Olliek and Australian Postal Corporation
[2003] AATA 1085
•30 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1085
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/273
) N2001/1692
GENERAL ADMINISTRATIVE DIVISION ) Re NASRALLAH OLLIEK Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr J D Campbell, Member Date 30 October 2003
Place Sydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal :
(i) Sets aside the decision under review in relation to matter N2001/273 and in substitution therefor, decides that liability for compensation for Mr Olliek’s lower back injury continues from 11 January 2001 and the Respondent is liable to pay compensation pursuant to sections 14, 16, 19, 20 and 21 of the Safety, Rehabilitation and Compensation Act 1988.. No compensation is payable in respect of sections 24, 25 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of low back injury.
(ii) In relation to matter N2001/1692, the Tribunal affirms the decision under review.
(iii) The Respondent is to pay the Applicant’s reasonable legal costs as agreed or taxed in accordance with the Tribunal’s Practice Direction dated 18 May 1998, in relation to matter number N2001/273.
..............................................
Ms S M Bullock Presiding Member
CATCHWORDS
COMPENSATION - Low Back Injury - Continuing Liability - Permanent Impairment – Exaggeration
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19, 20, 21, 24, 25, 27
REASONS FOR DECISION
30 October 2003 Ms S M Bullock, Senior Member Dr J D Campbell, Member 1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Nasrallah Olliek, of two reviewable decisions made by the Respondent, the Australian Postal Corporation. The reviewable decisions are:
·9 February 2001, as varied on 14 February 2001, that the Respondent is not liable to pay compensation to Mr Olliek in respect of any injury to his back. The cessation of liability encompasses all relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 including sections 14, 16, 19, 20, 21, 24, 25 and 27 (T63, T64, N2001/273, “Bundle 1”).
·26 October 2001, which determined that Mr Olliek did not have a permanent impairment in respect of sexual dysfunction (T15, N2001/1692, “Bundle 2”). That reviewable decision affirmed a determination dated 4 September 2001 (T10, N2001/1692, Bundle 2).
2. A hearing was held in Sydney before the Tribunal on 12, 13 and 14 February 2003. The Applicant provided oral evidence to the Tribunal, as did his wife, Mrs Susan Elizabeth Olliek. Concurrent evidence was provided by Dr V Maniam, Orthopaedic Surgeon and Dr D Maxwell, Orthopaedic Surgeon. Mr Olliek was represented by Mr P Stockley of Counsel. The Respondent was represented by Mr G Johnson of Counsel. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents": T1-T66, N2001/273, Bundle 1; T1-T17, N2001/1692, Bundle 2). The Tribunal also took into evidence the following exhibits:
EXHIBIT
DESCRIPTION
DATE
A1
Report of Dr V Maniam, Orthopaedic Surgeon
25 July 2001
A2
Report of J Roberts, HSA Medical Adviser
18 December 1998
A3
Report of Dr V Maniam, Orthopaedic Surgeon
16 January 2003
A4
Medical Certificates from Dr V Maniam (A - D)
A5
Amended Workplace Assessment Review
23 May 2002
A6
Clinical Notes from Dr H Chan, General Practitioner
Various
R1(a)
Report of Dr D Maxwell, Orthopaedic Surgeon
28 October 2002
R1(b)
Report of Dr D Maxwell, Orthopaedic Surgeon
28 October 2002
R2
Report of Dr D Maxwell, Orthopaedic Surgeon
3 February 2003
R3
Report of Dr P M Katelaris, Urological Surgeon
22 November 2001
R4
Report of Dr J H O'Neill, Consultant Neurologist
4 September 2001
R5
Report of Dr M Downes, Orthopaedic Consultant
7 December 2000
R6
Video 22/11/2001-1/12/2001 and report 7/12/2001
R7
Video 18/7/2002-21/7/2002 and report 21/7/2002
R8
Report of Dr D Maxwell, Orthopaedic Surgeon
3 February 2003
R9
Report of Dr J H O'Neill, Consultant Neurologist
4 September 2001
R10
Report of Dr J H O'Neill, Consultant Neurologist
7 November 2001
R11
Report of Dr J H O'Neill, Consultant Neurologist
11 February 2003
R12
Report of Dr J H O'Neill, Consultant Neurologist
13 March 2002
R13
Report of Dr G Schaffer
10 August 2001
ISSUES
3.The issues in this matter are:
(i) Whether or not in respect of Mr Olliek's lower back condition, there is continuing liability beyond 11 January 2001 in respect of sections 14, 16, 19, 20, 21, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988;
(ii) Whether or not Mr Olliek has permanent impairment in respect of sexual dysfunction as a result of his back injury.
LEGISLATION
4. A determination in this matter requires consideration of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
5. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of "injury" under subsection 4(1) of the Act which states:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
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.”
6. Section 14 of the Act deals with compensation for injuries and as relevant states :
“14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
7. Section 16 of the Act deals with compensation for medical and other expenses.
8. Section 19 of the Act deals with compensation for injuries resulting in incapacity.
9. Section 20 of the Act deals with compensation for injuries resulting in incapacity where the employee is in receipt of superannuation pension and section 21 of the Act deals with compensation for injuries resulting in incapacity where the employee is in receipt of a lump sum benefit.
10. Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and states as relevant:
“24 Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
…”
11. Section 25 of the Act covers an interim payment of compensation.
12. Section 27 of the Act deals with compensation for non-economic loss.
EVIDENCE
evidence of mr nasrallah olliek
13. Mr Olliek joined Australia Post on 26 October 1978 commencing as an Assistant Technician. He undertook a variety of further training including in-house training and completed a three year TAFE course which qualified him as an Electronics Technician and provided him with the relevant trade certificate.
14. Mr Olliek described a number of back injuries he experienced at work. On 7 September 1984, he hurt his lower back and was approximately three months off work requiring physiotherapy and medication. Mr Olliek returned to the Mail Centre at Alexandria on the same duties as he had undertaken prior to that initial injury. Mr Olliek's duties included installation of electrical machinery, repairs and maintenance of machines, cleaning and replacement of parts, installing light fittings and power points, modification of machines and monitoring the performance of various machines and mechanisms. Mr Olliek also undertook work on the facility's forklift, including battery maintenance and his duties required him to be on his feet or climbing ladders and using tools of a manual or power type. On occasion he would undertake duties sitting down. There was also lifting, stretching and bending involved in Mr Olliek's work. Mr Olliek noted that the official weight limit at Australia Post is 16 kilograms but on occasions, he believed that he may have lifted articles weighing more than this limit.
15. A second work incident occurred on 5 May 1992, when he was with another worker attempting to check a forklift truck battery. When lifting the battery from the forklift, he experienced low back pain. Mr Olliek estimated that the battery weighed approximately 560 kilograms. After that incident, Mr Olliek had approximately one month off work and was treated by his then General Practitioner, Dr H Chan. X-rays were taken and Mr Olliek was treated with medication. When he returned to work, Mr Olliek's back was stiff.
16. A third incident occurred at work on 27 May 1993, when Mr Olliek was pulling out a battery from a forklift truck. He described feeling sharp pain in his lower back and pain in his right leg. Mr Olliek again consulted his General Practitioner, Dr Chan, and was off work for approximately two months. Mr Olliek later returned to his usual duties. After that, his back was sore but he had good and bad days. He continued work on a full-time basis. There were further periods away from work in 1995 for a hernia repair and in 1997, hospitalisations for a kidney stone condition.
17. Just prior to December 1998, Mr Olliek was working at the State Mail Centre at Alexandria, which later became known as the Sydney East Letter Facility. He undertook shift work comprising eight hours and ten minutes per day with one day off work each fortnight. Sometimes Mr Olliek worked overtime. Mr Olliek described his back condition at that time as aching from time to time and he believed that he had a back muscle problem. Mr Olliek would consult Dr Chan if required.
18. On 15 December 1998, Mr Olliek was working with a colleague "George", attempting to check a forklift truck battery. The forklift truck was near a wall and there was a confined space in which to work, requiring Mr Olliek to adopt an awkward position. George was pushing the battery while Mr Olliek was pulling it at a 90 degree angle to his body, at waist height. Mr Olliek felt a heat sensation in his lower back. He reported this incident to his supervisor at about 1..30pm at the end of his shift. Mr Olliek stated that he returned home and did not consult a doctor. That evening after the incident, Mr Olliek stated that he experienced pain in his lower back and down both his legs. The next day he attended the Australia Post Medical Facility, was examined by a doctor, had X-rays and was told that he had strained his back. Mr Olliek was given some time off work. He also consulted Dr Chan, his General Practitioner, who prescribed medication and recommenced specialist's assessment through Dr V Maniam, Orthopaedic Surgeon. Physiotherapy was also organised. Mr Olliek stated that he was slow in his movements as a result of this incident. He eventually returned to work after what he believed to be an absence of approximately one year.
19. In early 1999, Mr Olliek was provided with a "TENS" machine by Australia Post, on the recommendation of his physiotherapist, to help him with pain management. Mr Olliek's return to work was on limited hours on light duties, initially for approximately three hours, every second day. In 1999, Mr Olliek believed he was working on and off and continued to provide medical certificates for time off work and recommending work restrictions. He started to feel symptoms of pain in his left leg, down his toes and in the left foot in 1999. He was also experiencing pain in his right leg down to his right knee. Later in evidence, Mr Olliek stated that he believed that he first experienced right leg pain in 1993 and experienced this for a two or three year period, but then it subsided. Leg pain was intermittent, Mr Olliek stated, between 1993 and 1998. Mr Olliek stated that he had told specialists in recent times about his right leg symptoms. Later in evidence, Mr Olliek estimated that leg symptoms occurred within one or two weeks after December 1998 and occurred for no particular reason.
20. After the December 1998 work incident, physiotherapy provided some relief but the pain later returned. There was also some relief provided by the TENS machine. Mr Olliek stated that the difference between the December 1998 incident consequences, compared to previous work injuries, was that the pain did not go away as it had done with those previous incidents. There was always some level of pain, but with good days and bad days. Mr Olliek denied that he did not demonstrate to Dr M Gliksman, Occupational Physician, all of the movements that he was capable of or indeed, if he did have difficulties with various movements, that he was exaggerating these difficulties. Mr Olliek denied that if he had the difficulties he described to the doctors, that he would need a walking frame or a walking stick. In relation to the examination by Dr G Carr, Rheumatologist, Mr Olliek denied exaggerating his symptoms. Any reference by Dr Carr to a right leg limp was, Mr Olliek stated, incorrect. Mr Olliek told the Tribunal that he always limped with his left leg. Mr Olliek denied that he was able to bend more than he had indicated to doctors.
21. Specifically considering the examination by Dr Maxwell, Mr Olliek denied grabbing his back in an exaggerated gesture of experiencing great pain. Mr Olliek also denied that he exaggerated his ability with bending or getting out of a chair without reliance on the armrest to push himself up. Mr Olliek also denied that he was not being truthful when he told Dr Maxwell that he experiences numbness in his lower limbs. Mr Olliek explained that for him, numbness involves him feeling a "tickle" feeling and not being able to completely feel sensation in his lower limbs. In relation to an examination by Dr J C Downes, Orthopaedic Consultant, Mr Olliek also denied exaggerating. He also denied exaggerating to Dr J H O'Neill, Consultant Neurologist. Mr Olliek stated that he walked with the limp because of pain in his back. Referring to the examination by Dr M Walden, Consultant Psychiatrist, Mr Olliek denied that he stayed in his marital relationship because of his daughter. It was absolutely not true, he stated, that he was exaggerating his sexual difficulties.
22. By late 1999, Mr Olliek had increased his work hours to four hours per day, every second day, working three days per week. Mr Olliek’s work restrictions were the hours worked, weight restrictions and bending. His duties in 1999 included the cleaning of machinery, monitoring and maintaining machinery parts and also undertaking light vacuuming.
23. Following a work assessment in February 2000, Mr Olliek was subsequently provided with the variety of suitable tasks including cleaning machinery and parts, coding and data entry in the office. Mr Olliek consulted Dr V Maniam, Orthopaedic Surgeon, about these duties which were approved and his work increased to three hours per day, five days per week. In May 2000, Mr Olliek was referred by Australia Post to a psychologist whom he consulted on five occasions in addition to a number of telephone contacts. The psychologist provided him with strategies to help him cope with his pain including relaxation techniques. There was no real improvement. Mr Olliek continued to experience pain as previously described. His duties were upgraded to four hours, five days per week. On 11 January 2001, liability for compensation ceased. In September 2001, Mr Olliek stated that his work continued at four hours per day, five days per week and he continued to consult Dr Maniam about this.
24. In November 2001, the period depicted by the first video (Exhibit R6), Mr Olliek was working five days per week, four hours each day from 6am until 10am. This was also the case in July 2002, the period covered by the second video (Exhibit R7). In May 2002, a further workplace assessment was made. Later in 2002, Mr Olliek's work hours were increased to five hours per day, five days per week and by 9 August 2002, Mr Olliek believed he was working six hours per day, five days per week.
25. Mr Olliek told the Tribunal that he stands up when checking and testing machines. He also undertakes stores and inventory work, checking new parts, coding these and entering the data on the computer. The duties now include activities which require him to adopt a variety of positions including standing, sitting and moving around. Mr Olliek's clerical duties include the updating of maintenance and technical manuals. Approximately two months ago, Mr Olliek was provided with an ergonomic chair, which is of great benefit in supporting his back. Mr Olliek continues to work from 6am, ceasing at 12 midday. He has a half an hour break during this period. He gets up each morning at about 4am.
26. At the end of the working day, Mr Olliek described his back as aching. It is a long day. He described going home from work and most usually lying down and applying the TENS machine. By midday, Mr Olliek stated that his back is hurting. There has been no improvement in Mr Olliek's low back symptomatology, he stated. The left leg pain is still there and he experiences this at the back of his left leg to the toe of his left foot and also in his right leg down to his knee.
27. After work, Mr Olliek may on occasion stop off to obtain small amounts of shopping. Mr Olliek denied that in the video he was depicted carrying a fully laden and heavy bag of shopping. Mr Olliek said that he is not a cripple. He would go for a walk later in the day if he is able. He drives to work, a journey of approximately 25 or 30 minutes. The maximum period he is able to drive is approximately 40 or 50 minutes. Last year, Mr Olliek drove between 15,000 or 20,000 kilometres. If Mr Olliek takes a long trip in a car, he must stop after a short period to get out of the car, walk around and stretch. He owns a Toyota Corolla vehicle with automatic transmission. Neither the Corolla nor previous cars had any adjustments or aids to assist him with his back condition. Mr Olliek used to drive to places such as Port Macquarie or Merry Beach but cannot undertake such journeys any longer.
28. For pain relief Mr Olliek takes between two and four "Panadeine Forte" tablets per day for pain relief. He also takes "Lovan", one tablet per day to help him relax and "Zantac", one tablet per day for his stomach problems. He was taking this medication in November 2001. Mr Olliek consults Dr Maniam for review approximately once per month. Mr Olliek stated that it had been recommended by a physiotherapist that he undertake home exercises, but he ceased these activities in about 2000 because the exercises were causing him pain.
29. In the past, Mr Olliek has enjoyed working on cars but could not do this now. He has difficulty reaching over to the glove box in the car and he cannot bend into his car. In terms of the video footage, he believed he was slow getting in and out of his car and in terms of the appearance of him being at ease in alighting from his car or entering it, he had good and bad days. Mr Olliek could not recall the particular days depicted in the video and whether or not he was in pain on those days. He denied that the video indicated a greater ability to bend than he had described to doctors. Mr Olliek stated that the video footage of him bending over his car looking at the engine space, was no more difficult than what he does at work. Furthermore, Mr Olliek noted that he was bending his knees in order to allow him to bend, either to look in at the engine space or to pick things off the ground. The video coverage showed Mr Olliek affixing a weather shield to the side panel of his car with apparent ease. Mr Olliek stated that this was also similar to the duties he performed at work. In relation to his earlier evidence that he had not affixed any accessories to his car since 1998, Mr Olliek told the Tribunal that he had misunderstood the question and did not consider the weather shield as an accessory. He believed he was replacing something.
30. Since 1998, Mr Olliek described having a sense of loss of not being able to do what he used to do in many aspects of his life. Mr Olliek was concerned about his inability to work like he used to. He missed undertaking activities with his daughter, particularly his inability because of back pain to continue on with activities with her at "Little Athletics". He used to help on the athletics field, recording races, undertaking marshalling activities and measuring the lengths of shot put distances or high jumps. Mr Olliek acknowledged that back pain did not stop him recording races or undertaking marshalling activities but stated that it did stop him bending down in order to put the measuring tape along the ground to measure the long jump or the shot put and lifting the athletics equipment.
31. Mr Olliek became upset during the hearing when discussing his inability to have firm hugs with his daughter stating that he would say to her "For God's sake, mind my back". Mr Olliek denied that he was deliberately crying to impress the Tribunal or that he was exaggerating his feelings to make out that his incapacity was more than it was in reality. In recent times with his work hours increasing, that has improved his self esteem. Mr Olliek described being irritable with his wife at home from time to time. He also described difficulties in relation to his sexual functioning. Mr Olliek stated that because of the pain in his back, he is unable to complete sexual intercourse with his wife. This makes him feel "like half a man". Prior to the December 1998 work incident, Mr Olliek stated that he would enjoy full sexual relations with his wife. Since the work injury in December 1998, he has not been able to engage in normal sexual activity.
32. Mr Olliek stated that he used to garden and mow the lawn on a normal suburban block. Since December 1998, he has organised friends or paid someone to do the lawns. He is now confined to watering the garden around his house. He will undertake minor repairs and can work on his car. Because of his back he is unable to undertake heavy cleaning and cannot lift. He is unable to prepare or cook the Lebanese food that he used to enjoy preparing. The difficulty in this regard is that he must stand for a long time mixing the ingredients, using a kneading-type action, which aggravates his back. Mr Olliek stated that he is able to dust spider webs and can fix door locks. He is unable to paint the house. Mr Olliek is unable to change the spark plugs in his car because he is unable to bend over the bonnet or to clean the oil filter.
33. Mr Olliek stated that he used to fish from wharves, beaches and rocks and cannot do this now because the action of throwing a fishing line and pulling it in hurts his back. Mr Olliek stated that he will go for a walk three times per week, walking approximately 400 metres. He must stop every 200 metres or so because he experiences pain in his lower back. These breaks occur after walking for approximately 25 or 30 minutes. It is easy for Mr Olliek to walk on the flat rather than on grades. On hills, the pain in his lower back and in his left and right leg increases. He must use a handrail if going upstairs. On the video coverage, Mr Olliek was seen walking up steps on one occasion, not using the handrail, and on the other occasion he used the handrail. Mr Olliek explained that some days he is better than others. The pain he experiences in his back and legs makes him slower, especially in his legs. Mr Olliek denied that reports to doctors, including Dr Maxwell, about his limp or being observed to limp on medical examination, were exaggerated. What doctors reported was their opinion, Mr Olliek told the Tribunal. Again, Mr Olliek stated that he has always walked with a limp. On seeing the video however, Mr Olliek acknowledged that on some occasions it appeared that he was not limping but stated that on other occasions he was limping. Mr Olliek's explanation for the different presentations was that it depended on how he was feeling on the particular day.
34. Mr Olliek told the Tribunal that the back pain impacts upon his sleep and he sleeps with a pillow between his legs. It takes him some time before he goes to sleep. Before December 1998, Mr Olliek would meet with friends, visit them in their homes, or go to a club and have a few drinks. Mr Olliek does not do that any more, apart from visiting one good friend, “Sam” or Mr Olliek’s brother, citing the reasons for this including the distance he has to travel and being uncomfortable sitting for long periods of time. He stated that he often but not always, takes a back support or medication when attending social occasions.
35. When questioned about the video depicting Mr Olliek either standing or seated, chatting to a man or a number of people at the garage, Mr Olliek noted that such activity is no different to what he does at work. Mr Olliek told the Tribunal that his back condition prevents him from travelling by air overseas. He last travelled in this way about seven or eight years ago on a world trip through the Middle East. Mr Olliek stated that he is unable to sit on aeroplanes because of his back pain and also cannot carry luggage. He would dearly love to visit his mother in Lebanon as she is in her eighties.
36. Mr Olliek told the Tribunal that he would be prepared to work full-time as long as he received help with his pain as it is his back which restricts him.
evidence of mrs susan elizabeth olliek
37. Mrs Olliek stated that she and her husband married in 1982. Mrs Olliek stated that when she first married Mr Olliek, he was adventurous, liked bush walking, was spontaneous and outgoing but in essence is a quiet, reflective person. Their daughter, "Amanda", was born in 1985 and is now in Year 12. Mrs Olliek is a trained midwife. Mrs Olliek works part-time in a nursing home, 24 hours per week undertaking shift work mainly on Friday, Saturday and Sunday and sometimes during the week. Mrs Olliek has always worked throughout her married life. She described herself as healthy and active.
38. Mrs Olliek informed the Tribunal that her husband has gradually changed over the years but specifically since 1998, he has become less spontaneous. He is fearful and guarded in undertaking activity, mostly in terms of leisure activities and has put on weight with less activity. Before 1998, Mrs Olliek described undertaking a great deal of bushwalking with her husband in a number of National Parks. They last walked in 1997, she believed. The couple may take walks together but Mr Olliek walks so slowly that Mrs Olliek described it as being "painful" for her to participate with him. Sometimes when Mr Olliek walks, he appears to be uncomfortable and does not walk normally, Mrs Olliek stated. Furthermore, Mrs Olliek described undertaking routinely long drives to Merry Beach or to Port Macquarie, however these holidays do not occur now.
39. Mrs Olliek stated that she undertook most of the cooking, but in the past Mr Olliek had cooked Lebanese gourmet food. The most he does now is cook on the barbecue. Mrs Olliek also described her husband attending Little Athletics activities with their daughter but that ceased when Amanda turned 14 or 15 years old, because Amanda was embarrassed at her father's inability to undertake the various activities expected of parents, for example, measuring shot put distances, high jumps or setting up various pieces of equipment. Mrs Olliek described her husband's hobby of working on cars which he had liked to do in the past. This she described as tinkering, but recently she believed that all he is now able to do is to check the oil.
40. Mrs Olliek stated that her husband works between 6am and midday, over five days and that on occasion, she is at home when he arrives back from work. When she is there, she observes that Mr Olliek will lay down on some occasions. He will look at the newspaper and he may apply the TENS machine. Mrs Olliek also noted that in recent time her husband has increased his cigarette smoking.
41. In relation to her and her husband's sexual activity, Mrs Olliek stated that in the last four years particularly, there has been a change. Just prior to December 1998, Mrs Olliek stated that she and her husband had a fairly regular sex life, which she considered was normal and satisfying. During the last four years, their sexual relationship has not been regular, nor enjoyable. Mrs Olliek stated that her husband appears to be fearful about sexual intercourse. She did not know why this was but it could be that movement was uncomfortable for him.
42. In terms of social activities in the past three or four years, Mrs Olliek stated that the family is unable to plan any family activities because it is never known, when they get up in the morning, whether or not Mr Olliek is going to feel well enough to undertake any leisure activity. She denied that she was frustrated at this or that it had caused any difficulties. Mrs Olliek stated that she accepted that her husband cannot do certain things. It is a nuisance, she noted, having to pay people to undertake work around the house which Mr Olliek in the past was able to do himself.
43. In terms of her daughter's relationship with her father, Mrs Olliek noted that Amanda is a very vibrant young lady who likes to hug and kiss her father, but Amanda now holds back because she is concerned that there might be an adverse reaction if she approaches her father in this way or that she might hurt him. The relationship is thus not as loving as she believed her daughter might wish. Mrs Olliek observed that Mr Olliek has difficulty walking on inclines and that she has seen him limp occasionally but not all the time
concurrent evidence of dr v maniam, orthopaedic surgeon, and dr d maxwell, orthopaedic surgeon
44. Dr Maniam and Dr Maxwell provided evidence concurrently, having both provided reports prior to the hearing.
dr v maniam
45. Dr Maniam has provided a number of reports dated: 14 December 1999 (T25, Bundle 1); 4 July 2000 (T47, Bundle 1); 8 August 2000 (T49, Bundle 1); 19 June 2001 (T6, Bundle 2); and, 16 January 2003 (Exhibit A3). Dr Maniam was aware of a number of work injuries suffered by Mr Olliek at Australia Post in 1984, 1992, 1993 and in 1998 when changing the batteries of a forklift truck. Mr Olliek informed Dr Maniam that he was continuing to suffer from significant pain in a lumbar spine. Dr Maniam has been Mr Olliek’s treating doctor since 1999.
46. Dr Maniam noted that Mr Olliek's claims are "of a severe lumbar spine pain, with radiation into the right lower limb” and although he did not exhibit any radicular signs, Dr Maniam concluded that there was a correlation between Mr Olliek's symptoms and the radiological findings in that an irritative radiculopathy is present (T47, p167, Bundle 1). It is Dr Maniam’s opinion that the main mechanism for Mr Olliek’s injury is the battery changing incident.
47. Dr Maniam noted that X-rays, CT scans and MRI scans confirmed the diagnoses of intervertebral disc protrusion at L4/5, with ligamentum flavum thickening and early spinal canal stenosis, as well as an intervertebral disc protrusion at L5/S1, with impingement and displacement of the right S1 nerve root (T6, p19, Bundle 2). Thus, there were two disc problems at the L4/5 level, with impingement at the right S1 nerve root. An electro-diagnostic study did not confirm the above finding or establish any neurological deficiencies, Dr Maniam noted. In fact, it pointed to problems on the opposite side. Thus, Dr Maniam stated that Mr Olliek did not have a significant pain arising out of impingement, but perhaps an intermittent irritative radiculopathy. Mr Olliek was not considered a candidate for surgery and should be treated conservatively including with rehabilitation.
48. Dr Maniam stated that the latest MRI scan could be interpreted in two ways. One interpretation is that Mr Olliek’s condition and symptoms could be explained by a degenerative condition of the spine. An alternate interpretation, and one preferred by Dr Maniam, is that the MRI showed a lesion that was suffered in the course of Mr Olliek's work. Dr Maniam acknowledged that serial MRI scans showed a significant improvement in Mr Olliek's condition but noted that there could be a sequestered disc, which was Dr Maxwell's diagnosis. Dr Maniam noted that he was relying on the radiologist's report and there was no sequestered disc in that report. Dr Maniam further acknowledged that Mr Olliek's current problems would be mainly due to degenerative problems (Transcript, 13 February 2003, p38). Dr Maniam noted that there is no impingement and Mr Olliek could be suffering from muscle spasm due to a lower back condition. He noted that there is earlier spinal canal stenosis at L4/5, which may be reactive to the bio-mechanical instability.
49. Having seen video footage of Mr Olliek, at hearing Dr Maniam reduced his assessment of Mr Olliek’s permanent impairment of the thoraco-lumbar spine assessing a 10 per cent whole person impairment from Table 9.6 of the "Guide to the assessment of the degree of permanent impairment" ("the Guide"). Dr Maniam also assessed a nil impairment from Table 9.5 of the Guide for the lower limbs. In relation to Mr Olliek's sexual dysfunction, Dr Maniam assessed a permanent impairment relating to sexual dysfunction as a result of Mr Olliek's back injury of 15 per cent from Table 11.1 of the Guide. In this regard, Dr Maniam opined that sexual functionality is a factor affected not only by neurological issues but by psychogenic factors and also by pain. If there is pain experienced, then the motivation for sexual activity would be lowered. Furthermore, Dr Maniam opined that as a result of pain, Mr Olliek is suffering a functional disability as well as a sexual disability. Mr Olliek had described to Dr Maniam his problem with sexual function because of low back pain.
50. Dr Maniam opined that apart from the physical injuries, Mr Olliek had neuropathic and psychogenic factors with a chronic pain syndrome and a reactive anxiety or depressive state that dictated the clinical picture. He recommended treatment in a multi-disciplinary pain clinic, including treatment by a pain management doctor, psychologist, physiotherapist and hydrotherapy. He could return to full work hours in circumstances determined by the pain management doctor. Dr Maniam concluded that the prognosis is that Mr Olliek would not completely recover and would experience pain, stiffness and movement limitation and weakness in the lower limbs. Mr Olliek's motivation and attitude to work were compromised as a result of his non-improvement, Dr Maniam further concluded. There is a functional element compounding Mr Olliek’s condition, Dr Maniam opined.
51. Dr Maniam noted Mr Olliek's medications of "Panadeine Forte”, “Lovan” and “Zantac".. He was working five days per week but there were ongoing restrictions for bending, sitting, standing, walking and lifting. There are also restrictions in relation to Mr Olliek's ability to participate in sexual intercourse or to undertake maintenance work around his home. He was also unable to garden.
52. Considering the video footage, Dr Maniam noted that a positive point is that Mr Olliek was seen to limp and that he bends to one side. Dr Maniam noted that there was evidence of Mr Olliek shifting in his seat when he was seated. At the same time from a negative point of view, Dr Maniam acknowledged that it was possible to conclude that Mr Olliek's gait was normal. He was seated for up to 20 minutes at a time. Dr Maniam also noted that Mr Olliek is half bending and not fully bending. He was bending to the side which is the opposite side where he indicates that he suffers from pain.
53. Dr Maniam agreed that there is some exaggeration with Mr Olliek but Mr Olliek has improved in that he has in the past been capable of returning to selective duties, which he is currently doing. Furthermore, Mr Olliek has expressed an interest in wishing to return to full-time selective duties which Dr Maniam considered is reasonable. Dr Maniam noted that where there is exaggeration, it is understandable that a patient may wish to impress the doctor that he or she is in pain. That is where objective sophisticated diagnostic aids play a role. Then the picture is presented for assessment taking into account the totality of the evidence. For example, if considering surgery for a patient, Dr Maniam will not only look at the objective diagnostic findings but also will consider the clinical findings. Just because a patient, such as Mr Olliek, is in receipt of compensation, it does not mean that all of his claims should be dismissed. The video evidence, while causing Dr Maniam to vary his opinion and assessment, should not be used to dismiss the very real physical findings in relation to Mr Olliek. Periods of lack of motivation relate to the functional element in his symptomatology. Dr Maniam stated that the video footage was not necessarily inconsistent with the findings in his report, although Dr Maniam noted some instances of full flexion on formal examination. On the video, Dr Maniam did not observe a full range of movement. There was half bending and bending to the side which indicated both positive and negative conclusions which could be drawn from the video footage. Dr Maniam considered that Mr Olliek should have made more improvement than he has and maintained his view of the need for treatment at a comprehensive pain clinic. It would be very unfair, in Dr Maniam's view, to allow the video footage to entirely dismiss the physical findings in relation to Mr Olliek.
54. Dr Maniam stated that Dr Maxwell's view is not much different to his own. They have both found some exaggeration exhibited by Mr Olliek. They both found no radiculopathy and both found a sequestered disc. Thus there was agreement between the two doctors on the clinical and X-rays findings. While Dr Maniam has seen Mr Olliek over number of years, Dr Maxwell believed that he could give an objective view. It was in this regard that Dr Maxwell has stated that a doctor as a treater, would find it difficult not to accept a patient's symptoms. Dr Maniam stated that the only contention is that, noting the changes seen in the MRI scan, the clinical findings, and notwithstanding Mr Olliek's exaggeration there should be some concern about sending Mr Olliek back to his normal work. It simply could not be ignored, Dr Maniam opined, that Mr Olliek suffered an injury and there was potential for future injury if he was pushed back to the job which initially injured his back.
55. Dr Maniam concluded that if it was accepted that Mr Olliek has had two disc protrusions some time in the past, his opinion was that those two levels would exhibit some amount of bio-mechanical instability promoting an acceleration of degenerative change. Some of the loss of range of movement would be due to pre-existing underlying degenerative condition but Dr Maniam attributed the 10 per cent permanent impairment to the injury sustained in December 1998. Dr Maniam further opined that Mr Olliek has achieved maximum medical improvement. There may be some reduction in the intensity of pain as a result of pain management strategy, but that would not significantly improve Mr Olliek's functional limitations, Dr Maniam stated.
56. In conclusion, Dr Maniam opined that Mr Olliek has an organic lesion and was prone to injury due to heavy manual work. There has been significant improvement since he has been removed from that pre-injury environment and Mr Olliek is wanting to return to full-time selected duties and should be encouraged in that. Dr Maniam would caution against sending Mr Olliek back to heavy pre-accident duties and he maintained that once there is an injury to the back, there is the susceptibility to further injury and that there is a permanent functional loss.
dr d maxwell
57. Dr Maxwell provided four reports, two dated 28 October 2002 (Exhibit R1(a), R1(b)) and two reports dated 3 February 2003 (Exhibit R2, R8). Dr Maxwell examined Mr Olliek on 28 October 2002. Dr Maxwell opined that Mr Olliek had no convincing evidence of persisting radiculopathy. Dr Maxwell considered Mr Olliek's symptoms as being vague, the signs generally unreliable with an obvious overlay on examination. The MRI scan taken on 7 June 1999 showed a piece of sequestered disc at the L4/5 level which was not causing significant symptoms at the nerve root. Dr Maxwell noted that sequestered discs in 90 per cent of cases will resorb after two years. The sequestered disc would not contribute to Mr Olliek’s degenerative condition (Transcript, 13 February 2003, p37). Furthermore, there was no doubt in Dr Maxwell's view that the abnormalities depicted on the MRI and CT scans are developmental/degenerative type changes, and that the changes of the L4/5 appear to be more developmental than traumatic. Dr Maxwell agreed, noting the history of Mr Olliek consulting his general practitioner, Dr H Chan, in December 1998 and reporting back pain and left leg pain, not having consulted her in relation to back or leg pain from July 1993, which would suggest the incident on 15 December 1998 was a reasonably significant trauma.
58. Dr Maxwell concluded that Mr Olliek probably sustained a disc protrusion at the L4/5 level in the course of work in 1998 but that the effects of the disc protrusion would have settled over two years. He noted that Mr Olliek had intermittent periods of back pain as a result of work incidents which had settled. Dr Maxwell opined that at the present time, Mr Olliek is not suffering the effects of a work-related injury and that there was no incapacity for employment due to any compensable condition. Dr Maxwell noted that Mr Olliek has physically decompensated and is in a generally poor physical condition. Furthermore, Dr Maxwell opined that Mr Olliek is fit to undergo an upgrading program and fit to carry out his normal duties after upgrading over the next two months. With the effects of the compensable condition ceased, Dr Maxwell did not consider that Mr Olliek is entitled to ongoing medical treatment and that his overall prognosis is good. There should be an upgrade to his pre-injury employment. There was no permanent impairment of his back or lower limbs assessed by Dr Maxwell from the Guide.
59. Considering the two videos of Mr Olliek, Dr Maxwell stated that the footage confirmed his clinical impression that Mr Olliek has no permanent impairment and furthermore, the video evidence suggested that Mr Olliek was consciously restricting the range of movement on formal testing during the medical examination and that the limp he assumed was also for the purpose of the medical examination. The video evidence only served to confirm Dr Maxwell’s view of an abnormal clinical presentation by Mr Olliek. A person reporting the level of pain reported by Mr Olliek would not have been able to do what was depicted on the video (Transcript, 3 February 2002, p29). One had to ask oneself whether there is an exaggeration during the clinical examination which is conscious, and that would be the only conclusion which Dr Maxwell could reach. Dr Maxwell noted that in the medico-legal context, there can be exaggeration by a patient, but in relation to the symptoms of pain, this involves very subjective perceptions. There are considerations then brought to bear about a person's psychological make-up. There is a fine line, Dr Maxwell opined, between someone who is malingering and the person who sincerely believes there is something wrong with them.
60. Dr Maxwell noted that in the video, Mr Olliek was walking without any limp and undertaking his normal activities without any problems. He was able to climb in and out of the car without showing any back stiffness while putting a sun visor onto the side door of his car. Dr Maxwell also observed Mr Olliek's ability to reach into the car to get out the visor. He was seen to be able to reach across from the driver's seat to the glove box. Furthermore, on 30 November 2001, in the video coverage Mr Olliek was seen bending over the opened boot of the car, exhibiting a greater range of movement than he did on formal testing by Dr Maxwell. The video depicted Mr Olliek walking long distances and sitting for prolonged periods without any distress. He was seen to bend to pick up fruit repetitively. Mr Olliek also appeared on the video to be able bend down to his toe level with his knee only slightly flexed and he was pictured carrying a heavy bag of fruit in his left hand. Dr Maxwell stated that he agreed with report of Dr Downes but disagreed with the report of Dr A W Searle, Consultant Orthopaedic Surgeon, who on 3 October 1999, opined that Mr Olliek's work caused him lumbar disc lesions and the ongoing symptoms from these injuries were thought to be permanent with a rating from Table 9.6 of the Guide of 20 per cent (T17, Bundle 1).
61. Dr Maxwell opined that there had been a traumatic injury but there had been a resorption of a sequestered disc and an improvement in symptoms. It was not likely, but possible, that the sequestered disc, when present, could cause some degree of fibrosis and that that could result in symptoms. Dr Maxwell opined that another lesion at L5/S1 was almost certainly a degenerative lesion and that was well to the right, when most of Mr Olliek's symptoms were on the left. The lesion did not look traumatic to Dr Maxwell because of long standing changes, the shape of the bone and the fact that the disc was contiguous with the osteophyte.
62. Considering Dr M Gliksman's report dated 7 September 2000 (T51, p173, Bundle 1), Dr Maxwell agreed with Dr Gliksman's opinion that the effects of the 1998 incident were likely to be chronic in that it was a contribution to an underlying degenerative condition and that that contribution was unlikely to cease (Transcript, 13 February 2003, p34).
63. In relation in to making an assessment of permanent impairment, Dr Maxwell did not consider there was any permanent impairment from Table 9.5 and 9.6 of the Guide based on the video evidence which indicated to him that the range of movement was relatively normal. Dealing with Mr Olliek’s reported sexual dysfunction and considering Table 11.1 of the Guide, Dr Maxwell opined that the Table only applies to conditions effecting the testes, prostate, penis, seminal vesicle or the spermatic cord, epididymis and scrotum. Mr Olliek's condition does not directly effect any of those areas, Dr Maxwell opined, so he did not consider it possible to make an assessment under that Table. Dr Maxwell noted that it was also very subjective assessing sexual impairment, if there is no neurological or physical abnormalities relating to the neurological function of the sexual organs or any direct injury to the sexual organs. Other factors, such as psychological factors effect sexual function, Dr Maxwell noted. The notion of back injury causing decreased sexual function is extremely difficult to assess, Dr Maxwell opined. It may be not so much pain but other psychological reasons associated with the injury causing sexual dysfunction. While Dr Maxwell agreed that it is possible the back pain could limit Mr Olliek's ability to complete the sexual act, there is no neurological reason why that should be the case.
64. Dr Maxwell confirmed his view that despite Mr Olliek's symptoms, he would be able to upgrade his work duties and return to normal work. While Dr Maxwell noted Dr Maniam's concerns about Mr Olliek upgrading his duties, given the objective test results of X-ray, MRI and CT scans, Dr Maxwell stated that one had to consider the whole picture in this matter. Mr Olliek was in his fifties and the X-rays do not have much to do with indicating Mr Olliek's ability to work. X-rays alone do not provide a basis for diagnoses, Dr Maxwell opined. Dr Maxwell would place restrictions of no heavy lifting on Mr Olliek in terms of his work duties.
65. Dr Maxwell stated that he had very little faith in pain management clinics. His experience is they do not change the function of the patients and they are often run by anaesthetists who do not understand back injuries or low back pain in general terms. Dr Maxwell would not recommend a pain clinic for Mr Olliek. Pain management clinics appeared to Dr Maxwell to be extremely popular because they are a "refuge for people who nobody want to look after really" (Transcript, 13 February 2003, p43). Dr Maxwell saw pain clinics as a product of a litigation system and they seem to have a very little success.
66. Dr Maxwell's prognosis is that from the symptomatic point of view, it is probably likely that Mr Olliek will improve as most people improve over a period of time. Dr Maxwell opined that it may be that the legal process may assume more importance than what is actually happening in Mr Olliek's back and may impact on whether he continues to complain or not. Dr Maxwell stated that litigation changes many things and makes it difficult to treat people. He considered that Mr Olliek had a lesion which has recovered. The symptoms, signs and radiological investigations indicate that there is no continuing radiculopathy. There are inconsistencies in the physical examination which have been noted by five or six doctors, including Dr Maniam. The video tended to indicate that Mr Olliek is functioning at a fairly normal level and Dr Maxwell does not consider that there is any impairment and felt that Mr Olliek should therefore be rapidly upgraded to his full duties.
evidence of dr m gliksman, occupational physician
67. Dr Gliksman provided four reports dated 15 April 1999 (T11, Bundle 1); 8 July 1999 (T16, Bundle 1); 23 March 2000 (T33, Bundle 1) and 7 September 2000 (T51, Bundle 1). Dr Gliksman diagnosed Mr Olliek's condition as mild to moderate combined degenerative and post-traumatic change to the spine, predominantly at L4/5 and L5/S1 disc level. Dr Gliksman noted continuing evidence of significant functional overlay distorting the actual severity of the condition (T51, p175, Bundle 1). Dr Gliksman concluded that it is more likely than not that there is a medically credible causal connection existing between Mr Olliek's condition and a work injury in December 1998. Dr Gliksman further noted there was the occurrence of an acute disc protrusion seen on the MRI with continuing effects of the 1998 incident. While Mr Olliek is likely to be suffering from symptoms attributable to degenerative change in the lumbosacral region irrespective of the event described, the work event has exacerbated the underlying osteoarthritic condition, Dr Gliksman opined.
68. Dr Gliksman considered Mr Olliek was permanently partially unfit for full duties and considered as appropriate restriction of lifting no greater than ten kilograms and there should be no repetitive bending or working in confined spaces. Dr Gliksman could provide no explanation for Mr Olliek's inability to upgrade to his full duties within these limitations. The effects of the 1998 incident are likely to be chronic and he was not likely to be able to do his pre-injury duties without restrictions. Dr Gliksman could detect no psychological condition which would inhibit Mr Olliek's return to duties. It is functional overlay which prevents Mr Olliek return to full-time duties, Dr Gliksman concluded.
evidence of dr g carr, rheumatologist
69. Dr Carr provided a report dated 26 October 1999 (T18, Bundle 1). Dr Carr noted from his clinical examination and from objective investigations, that Mr Olliek has a multi-segmental disc degeneration throughout his lumbar spine and lumbar Scheuermann's disease as a pre-existing factor. Mr Olliek's presentation on examination had features suggesting non-organic illness behaviour including walking with an exaggerated limp on his right leg which is uncharacteristic of disc disease. Mr Olliek showed numbness of "a long stocking-like distribution in the entire left leg in the face of preserved reflexes, normal straight leg raise, negative femoral nerve stretch tests". Mr Olliek's back was painfully restricted in all directions to what appeared to be an exaggerated and marked degree. Dr Carr concluded that Mr Olliek was over-reacting to his pain level, quite considerably. While Dr Carr acknowledged that Mr Olliek has disc disease, he noted that his level of anxiety and stress suggested the prognosis was poor for returning Mr Olliek to work.
70. Dr Carr concluded that Mr Olliek may well have had a bulging disc for some time. The 1998 work incident was significant in causing some aggravation. Dr Carr recommended that Mr Olliek be restricted to light duties of a non-bending, non-lifting type with some walking and sitting to 20 hours per week. If there was no improvement in three months, Dr Carr concluded that any symptoms should be put down to secondary psychogenic overlay rather than his primary condition of disc disorder, which Dr Carr would expect to spontaneously improve, much as it had done in previous times. Dr Carr did not suggest that Mr Olliek was going to be ever fully free of back pain. The only treatment which would be useful would be a regular exercise program to strengthen Mr Olliek's back. Dr Carr did not advise surgery.
evidence of dr j c downes, orthopaedic consultant
71. Dr Downes provided reports dated 30 November 2000 (T54, Bundle 1) and 7 December 2000 (Exhibit R5). In his first report, Dr Downes noted he had examined Mr Olliek on 30 November 2000. The MRI scan of 7 June 2000 indicated to Dr Downes that there was no evidence of a prolapsed disc and he could not see any compression of the nerve root. L4/5 and L5/S1 discs were markedly degenerated and desiccated, but this was a common finding in a 48 year old man as Mr Olliek was at that time. Both discs were bulging, Dr Downes noted, but the MRI did not explain Mr Olliek's pain.
72. Dr Downes opined that Mr Olliek is showing so many signs of functional illness behaviour that Dr Downes could not tell whether he had much in the way of genuine problems with his back. Dr Downes concluded the effects of the 1998 incident have ceased long ago. Mr Olliek was partially unfit but not for organic reasons. Dr Downes accepted there was a continuity of history back to 1984 with worsening of Mr Olliek's back in 1992 and that this may have represented disc degenerative change becoming symptomatic in 1992. Dr Downes also accepted that Mr Olliek's illness behaviour may have been triggered initially by pain, but in Dr Downes' opinion, it was not maintained by pain. Mr Olliek’s clinical signs indicated to Dr Downes that he is not genuine and has no organic illness. Dr Downes did not consider Mr Olliek to be psychiatrically disturbed or needing referral to a psychiatrist. Dr Downes noted that he would not have known how to treat Mr Olliek.
73. Dr Downes agreed with the reports of Dr Gliksman and Dr Carr and concluded that there is "virtually nothing wrong with his spine that would account for his clinical presentation and that the radiological picture of his spine is consistent with his age. His presentation is one of a person who is acting or exaggerating his claim, as was suggested by the Psychiatrist [Dr Walden]" (Exhibit R5, p2).
evidence of dr j h o'neill, consultant neurologist
74. Dr O'Neill provided five reports dated: 4 September 2001 (Exhibit R4); 4 September 2001 (Exhibit R9); 7 November 2001 (Exhibit R10); 11 February 2003 (Exhibit R11); and 13 March 2002 (Exhibit R12).
75. Dr O'Neill noted that Mr Olliek has no signs of neurological dysfunction arising from the lumbar spine and nor would this be expected from the radiological findings. Dr O'Neill noted that radiological studies after the incident on 15 December 1998, show disc degenerative disease at L4/5 and L5/S1. Dr O'Neill noted in his initial report that he had an impression of elaboration of the pain complaint but could not exclude the possibility that Mr Olliek has some degree of genuine mechanical low back pain arising as a consequence of both constitutional degenerative disease of the lumbar spine with aggravating lifting incidents at work on 7 September 1984 and 15 December 1998. Dr O'Neill opined that there was no physical explanation for radiation of pain in Mr Olliek's legs and no primary problem with his sex organs. Dr O'Neill further opined that Mr Olliek could undertake full-time work of light duties but was concerned about him returning to manual work given his previous history and the radiological evidence of degenerative disease. Dr O'Neill assessed a 15 per cent impairment of Mr Olliek's back from the Guide. Dr O'Neill did not believe there was any loss of use of either leg above or below the knee or any loss of use of sexual organs (Exhibit R9). In a later report of 7 November 2001, Dr O’Neill assessed ten per cent permanent impairment of the lower back (Exhibit R10).
76. Having seen the video evidence of Mr Olliek and noted no evidence depicted of lower back discomfort or limitation of movement or of leg movement, Dr O'Neill accordingly amended his assessment to one of no permanent impairment of the lower back (Exhibit R11 and Exhibit R12). Dr O'Neill opined that given there was radiological evidence of constitutional degenerative disease of the lower lumbar spine, Mr Olliek should avoid work of a heavy manual nature, but should undertake full-time light duties.
evidence of dr p klug, forensic psychiatrist
77. Dr Klug provided two reports dated 25 May 2001 (T5, Bundle 2) and 19 October 2001 (T14, Bundle 2). Dr Klug noted in his first report references by other doctors to Mr Olliek having a “functional overlay” and opined that this is a pejorative and judgemental term. The term "functional", in medicine, refers to disorders that are without known organic basis, thus often and incorrectly equated with "psychogenic" or emotional factors. Dr Klug reported that a functional disturbance is one in which the performance or operation of an organ or organ's system is abnormal, but not as a result of known changes in structure. Dr Klug opined that Mr Olliek has identifiable pathology in his lumbar spine and that this pathology in the opinion of a number of specialists including Dr Maniam, Dr Searle and Dr Gliksman bears a direct relationship to the injury to Mr Olliek's back in December 1998. Dr Klug further opined that it is understandable that Mr Olliek has had an emotional reaction to this injury because of the limitations it has placed on his life. Mr Olliek was noted by Dr Klug to have no history of litigious behaviour, nor anything else in his life to suggest anti-social traits. It is therefore, in Dr Klug's view, pejorative to assess Mr Olliek as a malingerer. It is possible that Mr Olliek with his chronic symptoms and limitations is apprehensive about his future, which in turn exacerbates the experience of pain. This is a common process, Dr Klug opined, with any chronic pain syndrome, from which Mr Olliek is suffering. There is considerable evidence, Dr Klug noted, to show the injury to Mr Olliek’s back in December 1998 bears a causal relationship to his current chronic pain state. There is no attendant psychiatric diagnosis applicable to Mr Olliek, although Dr Klug opined that he is at risk of developing psychiatric problems as is common in the case of chronic pain syndrome.. Dr Klug recommended that Mr Olliek would be wise to seek assessment and treatment at a pain management unit such as at the Royal North Shore Hospital. Mr Olliek would benefit greatly from a multi-disciplinary approach to the management of his pain.
evidence of dr m walden, consultant psychiatrist
78. Dr Walden examined Mr Olliek on 28 November 2000 and reported on 29 November 2000 (T53, Bundle 1). Dr Walden did not diagnose an anxiety or depressive disorder and did not consider that Mr Olliek fulfils the criteria contained in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) for a chronic pain disorder. It is apparent to Dr Walden that Mr Olliek's complaints of pain are out of proportion to his organic pathology. Accordingly, Dr Walden concluded that Mr Olliek is exaggerating his symptoms and that there is no psychiatric illness impeding his return to work.
evidence of dr m lowy, sexual health physician
79. Dr Lowy provided a report dated 31 July 2001. Dr Lowy opined that Mr Olliek "is suffering from a reduction in the frequency and enjoyment of sexual intercourse following a number of injuries to his back, in particular the most recent injury in December, 1998". Dr Lowy concluded that there is no damage to Mr Olliek's erectile mechanism but rather the distraction of intense low back pain during any attempt at sexual activity resulted in immediate loss of erection and the sensation of such activity. Dr Lowy opined that the sexual dysfunction appears to be related to the episodes of Mr Olliek's back injury that occurred when working with Australia Post in December 1998.
80. Dr Lowy concluded that Mr Olliek has a 15 per cent permanent impairment of his sexual organs from Table 11.1 of the Guide (T7, pp22-23, Bundle2).
evidence of dr p m katelaris, urological surgeon
81. Dr Katelaris provided a report dated 22 November 2001, having examined Mr Olliek on 22 November 2001. Dr Katelaris opined that Mr Olliek's claim that low back pain inhibited his sexual interaction is a subjective claim with no way of objective verification. It depended whether or not Mr Olliek is believed, Dr Katelaris opined. From Dr Katelaris' observations on examination, he could see no reason why Mr Olliek could not enjoy normal sexual interaction with his wife. There was thus no objective evidence to support a claim for sexual impairment, Dr Katelaris concluded.
SUBMISSIONS
82. Mr Stockley, for the Applicant, submitted that the entire history of Mr Olliek's association with the Australia Post should be considered. Mr Stockley noted that after every work incident, Mr Olliek was motivated to return to his previous duties. He also acquired further technical qualifications. A perusal of Dr Chan's clinical notes (Exhibit A6) shows no attendances between July 1993 and December 1998 concerning back injury.
83. In December 1998, Mr Stockley submitted that there was a significant event which occurred, however, consistent with the past features of Mr Olliek's desire to return to work, he has been attempting to return to full hours. Mr Stockley referred the Tribunal to Mr Olliek's description of the awkward movements required to remove the battery from the forklift truck, a heavy and strenuous task. Dr Maxwell had opined that no one should undertake such work. Mr Stockley noted Mr Olliek's history of a difficulty in undertaking his work from December 1998. The first workplace assessment occurred in January 1999 with a work program established of four hours per day which continued throughout 1999. On 10 February 2000, an upgrade of hours was recommended by Ms R Yuen, Occupational Health and Safety Adviser (T9, p82, Bundle1) leading up to eight hours per day by 26 March 2000.
84. Mr Stockley also referred the Tribunal to the report of Psychologist, Ms L Morley, dated 18 May 2000 (T50), which recommended that Mr Olliek have a gradual increase in hours but not be pressured. On 30 November 2000, