Linarejos and Comcare - [2004] AATA 962

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 962

ADMINISTRATIVE APPEALS TRIBUNAL ) N2002/1876;

) N2003/1598;

GENERAL ADMINISTRATIVE DIVISION ) N2004/480

MANUEL LINAREJOS

Applicant

And

COMCARE

Respondent
DECISION

Tribunal

Ms G Ettinger - Senior Member

Dr P Lynch - Member

Date 15 September 2004

PlaceSydney
DecisionThe reviewable decisions in Matters N2002/1876, N2003/1598, N2004/480 are affirmed.
Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988, costs cannot be awarded.
[sgd] Ms G Ettinger
Senior Member

CATCHWORDS

Compensation - back injuries 1995 – neck and back injury 1997- no further incapacity – permanent impairment not found – decisions affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27

CASE LAW

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

REASONS FOR DECISION

15 September 2004

Ms G Ettinger - Senior Member

Dr P Lynch - Member

The applications before the Administrative Appeals Tribunal (“the Tribunal”) were those of Mr Manuel Linarejos, the Applicant in these proceedings, appealing against three decisions of Comcare, the Respondent, made within the legislative environment of the Safety Rehabilitation and Compensation Act 1988 (“the Act”).

N2002/1876
This matter concerned a denial of liability for a claim of permanent impairment by Mr Linarejos in regard to soft tissue injury to his lower back claimed to have been sustained on 28 August 1995. The decision dated 4 March 2002 was affirmed by a decision dated 25 July 2002 which also corrected the date of injury which had been incorrectly recorded in the previous decision.

N2003/1598
This matter concerned the Applicant’s claim for soft tissue injury to his lower back claimed to have been sustained on 28 August 1995, for which liability had been accepted until 1 June 2003. As a result of a Direction made by the Tribunal after it had heard the parties at a Telephone Directions Hearing, the matter was, pursuant to section 42D of the Administrative Appeals Tribunal Act 1975, remitted to Comcare, and the reviewable decision which was before the Tribunal at the Hearing, was reworded relevantly as follows:

“I have decided that the Reasons for the reviewable decision dated 1 September 2003 are correct. However, in light of the Federal Court’s decisions in Australian Postal Corporation v Oudyn and Rosillo v Telstra Corporation Limited I have decided to vary the parts of the decision dated 1 September 2003 and the determination dated 22 May 2003 which deal with the ‘soft tissue to lower back’ to find:
1As at 1 June 2003 the effects of ‘soft tissue injury to lower back’ sustained on 28 August 1995 have resolved and have ceased to result in incapacity for work and/or the requirement for medical treatment or impairment.
2As at 1 June 2003 the Employee is not entitled to compensation pursuant to section 16 or Part II Division 3 of the Safety, Rehabilitation and Compensation Act 1988 in respect of ‘soft tissue injury to lower back’ sustained on 28 August 1995.” (Exhibit R4)

N2004/480
This matter concerned an application by Mr Linarejos with regard to an injury, a strain to his cervical and thoracic area, and his back, which he claimed occurred on 27 August 1997. As a result of a Direction made by the Tribunal after it had heard the parties at a Telephone Directions Hearing, the matter was, pursuant to section 42D of the Administrative Appeals Tribunal Act 1975, remitted to Comcare, and the reviewable decision was reworded relevantly as follows:

“I have decided that the Reasons for the reviewable decision dated 14 April 2004 are correct. However, in light of the Federal Court’s decisions in Australian Postal Corporation v Oudyn and Rosillo v Telstra Corporation Limited I have decided to vary the decision dated 14 April 2004 to find”
The determination dated 27 June 2003 is revoked and instead I decide that:
1Comcare was liable to pay compensation for ‘minor cervical and thoracic strain’ along with the ‘minor back strain’ as a result of an injury deemed to have occurred on 27 August 1997 pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.
2As at 24 October 1997 the effects of the injury sustained on 27 August 1997, namely ‘minor cervical and thoracic strain’ have resolved and have ceased to cause incapacity for work and/or a requirement for medical treatment, or impairment.
3As at 24 October 1997 the Employee is not entitled to compensation pursuant to section 16 or Part II Division 3 of the Safety, Rehabilitation and Compensation Act 1988 in respect of ‘minor cervical and thoracic strain’ sustained on 27 August 1997.” (Exhibit R5)

At the Tribunal Hearings, the Applicant was represented by Mr L Grey of counsel instructed by Ms James of Slater and Gordon, Solicitors, and the Respondent, Comcare, by Mr N Polin of counsel, instructed by Ms S Johnson of Sparke Helmore, Solicitors.

