Hodges and GIO Australia (for Telstra Corporation Limited)

[2004] AATA 346

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 346

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION         N2002/447    N2002/1417

Re: Anthony James HODGES

Applicant

And: GIO Australia (for Telstra Corporation Limited)

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member        

Date:             2 April 2004

Place:            Sydney

Decision:The Administrative Appeals Tribunal:

i) sets aside the respondent’s reviewable decision dated 11 February 2002 to cease liability for compensation in respect of the applicant’s injury. In substitution I find that the respondent is liable under s.19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) to pay the applicant compensation for the partial incapacity from 7 September 2001 resulting from his injuries. The matter is remitted to the respondent to determine the amount of compensation.

ii)  affirms the reviewable decision dated 10 September 2002 denying liability under ss.24 and 27 of the Act in respect of any permanent impairment resulting from the applicant’s injuries.

The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the Tribunal.

. . . . . . . . . . . . . . . . . . . . . . . .

P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS Compensation – liability accepted for work injury to back – pre-existing degenerative back condition - liability ceased – whether injury has resulted in incapacity and impairment – decisions under review varied

Safety, Compensation and Rehabilitation Act 1988  ss.4, 14, 19, 24, 27, 29

Australian Postal Corporation v Bessey (2001) 32 AAR 508

Re Prica and Comcare (1996) 44 ALD 46

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      Anthony James Hodges has applied to the Administrative Appeals Tribunal for review of two decisions made by the respondent.

2.      Mr Hodges sustained an injury on 11 January 2000 while working as a phone technician for Telstra Corporation Limited. On 28 January 2000 he lodged a claim under the Safety, Compensation and Rehabilitation Act 1988 (the Act) for compensation in respect of that accident describing it as follows:

I was observing the cable route for possible test points when I collided with the unseen mound of dirt on the shoulder of the track causing a severe jarring effect, resulting in soft tissue damage to the lower back. (Ta3 in the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 relating to proceeding N2002/447)

3.      On 31 January 2000 the respondent accepted liability in respect of “soft tissue injury to lower back” (Ta6). Weekly compensation payments commenced from 20 January 2000. Mr Hodges was placed on restricted duties. Restrictions included “Sitting for no more than ½ hour at a time.  No lifting, no bending, no pushing, no pulling, no trunk twisting, no walking on uneven ground, no squatting, no climbing, no travelling” (Ta12).

4.      By determination dated 7 September 2001 and effective from that date, the respondent ceased liability to pay compensation for the soft tissue injury to the lower back.  This determination was made after the respondent received a report from Dr D. Maxwell, orthopaedic and spinal surgeon, dated 27 July 2001 (Ta97) which stated that the effects of the motor vehicle accident were of a temporary nature and would have settled after three months.  Mr Hodges wrote to the respondent on 14 November 2001 to request a reconsideration of the determination dated 7 September 2001 and enclosed medical reports from Dr J. Croker, rheumatologist.  After reconsidering the matter, a delegate of the respondent affirmed the determination of 7 September 2001 by way of a reviewable decision dated 11 February 2002.

5.      Mr Hodges made a claim for permanent impairment of the thoraco-lumbar and cervical spine and lower limbs on 12 August 2002. Medical reports from Dr Croker and Dr K. Bleasel, neurosurgeon, were forwarded in support of this claim. The respondent denied liability for this claim by determination made on 16 August 2002. The applicant requested reconsideration but the determination was affirmed by reviewable decision dated 10 September 2002.  Mr Hodges has applied to the tribunal for review of the two reviewable decisions.

6.      At the hearing, Mr D. Andrews of counsel appeared for Mr Hodges and the respondent was represented by Mr G. Johnson of counsel. The applicant gave evidence and called Dr Bleasel and Dr Croker to give evidence on his behalf.  Dr  Maxwell,  Dr J. O’Neill, a consultant neurologist, and Dr S. Potter, a rheumatologist, gave evidence on behalf of the respondent.

issues

7.      The issues are whether Mr Hodges is entitled to payment of compensation:

·under s.19 of the Act in respect of incapacity for work from 7 September 2001 as a result of a compensable injury.

·under ss.24 and 27 of the Act for a compensable injury that has resulted in a permanent impairment.

In opening Mr Andrews referred to the applicant’s employment history.  For many years he has carried out demanding physical work.  It was said that prior to the accident on 11 January 2000, problems with his cervical and lumbar spine had not manifested themselves.  That accident has permanently aggravated a congenital condition that hitherto had been asymptomatic. The respondent’s position was that the effect of the accident on 11 January 2000 was to aggravate Mr Hodges’ underlying lumbar pathology.  However, the aggravation or worsening of that pathology had ceased, at least from 7 Septmber 2001 if not earlier.  Mr Johnson submitted that Mr Hodges’ neck was not injured in the accident, nor were his legs.

injury

8.      Section 14(1) of the Act provides that an applicant is to be paid compensation for an injury if the injury has resulted in an incapacity for work or an impairment.  The Act contains the following relevant definitions in s.4(1):

In this Act, unless the contrary intention appears:

…

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;

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 or a licensed corporation.

The following definitions are also relevant:

aggravation includes acceleration or recurrence.

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

9.      Since leaving school Mr Hodges said that he has worked as a courier and he also did heavy, physical work for approximately seven years at Pacific Power, in construction and maintenance of power lines.  His subsequent linesman work for Telstra was similarly hard and physical.  He said he did not have any problems or pains in his neck, shoulders, back or buttocks prior to the accident on 11 January 2000.  He played sport and kept fit.

10.     During cross-examination, however, Mr Hodges acknowledged that he had suffered from acute back strain in March 1990 requiring three days off work.  He agreed with Mr Johnson that in April 1987 he had time off, again from Pacific Power, for an acute thoracic back strain.  There was another episode of back pain in June 1987.  Mr Hodges also agreed with Mr Johnson that in 1996 he saw his GP about a stiff neck and headache, and that the doctor noted the headaches had been present since childhood.

11.     In opening Mr Andrews referred to the applicant’s employment history before joining Telstra in which he had performed hard, physical work for many years.  It was said that prior to 11 January 2000 problems with his cervical and lumbar spine had not manifested themselves.

Accident on 11 January 2000

12.     Mr Hodges described the accident on 11 January 2000 as follows. While he was driving along a dirt track at an estimated speed of between 40 to 60 kph and looking for a marker plate locating a faulty cable, he missed a bend in the road.  He drove straight ahead into a culvert and then his four-wheel drive vehicle came back onto the track.  Although wearing a seatbelt, he bounced around the vehicle and said he hit his head on the cabin roof.  Mr Hodges got out of the vehicle and said he felt a sharp pain in his back.  He took a break for about fifteen minutes, composed himself and continued with his efforts trying to locate the fault.  At the end of the day’s work, he went home. He said he started to feel sore, had a bad headache, stiff back and pain in his right leg, so took a couple of Panadol tablets.  The next morning he said he felt really sore, with a sharp pain in the back and a stiff neck but went to work and mentioned the incident to Mr Warhurst, his immediate superior. Unfortunately, there is no report of this discussion in the T documents. He continued working.

13.     In cross-examination, Mr Johnson put it to Mr Hodges that his evidence of complaining to Mr Warhurst that his back “was a bit sore”, implied that he had not been severely injured.  Mr Hodges disagreed and said he was in quite a deal of pain.  He added that, had he taken time off work, he might have missed an interview that was coming up regarding his application to transfer with Telstra to the Central Coast. 

Medical Treatment

Dr Rutherford, G.P.

14.     Mr Hodges did not see a doctor about the injuries he received in the accident until 20 January 2000 when he consulted his GP, Dr Rutherford on 20 January 2000.  The doctor’s clinical notes (exhibit R4) read “Jarred back driving 4WD after hitting rock in the scrub 1/52 ago at work vehicle air-borne … tender L4/5 and ® SIJ .. ”

15.     Mr Johnson suggested to Mr Hodges that had he seriously been experiencing pain, he would have seen his doctor sooner after the accident. Mr Hodges responded that he did want to miss his job transfer interview and added that it was difficult for him to know what was wrong with him soon after the accident. This explanation did not clarify the matter for me. Asked by Mr Johnson why Dr Rutherford’s clinical notes did not refer to a neck injury, Mr Hodges said he was pretty sure he mentioned it to the doctor.

