Hicks and Comcare - [2000] AATA 271

DECISION AND REASONS FOR DECISION [2000] AATA 271

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A99/217

General Administrative DIVISION )

Re KEITH LINDSAY HICKS
Applicant

And COMCARE
Respondent

DECISION

Tribunal Mr Peter Bayne, Senior Member

Date7 April 2000
PlaceCanberra

Decision The Tribunal sets aside the decision under review and in its stead decides that in the period 7 to 30 April 1999 the applicant was, as a result of an injury as defined in section 4 of the Safety Rehabilitation and Compensation Act 1988, incapacitated for work, and is entitled to compensation under that Act.

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CATCHWORDS
COMPENSATION – injury – incapacitated as a result – hearsay evidence – costs general practice

Legislation

Safety Rehabilitation and Compensation Act 1988 s 24

Authorities

A and B v Director of Family Services [1996] ACTSC 48
Re Ileris and Comcare (1999) 56 ALD 301
Telstra Corporation Ltd v Barrow (1994) 19 AAR 523

REASONS FOR DECISION

7 April 2000

Mr Peter Bayne, Senior Member

This is an application to review a decision of an Independent Review Officer ("the IRO") of the respondent, made on 28 June 1999 (T 24). The decision denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of a period of absence of the applicant from his work. This closed period is from 7 to 30 April 1999. At the hearing, the Tribunal had before it the documents ("T documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and a number of documentary exhibits. It should be noted that these Reasons were written without the benefit of access to a transcript of the hearing.
In terms of the relevant law, I need note only the definition of injury in the Act. Section 4 defines injury exhaustively:
"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, that 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.
The applicant was born on 22 November 1958. He was for some years prior to 1994 a Wardsman in the Woden Valley Hospital. There is no dispute that in February 1995 the applicant suffered a compensable injury to his lower back. It is now described as "lumbo-sacral facet joint strain". This is apparent from the terms of a decision of this Tribunal of 8 July 1999, in the matter A98/355 – Exhbit A4. That decision was to the effect that the applicant was incapacitated for work as a result of the injury in the period 21 January to 2 February 1998.
As a result of the February 1995 injury, the applicant had various periods off work. When he has he worked it has, for the most part, been as a courier in the mail room.
It was while in that employment that the applicant claims to have been incapacitated from work for the period 7 to 30 April 1999. The claim form (T 13) described the injury which led to this period of incapacitation as "L5 S1 Disc Injury – increased symptoms of previous work injury" (T documents 043). It was also described as an increase in the level of "lower back and leg pain" from the L5 S1 disc injury (044). It was said that the condition was first noticed on 31 March 1999, and occurred while "doing my normal duties – no frank incident which I can recall which increased my pain levels" (044).
The primary decision-maker disallowed the claim on the ground that she was not satisfied that there was a causal relationship between the injury and the workplace (T19). It was said that "[n]o sequence of events is evident, no incident was described which could be construed to have caused your complaint" (057). This is wrong in that it appears to assume that there must always be a particular event giving rise to the injury. Many claims are, as is this one, based on the injury having arisen out of the nature and circumstances of the work. This is an acceptable basis for a claim.
On the basis of reports by Dr Kitchin and Dr Hopkins, the IRO of the respondent affirmed this primary decision on 24 June 1999 (T 24). Dr Kitchin had seen the applicant on 12 April 1999 at the request of the applicant's solicitors in respect of the January 1998 claim (A98/355), and reported on 13 April 1999 (T 15). Dr Hopkins had seen the applicant on 27 April 1999 at the request of the respondent's solicitors in respect of the January 1998 claim (A98/355), and reported on 7 May 1999 (T 20). It is to be noted that both examinations took place during the closed period (7 April to 30 April 1999) in issue in this matter. Based on matter in these reports, and the alleged fact that "[n]either … noted any increased symptoms at the time of examination", the IRO found that the applicant had not suffered an increase in his symptoms on 31 March 1999, and was not incapacitated in the closed period.
