Jackson and Comcare - [2000] AATA 957

DECISION AND REASONS FOR DECISION [2000] AATA 957

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1001

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Howard Alexander JACKSON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, Member Assoc. Prof. Maynard Member

Date20 October 2000
PlaceMelbourne

Decision 1. The Tribunal sets aside the reviewable decision made 11 August 1999. In substitution the Tribunal varies the decision made 20 August 1997 to provide: (i) the description of compensable injury sustained on 11 October 1969 is varied by adding "including lumbar disc injury or disruption and degenerative disc disease of the lumbar spine". (ii) Mr Jackson has since 20 August 1997 remained entitled to compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") in respect of the cost of medical treatment for the said injury, and to compensation under s 19 of the 1988 Act in respect of incapacity resulting from the said injury. 2. The Tribunal reserves liberty to the parties to apply if agreement cannot be reached as to the compensation payable to Mr Jackson pursuant to this decision. 3. The Tribunal orders under s 67(8) of the 1988 Act that Mr Jackson's costs of these proceedings be paid by Comcare.

......(sgd. J. R. Dwyer)....................
Senior Member

COMPENSATION – whether back problems result from, or are contributed to, in a material degree by injuries sustained in an accident in 1969 - whether injuries sustained in October 1969 have contributed in a material degree to degenerative disc disease from which applicant has suffered since 1983 - whether degenerative disc disease is a disease within the definition of that term in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 - whether on the balance of probabilities there was some disruption of the L5-S1 disc due to 1969 accident and whether it has contributed to the history of intermittent pain and degenerative disc change from 1969 onwards - decision set aside - Commonwealth Model Litigant Policy

Comcare v McGuire (1996) 68 FCR 329

Commonwealth of Australia and Commission For the Safety, Rehabilitation and Compensation of Commonwealth Employees and Catherine Borg, Federal Court, 15 November 1991, 710/1990

Australian Postal Commission v Burgazoff (1989) 10 AAR 296

Australian Telecommunications Commission v Barker (1990) 12 AAR 490

Phillips v The Commonwealth (1964) 110 CLR 347

The Commonwealth v Muratore (1978) 141 CLR 296

Casarotto v Australian Postal Commission (1989) 10 AAR 191

Telstra Corporation Limited v Arden, Federal Court, 15 October 1993, 524/94

REASONS FOR DECISION

20 October 2000 Mrs Joan Dwyer, Senior Member Mr I Campbell, Member Assoc. Prof. Maynard, Member

background

This matter has an unusually complicated history but it is essentially a fairly straight forward issue. On 11 October 1969 Mr Jackson who was born on 8 July 1947 and was thus aged 22, was serving with the Australian Army ("the Army") in Malaya. He was injured when a car in which he was a passenger drove into a rubber tree. After the accident he was hospitalised at Terendak Military Hospital from 11 to 17 October 1969. He was diagnosed as suffering from concussion "lacerated scalp and back".
Mr Jackson was discharged from the Army on 17 October 1971 (T docs p5). He joined the Victoria Police on 15 November 1971 and retired with effect from 2 September 1988. During his time with the Victoria Police Mr Jackson on 29 November 1983 claimed compensation under the Compensation (Commonwealth Government Employees') Act 1971 ("the 1971 Act") (T3) in respect of a "spine injury" he claimed he had sustained in the car accident while serving with the Army in Malaya on 11 October 1969. The claim was accepted on 17 April 1986 (T22). It was determined that Mr Jackson was entitled to compensation in respect of "concussion, laceration scalp, bruising to chest and back." On 19 October 1989 (T6), on the basis of a report from Dr Ward dated 17 June 1988, that determination was extended to cover "chronic lumbar spine soft tissue on musculo-ligamentous problem."
On 1 March 1996 Mr Jackson who had started working as a Private Inquiry Agent after his retirement from the Police Force wrote to the Department of Defence Compensation Section in the following terms (T11):
1. Please find attached Medical certificate as per your requirement re proof of injury which has been ongoing for a lengthy time. I have not provided certificates over the last few months as per your instruction due to not making any claim for loss of income to date. However there has been a downturn in the industry over the last few weeks and the availability of work has decreased.(emphasis added)

The statutory declaration attached to the letter showed that Mr Jackson had worked 36 hours over the past two weeks.

A delegate of Comcare on 1 April 1996 determined (T12) that Mr Jackson was not entitled to incapacity payments on the ground that his loss of income was due to a lack of work rather than to incapacity. The determination did state that reasonable medical expenses would continue to be paid.
On 23 April 1996 solicitors acting for Mr Jackson wrote to the delegate (T13) explaining their client's position (T13 pp207-208):
Our client instructs us that he suffers ongoing significant symptoms in his back. His symptoms, whilst chronic, do fluctuate in severity and are particularly exacerbated by physical activity and by sitting or standing or being unable to move about for lengthy periods. As a consequence, our client is severely limited in his occupation and in particular in activities such as driving lengthy distances and sitting for lengthy periods of time. He is consequently unable to undertake certain forms of work available to his business and as a consequence has had to rely on either his business partner undertaking them or subcontracting work. Additionally, he suffers intermittent periods of total incapacity for work because of his back injuries.
Our client instructs us that currently he is working on average about twenty hours per week. His business is subcontracting work to another person because our client cannot cope with the additional work due to his back injury. Additionally, our client's drawings have been less than those of his business partner because he is unable to work the hours that his partner is working. As a consequence of these factors he is suffering a loss of remuneration.
Comcare made further enquiries and found that while serving with the Victoria Police Mr Jackson had sustained a number of injuries. The most relevant was an injury to the cervical spine, in respect of which he had settled a claim in the Accident Compensation Tribunal for "Production, aggravation and/or acceleration of neck injury."
After the inquiries had been made the Comcare delegate at the Department of Defence, on 20 August 1997 reconsidered (T21) the primary determination of 1 April 1996. That reconsideration affirmed the primary determination that Mr Jackson was not entitled to incapacity payments as his statement of 1 March 1996 indicated that any loss of income was due to lack of work rather than the compensable condition. However, the delegate also concluded, on the basis of material included in the Victoria Police documents, that the injury of 1969 had resolved by the time Mr Jackson was discharged from the Army, and that his condition in 1997 was due to subsequent incidents unrelated to military service. The delegate ceased entitlement to compensation in respect of the injuries previously accepted as compensable from 20 August 1997.
Mr Jackson sought review by the AAT of the reviewable decision of 20 August 1997. That application was heard by the Tribunal (differently constituted). A decision was delivered on 7 September 1998 remitting the matter for reconsideration in accordance with written reasons.
Comcare in accordance with the written reasons of the Tribunal sought further material from Mr Jackson and from the Department of Defence. Mr Jackson sent material which included a medical report from Mr Coates (T27 pp401-404) and an updated report from Mr Critchley (T28 p412), who concluded:
The question is therefore as to whether Mr Jackson's low back pain dates from a lower lumbar disc injury that he sustained in this accident. Certainly his small external scar is in the lumbar region and he dates the pain from this accident. I think it is reasonable therefore to assume that Mr Jackson did sustain an injury to a lumbar disc in his accident in Malaya in 1971 [sic] and this contributes at least in part to his current disability. It is however impossible to assess how much of his current disability is due to the accident or due to the normal process of degenerative change but one can only rely on the patient's history as a guide in this regard.
On 11 August 1999 a delegate of Comcare reconsidered the matter pursuant to the Tribunal's remittal. That decision of 11 August 1999 affirmed the decision made on 20 August 1997 ceasing entitlement to compensation in respect of the injuries previously accepted as compensable.
The issue for us is whether Mr Jackson's current back problems result from, or are contributed to, in a material degree by the injuries he sustained in the car accident in October 1969. There is no issue about the fact that a MRI scan has revealed that Mr Jackson does have significant degenerative disease at three levels of the lumbar spine L3-4, L4-5, L5-S1 (see T8 p196 and T23 p374).
current application
We have concluded that Mr Jackson's degenerative disc disease does result from, or is contributed to in a material degree, by his injuries sustained in the car accident in October 1969. Thus the decision under review will be set aside. In substitution we will amend the description of injury sustained in the car accident to include reference to "lumbar disc injury or disruption and degenerative disc disease of the lumbar spine" and will find that Mr Jackson has since 20 August 1997 remained entitled to compensation in respect of those injuries.
The application lodged by Mr Jackson on 7 September 1999 sought review of the decision made 11 August 1999 (T31). That decision affirmed a decision made on 20 August 1997 (T21) which had affirmed a determination made 1 April 1996 (T12) that the Department of Defence [sic] was not liable to pay weekly

compensation as a result of the conditions of "concussion, lacerated scalp, bruising to chest and back" on the ground that loss of income was due to a lack of work and not to incapacity due to the injury. The correct respondent is Comcare, rather than the Department of Defence, as held by Carr J in Comcare v McGuire (1996) 68 FCR 329 at p331.

