Norton and Comcare - [2001] AATA 438

DECISION AND REASONS FOR DECISION [2001] AATA 438

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/750

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JAMES LESLIE NORTON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Dr J B Morley, RFD (Member) Major-General JN Stein, AO (Retd) (Member)

Date23 May 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review
  (Sgd)     KL Beddoe
  Senior Member
CATCHWORDS
Compensation – back pain – disc lesions and spondylolisthesis – whether workplace injury aggravated by non-workplace injury – whether work-place injury contributed to current condition

Safety, Rehabilitation and Compensation Act 1988 s 5, 14, 19,

REASONS FOR DECISION

23 May 2001 Mr K L Beddoe (Senior Member) Dr J B Morley, RFD (Member) Major-General JN Stein, AO (Retd) (Member)

By notice dated 29 January 1995 the respondent notified the applicant its decision in respect of his claim for compensation for back pain caused by disc lesions and spondylolisthesis as follows:
" I have decided to deem you able to earn your normal weekly earnings of $854.39………….You are therefore not entitled to compensation payment for time off work. Your entitlement to payment of medical expenses is unaffected by this decision."

That decision was affirmed on reconsideration and the applicant notified by letter dated 15 April 1996.

By an application lodged on 7 June 1996 the applicant applied for review in this Tribunal. On 2 December 1998 this Tribunal (Senior Member Purcell, Miss Brennan and Dr Kennedy, Members) decided the application. Following an appeal to the Federal Court the matter was remitted for rehearing by a differently constituted Tribunal for re-determination with liberty to receive further evidence. The Order of the Federal Court is dated 4 August 2000.
Section 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") relevantly provides that the respondent is liable to pay compensation in respect of an injury suffered by an employee which results in incapacity for work. By virtue of section 5(9) of the Act a reference in the Act to an employee includes a reference to a person who has ceased to be an employee.
"Injury" is defined in section 4 of the Act to mean, inter alia, a disease suffered by an employee.
Disease is also defined in the section to mean:
(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."

In essence section 19 of the Act determines the quantum of compensation payable for injuries resulting in incapacity for work. Payments otherwise payable under section 19 are reduced by the amount per week (if any) that the employee is able to earn in suitable employment.
Suitable employment is relevantly defined as any employment including self employment having regard to the matters (i) to (iv) in paragraph (a) of the definition being:
(i) The employee's age, experience, training, language and other skills;
(ii) The employee's suitability for rehabilitation or vocational retraining;
(iii) ……………….;.and
(iv) any other relevant matter.

Section 19 of the Act provides for the quantification of the compensation for injuries resulting in incapacity for work. The essential feature is that incapacity payments are based on normal weekly earnings or a percentage of normal weekly earnings calculated in accordance with the section reduced by the amount the employee is able to earn from suitable employment.
At the hearing Mr Thomson appeared for the applicant and Mr O'Donovan appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.
Oral evidence was given by:
(a)      the applicant;
(b)      the applicant's wife
(c)       Dr Winstanley
(d)      Dr Coffey
(e)      Dr Tuffley
(f)       Dr Hazleton
(g)      Ms Stephenson
(h)      Mr Waters
(i)        Mr Ritcher
(j)        Mr Rispoli
(k)       Mr Butcher

The Tribunal makes the following findings of fact:
(a) the applicant was born in 1943
(b)by a claim dated 21 November 1977 he claimed compensation for "aggravation of back injury previously sustained at work on 1.11.76" (T7);
(c)he described the incident in terms that make it clear that the aggravation did not occur in the course of his employment it having occurred "at home", there being no connection with his then employment as an airport fire officer;
(d)the applicant was incapacitated for work from 24 October 1977 to 4 November 1977;
(e)the applicant attended Dr Hefner, Orthopaedic Surgeon, on 27 October 1977 and reported re-occurrence of back pain four days earlier while at home;
(f)liability for that closed period claim was accepted and payment of medical expenses was also accepted (T10).
(g)the back condition had its symptomatic genesis in the incident on 1 November 1976 at a training exercise for airport fire staff conducted by the applicant;
(h)the applicant was employed in the Airport Fire Service from 1963 to 1991 at various locations and with varying types of work including as an instructor and concluding in the position of Assistant General Manager responsible for the region based on Sydney Airport and including five other airports and Norfolk Island;
(i)prior to his appointment to Sydney the applicant was located at Darwin Airport and in the years 1981 and 1982 he built a 39 squares masonry block home with some assistance from others but so that the applicant laid the masonry blocks for the house except in respect of one wall;
(j)from 1976 on the applicant suffered lower back pain from time to time which was aggravated by physical activity including the laying of masonry blocks;
(k) the applicant left Darwin in 1984 for Sydney on promotion as Regional Fire Officer, Sydney, which position was eventually redesignated as Assistant General Manager.
(l)the applicant performed his management duties in Sydney away from Mascot Airport but he inspected the fire service at that and other airports on a regular basis being required to travel to the other airports and Canberra at least twice yearly but more often to Mascot;
(m)the applicant said he was able to manage the lower back condition with analgesics, appropriate exercise, and an appropriate bed so that it was not apparent that his back condition interfered in his capacity to undertake duties as Assistant General Manager;
(n)a proposed rationalisation of the management structure for the Airport Fire Service resulted in the applicant being in conflict with the General Manager over the proposal and the applicant perceiving, wrongly in our view, that he was being eased out of the Fire Service;
(o)in the result the applicant did not apply for and refused an offer of a position in the new management structure resulting in him taking voluntary retrenchment from the Fire Service on 12 November 1991;
(p)the applicant had investigated purchase of a pizza shop on Norfolk Island during his last official inspection visit to the Island in mid 1991 and he and his wife purchased the business in 1991 and moved to Norfolk Island because the applicant perceived it to be a better alternative to staying in the Fire Service.
(q)the Norfolk Island business was successfully operated by the applicant and his wife although the applicant said he found the mixing of pizza base dough aggravated his lower back condition so that this work was performed by his wife;
(r)the applicant's lower back condition deteriorated while running the Norfolk Island business so that it was sold in 1994 at a slight loss with the applicant and his wife returning to Australia and living at Terrigal in New South Wales until they moved to a 2 hectare property near Eumundi in Queensland; and
(s)the applicant maintains his property at Eumundi by operating a tractor/slasher to control grass etc.

The Medical Evidence

The Tribunal had Medical Reports from:
·     Dr Steve Baddeley, Orthopaedic Surgeon, who provided four Reports of 11 August 1981, and 13, 15 and 22 December 1983 which collectively formed Exhibit H;
·     Dr Geoffrey Coffey, Neurologist, whose first Report of 9 November 1994 appeared in the T documents at folios 32-35, and whose second Report of 16 July 1997 was Exhibit B, and who provided telephone evidence;
·     Dr Ronald Hazelton, Rheumatologist and Physician, who provided two Reports of 25 October 1996 (Exhibit 4) and 29 January 1997 (Exhibit 3);
·     Dr PA Hefner, Orthopaedic Surgeon, whose Report of 20 January 1978 appeared in the T documents at folios 11 and 12;
·     Dr Hugh Marsden, Consultant in Surgery, and Occupational Medicine and Rehabilitation Consultant, whose two Reports of 12 and 17 January 1995 appeared in the T documents at folios 46-53 and 54-55 respectively;
·     Dr Christopher Minogue, Consultant Occupational Physician, provided a Report of 31 July 1995, in the T documents at folio 66-70;
·     Dr Douglass Seaton, Orthopaedic Surgeon, whose Report of 19 October 1994 appeared in folios 30-31 in the T documents, and whose additional Report of 8 July 1997 is Exhibit A:
·     Report (unsigned and undated) from Skin Cancer Foundation of Darlinghurst NSW (Exhibit F);
·     Dr JPH Stephen, Orthopaedic Spinal Surgeon, whose Report of 15 November 1994 appeared in the T documents at folios 38 and 39;
·     Ms Lesley Stephenson, Occupational Therapist, whose Report (4 June 1998) formed Exhibit C;
·     Dr FR Stewart, Commonwealth Medical Officer, whose report of 11 July 1977 and attached documents appeared in the T documents at folios 3-5;
·     Dr N Sullivan, Government Medical Officer (Norfolk Island) whose two Reports of 24 September 1993 and 18 March 1994 appeared in the T documents at, respectively, folios 16 and 26;
·     Dr John Tuffley, Orthopaedic Surgeon, who provided two Reports of 13 August 1996 (Exhibit 1) and 24 January 1997 (Exhibit 2);
·     Dr B J Whitlocke, Radiologist, whose Report of 12 December 1983 formed part of Exhibit H; and
·     Dr Peter Winstanley, Orthopaedic Surgeon, who provided a report dated 8 February 2001 (Exhibit D).
The medical issues examined by the Tribunal were the nature of the original injury, and its duration.
In order to address these questions, the Tribunal first sets out a chronological condensation of the medical evidence, including the contemporaneously recorded history and examination findings of the Applicant's original injury and his subsequent progress, and the respective opinions, such as has been provided by the medical witnesses in their numerous reports, and, where relevant, in oral evidence.
During his evidence in chief the applicant stated that, having reported his injury, and then enduring three days of "high level" back pain, he consulted his then general practitioner, whom he thought diagnosed "muscle inflammation". He was prescribed a 12 day course of non-steroidal anti-inflammatory medication, following which his back pain improved considerably, so that he resumed work in mid-November 1976. Soon after he took up his promotion in Darwin, and because his back pain persisted over the ensuing months, he then lodged a Claim for Workers' Compensation. Accordingly he was referred to the Commonwealth Medical Officer, Dr FR Stewart. In preparation for this examination it appears that a staff member of the Commonwealth Department of Health contacted the applicant's previous Melbourne general practitioner (un-named). The locum conducting the practice provided notes regarding the applicant's original injury, from which was extracted:
"On examination, restricted movements.
Diagnosis – muscle spasm – Brufen Norflex.
12 November 1976 much better virtually no pain." (T documents folio 5).

Apparently no x-rays were taken at the time.
On examination of the Applicant nine months after his injury on 11 July 1977, Dr Stewart found "…no evidence of any back disability…"; and in answering the Schedule of questions stated that the effects of the applicant's injury had "…now ceased to exist", having lasted "approximately 2 weeks", diagnosing the injury as "acute muscle strain of back". (T documents folios 3 and 4).
Three months later, and about a year after his original injury, he was referred by his Darwin general practitioner to orthopaedic surgeon Dr PA Hefner, who saw him on 27 October because of worsening of his back pain in the past four days. On examining him, Dr Hefner found "…a scoliosis to the right, …limited straight leg raise test on the left, pain and tenderness in the L4, 5 region of his back, and a possible suggestion of weakness in the left great toe extensior (sic) muscle. There is also a suggestion of loss of sensation on the dorsum of his left foot." Dr Hefner examined his x-rays, stating that they showed narrowing of the L4-5 intervertebral disc space, ie one intervertebral disc space above the lumbosacral junction. (T documents folio 11).
Dr Hefner diagnosed "….a Disc injury of the L4, 5 region", and advised conservative treatment (T documents folio 11). On review one week later the applicant was improving, with "… no neurological loss present in his legs", and now with normal straight leg raising on both sides. He regarded the applicant's recent complaints as being "…related to an incident which occurred with an earlier injury to his back". He added the comment "…all disc injuries usually run an intermittent course over a number of years, often stemming from a minor commencement incident, then either completely resolving in a number of cases, or producing symptoms which require surgical intervention." He concluded: "It is my opinion that Mr Norton has sustained an injury to his L4, 5 Disc, stemming from 1976. This was aggravated with one attack of back pain and minimal neurological signs, which abated with conservative treatment." (T documents folios 11 and 12).
About four years later, in 1981, the applicant described worsening of his back pain, after directing his staff in putting out a fire on the Darwin Airport involving a Cessna aircraft and a fuel tanker. Also in June of that year he began building his own home in Darwin. In his evidence in chief he stated that he often was assisted by a work colleague who was a former brick layer. He usually worked "a couple of hours on Saturday mornings", although on "good days" he would work up to six hours; this took him about two years to complete.
In August 1981, now almost five years after his original injury, he was referred for the first time by his Darwin general practitioner, Dr Wake, to orthopaedic surgeon Dr Baddeley, with Dr Hefner no longer being available. In his first letter of 11 August (Exhibit H) Dr Baddeley recorded the history:
"…He presents with a history of having suffered relatively sudden onset of low back pain when lifting heavy weights at work in 1976. At that time the pain was in his lower back radiating into the posterio (sic) aspect of the right thigh but with no pain below the knee and no signs of (sic) symptoms to suggest a true sciatica. Since that time he has had episodic low back and right thigh pain aggravated by lifting, stooping and prolonged sitting. At the present time he is working as a fireman at the airport and doing largely sedentary work…."

Dr Baddeley found no abnormality on examination. He recorded that the applicant's x-rays showed a congenital variation of six (instead of five) lumbar vertebrae with the only abnormal finding of a "Grade 0" (ie minimal) L6 spondolylolysis (sic). He diagnosed that "this is possibly the cause of his trouble but (that) his pain may be emanating from the muscles fasciae and ligaments (ie the soft tissues) in his back", and prescribed him a lumbosacral support, and Brufen. The applicant stated that Dr Baddeley did not advise him against continuing with his brick laying.
However, he continued to suffer back pain, which was generally persistent, but occasionally aggravated eg in his evidence he referred to it suddenly worsening when he was getting out of a car, an incident which Dr Minogue also has recorded in his report (T documents folio 68). After two years, Dr Wake referred him again to Dr Baddeley who reviewed him on 12 and 13 December 1983. Dr Baddeley compiled two reports, before and after the applicant had review x-rays performed of his lumbosacral spine as arranged by him. In both reports Dr Baddeley refers to his pain having persisted, and "…and not in any way improved". He also referred to him having "…some pins and needles of recent time affecting both legs and feet" (Exhibit H, first report 13 December) and "some pain down both legs" (Exhibit H, second report 15 December). He described his examination findings in his first report as "…some restriction of the terminal portions of his range of movement in all directions," but in the second report he records "…a full range of movement". The x-rays were reported on 12 December by Dr Whitlocke as follows:
There is a normal alignment of the vertebral bodies. Marked narrowing of the disc between L4-5 with marginal spondylitic bone growth. Degenerative changes with osteophytic lipping is (sic) demonstrated bilaterally in the facetal joints at this level. The remaining inter-vertebral disc spaces appear normal. The sacroiliac joints are normal." (Exhibit H report of 12 December 1983).

It is to be noted that this report does not refer to a congenital variation of six lumbar vertebrae being present; accordingly, with Drs Whitlocke and Baddeley being unavailable to clarify this point, the Tribunal interprets the designation of the L4-5 level as being one level above the lumbosacral junction, ie the lumbosacral junction being L5-S1 in the usual anatomical arrangement, but L6-S1 if there are six lumbar vertebrae.
Dr Baddeley now diagnosed chronic disc degeneration, remarking that the latest x-rays had revealed "severe degeneration of the L4 5 disc (ie one level above the lumbosacral junction) which has advanced significantly since his last x-ray two years ago". He opined that the applicant "would almost certainly benefit from a spinal fusion". (Exhibit H, report of 15 December 1983). Because the applicant was about to be transferred to Sydney in his promotion to Regional Supervisor, Dr Baddeley provided him with a letter of introduction to his new doctor, stating this opinion. (Exhibit H, report of 22 December 1983).
However the applicant stated in his evidence that he was "scared" by the thought of this, and did not pursue it after settling in Sydney. With the now substantially sedentary nature of his work over the next eight years, he relied at times on courses of chiropractic to afford him with pain relief. This enabled him to continue with his duties, which were mainly administrative and supervisory, including frequent flights of inspection to airports in his region, and staying up to several nights away from home, even although, according to his evidence, such activities often worsened his back pain. He continued without evident need for orthopaedic or other medical or surgical review, up until he eventually took his voluntary redundancy toward the end of 1991. He and his wife then began their Pizza Restaurant business which they had purchased on Norfolk Island.
The applicant's evidence is that his back pain worsened considerably over the first six weeks after he and his wife started in their Pizza Restaurant, specifically being aggravated by his standing for lengthy periods when mixing the dough. Accordingly he had to hand this over to his wife; and similarly he needed her help to an increasing degree in other tasks. He found that the necessary hours on his feet worsened his pain. Because of these difficulties, after six months, he and his wife reduced their trading hours from 5 hours to 3 hours per day. Despite these adjustments, his back pain continued to significantly limit his physical capacities.

Accordingly, in what appears to be the applicant's first Medical consultation in ten years, on 24 September 1993, he consulted the Norfolk Island Government Medical Officer, Dr N Sullivan, who, in his first report (T documents folio 16), referred to his persisting low back and right sciatica pains. Although he found "….no clinical evidence of nerve degeneration", he diagnosed that he had "…a rapidly progressive and disabling back injury" without providing any additional detail, and that the applicant needed to return to Australia for further specialist care. The Applicant stated that, on Dr Sullivan's advice, he and his wife decided to sell their Pizza business. Shortly before leaving Norfolk Island, Dr Sullivan reviewed the applicant on 4 March 1994 and recorded:
"…He complained of worsening pain in his lower lumbar region. His pain radiated to his right groin and down his right leg. There is a less severe radiation down his left leg. On examination his lower back is stiff and tender, there is marked limitation of straight leg elevation but the ankle reflexes are both present. I had an x-ray performed. On studying this x-ray and comparing it with that taken in 1983 there is still posterior compression and forward displacement of the fifth (ie the lowest ) lumbar vertebra. The change since 1983 is that there has developed severe osteoarthritic lipping and more severe diminution of the L4-L5 disc space (ie one level above the lumbosacral junction)…". (T documents folio 26)

Having taken up residence in Terrigal, on 19 October 1994 he was seen by orthopaedic surgeon Dr Douglass Seaton, of Double Bay. In his report to the applicant's then solicitors, Dr Seaton recorded:
"…Today he has a painful stiff back with pain radiating into his right hip in the groin area and going down the back of both legs, the right leg is slightly worse than the left. On clinical examination…..he had limitation in the range in his back because of severe erector trunci (ie back muscle) spasm and he was tender to pressure over the lower lumbo-sacral area. Straight leg raising was limited by 10 degrees on both sides. Reflexes, power and sensation were normal in both lower limbs. I looked at his x-rays, including the last lot taken on 4 March last year and these showed out the fact that he had advanced degenerative changes with a disappearing disc syndrome at the L4/5 level (ie one level above the lumbosacral junction). There was no evidence of spondylolisthesis in any of his x-rays.
In my opinion, this man has a long standing back injury which was caused by adjusting a 44 gallon drum in 1976, but aggravated by ongoing lifting and bending work as a Fire Officer….". (T documents folios 30 and 31).

In his later report (Exhibit A) Dr Seaton has expanded on his diagnosis:
"…he developed, as a result of this heavy lift (ie his original injury in 1976),degenerative changes in a pre-existing lumbo-sacral spondylolisthesis which was of an idiopathic nature, and also developed a degenerative disc at the L4/5 level. This, of course, is aggravated by heaving lifting and bending work. However, there is little to say that he did have any further severe back injury with his duties with the CAA when he ended up as Assistant General Manager of Rescue and Fire Fighting.
…he did have a definitive back injury in the accident of October 1976, but to some extent this was aggravated by his ongoing work over the many years he was with CAA.
….There is no doubt in my mind that there was a pre-existing condition in the form of an idiopathic type of spondylolisis with a pars defect on the left. This, however, does not seem to have caused very much problem.
….there is little or any evidence that he aggravated any pre-existing condition when he injured his back lifting the drum….".

On 3 November 1994, at the request of the applicant's solicitors, he was seen by neurologist Dr Geoffrey Coffey of Darlinghurst, who found:
"…His back pain is always present, but when severe it radiates down the front of the right thigh to the level of the knee.
….His gait was normal.
He carried out movements of his back slowly and carefully, due to stiffness and pain. He was able to accomplish a reasonable range of forward flexion of his back, but had to do this slowly and carefully. He stated that extension of his back produced the most pain…
In the lower limbs, there was no focal muscle wasting or weakness. Tendon reflexes were all intact. Sensory testing was normal.
He showed a mild restriction of straight leg raising….
I noted x-rays and CT scans of his lumbosacral spine which showed the presence of spondylolisthesis at the L5, S1 level, together with marked disc degenerative change at the L4, 5 level….". (T documents folio 34)

In his second report (Exhibit B) Dr Coffey stated:
"I felt, from the history he gave me, that he may well have sustained an acute disc rupture at this time (ie his original injury in 1976). He referred to x-rays and CT scans of his back showing "significant disc degeneration at the L4, 5 level, together with marked arthritic change in the facet joint of his low back region" as well as "a minor degree of spondylolisthesis at the L5 S1 level – which may have antedated his back injury".

In his oral evidence, Dr Coffey regarded the applicant's L5-S1 spondylolisthesis as being "congenital".
On 15 November 1994, by referral from his Terrigal general practitioner Dr Evershed, the applicant was seen by orthopaedic surgeon Dr JPH Stephen of Randwick and Chatswood who wrote:
"…the pain he describes is low lumbar and across to either side. He also feels it in the right buttock and right anterior thigh to the knee and on the left side in the groin. He gets right groin pain as well. The chief site of his pain however is the low back…
His posture was normal. He had no muscle wasting. He had a full range of lumbar movement with mild pain at the extremes, particularly extension. He could walk on heel and tiptoe without difficulty. He was mildly tender in the lower lumbar region. He had no signs of nerve root involvement in the lower limbs and his hips were clinically normal.…"

Dr Stephen provided his diagnosis as follows:
"His x-rays and his CT scan show a spondylolytic spondylolisthesis at the lumbo-sacral junction with slight slip and slight degenerative changes here. Above this at the L4/5 level (ie one level above the lumbosacral junction), there is very marked degenerative change indeed of the disc with slight forward retrolisthesis. This situation is almost one of bone on bone…." (T documents folio 38).

He made no comment on the relationship, if any, of the applicant's original 1976 injury to these findings.

He next was examined, this time for Comcare, by consultant surgeon Dr Hugh Marsden on 17 January 1995 who found no abnormal neurological signs, and remarked on "…a relatively normal range of (back) movement with apparent discomfort at the extreme ranges, a performance which is much better than one would expect having regard to the relatively advanced state of the radiological findings….". (T documents folio 52). He cited the conclusion of the report by a Dr Pasfield on the applicant's CT scan of his lumbar spine performed on 26 October 1994, which reads:
"Significant disc degeneration is seen at the L4/5 level (ie one level above the lumbosacral junction). Grade 1 spondylolisthesis seen at L5/S1 (ie the lumbosacral junction. Bilateral facet joint degeneration is seen throughout the lower lumbar spine. A pars defect is seen in association with the grade 1 spondylolisthesis at L5/S1 on the left side". (T documents folio 51).

He went on to diagnose:

"…It is possible that in the particular activity of lifting the drum of water there may have been some musculo-ligamentous stress to the region, but such an effect would be of a temporary and transient nature and could be expected to resolve completely after a reasonable period of conservative management, say a few days to a few weeks.
I believe that any such effects did in fact resolve completely under those circumstances.
In view of the radiological appearances of 26/10/94 demonstrating advanced constitutional degenerative changes in the lumbosacral spine, it probably cannot be denied that that disorder consisted in a limited and minor degree at the time of the work episode of 15/10/76; in which case it probably could not be denied that there may have been some contribution to that pre-existing disorder by way of aggravation from the effect of the work activity as described…
….I consider that the effect of the work activity on 15/10/76 has now long since resolved completely and continuing complaints and disorder are entirely of a pre-existing constitutional nature unrelated to his employment….". (T documents folios 51 and 52).

Again as arranged by Comcare, he was examined on 25 July 1995 by consultant occupational physician Dr Christopher Minogue. He found the applicant's lumbar spinal movements to be restricted to about half the normal ranges, with lower back pain with all such movements, especially extension and straightening from flexion. He was tender over the L4/5 and L5/S1 interspaces, and straight leg raising was mildly limited in both legs, relatively more on the left side. He had no neurological signs. He concluded:
"…His primary diagnosis is of endstage L4/5 (ie one level above the lumbosacral junction) disc degeneration. Recent investigations have also raised the possibility of a minor L5/S1 (ie lumbosacral junction) spondylolisthesis but most of his symptoms are probably emanating from the L4/5 level. I accept that his symptoms are valid."

Dr Minogue offered no opinion regarding the relationship of these findings to the applicant's original work injury. (T documents folios 69 and 70).
The applicant's solicitors arranged for him to see orthopaedic surgeon Dr John Tuffley a year later, on 8 August 1996. He noted:
"He says that there is a constant lower back pain present and that this is flared by episodes of physical activity. The pain extends into the right buttock and right thigh and also into the region of the right groin. Activities such as prolonged standing, squatting or prolonged walking, tend to aggravate his right sided lower back pain and right proximal leg pain. He says that he can drive a car for a period of four hours (fitted with special seats) but that he is quite stiff in the lower back after driving for such a period." (Exhibit 1 p 2)

Dr Tuffley's abnormal findings were that the applicant could only flex forward enough to place his fingers on his mid-shins, lateral flexion was limited to 75% or normal, and straight leg raising of both legs was restricted to 80 degrees. He had no neurological signs. (Exhibit 1 p 3).
He went on to opine that the original injury was "most unlikely" to be "totally responsible for the current state of this gentleman's L4/5 disc (ie one level above the lumbosacral junction" representing "a significant aggravation of a pre-existing age-related degenerative change within the L4/5 disc". . He added "Further episodes of pain which occurred while he was working at the Darwin Airport represent further more minor aggravations of his degenerative disc disease at the L4/5 level." (Exhibit 1 p 4). In his oral evidence he felt that "about two-thirds" of the applicant's "present state" was due to the original injury, but added that it was impossible to calculate exactly how much of this is due to natural degeneration, this requiring "an educated estimate".
Two months later, on 25 October 1996 rheumatologist Dr Ronald Hazelton saw him in medico-legal consultation for the solicitors acting for Comcare. He recorded the applicant's report that "…he always has lower back pain…. Increased with physical activity…he can only stand for about forty to fifty minutes before he has severe spasm in the back". (Exhibit 4 p 2). On examination he found all of his back movements to be limited in range on formal testing, but less limited when dressing and undressing, with no limitation in straight leg raising, and no neurological abnormalities. (Exhibit 4 p 3). He remarked on "some discrepancy between his reporting of symptoms and his appearance….". (Exhibit 4 p 4).
Dr Hazelton referred to Dr Hefner's report, of the lumbar spine x-ray changes of "marked disc degeneration", of less than a year after the original injury, from which he states that the applicant "clearly had advanced degenerative disease of the lumbar spine at that time", and that the original injury may have temporarily aggravated his symptoms". He added that "his subsequent reporting of symptoms is clearly the natural progression of his severely degenerative lower lumbar spine". (Exhibit 4 pages 3 and 4). In his oral evidence Dr Hazelton stated his opinion that the 1976 incident had had a material effect, but no longer was playing any part. He described the applicant's present condition as being due to multiple intervertebral disc level degenerative changes, with two main components, viz

lumbosacral (ie lumbosacral junction) intervertebral disc degeneration with spondylolisthesis with associated zygoapophyseal joint degeneration and a constitutional pars defect; and
marked degenerative changes of the L4-5 (ie one level above the lumbosacral junction) intervertebral disc with associated facet joint changes.

In his opinion the 1976 injury had not accelerated these changes in any way.

In the past 4 ½ years there is only one other report available of a medical examination of the applicant, of orthopaedic surgeon Dr Peter Winstanley, arranged by the applicant's solicitors, held on 7 February this year. He noted:
"The patient has had persistent symptomatology present within his lumbar spine. He experiences pain across his lumbar area associated with referral into his buttock, thigh and groin area with the right side predominating. He has difficulty in performing activity which requires persistent fixed posture such as sitting or standing. He is able to drive, but requires a special seat. He finds that his discomfort is aggravated by a change of beds. He takes Panadol medication on an intermittent basis for his symptomatology.
The patient has learned to live within the limitation of his lumbar spine. He finds that he has been able to adjust to his spinal discomfort. He finds that his activity level is variable between days. He presently lives on a five acre property. He is able to perform most activities on the property, but he has good and bad days, spacing his activity level according to his lumbar symptomatology.
Clinically, the patient stands without specific deformity associated with his lumbar spine. He is able to flex to mid-tibia. He has some discomfort at the extreme of extension. He has reduced lateral flexion of 75%. He has no inappropriate signs. Neurological examination of his lower limbs shows grade 5/5 power in all muscle groups with intact sensation, tone and deep tendon reflexes. I have perused x-rays which he had at consultation from 1993 which show that he has degenerative disc disease present at the L4/5 level (ie one level above the lumbosacral junction). Further x-rays were present in 1994 which showed that he had significant degenerative change associated with his L4-5 disc. There was what appeared to be a spondylosis present at the L5 (sic). There was no evidence of other significant degenerative change present within his lumbar spine". (Exhibit D pages 1 and 2).

He stated:

"In my opinion, the history which was related to me of the incident in 1976 would be consistent with an aggravation of pre-existing degenerative disc disease. In my opinion, such an incident would not be such that it would cause damage to a normal disc… In my opinion, without the incident in 1976, the patient would have developed symptomatology within his lumbar spine if he continued in his normal work activity in the vicinity of five to seven years from the date of 1976. This is that his symptoms were prematurely brought on by the incident in 1976". (Exhibit D p 3).

In his oral evidence he said that if the 1976 incident had not occurred, the applicant's symptoms would have progressed to their present state by now; and they probably would have commenced at about 1981.
Before proceeding to examine the medical issues, the Tribunal defines some of the terms used by different medical witnesses in their reports, taken from Dorland's Illustrated medical Dictionary (26th edition):

pars defect: a malformation of the bone in the posterolateral part of a vertebra
retrolisthesis: retrospondylolysis, or backwardly displaced spondylolisthesis (see below)
spondolylolysis: typographical error for spondylolysis
spondylitic: pertaining to inflammation of vertebrae
spondylolisis: breaking down of a vertebra associated with congenital defects in the vertebra
spondylolisthesis: forward displacement of a vertebra above the next vertebra below
spondylolytic: pertaining to spondylolisis (see above)

Consideration

The nature of the original Injury
The applicant's Melbourne general practitioner originally diagnosed back muscle spasm in 1976; and, from the information from the general practitioner's clinical notes, the Commonwealth medical Officer in Darwin, Dr Stewart, adopted the same diagnosis. The Tribunal assumes that no x-rays were taken of the applicant's lumbar spine at that time. However, a year later, Dr Hefner diagnosed, on his clinical findings and from x-rays, an injury of what he described as being of the L4-5 intervertebral disc.
As mentioned in the above chronology, the Tribunal has noted that x-rays available to Dr Baddeley at the time of the applicant's first consultation with him five years after his original injury were quoted by Dr Baddeley as showing six lumbar vertebrae instead of the usual five. However there is no such reference in any other of the x-ray or CT scan reports, before or after that 1981 consultation. To minimise any confusion that this may cause, for the sake of clarity the Tribunal has designated references in reports to the L5-S1 level as "the lumbosacral junction", and the L4-5 as being "one intervertebral disc level above the lumbosacral junction". The latter is the disc level at which the tribunal understands Dr Hefner to have diagnosed the applicant's disc injury.
The Tribunal also has noted that, at Dr Hefner's first examination of the Applicant, he found symptoms and signs affecting the applicant's left leg, which resolved over the next week. Four years later, when the applicant was first examined by Dr Baddeley, his complaints now affected his right leg, not his left; and, ever since, although at times his left leg has been mildly affected, invariably it has been the right leg alone or predominantly in which the applicant has reported pain. In addition, of the observations of the applicant's clinical findings recorded by the various doctors over the years, only Dr Hefner in 1977 found any signs to indicate the presence of neurological complications of the intervertebral disc injury, and these affected the applicant's left leg, viz "a possible suggestion of weakness in the left great toe extensior (sic) muscle…also a suggestion of loss of sensation on the dorsum of his left foot". At all subsequent medical examinations of the applicant the only other possible reference to any neurological complicating features being present was by Dr Baddeley at his review consultation in 1983 of "no significant neurological symptoms other than pins and needles of recent time affecting both legs and feet" but his neurological examination was described in his 13 December report as "largely unremarkable" and in his 15 December report as "normal neurological status": in other words, these were not clinically significant. None of the doctors seeing the applicant on later occasions has recorded making any observations of neurological symptoms or signs.
These features indicate to the Tribunal that the nature of the applicant's injury had at least partly changed at some time in the period 1977 to 1981.

Ever since Dr Baddeley's re-examination of the applicant in 1983 two main changes in his lumbar spine x-rays and CT scans have consistently attracted comment by the medical witnesses as designating his possible injury or injuries, viz spondylolisthesis with associated changes at the lumbosacral junction, and degenerative changes in the intervertebral disc at one level above the lumbosacral junction. The Tribunal now examines each of these

(a)Lumbosacral junction spondylolisthesis with associated changes

There was general agreement among the medical witnesses that these antedated the 1976 injury. Dr Seaton has described the development of degenerative changes in this pre-existing spondylolisthesis to the original injury, but in his second report has said that his "spondylolisis" had not caused the applicant "very much problem"; although the tribunal recognises that spondylolisthesis and spondylolisis are not the same conditions, it accepts that they are related and are parts of the same pre-existing condition in this applicant. No other medical witnesses have attributed any aggravation of this spondylolisthesis to this subject injury.
Accordingly the Tribunal finds that this lumbosacral junction spondylolisthesis has not been affected by the 1976 injury.

(b)Intervertebral disc injury at one level above the lumbosacral junction

There was no medical opinion stating that the degenerative intervertebral disc injury at one level above the lumbosacral junction was not related to the original injury.
On the nature of this degenerative intervertebral disc injury two varying medical opinions were expressed:

Drs Seaton and Coffey opined that the disc degeneration was caused by the injury; and
Drs Marsden, Tuffley, Hazelton and Winstanley opined that a pre-existing disc injury was present, and aggravated by the 1976 incident.

As well as the greater weight of medical opinion favouring aggravation of a pre-existing disc injury, the Tribunal has taken note of the observation made by Dr Hazelton that by one year after the 1976 injury, the x-rays available to Dr Hefner showed that a significant disc injury had occurred at the level of one above the lumbosacral junction. It accepts that this indicates that although the applicant, in Dr Hazelton's words, "first reports symptoms in October 1976 he clearly had advanced degenerative disease of the lumbar spine at that time", the inference being that the x-ray changes noted by Dr Hefner were inconsistent with being of only one year's duration.
Accordingly the Tribunal finds that, on balance of probabilities, the applicant's 1976 injury aggravated a pre-existing disc injury at the level of one intervertebral disc level above the lumbosacral junction.
The duration of the original injury
The Tribunal has noted that as cited by Dr Baddeley, by the time of the applicant's first referral to him in 1981, five years after the applicant's original injury, his x-rays showed only mild changes affecting the lowest lumbar vertebra (referred to by him as L6); the nature of these is not clear, although in his second report (Exhibit H report of 15 December ) of two years later he refers to the applicant having "chronic disc degeneration" . Although the Tribunal takes due note of the applicant's history of him having suffered further recurrences of his back pain, it interprets this apparently improved 1981 x-ray finding as probably indicating that the injury diagnosed four years earlier by Dr Hefner to the intervertebral disc at one disc level above the lumbosacral junction had at least lessened. This also accords with Dr Hefner's earlier prognosis that "…all disc injuries usually run an intermittent course over a number of years,….either completely resolving in a number of cases…." (T documents folio 11), and that "…he could make a full recovery from this condition". (T documents folio 12).
However the applicant returned to Dr Baddeley two years later in 1983 because of the persistence of his pain. As noted above, in the intervening period, the clinical features of the applicant's back pain had partly changed. This seems to have followed the incident, to which the applicant referred in his evidence, of the worsening of his back pain after directing fire fighting operations in an incident involving a Cessna aircraft and a fuel tanker at Darwin Airport. As well, this also seems to have been after the incident of the sudden worsening of his back pain as he was getting out of a car. In addition, by this time for about two years, he had been engaging regularly in his Saturday brick laying work in the building of his house. The first of these three incidents seems to have been clearly related to the applicant's work.
The Tribunal accepts, and so finds, that any or each of these could have, and probably did, aggravate his original disc injury, in the fashion as described by Dr Hefner, that "all disc injuries usually run an intermittent course over a number of years". (T documents folio 11).
However the question remains of how long the effects of any such subsequent aggravation or aggravations have continued. The Tribunal has noted that, in the decade from 1983 to 1993, according to the records provided by the Hospitals Contribution Fund of Australia (Exhibit E), the applicant required no form of medical consultation for his back problems. These records also show that he had 58 chiropractic treatments between 7 May 1987 and 2 February 1991, the majority (46) being in the year between 7 May 1987 and 21 May 1988 inclusive. What ever may have been the reasons for these treatments, this would be consistent with his back complaints having at least significantly lessened for nearly four years ie up until early 1987. The Tribunal had no evidence presented to it regarding the nature of any injury or illness suffered by the applicant over the ensuing 1987-1988 period during which he had chiropractic treatments, including whether or not they were for back pain complaints and/or incidents of injury; and, if so, whether any such complaints were relevant to, and either advanced or prejudiced the applicant's present case. This includes there being no reference to any incident or injury in this period in any of the medical reports from 1993 onward. Accordingly the Tribunal can only accept the evidence as has been or not been presented to it, and assume that over the ten-year period 1983 to 1993 the applicant's back complaints required no medical or surgical, including orthopaedic, review; and that, at least until early 1987 they were quiescent.
This presumably quiescent period in the applicant's history is interpreted by the Tribunal to indicate that, on balance of probabilities, his back complaints for which he is making his claim had at least largely subsided during this period; and on the available evidence, estimates that it did so some time after 1983 and by early 1987 at the latest.
Furthermore, the Tribunal has available the opinions of four of the medical witnesses about the extent to which, if any, the applicant's 1976 injury is contributing to his present back condition. Dr Tuffley provided an "educated estimate" that two-thirds of his present condition is attributable to that injury. Dr Seaton, in 1994, has stated that "this man has a long standing back injury which was caused by adjusting a 44 gallon drum in 1976, but aggravated by ongoing lifting and bending work as a fire Officer", but did not provide any time estimate, and could not be found by the applicant's solicitors to provide further evidence on this point to the Tribunal. Thus Dr Tuffley has no other support, with Drs Marsden, Hazelton and Winstanley, all stating categorically to the opposite that that injury is playing no current part. Dr Winstanley went as far as to say that if the applicant had not suffered his 1976 injury, his back symptoms would still have progressed to their present state.
Accordingly the Tribunal finds that the applicant's 1976 injury has no current effect. It also finds, on balance of probabilities, that its effect had ceased some time after 1983 and by early 1987 at the latest.
It follows in our view that there is not and has not been for many years a material contribution by the 1976 incident to the applicant's present lower back condition.
We are also satisfied that the applicant left his employment by the Commonwealth in 1991 for reasons not associated with his claimed condition. Clearly he was dissatisfied with changed management structure for the fire service and decided to accept voluntary retrenchment rather than continue in employment. The evidence satisfied us that the applicant was regarded as an efficient and experienced officer with his own particular views on how the fire service should be managed.
He made deliberate choices in relation to ceasing employment and moving to Norfolk Island. Those choices do not reflect any incapacity in relation to his Commonwealth employment but do reflect dissatisfaction with aspects of the employment.
If it be correct that the applicant has an incapacity for work we are not satisfied that incapacity would prevent the applicant engaging in suitable employment equivalent to that of an Assistant General Manger (or the current equivalent). In that sense we would accept that the decision under review was correct and should be affirmed.
However, we have come to the view that the correct (and preferable) decision in this case is that the applicant does not suffer an injury as defined resulting in incapacity for work so that there is no liability under section 14 of the Act.
In the circumstances we will affirm the decision that the applicant is not entitled to compensation for incapacity for work for the reasons set out above.
The decision under review will be affirmed.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Dr J B Morley, RFD and Major-General JN Stein, AO (Retd) (Members)
Signed:         Teri Shea
  Associate
Date/s of Hearing  13-15 February 2001
Date of Decision  23 May 2001
Counsel for the Applicant        Mr Thompson
Counsel for the Respondent    Mr O'Donovan