Hughes and Australian Postal Corporation
[2004] AATA 393
•16 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 393
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N2002/1249; N2003/474
Re: Stephen Joseph HUGHES
Applicant
And: AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member
Date: 16 April 2004
Place: Sydney
Decision:The decisions under review are affirmed.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member
© Commonwealth of Australia (2004)
CATCHWORDS Compensation –liability accepted for work injury to right hip – right hip replacement - whether low back pain and left hip osteoarthritis related to work injury or right hip replacement- low back symptoms due to degenerative condition – no aggravation of degenerative condition – decisions affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss.4,14, 16, 24 and 27
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538
Treloar v Australian Telecommunications Commission (1990) 12 AAR 535
REASONS FOR DECISION
P.J. Lindsay, Senior Member
1. Stephen Joseph Hughes (the applicant) has applied for review of the following decisions made by the Australian Postal Corporation (the respondent):
·N2002/1249 – concerns a reviewable decision made on 15 August 2002 that Mr Hughes was not entitled to compensation in respect of a left hip and back condition claimed to have resulted from an injury to the right hip that he sustained on 13 August 1993.
·N2003/474 – concerns a reviewable decision made on 30 September 2002 that Mr Hughes was not entitled to compensation for permanent impairment relating to his left hip and back conditions.
background
2. On 13 August 1993 Mr Hughes was injured when he fell from his motorbike while riding home after work. Liability was accepted for lacerations to the left thigh and “aggravation right hip injury”. Over the next few years, Mr Hughes’ right hip pain gradually became worse. By September 2000, Dr R Brooks, orthopaedic surgeon, recommended a hip replacement, utilising what is called a Birmingham hip resurfacing prothesis. At the request of Australia Post, Mr Hughes was examined by Dr N McGill, rheumatologist, on 16 November 2000. Dr McGill concluded that total hip replacement was a reasonable course of action. Australia Post agreed to pay for the hip replacement surgery because Dr McGill thought that the applicant’s fall in August 1993, landing on his right lateral hip region, had caused or substantially accelerated osteoarthritic changes in his right hip.
3. Following the hip replacement surgery by Dr Brooks on 27 November 2000, Mr Hughes received physiotherapy. Back pain developed. On 9 February 2001 Dr Brooks thought Mr Hughes would be ready to return to work on light duties by the next week. In the interim, Mr Hughes and his family had moved to Medowie, north of Newcastle. The move necessitated a longer drive to work at North Ryde.
4. In March 2001 Mr Hughes returned to work performing restricted duties, three days a week. He started a rehabilitation plan that had been approved by Dr M Gliksman, occupational physician. Dr Gliksman was given a history of restricted movement and occasional pain in the right hip and occasional paralumbar pain associated with those symptoms. At the end of a particularly heavy day at work Mr Hughes would have a right side limp. On examination Dr Gliksman noted normal lumbar lordosis, no paralumbar muscle spasm, and lumbar flexion, extension and bilateral rotation were full range.
5. The two hour drive to North Ryde Delivery Centre was causing the applicant discomfort and in April 2001 he was transferred to the Gateshead Delivery Centre, an hour’s drive from home. On 6 April 2001 Mr Hughes sought chiropractic treatment which Terrace Chiropractic Centre noted was in relation to “right sided groin pain and central low back pain associated with altered biomechanics of his right hip and pelvis post-total hip replacement.” (Ta32 lodged under s.37 of the Administrative Appeals Tribunal Act 1975 relating to proceeding N2002/1249)). Not being satisfied that the chiropractic treatment was necessary treatment for his work related injury, Australia Post on 2 August 2001 refused to reimburse him for the cost of treatment. Dr Brooks wrote to Mr Hughes’ G.P. on 7 August 2001 noting that he had been visiting the chiropractor for his back pain with some success. Dr Brooks expressed his view of the suitability of such treatment as follows (Ta36):
I did feel it was reasonable for him to have this treatment or physiotherapy, and Stephen preferred to have chiropractic. The symptoms did seem related to his hip problem, presumably as a result of some altered weightbearing patterns early on after surgery and perhaps related to the stiffness in the hip which has been a little slow to resolve.