16.     A radiology report of Tamworth Base Hospital and Health Service dated 21 January 2000 (Exhibit R10) noted that “There are defects of the interarticular parts of L5 with a little forward displacement of L5 on S1; the disc space appears a little narrowed.  No other abnormality is noted.”  Dr Rutherford certified Mr Hodges unfit for work from 20 January to 31 January 2000 and fit for suitable duties from 31 January to 14 February 2000, when he would be re-examined. The respondent arranged a rehabilitation plan to help Mr Hodges resume his pre-accident duties.  Dr Rutherford’s clinical notes for 8 February 2000 (exhibit R4) record the applicant to be gradually improving with just a dull ache and on 14 February 2000 he was slowly improving.  Dr Rutherford certified him fit for per-injury duties from 1 March 2000.

17.     Before transferring to the Central Coast he took some holidays and then started work in March 2000 doing his usual linesman duties. But he said he soon found his back was too sore for driving and ladder work. He again consulted Dr Rutherford and was put back on light duties.  He saw Dr Greer, another G.P, on 17 April 2000 who noted (exhibit R4) the applicant’s complaint of back and buttock pain. On examination Dr Greer found the applicant was tender around the L4/5 area and the muscles on both sides. Mr Hodges said he was not benefiting from physiotherapy.

18.     Throughout the next 15 months or so, Mr Hodges was referred to a number of specialists.

Dr I. Farey, orthopaedic and trauma surgeon

19.     Dr Rutherford referred the applicant to Dr I. Farey.  In his report of 10 May 2000 (Ta22) Dr Farey stated that the applicant presented with thoracic back pain, low back pain and bilateral lower limb pain.  Dr Farey noted that Mr Hodges said he developed bilateral lower limb pain approximately six weeks prior to the examination. The report stated:

There was a good range of motion in the lumbar spine with flexion being possible so that the hands came to the level of the distal calf.  Low back pain was experienced at the limit of motion.  Neurological examination was normal.

X-rays of the lumbar spine revealed the presence of Grade 2 isthmic spondylothesis at the L5-S1 level with associated pars interarticularis defects at L5 bilaterally.  This is a chronic finding.  A CT scan confirmed these findings.  There was no evidence of nerve root compression.

In Dr Farey’s opinion the spondylolisthesis was pre-existing and the applicant’s low back pain followed a jolting injury. He suggested Mr Hodges undertake physiotherapy, a course of hydrotherapy and anti-inflammatory medication. If his condition did not improve following this treatment, Dr Farey proposed an injection of steroid and anaesthetic of the pars interarticularis defects.

20.     Under cross-examination Mr Hodges was asked to explain why Dr Farey noted that symptoms of leg pain developed around April 2000, yet his evidence in chief was that his right leg was sore immediately after the accident.  Mr Hodges said that he had “twinges” in his legs at the time of the accident.  He disputed that his account of the injury and his symptoms had become more elaborate over time.

Dr J. Hollingsworth, occupational physician

21.     Clinical management remained conservative.  At the request of Telstra, Dr J. Hollingsworth of Workplace Rehabilitation Service examined Mr Hodges on 14 June 2000.  Asked by Mr Johnson to explain why Dr Hollingsworth did not record any pain in the neck or legs, or headaches, Mr Hodges said that while his back pain was his main problem, he was sure he mentioned the other matters to the doctor. Dr Hollingsworth diagnosed L5/S1 spondylolithesis with an irritation of the right L5 nerve root. In Dr Hollingsworth’s opinion, the applicant should recover but would remain prone to intermittent episodes of lower back pain. He would have long periods with no lower back pain and should be able to return to normal, suitable employment. Dr Hollingsworth thought that Mr Hodges would be best served by retraining in a more sedentary position which did not require him to lift heavy weights or drive over rough terrain.

22.     While he lived on the Central Coast, Mr Hodges consulted Dr C. Lee GP. Dr Lee’s clinical notes (exhibit R10) for the initial consultation on 16 May 2000 include the following “Back injury … → low back pain … v. stiff gait SLR 90º x 2 … “.  The Celebrex prescribed by Dr Farey was not helping. On 25 May 2000 Dr Lee noted that Mr Hodges was “very low – feels desperate, work is distressing feels he is useless – anxious re being fired. Stresses [with] financial separation. Not getting payed [sic] Crying not sleeping.  Pain persists. Suicidal.”  On 16 June 2000 Dr Lee noted that Mr Hodges was in more or less constant pain.

23.     In a further report, dated 5 July 2000, Dr Farey stated his opinion that Mr Hodges’ current symptoms were secondary to L5/S1 spondylolisthesis (Ta37).  He said that in the long term, the applicant would experience intermittent low back pain, but he did not believe that this would preclude gainful employment as a Telstra linesman.  Dr Farey added that the applicant should not lift weights of more than 10kg.

Dr M.Smith, rehabilitation specialist

24.     Dr Lee referred the applicant to Dr M. Smith, director of rehabilitation medicine at the Berkeley Vale Private Hospital.  In his report dated 14 July 2000 (Ta40), Dr Smith stated that Mr Hodges had made limited progress since his accident despite attendance at physiotherapy and swimming regularly. He said that on examination Mr Hodges was in obvious discomfort.  Dr Smith noted marked left calf muscle wasting with a 2.5cm difference in circumference of his left calf.  He had reduced left ankle jerk but no evidence of sensory loss of weakness. He reported episodic left heel pain and marked increased lumbar back pain on any active or passive lumbar extension. Dr Smith recommended that Mr Hodges continue with a physical program including abdominal and oblique muscle strengthening, pelvic tilting, hamstring stretching, and swimming. 

25.     Clinically Dr Smith found left side S1 nerve root irritation and he suggested an MRI of his lumbar spine.  On 15 August 2000, Dr Smith reported to Dr Lee that the MRI performed on 4 August 2000 identified the known spondylolisis and spondylolisthesis of L5/S1 and a right sided protrusion of the L5/S1 disc compressing the right L5 nerve root, not S1 as suggested by his pain and symptoms (Ta46). In the long term, surgery was likely.  Dr Smith said that Mr Hodges needed to persist with an exercise program but that he would have long term restrictions on his work in relation to unsupported bending or reaching, certain lifting, trunk rotation and lumbar extension.

26.     Dr Lee continued to certify that Mr Hodges was totally unfit for work.  Dr Smith further examined the applicant on 9 October 2000 and found that Mr Hodges was making reasonable progress with no radicular features but needed to continue with his physical exercise program. In his opinion the applicant required retraining into more suitable employment.  Dr Lee saw him on 10 October and noted that Mr Hodges thought his situation was static and was just coping with the pain.

Dr J. Toohey, consultant surgeon

27.     The respondent arranged a medico-legal assessment by Dr Toohey. On 13 October 2000 Dr Toohey noted (Ta56) that sitting and standing caused a lot of pain which was radiating into both legs, particularly the right leg, and buttocks.  The report stated Mr Hodges had aches from his shoulders to his buttocks, then down both legs, which he said was basically the same pain distribution from the time of the injury. Mr Hodges was annoyed by the lack of improvement in his condition and level of discomfort he was experiencing.  On examination Dr Toohey found a marked restriction of forward flexion of the back, difficulty in squatting and some wasting of the left calf. Dr Toohey viewed the MRI scan of 4 August 2000 which demonstrated underlying spondylolisthesis and bilateral pars interarticularis defect, with slight forward slip of L5 on S1.  There appeared to be some compression of the right L5 nerve root.

28.     Dr Toohey diagnosed a prolapsed intervertebral disc at the L5/S1 level with some possible S1 nerve root compression. In his opinion the MRI results were not quite compatible with the clinical situation and he recommended reappraisal by Dr Farey.  Dr Toohey’s report responded to the following questions:

2.  On the balance of probabilities (as distinct from possibilities) was/is the condition/injury due to:

a) The incidents of 11/1/00?

b) Aggravation of a pre-existing condition by either of the incident/incidents indicated ([please indicate which)?

b) The natural progression of some pre-existing condition?

On the balance of probabilities, I believe that his current back situation whilst it is due to a possible aggravation of a pre-existing spondylolisthesis, was in essence due to the accident of 11 January 2000, as a significant contributing cause.  It is certainly not associated with the natural progression of a pre-existing condition.

3. If the employment did contribute to the contraction, aggravation etc of the claimant’s condition:

a) What was the contributing factor?

b) Were the effects of the work-related contribution of a permanent or temporary nature and if temporary, when would it be reasonable to consider that the effects have ceased (or will cease)?