BACKGROUND AND EVIDENCE OF THE APPLICANT

Mr Linarejos, whose date of birth is 20 September 1964, was employed by Australian Air Express from 1993 until he was terminated on 16 October 1998, a decision conveyed to the Applicant in a letter dated 16 October 1998 (Exhibit R10). That letter stated that Mr Linarejos was terminated pursuant to clause 8(d) of the Australian Air Express Consolidated Award 1994, and informed him that “despite continuing efforts which included telephone calls and correspondence .. you have failed to communicate directly with the Company in accordance with your contract of employment obligations. “ (see also Exhibit R9).
The Applicant told the Tribunal that other than an injury incurred while driving a forklift which tipped over and injured his left ankle in February 1995, and a back injury in 1985, he had had no other injuries. The injuries subject of the claims before the Tribunal were claimed to have been incurred on:

28 August 1995 when the Applicant attempted to lift a ‘skid’ in order for the blades of a forklift to fit underneath, injuring his back. Mr Linarejos described the objects he had been loading on 28 August 1995 as awkwardly shaped and weighing up to 150 kgs, and described sharp pain having occurred in his iliac crest.
27 August 1997 when the Applicant was working in an airplane locker and experienced neck and back pain. Mr Linarejos told the Tribunal about loading luggage in a confined space, which he described as having no head room, so that he had to be on his knees, twisting and stacking luggage. He said that on that occasion, he suffered severe pain between the shoulder blades.

Mr Linarejos said that he reported the first injury to his supervisors on the day it occurred, 28 August 1995, (T4, Exhibit R1), consulted his doctor, and had a week off. He told the Tribunal that on his return to work, his back was better, but not entirely, and described feeling more pain than previously when picking up items. He said that he had constant problems between the injury in 1995 and that in 1997, but had to continue working due to family commitments, as he did not want to lose his job. He said that he has had constant pain ever since.
The Applicant said that the injury on 27 August 1997 caused pain between the shoulder blades which radiated to the neck and to his back. He said that at times he could not support the weight of his arm. The Applicant said that he reported the incident to his supervisor (T4, Exhibit R3).
Mr Linarejos told the Tribunal that after the 1997 injury, he was advised to do clerical duties, but that as he had left school at 15 years, he did not do well in the test given by his employer, and was not offered a clerical position because he cannot read and write. He said that on his return to work, he was driving a ‘tram’ with pallettes, but found it very shaky. He said it had automatic brakes, and he had to stand up in it, which was jerking his neck and spine, and as a result, he found he could not do the work. Mr Linarejos said that due to this, he was dismissed in October 1997 in a letter stating that he had abandoned the position (Exhibit R10) (the Tribunal noting that the actual date was 16 October 1998).
The Applicant said that by December 1997, his neck and thoracic spine remained sore even though he did not work. He reported that a year later, in 1998, he had the same neck and back problems, and his lower back was sometimes so painful he could not walk. He said this occurred once or twice a year, particularly when playing with his children, and he suddenly twisted.
Mr Linarejos also told the Tribunal that when he suffered another injury on 19 March 1998 to his finger, he could not work in the aircraft lockers, and said that management accused him of having intentionally injured himself. He said he was refused light duties, which he could have done, and was not otherwise able to work, so he was dismissed.
Mr Linarejos reported he suffered the same pain as previously in 1999, although in 2000 his back had improved a little, and his neck was getting worse.
Mr Linarejos told the Tribunal that in 2001 he had contract work as a painter for two to three months, and was able to work slowly from time to time. He said that he found most jobs associated with the painting difficult, and said that by the end of the day he had pain and a headache.
The Applicant said that in 2002 he also painted for one to two months, but left because of pain, and suffered similarly in 2003. Mr Linarejos said that in 2002 his upper neck was constantly painful whereas his back was tolerable unless he lifted materials or twisted. He said that in 2004, he painted for approximately two and a half months.
Mr Linarejos told the Tribunal that his biggest problem was his neck which was getting worse, and his upper thoracic spine between the shoulder blades. He described intense referred pain down his right arm. He said that his lower back pain was minor but that he had pain when lifting paint tins, for example. He said that he had no sex life due to pain, and suffered regular headaches which interfered with his concentration and memory.
Mr Linarejos described incidents between 1998 and the present (ongoing), where at least once or twice a year, his back pain was so intense that he could not walk for a week or more. He also described how at times his arm felt so heavy that he could not lift it.
Mr Linarejos said that he took analgesics when working, and did not take medication for his hepatitis A, B and C. He said that his ex-employer suggested he had psychological problems, and agreed he had been in conflict with his supervisor. He also told the Tribunal about his anxiety and depression, but denied he had been terminated after going off work with anxiety and depression, and insisted he could not work because of his back and neck injuries.
The Tribunal has noted the evidence and reports of the medical practitioners consulted during the above mentioned periods, and will deal with their opinions further on in these Reasons.

ISSUES BEFORE THE TRIBUNAL

The Tribunal had to decide the following appeals:

N2003/1598
In this matter the Applicant’s appealed the decision of the Respondent which found that the effects of the soft tissue injury to his lower back claimed to have been sustained on 28 August 1995, had resolved, and ceased to result in incapacity for work and/or the requirement for medical treatment on and from 1 June 2003.

N2002/1876
In this matter the Applicant appealed against the Respondent’s denial of liability for a claim of permanent impairment by Mr Linarejos arising out of the soft tissue injury to his lower back claimed to have been sustained on 28 August 1995.

N2004/480
In this matter Mr Linarejos appealed the decision of the Respondent with regard to an injury, a strain to his cervical and thoracic area, and his back, which he claimed occurred on 27 August 1997, noting that Comcare had accepted liability to pay compensation for ‘minor cervical and thoracic strain’ along with the ‘minor back strain’ as a result of an injury deemed to have occurred on 27 August 1997. Comcare had found however that at 24 October 1997, the effects of the injury sustained on 27 August 1997 had resolved, and ceased to cause incapacity for work, and/or a requirement for medical treatment, or impairment.

