the first key. Then if they came – the Tribunal came to a conclusion that his pain continued despite the physiotherapist report then yes, I would go back to the conclusion that I had in the first place but I think in light of the lack of corroborating evidence that his symptoms came on immediately after the fall, and the evidence that his symptoms actually went away it seems that the doubt, or the likelihood of where the truth lies has shifted considerably towards the accident not having been a substantial factor in his ongoing symptoms."

Evidence – Professor Nade

Professor Nade, who is an Orthopaedic Surgeon and a Clinical Professor in Surgery, University of Sydney, examined Mr Hancock on 24 September 1998. He also later provided written reports for the purposes of these proceedings.
In his oral evidence Professor Nade confirmed that Mr Hancock has a developmental variant in his lumbo-sacral spine. He explained that the variant or abnormality that Mr Hancock has is an asymmetry of growth of the lowest lumbar vertebra in that the transverse process on one side is larger than the other.
Professor Nade stated that it is possible for a person to have such an abnormality without experiencing pain.
The Professor stated that his diagnosis was that Mr Hancock had lumbago or lower back pain due to an abnormality involving one or more of the synovial facet joints in the lumbo sacral region. He had no disc problems. An MRI study showed normal features of the vertebral discs. Furthermore, Mr Hancock demonstrated no nerve dysfunction.
During his oral evidence Professor Nade stated that:
"My experience is that in young people without any degenerative changes who have an incident of trauma to the back, such as a back strain or the like, the usual natural history is that within 3 to 6 weeks they are usually free of pain. If they are not free of pain they would have continuing pain. It is my practice to look for an underlying anatomical abnormality. This man had an underlying anatomical abnormality which may or may not have led to the perpetuation of pain subsequently."
When it was put to him that after the incident in February 1991, Mr Hancock did not take time off from work, the Professor said this suggested that the severity of symptoms was not great.
It was Professor Nade's opinion that it is likely the abnormality involving one or more of Mr Hancock's synovial facet joints in the lumbo sacral region, existed some years before the February 1991 incident. However, symptomatology fluctuates and apparently Mr Hancock was asymptomatic prior to February 1991. The Professor agreed that, if the physiotherapy report (T6/21) is correct, the abnormality became symptomatic again in June 1991.
Evidence – Dr Searle
Dr Searle, who is a Consultant Orthopaedic Surgeon, first examined Mr Hancock on 26 October 1993. He also provided several reports for the purposes of these proceedings.
In the first of his reports Dr Searle noted that Mr Hancock had a congenital variant in the sacral spine. He agreed that the variant is a sacralisation of the spine at the level between the lumbar and sacral parts of the spine, with some asymmetry. It was his view that such a condition is extremely unlikely to have played any part in Mr Hancock's back problems:
"It's a fairly common anomaly and we see thousands of people with back pain and occasionally we see one who has the pain coming from that particular joint but it's very rare."
Dr Searle stated that while it was rarely the case, nevertheless the abnormal condition can be productive of symptoms. He added that he had never seen that particular joint give symptoms without an injury. It surprised him that other orthopaedic surgeons in these proceedings had expressed the view that the abnormality could spontaneously become symptomatic.
In the course of re-examination Dr Searle gave it as his view that the whole of the history given to him by Mr Hancock, including the history of symptoms, "fitted perfectly into the pattern of many, many patients I've seen with this problem".
Findings
Having reviewed the whole of the material before me, I find as follows:
(a)That, as demonstrated by the record of these proceedings, a great deal of Mr Hancock's evidence was so indeterminate as to be of very limited assistance to the Tribunal in the proper conduct of its review;
(b)That nevertheless I am satisfied that Mr Hancock suffered a fall in February 1991 while assisting in the moving of a metal safe;
(c)That any injury suffered as a result of the fall was not significant and that, since experiencing the fall, Mr Hancock has not been continually in pain.
In arriving at finding (c) I have had regard for the whole of the material before me, not merely the report compiled by the Physiotherapist Ms Kerr (T6).