Mr Jackson appeared and gave evidence. Mr J Lenczner of Counsel appeared for Comcare. Evidence on behalf of Mr Jackson was given by Mr King who served with him in Malaya and by Dr Fennessy, Dr Kings and Dr Brown. Mrs Jackson also gave evidence. The respondent called Dr Ward, Dr Hall, Dr Robinson and Mr Shannon. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
the substantive issue
There is no dispute about the fact that Mr Jackson was injured on 11 October 1969 in a car accident in Malaya in the course of his Army service there. Nor is there any dispute about the facts that in 1983 Mr Jackson reported lumbar spine pain and that since 1993 he has had radiological evidence on MRI of degenerative disc disease at three levels of the lumbar spine. The question for this Tribunal, as stated by Mr Critchley in his report dated 8 February 1999 (T28), is whether the injuries sustained in October 1969 have since 20 August 1997 contributed in a material degree to the degenerative disc disease from which Mr Jackson has been suffering since 1983 when he first lodged his claim for compensation.
Mr Jackson, in his evidence, described the car accident in which he was involved on 11 October 1969 (T4 p14). The car in which he was a passenger drove into a rubber tree (T4 p54). Mr Jackson lost consciousness and sustained "Concussion, Lacerated Scalp and back." The hospital records note (T4 p55):
SUMMARY
11.10.69RTA. Passenger in car.
Thrown out of car apparently.
Not KOd.
OE : Conscious and in pain.
Laceration on Left buttock – suture
Multiple small lacerations on occiput with glass
embedded – glass removed – one suture inserted
Deep swelling of para spinal tissues of dorsal spine.
Full movement of all limbs.
Pulse 80/min BP 130/90
X-ray skull – No fracture
Abdomen and Pelvic – Nad
Chest clear
Dorsal spine – NBI
Tetanus Toxoid 0.5 ml given.
Put on ½ hrly pulse and BP
MO
Has passed urine.
Pethidine 100 mgs IM start. Repeat 6 hrly x 3 doses
if necessary.
OE : Chest bruised but clear.
Back bruised. No bony tenderness.
Limbs OK.
Neck movements full.
Sutured cuts on scalp.
As the Army medical records show, Mr Jackson was hospitalised for a period of about a week, to 17 October (T4 p54) and then attended outpatients on 23 October 1969 (T4 p50). He performed light duties on return to his unit (T4 pp53) for one week and on 23 October 1969 was certified fit to return to unit and resume full duties and sport.
About five weeks later, on 15 December 1969, the Australian Army left Malaya. Mr Jackson was posted to Nee Soon Garrison in Singapore (T4 p43). He said that for the short time he remained in Malaya he had continuing trouble with his back. He attended a physiotherapist in Malaya and then continued with the exercises he had been given. There is no record of further medical treatment for his back in 1970, but the Army records show that Mr Jackson returned for further treatment for his back in Singapore, in February and March 1971. The outpatient records are in the T documents (T4, pp43, 134, 136, 177-178, 188 and 361–364). The first entry on 6 February 1971 contains reference to the motor car accident 15 months ago. Those outpatient records confirm that Mr Jackson injured his back in a car accident in 1969 during Army service, and that he was still complaining of back pain, which the treating medical practitioners regarded as attributable to that accident, in February and March 1971.
Mr Jackson was discharged from the Army on 17 October 1971. At the Army Discharge Medical examination on 7 September 1971, the "Army Medic" who Mr Jackson said completed the questionnaire, noted that Mr Jackson had suffered a back injury during service (T22 p365). A Medical Officer, Dr Hall, who gave telephone evidence at the hearing wrote "Back – Nov [sic] '69 - # [fractured] vertebrae has just finished rehabilitation" (T22 p366). The Medical Record has a note (Spinal # mid-dorsal-function now excellent) (T22 p367).
Mr Jackson said that he continued to have some back pain during his service. He said he did not ask for special duties in Singapore. He explained, at trans. p14:
. . . if you're in the military police you had to be fully fit all over virtually to be able to continue with your duties so you just made sure you are.
Mr Jackson was asked about the entry in the service medical records for 25 March 1971 (T22 p364) which says "Following a course of rehabilitation he is now pain free with a strong mobile back." He explained at trans. p15:
. . . it wasn't totally true. I still had the trouble with my back but felt that I was able to cope with it and it would just take a bit of time to overcome.

He added:

. . . I obviously didn't think it was going to be something that was going to be a long term impairment. It was just something that I'd be able to overcome. I had got better since I got out of hospital and it was just slow and improving.

Mr Jackson at that stage was aged 23. He and his wife said they were enjoying the experience of service life overseas. Mrs Jackson explained that after the car accident in Malaya, Mr Jackson's back was sore "like you would expect it to be sore after sustaining such an injury" (trans. p248). She said that after that (trans. p248):
His back was always sore. Not, you know, like every day it was sore but little things would cause it to become – would worry him. If he sort of did any – like, stood for a long time or sat for a long time, just something that was a bit excessive, maybe go jogging or something, he would complain of his back being sore. And we would just massage it. We had every known massage treatment at home that, you know, just sort of massage it and rub ointments and things into it.
Mrs Jackson said that when Mr Jackson had back pain she would rub his back or arms (trans. p262). She used Tiger Balm and massaging devices. She said (trans. p249 and 253):
Howard doesn't complain a lot and – that's because we were all young and doing lots of exciting things. And if he did go and seek medical help in the army, you were risking of [sic] being medically downgraded and being sent home. So we didn't – or we'd wanted to stay there and his back was tolerable, so we just sort of plodded on. As I said, it was intermittent.
. . . .
Things were exciting in Malaysia and Singapore. What was it that was what did you - - -?---Well, as I say, our lifestyle we had; made great friends, we were young, I was pregnant with our first baby, we were enjoying it and it was good.
We accept Mr and Mrs Jackson's evidence on this issue and find that although Mr Jackson had some intermittent trouble with his back during service after the car accident in 1969, he could cope with his duties and did not think it was going to be a long term problem. In those circumstances we do not find it surprising or difficult to accept that he was prepared to overlook or minimise the effects of his back injury due to the October 1969 car accident.
After his discharge from the Army, Mr Jackson as previously explained, joined the Victorian Police Force. Mr Lenczner placed considerable reliance on the Police entry medical as suggesting that Mr Jackson had no back problem at that stage. The material before the Tribunal on that issue was rather inadequate but did not support Mr Lenczner's submission.
Mr Jackson said he had to strip down for the Police Medical Officer and the scar on his lower back was sighted. Mr Jackson said that at St Kilda Road the Police doctor asked him to do certain exercises such as touching his toes and he was able to perform them. He said that he explained that he had been in an accident and injured his back (trans. p23) "but I was able to cope with the condition." He was accepted into the Police Force. The only record of that examination is totally uninformative. What is clear is that the scar, which Mr Jackson still carries on his back to-day and which the Tribunal observed, must have been clearly visible in 1971. Notwithstanding that evidence of prior back injury Mr Jackson was accepted as medically fit for entry to the police force. Mr Jackson said he was still young in 1971 and thought he would get over the residual problem.
Mr Jackson's evidence that the police doctor was aware of his car accident at the time of the intake medical is supported by a small card called "Victoria Police Candidates Record" in the Police File (R3). It has a rubber stamp stating "Dr McNamara Passed". On the face of the card are particulars of name address, height, weight and chest. At the top of the reverse of the card someone has pencilled "car accident." On the reverse are spaces for:
Body examination
Hearing examination
Vision examination
Colours examination
Urine Test

There is no comment beside "Body examination". The next three items have "OK" noted and there is a reading for the urine test.

The Police file (R3) also contains a four page printed form headed "Victoria Police Description and Particulars of Candidate." The top half of the first page contains various personal details. The second part is headed "Medical Examination". It is totally blank, even missing a signature or stamp for the Government Medical Officer, except for the date 12 October 1971. Underneath it is a block headed "Decision of Selection Board". It contains two options either "Accepted Subject to Inquiries" or "Rejected". The rejected has been struck out and under the other heading someone has written "For H/C 13/10/71." The only other record of a pre-enlistment medical in the file is by a doctor whose name seems to be Raymond Fox FRCS of 18 Marrion Place Kew. On 15 September 1971 he certified that Mr Jackson:
Is mentally and physically of sound constitution in good health, and free from physical deformities.

