Harvey and Comcare - [2000] AATA 654

DECISION AND REASONS FOR DECISION [2000] AATA 654

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/158

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RICHARD HARVEY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

Date3 August 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS MBE
  (Senior Member)
CATCHWORDS
COMPENSATION - impotence - accepted back injury - morphine use related to impotence - whether applicant suffers from impotence - "reasonable" rehabilitative treatment considered - whether certain available treatments reasonable - causation - novus actus interveniens - assault prior to morphine use - whether causal connection remains between back injury and impotence - applicant's evidence and reliability as a witness considered - application of s48 - distinction drawn between injuries claimed
Safety Rehabilitation and Compensation Act 1988 ss. 4, 24, 48
Re O'Maley and Comcare (1997) 48 ALD 300
Re Drage and Comcare (AAT 10925, 10 May 1996)
Re PAK and Commonwealth of Australia (AAT 4409, 8 June 1988)
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Dragojlovic v Director-General of Social Security (1984) 52 ALR 157
March v Stramare Pty Ltd (1991) 171 CLR 506
Home Office v Dorset Yacht Co Ltd [1970] AC 1026
Starr v Northern Territory of Australia [1998] NTSC 90
Australian Eagle Insurance Company Ltd v Federation Insurance Ltd (1976) 15 SASR 282
Telstra Corporation Limited v Barrow (1994) 35 ALD 461