In considering the appeals, the Tribunal had to decide:

Whether the Applicant is entitled to further compensation pursuant to sections 4, 14, 16 and 19 of the Act arising out of the soft tissue injury to his lower back of 28 August 1995 on and from 1 June 2003;
Whether the Applicant has suffered permanent impairment which is compensable pursuant to sections 24 and 27 of the Act arising out of the injury of 28 August 1995;
Whether the Applicant is entitled to further compensation pursuant to sections 4, 14, 16 and 19 of the Act on and from 24 October 1997, arising out of a strain to his cervical and thoracic areas which he claimed occurred on 27 August 1997.

EVIDENCE BEFORE THE TRIBUNAL

Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (‘the AAT Act”), the (“T-Documents”). A number of other documents were also admitted into evidence and are referred to during the course of these Reasons for Decision.
Oral evidence was given by Mr Linarejos, Dr F Blake, consultant orthopaedic surgeon, Dr R Nall, consultant orthopaedic surgeon, and Dr J Matheson, neurosurgeon.

LEGISLATIVE FRAMEWORK

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14, 16, 19, 24 and 27.
The Tribunal was mindful that for Mr Linarejos’ injuries to be compensable, the definition of injury, which includes aggravation of a physical or mental injury pursuant to section 4 of the Act must be satisfied, and the injuries must be found to have resulted in incapacity for work as claimed by the Applicant, (section 14 of the Act). What flows from that of course would be the provision of reasonable medical expenses pursuant to section 16 of the Act, and possible payments calculated pursuant to section 19 of the Act.
Section 4 of the Act defines “disease” and “injury” as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“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;
...
“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;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
...”

Sections 14(1) and 16 of the Act provide that:
“14 Compensation for injuries
14(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.
…
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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…”
Section 19 of the Act is concerned with financial compensation for injuries compensable under the Act which have resulted in incapacity for work.
Sections 24 and 27 are relevant in relation to claims for permanent impairment. As relevant they follow
“24.     (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.
...
(7)       ... [W]here Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.”

“27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.”

We then moved then to consider the parties’ submissions.

THE APPLICANT’S SUBMISSIONS

In summary Mr Grey submitted on behalf of Mr Linarejos that:

Mr Linarejos had suffered injuries with symptoms reported even to the day of the Hearing;
Drs Blake and Nall had referred to an organic and non-organic component, and even Dr Matheson had referred to enduring symptoms; there was a need for treatment of the Applicant at a pain clinic;
The Applicant had regular visits to his general practitioners (Exhibits A5 & A6);
The Applicant had attempted to work, succeeding for several months a year as a painter; there were section 19 implications with regard to payment for work;
Mr Linarejos has had ongoing back pain since 1995, and neck pain since 1997, as reported by Drs Rivett, Giblin, Blake and his general practitioners;
Drs Blake and Nall had opined that the Applicant had 10 percent permanent impairment of the thoraco-lumbar spine and 5 percent impairment of the neck;
Mr Grey submitted that the Respondent had accepted that the Applicant was incapacitated as a result of the 1995 injury until 1 June 2003, a not insubstantial period.

THE RESPONDENT’S SUBMISSIONS

A summary of Mr Polin’s submissions made on behalf of the Respondent was as follows:

Mr Polin cast doubts on the credit of the Applicant; he submitted that it was not possible to test the veracity of the Applicant in relation to his claim that he could not walk for one to two weeks once or twice a year due to his lumbar problems; he indicated there were no doctors’ reports to verify this claim;
He said it was a difficult case in that permanent impairment of the back was claimed for the 1995 injury, but that there was no permanent impairment claim for the 1997 (neck) injury;
Mr Polin submitted that there was no medical evidence regarding Mr Linarejos’ claim that he could not lift his arm, and submitted the claim was spurious;
Mr Polin cast doubt on the Applicant’s claims that he could not work in 1999 and at other times by reference to Dr Bishay’s notes, which indicated the Applicant had been painting at that time;

Mr Polin submitted that after the minor injury of 1995, there was no medical evidence until the 1997 injury; he acknowledged Mr Linarejos’ evidence that the pain had not subsided during that period, but submitted that there was no objective evidence to support that claim;
Mr Polin submitted that the early reports of Dr Giblin made no mention of the lower back, and that the MRI on 2 October 1997 (T12, Exhibit R1), was for the cervical spine only;
The Respondent’s submission was that the psychological injury claimed did not arise out of any physical injury, and was a separate issue not before this Tribunal; he indicated that the Applicant’s problems in the workplace may have been related, noting that Mr Linarejos did not mention either his back or neck in his statements at Exhibit R6 or R7;
Mr Polin submitted that all the determinations be affirmed on the basis that the Applicant did not suffer any incapacity for work when he went off in late 1998, and that no medical certificates were submitted to the employer in the period before he was terminated.

MEDICAL EVIDENCE

As expected, there was a large amount of medical evidence before the Tribunal. Several doctors gave oral evidence and had reports before the Tribunal, and we shall deal with those in the paragraphs which follow, noting that the various radiological and other investigations have also been reported on. Amongst the most recent investigations before the Tribunal was the CT scan of the Applicant’s lumbar spine (Exhibit A7), dated 18 March 2002, which concluded that there was: “minimal broadbased L4/5 disc bulge with no evidence of spinal canal stenosis or nerve root pathology”, and a total body bone scan (Exhibit R15), dated 6 March 2003, which was normal. The MRI of the cervical spine and brain dated 2 October 1997 (T12, Exhibit R1), carried out shortly after the injury of 27 August 1997, indicated that there was early disc dessication with cervical spondylitic changes at the C6/7 level, and minor central disc protrusion at the C4/5 level.
The Tribunal was able to conclude from the radiological and related investigations and the opinions of the various doctors whose evidence and reports were before it (Drs Blake, Nall, Matheson, Hall), that there was in fact no discernable physiological basis for the claims of pain made by Mr Linarejos. There was however treatment for depression by psychiatrist Dr Stephenson and a report from her, but no claim in relation to this was before this Tribunal.
The treating general practitioner at the time of the 1995 and 1997 injuries was Dr Uppal, whom the Applicant consulted immediately following his injuries, and who provided medical certificates, but from whom there were no reports and no clinical notes available. Early referrals such as that to Dr Giblin are referred to below.

dr bishay – general pracititioner

The Tribunal noted Exhibit A5, a photocopy of Dr Bishay’s notes dated between 12 March 1998 and 6 January 2000, in support of Mr Linarejos having sought medical attention for his depression, and neck pain.
There was also a Workcover medical certificate from Mr Linarejos’ psychiatrist, Dr A Stephenson dated 19 March 1998 referring to anxiety depression with the “cause of injury as stated to me by the patient”, completed as “work environment”.

dr p giblin - orthopaedic surgeon

We noted that Dr Giblin saw Mr Linarejos as early as 15 September 1997 (T11, Exhibit R1), when he referred the Applicant for an MRI of the cervical spine following which he recommended no “active or aggressive surgical intervention”, but suggested physiotherapy, neck exercises, and a suitably restructured work environment (T1, Exhibit R1). Dr Giblin again reported on an examination of Mr Linarejos on 13 September 2000 (T18, Exhibit R1), where he opined that the Applicant’s neck condition had stabilised and were permanent. He also stated that the symptoms were consistent with the history of working in a confined space and the injury of August 1997. Dr Giblin gave permanent impairment ratings based on what appeared to the Tables relating to the State workers’ compensation legislation.

dr g hall – occupational physician

Dr Hall, whose report of 2 September 1997, was at T10 (Exhibit R3), opined that Mr Linarejos appeared to be suffering pain in the upper dorsal region, noting however that X-rays had not shown any bony basis for that, and agreeing with Dr Uppal that physiotherapy was an appropriate treatment. He considered that Mr Linarejos was not suitable for his full portering duties and recommended clerical or administrative duties.
Dr Hall reported again on 9 October 1997, (T23, Exhibit R3), stating that Mr Linarejos’ complaints may derive from a soft tissue strain in the upper thoracic region, but that he did not have any abnormality of the spine, cervical, thoracic or lumbar. He stated that given the nature of the soft tissue injury, possibly incurred through lifting or twisting in the course of the Applicant’s work, he expected it to have settled within a four week period of stopping the causative activity.

dr d liao - treating general practitioner

The notes of Dr Liao dated May 2001 to March 2003 were in evidence before the Tribunal as Exhibit A6. The notes recorded that Mr Linarejos was involved in a compensation claim, and also recorded attendances for neck pain over the period.
In the notes available, the entry for 13 March 2002 was the first which recorded low back pain in that period. It was reported as occurring about four times a year. The doctor had written: “It is all right when he is lying on the floor but is brought on when he tries to get up.” A further attendance on 22 March 2002 recorded: “Still complaining of back pain but less so than last time.” The entry on 24 April 2002 indicated that the back was improving but still quite sore.

dr r rivett – medicolegal consultant in musculoskeletal injuries

Dr Rivett reported on examinations of Mr Linarejos at T20 and T21 of Exhibit R1. He stated at T20 dated 21 October 2001 that given the Applicant’s symptoms had persisted for a long time, they should probably be regarded as permanent. He opined that Mr Linarejos would be unfit for his former employment, and considered that the findings were consistent with the work strains suffered in 1995 and 1997. Dr Rivett assessed a 10 percent impairment arising out of the Applicant’s neck problem, and 10 percent due to the back.

dr f blake - consultant orthopaedic surgeon

Dr F Blake, orthopaedic consultant surgeon, produced reports dated 13 June 2003, (T9, Exhibit R2), and 22 May 2004, (Exhibit A1), which were before the Tribunal. In his report at T9, Dr Blake gave a 10 percent whole person impairment rating for Mr Linarejos’ back, and 5 percent for his neck, applying the Comcare Guide. In his later report at Exhibit A1, he gave permanent impairment ratings for Mr Linarejos using, not the Comcare Tables, but inappropriately, Tables used in connection with State legislation, and found some permanent impairment. He did however comment that he agreed with Dr Matheson that “the significant apparent functional overlay/psychological factors present, which cloud assessment. However, the presence of these factors does not of itself exclude an underlying organic component.”
In his oral evidence, Dr Blake said that he accepted that Mr Linarejos suffered an injury at work and that it had both an organic, and non-organic component. He opined that given the Applicant’s work history, and the history of the 1995 and 1997 injuries, and noting the undertaking of contract painting, that Mr Linarejos was trying to work. He said however, that he did not anticipate Mr Linarejos could return to his former work place. Dr Blake amplified this by saying that Mr Linarejos would by now have lost physical fitness, and that he had psychological problems.
Dr Blake agreed that the radiographic, MRI and other investigations did not show a great deal of pathology, but said that he found some reduction of movement, and a small lesion visible. Dr Blake also said that Mr Linarejos had not yet been fully investigated, and opined that the history given regarding the Applicant being bed ridden for a week or so from time to time was not uncommon, as it was not a simple muscle strain which he had suffered.