I believe this has been covered above.  The contributing factor was the accident of 11 January 2000.  The effects of the work-related contributions insofar as they have caused disc prolapse and nerve root compression, continue to be a cause of his symptoms.

4.  Is the claimant totally incapacitated for work?  If yes, for what period do you consider the incapacity will continue?

The patient remains totally incapacitated for work at the present time.  It is difficult to estimate how long this incapacity will continue, although I think he fairly urgently needs to have the situation reappraised by his orthopaedic surgeon.

5. If your answer to question 4 is ‘yes’, has any employment related disability contributed materially to such total incapacity, or would the claimant be totally incapacitated, even if the work related condition had not occurred?

The employment-related disability insofar as the accident he had of 11 January 2000 has contributed materially to his total incapacity and I believe is not substantially associated with his spondylolisthesis although it certainly is a factor in his total condition at this time.

6. What restrictions, if any, are now imposed on the employee’s capacity for employment as a result of his work related condition?

At the present time he remains unfit for work in any capacity.

…

29.     In a subsequent report dated 1 December 2000 (Ta63) Dr Toohey stated that Mr Hodges’ underlying spondylolisthesis with pars interarticularis defect was a substantial contributing factor to his condition, as well as the injury.  He was unable to assess relative contributions without access to pre-injury radiological evidence but he noted the applicant’s history that he was asymptomatic prior to the injury.

Dr M. Biggs, neurosurgeon

30.     Physiotherapy continued but on 11 January 2001 Dr Lee noted Mr Hodges complained of worsening back pain. Mr Hodges was becoming distressed by the lack of progress and asked for a referral for a second opinion.  On 9 March 2001 he was examined by Dr M Biggs.  Michael McQueen, physiotherapist, had written to Dr Biggs on 8 March 2001 and stated that, after initially showing some improvement, in the last six months Mr Hodges symptoms had been stable, with lumbar spine pain and pain referred to the buttocks and calves with obvious stiffness on sitting and difficulty sleeping. Dr Biggs’ letter of 16 March 2001 (exhibit R10) to Dr Lee set out the history of back injury on 11 January 2000 and having back pain thereafter. No radicular pain was reported apart from occasional tingling along both legs to the sole of his feet.  Power and reflexes were normal.  Dr Biggs told Mr Hodges that he may require surgery, an L5/S1 interbody fusion and decompression of his L5 roots.  

Dr L. Sekhon, spinal and general neurosurgeon

31.     Consequently, Mr Hodges consulted Dr L Sekhon who noted that, on examination on 14 June 2001, Mr Hodges had two complaints. Mr Hodges felt his back pain was high lumbar and worse with positioning, particularly with flexion, and he had a vague lower back pain as well. The back pain radiated down the lateral aspect of the leg to the lateral aspect of the calf at the top of the right foot.  At the examination Dr Sekhon found the applicant difficult to assess because he was in a lot of pain. Dr Sekhon thought the back pain was poorly localised.  Mr Hodges had some left leg pain which was not as severe as the right leg pain. He could not tolerate flexion or extension. Neurological examination of his lower extremities revealed normal tone and power. All reflexes were present and symmetrical.  There was back pain on straight leg raising to 30 degrees.  The MRI and CT scans confirmed that there are bilateral pars defects with foraminal stenosis worse on the right side.  There were degenerative changes at the L3/4 level. 

32.     Dr Sekhon’s view was that “Mr Hodges has a symptomatic isthmic spondylolisthesis with some suggestion of radiculopathy.  His back pain is a little bit difficult to quantify and it is not clearly mechanical in nature.” (exhibit A1)  Dr Sekhon explained the option of surgery, which he said was a major undertaking, requiring hospitalisation for up to ten days and the wearing of a brace for three months after the operation.

33.     Mr Hodges had consulted Dr Lee on 21 June 2001 concerning Dr Sekhon’s advice.  Dr Lee noted that Mr Hodges was not coping with the pain or the prospect of medical retirement.  On 25 June 2001 Dr Lee was arranging for Mr Hodges to be admitted to Gosford District Hospital as he was suffering from hyperventilation and an exacerbation of pain in his back and right leg (exhibit R10).  The admission request noted that the applicant presented in a very distressed state, had chronic pain and was unable to bear weight.

Dr J. Croker, rheumatologist

34.     Mr Hodges returned to Tamworth to live with his parents. On 11 July 2001 he was admitted to Tamworth Base Hospital. He was under the care of Dr Croker until discharge on 20 July 2001. Dr Croker’s letter to Dr Rutherford dated 10 September 2001(Tb5) noted that the applicant was admitted with musculoskeletal problems and weight loss.  On admission, the applicant was very distressed by pain and also suffering from lethargy and immobility. It appears that Mr Hodges’ general health had declined and he had lost 14 kgs since the accident on 11 January 2000. Mr Hodges was referred for other tests including exploration of his lymph nodes.

35.     The history given to Dr Croker was that on the night of the accident the applicant developed pain in his low back and neck. Since then he experienced multiple problems: crepitus, pain and stiffness involving the neck with aching and tingling involving the left shoulder, left arm and sometimes the left hand.  There was severe pain in the sacrum with radiation into the buttocks and thighs, the right side being worse than the left.  There had been associated paraesthesiae involving both lower limbs and a severe dull aching in the upper lumbar region and both renal angles.

36.     Dr Croker reported that neck pain was very prominent. His limbs, particularly the left lower limb, showed wasting. Dr Croker thought the weight loss may have been caused by the pain from the accident.  Investigation of the cervical spine by x-ray and MRI revealed significant degenerative disc and uncovertebral joint degenerative changes at the C3/4 and C5/6 levels.  There was narrowing of the left C5/6 exit foramen causing pressure on the exiting nerve root.  X-ray of the lumbar spine disclosed bilateral L5 pars interarticularis defects and forward slip of L5 on S1.  Dr Croker’s letter concluded:

He appeared very distressed by pain.  He was somewhat wasted. … Examination of his neck revealed loss of the normal lordosis and there was mildly decreased movement with associated pain and crepitus.  Examination of his low back revealed tenderness and mildly limited movement associated with pain. … There was increased appreciation of pin prick over the lateral aspect of both calves but otherwise the pin prick was generally mildly blunted on all his limbs.

…

I feel that it is likely that the arthritis involving his cervical spine was a direct consequence of the motor vehicle accident.  It is difficult to be dogmatic but the bilateral L5 pars interartricularis defects may have predated the accident.  Historically the accident resulted in the occurrence of severe chronic low back pain.  Management of his musculoskeletal symptoms included analgesia with Panadeine forte and the introduction of a regular dose of Vioxx 25mg mane.

37.     Dr Croker informed the rehabilitation consultants by letter dated 11 September 2001 (filed on 1 October 2002 with the applicant’s statement of facts and contentions) that Mr Hodges was suffering chronic pain in the neck and low back. He was not capable of doing any work requiring physical exertion or even sedentary duties.  He said it was difficult to know whether his symptoms were going to be permanent.  But as it had been 18 months since the accident, Dr Croker suggested that Mr Hodges be referred to a multidisciplinary pain management clinic and to an orthopaedic surgeon with an interest in spinal disorders.  On subsequent review on 21 September 2001, Mr Hodges complained to Dr Croker of continuing pain in the neck and low back (Ta104).   Although Mr Hodges said he did not improve while in hospital, he said shortly after discharge he tried to resume work for a couple of hours a day but there were no suitable light duties available at Tamworth.

38.     Dr Croker did not see Mr Hodges again until 23 April 2002 and then it was for the purpose of preparing a report for his solicitors. Dr Croker reported on 24 April 2002 (exhibit A2) that Mr Hodges was found not to have improved and was depressed.  There was pain in the neck and headaches, and aching in the shoulders.  His constant low back pain was aggravated by bending and walking.  He had a great deal of trouble in going up stairs and walking up inclines.  Dr Croker considered that there was a definite causal relationship between the accident and the arthritis of the cervical spine. He also considered the chronic low back pain to have resulted from the accident. He assessed a 5 per cent impairment of the applicant’s cervical spine and the lumbar spine according to table 9.6 ‘Spine’ of the Comcare Guide to the Assessment of the degree of Permanent Impairment (the Guide).  There was a 20 per cent impairment in function of the lower limbs.