The file contains no notes of his examination.

The pre-acceptance references in the file are good, particularly that of Acting Inspector Bateman of the Police Training School. He wrote:
I first met the above named applicant in 1966 when he was a member of Southern Command Provost Company, Australian Military FORCES [sic]. He was a corporal at the time that I was a Warrant Officer 1 (RSM) Jackson showed himself to be a quiet type of soldier, well disciplined, always neat and correct in his appearance. He always associated himself with persons who were well conducted and I am of the opinion that this applicant has all the attributes required of a good recruit & recommend him to the selection board.
Mr Jackson confirmed that he knew Mr Bateman when he was in the Army and said that Mr Bateman suggested he join the Police Force on discharge from the Army. Mr Jackson said that he had the impression that his Vietnam and other military service and in particular his service as a Military Policeman assisted him in being accepted for the Police. His evidence indicated that the Army medical examination was not very vigorous.
Mr Lenczner called Mr Shuey. He is an Assistant Commissioner with the Victoria Police. He gave evidence that fitness is a necessary requirement on induction into the Victoria Police because of the requirement to work in operational areas. He agreed that Mr Jackson's background as a military policeman would have made him more attractive to the Victoria Police because of maturity, life experience and the fact that he would be expected to be well disciplined, but said that would not outweigh the requirement for fitness.
We do not doubt the thrust of Mr Shuey's evidence as a general proposition, but the evidence is clear that the Police Medical Officers knew Mr Jackson had been involved in a motor car accident prior to entry to the Police Force and that they took a relaxed approach to the issue of full body examination and investigation of the effects of the accident on Mr Jackson.
We accept Mr Jackson's evidence as to the Police Entry Medical examination and find that the scar on his back was noticed, that when asked about it he disclosed that it was an injury sustained in a car accident and that he said words to the effect that he could cope with the effects of that injury. That does not seem an inappropriate approach for a young man anxious to start a new career after discharge from the Army. We do not see any credibility issue as arising in view of him making light of his problems at the Police Entry Medical examination. We accept that the back problem during 1970 and 1971 was intermittent and only arose after particular events like jogging or standing for a lengthy period as explained by Mrs Jackson. We find that Mr Jackson had no reason to believe he had a serious back problem in 1971.
Mr Jackson said that during his police training there were certain physical exercises that he could do easily, and there were some that gave him lower back pain. The one with which he had real difficulty was being one of four police trainees carrying a telegraph pole on their shoulders around the Tan. He said that he spoke to the instructor and as he was able to do the other exercises he was excused from that one. He said that on point duty he had some trouble with extended standing for periods of an hour, but as there was always a break after an hour, he was able to cope. He said he did attend a physiotherapist, at his own expense, just out of Ringwood towards Wantirna but he did not recall the name of that physiotherapist.
Mr Jackson said that he transferred from City patrol duties to the uniform branch, then into the CIB and finally into the highway patrol when he and his family moved to Shepparton. He kept up regular exercise.
Whatever difficulty Mr Jackson had as a result of his back problem, it did not interfere with his police career. The police file (R3) contains a report dated 4 April 1977 on Mr Jackson's suitability for promotion which includes the following:
He appears to be in good physical condition and has an excellent attendance record.

That was a response to a request dated 17 March 1977 for a recommendation regarding "the suitability (including physical fitness) of the above-mentioned member for promotion." With no further medical examination on the file, Detective Chief Superintendent Standfield on 5 April 1977 wrote that Mr Jackson was suitable for promotion.

Mr Jackson's back was clearly causing him some problems by 15 November 1983 when he lodged his first claim in respect of that condition. It was a claim to have the condition accepted as service related under the Repatriation Act 1920. Exhibit R4 is the Department of Veterans' Affairs file. It shows that a claim in respect of back problems due to the car accident in 1969 was lodged on 15 November 1983. In explaining the effects of the problems on his employment Mr Jackson wrote:
The spinal ailment is often aggravated due to my employment but does not cause me to be absent.
Mr Jackson on 17 May 1984 had described his back problems to a Dr Telstie in a very similar way to his evidence in this hearing. The note of Dr Telstie on a DVA medical history sheet (part of A3) reads as follows:
Injured back in Malaya in 1969, car accident and suffered fractured vertebrae in spine and concussion. Since this lower back has ached on an off. Get pains radiating from lower back to hips and from lower back up to thoracic spine and across both shoulders. Has had this pain ever since discharge. Treatment with physiotherapy originally which improved it, has worsened over the last few years. Uses Indocid intermittently for back pain. Advised by local doctor and shoe repairer that left leg shorter than right.
On 12 June 1984 a DVA doctor took a history of pains from low back to hip joints and referred Mr Jackson to an orthopaedic specialist, Mr Johnson. Mr Johnson on 5 September 1984 noted:
No significant low back pain. No hip pain. Has lumbar backache with repetitive bending and lifting.
Opinion . . .
I disagree with the X-rays. The lumbo-sacral disc is significantly narrowed.
s [Diagnosis]
Lumbo-Sacral disc degeneration.

On 5 September 1984 Mr Jackson was aged 37.

Mr Jackson's claim to have his spinal condition accepted as a service related injury under the Repatriation Act 1920 was rejected on 24 April 1985 because the car accident in Malaya on 11 October 1969 did not occur during a period of eligible service as defined in that Act. But Mr Jackson had also lodged the compensation claim which was accepted on 17 April 1986. We find that Mr Jackson had lumbo-sacral disc degeneration or degenerative disc disease as at 5 September 1984. The question is whether that degenerative disc disease is a disease within the definition of that word in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act"). The issue is whether it results from, or was contributed to, in a material degree by the car accident in 1969.
Mr Lenczner challenged the credibility of the evidence of Mr and Mrs Jackson. First he submitted that there was no evidence that Mr Jackson injured his lumbar spine in the car accident. He pointed out that the only record of low back problems in the 1969 hospital notes was of the laceration on left buttock and suture, apart from general references to "back bruised, no bony tenderness" (T4 p55). He said that means that Mr Jackson is suggesting that all the hospital doctors were 'grossly negligent" or "grossly incompetent" (trans. p339). In fact no doctor was asked in evidence whether a small annular tear or disc disruption as hypothesised by Mr Critchley would have been expected to be diagnosed by hospital doctors in the week after the accident (trans. p339). Mr Lenczner said that Mr Critchley had said that such a tear would have been a "major injury" (trans. p338) or a "very significant injury" (trans. p339) or "an injury of a serious nature" (trans. p339). That is not quite what Mr Critchly stated. He said "certainly the initial injury would be one of considerable magnitude, and would cause considerable disability and pain, … after that [it] is quite often variable and … may settle down and be fine for a period of time and then develop a recurrent lapsing sort of pattern of intermittent pain". (trans p309).
We consider it inappropriate to regard the hospital admission notes at T4 p55 as the definitive statement for legal purposes as to all the injuries Mr Jackson had sustained in the motor vehicle accident. Mr Jackson was in bed in hospital and the notes show that he was having Pethidine. His whole back was sore. It does not seem at all unlikely that neither he nor the doctors would have known at that stage whether or not he had some disruption or other injury to a disc.
Mr Jackson said he honestly could not remember which part of his spine hurt or was injured in October 1969. We consider that to be an entirely honest and reasonable response. Mr Lenczner relied on clinical notes (T4 p43) referring to pain alongside the thoracic spine 15 months after the accident. But the records at the time of the accident did note a laceration around the lumbar area as well as swelling of the para spinal muscles of the dorsal spine. Mr Jackson seems to have sustained injury to both upper and lower levels of the back when the car in which he was a passenger collided with a palm tree and a branch from the tree pierced his lower back. The T documents at T22 p361 contain a record of Mr Jackson, on 17 February 1971, giving a history of injury to his lower back in the accident as well as some trouble across his high dorsal spine.
Mr Jackson placed some emphasis on a document he had received from DVA (T22 p353), describing spondylosis and explaining how it can be attributable to a single trauma provided it was of sufficient severity and led to a period of immobilisation. It reads in part:
Definition – Spondylosis is a degenerative condition affecting the supportive joints of the spine. Degenerative changes occur in practically all supportive structures with advancing age. Nearly every one over the age of 50 will have X-Ray changes of cervical spondylosis. The degree of degeneration varies in different individuals and is in effect a degeneration of the cartilages of the joints with thinning and flexing of those cartilages. As normal wear and tear continue with the years, the process is accelerated and bony beaking and lipping of the joint margins occur with distortion of the bony elements of the joints, and the formation of osteophytes. The changes are essentially age degeneration in weight-bearing joints.
The degenerative changes also affect the annular ligaments between vertebrae and when this happens disc protrusion is very likely to occur. The nerve roots may then be irritated either by disc protrusion or by pressure due to the narrowing between vertebrae.
Aetiology – When the degeneration occurs beyond the normal physiological degree a "disease process" may be said to have supervened. The main causes of degeneration beyond the physiological degree are:
…
2.Trauma which may be single or multiple. In order for single trauma to cause a spondylosis beyond physiological degree it must be major and lead to some period of immobilisation of the patient at the time of the injury and unless this criterion is met the single trauma cannot be said to have led to a spondylosis subsequently because of the very nature of the anatomy and physiology of the spine in its healthy state.