dr r nall - consultant orthopaedic surgeon

Dr Nall, whose report of 11 February 2002 was at T24 (Exhibit R1), gave oral evidence before the Tribunal by telephone link. Dr Nall noted in his report that the MRI dated October 1997 showed any changes to Mr Linarejos’ cervical spine were quite minimal. He noted also that despite the complaints of severe disability, no investigations of the back has been carried out. Dr Nall also opined that: “As far as his back is concerned he would appear to have significant non-organic component to his symptom complex in the form of an abnormal reaction to pain.” In his oral evidence, Dr Nall explained that he drew the above quoted conclusion because Mr Linarejos had symptoms inappropriate to the pathology seen in the investigations. Dr Nall agreed Mr Linarejos could be referred to a pain clinic for his non-organic pain.
When asked whether any condition Mr Linarejos suffers was likely to be permanent or temporary, Dr Nall opined that: “the symptoms in his neck are the only ones which could be directly related to an injury at work. Mr Linarejos has continually complained of symptoms in his neck but has not sought any medical advice for them. Given the length of time that he has had the symptoms and being off work, any improvement in the future is problematical.” Dr Nall assessed 10 percent whole person impairment of the thoracolumbar spine pursuant to Table 9.6 of the Comcare Tables.

dr j matheson - neurosurgeon

Dr Matheson whose reports dated 30 May 2003, 25 August 2003, and 17 October 2003 were at Exhibit R13, gave oral evidence before the Tribunal. In his two reports dated 30 May 2003, Dr Matheson decided that “no abnormality” was the diagnosis for the Applicant, reinforced by his view that if there had been a medical condition sustained during his employment, the effects had long ceased, and were not, at the time of the examination, causing incapacity for employment, or requiring treatment. He accordingly opined that Mr Linarejos did not suffer any permanent impairment arising out of the incident of 28 August 1995, or the incident in 1997.
Dr Matheson wrote a letter dated 25 August 2003 after reviewing Dr Blake’s report which he described as “a very circumspect and careful letter”, adding that he (Dr Matheson), maintained his view that there was no work related disability which Mr Linarejos had sustained.
In a further letter dated 17 October 2003, written after Dr Matheson had reviewed Dr Sarian’s notes, he stated that he had not changed his opinion as given in his May 2003 reports.
In his oral evidence, Dr Matheson, when asked how he would react to the evidence that Mr Linarejos gave stating that once or twice a year he could not walk for a week or so, Dr Matheson stated that he had not seen any neurological abnormality in the test results he had seen. He said that he could not accept the disabilities the Applicant was claiming on physical grounds, and suggested he may have been exaggerating some reports of pain.
Dr Matheson said that the history Mr Linarejos gave him was somewhat vague, and he understood from that, that for the period 1995 – 1997, the Applicant reported ongoing back pain, but that he had been able to work.
He also said that he recognised Mr Linarejos had been depressed and distressed about the work place, but felt that as far as the physical aspects went, the Applicant could do his usual work.

THE TRIBUNAL’S DELIBERATIONS

Having heard all the oral evidence, the Tribunal also had to take into account the written evidence, submissions of the parties, case law and legislation to make the correct and preferable decision regarding whether Mr Linarejos continued beyond the dates listed in the section above, headed “Issues before the Tribunal”, to suffer incapacity for work, require medical treatment pursuant to section 16 of the Act, or that he was permanently impaired and entitled to compensation pursuant to sections 24 and 27 of the Act in relation to injuries incurred on 28 August 1995.
We note for the sake of completeness that Mr Linarejos was dismissed from Australian Air Express on 16 October 1998.
This was a difficult claim to decide. The Tribunal was mindful from its work over the years, that pain need not have a physiological basis which can be easily discerned by radiological and other related tests, and accepted the evidence of Drs Blake and Hall in that regard. The Tribunal was satisfied to the requisite standard from Mr Linarejos’ evidence, and that of Drs Blake and Hall that there was a significant non-organic component to the pain Mr Linarejos reports. Indeed the psychiatrist to whom his solicitors referred Mr Linarejos, Dr A Stephenson, opined that: “Depression experienced by Mr Linarejos meets the criteria of major depression with aggravation of a pain disorder which is enhanced in that pain experiences make depression more severe. Both pain and depression are biophysiological, not mere psychological conditions. Mr Linarejos remains unfit at this stage for work.” (T17, 19 August 1998, Exhibit R1).
However, there was no claim for psychiatric issues, and no reviewable decision in that regard before the Tribunal, and accordingly, it had no power to make any decision in that regard.
Notwithstanding, the Tribunal had some doubts about the veracity of the evidence given by Mr Linarejos, and had no way of verifying certain claims such as the Applicant’s evidence about not being able to lift his arm, and having episodes of back pain for a week or more once or twice a year, when he could not walk. The Tribunal considered that if such dramatic events actually occurred, Mr Linarejos would have mentioned them to some of the doctors he consulted for treatment, or who prepared medico-legal reports in connection with the claim. The only reference to the issue of back pain and lying down, but which did not record that the Applicant could not walk, was in the notes of Dr Liao dated 13 March 2002. The doctor had recorded that back pain was reported as occurring four times a year (not once or twice as the Tribunal was told by Mr Linarejos). He recorded: “It is all right when he is lying on the floor but is brought on when he tries to get up. The Tribunal was mindful from the notes that Mr Linarejos had been consulting Dr Liao from at least May 2001 to March 2003.
There is of course well established authority both State and Federal, which deals with causation, injury and disease, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases.
In Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. The Tribunal was mindful of this principle in the present matter, found however that Mr Linarejos’ evidence regarding the extent of his pain arising out of relatively minor compensable injuries, was unreliable.
In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, it was held that a de minimus contribution of the workplace suffices, and it is irrelevant that other non-work related factors may have also contributed to the injury or disease. The Tribunal was mindful that Mr Linarejos was compensated for injuries arising out of his work. The Tribunal moved then to consider the effects of the 1995 and 1997 injuries, and the period in between, and indeed the period which followed his dismissal from Australian Air Express.