REASONS FOR DECISION

3 August 2000 Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

This is an application by Mr Richard Harvey (the applicant) for review of a decision of a review officer of the respondent dated 24 February 1999 (T34) which affirmed a decision of a delegate of the respondent dated 5 October 1998 (T31) to cease liability in respect of the claimed condition "permanent impairment for penile dysfunction".
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T35) and supplementary documents (ST1-ST17), together with 11 exhibits, 2 lodged by the applicant (Exhibits A1-A2) and 9 lodged by the respondent (Exhibits R1-R9). In addition, the Tribunal heard evidence from the applicant, who also called Mrs A. Harvey, his wife, and Dr J. Siow, General Practitioner. The respondent called Dr C. Lott, Radiologist, as a witness, and required Dr J. Bolt, Urologist, for cross-examination. The applicant was represented by Mr P. Humphries and the respondent was represented by Mr M. Roder, both of counsel.
The issues before the Tribunal are whether or not the applicant suffers a permanent impairment in respect of impotence; and if so, to what extent.
applicant's evidence
The applicant, who was born on 17 February 1945, told the Tribunal that he had a back injury in 1978 whilst in the employ of the Department of Defence and has continued to have problems since that time. He has been married for 34 years and enjoyed an active sex life up until 1993, fluctuating somewhat according to his back injury. He estimated having sex about 2-3 times per week in 1992.
He stated that his sexual interest waned in 1993 but that he did not mention this to Dr Siow, his General Practitioner, because he was too embarrassed. He stated that following an incident where he was assaulted in 1993, he did not feel like sex for about four to six weeks, but returned to normal later. He further stated that some time after this in 1993 he began to lose interest in sex, which he put down to the medication he was on. He stated that by early 1994 he could not obtain a satisfactory erection, and considered his last full erection to be in late 1992/early 1993. He stated, in cross-examination, that he could count on one hand the number of times between 1993 and 1996 that he had actual sex involving an erection and penetration.
He stated that he has tried a vacuum pump, cream and a trial of Viagra, none of which have been successful. He further stated that he has tried MUSE on one occasion with out success but got a second prescription filled because he wished to try again. In relation to the Viagra trial, he stated that he would try for several nights in a row and then leave it for a couple of weeks over the course of six to nine months. He is prepared to try a different vacuum pump if one is offered. He is reticent to have an operation, and is terrified of injections, such that regular injections are not a practical solution to his problem. He told the Tribunal that he has not had sex for the past three years.
He told the Tribunal that he is slowly coming off morphine from 120 to 70-80 milligrams per day with the help of a psychologist. His general health has also been improving in the past few months, and he is exercising more frequently.
He could not recall the details about his admission to Hillcrest Psychiatric Hospital in 1990 and 1991, nor the details of his court appearances in respect of a false report conviction in 1990. In respect of the conviction, he stated that he lied to the police whilst intoxicated. Once he was sober and had been told by others present what he had done, he proceeded immediately to the police station to correct this and tell the truth.
He agreed, in cross-examination, that he was only now able to pinpoint the onset of sexual problems as being 1992/1993 by reference to records of when the assault occurred. He also stated that his wife sleeps in a separate bedroom most of the time.
mrs a. harvey
Mrs A. Harvey stated that between 1990 and 1992 she and her husband enjoyed a consistent and active sex life, given the circumstances and length of their marriage. She stated that it was uncommon at that time to go a month without sex.
She began to notice problems in early 1993, with the applicant changing medications and not sleeping. She stated that sex at this time was much less frequent than prior to the assault in 1993. She recalled having actual penetrative sex during a holiday they went on in September 1993. She further recalled that sexual problems were noticeable in the latter part of 1993 and early 1994. She also stated that she and the applicant tried a variety of things from mid 1993 to stimulate sexual activity without much success.
In relation to events in 1990, she stated that the applicant made the statement and went to the police to tell them what he had done. She could not recall the matter going to court, and understood that the charges were dropped because the applicant had been hospitalised for psychiatric care.
She told the Tribunal that their sex life reduced following the prescription of morphine. She stated that it has been a long time since they have had the "full act" of sex, involving both a complete erection and penetration. She stated that it was possible that this happened in February 1997 but that there had not been any penetrative sex since at least then.
She stated that she slept in a separate bedroom since one of their daughters was afraid of the dark and at times because the applicant cannot get comfortable owing to his back problem. She told the Tribunal that they have generally slept in the same room for the past four to five years, and certainly for the most part of 1999. She did not consider the applicant's sleep disorders and snoring to be a major problem.
medical evidence
dr j. bolt
Dr J. Bolt, Urologist, prepared a report dated 8 February 1999 (T35) in which he stated (inter alia):
"…
Mr Harvey still seems to be taking quite a high dose of morphine taking Kapanol 40 mgs bd and sometimes 60 mgs bd. We can only assume that if he did reduce the morphine, there may be some improvement, but this may not necessarily be guaranteed as sometimes after prolonged periods of impotence the patients do not respond to withdrawal of the aggravating factor such as the morphine.
I think it is reasonable to assume that the chronic back problem may have some neurological impairment. This may only be a minor contribution, but certainly the pain is a limiting factor. However, Mr Harvey was able to have intercourse for many years while he still had his back injury, and it was only when the morphine was started that the erections were reduced, so there may be a small neurological factor but I think it is largely a pharmacological one because of the morphine and is compounded by his pain and his psychological status.
…"
In oral evidence, in support of his reports, he told the Tribunal that "NPT" testing was not widely used in South Australia due to continuing concerns as to its accuracy. He considered that there are problems using this as a sole diagnostic tool. He further did not consider Kaverject injections to be a useful diagnostic tool.
He considered that the applicant probably had a slight nerve problem and that this could relate to his back condition, however this would only be a speculative conclusion. He stated that it was common for a patient to have a different subjective interpretation of what constituted a satisfactory erection, and that swelling may occur without turgidity or rigidity.
He stated that he did not think that the assault could have resulted in a long-term problem, as it would need to be a very significant blow between the legs to cause nerve damage. He considered that the applicant's erection problem is multi-factorial. He further considered it reasonable to assume that if the applicant reduced his drug intake and his back pain eased, the condition should improve. He stated that one would have to bear in mind residual pain, social and psychological factors and five years of sexual inactivity, which he considered to be significant. He stated that recovery is less likely if it is accepted that 1993 is the date of onset, and 1994-95 was the last occurrence of penetrative sex.
dr j. siow
Dr J. Siow has been the applicant's treating General Practitioner since the early 1990s. In oral evidence he outlined to the Tribunal the history as to the medication he has prescribed for the applicant. He told the Tribunal that from July 1993, as the applicant was indicating increased pain levels at night ("breakthrough pain"), he prescribed one MS Contin tablet per night, which is a slow release morphine based drug. He told the Tribunal that he was initially informed about the assault on the applicant on 13 August 1993, and first had loss of libido/sexual function mentioned to him on 18 October 1993. He did not consider that the applicant had any residual incapacity as a result of the assault.
He stated that once the effects of the assault had worn off the applicant still presented with acute back pain at night, so he kept the applicant on MS Contin. He stated that the applicant has monitored his own levels of morphine over the years, and that whilst he has had prescriptions authorising up to 80 milligrams, he has informed the Health Commission when the applicant increased beyond this (the applicant has been up to 120 milligrams at times).
He considered that the morphine has some effect in suppressing the nervous system, and could well be responsible (inter alia) for the applicant's impotence.
dr c. lott
Dr C. Lott, Radiologist, saw the applicant on 24 August 1999 and performed a colour Doppler penile ultrasound study at that time. He prepared a report dated 21 May 2000 (Exhibit R5) in which he stated (inter alia):
"…
Colour Doppler penile functional ultrasound measures the response of the penile vessels to an injection of a stimulant, in this case the natural hormone prostaglandin E1, to assess the adequacy of arterial inflow to the penis and exclude venous leakage in the problem of erectile impotence. The corporeal arteries are the main vessels to the paired corpora cavernosa, the main erectile chambers in the penis. In addition, structural abnormalities may be diagnosed if present.
…
The issue of whether the erection elicited during the procedure was sufficient to have sexual intercourse is not a simple one. On the strength of my classification of the erection achieved (namely, 4+/5), I would expect sexual intercourse to have been possible,. However, the ability and capacity to achieve satisfactory intercourse is multifactorial. Mr Harvey may be unable to achieve the erection that I elicited for a number of reasons, ranging from spinal and chemical to hormonal and psychological. …"
In oral evidence, in support of his report, he stated that the functional colour Doppler penile ultrasound he performed on the applicant achieved a normal response in the 4+/5 category. He stated that this indicates that there is no vascular problem with the applicant that would cause penile dysfunction.
dr a. de sousa
Dr A. de Sousa, Consultant Urologist, prepared a report dated 16 February 1999 (T35/83) in which he stated (inter alia):
"…
ii. Vacuum Devices. These may not help him but it is worth trying. The devices are provided by a Company on a trial basis.
…
2.Mr Harvey consulted me on 15.10.1998. On that occasion he indicated to me that Dr Siow had prescribed 100 mgms of Viagra to him. Unfortunately Viagra has not had the desired effect,
Viagra does not produce erections in all patients. It has a beneficial effect in a lot of patients. The action is affected by several factors. A fatty meal before taking Viagra could delay erections. It also needs physical and/or mental stimulation. However I tend to believe that Mr Harvey has taken Viagra and unfortunately for him the erectile dysfunction has not improved.
…
5.I do not think that we can compel Mr Harvey to try the injections as a diagnostic and/or treatment. If this premise is accepted, I feel that the erectile dysfunction is now permanent. Further, it is known that if erections have not occurred for sometime which is the case with Mr Harvey the problem on the balance of probabilities is now permanent.
…"