Before me, the respondent's argument was much more complicated. In particular, the applicant was cross-examined at length on video-recordings made of him undertaking various activities over the period 3 October 1996 to 21 November 1996. (There is a brief description of them in T 23). As a result of these investigations, the respondent informed the applicant that from the 20 March, the applicant was no longer entitled to incapacity payments (see T document pages 79 and 80, added by the respondent on 20 October 1999). There was no reconsideration of any prior payments, and the applicant was not proceeded against in any other way. And, of course, Comcare could not disable the applicant from making a claim for incapacity payments, which he did in relation to the January 1998 matter. It has been noted that Comcare accepts that in February 1995 the applicant suffered a compensable injury to his lower back, now described as "lumbo-sacral facet joint strain". Furthermore, Comcare accepts that the applicant was incapacitated for work as a result of the injury in the period 21 January to 2 February 1998.
The only issue in this matter is whether that injury produced an incapacity in the closed period.
Much reference was made to reports by doctors concerning the applicant's condition and so forth at times other than the closed period. These reports are in the T documents, and I will review them briefly here. It should be taken that I have reviewed them carefully and taken into account the submissions of counsel at the hearing.
I should note at the outset that for all of the period from late 1994 to date, Dr Kate McCallum has attended to the applicant as a treating doctor. She was one of a team at a staff clinic at the Hospital until 1996. From then on, she has been in practice as a GP. Her report that is Exhibit A1 is a useful review of some of the history, and states her opinion as to the facts in issue.
On 7 April 1995, Dr Roth, a medico-legal consultant, reported to the respondent (T 3). He found that on 11 February 1995 the applicant had suffered "musculo ligamentous injuries to his lumbar spine", and that it was "too early" to determine whether there had been any permanent effect.
The next step was a CT scan on 3 July 1995, arranged by Dr McCallum. She says that it "showed a L5/s, disc prolapse in contact with the S1 nerve root" (A1, at 2).
Dr McCallum referred the applicant to Dr Ashman, an orthopaedic surgeon, for an opinion as how to proceed in treating the applicant. The examination took place in early October 1995, and the report is T 4. He recommended conservative treatment. It is noted that he found that on examination "there was no true nerve root tension". He noted too that "it is inevitable that his back condition will be aggravated at some stage in the future if he returns to lifting and bending again".
There followed periods of return to work, and absence from work. In late August 1995, the applicant reported a worsening of his pain. Dr McCallum referred the applicant again to Dr Ashman. In late October 1995 he again advised conservative treatment and not surgery.
The respondent obtained a report from Dr Jones, a medico-legal consultant, on 14 November 1996 (T 5). Dr Jones saw the applicant on 5 November 1996. It is noted that his examination of the applicant revealed "a definite asymmetry of his ankle reflexes, the left being reduced compared to his right". He also noted that the applicant had "injured his back in a classic way, lifting a patient on 11 February 1995", and that the applicant's condition was directly related to that injury. He considered that the effect of that injury would be temporary, although the applicant remained symptomatic. He also thought that "walking for long periods will tend to aggravate his low back symptoms".
After being supplied with the videos of the applicant, Dr Jones opined in a report of 14 February 1997 (T 6) that the applicant could undertake "a far greater level of physical activity than he had acknowledged", and could return to full-time work as a wardsman. He did not otherwise clarify what he had said earlier.
Meanwhile, a Dr Corry had obtained an MRI scan on 9 December 1996. Dr McCallum notes in Exhibit A 1 that this "showed L 5 S 1 disc degeneration with central bulge and annular tear which was considered to be a reasonable explanation for [the applicant's] condition. Dr Corry felt the disc was probably in a better state than on the previous CT scan".