THE INJURY OF 28 AUGUST 1995

The Tribunal was satisfied from T4 (Exhibit R1), that Mr Linarejos reported an accident “moveing (sic) a skid”, to his employer on the date on which it occurred, that is, 28 August 1995. Dr Uppal provided the Applicant with a medical certificate dated 28 August 1995, in which he diagnosed “soft tissue injury lower back”.
From the decisions before the Tribunal, we noted that Comcare, having accepted liability for compensation for “lower back injury”, determined on 1 September 2003 (T13, Exhibit R2), that Mr Linarejos was no longer entitled to compensation for that injury. That decision which had affirmed a determination of 22 May 2003, was reconsidered to read:
“1As at 1 June 2003 the effects of ‘soft tissue injury to lower back’ sustained on 28 August 1995 have resolved and have ceased to result in incapacity for work and/or the requirement for medical treatment or impairment.
2As at 1 June 2003 the Employee is not entitled to compensation pursuant to section 16 or Part II Division 3 of the Safety, Rehabilitation and Compensation Act 1988 in respect of ‘soft tissue injury to lower back’ sustained on 28 August 1995.” (Exhibit R4)”
Dr Uppal provided further medical certificates, and on 4 September 1995, certified the Applicant fit to resume duties on 7 September 1995. The evidence of the Applicant was that his back pain improved, and that he returned to work after a short time. He said however that his back was not entirely better. The Tribunal was mindful he managed to continue work on rotating shifts and to work overtime. Mr Linarejos told the Tribunal that notwithstanding the pain, his reason for continuing to work after the 1995 injury was because he had a family to support, and was afraid of losing his job.
The Applicant’s evidence was that his lumbar pain continued, and indeed continues to today, and results in him being unable to walk for a week or so at a time once or twice a year. The only medical evidence regarding these episodes was in the notes of Dr Liao who recorded on 13 March 2002, low back pain which was reported by Mr Linarejos as occurring about four times a year. The doctor had written: “It is all right when he is lying on the floor but is brought on when he tries to get up.” The Tribunal noted that Dr Blake accepted that given the injury the Applicant had suffered, his account of being unable to walk for a week or so at a time was with the bounds of possibility, adding that it would be particularly so after heavy, bending, lifting or twisting.
The Tribunal was mindful also of the evidence of Dr Hall regarding soft tissue injury which was that it would resolve within approximately four weeks. The Tribunal was also mindful that no full investigation of the lumbar spine had been made until the total body bone scan of 2003 (R15), which was normal.
The Tribunal is however mindful from its work over the years, that pain need not have a physiological basis which can be easily discerned by radiological and other related tests, and noted the evidence of Drs Blake and Hall, and psychiatrist Dr Stephenson in that regard. The Tribunal was satisfied to the requisite standard from Mr Linarejos’ evidence, and that of Drs Blake and Hall that there was a significant non-organic component to the pain Mr Linarejos reports.
However the Tribunal was not satisfied that the evidence of Mr Linarejos regarding his lumbar pain was accurate as given, and preferred the opinion of Dr Hall that the 1995 injury was a soft tissue injury which would have resolved after some weeks.
The Tribunal moved then to consider the period between 1995 and the injury deemed to have occurred on 27 August 1997.

PERIOD BETWEEN 1995 AND 1997 INJURIES

The Tribunal found that for the period between the two injuries of 1995 and 1997, Mr Linarejos worked in his various positions at Australian Air Express. As noted above, he told the Tribunal that after he returned to work following the 1995 injury, his back was somewhat better, but that he had continuing problems with it. The Applicant said he had to continue his work because he had a family to support and did not want to risk losing his job.
There was little medical evidence relating specifically to that period before the Tribunal, and the Tribunal was satisfied that Mr Linarejos continued to perform his duties at work including rotating shits and overtime.

He also worked as a painter after leaving Australian Air Express, in 1998 and the years following, and notwithstanding his evidence that he could only do limited work, the Tribunal accepted that he was able to paint, and did so.
The Tribunal finds based on the evidence before it, that Mr Linarejos does not suffer incapacity after 1 June 2003 arising out of the injury of 28 August 1995, and accordingly affirms the decision under review N2003/1598.

