Nairn and Comcare - [2004] AATA 121

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 121

ADMINISTRATIVE APPEALS TRIBUNAL )
)

) A2002/220

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID ALEX EDWARD NAIRN

Applicant

And

COMCARE

Respondent
DECISION

Tribunal

Ms G Ettinger - Senior Member

Date 10 February 2004

PlaceCanberra
DecisionThe decision under review is affirmed.
Costs may not be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.

Ms G Ettinger
Senior Member

CATCHWORDS

Compensation – right knee injured in soccer game May 1996- compensable – further incident in October 1996 followed by claim for back injury – Applicant claimed causal connection due to altered gait – conflicting evidence regarding continuing effects of back injury between 1997 and 1999 when injury/aggravation occurred at home - 10 percent permanent impairment previously accepted - whether incapacity for work – decision to cease liability affirmed.

LEGISLATION

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

CASE LAW

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Comcare v Mooi (1996) 69 FCR 439

Casarotto v Australian Postal Commission (1989/90) 17 ALD 321

Commonwealth v Beattie (1981) 53 FLR 191

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

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

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Gamma Illumination Pty Ltd v Cvrakalj [2003] NSWCA 237 (4 September 2003).

Koorangang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

REASONS FOR DECISION

10 February 2004

Ms G Ettinger - Senior Member

The application before the Administrative Appeals Tribunal (“the Tribunal”) was that of Mr David Nairn appealing against the decision of Comcare dated 17 April 2002 (T67), which affirmed a decision made on 19 February 1997 (T18), and a decision made on 24 August 2000 (T62). In its decision of 19 February 1997 (T18), Comcare accepted liability for “a secondary condition of acute lumbar disc swelling at L3/4 and L4/5 resulting in incapacity and medical expenses for the period from 31 October 1996 to 12 February 1997.” In the decision of 24 August 2000 at T62, Comcare held that pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, (“the Act”), Comcare was not liable for the exacerbation of Mr Nairn’s back condition claimed to have occurred on 10 July 1999.

I noted by way of background that Mr Nairn’s application for review of the decision of 24 August 2000 was made on 12 February 2002, some 18 months outside the statutory period (section 62 of the Act). The reasons the Applicant gave to justify the late application were that he had been suffering crippling pain and severe depression, and had not been able to work in the interim. The Respondent held that as it had a significant body of medical evidence regarding Mr Nairn, it would not be prejudiced by the late application, and thus exercised the discretion to allow the application, which it ultimately affirmed.

At the Tribunal Hearings, the Applicant was represented by Mr C Ryan of counsel instructed by Mr Lander of Lander & Co, and the Respondent, Comcare by Mr C Clark of counsel, instructed by Mr S Marris of Sparke Helmore, Solicitors.

BACKGROUND

Mr Nairn whose date of birth is 27 August 1964, completed tertiary studies and worked with the Australian Taxation Office (“the ATO”) in IT from 1989 until he took voluntary redundancy in May 1999. He subsequently continued to work in IT, on contract, for the Department of Defence and for the ATO, until he ceased work in 2001.
As to injuries and aggravations relevant to this claim; I noted that on 29 May 1996, Mr Nairn injured his right knee while playing for the ATO soccer team. Mr Nairn attended at Jamison Medical Clinic on 29 May 1996 (T5), and completed a claim form on the next day. Liability was accepted, and he was paid compensation for “ligamentous injury to right knee”.. In a letter to Comcare dated 22 November 1996 (T11), Mr Nairn stated that Dr W Coyle, orthopaedic surgeon, had performed an arthroscopic meniscectomy operation where it was discovered that he had suffered a second degree condral fracture of his femoral meniscal condyle.
Mr Nairn made a claim for a further injury, this time an injury that he claimed occurred to his lower back on 31 October 1996, as he was alighting from his car. There were no witnesses to the event. Dr C Goonerage, his general practitioner since 1986, described the incident as follows: “getting out of car – R knee weak and painful and twisted lower lumbar spine”.. At T11, Mr Nairn described the weakness and instability in his right knee, which he said, “pops-out” from time to time.
Dr Coyle in a report of 30 January 1997, (T16), opined: “The episode of acute low back pain and sciatica which occurred in November 1996 might well have been contributed to by his knee condition which altered his gait and caused him to lose physical fitness.” Dr Coyle performed anterior cruciate ligament reconstructive surgery to Mr Nairn’s right knee on 28 January 1997. Mr Nairn suffered a further episode of back pain in early 1997.
The issue of whether the knee problem contributed to the development of Mr Nairn’s back problem was the subject of varying views with which I have dealt in the paragraphs below. I note here however, that Comcare, in its decision of 19 February 1997 (T18), extended the liability it had accepted for Mr Nairn’s knee injury to include a secondary condition of acute lumbar disc swelling at L3/4 and L4/5 resulting in incapacity and medical expenses for the period from 31 October 1996 to 12 February 1997. This was based on the reports of Dr Goonerage (Mr Nairn’s general practitioner), and Dr Coyle, (the surgeon who performed the knee surgery).
On 11 July 1999 Mr Nairn was admitted to Calvary Hospital suffering from back pain, following what he claimed was an injury suffered at home on 10 July 1999. He remained in hospital until 26 November 1999, and was followed up with rehabilitation. Mr Nairn claimed that whereas his back pain had previously been intermittent, after the incident of 10 July 1999 he has suffered permanent back pain.
I noted that a decision to accept liability for a 10 percent permanent impairment arising out of the right knee injury of 29 May 1996 was made in Mr Nairn’s favour on 28 September 1998 (T38). He did not claim further compensation before this Tribunal pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.

ISSUES BEFORE THE TRIBUNAL

The Tribunal had to decide:

Whether the Applicant was entitled to further compensation pursuant to sections 4 and 14 of the Act on and from cessation of liability on 12 February 1997;
Whether the incident of 10 July 1999 was an aggravation of the injury of 29 May 1996, or 31 October 1996, and hence compensable; and if so,
Whether Mr Nairn’s capacity to work has been impacted as claimed;
Whether the Applicant has required medical treatment for his conditions pursuant to section 16 of the Act on and from the date when the Respondent ceased liability.

EVIDENCE BEFORE THE TRIBUNAL

Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (‘the AAT Act”), the (“T-Documents”). The following other documents were also admitted into evidence:

Exhibit No	DESCRIPTION	DATE
A1	Bundle of 6 Comcare Medical Certificates	30 July 1999 to 6 May 2002
A2	Calvary Hospital Medical Report	1 November 1996
A3	Calvary Hospital - request for medical imaging	3 November 1996
A4	Canberra Hospital Discharge report	11 November 1996
A5	Calvary Hospital Physiotherapy reports	5 August 1999 and 23 September 1999
A6	Letters from Jamison Medical Clinic	3 August 1999 and 12 August 1999
A7	Examination request to Dr van Gelder from Dr M Yeung	26 August 1999
A8	Examination request to Dr J Fuller from Dr C Goonerage	6 November 2000
A9	Applicant’s Chronology	14 September 2003
A10	Applicant’s Statement	4 March 2003
A11	Letters Kaleen Physiotherapy	18 June 1996 and 13 August 1996
A12	Applicant’s “days off work due to back injury” calendar
A13	Report Dr D McGrath	13 November 2002
A14	Medical certificates, Medical Centre Florey and Jamison Medical Clinic	14 April 1999, 13 September 1999 & 7 March 2000
A15	Report Dr G Griffith	21 November 2002
A16	Report Medical Centre Florey	4 December 1996
A17	Clinical notes Dr C Goonerage
A18	Statement of Mr R Doust	7 October 2003
R1	Documents pursuant to section 37 of the Administrative Tribunals Act 1975
R2	ATO - Sick Leave Records
R3	Calvary Hospital Notes	14 July 1999
R4	Calvary Hospital - Social Worker’s Notes	15 July 1999
R5	Report of Dr J M Matheson	15 October 2002
R6	Report of Dr D Maxwell	23 September 2002
R7	Records of Medical Centre Florey
R8	Photocopy of Hospital Records/Notes (Dr K Khoo)	11 July 1999

Oral evidence was given by:

The Applicant, Mr D A Nairn
Mr Nairn’s second wife, from whom he is now separated, Ms D Brasser
Dr D McGrath, musculoskeletal and occupational physician
Dr G Griffith, surgeon
Dr J Matheson, neurosurgeon
Dr D Maxwell, orthopaedic surgeon
Dr C Goonerage, the Applicant’s general practitioner
Dr K Khoo, rheumatologist
Mr R Doust, neighbour

THE TRIBUNAL

Having heard all the oral evidence I 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 Nairn continued beyond 12 February 1997, to suffer injury or aggravation as a result of the right knee injury on 29 May 1996 or 31 October 1996. Further I had to consider whether the Applicant was incapacitated for work as a result of those incidents, and whether the further incident and its consequences which occurred at Mr Nairn’s home on 10 July 1999, was compensable (sections 4, 14, 16 and 19 of the Act).
I noted that liability for 10 percent permanent impairment for Mr Nairn’s right knee injury incurred during an ATO soccer game, had been accepted by the Respondent on 28 September 1998 (T38). Permanent impairment was not further claimed, and does not form part of the considerations in these reasons for decision.
I note also for the sake of completeness that Mr Nairn took a voluntary redundancy in May 1999.

LEGISLATIVE FRAMEWORK AND CASE LAW

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14, and 16.
I was mindful that for Mr Nairn’s 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.
The parties referred me to various cases, including New South Wales workers’ compensation case law. There is of course well established authority both State and Federal, which deals with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases, and I have referred to certain case law below.

Casarotto v Australian Postal Commission (1989/90) 17 ALD 321, with regard to aggravation and acceleration.
Commonwealth v Beattie (1981) 53 FLR 191, with regard to onset of pain, noting that the Full Court in Beattie (supra) stated that:
“It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.”
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 where it was held that pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment, then the employee will have suffered a compensable injury.
In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 McTiernan J illustrated the point thus:
“In my opinion it was reasonably open to Judge Wall to find on the evidence of these psychiatrists and on the contrast between the respondent’s ability to work before 1st December 1960 and her loss of capacity soon after that date that the injury she sustained on that date and the pain and distress it caused her brought on the new delusion that she was unable to work. In my opinion these facts are sufficient to prove a nexus between the employment and the deterioration of the respondent’s mental condition. I think that the evidence raises the inference that it was more probable than not that the employment was a contributing factor to the worsening of the disease from which she was suffering.”
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.
Certain of the cases including Comcare v Mooi (1996) 69 FCR 439 recognise that a genuine subconscious entrenched illness behaviour is different to a conscious malingering, and can be a compensable injury in itself. It is an abnormal condition of the mind outside of the range of the usual psychological experiences of people. In Federal Broom (supra), it was pointed out that all that the statute requires is a contributing factor. One must look to what the worker in fact does in his employment. It does not matter that the worker’s response to what occurred in the course of the employment was irrational. It is sufficient that there was an incident or an event or circumstances in the employment constituting a factor or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence..

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.
Both parties referred to the tests for the phrase “results from” work related injury as discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 decided pursuant to the New South Wales Workers’ Compensation Act 1987.
I moved then to consider the parties’ submissions.

THE APPLICANT’S SUBMISSIONS

In summary Mr Ryan submitted on behalf of Mr Nairn that:

The Applicant suffered a frank injury when alighting from his motor vehicle on 31 October 1996 after which occasional pain became a feature of his life. After the incident of 10 July 1999 he has suffered constant pain. The incident of 31 October 1996 as recorded by Dr Goonerage in his notes, took place after a visit to the doctor, and was accepted by the Respondent as causally connected with the knee injury of 29 May 1996. That causal connection was agreed upon by certain doctors including Drs Goonerage and McGrath.
As to the issue of Schmorl’s nodes or Scheuermann’s disease; Mr Ryan referred to the evidence of Drs Griffith and McGrath, submitting that the event of the Applicant alighting from his motor vehicle on an already sensitive preconditioned spine was found to be sufficient to cause the damage at L3/4.
Mr Ryan submitted that Mr Nairn did not recover fully from the 31 October 1996 incident, and that his lifestyle changed substantially after the incident, in that he could only do exercise on a restricted basis, became unfit, and that he suffered deterioration of his spine at the L3/4 level. The fact that the July 1999 incident was suffered at home did not disentitle Mr Nairn to compensation he submitted.
Mr Nairn’s evidence was corroborated by that of Ms Brasser.
Certain of the doctors who have examined Mr Nairn causally connected the 31 October 1996 incident with the 10 July 1999 incident.
Mr Nairn’s traffic accidents of which he gave evidence at the Hearing did not impact on the effects of the back injury.
Credit of the Applicant was not an issue: see Gamma Illumination Pty Ltd v Cvrakalj [2003] NSWCA 237 (4 September 2003). He submitted that Mr Nairn had had a good working life until his injury in May 1996 and the further incident of July 1999. He has had severe pain and lengthy periods away from work in connection with the incident of 10 July 1999 which, if they were not credible, did not accord with the fact that he was self employed at the time. Mr Nairn has suffered constant pain as a feature of his condition since July 1999 which stops him from working.
Mr Ryan cited a large number of cases, mainly New South Wales workers’ compensation cases, in support of his submissions. These appeared in the Applicant’s Statement of Facts and Contentions. In addition, he made available his personal copies of reports to the Tribunal which was appreciated.

In summary Mr Ryan submitted:
· Mr Nairn’s altered gait due to his knee condition was found to be causally connected to the incident of 31 October 1996. His lifestyle was restricted as a result of the incident of 29 May 1996, impacting on his fitness and making him more prone to the back injury he suffered on 31 October 1996;
·The medical evidence supported the incident of 31 October 1996 being an aggravation of a pre-existing Scheuermann’s disease aggravated spine;
·Mr Nairn was neither overstating nor exaggerating his condition. The light work of 10 July 1999 was not landscaping, and exacerbated pre-existing back problems dating back to 1996. Mr Nairn’s evidence was consistent. He suffered back pain intermittently between 1996 and 1999, and permanently thereafter. He was a witness of credit.
·Koorangang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 was authority for the phrase “resulting in” in section 14 of the Act.