Dr J. Maxwell, orthopaedic surgeon

39.     Prior to his admission to hospital, Mr Hodges had been examined by Dr Maxwell on 5 July 2001.  In his report to the respondent dated 27 July 2001 (Ta97) Dr Maxwell noted that Mr Hodges felt that he did not hit the interior of the vehicle in the accident but he was badly shaken.  His present symptoms included pain in the neck persisting for about 6 - 8 months radiating into the left shoulder and gradually becoming worse.  There was pain in the upper thoracic spine and low back pain.  There was a shooting pain on the right side, especially when lying down, and tingling in the right leg. The applicant was hyperventilating and depressed. Dr Maxwell described his movements as follows:

He walked in a stooped forward posture with his left leg flexed, limping on his left leg.  On attempting to assess the thoracolumbar movement he was reluctant to bend at all.  He would also not extend his thoracolumbar spine. … He had wasting of his left thigh in the lower leg due to his habitual limp.  … There were no hard neurological abnormalities.

40.     Dr Maxwell diagnosed spondylolisthesis at the L5/S1 level with approximately a 10 per cent slip at L5 and S1.  He thought that Mr Hodges, in common with 3-4 per cent of the population suffering this developmental abnormality, would suffer a higher incidence or recurrent low back sprains and nerve root irritation, although he found no “hard” evidence of nerve root irritation.  Dr Maxwell stated that “The only nerve which would likely to be effected [sic] by the spondylolisthesis are the L5 nerve roots causing numbness in the outer aspect of the calf.  L5 irritation would not normally cause thigh weakness or wasting.  The neck and thoracic pain I also consider are signs of non-organic overlay.” In his opinion, the accident on 11 January 2000 aggravated a pre-existing condition, but the effects were of a temporary nature and would be reasonable to assume they would have settled within three months.  Dr Maxwell did not consider Mr Hodges to be totally incapacitated for work but advised him to avoid lifting more than 15kg until there was some improvement. He recommended an intensive exercise program and the applicant need not pursue his course of passive physiotherapy. In conclusion Dr Maxwell stated:

I consider that the effects of the work related condition have ceased and his present symptoms which have become somewhat global are now no longer related to the work related accident.

41.     Dr Maxwell re-examined Mr Hodges on 2 December 2002 and reported (exhibit R1) that he complained that his back ached all the time, his neck was stiff and he experienced regular headaches.  Upon examination Dr Maxwell felt the applicant had improved significantly since last seeing him and did not exhibit as much abnormal illness behaviour as previously.  In his opinion it would be “extremely unusual” for the applicant to gradually deteriorate from the time of the injury particularly as he continued to work on the day of the injury. Dr Maxwell thought Mr Hodges’ condition had stabilised and he no longer suffered the effects of the injury of 11 January 2000. Dr Maxwell did not consider him incapacitated for any work nor did he consider any treatment was required.  As he thought that the results obtained on formal testing were unreliable, Dr Maxwell did not consider that an impairment assessment could be made under Table 9.6 (Spine) in the Guide. In addition, Dr Maxwell thought there was no permanent whole person impairment according to  Table 9.5 (Lower limb function).

Dr K. Bleasel, neurosurgeon

42.     Dr Bleasel examined Mr Hodges on 16 July 2002 and provided a report dated 17 July 2002 to the applicant’s solicitors (Tb8).  Dr Bleasel noted Mr Hodges’ symptoms included depression and anxiety about the future as he did not seem to be improving.  He had neck pain and restriction of neck and head movement and this made driving difficult.  There was pain in the left shoulder and arm that developed in the months following the accident, constant low back pain, pain in both legs and pain in the left groin.  The pain in the right leg was to the anterior thigh and also down to the calf, and there were right foot tingles.

43.     On examination there was minimal range of lumbar spine movements.  Straight leg raising at 30 degrees on each side caused severe back pain.  Dr Bleasel noted wasting of the left thigh and left lower leg.  His opinion was as follows:

Although spondylolisthesis and pars interarticularis defects are a congenital neonatal deformity, the appearance on the plain x-ray of the enormous separation of the fragments of the pars interarticularis, together with the history that he had a perfectly normal back capable of crawling into narrow spaces and performing various twisting movements in the course of his work, makes me conclude that a radical change happened as a result of the injury in the form of wide separation of fragments of a pre-existing pars interarticularis defect.

As a result of the injury of 11^th January, 2000, I believe that Anthony Hodges suffered musculo-ligamentous damage – and probably disc damage  --  to his cervical region and damage to his lumbosacral region which caused a wide separation of a pre-existing pars interarticularis defect with a resultant additional forward slide of L5 vertebral body on S1 and compression of lumbosacral nerve roots.

44.     In relation to his assessments of permanent impairment, Dr Bleasel considered that Mr Hodges had lost more than half the normal range of movement of the thoraco-lumbar spine and the cervical spine, assessing the degree of impairment of each as 15 per cent under Table 9.6 of the Guide.  As for the lower limbs, in Dr Bleasel’s opinion Mr Hodges could rise to a standing position but has difficulty with grades, steps and distances. His assessment of impairment was 20 per cent under Table 9.5. 

Dr J. O’Neill, consultant neurologist

45.     Dr O’Neill first examined Mr Hodges in August 2002 at the request of the respondent. Dr O’Neill stated in his report of 12 August 2002 (Tb11) that Mr Hodges’ main complaint was of low back pain that radiated into the right buttock.  The pain was made worse by walking more than 200 metres or sitting for more than 20 minutes.  He had constant pain from the neck down to the shoulders and restriction of neck movement.  Dr O’Neill found no evidence of neurological dysfunction arising from the lumbar spine and that, from the results of the CT scan of the lumbar spine, he did not expect this would be present. He noted the presence of a previously asymptomatic spondylolisthesis at L5/S1 and stated that “It is possible Mr Hodges has some degree of persisting mechanical low back and right buttock pain as a consequence of the spondylolisthesis, symptoms having been provoked by the motor vehicle accident on 11.1.2000.”  Further, Dr O’Neill observed that, while Mr Hodges had told him he had neck pain from the time of the accident and that there was radiation of pain into the left upper arm within a couple of months, the neck pain had not been reported in the early stages to Dr Farey, Dr Hollingsworth or Dr Lee.  Dr O’Neill concluded that there was no evidence of neurological dysfunction arising from the cervical spine and that radiological studies of the cervical spine have shown only some constitutional spondylitic change.  He thought there was no loss of use of either leg above or below the knee.  He considered Mr Hodges fit for full-time light duty work. In his assessment, the applicant had a 20 per cent permanent impairment of the low back under Table 9.6, but the applicant’s exaggerated restrictions in movement had to be taken into account.  Dr O’Neill thought that there was a 50:50 contribution by the pre-existing and asymptomatic spondylolisthesis, and the accident of 11 January 2000 inducing symptoms. Dr O’Neill did not believe there had been any loss of use of either leg above or below the knee.

Dr S. Potter, rheumatologist

46.     Dr Potter examined Mr Hodges on 12 August 2002 and provided the respondent with a report dated 13 August 2002 (Tb13).  On examination Dr Potter found remarkable neck and lumbar spine rigidity, sensory dullness “in the pattern of the hysteric” and weakness in the legs that was not organic.  Dr Potter concluded that Mr Hodges had a chronic pain disorder, noting that Mr Hodges said the only part of his body not causing pain is his feet.  He said he was not capable of doing any work at all.  Dr Potter reported as follows:

CURRENT DISABILITIES: The complaint is pain, the pain is present every day, all day, the pain is in head most of the time, both sides of neck, shoulders, tingling in the arms left worse than right, chest pain, “I feel as though I have a heart attack” thoracic spine pain, sternum pain, back pain, middle back pain ‘shoulder blades down’ along with hip pain, buttock pain, bilateral leg disturbance, severe on right side, less so on left side.

COMMENT: This is effectively total body pain. 

I’ve checked out all the areas that were sore, I then asked the reverse question which is to ask the patient what part of his body was not sore, he says his feet are not sore but he gets tingling in both feet, otherwise he has a pain everywhere syndrome.

Dr Potter concluded:

Behavioural, motivational and psychosomatic factors have overwhelmed the patient.

Nothing in the current presentation is consistent with physical injury, this is not the pattern of cervical strain, this is not the pattern of lumbar strain, this is not the pattern of nerve root pathology and not the pattern of pathology due to the anatomical defect of the pars defect and spondylolisthesis.

Dr Potter believed the applicant to be fit to work, not involving any vigorous lifting or carrying but such restrictions were constitutional not traumatic. He agreed with Mr Andrews that the applicant’s spondylolisthesis predisposed him to a lumbar spine injury as did his work in a physical job requiring him to drive along rough, country roads.