dr d. cross

Dr D. Cross, Psychologist, prepared a report for the purposes of the applicant's criminal injuries compensation proceedings dated 8 November 1993 (ST12/637) in which he stated (inter alia):
"…
Historically, Mr Harvey indicated that he had repeated a number of grades at school and finally left school at 15 years, having completed Year 7. This was taken to mean that Mr Harvey is either of low intellectual ability or he has a specific learning problem in that he has repeated a number of grades and could not proceed beyond Year 7 before he left at 15 years. …
…
… Mr Harvey said that this circumstance [the assault] also changed his sexual habits such that his "sex life is down to zero". However, on questioning he confided that it is probably the case that his tablets and medication have affected his sex life and not his trauma, and he also reports that he was not particularly interested in sex before the assault anyway. …
…"

mr p. fry

Mr P. Fry, Orthopaedic Surgeon, stated in a report dated 23 May 2000 (Exhibit R6) (inter alia):
"…
3.I think it most unlikely that his back problems directly contribute to any sexual dysfunction that he may have, the obvious being impotence of course. As I commented before, people with chronic back pain often have a low libido, with no real enthusiasm for sexual intercourse, but they do not get impotence from it.
…"

dr m . hamilton

Dr M. Hamilton, Urologist, prepared a report dated 17 September 1999 (Exhibit R3) in which he stated (inter alia):
"…
I consider that while he is on such very large doses of Morphia, for whatever reason, he will not be able to obtain normal erections.
Having said that, it is also apparent that his penis will function and therefore if the Morphia reduces his capacity to obtain an erection under normal circumstances, he could use one of the various devices to obtain an erection. These include vacuum pumps which are efficient, self injection with Caverject which is what the ultrasound had shown worked, the use of Viagra which has apparently only been tried once but should work, and an intra urethral chemical called Muse which might work if he was unwilling to use self injection, but the use of these will depend upon his motivation.
…"