But Australia Post considered Dr Brooks to be uncertain as to the precise nature of Mr Hughes’ back problem. They wrote to Mr Hughes on 10 August 2001 informing him that they would pay for chiropractic treatment up to 12 August 2001. Any future chiropractic treatment would not be paid for until a specialist said that continuing chiropractic treatment was required because of back problems related to the hip injury.
6. Mr Hughes went on long service leave in October 2001. He had a follow up consultation with Dr Brooks on 16 November 2001 who noted that there was good relief of arthritic pain in the hip and Mr Hughes was walking well. Dr Brooks noted nagging discomfort in the right groin on flexing the hip and some pain in the low back that was helped by visits to the chiropractor. Dr Brooks noted that Mr Hughes was on leave from work but on returning to work, there would no longer be a need to continue with travel restrictions.
7. Mr Hughes went on sick leave on 4 February 2002 due to his low back pain. His GP referred him to Dr F Hoe, orthopaedic surgeon, for a second opinion. Dr Hoe reported on 24 April 2002 that he saw Mr Hughes with regard to his back and right hip pain (Ta44). The history given was of Mr Hughes experiencing back pain before the hip replacement and the pain had increased since the surgery and was made worse by standing or walking for long periods. Although arthritic pain in the hip had been eliminated, he now experienced groin pain when walking quickly and trying to put on shoes. The back pain was worse than the groin pain. On examination Mr Hughes walked with a normal gait. There was some limitation of back motion and x-ray from 11 April 2002 revealed degenerative changes at L4/5. Dr Hoe observed that there were no quick solutions for the applicant’s problems. He thought that Mr Hughes was “going through a phase of increased backpain which should decrease over a period of time which may be months or years. It remains to be seen if he will be able to [sic] pre-injury duties.”
8. The applicant’s solicitors requested a report from Dr Hoe. He reported (Ta46) on 30 April 2002 that the applicant said that, if he had only groin pain, he would be able to work. Dr Hoe found a twenty per cent decrease in extension and lateral flexion of the lumbar spine. Straight leg raising was full with no signs of sciatic nerve tension. He was neurologically normal in the lower limbs with normal power, sensation and reflexes. In Dr Hoe’s opinion back surgery was not indicated but he would have further flare-ups and physiotherapy may assist. Dr Hoe stated:
He is known to have longstanding degenerative disease of the lumbar spine as can be seen from the x-rays of 11/4/02. He has increased backpain after the hip replacement probably due to pre-existing degenerative changes of the back together with limited flexion of the hip which is a consequence of this type of hip replacement. Because of the stiffness in his hip he has to flex his spine more than he did before, in order to perform some tasks that require reaching the foot, exacerbating the backpain.
Fitness for work. This man is currently unfit for full preinjury duties. He is unfit to stand or walk longer than 15 minutes at a time. He is unfit to carry or lift greater than 10kg in a repetitive fashion. He is unfit to work as in postal delivery. He would be more suited to lighter tasks … He would benefit from not having to travel to work longer than half hour.
Without referring to Comcare’s Guide to the Assessment of the Degree of Permanent Impairment (the Guide) issued under s.28 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), Dr Hoe assessed a fifteen per cent permanent impairment of the back, but attributing half of the impairment to the long standing degenerative changes in his lumbar spine.
9. In a separate report dated 8 July 2002 (Ta48) Dr Hoe assessed the degree of permanent impairment in accordance with the Guide. In his opinion Mr Hughes suffered a ten per cent whole person impairment under the Guide’s table 9.2 ‘Lower Extremity’ and under table 9.5 ‘Limb Function – Lower Limb’. In addition, he assessed a ten percent impairment under table 9.6 ‘Thoraco-lumbar Spine’.