Dr J. Korber, radiologist

47.     In January 2003 Dr Korber carried out a review of Mr Hodges’ medical imaging for the respondent.  I note that Dr Korber did not have any imaging that pre-dated the accident on 11 January 2000. Dr Korber reported on 13 January 2003 (Exhibit R2) that the changes seen in the applicant’s cervical spine are degenerative and almost certainly long standing.  Whether Mr Hodges had aggravated a pre-existing condition in the accident on 11 January 2000 was a matter for clinical determination.  In relation to the lumbar spine, Dr Korber found that Mr Hodges has bilateral pars interarticularis defects at the lumbosacral junction with an associated spondylolisthesis.  It was possible that Mr Hodges had injured his lumbosacral disc level, but that was a matter for clinical determination.

Surveillance video

48.     During the hearing, Mr Hodges was shown a surveillance video (exhibit R5), the first part of which was filmed around lunch-time on 16 November 2002.  It showed Mr Hodges getting out of his motor vehicle and putting a shoulder bag over his left shoulder.  Mr Hodges is then at a swimming pool.  He is seen getting up from a chair, stretching his neck and slipping into the pool from a seated position.  Later he was filmed casually walking a little distance back to his car and apparently getting into the car with ease.  In answer to Mr Johnson, he said that it was difficult and painful for him to get into the car.  The second part of the film was shot on 18 November 2002, from late morning and again at a swimming pool. Mr Johnson put it to him that his movements when examined by Dr Maxwell, Dr Potter and Dr O’Neill were far more restrictive than recorded on the film. Mr Hodges denied that, and said the swimming was difficult for him, that he moved only his arms while swimming and breathed only on his left side.  He grabbed the handrails and stepped up out of the pool.  While drying off, he was seen to vigorously thrust his head sideways and downward to remove water from his ears, an action he repeated on both sides.  Mr Hodges explained that this action was the only way that he could get the water out of his ears. He bent over to dry his legs.  On leaving the pool, he placed a shoulder bag over his right shoulder and walked to his nearby car.

49.     Mr Hodges said he would like to return to light duties at Telstra but there is nothing available. He is not sure whether he could perform a full days work.  Driving for any length of time would cause problems because of the up and down motion of the car. This aggravates the pain in his back. He said he still suffers from a very stiff neck and many headaches. The pain radiates into his shoulder. However, he said he did drive alone to the hearing in Sydney, a journey of six to seven hours with breaks.  Similarly, he had driven from Tamworth to medico-legal examinations in Sydney. He is not taking any medication in relation to his stiff neck or headaches. He said he could not tilt his head fully up, down or sideways, and did such movements only if necessary. As for his low back pain, there has been no change in his pattern over time. The pain is constant. He has a tingling sensation in his leg, mainly his right leg, particularly when lying down or walking. Sitting or standing for long periods can affect both his legs. He is able to walk between 200 and 500 metres before needing to take a rest. He swims on most days of the week and said he also tries to walk in the pool.

50.     In oral evidence Dr Croker, who had watched the video, said what he saw was consistent with what Mr Hodges had told him and he thought it showed the applicant protecting his back.  He remarked that Mr Hodges’ back was quite stiff when he bent over to pick up something from the ground.  He also saw the applicant “lower himself down” when sitting. He described the rotation of the applicant’s trunk as he swam as consistent of with someone who has a spinal problem. He thought the applicant’s neck had improved.  Dr Croker said that his examination did not find the florid changes in symptomatology reported by Dr Potter.  Moreover Dr Croker could not accept Dr Maxwell’s opinion that the effects of the accident in January 2000 on Mr Hodges’ spondylolisthesis would resolve within three months.  He added that he spent a lot of time with the applicant and the effects of the accident were consistent with his low back pain.

51.     Dr Bleasel and Dr O’Neill agreed to provide their evidence concurrently.  Both doctors had seen the video (exhibit R5). Dr Bleasel, too, believed that the video footage showed Mr Hodges acting consistently with a back injury.  He saw the applicant crouch using his knees rather than bend straight down to pick up his towel.  He saw the applicant lower himself into a chair and help himself out of it by using his hands on the arms of the chair. He thought the applicant’s use of the pool’s steps and handrail to enter the pool, rather than diving in, showed some caution in the use of his back. Dr Bleasel remained of the opinion that even after the swim, the applicant had less than half normal range of movement of his back.  In his opinion, the stretching before going into the pool and the laps of swimming would improve the mobility of the neck and back, but he was surprised by the vigorous head movements when clearing out water from the ears. He noted that Mr Hodges was swimming freestyle without kicking. Dr Bleasel said Mr Hodges will continue to suffer back pain. Dr Bleasel said that an injury to the neck might not lead to symptoms for up to a week after the trauma. 

52.     That there was no mention of the neck injury to various doctors over a period of months following the accident did not make it more likely than not, in Dr Bleasel’s opinion, that Mr Hodges had not injured his neck.  Instead Dr Bleasel considered that the back problem was overwhelming and his neck symptoms developed later.  Dr Bleasel agreed that the wasting of the left calf was not matched by symptoms and that the applicant’s leg pains were not what would be expected from nerve root compression.  The applicant’s neck pain, however, was consistent with his being thrown up and hitting his head on the cabin roof. In relation to the any suggestion of malingering, Dr Bleasel thought it significant that Mr Hodges’ work history prior to the accident and in the weeks immediately thereafter when he transferred to the Central Coast and tried to do his former duties, suggested that he was an individual who was motivated to work.

53.     Dr O’Neill agreed with Dr Bleasel that the applicant’s spondylolisthesis and subsequent injury, even a minor injury, to the back would cause back pain.  He did not disagree with Dr Bleasel’s diagnosis of musculo-ligamentous damage to the neck and lumbosacral region of the spine and slip forward of the L5 vertebral body on S1. Dr O’Neill also agreed that the accident rendered symptomatic, the applicant’s previously asymptomatic spondylolisthesis. He accepted that the accident also caused pain in the applicant’s right buttock. But Dr O’Neill found the applicant’s symptoms were not indicative of severe radicular pain in the limbs. Mr Hodges’ developmental spondylolisthesis pre-disposed him to the pain.  However, Dr O’Neill thought that the degree of the applicant’s ongoing symptoms of pain in the lower back suggested elaboration.  In Dr O’Neill’s view, the extent to which the effects of the accident contributed to his current back and right buttock pain depended very much upon Mr Hodges’ credibility. Dr O’Neill saw no connection between the wasting of the left thigh and calf with a nerve root problem as there were no evident symptoms or signs of weakness in reflexes.  Dr O’Neill could not accept that the accident on 11 January 2000 had triggered the applicant’s subsequent neck pain, and he emphasised that Mr Hodges did not mention during various consultations throughout January, February, March and April 2000.

54.     Dr O’Neill said Mr Hodges’ low back movements on the video were vastly different to those demonstrated on examination, leading him to confirm his earlier opinion that the applicant elaborated any genuine underlying complaint.  He thought the applicant did not show any obvious discomfort arising from a limitation of back movement. On the basis of the video, Dr O’Neill revised his assessment of permanent impairment of the back to no more than 5 per cent, only half of which he attributed to the effects of the accident in January 2000.  Dr O’Neill would not rule out that it was possible, which he said he could not differentiate from probable, that the accident triggered permanent, mechanical pain in the back and right buttock.  Whether this has occurred, in Dr O’Neill’s opinion depends upon whether the applicant’s reports of symptoms are accepted. Dr O’Neill disagreed with Dr Bleasel concerning the video evidence.  Dr O’Neill saw nothing in the video that indicated anything more than minor restrictions of movement of the thoraco-lumbar spine.  As for neck movement, Dr O’Neill contrasted the applicant’s swimming with the slow and restrictive neck movements of less than 50 per cent found on examination.

55.     Dr Potter provided a report dated 11 February 2003 (exhibit R6) after seeing the video.  He reported that the “video film shows no musculoskeletal pathology.  The video film shows normal neck movement, normal back movement, normal arm and leg movement … the man is shown with no disability.”   In Dr Potter’s opinion the video was not consistent with Mr Hodges’ clinical presentation. He speculated that there was an element of contrivance on the applicant’s part.Dr Potter was requested by the respondent to comment about the report by Dr Korber of 13 January 2003. In a report dated 7 April 2003 (exhibit R11) Dr Potter confirmed his opinion that the applicant was suffering from gross abnormal illness behaviour and chronic widespread pain.  Dr Potter was specifically requested to remark on a report by In his opinion:

Dr Korber’s remarks as a radiologist merely confirm the clinical judgement given by me in these reports, indicating degenerative process in the neck and degenerative process in the back.