applicant's submissions

Mr Humphries submitted, on behalf of the applicant, that the applicant's intelligence and personality must be taken into account in an assessment of his credit. He further submitted that Drs Bolt, Siow and de Sousa all support the applicant's contention that there is a 15 percent impairment pursuant to the Comcare Guide to the Assessment of the Degree of Permanent Impairment (the Guide). He also submitted that the evidence before the Tribunal is necessarily vague given the subject matter and medication history of the applicant.
He submitted that taking into account the global history of the application, on balance, the reasonable conclusion is that the condition is permanent. He also submitted that it is unreasonable to expect the applicant to use the vacuum pump or try injections. He further submitted that section 48 of the Safety Rehabilitation and Compensation Act 1988 (the Act) is inapplicable, as there is a distinct difference between the injury claimed in 1993 and the current one.
respondent's submissions
Mr Roder submitted, on behalf of the respondent, that there is no objective evidence to prove or disprove that the applicant suffers from impotence, and that he was an incredible and unreliable witness. He further submitted that the applicant's wife was also an unreliable witness. He questioned (inter alia) the applicant's responses in respect of a Viagra trial, MUSE cream, time of onset of the condition, and referred to the false report the applicant gave to the police in 1990.
He submitted to the Tribunal that the applicant has failed to undertake reasonable rehabilitative treatment, and that a reduction in morphine use may see significant improvements.
He submitted that the assault is an intervening act which breaks the chain of causation between the compensable back injury and the claimed impotence condition and that section 48 of the Act may apply to bar the claim.
discussion and findings
The Tribunal has only briefly set out the submissions and evidence before it, but takes all such evidence and submissions into account in coming to its decision. It will refer to the numerous authorities proffered by both parties as appropriate.
The Tribunal concurs with both counsel that there are three core issues to be determined in this case, namely:
(a)whether the applicant suffers from an impairment, and the extent of such impairment;
(b)whether the condition is permanent; and
(c)whether the condition is compensable.
Central to all issues, is the question of the applicant's credit and that of his wife. In that regard, the Tribunal considers that from the evidence before it, and from observation of both witnesses during the course of the hearing, neither the applicant nor his wife were deliberately trying to deceive the Tribunal, or intentionally manufacture their evidence for the purposes of advancing their claim.
Having said that however, there were glaring inconsistencies in their evidence. At times it was also extremely vague, particularly in relation to Mrs Harvey. Her recollection was so vague, that the Tribunal is wary of placing any weight on her evidence. It appreciates the difficulties she faced in talking about such matters as are before the Tribunal, but at times her presentation in this regard was inconsistent, for she appeared willing to talk about sexual matters at times in her evidence, but when pushed as to certain dates and recollections, became more circumspect and evasive, as opposed to simply appearing unable to recall such things.
The applicant's evidence contained such inaccuracies, forgotten accounts and inconsistent recall, that the Tribunal is hesitant to place any reliance on his evidence. Much of this is explicable by the medication he has been on for many years. It has clearly had a demonstrative effect on his life and mental state, amongst other effects to be considered further. The Tribunal is also cognisant of Mr Humphries' submissions as to the applicant's intellectual capabilities, and Dr Cross' observations in this regard. Whilst it is appreciative of the difficulties the applicant faced in giving his evidence, and whilst it accepts that he did his best to recall events accurately, the Tribunal faces the difficulty of the fact that his evidence was conflicting in significant areas, and inconclusive in others. One area of note, was the discrepancy between the applicant and his wife in relation to their sleeping arrangements. The Tribunal does not understand how such a discrepancy could have arisen unless one of the parties was not being entirely forthright, and it suspects that the wife's account was more plausible in this regard than the applicant's. Where you have been sleeping for a year or more is not something easily forgotten.

The evidence as to the false report to police and subsequent conviction in 1990 was extremely vague, to the point that there is effectively no recollection of that event by either the applicant or his wife. The Tribunal is mindful of the hospitalisation subsequent to the provision of the false report and the plea shortly thereafter. In the circumstances, and in light of the fact that such offending was a decade ago, the Tribunal does not attach particular significance to this event in its assessment of the applicant.
With these difficulties in mind, the Tribunal turns to the issues raised.
Does the applicant suffer an impairment?
From the evidence, the applicant first began to mention problems with impotence to doctors in late 1993, early 1994. The applicant told the Tribunal that he now recalls the onset of the problem by looking at the records. However, the Tribunal has some difficulty in accepting that the applicant has any actual independent recall of the onset of problems. Evidence was given by the applicant as to the temporal relationship between the assault in 1993 and the onset of problems, and of his commencement of morphine and the onset of problems, which was in conflict with the actual commencement of his morphine use. He offered an explanation that either he was thinking of another medication, or alternatively, that he had never been told he was going onto morphine based medication. In so far as Dr Siow clearly stated that he would have told the applicant upon commencement of morphine, and that Dr Siow was able to pin the date of commencement of morphine as being subsequent to the assault, the Tribunal cannot accept the applicant's evidence as to the onset of problems.
The applicant's wife told the Tribunal that she noticed problems from about late 1993, but later considered that they could have had a "full act" in or about February 1997. The Tribunal agrees with Mr Humphries that one would not expect recall of dates and times in such matters, but given various medical reports contain statements given by the applicant that they continued to have some sexual activity in 1995, possibly 1996 and at times suggesting February 1997, the Tribunal is not in a satisfactory position to pinpoint a time at which it could be truly said that problems arose. All that can reasonably be said, is that since about 1997, there appears to have been little or no success in achieving an erection suitable for penetrative sex, and the Tribunal so finds this to be the case. The Tribunal comes to this conclusion on the basis that it is the version of events most consistent with what the applicant has told various doctors. It has not placed any reliance on the applicant's wife's evidence, because in relation to this aspect, she was of no assistance to the Tribunal.
Perhaps in the end, the question of whether the applicant has a problem with impotence must be resolved in an entirely subjective way. Dr Lott was able to achieve what he called a "4+/5" level of erectile response, and considered this to be satisfactory for the purposes of penetration. The applicant's evidence was that he did not consider the erection obtained in that procedure to be suitable for penetrative purposes, and Dr Lott considered that there is always a subjective element to patient assessments, in that patients are often dissatisfied if the response is not equivalent to that which they were able to get when they were younger men.
Dr Lott told the Tribunal that there is no vascular problem. Mr Fry considers that there is no problem emanating from his back condition. Dr de Sousa and Dr Bolt consider that the compensable back problem may result in some neurological impairment, which could, on the balance of probabilities, contribute to his problem, but that the major cause of his problem is related to his morphine use.
All doctors, and this Tribunal, are almost entirely dependent upon the applicant's statements that he does have a problem. Whilst the Tribunal has stated its concerns as to his recall and accuracy, it does not doubt his credit in so far as his evidence, as supported by accounts he has given to doctors, and his wife's evidence, is that he has been impotent since at least 1997. Taking into account the medical opinion before the Tribunal, and that of the three urologists in particular, the Tribunal considers that there is consistent opinion to support the proposition that the applicant does indeed suffer from impotence, and the Tribunal so finds. Pursuant to table 11.1 of the Guide the Tribunal would place the applicant at 15% ("impotence in a claimant aged between 40 and 64 years with intact sexual organs").
Permanence
Sub-section 4(1) of the Act defines permanent as "likely to continue indefinitely". One reads this definition in the context of the claim arising pursuant to section 24 of the Act, and of particular relevance is sub-section 24(2):
"24.(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
          (a)       the duration of the impairment;
          (b)      the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)      any other relevant matters."
Sub-paragraphs (b) and (c) are of particular relevance to this case. In Re O'Maley and Comcare (1997) 48 ALD 300 Senior Member Dwyer and Member Woodard stated (inter alia) at p307:
"…
30. In McDonald v Director-General of Social Security (1984) 6 ALD 6 the full court of the Federal Court was considering the concept of permanent incapacity for work in the context of Social Security entitlements. Northrop J distinguished that issue from that of "permanent disablement" under workers' compensation legislation saying that the High Court in Wicks v Union Steamship Co of New Zealand Ltd (1933) 50 CLR 328 had "characterised the concept of 'permanent' as being forever". However, in view of the statutory definition of 'permanent' in the Act, the concept need not mean "forever: but "means likely to continue indefinitely". It is thus similar to that explained by Woodward J in McDonald at 13-14 when he said:
The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time. Unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market could bring to an end an incapacity which had been thought to be permanent.
In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future …
There will be many cases in the difficult borderline region between temporary and permanent incapacity where the Director-General or the AAT will have to decide which is the more appropriate description. It is not necessary to have a "settled expectation" of permanency before so finding; a belief – even on a fine balance – that indefinite duration is more likely than foreseeable termination, will suffice.
To decide whether indefinite duration is more likely than foreseeable improvement, it is necessary for us to consider the evidence as to "the likelihood of improvement in [Mr O'Maley's] condition". That is the factor specified in s 24(2)(b) of the Act.
…"
With respect, this Tribunal concurs with the approach taken in Re O'Maley. It is incumbent upon this Tribunal to be satisfied, on the balance, that indefinite duration is more likely than foreseeable improvement.
In respect of sub-paragraph 24(2)(c) of the Act, the Tribunal finds guidance from the approach of Deputy President McMahon and Member Elsum in Re Drage and Comcare (AAT 10925, 10 May 1996) wherein the Tribunal states (inter alia) at paragraphs 24 and 25:
"24. … The concept of "rehabilitation" in medical parlance conveys something less than that which is ordinarily regarded as serious surgical intervention. It is a question of degree as to when surgical intervention will constitute "rehabilitative treatment". That in turn will depend upon whether surgical intervention is of a minor nature, e.g. surgery to relieve the pain of carpal tunnel syndrome, or whether it is of a more serious nature. Consideration of open heart surgery involves, in the opinion of the Tribunal, something more than that which would be ordinarily encompassed by the term "rehabilitative treatment". If this view is correct, then in cases such as the one under consideration the provisions of s.24(2)(c) of the Act do not arise.
25. If, however, the Tribunal is wrong in its view that rehabilitative treatment does not include major surgical intervention of the sort contemplated, there is still a question as to whether it is "reasonable" to expect the employee (applicant) to undertake such surgery. The Act does not define the standard by which "reasonableness" is to be determined. In the opinion of the Tribunal, reasonableness should be interpreted to mean "reasonable in all of the circumstances". …"
In Re PAK and Commonwealth of Australia (AAT 4409, 8 June 1988), albeit in the context of different legislative provisions, the Tribunal, on the facts of that case, considered that it was not unreasonable to have refused injections or implants for treatment of that applicant's impotence.
Whilst in the context of "refusal to undertake treatment", which is slightly different to the present application, the High Court provided some direction on the issue in Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 wherein the Full Court stated (inter alia) at p351-2:
"…
… A court is not, save perhaps in exceptional circumstances to be mentioned hereafter, concerned with what in Tutton's Case Cozens-Hardy M.R. described as the question whether, on the balance of medical evidence, the operation may reasonably be performed on the worker. Its concern is, rather, with whether, judged in the light of the medical advice given to the worker at the time and all the circumstances known to him and affecting him, his refusal is unreasonable.
It follows that in the present case the extensive expert medical testimony showing that the operation might reasonably have been performed was irrelevant to the point in issue, the reasonableness of the appellant's refusal, since the facts deposed to were never known to the appellant, who was aware only of the treating surgeon's reticent and, if anything, rather discouraging statement about the operation that was recommended. Moreover the appellant had candidly confessed to his treating surgeon his fears regarding the operation and nothing had been said to dispel them. In those circumstances we cannot say that he was shown to have been unreasonable in refusing the operation and this despite the fact that the alternative facing the appellant was, as he had been told, that there would be no improvement in his condition…
…"
In Dragojlovic v Director-General of Social Security (1984) 52 ALR 157, Smithers J stated (inter alia) at p159:
"…
…The notion is that the injured party, having been given a right at law to be compensated by the other for the disability suffered, should not be compensated for disability which can be avoided or cured if reasonable medical treatment is undertaken…No doubt the case of a person who, for psychological reasons, simply cannot undergo treatment objectively reasonable would require special consideration in the light of the existence of a duty to mitigate.
…"
The phrase "on a fine balance" as used by the Federal Court in McDonald (as quoted in Re O'Maley supra) seems particularly apt in this case. Dr Bolt considered that it is reasonable to assume that if there is a real reduction in the applicant's morphine levels and an easing of his back pain, the applicant's condition should improve. He remained cautious however, given the inactivity of the applicant's penis over the last five or so years. Dr de Sousa considered that it was not appropriate to compel the applicant to have injections, thought that a pump was worth trying, and that it was unfortunate that, (on the history presented to him), Viagra did not work. Dr Hamilton considered that either Viagra, injections or a pump should work. He provided the Tribunal with a copy of the operating instructions for a vacuum erection system (Exhibit R8) to which the Tribunal has given attention.
The medical opinion suggests that there would need to be a significant reduction in morphine levels before that factor of itself may have a demonstrative effect in improving erectile response, bearing in mind the relative inactivity of the applicant's penis over the past five or so years. In whatever way the applicant's evidence is characterised, the Tribunal os satisfied that he has not had much erectile response in the past several years. The applicant is currently under the care of a psychologist, by virtue of which he has achieved significant reductions in his morphine levels, as well as enjoying significant, albeit relative, health improvements in the last few months. He is to be commended for his efforts in this regard. On balance however, given the applicant's extensive medication history, it is perhaps unlikely that miracles will happen, and that a significant further reduction in morphine levels can be achieved. The applicant was confident that some reduction could be effected, and the Tribunal considers that it is a reasonable proposition that some reduction in morphine levels can be achieved by the applicant.
The Tribunal agrees with Dr de Sousa that it is unreasonable to expect the applicant to try injections, and notes that Mr Roder did not argue otherwise. This is consistent with the principles in Dragojlovic (supra). As to whether the use of the vacuum pump is appropriate, Mr Humphries' submission ran somewhat contrary to the applicant's own evidence. Mr Humphries considered that the vacuum pump is such a fundamental intrusion that it is not a reasonable answer to impotence, given that it does not alleviate the underlying condition. The applicant told the Tribunal however, that he was more than willing to "give it a go", and the Tribunal notes that to that end, he attended an adult shop to purchase a device, which unfortunately turned out to be the wrong sort. That trip to the adult shop could not have been easy for the applicant, and the Tribunal considers that it is indicative of his willingness to try a vacuum pump. For the Tribunal's own part, it has reservations as to whether such a pump is reasonable in the circumstances, as it is clearly an intrusion and outside normal practice to a large degree. In the Tribunal's opinion however, the authorities on "reasonable rehabilitative treatment" indicate that an applicant's subjective appreciation of what is or is not reasonable rehabilitative treatment is an important and relevant consideration. The Tribunal must therefore be mindful of the fact that the applicant is willing to try the pump. From a vascular point of view, on the available objective medical evidence, there is no reason such a pump should not work, and this view is supported by Drs de Sousa and Hamilton.
"Reasonable rehabilitative treatment" does not necessarily mean treatment which will cure the underlying condition. It must be considered that if a treatment results in effective alleviation of symptoms (achieving erection in this case) and resultant management of the condition thereby, it is reasonable rehabilitative treatment.
In relation to Viagra, the Tribunal notes its general comments above regarding the applicant's reliability as a witness. His account in relation to trying Viagra was particularly vague and unreliable. It is clear that the applicant's recall and comprehension is not great in relation to this aspect, for as he wrote to Dr Hamilton, (ST17/698) (inter alia):
"…
… I DID NOT REALIZE I HAD BEEN ON VIAGRA FOR TWELVE MONTHS WITH NO REACTION APART FROM PAINS IN THE STOMACHE [sic]. …"

This appears to imply that the applicant thought at one point that he was regularly taking Viagra without his knowledge. In his oral evidence he indicated that he was trying Viagra several nights in a row, and then leaving it for several weeks and trying again over the course of six to nine months. The pharmacy records (ST11) indicate weekly or fortnightly prescriptions being filled between about October 1998 to November 1999, on the basis of at least four separate prescriptions issued by Dr Siow. The applicant told the Tribunal that he had some left over which he continued to use post November 1999. The nature of the applicant's evidence however, in light of his confusing written statement to Dr Hamilton, is such that the Tribunal cannot be satisfied on the balance, that the applicant has undertaken a proper monitored trial of Viagra. Whilst there have been numerous prescriptions filled, whether or not they have been used appropriately (or at all) is another matter. The Tribunal was not convinced by the applicant's evidence that he had made a reasonable commitment to trialing Viagra. It may well be that Viagra does not work for the applicant, but at this stage, on the balance, the Tribunal is not satisfied that the applicant has given it a reasonable trial. This may well mean that the applicant's use of Viagra is much more closely monitored by his treating doctors over a set period of time. Viagra is clearly within the range of treatments, in the Tribunal's opinion, that could be considered "reasonable rehabilitative treatment".
The Tribunal is forced to the conclusion, in the light of the foregoing, that at this point of time, in the absence of a proper monitored trial of Viagra, or one using the correct type of vacuum pump, that the applicant has not undertaken all reasonable rehabilitative treatment in accordance with the requirements of sub-paragraph 24(2)(c) of the Act. Further, given that such measures might produce effective results, and that it is intended that over the next few months the applicant will hopefully reduce his level of morphine dependence, the Tribunal considers that on a fine balance, as at the present time, it cannot be said that "indefinite duration is more likely than foreseeable termination". At this stage, it is not more likely than not that the condition will continue for such an indefinite period of time, for there is sufficient uncertainty on the evidence, to sustain such a conclusion to the Tribunal's reasonable satisfaction and the Tribunal so finds.
On this basis, the Tribunal is not reasonably satisfied that the requirements of sub-section 24(2) of the Act have been met, and accordingly, so finds that the applicant is not entitled to compensation pursuant to section 24 of the Act at this juncture.
The Tribunal notes that it has not considered the trial of MUSE cream, for despite some discrepancies in the applicant's evidence, there is insufficient material before the Tribunal to find either way in respect of the MUSE cream trial. It accepts, for the purposes of this decision, that the applicant tried MUSE cream without success.
Compensability (causation)
Whilst the Tribunal need go no further given the above findings, it is appropriate to canvas the issue of compensability (or causation) as it loomed large in this matter. The dispute, essentially stated, is whether or not the assault in 1993 constituted a novus actus interveniens by virtue of which the link between the compensable back condition and the claimed impotence condition was lost.
The Tribunal was referred to a large number of authorities on this issue. It is unnecessary to set out the oft quoted passages from Mason CJ in March v Stramare Pty Ltd (1991) 171 CLR 506 (see p515 and 518 in particular), wherein the "common sense" approach is strongly advocated. The Tribunal is also mindful of that body of law stemming from Home Office v Dorset Yacht Co Ltd [1970] AC 1026, and Lord Reid's comments therein in particular.