Mr Jackson said all the doctors he has seen except Mr Shannon have said that his back condition has been accelerated and contributed to by the accident. In fact when Mr Shannon gave evidence he did not disagree with that. He said at trans. p63:

The jarring effect of . . . a car accident could have damaged the low back. I've never suggested that the low back couldn't have been damaged by the car accident. What I'm saying is there's no documentation that it was.

Mr Jackson was a passenger in a car which drove into a tree and he was in hospital for some time after the accident. Mr Shannon and Dr Hall both said that being a passenger in a car which drove into a tree would cause jarring of the spine. On 17 February 1971 Lt. Col. Robinson who was then a Senior Specialist Physical Medicine was of the view that X-rays of the mid dorsal spine showed a traumatic fracture attributable to the accident. Thus he accepted that the accident could have caused a traumatic fracture. Mr Critchley said that a collision between a tree and a car at some speed would be an accident of fairly significant magnitude. We accept that evidence.
Mr Lenczner pointed out that the Army clinical records do not show any complaints of low back pain after discharge from hospital. He also placed a great deal of emphasis on the Army discharge medical records at T docs pp365, 366 and 377 (also a number of other places). That discharge medical which took place on 7 September 1971 (T22 p365) shows that back injury was identified in the questionnaire at p365 but that the description noted by Dr Hall was "Nov 69 # [fractured] vertebrae – Has just finished rehabilitation". Dr Hall on examination wrote "spinal #[fracture] mid-dorsal function now excellent". From those notes and from Dr Hall's evidence Mr Lenczner submitted that the Tribunal should find that either Mr Jackson was having no trouble with his lower back at that time or else he lied to Dr Hall when Dr Hall asked him about his lower back.
When Mr Jackson was asked about the discharge medical examination he said that he could not remember what questions Dr Hall asked him. He did not know if he was specifically asked about his lower back, but he said he had been having some pain there since the car accident. However he said he was planning to make a career with the Police Force. He did not want to emphasise his problems at that stage and as a fit young man he was able to overcome the low back discomfort he was having at that time. Mr Jackson's answer to Mr Lenczner, at trans. p231, seems to put the matter very clearly and sensibly:
Well, why didn't you tell him that you had an ongoing lower back pain?---I can only surmise that my reason at that time would have been I was going to go into the police force, I was suffering with a pain that wasn't disabling me. It was something that I thought would gradually be overcome. I didn't realise it was going to get to the extent that it was.
Mr Jackson agreed with Mr Lenczner that a fair summary would be to say that from 1971 onwards (trans. p88) he had intermittent back problems, so that there might be periods of time with no problems and then some particular activity such as standing on point duty or sitting too long in a car would cause a problem. He said weeks could go by when he did not have a pronounced back problem.
Mr Lenczner called telephone evidence from Dr Hall who conducted the Army discharge medical. Dr Hall, is now attached to the Department of Surgery at the University of Western Australia. He said that in 1971 he was a National Serviceman and a medical practitioner. He had passed the first part of the examination for the Royal College of Surgeons. Dr Hall did not recall Mr Jackson or his examination of him but he gave evidence as to what he believed was his standard procedure for performing discharge medicals in 1971. Dr Hall said that it was his practice to test function of the back using the duck waddle test where a person has to flex their knees and hips and waddle across the room. He said Mr Jackson obviously did that well because he, Dr Hall, had noted "spinal fracture mid-dorsal – function now excellent". Dr Hall was asked to explain his comment "function now excellent".He said "On that day at that time that would be a true statement" (trans. p177). He said he was not able to comment about whether the type of injury that Mr Jackson sustained related in any way to his current degenerative spinal disease (trans. p177). It is apparent from the transcript that Mr Jackson was not asked in cross-examination if he performed the duck waddle test.
Dr Hall's evidence was that a person cannot have pain at the time of demonstrating excellent function. We have difficulty in accepting that evidence. He also said that being a passenger in a car which drove into a tree would cause jarring of the spine. He said that could later be indicated by degenerative changes in one or more discs "if there was significant fracture in the area". However he then went on to explain (trans. p183) that in fact degenerative change or localised arthritis did not require a significant fracture and could result from "a breakdown of the normal joint between two bones, . . . instead of the normal cushioning effect that a disc has there is then a wear and tear which over a period of time would manifest itself as localised arthritis". That is consistent with the other evidence in this matter.
Dr Hall also said (trans. p187) that many spinal problems tend to have periods when they are present and periods when they are aggravated. He added that in chronic conditions there are periods in which people feel quite normal and other periods when they experience a great deal of pain and difficulty. But he added that he would not expect such a degenerative process to be going on in a person of 24, which was Mr Jackson's age on discharge in 1971.
We find that the jarring of the spine in the car accident may well have caused some injury or disruption of a disc so that, as Dr Hall said, instead of the normal cushioning there was wear and tear which over a period of time manifest as localised arthritis and was shown on X-ray as a narrowing of the lumbo-sacral disc, as diagnosed by Mr Johnson in exhibit R4.
We are not able to find on the evidence whether or not Mr Jackson was asked to perform the duck waddle test on 7 September 1971, but even if he did perform it satisfactorily, as Dr Hall said, that would only show that on that day he had excellent function. It would not establish that Mr Jackson was not, as he said, having intermittent low back pain.
Mr Lenczner also called Dr Robinson who as Lt-Colonel Robinson and Senior Specialist in Physical Medicine examined Mr Jackson and wrote clinical notes relating to attendances on 17 February 1971 (T22 pp361-2), 10 March 1971 (T22 p363) and 25 March 1971 (T22 p364). Dr Robinson said that at that time he was a British Army Officer serving in Singapore. He explained that his specialist qualification in 1971 was a Diploma in Physical Medicine, which he said would be equivalent to a Registrar or Senior Registrar level.
Dr Robinson had obtained a history of injury to the low back in the car accident and he noted the scar to the left of the lower back, but he said it seemed from his note that the pain of which Mr Jackson was complaining in February 1971 was between his shoulder blades. He said if Mr Jackson had had lower back pain he would have recorded that as well.
Dr Robinson in 1971, after inspecting X-rays, formed the view that they showed a fracture of the mid dorsal spine. He expressed the view that it must be traumatic. Mr Lenczner told Dr Robinson that Mr Shannon, an orthopaedic surgeon who had seen X-rays recently taken, had expressed the view that they showed a natural scoliosis rather than an old fracture. Dr Robinson said he wrote what was his opinion at the time but perhaps he should have said "may" rather than "must" be traumatic.
Dr Robinson said that he noted that the spine moved well on 17 February 1971, but when Mr Jackson returned three weeks later, after having undergone a course of physiotherapy there was a stiff segment of the mid dorsal spine.
Dr Robinson volunteered an opinion based on the fact that he had been told by Mr Lenczner that Mr Jackson's X-rays of the lower back now showed degenerative change. He said (trans. pp210-211):
The presence of moderate to severe degenerative changes in the lower [spine] in a man in his early 50s in the absence of more widespread osteoarthritis in the body would, in my opinion and experience, be a bit unusual on its own. This would suggest a pre-existing contributory factor which could include previous trauma, either an isolated incident or chronic repetitive forces to the back, or some pre-existing structural abnormality resulting in abnormal mechanical strains throughout the spine, or a combination of those two. Now, the possible pre-existing structural changes would – might be the scoliosis in his neck back, . . . So what I'm saying or trying to say - - - Yes?--- - - - is that I would have thought that there was probably something pre-existing in the present state to – that resulted in degenerative changes in his low back.
Yes?--- To have come on over the course of the last 20 to 30 years on their own I think would be a little unusual in my experience.

The Tribunal then told Dr Robinson that as early as 1984 an orthopaedic specialist, Mr Johnson, had expressed the view that an X-ray showed that the lumbosacral disc was significantly narrowed. Dr Robinson responded (trans. pp211-212):
Yes, that would – probably . . . strengthen that opinion of mine. I mean, I think that – I haven't viewed the X-rays. The lumbar [sacral] disc space is notoriously difficult to comment on. It can be narrow quite normally but there are other signs which suggest that – goes to the disc. I mean, something must have happened to cause that. That wouldn't happen on its own. Something prior to 19 – what '83?
Yes?---Well, I would think, would have happened to have – to report that. I can't say when or what. But I think that it strengthens my opinion that it would be unlikely for this to come on its own. Something in his past, either related to the accident in '69, or the fact that he has a somewhat – probably has a somewhat abnormal spine before that, or a combination of factors.
Right?---I mean, I could not possibly exclude that – I mean, he has, I understand, there were presumably notes from Terendak where he was first seen after the accident. I mean he said to me – and in my first report, "injured lower back." There was a scar so it sounds reasonable to accept that there was an injury to his lower back. Now, although there was nothing obvious at the time or for a while afterwards. It is possible that something did happen deep in his lower back that wasn't apparent initially. It is possible. I could not exclude that.
When Mr Lenczner asked Dr Robinson to comment on the fact that on 25 March 1971 he had noted that Mr Jackson was pain free with a "strong mobile back". Dr Robinson said (trans. p213):
Yes, I mean, I really – at that time – obviously had no reason to suspect that there was any major residual problems. Well, as I have said the stretches and mechanics of the spine, as you probably know, are extremely complex. Then again, in spite of that, the result will stay the same. It is just possible that more damage than was apparent had been caused in his lower back. Probably, if that be the case, that may well have resolved on its own, but for the fact that he did have some spinal deformity as well, whether that preceded the accident or not – which is likely. So a combination of factors. A minor injury magnified by other factors.
As quoted in paragraph 44 of these reasons Mr Shannon did not say that the jarring injury sustained in the car accident on 11 October 1969 did not cause any disc injury or disruption. All he said was that there was no documentation that it did. There is however a great deal of oral evidence to the effect that Mr Jackson has had intermittent back problems extending to his low back, particularly when provoked by certain activities, since the 1969 accident. His evidence and that of Mrs Jackson has already been discussed. We accept that evidence. There was also some corroboration from Mr King. However we consider the evidence of Mr Jackson's treating doctors from 1971 onwards to be most significant.
Mr Lenczner asked Mr Jackson who had been his treating doctors between his Army discharge on 17 October 1971 (T docs p5) and 1983. Mr Jackson said he had attended Dr Kings from 1978 when he moved to Shepparton, and his wife remembered that when they had lived at Upwey their doctor was a Dr Fennessy.
Dr Fennessy was an important witness because he treated Mr Jackson shortly after his discharge from the Army. When Mrs Jackson remembered Dr Fennessy's name, he was contacted by the Personal Assistant to the Presiding Member of the Tribunal. At Mr Lenczner's request she asked Dr Fennessy's surgery to look for his medical records relating to Mr Jackson.
Before the second day of hearing Dr Fennessy had provided a short report (A5) stating:
Mr. Howard Jackson was a patient of mine when I practiced in Morris Road and Main Street in Upwey between the years 1974 and 1978.
I have a clear recollection of Mr. Jackson presenting on more than one occasion with complaints of recurrent low back pain. My recollection is that this was a long standing complaint that had arisen following a motor vehicle accident in the late 1960's whilst serving in the Malaysia with the Australian Armed Forces.
Unfortunately records from that time are no longer extant, but my recollection in this matter is clear.

In cross-examination Dr Fennessy confirmed that he had a recollection of Mr Jackson having an intermittently recurring problem of low back pain.

Mr Jackson also called Dr Kings who was his family doctor after he moved to Shepparton. Dr Kings said he would have seen Mr Jackson from approximately 1979 through to 1984. He too no longer had any clinical notes available. However he said he remembered quite clearly that Mr Jackson consulted him about a lower back injury and that "it was not a once-off sort of thing" (trans. p195). In cross-examination, he said he clearly recollected the "chronic intermittent nature of the lumbar region pain." He said that it would be his recollection that somewhere between every two months and every four months Mr Jackson would come to him requiring pain killers or anti-inflammatory medication.
Dr Kings explained that as well as being the Jackson family doctor he was also the police surgeon for four years of his time at Shepparton. He also knew Mr Jackson because he was an Army reservist for a short time at Shepparton while Dr Kings, who is currently a Colonel, had Army Medical Corps commitments in Shepparton.
Dr Kings said that his recollection of Mr Jackson was that if he saw him in his waiting room he knew he was in about his back. He explained (trans. p198):
I guess my recollection is that Howard Jackson was just, if he was sitting in the waiting room, you knew he was coming in about his back and just what – I guess I tend to associate particular illnesses with particular patients in a general practice, and Howard Jackson's backache was pretty well his only medical problem. But I really couldn't say when he first came in about it or where in that five years or so it was most troublesome.

Dr Kings said he remembered that Mr Jackson related the back pain to service in Malaya because he and Mr Jackson discussed it as a military event due to Dr Kings having a military medical background.

The third treating doctor to give evidence was Dr Brown. He took over Dr Kings' practice in 1985. He provided a report (A2) stating:
I was the treating medical practitioner of Mr. Howard Jackson from 1985 – 1989, in Shepparton, Victoria.
I also performed the duties of Police Surgeon in the Goulburn Valley.
I treated Mr. Jackson for cervical spine pain due to a motor vehicle accident in the police service, and treated him for thoracic and lumbar back pain caused by accidents suffered during military service.
As an active member of the local R.S.L., I took a keen interest in my patient's military careers. I clearly recall that Mr. Jackson had suffered thoracic and lumbar spinal injuries during his army service.
Dr Brown no longer had any records relating to the relevant period. He said he mainly saw Mr Jackson in relation to his cervical spine following the injury he had sustained during his police service. Dr Brown said (trans. p218):
I remember seeing X-rays [of the cervical spine] and thinking how terrible the injuries were for someone so young. But he also mentioned that he had lower – his whole spine – and that he hurt that in the army.
Mr Lenczner asked Dr Brown how he learnt that Mr Jackson had a problem with his spine as a result of military service. Dr Brown replied (trans. p220-221):
I can only say that when he presented about his neck and I saw the X-rays and ….. presented with his neck, I was quite shocked about it. I couldn't actually believe how he was still functioning. I was worried about his actual future in the police force with a cervical spine in that state. And when I get my patients in, I am a bit of a talker and chatter, and brought up that he had been in the Army, because I had been in the Air Force and I was flying in the Army reserve as well. And he said that he had served in Malaya and he had a couple of accidents up there and hurt his back. I can't remember the exact words or – but, I remember having a conversation with him.
Dr Brown said he remembered Mr Jackson having ongoing intermittent pain from the problem with his lower and thoracic back. He said that Mr Jackson was taking anti-inflammatories but he did not remember whether he himself prescribed them.
It is interesting that Dr Brown described Mr Jackson as a stoic kind of person. He said, at trans. p222:
. . . If I felt that surgery was indicated, I would have very rapidly sent him off somewhere, but Howard – a pretty stoic sort of fellow and was, just put up with the pain. I think he just believed that it was his life and he was going [to] carry the burden.
The Tribunal also received a report (A4) and a copy of the clinical notes (A6) of Ms Leembrugen a physiotherapist who has treated Mr Jackson from March 1983 to the present time. She wrote in her report that Mr Jackson first presented with acute cervical spine symptoms in March 1983, but that at the same time he complained of some pain and stiffness in the thoracic spine and gave a history of thoracic and lumbar pain since a motor vehicle accident in Malaya where he was a military policeman. In her evidence Ms Leembrugen said that her brief notes contain a reference "L4-5, L5-S1" in March 1983. She said her next entry contains a reference to "thoracic to lumbar". The notes also contain a reference in March or May 1983 to "much thoracic pulling particularly with sitting T3-4 – L5". Ms Leembrugen wrote in her report (A4):
In September 1991 he was referred for treatment for low back pain, which he had complained about in his initial contact with me, but "put up with" because of his other cervical problems.
He presents with very stiff limited spinal movements of L3-4, L4-5 and L5-S1, lumbar joints. His pain is temporarily relieved by spinal pain mobilisation.
This pain is consistent with degenerative disease of his lumbar spine which may well have been caused many years early. I would not consider that the degree of degeneration is consistent with the normal ageing process.
Ms Leembrugen explained that she started treating Mr Jackson's lumbar spine condition at the request of Mr Critchley on 5 September 1991 with treatment mobilising L4-5. Mr Critchley suggested ultrasound and if no change also traction.
Ms Leembrugen explained that when she was seeing Mr Jackson in 1983 in respect of his cervical spine problems, he would sometimes mention problems with his lower back and she would also treat those, but at that stage those problems were secondary. The main reason for his attendances was the cervical spine. After he had surgery for the cervical spine problem in 1986 it was no longer a problem. Then in 1991 Mr Jackson was referred back to her by Mr Critchley because of low back pain.
Ms Leembrugen, like Dr Brown described Mr Jackson as being stoic. She said that he was not the kind of person who would take medication except when he had a real problem for instance when his neck was very bad.
The evidence of Dr Fennessy, Dr Kings and Dr Brown and the evidence of Ms Leembrugen establish to our satisfaction that Mr Jackson has had ongoing intermittent lumbar back pain since 1974 when he was aged 27. Mr and Mrs Jackson gave evidence of intermittent low back pain or discomfort since the 1969 accident. The evidence also establishes that Mr Jackson has at all times attributed that pain to the motor vehicle accident in Malaya in 1969.
Mr Lenczner tried to persuade those doctors who no longer have their clinical notes of the relevant periods to estimate the number of times they saw Mr Jackson about his low back problem. They understandably said they were unable to be precise on that issue. When pressed some gave estimates. We consider those estimates are not relevant. What is relevant is that Dr Fennessy, Dr Kings and Dr Brown each recollected that Mr Jackson had an ongoing low back problem and that it was the main reason why he attended their surgeries and that he attributed it to the 1969 car accident. That evidence therefore supports the evidence of Mr and Mrs Jackson. We find that Mr Jackson has had intermittent lumbar back pain since the 1969 car accident.
Dr Robinson and Ms Leembrugen were of the opinion that the degenerative change in Mr Jackson's lumbar spine was more than would be expected to be due to the normal ageing process.
Mr Critchley who first saw Mr Jackson on 15 August 1991 when he was aged 44 did not consider the X-ray appearance of Mr Jackson's spine unusual for his age, but on the history given to him he considered that there was probably a causative relationship between the 1969 injury and the lumbar spine problem. The T documents include three medical reports from Mr Critchley as follows:
T7       10 October 1991     pp194 – 195
T9       27 July 1995 pp198 – 199
T24     25 May 1998 p377
When Mr Critchley first saw Mr Jackson on 15 August 1991, Mr Jackson gave a history of injury to his lumbar spine in the car accident in Malaya. Mr Jackson explained to Mr Critchley that he had had little trouble with his back for several years, but had had a recurrence of pain six weeks earlier following a period of prolonged standing. The pain radiated down the left leg to the heel. Mr Critchley in his report of 10 October 1991 referred to the obvious scar related to the car accident and an obvious scoliosis. He reported that plain X-rays in September 1991 showed "narrowing of the lumbosacral disc and a small retrolisthesis of L4 on L5." We note that in Mr Johnson's opinion plain X-rays as early as 1984 also showed narrowing of the lumbo-sacral disc.
Mr Critchley wrote in his report of 10 October 1991 (T7 p195):
It was obvious that the injury sustained to his spine in the original accident was a considerable magnitude and it may well have caused an internal disc disruption.
However, the x-ray appearances of Mr. Jackson's lumbar spine are not unusual for someone his age with normal idiopathic disc degeneration. It is therefore impossible to establish a direct relationship between his original injury and his current problem, although I think that the causative relationship is a probable one, rather than a possible one.
If the accident in 1969 had in fact caused this degree of disc damage then this would be a permanent disability.
At present his disability is only moderate and I think could be controlled by conservative measures such as simple analgesics, exercises perhaps with physiotherapy and making slight modifications to his work practises such as providing a customised lumbar support for his car seat. He should avoid prolonged standing as this appears to exacerbate his pain.
It may be that he will continue to have problems with his back and these may increase on a periodic basis as time progresses. It is impossible to say at this stage whether or not he is as disabled as he is likely to be in the future. However I think there is only a small possibility that he will become totally incapacitated in the future and the most likely outcome is that he will suffer from periods of partial incapacity.
We consider it significant that it was prolonged standing which was the initiating factor for the recurrence of low back pain reported to Mr Critchley in 1991. That of course is consistent with Mr Jackson's evidence that during his police service standing on point duty was the one task (other than the training exercise with a telegraph pole) that caused him back problems. It is also consistent with Mrs Jackson's evidence that prolonged standing was one activity which provoked back pain during Mr Jackson's Army service after the car accident.
In his second report of 27 July 1995 (T9 pp198–199) Mr Critchley reported that Mr Jackson had returned to him in August 1993 complaining of recurrent pain in his back radiating down both legs and was taking analgesics on a regular basis. He said that Mr Jackson was so bad that he agreed to contemplate spinal fusion surgery if it were possible. He had therefore arranged an MRI but it showed multi level disc disease at L3-4, L4-5 and L5-S1. Mr Critchley was of the opinion that Mr Jackson was not suitable for surgery but he referred him for a second opinion to Mr Falkenberg who agreed with Mr Critchley. By 27 July 1995 when Mr Jackson returned to Mr Critchley, he was having considerable difficulty managing his occupation, had difficulty travelling long distances in a car, and getting in and out of cars, and had had to give up golf. Mr Critchley again concluded that whether or not Mr Jackson's widespread [i.e. 3 level] degenerative disease of his lumbar spine was directly attributable to the car accident was open to debate "although on the balance of probability the accident significantly contributed to it."
In his third report of 25 May 1998 (T24 p377) Mr Critchley wrote:
. . . .
From reviewing his Army medical records it is quite clear that he had a very significant spinal injury at this time which was much worse in the thoracic region. There is no doubt however that an injury of this magnitude may well have injured his lumbar discs but this would not have been evident at the time.
In Mr Jackson's discharge medical examination dated 7/9/71 it quite clearly mentions pain in the left lumbar region.
I myself see no reason to doubt that the very severe motor vehicle accident in 1969 has contributed to Mr Jackson's degenerative disease of his lumbar spine.
When Mr Critchley gave evidence he said that in his opinion the scar he had observed was at the L3 level. It was explained to him that there was no reference to pain in the records. After looking at Dr Robinson's note of the examination on 25 March 1971, Mr Critchley said that note would lead him to believe that Mr Jackson had no symptoms in his lower back at the time of that examination. He added that whether that constitutes a recovery or not is open to some doubt.
Mr Critchley said that the usual injury to lead to degenerative changes in the future would be a disc injury such as a tear of the annulus which does not heal and leads to progressive degenerative change in the disc which can take several years to occur. Mr Critchley said that with such an injury there would certainly be ongoing intermittent discomfort from the lumbar spine. He said there would be intermittent symptoms at an early stage of such a degenerative process.
Mr Critchley said it would be unusual but not impossible for a person to have no symptoms for some years after such a disc injury. But we have found that Mr Jackson did have intermittent low back symptoms from the time of the car accident. Mr Critchley said he would expect a minimum of two weeks of immobility after an injury causing relevant disc injury. That is approximately the period Mr Jackson spent in hospital and on light duties. He was in hospital from 11 to 17 October 1969 (T4 p54) and then was certified for light duties for one week. After an outpatients visit on 23 October 1969 (T4 p50) he was certified fit for full duties and sport. Mr Critchley said after a period of immobility the back may settle down and be fine for a period of time and then "develop a recurrent lapsing sort of pattern of intermittent back pain (trans. p309). That seems to be the pattern described by Mr and Mrs Jackson. We accept their evidence on that issue. We find that Mr Jackson developed a recurrent lapsing sort of pattern of intermittent back pain after the car accident in 1969.
Mr Critchley agreed with a suggestion put to him by Mr Lenczner that, say two years down the track, if you were looking specifically for problems in the lumbar spine you should be able to determine some abnormality. But he said "you would have to be looking." He also said that to elicit discomfort by putting a patient through exercises it would have been necessary to see the patient over a period of time. He said if there had been injury to the disc X-ray changes would begin to show two to four years later. There is no evidence of any lumbar spine X-rays being taken after service until 1984 when degenerative change was noted by Mr Johnson.