I have no evidence that these two degenerative foci equate to pathology given by the patient symptomatically, clinically or otherwise. They are constitutional only with no evidence of injury status in neck and back sufficient to cause any incapacity or symptoms in this context of claim.

56.     Dr Maxwell gave evidence by telephone.  He said he disagreed with Dr Bleasel that the injury sustained in the accident on 11 January 2000 would have altered the applicant’s spondylolisthesis itself.  In his opinion, the accident would not have caused a slipping forward of the L5 vertebral body on S1, as the accident involved a flexion injury and occurred while the applicant was seated. Dr Maxwell said that on examination Mr Hodges demonstrated a gross inhibition of movement and lack of effort, yet on the video his movements were nothing like that.  Dr Maxwell said he thought that if Mr Hodges had hurt his neck in the accident it would have be painful by the following day.  Had there been a significant trauma, Dr Maxwell said it would be unlikely for the neck condition simply to get worse over time.  Further, Dr Maxwell did not believe that Mr Hodges complaints of pain in and around his shoulders were consistent with his injury in the accident and he could not relate his headaches to the accident.

57.     When cross-examined, Dr Maxwell was asked for his opinion of the exercise program of hydrotherapy and swimming. He said he thought the program, with abdominal exercises, would help the applicant.  Given that Mr Hodges was building up his fitness but still had back pain, Mr Andrews suggested to Dr Maxwell that the applicant was a candidate for surgery.  Dr Maxwell disagreed and could not recommend surgery because in both his examinations, he found there were too many inconsistencies and non organic signs. In a case such as this, Dr Maxwell thought that if there was no improvement by three months after the accident, he would be worried that there were other reasons for the lack of progress.  Questioned whether he thought it was inconsistent that someone, such as the applicant, who was carrying out recommended exercises, could still be considered to be avoiding work, Dr Maxwell replied that the exercise program fills in time as well as being rehabilitative. Asked whether he simply did not accept Mr Hodges’ complaints, Dr Maxwell answered that the applicant’s symptoms and his findings on examination did not add up.

58.     There was little agreement between the doctors regarding the degree of whole person permanent impairment.   Even after exercise, when movement was freer, Dr Bleasel estimated, by reference to Comcare’s Table 9.6, that Mr Hodges had less than half the normal range of movement of his thoraco-lumbar spine which reflected a 15 per cent level of impairment.  Dr O’Neill, on the other hand, considered the restrictions of movement to be minor, a 5 per cent level of impairment.  The doctors did not alter their assessments regarding the degree of permanent impairment in respect of the cervical spine and lower limb as reported and referred to earlier in these reasons.   

59.     I make the following findings.

60.     Prior to the accident Mr Hodges was suffering from spondylolisthesis at the L5/S1 level and bilateral pars interarticularis defect, with slight forward slip of L5 on S1 (this finding is supported by the reports of Dr Toohey, Dr Maxwell, Dr Smith, Dr Hollingsworth).  I find that this condition is a defect of the lumbar spine and thus an ‘ailment’ as defined in s.4 of the Act.

61.     I am satisfied on the balance of probabilities that Mr Hodges did not sustain an injury to his neck as a result of the accident on 11 January 2000.  In coming to this conclusion, I consider it significant that the original claim form, completed on 28 January 2000, referred only to jarring from the accident causing soft tissue damage to the lower back. Mr Hodges nominated only the “lower back” as the “parts of the body you consider to be affected” (Ta3).  Of equal significance is the omission of reference to the neck in Dr Rutherford’s clinical notes for the 20 January consultation and the notes of Dr Greer and Dr Lee. In addition to his G.Ps, Mr Hodges saw a number of specialists in 2000 (Dr Farey in May, Dr Hollingsworth in June, Dr Smith in July and Dr Toohey in October) but the histories made no mention of neck pain or stiffness.  The first complaint about the neck is made in July 2001 to Dr Maxwell and then to Dr Croker.

62.     Dr Bleasel said that if the neck was injured in the accident he would expect symptoms to develop within a week or so.  Nonetheless Dr Bleasel said he accepted that Mr Hodges would not have spoken about his neck to his doctors during this period because his back pain was the major complaint.  While I can readily accept that may be so in many cases, I am not satisfied that it explains this matter.  There was no complaint to a doctor about neck symptoms for almost 18 months after the accident.   I agree with Dr O’Neill that a patient may forget a symptom at the initial consultation but the failure to refer to neck symptoms for such a long period suggests that the accident was not a cause of the symptoms that were discussed later.

63.     The next enquiry is to determine the injuries, if any, that Mr Hodges sustained in the accident. Medical opinion (Dr Farey and Dr Hollingsworth) prior to the MRI in August 2000 did not find a disc prolapse or nerve root compression.  I note that Dr O’Neill also did not have access to the MRI.  Dr Smith suggested an MRI of the lumbar spine. He reported that it showed a right sided protrusion of the L5/S1 disc which he noted, though with some uncertainty, was compressing the L5 nerve root. Dr Toohey also viewed the MRI. He appreciated that the pre-existing condition, the spondylolisthesis, and the effects of the accident, were potentially contributing to the symptomatology. Dr Toohey said it was reasonable to assume that the prolapsed disc at L5/S1 and nerve root compression at L5 occurred on or following the accident since Mr Hodges had been asymptomatic up to that point. Although Mr Hodges conceded in cross-examination that he had sought treatment previously for low back symptoms, I am satisfied on the evidence before me that since 1990, when he last had such treatment, he had not been sufficiently troubled by his back to seek medical attention. There is some support for this conclusion in Dr O’Neill’s evidence who did not consider the earlier complaint as being of significance to determining whether the accident in January 2000 had caused a permanent aggravation of his spondylolisthesis. In a similar vein is the opinion of Dr Biggs.  His letter to Dr Lee on 16 March 2001 (exhibit R10) stated that, in addition to bilateral pars defects at L5 with spondylolisthesis at L5/S1, Mr Hodges has a degenerated L5/S1 disc with a grade one slip resulting in foraminal stenosis at his L5 roots.  Dr Bleasel went further and stated that the accident resulted in “a radical change” to form a wide separation of fragments of a pre-existing pars interarticularis defect “with a resultant additional forward slide of L5 vertebral body on S1 and compression of lumbosacral nerve roots.”

64.     Opposed to this evidence is Dr Maxwell’s opinion that it was most unlikely the injury caused additional forward slippage, especially as the accident resulted in a compression type rather than flexion type injury.  He could not see such an injury, that occurred while Mr Hodges was seated, would result in a force on L5 causing it to slip forward.  I am not inclined to accept this part of Dr Maxwell’s evidence as it struck me as being dogmatic.

65.     On balance I prefer the opinions of Dr Toohey and Dr Bleasel, that the accident caused some further slippage of the L5/S1 disc, as well as right sided L5 nerve root compression, which I find are physical injuries.  In Dr O’Neill’s opinion, which I also accept, the accident has provoked the applicant’s spondylolisthesis with consequent symptoms of low back pain and right buttock pain. His report of 4 November 2002 (exhibit R9) stated “I think the accident of 11.1.2000 did trigger the development of mechanical low back pain in someone with a largely previously asymptomatic congenital spondylolisthesis.  I suspect Mr Hodges may have some degree of persisting genuine mechanical low back pain arising from the congenital spondylolisthesis and aggravated by the accident on 11.1.2000. As previously stated, I believe there is a psychosomatic component to presentation with respect to that complaint.”

66.     An aggravation of an ailment will be covered by the definition of ‘disease' where the aggravation was contributed to in a material degree by the employment.  The following passage from the judgment of Gyles J in Australian Postal Corporation v Bessey (2001) 32 AAR 508 is relevant:

It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 86 ALR 399 and Casarotto v Australian Postal Corporation (1989) 10 AAR 191 that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity. (at 509)

67.     Dr O’Neill agreed with Dr Bleasel that a person with spondylolisthesis may have continuing pain triggered by a musculoligamentous strain.  Whether the strain, or in this case the disc prolapse and nerve root compression, has permanent effects or, as Dr O’Neill put it, continues to provoke the underlying condition rendering it symptomatic, depends on the applicant’s accurate reporting of low back pain and other symptoms.