Before this Tribunal then, is an argument by Mr Roder, which he advances as common sense, (but which boils down to a "but for" argument), that it was only subsequent to the assault that the applicant commenced on morphine, and that this is an intervening act as a matter of common sense. Mr Humphries referred the Tribunal to the Northern Territory Supreme Court decision in Starr v Northern Territory of Australia [1998] NTSC 90 wherein Mildren J refers to Australian Eagle Insurance Company Limited v Federation Insurance Ltd (1976) 15 SASR 282 wherein King J stated at p287 (inter alia):
"It is clear since Harwood v Wyken Colliery Co [1913] 2 KB 158 that the injury at work need not be the sole cause of the incapacity in order to entitle the workman to recover. Even when some no-compensable supervening cause aggravates its effect, liability is not excluded unless the new cause entirely supersedes the original injury: Rothwell v Caverswall Stone Co Ltd [1944] 2 All ER 350; Hogan v Bentinck West Hartley Collieries (Owners) Ltd [1949] 1 All ER 588. As Lord Reid said in Hogan's case (supra, at 605) not only must the new cause come in but the old must go out; there must no longer be any cause or connection between the injury by accident and the present incapacity."

The medical evidence in this case suggests that the assault only resulted in a temporary aggravation and exacerbation of the applicant's symptoms. Such temporary aggravation was enough however, to result in the applicant being unable to sleep at night, and this was the reason that the morphine was first prescribed. Once he commenced on morphine, he has never been off, and indeed for several years, his levels of intake spiralled increasingly and alarmingly upwards.
Mr Humphries points to the applicant's medication history prior to the assault in 1993, and in particular, the drug overdoses in October 1990 and November 1991, contending that such is demonstrative of the fact that the applicant's drug regime was apparently not managing his levels of pain. It is also perhaps indicative of the applicant's inability to manage his own medication. In this way, the "but for" can be put in reverse; "but for the assault, the applicant would have required morphine, by virtue of the fact that his drug regime was failing to manage his pain levels".
In Starr, Mildren J continues at p9-10 (inter alia):
"Where a worker establishes incapacity resulting from an injury arising out of or in the course of his employment which is subsisting at the time of a second non-work related incident, there is authority that the burden of proving that any second incident is a novus actus interveniens and the sole cause of any subsequent incapacity rests upon the employer: Mills, Workers' Compensation (NSW) 2nd Edn., p237; Jordan v Metropolitan Water, Sewerage and Drainage Board [1943] WCR (NSW) 80; Bower v Meggitt (1917) 116 L.T. 178. This would seem to be consistent with the observation of King J in Australian Eagle Insurance Co Ltd, supra, that "not only must the new cause come in but the old must go out; there must no longer be any cause or connection between the injury by accident and the present incapacity,"; and with the approach of the High Court in Watts v Rake (1960) 108 CLR 158 at 160; 164."

Of course the difference in this case, is that prior to the assault, there is no morphine use. It is the morphine use, on the medical evidence, that must be considered to be that which is the main cause of the impotence, as it is only raised as a possibility that neurological nerve damage from the back injury is causative of impotence.
It could well be the case that "but for" the assault, the applicant would have ended up on morphine. It could equally be the case that "but for" the assault, the applicant would not have ended up on morphine. As Mason CJ tells us in March v Stramare however, the decision-maker is to return to common sense, and cannot rely on the "but fors" alone. Common sense tells us in this case to look to the facts and the medical evidence. Prior to the assault the applicant had significant problems managing his back pain on the non-morphine based drug regime. The best available medical evidence with some contemporaneous relationship to the assault is that the effects of the assault were only temporarily aggravating. After the assault, given sufficient time that one would expect to see the effects of the assault to have vanished, the applicant continues on morphine, and has high levels of back pain, which must, as a matter of common sense, be back pain unrelated to the assault.
On this basis, it is not clear to the Tribunal that as a matter of "common sense", it can be reasonably satisfied that the assault constituted an intervening act severing all connection between the applicant's impotence and the compensable back condition. The length of time subsequent to the assault during which the applicant has remained on morphine in particular, vitiates that proposition.
For its part therefore, the Tribunal is reasonably satisfied that there is a sufficient causal link between the compensable back injury and the applicant's impotence. Whilst perhaps not the sole cause, the compensable back injury has clearly remained a significant contributing factor and is present in the chain of causation in this case.
For the purposes of this decision however, the applicant has not satisfied sub-paragraphs 24(2)(b) and (c) of the Act, and accordingly, the Tribunal must affirm the decision under review. It considers however, that this decision would not necessarily be a bar to the applicant seeking compensation down the track should the rehabilitative treatments as outlined, not effect any successful change in erectile response.
Having said that, one would caution however, that the Tribunal has very strong reservations as to the reliability of the applicant as a witness. Of particular note in regard to any further rehabilitative work that may be performed, is the discrepancy between his account of the response achieved during the procedure performed by Dr Lott and the account of Dr Lott himself. It is the conclusion of this Tribunal that the discrepancies in the evidence would suggest that the applicant has unrealistic expectations of what can be achieved for a man of his age and background. Were the matter to come up again in the future, his word alone would not be enough to convince the Tribunal that any such rehabilitative work was not working.
The Tribunal is optimistic that the applicant will see results from rehabilitative treatment however, and is hopeful that the applicant can continue to reduce his levels of morphine dependency.
Finally, the Tribunal does not consider that section 48 of the Act has a role to play here and so finds. There is clearly a difference in the Tribunal's opinion between the injury that compensation was received "in respect of" in the criminal injury compensation proceedings resulting from the assault and the injury claimed in these proceedings. The criminal injury compensation claim includes a head of claim for "decline in sexual life" which is to be factually distinguished as an "injury" from this impotence claim. "Decline in sexual life" does not necessarily relate to impotence, but could arise as a result of any of the other problems which arose as a result of the assault. There is a sufficient factual distinction to be drawn in this case between the two "injuries", consistent with the approach taken by the Full Federal Court in Telstra Corporation Limited v Barrow (1994) 35 ALD 461.
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Ms U. Dahl (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  29-30 May 2000 & 19 July 2000
Date of Decision  3 August 2000
Counsel for the Applicant        Mr P. Humphries
Solicitor for the Applicant         Duncan Basheer Hannon
Counsel for the Respondent    Mr M. Roder
Solicitor for the Respondent    Norman Waterhouse