On 17 February 1997, the applicant was seen by Mr Griffith, another medico-legal consultant contracted to report to Comcare (T 7). Without, perhaps, the benefit of the videos, he reported on 24 February 1997. His examination revealed only "a somewhat obtunded left ankle jerk, and subjective pain in the left thigh" (T document 025). He diagnosed degenerative disc disease involving the L5/S1 disc, "which is the site of a minor left sided protrusion", and "possible musculo-ligamentous strain of the lumbar spine". He found that the disease of the spine was aggravated by the lifting episode of 11 February 1995, and that his condition as at 17 February 1997 was related to that injury, "albeit with a significant decrement in symptoms". He accepted that the episode of 11 February 1995 created "some permanent effect or damage in the form of an annular tear of the lumbosacral disc". He thought that the symptoms were subsiding.
T 8 is a supplementary report from Mr Griffith, dated 18 February. It refers to the videos. (The date may perhaps be a mistake; perhaps it should be 18 March.) He too thought that the applicant could return to full-time work as a wardsman.
By March 1997, Dr McCallum had become aware of the videos. T 9 is a letter she wrote to Mr Kelly, of Comcare's investigation arm. At page T documents 036 she notes what was revealed to her by the videos. She agreed that the applicant's recovery "was better than I expected". Given the relatively small nature of the prolapse, "progress had been expected to be good with eventual recovery" (037). She added that the applicant "still complains of some numbness in his leg consistent with nerve root irritation but this is manageable and he does not need analgesics". She recommended his working in the mail-room, and not on the wards.
On the medical evidence just reviewed, there is reason to think that by April 1999, the injury to a disc in the applicant's back in February 1995 should not be expected to give rise to an episode of pain in the closed period. But this view needs to be qualified. The strongest support comes from two medico-legal experts retained by the respondent. These doctors were not treating doctors, and neither spoke to the applicant before commenting on the video material. The treating GP took a different view about what the videos suggested about the work capacity of the applicant, and her view was accepted in the workplace. The applicant stayed in the mail-room. In addition, the focus is on what was the case by April 1998, and in this respect the later medical reports are of more value.
As Dr McCallum records in A1 (pages 4-5), the applicant reported episodes of worsening pain. This brings us to the events of late March and early April 1999.
The applicant obtained medical certificates for the closed period absences, (T 11, 12 and 14). They are of no assistance.
Dr McCallum was examined on the notes made by Dr Fitt, who saw the applicant at Dr McCallum's surgery on 7 April 1999, and on notes she made in respect of visits of 8 and 13 April. Dr McCallum explained notations, and adhered to her opinions expressed in Exhibit A 1, a report written for this proceeding.
In Exhibit A 1, Dr McCallum said that her findings on the examination of the applicant in April 1999 "revealed slight limitation of flexion, extension of the lumbar spine, more restriction of straight leg raising and now diminished reflexes at the left knee". She believed that the cause was the applicant's "underlying lumbosacral disc injury sustained in 1994". (In the history of these events, the disc injury is often put at February 1995, but there is evidence of a problem from late 1994.) She said that "when [the applicant] has more severe episodes of pain he usually develops muscles (sic) spasms and is restricted in his ability to walk making him entirely unfit for work". Referring to episodes of pain and disability over 1994 to 1999, Dr McCallum said that
"when [the applicant] did complain of pain he appeared obviously uncomfortable and limped although he was not always aware of this. There was at no time any suggestion of exaggeration of symptoms and [the applicant] was always compliant with recommended treatment and return to work programs. I feel that [the applicant] coped well with his pain considering the lesion seen on CT and MRI scans".
7. I believe ]the applicant's] pain has stabilised at his current level of low grade backache and left leg pain and numbness. I believe intermittent worsening of the pain will occur as in the last 5 years … . It is possible longer periods of more severe pain may occur … .