68.     Mr Johnson submitted that these medical opinions depend upon a history given by someone whose account is unreliable. Mr Johnson urged me not to accept the applicant’s evidence, which he said was exaggerated and therefore unreliable.   I am not prepared to accept that submission without some qualification.  In the opinion of Dr Croker and Dr Bleasel, the video evidence demonstrates that Mr Hodges favoured his back.  They referred to the way he bent down and sat down, how he entered the pool, his swimming action, and the way he got into his car. That also was Mr Hodges’ evidence explaining his movements on the video.  I acknowledge that the other specialists explained why they disagreed, but on balance I find that the movements referred to were performed in a slightly protective or guarded manner.  I am satisfied that, quite soon after the accident, Mr Hodges began to suffer from low back pain, right buttock pain and pain radiating into the legs (history given to Dr Farey on 10 May 2000). I accept the genuineness of his evidence concerning those complaints since his reporting of them followed relatively soon after the accident.  As Mr Hodges’ spondylolisthesis was not symptomatic prior to sustaining further slippage of the L5/S1 disc and right sided L5 nerve root compression, I find on the balance of probabilities that the accident has resulted in an aggravation of his underlying condition.  Further I find that the aggravation of the spondylolisthesis is a disease that was contributed to in a material degree by the accident and thus is an injury.

69.     There were no complaints made of pain in the shoulders, arms or the upper back until some months had elapsed after the accident. Dr Toohey recorded symptoms of aches in the shoulders on examination in October 2000. By the time the applicant saw Dr Sekhon in June 2001, he was complaining of pain in the high lumbar region. On admission to hospital in July 2001, Mr Hodges’ had “multiple problems” as Dr Croker observed.  Symptoms extended from the neck and the shoulders to the lower limbs. On a review of all the evidence, taking account of the nature of the symptoms reported to the G.Ps and then to the treating specialists, and the time at which the symptoms were first reported, I am satisfied that the injuries caused only the low back pain, right buttock pain and referred pain into the legs.  This conclusion finds support in the evidence given by Dr O’Neill at the hearing.

70.     I must now decide whether the respondent is liable to pay compensation in respect of these injuries. 

71.     Dr Croker, described as an excellent physician by Dr Potter, also a rheumatologist, made a diagnosis of severe, chronic low back pain resulting from the accident.  Dr Croker said Mr Hodges did not demonstrate to him the florid pattern of symptoms that prompted Dr Potter to say that the applicant suffered from abnormal illness behaviour.  Dr Croker has observed the applicant in a clinical setting and on more occasions than the other specialists. For that reason I consider his evidence to be persuasive in finding that the accident and thus the injuries have left Mr Hodges suffering chronic low back pain and unable to engage in the recreational activities that he previously enjoyed as a physically active man (the applicant referred to indoor soccer, indoor cricket, volley ball and basketball). Dr Bleasel’s evidence was to like effect as he diagnosed back pain due to the injuries sustained in the accident.  Dr Bleasel, with whom Dr O’Neill agreed on this point, said it was wrong to say that because Mr Hodges has a spondylolisthesis, it must be the cause of his current pain.  Dr O’Neill said he was prepared to accept that there may be some degree of genuine mechanical low back pain and right buttock pain triggered by the accident as a consequence of having the underlying spondylolisthesis.

72.     The evidence of Dr Toohey, Dr Croker, Dr Bleasel and Dr O’Neill supports my finding that Mr Hodges suffers from chronic low back pain which has arisen from or been precipitated by the injuries he sustained in January 2000.  On balance I am satisfied by the evidence of those experts that his chronic low back pain, right buttock pain and bilateral leg pain are related to the injuries being slip forward at the L5/S1 disc level and right side L5 nerve root compression (Dr Toohey and Dr Bleasel, and Dr Smith in addition on this point), and an aggravation of his spondylolisthesis (Dr Bleasel, Dr O’Neill and Dr Toohey).

73.     The respondent accepted liability to pay compensation for soft tissue injury to the lower back under s.14 of the Act in a determination dated 31 January 2000.  However, the respondent decided on 7 September 2001 that it was no longer liable to pay compensation in respect of the injury and this determination was affirmed in a reviewable decision made on 11 February 2002.  The provisions of s.4(9) of the Act are relevant to the applicant’s claim that the injuries sustained on 11 January 2000 have rendered him unable to perform the various physical activities involved in his job as a linesman:

(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a) an incapacity to engage in any work; or

(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

74.     Very early on in this matter, Dr Hollingsworth, a rehabilitation specialist, advised the respondent in April 2000 that Mr Hodges should not return to his former job as a linesman.  He cited the driving over rough terrain and aerial work as posing problems for his low back pain. Dr Hollingsworth also advised against a job that requires the lifting of weights and he suggested retraining, perhaps in electronics.  Dr Farey did not go so far as to rule out linesman work but he recommend that Mr Hodges avoid aerial work and not lift in excess of 10 kgs.  Dr Smith, another rehabilitation specialist, said in August 2000 that Mr Hodges will have “long term work restrictions of no unsupported forward bending or reaching, no lifting in a position of forward trunk flexion, trunk rotation or lumbar extension” (Ta46).  Dr Toohey thought it advisable that the applicant not continue with linesman work and Dr O’Neill suggested he avoid work of a manual nature.  Dr Croker’s opinion is that the applicant’s chronic low back pain renders him unable to do the physical work that he performed in the past. 

75.     Against these views are the opinions of Dr Maxwell and Dr Potter, both of whom consider Mr Hodges has no restriction on his ability to work.  Dr Maxwell’s opinion, however, may be discounted since it is contrary to the findings that Mr Hodges’ chronic pain results from the injuries sustained in the accident.  Given that I have preferred Dr Croker’s evidence and explanation to Dr Potter’s analysis of what he referred to as the applicant’s florid presentation of symptoms, I do not accept his evidence regarding the applicant’s capacity to undertake work.

76.     I am satisfied that the evidence establishes that Mr Hodges was working as a linesman prior to sustaining his injuries.  The work required a lot of physical labour, laying pipes and cables, and the use of machinery for digging pits.  He had to drive along rough, bush tracks.  I find that when Mr Hodges tried to return to duty as a linesman in late March 2000 he found the physical work, the climbing of ladders and driving was too hard for him and made his back sore.  Accepting that  “to engage in work at the same level” is a reference not to remuneration at a new job or job rating, but to the nature of the work including its degree of difficulty (Re Prica and Comcare (1996) 44 ALD 46), I find that Mr Hodges has a continuing incapacity to engage in work at the same level as referred to in s.4(9)(b) at which he was engaged immediately before the injuries were sustained. Accordingly I find that the respondent is liable to pay compensation under s.14 of the Act to Mr Hodges for his partial incapacity for work from 7 September 2001 such compensation to be calculated pursuant to s.19.

impairment

77.     Mr Hodges is seeking compensation under ss. 24 and 27 of the Act.  Section 24 reads:

Section 24 Compensation for injuries resulting in permanent
impairment

(1) 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.

(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.

…

(5)  Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6)  The degree of permanent impairment shall be expressed as a percentage.

…

78.     Section 4 contains the following definitions:

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

permanent means likely to continue indefinitely.

79.     Mr Hodges has an impairment of the lower back being spondylolisthesis at the L5/S1 level with associated bilateral pars interarticularis defects at L5 bilaterally, a congenital condition that can be termed a ‘malfunction’ (Dr Farey, Dr Toohey and Dr Maxwell).   I have accepted that this condition was aggravated by the accident.  As well as the congenital condition, Mr Hodges has impairments of the low back being the further slippage of the L5/S1 disc, as well as right sided L5 nerve root compression.  Associated with these injuries is the chronic low back pain that Mr Hodges reports. 