Mr Critchley said that if a medical practitioner had made a note of "pain free strong mobile back", as Lt. Col. Robinson did on 25 March 1971 (T22 p364), that would tend to suggest that Mr Jackson did not have an injury that would ultimately lead to progressive degenerative changes. He said it was possible that he did have such an injury but was pain free at that time.
Mr Critchley agreed with Mr Shannon that the scoliosis noticed on X-ray was an adolescent idiopathic scoliosis rather than one due to fracture, but he rejected the idea put to him by Mr Lenczner that it would significantly affect the lower lumbar spine (trans. p312).
Mr Critchley suggested that in his opinion Mr Jackson had "an injury to the complicated structure of the disc that has caused it to slowly fail over the years that followed." (trans. p313). Mr Critchley agreed with Mr Lenczner that in view of the history of ongoing pain since the car accident he had given Mr Jackson the benefit of the doubt as there was no way of establishing a direct link between the car accident and Mr Jackson's current problems. However Mr Critchley's position became clearer when the matter was pursued further.
The Tribunal explained to Mr Critchley that Mrs Jackson had given evidence of Mr Jackson having a sore back requiring massage and of her using products like Tiger Balm after certain activities following the accident, and that Drs Fennessy, Kings and Brown who had treated Mr Jackson from 1974 to 1985 had all given a history of him attending them because of intermittent low back pain during those years. Mr Critchley commented on that history (trans. p315):
Well yes, I think that follows an absolutely classical pattern of what happens when an annular tear is – that when an annular tear occurs in an accident and as I mentioned previously the symptoms tend to be very episodic and there are episodes of what used to be called acute lumbago that now seems to have disappeared where doing some relatively minor or significant twisting or lifting … precipitates back pain that requires a little time off work and some supported treatment like massage and physiotherapy and then effectively you are back to normal for a period of time. The normal process of that is that the intervals between the attacks of pain get shorter and shorter as the years go by and as the disability develops.
Mr Critchley said he still held the view expressed in his report (T7) of 10 October 1991. He said he based his view that the current problems were probably significantly contributed to by the car accident in 1969 on the history of ongoing intermittent pain thereafter. He also said that a collision between a car and a tree at some speed would be an accident of fairly significant magnitude and it would not be surprising if it caused a significant injury. The Tribunal accepts that evidence and finds that in the car accident Mr Jackson sustained "an injury to the complicated structure of the lumbo-sacral disc that has caused it to slowly fail over the years that followed".
Mr Lenczner called Dr Ward. He is a specialist in sports medicine and musculo-skeletal medicine. He examined Mr Jackson at the request of the Department of Defence on 3 June 1988 and provided a report dated 17 June 1988 (T22 pp358-360). In that report he set out Mr Jackson's current complaints as follows (T22 p.358):
All his present complaints are related to his lower back symptoms. He complains of pain in his lower back which radiates up towards his shoulder blades. The pain is worse on prolonged standing and prolonged sitting and it is much more noticeable in the cold weather. He suffers from increased degree of stiffness and ache on arising in the mornings and at the end of a heavy working day. It was suggested that he should sleep on a relatively stiff bed and since he has bought one he has found that his back symptoms have improved particularly with the early morning symptoms.

In his report of 1988, Dr Ward concluded that Mr Jackson's only ongoing problem related to the motor vehicle accident in Malaysia in 1969 was "chronic lumbar spine soft tissue or musculo-ligamentous problems". He added (T22 p.359):

(b)I believe the Defence Department is liable under the above Act for this condition.
(c)The effects of his condition have improved considerably but have not yet ceased and are likely to remain chronic.

In response to particular questions Dr Ward advised (T22 p.360):

2.Prior to the motor vehicle accident in 1969 Mr. Jackson states that he had not suffered from any previous problems with his lumbar spine. Therefore on the balance of probabilities the employment (the motor vehicle accident whilst working) did contribute to the contraction of his condition.
3(a)The contributing factor was the injury sustained in his motor vehicle accident in Malaysia in 1969.
(b)The effects have been of a permanent nature and he is still troubled by some residual symptoms.

In evidence Dr Ward said that he did not form the view that Mr Jackson had suffered any disc damage because his initial recovery was quite quick and his complaints were more in keeping with a musculo-ligamentous injury. There were "no signs of sciatica or discogenic type symptoms" (trans. p101).
Dr Ward had been sent by the respondent further information as to the Army medical records following the car accident in 1969. He said in evidence that those records did not change his mind as to the conclusions he expressed in 1988. He said (trans. p102):
his on going problems I felt quite certain were due to a muscular ligamentous injury which he had suffered and which was getting worse with the passage of time and increasing age.
Dr Ward said that the history put to him by Mr Lenczner was consistent with a soft tissue injury only and that you can get "recurrent soft tissue injury certainly depending on the sort of activity you're doing, the strains you apply to your back" (trans. p104). He said damage higher up the spine can cause compensatory exaggeration of a soft tissue injury.
Dr Ward explained that a soft tissue injury can become recurrent and can destabilise some of the control of the lumbar spine. Dr Ward said that if there was a dorsal spine injury in the same accident (trans. p105):
It would throw his back out of kilter and would place additional type of structural strain on the use of his back in heavy activities in lower back. It would make it more prone to recurrent strain because the normal alignment and the geometrical forces have been altered.
Dr Ward said that in time the chronic soft tissue complaint and degenerative change "just blend into each other" (trans. p109). Although Dr Ward did not diagnose a disc problem in 1988 his observations support a continuing connection between Mr Jackson's current lumbar back problems and the car accident. We prefer Mr Critchley's evidence to that of Dr Ward. We find that it is probable that Mr Jackson sustained some disc disruption or annular tear in the lumbar spine in the accident.
Mr Shannon is an orthopaedic surgeon who saw Mr Jackson at the request of the Australian Government Solicitor in 1998. He said that the MRI of Mr Jackson's spine showed lumbar disc degeneration at L3/4, L4/5, L5/S1. He saw Mr Jackson again on 18 January 2000. He said Mr Jackson gave him a history of pain radiating from the low back down the legs to the heels.
It was Mr Shannon's opinion that the fact that there was change at three adjacent levels tended to indicate that the problem was age related, but he said, "I don't think I would argue it strongly one way or the other". (trans p57) The explanation of age related degeneration may have seemed reasonable when Mr Jackson was 51 in 1998, but the history of complaints of back pain after the car accident during service, and of narrowing of the lumbo-sacral disc noted on X-ray in 1984 by Mr Johnson, and the lodging of a claim for compensation in 1983 when Mr Jackson was just 36, make that explanation less likely.
In September 1984 when Mr Jackson was aged 37 he reported to Mr Johnson that since the injury in the Army he had "intermittent pain b/w shoulder blades" and "lumbar back ache with repetitive bending and lifting". Having seen X-rays, Mr Johnson reported: "The lumbo-sacral disc is significantly narrowed". Mr Jackson saw another surgeon Mr Coates on 1 September 1994. According to Mr Coates the degenerative change had worsened dramatically by the next X-ray in 1991 (T27, p403). He noted progressive loss of the intervertebral disc space at L5-S1 and at L4-L5. Dr Coates wrote:
I would consider that the accident he was involved in in Malaya is in all probability the cause for his problems.
Mr Lenczner asked Mr Shannon whether a disc injury to the lower spine could be missed on an Army discharge medical that involved "activities such as duck waddling and bending". Mr Shannon said that if it was symptomatic at the time it would be likely to be picked up, but injuries do fluctuate and if the examination was at a good time it might not have been picked up. Bearing in mind Mr Jackson's evidence and that of his wife, that during Army service he had few problems with his back as long as he did not strain it, we are not troubled by the fact that the back injury apparently did not create any problems at the time of the Army discharge medical.
Mr Lenczner also pointed to a statement Mr Jackson prepared in 1987 in support of his application to be invalided out of the Police Force (T docs p285-290) due to injury to his cervical spine. He did not mention his pre-existing back condition. He stated:
When I first joined the Victoria Police Force, I was in excellent health, both physically and mentally.

Mr Jackson agreed that was not accurate, however he pointed out that it was not relevant to the application for an invalidity retirement as that application was in respect of a condition diagnosed as "Sprain Neck/Whiplash". Mr Lenczner suggested that we should find that Mr Jackson was being honest when he prepared the application for invalidity retirement, and that he was in excellent health physically when he joined the Police Force. He submitted that Mr Jackson was not truthful in his evidence to the Tribunal when he suggested otherwise.

We do not make that finding. The fact that the five page statement contains one sentence, not relevant to the specific point at issue, which we find is not totally accurate does not cause us to question either Mr Jackson's credibility overall, or the fact that he sustained some injury to his lower back in the car accident in October 1969 and had intermittent but not incapacitating low back pain thereafter. That description of intermittent low back pain was given by Mr and Mrs Jackson and confirmed by Dr Fennessy, Dr Kings and Dr Brown. We find that Mr Jackson did not think his low back problem was significant when he joined the Police Force. By 1987 he knew it was a chronic problem but he did not make a claim on the Police Force for that problem. In all his claims for lumbar back problems he attributed them to the accident during Army service in Malaya.
We find that since October 1969 Mr Jackson has had intermittent low back pain, as well as intermittent dorsal pain, and that from 1991 the lumbar pain became more chronic. We find that Mr Jackson's treating doctors from 1974 were aware of the intermittent pain in his low back and of the fact that he attributed it to the car accident in 1969. We find on the balance of probabilities that there was some disruption of the L5-S1 disc as a result of the 1969 accident, and that it has contributed to the history of intermittent pain and degenerative change from 1969 onwards.
Mr Jackson has since 1984 had evidence on X-ray of degenerative disease of the spine at the L5-S1 level. Since 1991 it has spread to L3-4 and L4-5. We find that that degenerative disease is a disease within the meaning of that term in s 4(1) of the Act. We find it has been contributed to by Mr Jackson's motor accident in Malaya in 1969 during service.
The decision under review will be set aside. In substitution we will vary the determination of 20 August 1997 to provide:
(i)the description of compensable injury sustained on 11 October 1969 is varied by adding "including lumbar disc injury or disruption and degenerative disc disease of the lumbar spine".
(ii)Mr Jackson has since 20 August 1997 remained entitled to compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") in respect of the cost of medical treatment for the said injury, and to compensation under s 19 of the 1988 Act in respect of incapacity resulting from the said injury.
We consider it appropriate to comment on one issue which concerned the Tribunal during this hearing. That was the application of the Commonwealth as Model Litigant policy. It could not be said that the original determination of 17 April 1986 accepting liability to pay compensation for "concussion, lacerated scalp, bruising to chest and back", or the extension to cover "lumbar spine soft tissue injury on musculo ligamentous problems", was made on inadequate or misleading information. But the respondent, 11 years later, decided to cease entitlement to compensation in respect of the previously accepted condition.
There was no suggestion that Mr Jackson's original claim was fraudulent or misrepresented anything. It was accepted after proper investigation. Comcare has now decided to look more carefully at the original records, and consider whether they should be differently interpreted. Comcare does have power to reconsider earlier determinations. If by doing so it does establish clearly that the original acceptance of the claim was wrong, then there is no problem about entitlement being ceased. However the issue is more complicated where after further investigations it remains unclear whether the original injury was compensable, or whether the current problems still result from the original injury. The Tribunal suggested to Mr Lenczner that in its view the accepted legal position is that in such circumstances the original acceptance of liability should stand.
Mr Lenczner, at the hearing, said he was concerned that the Tribunal might regard the circumstances of this matter as imposing something like a "reverse onus" on Comcare, so that it would have to justify the cessation of liability to pay compensation on and from 20 August 1997. The Tribunal indicated that Commonwealth of Australia and Commission For the Safety, Rehabilitation and Compensation of Commonwealth Employees and Catherine Borg, Federal Court, 15 November 1991, 710/1990 noted at 20 AAR 299 seemed to require that approach. That decision also concerned a "cease effects" determination. Jenkinson J, at p307, said of the determination made 25 July 1988:
The question as to what the function was which the delegate had to perform on 28 [sic] July 1988 may be answered in two ways. It might be said that he had to decide whether any of the circumstances upon the existence of which Mrs Borg's entitlement to compensation at the weekly rate specified in the preceding determination no longer existed on 28 July [sic] 1988. Or it might be said that he had to decide whether on 28 July [sic] 1988 all the circumstances existed upon the existence of which Mrs Borg's entitlement to weekly payments of compensation at that time depended. If the former question were the one to be asked he would not make the determination he did make unless he was persuaded that one of those circumstances had ceased to exist. If the latter, he would make the determination he did make unless he was persuaded that all those circumstances existed on 28 July [sic] 1988. In that way the identification of the correct question determines what in the case of a curial proceeding would be called the legal (not the evidential) burden of proof. I adhere to the opinion about problems of this kind which I expressed in McDonald v Director-General of Social Security (1984) 1 FCR 453, and the more confidently because I understand the reasons of Woodward J. in that case to be in substantial accord with that opinion.
I think that the Act required on its proper construction that the delegate should not make the determination he did make unless he was persuaded that one of the entitling circumstances had on or before 28 July 1988 ceased to exist. . . . In order to fix that period [the period of entitlement to compensation] by determination in performance of the function conferred by s.20(1) [of the 1971 Act] the delegate must in my opinion be persuaded as to when the time was or will be on which the period has ended or will end. Unless persuaded of that he is not in my opinion authorised by the Act to make the determination he did make, which is a determination that the period of the incapacity in which the injury resulted has ended and that any incapacity existing at the time of the determination is not an incapacity in which the injury resulted. The function of the Tribunal on review is the same.
Jenkinson J in Borg referred at p308 to a number of authorities on this issue, Phillips v The Commonwealth (1964) 110 CLR 347 and The Commonwealth v Muratore (1978) 141 CLR 296; Casarotto v Australian Postal Commission(1989) 10 AAR 191; Australian Postal Commission v Burgazoff (1989) 10 AAR 296; Australian Telecommunications Commission v Barker (1990) 12 AAR 490. His Honour noted that the High Court in Phillips' Case (110 CLR at 351) placed upon the worker the onus of proof in relation to partial incapacity, where the original determination in that matter had related to total incapacity, and the evidence established that the worker was no longer totally incapacitated. That is not the situation here.
Mr Lenczner stated that he had advised Comcare that if there were to be any argument on that issue it should make further determinations setting aside the original determinations accepting liability. He said (trans. p156) that such a course would be at "some disadvantage to Mr Jackson if he lost this case, because he would then be forced to repay the payments." Mr Lenczner explained:
We just say that there is just no liability and Mr Jackson has to prove causation irrespective of the acceptance of liability. If this became an issue, you might need to rule on it because all that the Department – would just set aside the finding of liability. So it is something that they could overcome, with some disadvantage to Mr Jackson if he lost this case, because he would then be forced to repay the payments.
Mr Lenczner was quite explicit in suggesting that he had advised that a new determination be made revoking the earlier determination accepting liability so as to avoid anything similar to a onus or burden of proof being imposed on his client. He returned to that issue again on the third day of hearing (trans. p281) offering to hand up a proforma of an anticipated decision which the decision-maker might make setting aside all previous determinations accepting liability. Mr Lenczner on that occasion withdrew the comment he had previously made as to recovery of compensation already paid, saying that there would be "no attempt to seek recovery of compensation paid."
Mr Lenczner said, at trans. p282:
The reason why this is being brought to your attention and to the attention of Mr Jackson is because on the last occasion the Tribunal expressed some concern about what litigant [sic] and it seemed to me proper and seemed to my instructors proper that the Tribunal be apprised of the way that the decision maker wishes to proceed.
It is not really a request for advice but because the Tribunal has expressed views, because model litigancy is an area which is really quite – I mean it is not really a legal question but it is a question which the Tribunal saw fit to say something on the last occasion. I mean personally at my end I don't see anything inappropriate about proceeding in this fashion but my instructors and those instructing my instructors have a real concern that they don't do anything that is in any way inappropriate, irrespective of the views that I may have. So I've been asked to bring this to your attention.

In our view the approach of making a further determination during the review process in order to shift an inconvenient burden of proof is not consistent with what is required of a Model Litigant. It does not recognise that the principles discussed in Commonwealth of Australia v Borg and The Commonwealth v Muratore and Telstra Corporation Limited v Arden, Federal Court, 15 October 1993, 524/94 express the standard which the Courts have decided is required by law and as a matter of justice, where a decision-maker decides to cease liability in respect of a compensation entitlement which had previously been determined to be ongoing. To try to avoid the application of those principles does not seem to us to "act with complete propriety, fairly and in accordance with the highest professional standards." We note that the Commonwealth as Model Litigant policy states:
The obligation goes beyond requiring the Commonwealth and their lawyers to act honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.
As it turned out the scheme foreshadowed by Mr Lenczner of making new determinations in an attempt to shift the burden of proof was not implemented. Nor did we decide the questions before us on issues as to onus of proof. We have found on the balance of probabilities that Mr Jackson's degenerative disc disease is contributed to by the motor car accident in 1969. We have however felt it appropriate to set out our thinking as to the application of the Commonwealth as Model Litigant policy so that it is available to those representing the Commonwealth if similar issues should arise in other matters the future.
I certify that the 118 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Mr I.L.G. Campbell, and Assoc. Prof. Maynard, Members
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing                   28 February 2000, 29 March 2000 &
  10 April 2000
Date of Decision  20 October 2000
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Australian Government Solicitor