In examination in chief, Dr McCallum was taken to various points in her reports and clinical notes to elicit the grounds for her opinion that the cause of the applicant's pain was the applicant's underlying lumbosacral disc injury. In cross- examination, she was asked about her notations concerning drug prescriptions, and about her views on what the videos indicated. Her responses were direct and clear, and consistent with her written report in Exhibit A1.
Relative to the opinions of the other doctors, I have attached significant weight to Dr McCallum's opinion. She has seen and treated the applicant on many occasions from late 1994 at least. She is not a specialist, but has worked in a hospital staff clinic. I take notice of the relatively high incidence of back problems suffered by nurses and wardsmen; (and see P Leggat, "The epidemiology of back pain in nurses: a review of lifting as a factor" (1996) 12(4) Journal of Occupational Health Safety 431). It is thus likely that Dr McCallum has had reason to become much acquainted with patients with back problems.
Dr Kitchin saw the applicant on 12 April 1999 at the request of the applicant's solicitors in respect of the January 1998 claim (A98/355), and reported on 13 April 1999 (T 15). Dr Hopkins saw the applicant on 27 April at the request of the respondent's solicitors in respect of the January 1998 claim (A98/355), and reported on 7 May 1999 (T 20). Both reports were much discussed at the hearing. They are of some assistance, in that both were written within the closed period, based on examinations of the applicant within that period. Nevertheless, neither report is addressed to the condition of the applicant at that time. This reduces their value in this matter. Neither doctor was given a picture of what happened at the end of March 1999, and neither attempted to answer the question of the applicant's capacity for work at that time. Both reports looked back to early 1998, and gave a general view of the applicant's capacity for work in the mail-room.
I interpolate here a reference to the evidence that the applicant was able to drive his car to meet his appointments with Drs Kitchin and Hopkins. The point made was that this indicated that the applicant was not incapacitated for his work in the closed period. With respect, I think that in this regard very little, if any, weight attaches to this evidence. The applicant's case is that a 'flare-up' of his pain renders him unable to walk such as is necessary to do his job in the mail-room. His ability to drive a car for what is not, in Canberra, a long distance, is largely irrelevant. I have given it weight, but not much.
On 12 April 1999, the applicant saw medico-legal consultant Dr Kitchin at the request of the applicant's solicitors. His report of 13 April is at T 15. It notes the circumstances of the 1994 injury to the applicant's lower back in 1994. The doctor reviewed an X-ray of 11 July 1996, and an MRI scan of 9 December of that year. He concluded that "[t]his patient had a significant low back injury in 1994 which on the evidence was due to an L5/S1 disc lesion and the MRI of 1996 confirmed then a disc protrusion and an annular tear". He noted the applicant's reports of episodes of increased pain in his lower back and left leg at times in 1998 and 1999. The doctor's prognosis was that "[f]or the future [the applicant] will continue to have ongoing low back pain and left lower limb pain and will have acute episodes during each year necessitating time off work".
In some contrast is the report of medico-legal consultant Dr Hopkins of 7 May 1999, based on an examination of 27 April 1999. Dr Hopkins reported to solicitors for the respondent. The report addresses a number of questions asked of him by the solicitors. The questions are set out in the report. The primary concern was with events in January 1998. It is noted that Dr Hopkins refers to those events as having caused an "exacerbation of pain around that time" (T documents page 064) (rather than their having had a permanent effect). This is how the applicant puts his case here. That is, that he suffers from 'flare-ups' of pain from time to time. Dr Hopkins appears to accept that this is the case. He did note that at 27 April 1999 the applicant had, on the applicant's account, recovered from a flare up (T documents 061). Dr Hopkins does not doubt this account, and, as noted, accepted a history that included a flare up in January 1998.
Dr Hopkins' general assessment was that while the applicant had some "mild disc pathology", there was no evidence of a disc protrusion "sufficient to produce thecal irritation or nerve root impingement" (062). This comment was part of a chain of reasoning to his view that the January 1998 events had not aggravated his disc pathology. He was not addressing here the question whether the state of the applicant's back could produce occasional exacerbations of pain. As noted, he appears to accept that such exacerbations occur.
In conclusion, Dr Hopkins stated that the applicant's employment in the mail-room "is perfectly within his capabilities" (066). This is consistent with the view, implicit in his report, that the state of the applicant's back could produce occasional exacerbations of pain.
This leaves the medico-legal-report of Dr Kitchin of 8 June 1999. It is a reaction by him to viewing the video material given to him by the applicant's solicitors. Dr Kitchin addressed the general issue of what work the applicant was fit to take on. The video material indicated to him that the applicant was not fit for work as a wardsman, but was fit for work in the mail room. Of the latter, he said that "[n]one of the activities that this work entails would cause any aggravation of his lumbar condition" (T documents 070). Just prior to this statement, Dr Kitchin said: "[f]or the future I would anticipate [the applicant] to have intermittent episodes of low back pain with associated leg pain".