In his evidence Mr Hancock stated that he just presumed he had pulled a muscle and that "it would go away". He "basically" regarded the incident as quite minor. There is no evidence of acute or significant pain at the time the incident occurred. Mr Hancock took no action to formally report an injury. He neither took time off work, nor was he formally placed on any form of restricted duties. As pointed out by the respondent, the first entry of a medical nature concerning Mr Hancock's back does not relate his condition to the February 1991 incident. That entry, which was made on 21 April 1991, records Mr Hancock complaining of low back pain for several weeks, but that he did not recall any specific injury (T5/11).
As I have indicated earlier, the Physiotherapist's report of 24 April 1991 (T6/21), states that after 6 weeks Mr Hancock was pain free and fully functional. In the absence of any evidence to the contrary I accept the report as correct.
I note that in June 1991, Mr Hancock attended as an outpatient and was seen by Dr Searle, the CMO, complaining of a number of conditions such as dermatitis, giddiness and a sore thigh muscle. There is, however, no mention of back pain, nor is there any reference in the Outpatient notes to suggest that Mr Hancock was at that time on light or modified duties T5/13).
Nor is there any medical record of Mr Hancock being placed on restricted duties up until October 1991, or of a diagnosis of any problem relating to his back. It should be recorded that, in this connection, it was the respondent's view that:
"So in our submission, the fact that you have him attending doctors, no restrictions put on his back, no diagnosis of any problem with his back, is consistent with what the physiotherapist recorded in April 1991 that the condition, whatever it was, had settled by that time. As I say, in our submission the acceptance of a chronic condition that continues from that original incident in February 1991, we would submit on the balance of all the medical evidence is a key factor in drawing the ultimate linkage that the applicant tries to draw to obtain compensation."
It is noted that a report compiled by the Physiotherapist on 2 October 1991, records (T7/22) that Mr Hancock "attended with a recurrence of low back pain with no known cause". In my view that record suggests that something new has occurred, rather than an ongoing situation of back pain. I am also of the view that the reference to "low back pain with no known cause", suggests that even in October 1991 Mr Hancock was not associating that condition with his fall in February 1991.
Indeed, as observed by the respondent, up until November 1991 (when he saw Dr Harrington – see paragraph 58 above), there is no record of Mr Hancock reporting to anyone that he had a significant, ongoing problem dating from February 1991.
While Mr Hancock asserted that he was severely incapacitated at the end of 1991, his evidence, however, was that he was involved in a brawl in December 1991 (see paragraph 61 above). I note that, as reported by Dr Harrington (T11/28), Mr Hancock seems to overstate his symptomatology, that is that he is in pain all the time.
Turning to the question of impairment, I find that if Mr Hancock does have a degree of impairment it would be in the order of 10 per cent under Table 9.6 of the Guide to Assessment of the Degree of Permanent Impairment, which is the loss of less than half normal range of movement. In arriving at this finding I have preferred the assessment of Professor Nade, rather than that of Dr Searle. The difficulty with Dr Searle's assessment is the significant variation in symptoms reported by him.
As to the level of Mr Hancock's incapacity, I note that, because of the developmental variation in his lumbo sacral spine, all of the medical practitioners place restrictions in terms of his capacity for work. However, none of the practitioners report that he is totally incapacitated for work.
Given the responses of Mr Hancock when questioned about his attempts to find work, it is clear that he has made no attempt to find suitable work since 1994. By suitable work is meant work in the general labour market.
Decision
For the reasons given, the Tribunal will affirm the decision under review.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr B.G. Gibbs, AM, Senior Member
Signed: ..……...(C. HINRICHS)................................................
  Personal Assistant
Date/s of Hearing  16/3/2000, 17/3/2000 &16/8/2000
Date of Decision  12/9/2000
Counsel for the Applicant        Mr Rolston
Solicitor for the Applicant         Julian Callachor
Counsel for the Respondent    Mr Elliot
Solicitor for the Respondent    Australian Government Solicitor