THE INJURY OF 27 AUGUST 1997

The supervisor’s accident report of Mr Linarejos’ injury deemed to have occurred 27 August 1997, was dated 26 August 1997 (T4, Exhibit R3). The Applicant made a claim for compensation on 2 October 1997 (T5, Exhibit R3), in which he stated that he first sought treatment for his injury from Dr Uppal on 27 August 1997. The Tribunal did not draw any particular inferences from the above. The Tribunal accepted that the injury was deemed to have occurred on 27 August 1997, and accepted the error in dates was a clerical error.
The Tribunal noted that Comcare accepted liability, and the reworded determination, reiterating the intent of the determination of 27 June 2003, is reproduced below.
“1Comcare was liable to pay compensation for ‘minor cervical and thoracic strain’ along with the ‘minor back strain’ as a result of an injury deemed to have occurred on 27 August 1997 pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988.
2As at 24 October 1997 the effects of the injury sustained on 27 August 1997, namely ‘minor cervical and thoracic strain’ have resolved and have ceased to cause incapacity for work and/or a requirement for medical treatment, or impairment.
3As at 24 October 1997 the Employee is not entitled to compensation pursuant to section 16 or Part II Division 3 of the Safety, Rehabilitation and Compensation Act 1988 in respect of ‘minor cervical and thoracic strain’ sustained on 27 August 1997.” (Exhibit R5)
The first medical reports relating to this injury were from Dr Uppal (T8, & T9, Exhibit R3). He diagnosed “soft tissue injury neck and back again” (T8), and soft tissue injury neck and thoracic spine…” (T9).
Dr Giblin’s report of 15 September 1997, (T14, Exhibit R3), referred to Mr Linarejos’ neck pain, interscapular discomfort and severe headaches with sore eyes. Dr Giblin recommended an MRI and restricted duties at work. On receiving the results of the MRI, Dr Giblin recommended lighter duties due to focal disc disease at C6/7. (T21, Exhibit R3).
Dr Hall reported on 9 October 1997, (T23, Exhibit R3), that Mr Linarejos’ complaints may have derived from a soft tissue strain in the upper thoracic region, noting that he did not have any abnormality of the spine, cervical, thoracic or lumbar. He stated that given the nature of the soft tissue injury, possibly incurred through lifting or twisting in the course of the Applicant’s work, he expected it to settle within a four week period of stopping the causative activity.
However, the Applicant told the Tribunal that his pain continued, and that at the time of the Hearing, his neck was worse than his back. He also reported on not being able to lift his arm at times.
The return to work attempts at Australian Air Express after the 1997 accident were not successful because Mr Linarejos was not able to be retrained for clerical work, and accordingly was relegated to driving a ‘tram’. He said that he could not do this because it jerked both his back and neck, and caused pain. He did continue for some time however, until he injured his finger in 1998. It appeared from the documents before the Tribunal that there were certain industrial issues which may have impacted upon Mr Linarejos’ problems. It was not disputed he was terminated on 16 October 1998 for failing “to communicate directly with the Company in accordance with your contract of employment obligations”.
Mr Linarejos told the Tribunal that he has been working part-time as a painter since leaving Australian Air Express, but that he found it difficult to work for prolonged periods due to his pain and disability. Certain documents regarding his income from painting were before the Tribunal at Exhibit A3. However, they may not give a complete history of Mr Linarejos’ work or his ability to work after leaving Australian Air Express, and accordingly, the Tribunal can only draw a conclusion that Mr Linarejos has earned some income painting, and is able to do that work.
The Tribunal finds from the above evidence of both Mr Linarejos and his doctors, that the neck injury in 1997 was as Dr Uppal held, namely “soft tissue injury neck and back again” (T8), and soft tissue injury neck and thoracic spine”. The Tribunal was mindful that notwithstanding the reports of pain by the Applicant at the Hearing, we preferred the evidence of Dr Hall that the soft tissue injury should have settled within four weeks of stopping the causative activity. The Tribunal accepted that some measure of any pain the Applicant reports may be due to non-organic factors or exaggeration.
The Tribunal was satisfied that the Applicant does not suffer incapacity which is compensable arising out of the injury of 27 August 1997, on and from 24 October 1997, (N2004/480), and is not satisfied that he cannot work at his chosen trade of painting.
There was some medical evidence which addressed permanent impairment of the neck and thoracic spine of the Applicant, but there had been no reviewable decision with regard to permanent impairment of the neck and thoracic spine, and accordingly, the Tribunal did not address that issue, and moved to consider any permanent impairment arising out of the back injury of 28 August 1995.

PERMANENT IMPAIRMENT AS A RESULT OF THE 1995 INJURY

The Tribunal noted that Mr Linarejos made a claim for compensation for permanent impairment of the back, and in the reviewable decision made on 25 July 2002, (T31, Exhibit R1), Comcare refused Mr Linarejos’ claim said to have occurred as a result of the injury to his back incurred on 28 August 1995.
The Tribunal was mindful of Mr Linarejos’ statement (Exhibit R6), dated 24 August 1998, in which he stated that he was suffering anxiety/depression “brought on by the way that I have been treated by my supervisory personnel in Australian Air Express Pty Limited.” He stated therein that the anxiety/depression had rendered him incapacitated for work. He also stated that he was not under stress either in 1996 due to the separation from his wife and children, neither in March 1998, and stated that the anxiety/depression had not arisen due to reasonable disciplinary action by his employer, or in connection with failure to obtain a promotion or a benefit in connection with employment. Mr Linarejos also detailed various industrial issues in connection with his employment (Exhibit R7). The Tribunal noted that he had made a claim for compensation for anxiety/depression dated 23 March 1998, and was mindful such claim was not before this Tribunal.
The Tribunal was mindful also that non-work factors such as personal and family issues, reasonable disciplinary action by the employer, or illness arising out of failure to obtain a promotion or a benefit in connection with employment, are non compensable pursuant to section 4 of the Act.
The Tribunal noted that in 2002, Dr Nall opined, before the CT scan of the Applicant’s lumbar spine had been made, that: “As far as his back is concerned he would appear to have significant non-organic component to his symptom complex in the form of an abnormal reaction to pain.” In his oral evidence, Dr Nall explained that he drew the above quoted conclusion because Mr Linarejos had symptoms inappropriate to the pathology seen in the investigations. Dr Nall agreed Mr Linarejos could be referred to a pain clinic for his non-organic pain.
Dr Blake told the Tribunal that he accepted that Mr Linarejos suffered an injury at work, and that it had both an organic, and non-organic component.
The Tribunal noted the CT scan of the Applicant’s lumbar spine (Exhibit A7), dated 18 March 2002, which concluded that there was: “minimal broadbased L4/5 disc bulge with no evidence of spinal canal stenosis or nerve root pathology” , and a total body bone scan (Exhibit R15), dated 6 March 2003 which was normal. Accordingly, the Tribunal was able to conclude that the radiological and related investigations indicated minor, if any, pathology in Mr Linarejos’ lumbar spine.
However, the Tribunal accepted from the evidence, that certain doctors (Blake, Hall and Nall), whose views have been stated elsewhere in these Reasons for Decision, opined that there was a significant non-organic component to Mr Linarejos’ symptom complex in the form of an abnormal reaction to pain. The Tribunal accepted that evidence, noting from the radiological and related investigations that little or no physical defects were found to have arisen either from the 1995 or 1997 injuries.
The Tribunal noted that a number of doctors considered the Applicant’s condition of either the neck or back or both to be permanent, and gave permanent impairment ratings. Dr Rivett gave 10 percent ratings for both the neck and back (this Tribunal can only consider the back). Dr Blake gave a 10 percent permanent impairment rating for the back, and 5 percent for the neck. Dr Nall commented that “the symptoms in his neck are the only ones which could be directly related to an injury at work”, commenting further in 2002, that “As far as his back is concerned he would appear to have significant non-organic component to his symptom complex in the form of an abnormal reaction to pain”. Even though Dr Nall added that the symptoms in Mr Linarejos’ neck were the only ones which could be directly related to an injury at work, he awarded a 10 percent permanent impairment rating for the back. Dr Hall commented that the X-ray investigations did not account for any pain Mr Linarejos might be suffering, but recommended other than full portering duties. He also considered that any soft tissue injury would have settled within four weeks of stopping the causative activity. He did not find permanent impairment, and neither did Dr Matheson who found the history the Applicant gave him somewhat vague, and noted that although Mr Linarejos had told him of ongoing pain between 1995 and 1997, he had also been able to do his usual work during that period.
Having heard the evidence, and following the history of the complaints, the Tribunal came to the conclusion that it preferred the evidence of Drs Hall and Matheson in relation to permanent impairment, mindful that the weight of numbers of doctors who make findings in a particular case does not determine the Tribunal’s decision making.
The Tribunal was not satisfied with the veracity of Mr Linarejos’ evidence, in that he described episodes occurring once or twice a year (recorded by Dr Liao as four times a year), and lasting for a week or more, during which he suffered such back pain that he was not able to walk. The Tribunal considered that such episodes if indeed they occurred as described, were very serious. However there was no evidence that Mr Linarejos had told any of the doctors apart from Dr Liao about any such incidents, and noted Dr Liao had recorded it as “It is all right when he is lying on the floor but is brought on when he tries to get up.” Nowhere had Dr Liao recorded that Mr Linarejos could not walk.
In his oral evidence Mr Linarejos told the Tribunal that although he still suffers backache, his neck is worse than his back.
The Tribunal noted further that although the neck was mentioned in a reconsideration application from the Applicant to Comcare dated 24 August 1998, the back was not.
Accordingly, the Tribunal could not be satisfied from all the evidence before it that Mr Linarejos suffers permanent impairment of the back arising out of an injury incurred on 28 August 1995 (N2002/1876). The decision under review in that regard must be affirmed.

DECISION

The reviewable decisions in Matters N2002/1876, N2003/1598, N2004/480 are affirmed.
Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988, costs cannot be awarded.

I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr P Lynch, Member

Signed:

Associate

Dates of Hearing 16 & 17 June 2004
Date of Decision 15 September 2004

Solicitor for the Applicant                 Ms R James, Slater & Gordon, Solicitors
Counsel for the Applicant                Mr L Grey
Counsel for the Respondent           Mr N Polin
Solicitor for the Respondent            Ms S Johnson, Sparke Helmore, Solicitors