I do not see any inconsistency here. A little more clearly than Dr Hopkins, Dr Kitchin is distinguishing two situations: on the one hand, the contribution that the mail-room work may make to an aggravation of his lumbar condition – in the sense of a worsening of the underlying condition – and, on the other, the contribution that the work may make to an occasional exacerbation of the underlying condition, in the form of a flare-up of pain. Dr Kitchin, as I think does Dr Hopkins, accepts that the latter may and does occur.
The applicant's case here is that this latter situation occurred in the closed period. There is the evidence of Dr McCallum that it did. Her analysis can stand with the medico-legal reports of Drs Kitchin and Dr Hopkins.
It remains to note the evidence of the applicant. He gave evidence of what occurred just prior to and within the relevant closed period. His evidence in chief supported his case that he suffered an exacerbation of pain at this time. The line of cross-examination was designed to elicit evidence that the applicant did not in fact suffer such pain as incapacitated him.
It was put to the applicant – and accepted by him – that at times from 1991 to 1996 he had taken time off work to an extent that he was "counselled" about the matter. (I take it this was counselling in the sense of criticism, and not in the sense of comforting.) In the end, I cannot see any relevance in this evidence. It was never put to the applicant that he was at these times a malingerer.
The applicant was questioned extensively about the video footage. He was asked several times how it was that he was able to travel by car to Towamba – some 3 hours from Canberra; load various items into the boot of the car, and carry some work – primarily hacking or chipping at weeds with a mattock – while unable to work (and on compensation leave) on those particular days. His answer was to the effect that these activities did not require much exertion. In particular, he did not do much walking, and what he did was done slowly. He also distinguished these activities from what he was required to do as a mail-room courier. His point appeared to be that while he could undertake some physical work, he could not do what the mail-room work required.
The video evidence does create something of a problem for the applicant. The medical opinion evidence has grappled with that problem and I accept that what the videos show is not inconsistent with the medical basis of his case. There was no evidence that the applicant has been caught out lying about his physical activities, and the video evidence does not damage his credibility.
The respondent put to the applicant that he had told Dr Hopkins on 27 April 1999 that he did some fencing at the country property every 2 – 3 months. The applicant denied this. The Tribunal was invited to disbelieve the applicant. The respondent's assertions are based on a passage in the report of 7 May of Dr Hopkins (T 20 – see page 061). Dr Hopkins records that "[The applicant] has some land in the country and he goes into this area from time to time, about every two to three months, to so some fencing". If this were the case, the applicant's false denial would reflect adversely on his credibility, and the statement to Dr Hopkins would be an admission damaging to the applicant.
The making of this statement was not proved in a way that would satisfy the rules of evidence. Dr Hopkins did not give oral evidence of the making of the statement, and the document - Dr Hopkins' report – was not made by the applicant; (cf sections 81 and 83 of the Evidence Act 1995 (Commonwealth)). In other words, the attempt was made to prove that the applicant made this statement by hearsay evidence. As such, it is not necessarily inadmissible; section 33(1)(c) of the Administrative Appeals Tribunal Act 1975.
It is not at all unusual for the Tribunal to be faced with a situation in which Comcare seeks to rely on admissions made by an employee to a doctor concerning the employee's physical abilities and such like. Most often, those admissions are recorded in a report made by the doctor. Where the doctor gives oral evidence, he or she may be cross-examined in order to test the accuracy and reliability of what has been recorded, or to clarify any vagueness and ambiguity in what may have been recorded. Where the doctor does not give oral evidence, the employee does not have this opportunity. In this latter situation, the Tribunal must be careful not to assume that the doctor's record must be correct, and discount the employee's account of what he or she said to the doctor; (see generally, A and B v Director of Family Services [1996] ACTSC 48, per Higgins J, and Re Ileris and Comcare (1999) 56 ALD 301.) In my not very extensive experience on the Tribunal, I have found that what a doctor has recorded in a report about something said by a person does not accord with what the doctor had written in notes made contemporaneously with the statements made by the person.
This is indeed the case here. The notes made by Dr Hopkins when he saw the applicant on 24 April 1999 state: "Goes to country friend has land in country. Does some fencing etc every 2-3/12". In some key respects, this is quite different to the statement in the report that "[The applicant] has some land in the country and he goes into this area from time to time, about every two to three months, to so some fencing". The land is not that of the applicant, but of the friend, and it is not only fencing that the applicant is said to have admitted to doing, but fencing and other activities. The significance of this is twofold. First, it casts doubt on the reliability of Dr Hopkins as an historian of what the applicant told him. This in turn casts some doubt on whether Dr Hopkins understood what the applicant told him in the first place. Secondly, the record in the notes is largely consistent with what the video evidence shows – that the applicant does go to the country to help his friend, and that he does undertake various activities.
The discrepancy between what Dr Hopkins recorded in his report of 7 May 1999, and what is in his notes, largely removes the point that the respondent sought to make.
The applicant was questioned about what he had said in a statement made on 8 April 1999 (see Exhibit A2) in relation to the matter A98/355 (see para 2, above). Central to that matter was whether in January 1998 the mode of operation of a hospital system for distributing blood to places where it was needed was such as to have imposed such a workload on the applicant that his back condition was one or other of aggravated or exacerbated. Speaking of this time, the applicant said in Exhibit A2, paragraph 12, that "the extra workload that I had to do including climbing stairs and walking greater distances aggravated my back and sciatic nerve condition". At paragraph 13, the applicant said: "The symptoms in my lower back and left leg have returned to their normal level where I am able to do my normal duties in the hospital mail room and I am now back doing my normal duties as a mail courier".
It was this last statement that the respondent fixed on as indicating that at the time the applicant signed the statement – which is within the closed period – the applicant could have performed his normal duties in the hospital mail room. This was put to the applicant. He replied that he understood this statement to refer to the fact that he had returned to duties. This he had done after the period off work after the January 1998 events. Given the purpose of his making this statement of 8 April 1999, this is a reasonable view. This statement is about what happened after January 1998, and is not about what was happening to him on the date he signed it. (There was also evidence from the applicant that he had had the statement for some time before he signed it in his solicitor's office. This may also explain why the statement at paragraph 12 is unqualified). I also take into account what was said at paragraph 13: "I continue to experience chronic lower back and leg pain". This probably a reference to his general state, and not to what was happening to him on 8 April. It is consistent with the applicant's case – that he can, despite his chronic pain, do the mail-room work, but that he does occasionally have flare-ups that render him unable to do the work.
I note here that the respondent's facts and contentions do not draw attention to the significance of what the applicant said in Exhibit A 2. That may be because the respondent was unaware of the statement when the facts and contentions were made (being 18 November 1999). If the respondent was so aware, the respondent's view of the significance of what the applicant said in Exhibit A 2 should have been notified to the applicant and to the Tribunal.
The respondent put to the applicant that he had told Dr Kitchin on 12 April 1999 that he was "able to bend and his main problem is with walking, although he does not have any particular restriction in walking distance" (T documents at 051). The applicant's attention was drawn to statements of opinion by Dr Kitchin that the applicant was unrestricted in his mobility (ibid).
Again, attempt was made to prove that the applicant made this statement by way of hearsay evidence in the form of Dr Kitchin's report. On this occasion, I am unable to check on the accuracy of the report against the clinical notes of its author. This necessarily weakens the value of the evidence. I note that Dr Kitchin is "in the camp" of the applicant. I note too, however, that the respondent's facts and contentions did not notify the applicant that the doctor's report of 13 April would be used as a basis for proof that the applicant had made admissions to the doctor. All that was noted was the doctor's opinion as note above.
As I understood it, the applicant's responses to this line of questioning was that he was in some pain when he saw Dr Kitchin. So far as concerns the latter's opinion about the mobility of the applicant, it must be noted that this was directed to his capacity for work in the mail room, and not to the applicant's condition at that particular time. It may be inferred from the report (T documents 050) that the applicant told the doctor he had been off work for the previous 6 days due to leg and lower back pain. Dr Kitchin cast no doubt on this.
Finally, the applicant was cross-examined on what he was said to have told Dr Hopkins on 27 April 1999 about some matters other than those dealt with above. These other matters concerned the applicant's ability to walk and how much time he had spent in bed in the previous 2 weeks. I have referred above to the difficulty I have in accepting Dr Hopkins as a reliable historian. I any event, I do not regard the particular statements said to have been made by the applicant as admissions against interest.
The cross-examination of the applicant was thorough and proper. The respondent's case was that the applicant's absence from work in the closed the cross-examination damaged the credibility of the applicant or obtained from him admissions.
I find that the applicant was incapacitated for his work in the closed period and that the cause of this incapacity was the exacerbation of the compensable injury. The latter is a "lumbo-sacral facet joint strain", and it was suffered in late 1994 or early 1995. In terms of the definition of "injury" in section 4 of the Safety Rehabilitation and Compensation Act 1988, the applicant has an injury that has arisen out of the course of his employment. This injury is such that from time to time it is exacerbated by the nature of the employment and produces an incapacity for work. This is what occurred in the closed period in issue in this matter.
It will be apparent from the above that I have based my findings on the analysis I have made above of

the evidence of Dr McCallum, the treating GP;
the evidence of the applicant; and
an analysis of the medico-legal report of Dr Hopkins of 7 May 1999, and the two medico-legal reports of Dr Kitchin, of 13 April and 8 June 1999.

I found the earlier medical reports to be of less assistance. They were not given contemporaneously with the events surrounding the closed period. What may be drawn from them is not inconsistent with my findings.

The appropriate decision is to set aside the decision under review. In its stead, I decide that in the period 7 to 30 April 1999 the applicant was, as a result of an injury as defined in section 4 of the Safety Rehabilitation and Compensation Act 1988, incapacitated for work. He is entitled to compensation under the Act, the calculation to be made by the respondent.
I consider this an appropriate case to order that the Respondent pay the costs of the Applicant under s 67(8) of the Act, and having regard to the terms of the General Practice Direction. In this respect, I adhere to the practice of the Tribunal whereby it may publish a decision which addresses the issues of costs even though that issue not been raised at the hearing. That the Tribunal may do so is clear from what was said by Carr J in Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 at 540:
I would like to stress that nothing which I have written here should be taken as criticism of what I understand to be the normal method whereby the Tribunal publishes its decisions including decisions involving costs orders. The interests of administrative efficiency and natural justice are doubtless both well served by such a procedure in the vast majority of cases. However, occasionally a case will arise where the question of costs may fairly be a matter of contention upon which the parties would wish to be heard and are entitled to be heard. In my opinion, this was such a case. I have not overlooked the fact that counsel can always, at the conclusion of a hearing, ask for an opportunity to be heard on the question of costs. I accept that from a tactical point of view this may not always be a course which counsel would wish to take.
Although Carr J observes that there may be circumstances in which the Tribunal will be obliged by natural justice to provide an opportunity to the parties to at least comment on a proposed order as to costs, I do not think that this is such a case.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Peter Bayne, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  18 November 1999
Date of Decision  April 2000
Counsel for the Applicant        Harris
Solicitor for Applicant               Capital Lawyers
Counsel for the Respondent    Max Wallace
Solicitor for the Respondent    Blake Dawson Waldron