80.     Are the impairments permanent? Dr Croker opines that Mr Hodges will suffer chronic low back pain as a result of the accident (exhibit A2). Dr O’Neill said that in determining whether the pain in the low back and buttock is going to continue, the clinician relies on the applicant’s genuine reporting of symptoms.  Dr O’Neill was certain after watching the video, that Mr Hodges had elaborated his symptoms on examination.  But Dr O’Neill was prepared to accept that the applicant may have a genuine mechanical low back pain of varying intensity as a consequence of his spondylolisthesis being triggered by the accident. On this point, there is some common ground between him on the one hand, and Dr Croker and Dr Bleasel on the other. I am inclined to accept their views in preference to those of Dr Maxwell and Dr Potter who reject the applicant completely. I consider the advice of the treating specialists Dr Biggs and Dr Sekhon provide additional support for accepting that Mr Hodges has chronic low back pain. They were sufficiently convinced of the applicant’s continuing symptoms to raise surgery with him. Dr Sekhon outlined the procedure as involving a posterior lumbar interbody fusion at the L5/S1 level in an “ … attempt to reduce his spondylolisthesis and also decompress the L5 nerve roots bilaterally” (exhibit R10). As for likely improvement in the condition, I am mindful that the spinal fusion surgery was described by Dr Sekhon as “an option” and in his opinion the surgery had a 50-60 per cent chance of improving the back pain. Dr Croker thought there was less need for surgery, in the absence of definite evidence of spinal cord or nerve root compression.  Other specialists (Dr Farey and Dr Smith) were less favourably disposed to this option. I am satisfied on balance that Mr Hodges has impairments to his lumbar spine being the congenital condition, the prolapsed L5/S1 disc and the compressed L5 nerve roots, that are permanent and that are causing chronic low back pain, which I consider also to be permanent.

81.     Comcare has issued a Guide to the Assessment of the Degree of Permanent Impairment (the Guide) under s.28 of the Act

Section 28  Approved Guide

(1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:

(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;

(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and

(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.

82.     The following tables in the Guide are relevant:

Table 9.5: Limb Function – Lower Limb (Percentage Whole Person Impairment)

%	DESCRIPTION OF LEVEL OF IMPAIRMENT
10	Can rise to standing position and walk BUT has difficulty with grades and steps
20	Can rise to standing position and walk but has difficulty with grades, steps and distances
30	Can rise to standing position and walk BUT is limited to level surfaces
50	Can rise to standing position and maintain it with difficulty BUT cannot walk
65	Cannot stand or walk

Table 9.6: Spine (Percentage Whole Person Impairment)

Note: Lesions of the sacrum and coccyx should be assessed by using the table which most appropriately reflects the functional impairment. This will usually be Table 9.5.

Lesions of the spine are often accompanied by neurological consequences. These should be assessed using Table 9.4 or 9.5 and the results combined using the Combined Values Table

%	CERVICAL SPINE	THORACO-LUMBAR SPINE
0	X-ray changes only	X-ray changes only
5	Minor restrictions of movement	Minor restrictions of movement OR Crush fracture – compression 25-50 percent
10	Loss of half normal range of movement	Loss of less than half normal range of movement OR Crush fracture – compression greater than 50 percent
15	Loss of more than half normal range of movement	Loss of half normal range of movement
20	Complete loss of movement	Loss of more than half normal range of movement
30	-	Complete loss of movement

83.      Dr Toohey noted a marked restriction of forward flexion of the back. This must be contrasted with Dr Farey’s findings, made some months earlier, that there was a good range of movement in the lumbar spine and flexion enabled the hands to come to the level of the distal calf. Dr Sekhon’s examination, more than six months after Dr Toohey’s, found that Mr Hodges could not tolerate flexion or extension of the lumbar spine, but observed that his large amount of pain made him difficult to assess.  Dr Bleasel referred to table 9.6 ‘Spine’ in the Guide to assess the degree of permanent impairment of Mr Hodges’ lumbar spine. His assessment was 15 per cent - loss of half normal range of movement (Tb7). On examination he had found minimal range of lumbar spinal movement.   Dr Bleasel explained that he disagreed with Dr O’Neill’s assessment of 5 per cent degree of impairment – minor restrictions of movement.  Nothing in the video footage warranted his changing that assessment. 

84.     Prior to seeing the video, Dr O’Neill had assessed the impairment at 20 per cent – loss of more than half normal range of movement, but he included the rider that the assessment assumed Mr Hodges was accurately reporting his restrictions in movement, an assumption that caused him considerable doubt. His findings on examination were that Mr Hodges could bend only 10 degree from the midline and extend 5 degrees from the midline before experiencing severe pain. The video footage, however, led Dr O’Neill to change his assessment to “no more than” a 5 per cent impairment of the back, the contribution of the accident being 50 per cent (exhibit R8). 

85.     The video recorded the applicant’s successful completion of twenty laps of the 50 metre pool, each freestyle lap taking about a minute.  Dr Croker thought that the way Mr Hodges’ trunk rotated while he swam and breathed, indicated a spinal problem. Dr O’Neill would not concede that the applicant’s swimming style was indicative of such a problem. It should also be noted that neither Dr Maxwell nor Dr Potter altered their opinion of the applicant’s range of back movements after watching the video.  It confirmed what they had concluded from their examinations, that the applicant was able to do more than he was prepared to show on formal examination. I am satisfied that the protective manner of some of Mr Hodges’ movements on the video, such as his bending down and getting into his chair, should be assessed as minor restrictions of movement. That was also the assessment of Dr Croker who stated in his report of 24 April 2002 (exhibit A2) that there was a 5 per cent degree of impairment of the lumbar spine. I find therefore on the basis of the assessments of Dr O’Neill and Dr Croker that Mr Hodges has a 5 per cent impairment of his lumbar spine.

86.     There has been a degree of uncertainty regarding Mr Hodges’ complaints about pain in his legs and the likely cause.  The first mention of problems with the legs was made to Dr Farey who reported the onset of symptoms approximately two months after the accident. In June 2000 Dr Hollingsworth recorded pain radiating into the right leg and though straight leg raises were painful, they were full. A number of doctors have observed wasting of the left calf. In July 2000 Dr Smith noted the wasting, as well as left heel pain and reduced left ankle jerk but no sensory loss or weakness. The symptoms indicated left side S1 nerve root irritation and Dr Smith suggested an MRI would help in diagnosing the clinical presentation. On MRI, Dr Smith noted the right side protrusion of the L5/S1 disc compressing the right L5 nerve root not the S1 dermatome as thought.  Dr Toohey agreed with this finding on MRI, leading him to conclude the clinical situation and the MRI were not compatible.

87.     The preponderant view is that there is no neurological damage affecting the lower limbs. The clinical picture found by Dr Smith and Dr Toohey was not reproduced in the imaging. Dr O’Neill, with whom Dr Bleasel and Dr Croker agreed, said that there was no neurological explanation for the applicant’s left calf wasting, dullness to pin prick in the feet, numbness and tingling in the legs.  I accept that expert evidence. Having regard to Dr Maxwell’s evidence, I am satisfied on the balance of probabilities that the applicant’s limp was the cause of the calf wasting and that the limp was an overlay without organic cause and not related to the injuries.

88.     Dr Bleasel thought the applicant did not move quickly in the video footage (exhibit R5) and he used the pool handrail when he could. I am not convinced, however, that use of a handrail when getting out of pool demonstrates any impairment of the lower legs.  His report recorded equal power and reflexes in the legs (Tb8).  Dr Biggs also reported a lack of radicular pain apart from the occasional tingling along the legs to the feet, but power and reflexes were normal. Straight leg raising was possible to 80 degrees. Dr Sekhon noted that there were “subjective sensory changes” involving the right leg.  Mr Hodges’ experienced various symptoms caused by walking that were the subject of comment in Dr Croker’s initial report dated 24 April 2002 (exhibit A2). Dr Croker stated that the applicant cannot walk far and “has a great deal of trouble going up stairs or walking on inclines”. Referring to the Guide’s table 9.5 ‘Limb function – Lower Limb’, Dr Croker assessed impairment of both legs at 20 per cent.  Under cross-examination, however, Mr Hodges said that he can walk from 200 to 500 metres before needing a break.  On going home from the pool, he agreed that he was able to walk to his car.

89.     Overall, I am more impressed by Dr O’Neill’s evidence that there was no demonstrable impairment of the lower limbs, whether on examination, suggested by imaging or as recorded on the video.  On balance I find that there is no impairment, as defined, of the applicant’s lower limbs.

90.     In consequence of the above findings I make the following decision:

· The reviewable decision dated 11 February 2002 is set aside. In substitution I find that the respondent is liable under s.19 of the Act to pay the applicant compensation for partial incapacity from 7 September 2001 and continuing. The matter is remitted to the respondent to determine the amount of compensation.

·     The reviewable decision dated 10 September 2002 denying liability to pay compensation under ss.24 and 27 of the Act is affirmed.

·     The respondent is liable to pay the applicant's costs of the proceedings in accordance with the General Practice Direction of the Tribunal.

I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:

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

Dates of Hearing  1 & 2 May, 17June 2003
Date of Decision  2 April 2004
Counsel for applicant  D Andrews

Counsel for respondent  G Johnson