THE RESPONDENT’S SUBMISSIONS

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

Mr Clark referred to the 31 October 1996 twisting injury Mr Nairn claimed he had suffered due to his altered gait arising out of the right knee injury of 29 May 1996. Mr Clark noted that Dr Dewey stated at T37/103 (2 September 1998): “He considers that the onset of this back pain was associated with the knee injury and recovery, but this is probably unlikely and his back condition is probably a separate entity.” He noted Drs Goonerage, van Gelder and Fuller, had supported the view that the injury of 31 October 1996 was causally related to the right knee injury, adding that since that time, Drs McGrath, Maxwell and Matheson had opined there was no such causal connection. He submitted the Tribunal should rely on the opinion of the last named doctors.
Mr Clark noted that Dr McGrath opined as follows: (Transcript 25.9.03, page 148): “… it’s most likely that the odds of his problem are multi-causal, in that it’s likely he had disc disease or disc disorder prior to the twisting event [31 October 1996]. In fact, it’s very difficult to damage a healthy disc with virtually any twisting motion but have been damaged by disease or previous trauma, then it certainly becomes liable to further aggravations …” Dr McGrath opined further that Scheuermann’s disease was a risk factor for development of disc prolapse.
Mr Clark referred also to the evidence of Drs McGrath, Griffith, Maxwell and Matheson with regard to the impact of Mr Nairn’s constitutional condition (Schmorl’s nodes and Scheuermann’s diease).
Mr Clark referred to the credit of the Applicant citing the differences in versions given regarding whether Mr Nairn had been landscaping on 10 July 1999. He said that there was:
·     Dr Carden’s contemporaneous record indicating “landscaping” on Mr Nairn’s admission to hospital on 11 July 1999;
·     Dr Khoo’s records regarding landscaping;
·     the fact neither Ms Brasser nor Mr Doust dealt with July 1999 in their evidence;
·     Mr Clark noted also various versions of Mr Nairn’s activities on 10 July 1999 had been given, such as playing with the children (Dr McGrath, Exhibit A13), and sitting at home (Dr Fuller, T46/120). The Applicant himself on one occasion at T40 referred to his activities of 10 July 1999 as sitting at home, even though in oral evidence he said that he had been doing light cleaning up of the yard on that day.
As to the activities precipitating the pain situation of 10 July 1999; Mr Clark submitted the Tribunal should accept that a doctor was charged with obtaining an accurate history of a patient, and that accordingly, the Tribunal should accept Mr Nairn had been landscaping (as recorded by Drs Carden and Khoo). He submitted that this was a far more physical activity than raking leaves.
Mr Clark also submitted that notwithstanding that liability had been accepted for the 31 October 1996 incident, it had no causal connection with the 10 July 1999 incident. He also referred to the argument regarding whether the 31 October 1996 incident was a journey claim, and noted it had been discussed in the reviewable decision.
Mr Clark cited case law including Kooragong Cement Pty Ltd v Bates (supra) as authority for the issues of “results in” injury.
Mr Clark submitted that the evidence of the Applicant that he continued to suffer pain between 1996 and 1999 was inconsistent. He referred to the Applicant’s evidence in chief:
Mr Nairn: “And after being discharged from hospital the pain my back sort of settled down within a few days, it settled quite, you know, it settled to the point where I didn’t think I was going to have any more problems with it, so the pain subsided to the point where, you know, that I’d recovered from it within – like a week …”
Mr Ryan: “You say it settled down, but to what level - ”
Mr Nairn: “Well it settled to the point where I couldn’t feel it any longer. I couldn’t feel a problem with my back at all.”
Mr Ryan: “And for what period of time, were you not feeling problems with your back post discharge from hospital?”
Mr Nairn: “Post discharge – well until 1999, the middle of 1999, when I had the bad relapse in my back, I had periodic pain, typically it would come and last for two or three days and then it would settle down again, similar to the pain that I had in hospital but not as intense …”
(Transcript 25.9.03, page 28)
Mr Clark also drew my attention to Mr Nairn’s statement at T40 where, in contrast to the above, he had, in the period immediately following the incident of 10 July 1999, written: “I returned to work on Thursday 21 November (1996), and until recently had only experienced minor discomfort in my back, lasting at most a few days”, (T40, 16 August 1999).
Mr Clark also pointed out inconsistencies in Mr Nairn’s replies in cross-examination regarding his visits to Medical Centre Florey, and issues regarding back pain.
Mr Clark: “Were you seeing Dr Goonerage through 1997 and 1998 for any other reasons?”
Mr Nairn: “Nothing specifically I can think of. Typically if I had a flu or a cold or something in that period, I’d typically go to the Medical Centre Florey.
… it was open 24 hours a day … And that was usually more convenient to go there than to book in and see Dr Goonerage through work time.”
Mr Clark: “Well, at the Medical Centre Florey did you tell anyone about this back pain that you were having?”
Mr Nairn: “I don’t recall ever that I told anyone at the Medical Centre Florey about that.”
Mr Clark: “Why not?”
Mr Nairn: “Because it wasn’t there all the time. It was periodic.”

Mr Clark also cross-examined Mr Nairn regarding restrictions on lifting which he had specified in his claim for permanent impairment (T27). Mr Nairn replied that he did not understand he had a major restriction on lifting (Transcript 25.9.03, page 76), and said he did not mention it further elsewhere because he did not consider it was relevant.
Mr Clark also submitted that Dr Khoo had recorded at T39/108 that Mr Nairn had experienced no problems after the incident of 31 October 1996 until 10 July 1999.
Mr Clark also indicated Dr Coyle stated that he had not been aware of back problems, (T25/75 dated 5 February 1998).
Mr Clark referred to the entry dated 12 June 1998 in Exhibit R7, the clinical notes of the Medical Centre Florey, in which Mr Nairn had been referred to as having done “shovelling”, and the Applicant’s reaction, suggesting the entry may have been “snorkelling” (when clearly it was not snorkelling, and he could not recall undertaking any snorkelling).
Mr Clark also referred to the document at Exhibit A12, and Mr Nairn’s evidence that he had sought medical assistance for his back on 14 - 16 April 1999 (Transcript 25.9.03, page 62). It was noted that the actual reason for the time off was recorded as for a “virus”.
In summary, Mr Clark submitted that Mr Nairn’s application should fail on the basis of:
·his credit;
·any altered gait as a result of the knee injury of May 1996 was not causally connected to any back injury;
·there being no causal connection between the incident of 10 July 1999 and the previous incidents.

Having noted the submissions, I moved to consider the evidence before me, and what causal connection there was between the three incidents of May 1996, October 1996 and the July 1999 injury/aggravation.

THE INJURY OF 29 MAY 1996

I was satisfied from the evidence before me that Mr Nairn, who had worked at the ATO since 1989, incurred a compensable injury to his right knee on 29 May 1996, while playing soccer for the ATO. His evidence was that prior to that time, he had played a substantial amount of sport, was in good health prior to the injury, and had been a member of the State SES for some ten years.
The evidence was that he attended at the Jamison Medical Clinic on 29 May 1996 (T5), the day of the relevant accident, and that the Clinic recorded “Ligamentous injury to R knee”. The Respondent accepted liability for the injury, and Mr Nairn was paid compensation for “ligamentous injury to right knee”.
Ms Dianne Brasser gave evidence that she had known Mr Nairn for many years, commenced seeing him in May 1997, and married him in 2001. At the time of the Hearing they had separated. She gave evidence about Mr Nairn’s injuries, stating said that she knew about the Applicant’s right knee operation, and noted that he was able to walk, albeit guarding his knee, and could lead a normal life when she first met him, but that he no longer did SES work.
A report of Dr Goonerage of the Jamison Medical Clinic dated 13 February 1997 submitted to Comcare, was before the Tribunal at T17. Dr Goonerage stated that Mr Nairn had consulted him again on 31 October 1996 because of ongoing problems in his right knee, and that, on that occasion, he had referred Mr Nairn to Dr Coyle for further assessment.
Dr Goonerage described the progress of the injury of 29 May 1996, and informed Comcare that Dr Coyle had performed an arthroscopic examination on 27 June 1996, which revealed a chondral injury of the weight bearing surface of Mr Nairn’s medial femoral condyle. Dr Goonerage added that:
“Since the accident of 29 May 1996 Mr Nairn has noticed that he has had to rebalance his posture as a result of the weakness of his right knee. He is unable to fully weight bear on his right knee and has, therefore, an antalgic gait.”
Mr Nairn’s evidence was that after the injury his knee was unstable, particularly when walking on uneven surfaces, adding that he could not play sport. He said that his physical fitness suffered, he gained weight, and had to be cautious about how to get in and out of his car. He said that Dr Coyle performed a further operation, a knee reconstruction in January 1997.
As previously noted, liability was accepted for the right knee injury. I then moved to consider the injury or aggravation of 31 October 1996.

THE INJURY OR AGGRAVATION OF 31 OCTOBER 1996

Mr Nairn told me that on arrival home from consulting Dr Goonerage at his surgery on 31 October 1996, he swung both legs out of the car, and in favouring his right knee, injured his back, resulting in pain which increased to the point where he attended Calvary Hospital on the following day for pain relief. He was admitted for some 10 days under the care of Dr J Fuller, neurosurgeon, until his pain settled.
Dr Goonerage described a twisting injury resulting in acute lumbar disc swelling at L3/4 and L4/5 levels having occurred on 31 October 1996 (T17). Dr Goonerage emphasised that this was neither an aggravation, acceleration or recurrence of a pre-existing underlying condition, but indicated at T17/62 that it was “a secondary condition as it is well known that prolonged knee injury predisposes to mechanical back pains.”
A CT scan of the lumbar spine was carried out on 3 November 1996 which indicated that Mr Nairn had a mild disc bulge at the L3/4 level and at the L4/5 level, and a mild asymmetric bulge which slightly narrowed the left lateral recess. At the L5/S1 level, the disc was normal. An X-ray of the lumbar spine dated 3 November 1996 indicated there was a small Schmorl’s node in the inferior end plate of the T12 vertebral body. At discharge on 11 November 1996, the final diagnosis made was a mild disc prolapse at L3/4 and L4/5.
Treatment included physiotherapy, medication, with further knee surgery scheduled. Mr Nairn underwent a knee reconstruction carried out by Dr Coyle in January 1997, and experienced an occurrence of back pain in February 1997. Mr Nairn returned to work in March 1997.
On the basis of Dr Goonerage and Dr Coyle’s reports that Mr Nairn’s altered gait due to the knee injury were causally related to his back injury suffered on 31 October 1996, the Respondent accepted liability for a closed period to cover “a secondary condition of acute lumbar disc swelling at L3/4 and L4/5 resulting in incapacity and medical expenses for the period from 31/10/96 to 13/02/97” (T18). There were however varying views expressed at the Tribunal about whether the incident of 31 October 1996 was causally linked to the injury of 29 May 1996, and of course argument about whether the Applicant was entitled to further compensation on and from the cessation of liability on 12 February 1997, which was relevant to the claim before me. Accordingly the section below summarises the views of the doctors who expressed their opinions in that regard.

WHETHER THE INCIDENT OF 31 OCTOBER 1996 WAS CAUSALLY LINKED TO THE KNEE INJURY OF 29 MAY 1996

Mr Nairn’s argument before the Tribunal was that the incident of 31 October 1996 was causally linked to his right knee injury of 29 May 1996 in that he favoured his right knee, and accordingly suffered a twisting injury to his lumbar spine while alighting from his car on 31 October 1996.
Dr Goonerage at T17/62 (13 February 1997), wrote in reply to questions by Comcare:
Comcare: “What is the specific diagnosis of the condition from which Mr Nairn currently suffers?”
Dr Goonerage:
“A) Mr Nairn has a chondral injury of about 1cm square of the weightbearing surface of the medial femoral condyle. This is the result of a twisting injury to his right knee sustained on 29 May 1996.
B) Acute lumbar disc swelling at L3/4 and L4/5 disc levels. This injury occurred on 31 October 1996 as he was getting out of his car following a visit to the doctor’s surgery for treatment of his right knee injury.”
Comcare: “Have any other conditions arisen from the compensable injury? If so, what is the condition and can it be regarded as a secondary condition?”
Dr Goonerage: “Acute lumbar disc swelling at L3/4 and L4/5 following a visit to the doctor’s surgery on the 31 October 1996. This condition can be regarded as a secondary condition as it is well known that prolonged knee injury predisposes to mechanical back pains.”
In a letter at T40/110, Mr Nairn referred to a medical assessment by Dr Peter Dewey on 26 August 1998 in connection with the permanent impairment payment for his right knee injury. I noted that Dr Dewey had considered it was “probably unlikely” Mr Nairn’s back condition was related to his knee. I noted Dr Dewey’s report of 2 September 1998 at T37/103 where he dealt with the permanent impairment of the Applicant's knee, in which he stated that the examination of the Applicant’s back “revealed a normal erect posture, with forward flexion such that his fingertips comfortably reached his ankles, and normal extension”. He also opined regarding Mr Nairn’s back injury:
“He considers that the onset of this back pain was associated with his knee injury because of an awkward gait during the period of the knee injury and recovery, but this is probably unlikely and his back condition is probably a separate entity. His back condition is not severe and is not limiting his activities over and above the limitation that is occurring due to his knee condition. He requires no specialist treatment apart from an exercise program for his back.”
Dr Coyle, the orthopaedic surgeon who operated on Mr Nairn’s knee had several reports before the Tribunal. In his report at T16 dated 30 January 1997, he stated that the episode of acute low back pain and sciatica which Mr Nairn suffered in October 1996, “might well have been contributed to by his knee condition which altered his gait and caused him to lose physical fitness”.
Dr D McGrath, who is a musculoskeletal and occupational physician, examined Mr Nairn on 13 November 2002. He referred to his examination of Mr Nairn, and also to an MRI and CT scan, opining: “It appeared undisputed to me that Mr Nairn has established pathology at L3/4 which can be identified on the MRI and CT scan.”
Dr McGrath stated that the problem was likely to be multi-causal. His comment follows:
“Herniation of his disc matter into the vertebral bodies can occur during adolescence and when pronounced, leads to the disorder known as Scheuermann’s disorder. These herniations are also known as Schmorl’s nodes and David has such a defect in the T12 vertebral body. … In simple terms it is probable David has a developmental defect in his spine which increased the risk of further disc damage and prolapse. The twisting event on 3 November 1996 was a sufficient stressor on the damaged disc to create a minor prolapse with sciatica. The lesion settled over the years but was re-aggravated with an event at home in June 1999.
There is also the conjecture that while protecting his right knee injury his gait pattern and weight stance might have been altered and be a low level stressor on the affected disc, thereby increasing the probability of a prolapse.”
In his oral evidence, Dr McGrath also said that it was difficult to cause a lesion to a healthy disc in the way Mr Nairn described the twisting incident of 31 October 1996.
In connection with the origin of the back pain, I noted Dr Fuller’s report of 22 October 1999, (T46), in which he opined as follows:
“This man’s diagnosis is of L3-4 disc degeneration which I believe initially may have been resulted (sic) (related) to an altered gait pattern complicating injury to his right knee. It is not possible to be definitive about this mechanism as such.
His current symptoms relate to mechanical lower back pain which may be an exacerbation of the underlying degenerative changes which date to 1996.”

Dr G Griffith, a consultant surgeon whose report dated 21 November 2002 was before the Tribunal as Exhibit A15, also gave oral evidence at the Hearing. He opined that Mr Nairn’s back injury was associated with a protracted period of limping which produced a heightened range of pelvic movement and thus predisposed the Applicant to all or any of musculo-ligamentous sprain of the back, facet joint arthrosis and disc injury. He stated in his report that: “It is more probable than not that the disc lesion present at L3/4 (which is a relatively unusual site for disc degeneration to occur) was due to this unusual circumstance, rather than the idiopathic degenerative change in a young man.” He mentioned other contributing factors including a constitutional weakness in the disc. Dr Griffith did however add that Mr Nairn was clinically not suffering major disc prolapse.
Dr D Maxwell, orthopaedic surgeon whose report of 23 September 2002 was at Exhibit R6, noted two reports of disabling low back pain for Mr Nairn occurring in November 1996 and July 1999. He referred to an MRI scan report which indicated that Mr Nairn had inter-discal protrusion at the L3/4 level which he attributed to Mr Nairn’s developmental abnormality of the end plate. He considered that changes at L3/4 looked like Schmorl’s nodes rather than a disc lesion. Dr Maxwell considered the lesion at L4/5 level insignificant, to be described as a variation of the normal. Dr Maxwell stated that on examination on 23 September 2002, Mr Nairn had an excellent range of movement of the thoracolumbar spine without restrictions, and that there was no evidence of radiculopathy. He did not consider that at that point Mr Nairn suffered any pathological condition of his back, and opined that he had previously sustained a sprain to the lumbar spine, the effects of which would have ceased after approximately two months. Dr Maxwell did not consider that the back injury of 31 October 1996 occurred as a result of the knee injury.

In summary then, the Respondent had accepted a causal connection between the injury of 29 May 1996 and the incident of 31 October 1996, and this was supported by Drs Goonerage, Coyle, van Gelder and Fuller. Dr Griffith, whilst supporting the connection, indicated that there were other contributing factors, including the undisputed constitutional weakness in Mr Nairn’s disc. Dr McGrath, who also referred to the Schmorl’s nodes at T12 in Mr Nairn’s vertebral body, opined that the problem was likely to be multi-causal, and that it was difficult to cause a lesion to a healthy disc in a twisting incident such as the one Mr Nairn described occurred on 31 October 1996. Drs Dewey and Maxwell did not agree with the theory that the knee injury may have predisposed the Applicant to the incident of 31 October 1996.
In summary, it was not in dispute between the doctors, and I accepted, that Mr Nairn was not suffering major disc prolapse at L3/4 or anywhere else in his spine. Further it seems that the inter-discal protrusion at the L3/4 level is more likely than not due to the developmental abnormality of the end plate.
I did not have to decide whether the 29 May and 31 October 1996 incidents were causally connected, rather whether there were ongoing effects with regard to Mr Nairn’s back which were compensable after 12 February 1997.
Accordingly I moved to consider what occurred medically in regard to Mr Nairn in the period between 31 October 1996 and 10 July 1999. I was mindful that notwithstanding Mr Nairn’s oral evidence that he suffered regular intermittent back pain during that period, the Applicant did not seek medical attention, take analgesics, or have other treatment for his back during the period between early 1997 to 11 July 1999.

WHAT OCCURRED IN THE PERIOD BETWEEN 31 OCTOBER 1996 AND 10 JULY 1999

The evidence before me regarding Mr Nairn’s progress between the period in late 1996 after the incident of 31 October 1996, early 1997, when he suffered a bout of back pain and had a knee reconstruction, and 10 July 1999 when he suffered severe back pain, was not consistent.
Mr Nairn told me at the Hearing that the pain settled approximately 10 days after the incident of 31 October 1996. He said he thought the back pain had completely settled by November 1996, but that it recurred periodically between 1996 and the incident of 10 July 1999.
Mr Nairn told me that he returned to work in March 1997 and had random episodes of back pain. He said that after his return to work, he suffered periodic pain which was not of great intensity, that he had some physiotherapy two to three times a week, and attended at Dr Goonerage’s and Dr Coyle’s surgeries. A note from the Jamison Medical Clinic dated 4 June 1998 (T33), indicated that Mr Nairn had “finished his rehabilitation exercise program” but still had difficulty fully extending his right knee. There was no mention of the back.
Mr Nairn agreed in reply to questioning that he was coping at work from March 1997 to mid-1999. Mr Nairn said that his fitness improved, but that he still could not run. He told the Tribunal that between 1997 and 1998 his back pain was periodic. He said there were no particular triggers, the pain was not intense, and he did not seek medical assistance, so that if he attended at Dr Goonerage for other complaints, he may or may not have mentioned back pain.
Ms Brasser said that during 1997/8 Mr Nairn had a sore back, but that it was worse after July 1999.
In that connection, and following his recovery from the incident of 31 October 1996, I noted that in a letter of 16 August 1999 (T40), Mr Nairn wrote to Comcare stating that he had returned to work on 21 November 1996, and that he had: “ … recently only experienced minor discomfort in my back, lasting at most a few days.”
Unfortunately there were many inconsistencies in Mr Nairn’s evidence, and one in particular which impacted on his evidence that he had suffered back pain in the period between early 1997 and 10 July 1999, was a time sheet he himself had compiled, which was Exhibit A12. In support of his case, he had indicated days off due to his back injury, and told the Tribunal that 14 – 16 April 1999 were such days. When clinical notes were checked, they recorded that Mr Nairn had had a “virus” on those days.
Dr Goonerage who was Mr Nairn’s long term general practitioner, wrote in his report of 13 February 1997 that: “Mr Nairn’s lower back pains gradually settled and he made a full recovery”. He wrote again to Comcare on 22 August 2000, (T61), qualifying that as follows:
“In my report of 13 February 1997, I mentioned that he had made a full recovery. This means that he made a full functional recovery and that his L3/L4 and L4/L5 disc injury is probably permanent. It is possible that vigorous physical activities such as volleyball, martial arts, bungey jumping, landscaping could have contributed to further degeneration of his L3,L4, and L4/5 disc pathology. This will of course depend on frequency of his recreational activities and lifestyle issues e.g. being overweight.”
Dr G Griffith, consultant surgeon, whose report of 21 November 2002 was before the Tribunal as Exhibit A15, commented on the injury of 31 October 1996, stating the radiological investigations showed some disc disease at L3/4 which albeit not severe, caused varying reactions between different people, and that individual response to pain was very different. He said that a disc bulge such as Mr Nairn exhibited, could be asymptomatic in certain people, noting that the level of individual pain did not always reflect the pathology.
Dr J Matheson, a neurosurgeon whose report of 15 October 2002 was before the Tribunal as Exhibit R5, gave oral evidence at the Hearing. He considered that the reports regarding Mr Nairn were quite consistent as to disc bulges at L3/4. He referred to the intra-discal material at the L3/4 levels, which he opined was not traumatic in origin. Dr Matheson considered the origin of the condition at L3/4 to be developmental, and associated with Schmorl’s nodes. Dr Matheson also opined that there was a sustainable diagnosis of Scheuermann’s disease which could produce thoracolumbar pain, noting that Mr Nairn’s complaints were however, of lumbosacral pain, and stating that: “there is no correlation of these symptoms and radiological finding”. He stated that there was no pathology at the L4/5 and lumbosacral discs. Dr Matheson commented that he found inconsistencies in the recording of any leg and/or sciatic pain for Mr Nairn, and noted that the Applicant did not mention (to him), any history of pain radiating to his legs.
Notes of the Medical Centre Florey from 17 March 1995 to 6 August 1999 were before the Tribunal as Exhibit R7. I noted that there was no complaint regarding Mr Nairn’s back mentioned in those notes. When this was put to Mr Nairn, he said that he went to the Medical Centre Florey for “flu and virus” matters, but that for his back he consulted Dr Goonerage. I noted that Dr Goonerage (see previous paragraphs), had written on 13 February 1997 that “Mr Nairn’s lower back pains had gradually settled and he made a full recovery.”
Mr Nairn was also asked about an entry in the Medical Centre Florey’s notes on 12 June 1998, at a time when he said he had been suffering back pain, indicating he had attended after “shovelling”. Mr Nairn replied that perhaps the word recorded could have been “snorkelling” but he could not recall the event, and suggested it may have been that he was injured by someone else shovelling. I was not impressed as to the veracity of that statement.
Mr Nairn said that if he had back pain he would take analgesic medication, and that in mid 1998, he still guarded his knee and had problems on steep inclines, but that it was not as severe as before the operation. He said that the situation did not change much between mid-1998 and mid-1999. However, he said that he had continued to have intermittent back pain between November 1996 and mid-1999. Mr Nairn said that notwithstanding the pain, he did not have time off work between 1997 and 10 July 1999 (when he suffered the acute attack).
I noted from physiotherapy reports at T20 and T21 dated September and October 1997, that there was mention only of Mr Nairn’s knee, and not his back; similarly in Dr Goonerage’s report to a massage therapist, Mr Arthur Stewart dated 2 July 1997 (T10). Mr Nairn agreed that if he had physiotherapy it was for his knee, and not his back.
At T25, dated 2 March 1998, Dr Coyle in reply to Comcare’s extensive questionnaire at T24, certified the Applicant fit for all clerical duties, and also did not mention his back.
Dr Goonerage, in his report dated 16 April 1998 (T27/79), in connection with Mr Nairn’s permanent impairment claim for the right knee, mentioned minor (5 percent) restriction of movement of the lumbar spine.
Dr Goonerage at T48 dated 8 December 1999, (referring to 1996), stated that following a regime of regular back exercises, Mr Nairn had been relatively free of lower back pain until the incident of 11 July 1999.
Mr Nairn said that in May 1999, he was made redundant, because the ATO started outsourcing its IT, and he did contract work for the Department of Defence.
The Respondent put into doubt the data as recorded by Mr Nairn at Exhibit A12 in that the ATO had recorded 14 – 16 April 1999 as days Mr Nairn had off, whereas he had not so marked them on the document. Mr Nairn’s explanation was that although those dates were time off for his back pain, it was not worth claiming compensation because there was too much paper work involved. Later on, in cross-examination, he said that he did not recall those days in particular. However the data at Exhibit R2, which was a print-out of ATO personnel records, indicated that Mr Nairn had had time off between 14 and 16 April 1999 for a “virus”. An entry in Exhibit R2 for 24 – 27 November 1998 also indicated that Mr Nairn had had time off for a further motorcycle accident in which he had hurt his right thigh and hip. On the basis of the above, I accepted that the document at Exhibit A12 was unreliable.
In summary, Mr Nairn told me that between the end of 1996 and 1999, he suffered no major intense back pain. He said he had to be aware of his back, and careful with regard to lifting, but that he never thought it would flare up.
I was indeed mindful that notwithstanding Mr Nairn’s oral evidence regarding regular intermittent back pain, Mr Nairn did not seek medical attention, take analgesics or have other treatment for his back from early 1997 to 11 July 1999. I found Mr Nairn’s evidence regarding the fact he had intermittent back pain between early 1997 and 10 July 1999 to be unreliable, and on reviewing the medical reports, found that notwithstanding Mr Nairn’s visits to doctors and attendance at clinics over that period, as recorded in the paragraphs above, back pain had rarely been mentioned to any doctors during that period.
In considering the evidence regarding whether Mr Nairn suffered back pain between early 1997 and the episode of 10 July 1999, I reviewed the reports and oral evidence before the Tribunal noting as follows:

Mr Nairn’s own evidence:
Mr Nairn: “And after being discharged from hospital the pain my back sort of settled down within a few days, it settled quite, you know, it settled to the point where I didn’t think I was going to have any more problems with it, so the pain subsided to the point where, you know that I’d recovered from it within – like a week …”
Mr Ryan: “You say it settled down, but to what level -”
Mr Nairn: “Well it settled to the point where I couldn’t feel it any longer. I couldn’t feel a problem with my back at all.”
Mr Ryan: “And for what period of time, were you not feeling problems with your back post discharge from hospital?”
Mr Nairn: “Post discharge – well until 1999, the middle of 1999, when I had the bad relapse in my back, I had periodic pain, typically it would come and last for two or three days and then it would settle down again, similar to the pain that I had in hospital but not as intense …”
(Transcript 25.9.03, page 28)
Mr Nairn’s statement at T40 where, in contrast to the above, he had, in the period immediately following the incident of 10 July 1999, written: “I returned to work on Thursday 21 November (1996), and until recently had only experienced minor discomfort in my back, lasting at most a few days”, (T40, 16 August 1999).
Inconsistencies in Mr Nairn’s replies in cross-examination regarding his visits to Medical Centre Florey, and issues regarding back pain.
Mr Clark: “Were you seeing Dr Goonerage through 1997 and 1998 for any other reasons?”
Mr Nairn: “Nothing specifically I can think of. Typically if I had a flu or a cold or something in that period, I’d typically go to the Medical Centre Florey.
… it was open 24 hours a day … And that was usually more convenient to go there than to book in and see Dr Goonerage through work time.”
Mr Clark: “Well, at the Medical Centre Florey did you tell anyone about this back pain that you were having?”
Mr Nairn: “I don’t recall ever that I told anyone at the Medical Centre Florey about that.”.
Mr Clark: “Why not?”
Mr Nairn: “Because it wasn’t there all the time. It was periodic.”
Dr Griffith stated in his oral evidence that he had not documented any back pain other than the acute episodes which were at 31 October 1996, January 1997 followed by 10 July 1999.
Dr Khoo at T39 of 20 July 1999 found that following the conservative treatment for a minor disc bulge towards the end of 1996, Mr Nairn had had no problems with his back until 10 July 1999.
In his report at Exhibit A13, Dr McGrath said of the period following Mr Nairn’s knee reconstruction in January 1997, that: “David’s back did not bother him too much over the following years, at least not to the point of seeking treatment. He states there were several spikes of discomfort.” Dr McGrath said in his oral evidence that he was not told of intermittent pain lasting two or three days over the period 1997- 1999.
I noted from the history taken by Dr Griffith that once the pain Mr Nairn had suffered in January 1997 had settled, the next reference was to acceptance of a permanent impairment claim by the Respondent, and then the incident of 10 July 1999 (erroneously noted as 20 July by Dr Griffith). In oral evidence Dr Griffith stated that he did not receive complaints regarding Mr Nairn’s condition between February 1997 and July 1999.

As to previous injuries; Mr Nairn’s evidence was that he had suffered a minor shoulder injury in 1993, and a broken collar bone when young, but no other previous injuries. Mr Nairn’s evidence in chief was unreliable in that regard because during cross-examination, it was revealed that he had suffered a ski accident to his knee in 1989/90 and a motorcycle accident in 1995, as well as an injury to his right knee playing touch football at lunchtime on 8 February 1996. In re-examination, Mr Nairn added a further motorcycle accident which took place on 24 November 1998.
In considering all the evidence before me regarding Mr Nairn’s back for the period early 1997 to 10 July 1999, I have come to the conclusion that notwithstanding his evidence that the pain he experienced was intermittent, and lasted two to three days at a time, Mr Nairn’s evidence was unreliable. Mr Nairn did not seek medical attention for his back in that period, and gave evidence that he thought his back had settled by the time he returned to work in November 1996. Even Dr Goonerage, who was Mr Nairn’s treating general practitioner stated in his report of 13 February 1997 that Mr Nairn had made a full recovery. He did qualify that later in a report to Comcare in which he stated that he meant Mr Nairn had made a full “functional” recovery.
I was satisfied that Mr Nairn’s L3/4 disc condition was at least partly due to a developmental condition at T12, Schmorl’s nodes and Scheuermann’s disease. I was also satisfied from the evidence that there was no serious disc lesion, but accepted that response to pain does vary between individuals.
I was further satisfied that the doctors who examined Mr Nairn considered he could return to his IT work.
And I was indeed mindful that notwithstanding Mr Nairn’s evidence regarding regular intermittent back pain, he did not seek medical attention, take analgesics or have other treatment for his back during the period from early 1997 to 11 July 1999. Accordingly I am satisfied to the requisite standard from the evidence detailed above, and make the finding that any injury Mr Nairn suffered to his back on 31 October 1996 had settled well before he took a voluntary redundancy from the ATO in May 1999.

THE INJURY OR AGGRAVATION OF 10 JULY 1999

There was a great deal of evidence before the Tribunal with regard to the incident of 10 July 1999. Mr Nairn who had taken a voluntary redundancy in May 1999, told me that on 10 July 1999, he was at home with his then second wife, Dianne Brasser, on the weekend. He said that they did little, but spent an hour cleaning up rubbish in the garden, picking up sticks and tidying up, doing light work, and otherwise reading and having a quiet day. He denied having done any landscaping.
Mr Nairn said that that night while watching a video, his back pain increased and he could not get comfortable during the night. He said that he moved from the water bed to the bed of one of his children, and on awakening, suffered severe pain. Mr Nairn said that he thought a hot shower might help, but had serious spasms in his back and was found by his wife, on the floor, unable to get up. His wife and her brother took him to hospital where he came under the care of Dr Khoo, a rheumatologist.
The patient notes with regard to Mr Nairn’s care on 11 and 12 July 1999 were admitted into evidence as Exhibit R8. The admitting doctor, Dr Carden, had recorded as follows:
“disc prolapse 1993 …
no problem since
no precipitating feature for this admission
? landscaping over weekend
pain in both legs and & back . Sat. pm
improved since
Plan bed rest today …
Decrease morphine dose gradually”
Mr Nairn was discharged on 26 November 1999 with a walking frame and stick. He said that he could not straighten his back, and still had problems with walking. Physiotherapy was prescribed for Mr Nairn; however it was noted at Exhibit A5, dated 23 September 1999, that he cancelled his last appointment and had not further attended. Mr Nairn’s explanation for the non-attendance was that he was in a new job and keen to return to work after six weeks off. He returned to work and ceased work when he completed his contract in May 2001, albeit some five months late due to the back pain, according to Mr Nairn.
Mr Nairn said that his work capacity was limited by his back pain which had been intense since July 1999, and which also disturbed his sleep, so that he could not seek a full time contract. He said that with a combination of medication, exercises, swimming and learning pain techniques, he had improved somewhat.
Ms Brasser told the Tribunal that at the relevant time in mid-1999, she had a large backyard with gum trees and bushes with a dirt track at the back. She told the Tribunal that she rode trail bikes down in the garden, and that whilst her husband also had one, his had an electric starter. Ms Brasser told the Tribunal that he had not ridden it since 2001.
Ms Brasser corroborated Mr Nairn’s evidence that on 10 July 1999 she and the Applicant “pottered around” the yard tidying up, but not doing any heavy lifting. She also said that they had a nice quiet day with the children (in contrast to Mr Nairn who said they did not have the children - of his first marriage – staying on that weekend). Ms Brasser corroborated Mr Nairn’s evidence that he could not sleep in their water bed that night, and recounted how she had found him screaming and crying in the shower the next morning, unable to walk. Ms Brasser said that Mr Nairn screamed the hospital down for two weeks and been admitted for six, and then was bedridden at home for a couple of months before undertaking rehabilitation to walk again. She had he had never been the same since, saying that his activities and family life were now limited by his back pain.

As to the issue of landscaping; Ms Brasser said that she had had landscaping done in 2001, and put in flower beds, but that the role of Mr Nairn was to do the design. She said that she had paid others to do the heavy work. This was corroborated by Mr R Doust, a near neighbour of the Applicant, who gave oral evidence at the Tribunal. He told the Hearing that in 2001, he was involved with landscaping work for Mr Nairn and Ms Brasser during which he and others carried out heavy work such as laying of sleepers, digging holes and other heavy work, while Mr Nairn did light work such as using a spirit level and string line.
There was considerable disagreement regarding the origin of Mr Nairn’s back pain on 10 July 1999, and any triggers. Mr Nairn’s account of how he spent that day and what followed has been noted in the paragraphs above.
Dr Khoo, who treated Mr Nairn in hospital on 11 July 1999, wrote on 20 July 1999 (T39/108):
“He is a 34 year old married man with a background history of acute low back pain requiring admission in November of 1996 under the care of Dr John Fuller. During that admission he had evidence of a minor disc bulge at L3/4 and L4/5 and he was treated conservatively … He has had no further problem until this present admission.
…
Over the weekend he was doing some landscaping but could not remember any obvious precipitating factor….”
Mr Nairn denied he had told Dr Khoo he had had no back problems since 1996 and said that he told Dr Khoo that he had suffered periodic pain which lasted two to three days at a time.
Because the question of whether Mr Nairn had been doing landscaping before the back pain he suffered on 10 July 1999 was contentious, and in fact denied by Mr Nairn, I noted that Comcare wrote to Dr Khoo about it on 20 April 2000 (T53). Dr Khoo replied in clarification of the term “landscaping” he had mentioned in his letter of 20 July 1999, on 26 April 2000 (T54), and 24 May 2000 (T55). He stated at T54:
“He has a background of low back pain dating back to November 1996 secondary to disc disease at L3/4, L4/5 levels. He presented with an acute exacerbation of his lower back pain radiating down both legs.
…
He said he was doing some landscaping but could not remember any obvious activity during that time which may have precipitated his back trouble. He did not give me the details of what he was doing during the landscaping.
At T55, Dr Khoo stated:
“I am writing to clarify a matter regarding Mr David Nairn’s history that has been brought to my attention … This is regarding the issue of activities undertaken by Mr Nairn prior to his hospital admission on 11 July 1999. In my correspondence dated 26/4/2000 and 20/7/2000 a reference was made to landscaping … It appears clear to me from my conversation with the patient (23 May 2000), and receipt of some correspondence that there has been a misinterpretation of the activities that Mr Nairn undertook. It appears clear to me that he did not undertake any prior landscaping. On the morning of 10/7/99 the patient said he spent around one hour in his backyard doing basically some light gardening which was nothing more than cleaning up some garden rubbish and this did not involve any sort of heavy lifting or activity in any way. … Clearly … this activity did not cause any back pain. The spasms started the following morning, 11/7/99. The CT scan performed on 16/7/99 showed disc disease similar to what was found in November 1996. … I also feel that his activities performed the previous day (10/7/99) did not appear to contribute to his symptoms as he did not have any pain after finishing his light garden activities.”
I noted further inconsistency in the reporting of the events of 10 July 1999 from Mr Nairn’s letter to Comcare dated 16 August 1999 (T40/110) in which he stated:
“On Saturday night 10 July 1999 while I was at home watching a video I again experienced that familiar back discomfort, and after an uncomfortable night trying to sleep again found myself on Sunday morning in Calvary Hospital’s emergency ward seeking pain relief from acute lower back pain. …
I no longer work for the Government and am self-employed under contract to Defence. I do not have any workers compensation so have had no other coverage for my lost income over the last six weeks. This relapse of my back condition was not brought about by any incident; it just started again while I was at home and at rest.”
The above was written by Mr Nairn shortly after the incident, and was in contrast to the evidence given to the Tribunal by Mr Nairn and Ms Brasser that he had been doing light gardening, or the report to the hospital on admission, that he had been landscaping.
In that connection I noted also the report of Dr Fuller dated 22 October 1999 at T46, in which he stated in connection with the commencement of Mr Nairn’s pain of 10 July 1999, that “he had been sitting at home and for no obvious reason developed severe left sided lower back pain. There was no specific precipitant.” Mr Nairn was given the opportunity to comment on the statement that there had been no specific precipitant, and that he had been sitting at home when the pain occurred. He had no specific recall of telling Dr Fuller about working in the garden but said that: “in all likelihood, I would have”. He also said that contrary to what was written in the report, he had had muscle spasm the previous time.
I noted further the report of Dr Goonerage to Comcare dated 8 December 1999 (T48) in which he referred to the 1996 injury and stated:
“Following a regime of regular back exercises, Mr Nairn has been relatively free of lower back pains until the incident of 11/7/99. Mr Nairn himself cannot record any specific contributing factor causing his severe lower back pains. According to Dr. Ken Khoo, Mr Nairn had done some landscaping over the weekend but had not experienced any lower back pains then. On 11/07/99, he awoke with severe lower back pains and had to be admitted to Calvary Hospital for management, which included a morphine infusion for pain relief.
…
Mr Nairn’s diagnosis was that of lumbar disc protrusion at L3/4 level. This was at the same level to the injury sustained on the 31^st October 1996 when he twisted his back getting out of the car following a Doctor’s visit. After the injury of October of 1996 had been stabilized … the injury (disc protrusion at L3/4) is permanent. ?However no precipitating factor could be identified for his injury of the 11^th July 1999 the activities associated with landscaping may well of (sic) contributed to the aggravation of his pre-existing injury.”
This again was inconsistent with Mr Nairn’s account to the Tribunal which included evidence that he had an uncomfortable night on 10 July 1999, and could not sleep in his water bed, and that he had had to move to one of his daughter’s beds to sleep. Mr Nairn’s response to the above was that he did not tell Dr Goonerage he had been landscaping, but that Dr Khoo must have.
There was a further version of events regarding 10 July 1999 in that Dr McGrath, who is a musculoskeletal and occupational physician, stated at Exhibit A13, dated 13 November 2002, that in June 1999, Mr Nairn was playing with his children, when a more severe episode of spinal pain was precipitated. In reply to that Mr Nairn said that he did not have his children with him on the relevant weekend, and said that he told Dr McGrath he had been doing light gardening.
Dr Maxwell recorded at Exhibit R6 that in July 1999, Mr Nairn had been having a quiet weekend when he gradually developed increasing back pain and had been doing light gardening.
Dr Griffith wrote in his report at Exhibit A15 regarding the incident of 10 July 1999, that: “On 20 July 1999, he had been seated at home when he suffered an acute exacerbation of his low back pain without obvious explanation.” He also referred to the issue of “landscaping” which had appeared in the documentation sent to him, and said in his oral evidence that he understood Mr Nairn had been tidying up the yard, and had had trivial exertion. Dr Griffith opined that if it had been an acute rupture, he would have been immobilised, but that the timing of the pain was such that it was consistent with an aggravation of an already injured disc.
I noted the various versions of what Mr Nairn had been doing on 10 July 1999, noting that it was probable he had been doing some work in the garden, and that that activity had precipitated back pain. I preferred the contemporaneous evidence regarding the activity as recorded by Dr Carden, notwithstanding the question mark before the word landscaping which had appeared on the admission record.
I considered also my finding above that Mr Nairn had, notwithstanding the evidence regarding regular intermittent back pain, not sought medical attention, not taken analgesics and not sought other treatment for his back during the period from early 1997 to 11 July 1999. Mr Nairn was questioned about taking medication, and it was noted that he did not claim medical expenses from the Respondent between 1997 and July 1999. I was satisfied that the effects of the injury or aggravation of 31 October 1996 were well resolved by early 1997.
Accordingly even if there had been no inconsistencies with regard to the evidence regarding how the injury of 10 July 1999 occurred, I was not able to find a causal connection to the incident of 31 October 1996 or indeed 29 May 1996. I have relied on the case law, (Casarotto (supra), Commonwealth v Beattie (supra), Zickar v MGH Plastic Industries Pty Ltd (supra) Treloar (supra), Kooragang Cement Pty Ltd (supra) and other relevant case law). I was satisfied and find that the injury of 10 July 1999 was a discrete injury incurred at home after the cessation of employment by Mr Nairn with the Respondent, after a period of years in which the effects of a previous incident had resolved. Accordingly, it was not compensable. I was satisfied there was no causal connection between the incidents of 29 May 1996, 31 October 1996 and 10 July 1999, and the decision to cease liability of the Respondent on 12 February 1997 must be affirmed.

PRESENT CAPACITY TO WORK

I was therefore not concerned with capacity to work, but noted that Mr Nairn told me at the Hearing that he suffered further pain during 2000, and ceased work in 2001. He said that he could now work two to three hours per day, and could earn $70 - $75 per hour. In summary, he said, his capacity to work had been reduced to 30 – 40% of his earlier capacity to work. As there is no liability for the Respondent to pay compensation, I have not canvassed the views of the doctors with regard to this issue.

DECISION

The decision under review is affirmed.
Costs may not be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.

I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed: Guy Moloney

Associate

Dates of Hearing 25 & 26 September &10 Nov 2003
Date of Decision 10 February 2004

Solicitor for the Applicant                 Mr D Lander, Lander & Co
Counsel for the Applicant                Mr C Ryan
Counsel for the Respondent           Mr C Clark
Solicitor for the Respondent            Mr S Marris, Sparke Helmore, Solicitors