10. Mr Hughes remained on sick leave. Australia Post arranged for him to be examined by Dr McGill on 26 July 2002. Dr McGill noted that Mr Hughes was on crutches for about six weeks following the surgery. As he became more active he became aware that his right hip was not very mobile and he also experienced discomfort across his lower back. Dr McGill reported (Ta49) that the applicant has constant pain in the low back which he said came on gradually after his hip replacement. Mr Hughes said that he had been receiving manipulation treatment from a chiropractor for his low back discomfort over the past twelve months. He did not have left hip symptoms. On examination Mr Hughes stood up slowly from a chair, indicating some stiffness, but his gait was then normal. His thoracolumbar posture was normal. Low back movement was performed slowly and he achieved eighty per cent of the normal range of flexion and low back movements in the other direction were also slightly restricted. There was no tenderness of the back and percussion of the spine did not cause pain. The right hip replacement demonstrated full extension but flexion was restricted to ninety degrees. There was moderate restriction of rotation.
11. Dr McGill commented that despite the restriction in the right hip, the applicant’s movements were better than on assessment prior to surgery. Dr McGill noted the evidence of moderately severe osteoarthritis of the left hip in the x-ray taken on 28 November 2000. The x-ray on 11 April 2002 of the lumbosacral spine demonstrated moderate degenerative change with narrowing of the L4/5 disc space, prominent osteophyte formation and subchondral bone sclerosis. The CT scan, also taken on 11 April 2002, showed disc bulging at all lumbar levels, no focal protrusion and mild degenerative change at the facet joints at L4/5 but no evidence of nerve compression. Dr McGill noted that there was discomfort in the right hip area for some months after the surgery. Additionally, Dr McGill observed that Dr Brooks’ letters to the applicant’s GP did not mention back problems.
12. Dr McGill was firmly of the view – “there is no likelihood” – that Mr Hughes’ left hip osteoarthritis has anything to do with the motor bike accident in August 1993. As for the back Dr McGill stated:
His back degeneration as demonstrated on x-ray is constitutional and unrelated to his work duties. I do not believe that the motor bike accident in 1993, nor his work duties in general, have played any significant role in the development of the degenerative changes in his low back.
Noting that his right hip movements are now better than they were prior to hip replacement surgery, I do not believe that the hip replacement has resulted in his low back becoming symptomatic. …
I think the major impediment to him continuing his normal work duties has been the fact that he moved house to a location 2 hours drive away from his work place. …
I do not believe that chiropractic treatment is of benefit to him.
13. Consequently, by determination dated 5 August 2002, Australia Post maintained its liability to pay compensation for Mr Hughes’ right hip condition but denied liability for any left hip or lower back pain. That determination was confirmed on review on 15 August 2002.
14. Mr Hughes made a separate claim for compensation in respect of permanent impairment due to severe back and groin pain and restricted movement in his lower back. On 19 August 2002 Australia Post determined that there was no liability for compensation under ss. 24 and 27 of the Act in respect of a right hip condition. When reconsidering the determination, Australia Post on 30 September 2002 varied its decision by finding that Mr Hughes suffers a ten per cent permanent impairment under the Guide’s table 9.2 ‘Lower Extremity’ in respect of a right hip condition (Tb6 in the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 relating to proceeding N2003/474). But the decision in relation to permanent impairment in respect of a low back condition was not changed. Liability for such compensation was denied by way of reviewable decision dated 16 May 2003.
issues
15. Counsel for the applicant, Mr A Edwards, in opening informed the tribunal that the matters in dispute were whether the back condition and left hip condition were due to compensable injuries. He submitted that the conditions were either related to the motor bike accident in August 1993 or causally linked to the right hip condition. In closing submissions Mr Edwards said that if the back condition was found to be compensable, Mr Hughes should be referred for assessment of permanent impairment arising from the right hip and back problems.
16. The issues for determination are whether Mr Hughes:
· has suffered a compensable injury to his low back or left hip
· is entitled to compensation under s.16 of the Act for the cost of medical treatment obtained in relation to an injury to his low back or left hip
· is entitled to compensation under ss.24 and 27 of the Act for a compensable injury that has resulted in a permanent impairment.
applicable legislation
17. The Act makes provision for liability as follows:
Section 14
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. …
Section 16
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
...
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.
…
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…
injury
18. In evidence Mr Hughes said he did not hurt his back in the accident in August 1993. Indeed he had not injured his back in any previous accidents. By 1995, however, he was experiencing pain in the lower back and in the right hip. The pain in his hip gradually became worse and he was limping. Eventually his GP Dr Burke referred him to Dr Brooks in September 2000. Mr Hughes described the pain as radiating out from his hip into the lower back on the right side. At this stage of his career with Australia Post he was working in a supervisory role. He had clerical duties and some unloading of stock, as well as having to walk around the floor of the distribution centre supervising staff.
19. Mr Hughes said that after the hip replacement in November 2000, once the pain in the hip had gone, he still had pain in the back and groin. He agreed that he was walking almost normally by March 2001. Driving for periods exceeding an hour caused back and groin pain and general discomfort. The back pain he was now experiencing differed to the pain he had in 1995 because it was now constant and more severe. He said that his back pain became worse when he transferred to the Gateshead centre in July 2001 because his duties involved increased lifting, unloading of materials and walking around the centre. Squatting, bending and playing with his eight year old son were painful due to his back and groin symptoms. He said that his back and groin pain has become a little worse in the last two years. His left hip, however, is not a major concern. He had had to cease chiropractic treatment for his back in about July 2003 because he could no longer afford it.
20. Under cross-examination Mr Hughes insisted he had complained of general pain in his right hip and low back to Dr Hinds, GP, in 1994 and, prior to the hip replacement surgery, had told Dr Brooks about the pain in his right hip and around in his lower back. Mr Hughes thought it was probably the beginning of the symptoms in the hip, not a specific incident involving the back, that prompted him to consult Dr Hinds in 1994. He said that he also told Dr McGill about the problem with his back at the examination in November 2000. When informed that Dr McGill’s report (Ta19) contains a reference only to right hip pain, Mr Hughes said that he described his hip pain as deep seated arthritic pain that radiated into the lower back. Despite Dr Brooks’ certifying him fit for his normal duties once he completed the rehabilitation program, Mr Hughes maintained that he was not able to deliver mail, whether by motor bike or walking.
21. Mr Hughes said he is unable to squat or bend down without difficulty and this causes problems getting in and out of a car, getting out of bed, cooking, walking, shopping and taking out the garbage. He said he has done some fencing work where he lives, a 1¼ acre property. He has used a wheelbarrow to move timber into place for the fencing and an electric saw in making some shelves. A surveillance video was accepted in evidence (exhibit R1).
22. In a follow-up review on 22 November 2002, Dr Brooks noted that Mr Hughes had some ongoing symptoms around the right hip and low back, the main complaint being the back especially on activity but without radiating pain into the limbs. There is aching in the groin if he sits for too long. The examination found that Mr Hughes could walk normally. There was irritability in the right hip around eighty degrees of flexion, but otherwise the hip moved well. Dr Brooks felt that the groin pain on full extension was due to bony impingement. He stated:
… his symptoms were likely to remain stable. In any case, with a hip replacement one would not be recommending flexion much over 90 degrees due to the risk of dislocation. From the point of view of his back, there was no current indication for surgical intervention, given the absence of radicular features. His lumbar spine x-rays do show quite marked disc degeneration at L4-5. While this is obviously separate to his hip pathology, having some stiffness of the right hip will be causing more stress on the lumbar spine, and perhaps in that way aggravating his back problems. (Tb12)
Dr Lim had previously arranged for an x-ray of Mr Hughes’ lumbosacral spine on 15 November 2002. The imaging report (Tb11) noted moderate degenerative narrowing at the L4/5 lumbar disc with associated reactive changes around the disc margins with narrowing of the disc space. Apophyseal joint osteoarthritis was also noted at the L4/5 and L5/S1 level with hypertrophic changes mainly at the L4/5 level. Degenerative changes were noted at the L3/4 lumbar disc.
23. Dr McGill re-examined the applicant on 18 June 2003 and provided a report of that date to the respondent’s solicitors (exhibit R3). The history referred to a deterioration of symptoms in the right hip and eventually coming to hip replacement in November 2000. Mr Hughes did not have left hip symptoms at that time nor did he report such symptoms to Dr McGill at examination in July 2002. He told Dr McGill that he did not really have pain in the left groin. There was full extension and flexion of the left hip although minor restriction of internal rotation but right hip movements were restricted. An x-ray of the pelvis performed the day after the hip replacement revealed moderately severe osteoarthritis of the left hip. Dr McGill concluded that his left hip osteoarthritis would not have been influenced by the accident in August 1993 when the applicant fell on his right side. A left hip replacement will be likely, but that also is unrelated to the accident. In relation to his back, onset of discomfort across the back happened “at some stage” following the hip replacement. Mr Hughes was still having monthly chiropractic treatment but no other therapy. The low back pain was the applicant’s major concern though it is usually a low level discomfort with occasional radiating pain from the right posterior pelvis into the right groin.
24. Dr McGill found lumbar flexion was performed slowly but with a good range at the lower limit of normal. There was discomfort on straightening from full lumbar extension. Reflexes and sensation in the lower limbs were normal. An x-ray of the lumbosacral spine performed 16 November 1994 at the request of the applicant’s GP at the time, Dr Hinds, demonstrated osteophytes arising from the anterior margins of the L3, L4 and L5 vertebral bodies. The disc space heights were preserved. Further x-rays on 11 April 2002 showed narrowing of L4/5 disc space with progression of the osteophyte formation seen previously. A CT scan on 11 April 2002 showed disc bulging at all the levels imaged but no disc protrusion. There was degenerative change in the facet joints at L4/5. Dr McGill diagnosed degenerative change in the lumbar spine, spondylosis and disc degeneration. He summed up:
His degenerative lumbar spine disease is constitutional and unrelated to his previous work or the August 1993 accident. I do not believe that the right hip replacement caused or aggravated his low back. His right hip movements have improved between when I saw him prior to his hip replacement and on the two occasions I have seen him subsequently.
25. The respondent arranged for Dr D Maxwell, orthopaedic and spinal surgeon, to examine the applicant on 24 October 2002. In his report of that date (exhibit R2) Dr Maxwell obtained a history of pain in the lower back subsequent to the accident in August 1993. He also had pain in his right hip. Following the initial post-operative pain of the hip replacement, Mr Hughes had discomfort in the right groin and lower back. Walking for 500 metres or so causes his back to become sore and tired. The back pain mainly radiates into the right. The history was that the back pain became worse after the hip replacement.
26. Dr Maxwell noted that the x-ray taken on 28 November 2000 showed osteoarthritic change in the left hip similar to the changes in the right hip but at a less advanced state. He noted that a bone scan on 11 September 1995 showed increase uptake in the left hip suggestive of early osteoarthritis. In Dr Maxwell’s opinion the applicant had early osteoarthritis of both hips at the time of the incident in August 1993. Mr Edwards objected to this part of the report on the basis that Dr Maxwell was traversing the question of liability for the right hip. Though that may be the case, it remains the doctor’s opinion that the osteoarthritis in the left hip is unrelated to the accident and is constitutional.
27. In cross-examination Dr Maxwell thought it very unlikely that altered weight bearing patterns early on after the hip surgery would aggravate the degenerative changes in the back causing it to become painful. Noting that Dr McGill had found movement of the right hip to have been improved by surgery, it would be improbable for the back complaints to be related to the surgery and its consequences. In Dr Maxwell’s opinion, exercise and muscle strengthening helps a degenerative back condition and not chiropractic treatment.
28. Mr Edwards submitted that the applicant’s back pain is a result of problems associated with his right hip, a conclusion he said was made by Dr Brooks in August 2001 and for that matter by the chiropractor in April 2001. Mr Edwards submitted that where specialist opinion is divided as to causation, the proper course is to follow the opinion of the treating doctors, Dr Brooks and Dr Hoe. He submitted the injury is an excacerbation or aggravation of degenerative changes in the applicant’s lumbar spine. The aggravation is a product of the altered gait and hip mechanics following the surgery. Further it was submitted that Dr McGill’s views should be considered unreliable because he changed his opinion regarding the connection between the August 1993 accident and the condition of the right hip. Dr Maxwell’s opinion should be disregarded because he assumed the right hip condition was unrelated to work. The common sense conclusion, an approach founded on the High Court’s judgment in Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538, was that the back condition is related to the use of crutches and altered gait adopted after the surgery.
29. Mr Edwards submitted that permanent impairment arising from injury to the back should be assessed taking into account an assessment of the right hip. He conceded there was no evidence to associate the left hip condition with the 1993 accident or any consequences thereof.
30. Mr Skinner submitted the applicant’s case ignores the improvement in the range of movement in the right hip that resulted in the hip replacement surgery. Mr Skinner noted the applicant reported pain and discomfort in the back before he presented with problems in his right hip. Mr Skinner further submitted that little weight should be given to Dr Brooks’ opinion because he was unaware of the 1994 x-ray of the lumbar spine. In his submission, the video demonstrated far greater range of movement than Mr Hughes claimed in his evidence and therefore his credibility was in issue.
31. I make the following findings.
32. Mr Hughes did not hurt his left hip in the motor bike accident in August 1993. He has left hip osteoarthritis that Dr McGill believes is constitutional, as does Dr Maxwell. In Dr Maxwell’s opinion the osteoarthritis was present in the left hip at the time of the accident in August 1993. Further Dr McGill has found that the osteoarthritis was not influenced by the accident. Dr Maxwell believes that the accident made little contribution to the applicant’s osteoarthritis. I accept their evidence and find that there was no injury to Mr Hughes’ left hip that arose out of or in the course of his employment by Australia Post and that employment did not make a material contribution to aggravation, if any, of the left hip osteoarthritis.
33. So far as the back is concerned, I find that, as the applicant said in evidence, he did not injure his back in the accident in August 1993. However, Mr Hughes suffers from constitutional degeneration of the lumbar spine, with marked degeneration at the L4/5 level. This finding is based on the opinions of Dr Maxwell, Dr McGill, Dr Brooks and Dr Hoe. There is no suggestion that Mr Hughes’ employment contributed to his contracting the degenerative condition and I find accordingly.
34. The Act contains the following relevant definitions in s.4 of the Act:
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.
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; …
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The applicant’s degenerative lumbar spine is a disorder or morbid condition and thus an ailment. I have found that this condition is constitutional. Its onset was not contributed to by his employment. For a disease to be a compensable injury under the Act it is necessary to consider the following definition:
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.
Accordingly, I must decide whether Mr Hughes’ degenerative lower back condition has been aggravated by his employment.
35. In relation to s.29 of the Compensation (Commonwealth Government Employees) Act 1971, the compensation legislation that applied prior to the Act, the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 12 AAR 535 said the following about the expression “a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence”
… the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small. (at 542)
36. Mr Hughes reported back symptoms to Dr Hinds and x-rays were taken in November 1994. I find that his lumbar spine was symptomatic in 1994 and his right hip was painful and stiff in 1995. Symptoms in the right hip returned in 2000 and led to his referral to Dr Brooks. I am satisfied from the reports by Dr Brooks in September and October 2000, and that of Dr McGill in November 2000, that he was more troubled by his right hip, than the left hip or back, in this period immediately prior to surgery.
37. Dr Brooks made no record of any back pain before August 2001. I note, however, that the chiropractor recorded back pain in April 2001. I accept that Mr Hughes did suffer back pain from April 2001. But I do not accept the submission that a changed gait implicates the hip replacement in the applicant’s back condition becoming symptomatic. That Mr Hughes’ walking was not particularly affected by the surgery is apparent from Dr Brooks’ report on 16 March 2001 that his walking was “virtually normal” and by June he reported that the applicant was walking normally. Dr Hoe in April 2002 considered his gait was normal, as did Dr McGill (report of 26 July 2002) and Dr Maxwell in his oral evidence. The evidence does not support a finding that the applicant developed an altered gait following the hip replacement.
38. Dr Brooks thought the back symptoms reported in August 2001 were related to the applicant’s hip problem “presumably as a result of some altered weight bearing patterns early on after surgery and perhaps related to the stiffness in the hip …”. However, Dr Brooks did not bother with an x-ray of the lumbar spine because he considered the back symptoms were secondary to the hip. But it is also significant that Dr Brooks was unaware of the 1994 x-rays of the lumbar spine and the report at the time of back condition symptoms, and for that reason I place less reliance on his conclusions than those of Dr McGill and Dr Maxwell. He did not have the advantage of a complete history.
39. Dr Hoe thought pre-existing degenerative changes together with some limited flexion of the right hip caused the low back symptoms. He added that the back pain would decrease in months or years but flare ups would occur because of his degenerative condition. Dr Hoe also appears not to have seen the 1994 x-rays, since they are not referred to in his reports and was thus unaware of the previous report of symptoms to Dr Hinds. Further, his explanation ignores Dr McGill’s finding that the right hip had a greater range of movement after the accident. Accordingly, I prefer Dr McGill’s opinion to Dr Hoe’s.
40. Dr McGill has had the benefit of examining Mr Hughes on a number of occasions, both before and after the hip replacement. Consequently, I do not believe that his evidence should be given less weight than the treating doctors. Dr McGill emphasised that there had not been any low back pain recorded by Dr Brooks in the months immediately following the surgery. I have found onset of back pain was about six months after the surgery. Dr McGill thought the 1994 x-rays demonstrated that there was osteophyte formation in the lumbar spine and that condition was shown to have progressed by the time of 11 April 2002 x-ray. To similar effect was the opinion of Dr Maxwell that the degenerative change at L4/5 seen in the November 1994 film was less advanced than shown on the later x-rays.
41. Dr Brooks’ report in November 2002 referred to recent x-rays that showed quite marked disc degeneration at L4/5 that was “obviously separate to the hip pathology”. The report’s explanation for onset of the low back symptoms was tentative, stating that stiffness in the right hip would cause more stress on the lumbar spine, “perhaps in that way aggravating” the back. For Dr McGill, it was significant that the right hip movements were improved by the surgery. In contrast to Dr Brooks’ tentative linking of the back pain with the aftermath of the hip replacement, Dr McGill was definite in his opinion that the hip replacement surgery did not cause or aggravate the low back symptoms. Equally as definite was Dr Maxwell. In cross-examination he was asked about the role that altered mechanics or gait would have made to the complaints of back pain. Dr Maxwell acknowledged it as a possibility but “very unlikely”. His opinion was similar to Dr McGill’s: improved and increased movement of the right hip militated against finding that the back symptoms were due to the hip replacement or its consequences. I am not satisfied that the opinions of Dr Brooks and Dr Hoe posit a connection that rises above the level of a possibility or conjecture.
42. I find on the balance of probabilities that the applicant’s back symptoms are due to his degenerative back condition and they have not been contributed to in a material degree by his employment or the hip replacement. There being no compensable injury to the back, the issues of entitlement to compensation for medical expenses and permanent impairment do not arise.
decision
43. The reviewable decisions must be affirmed. There is no entitlement to costs.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member
Signed: .....................................................................................
AssociateHearing 16 & 27 October 2003
Decision 16 April 2004
Counsel for applicant A Edwards
Counsel for respondent B Skinner
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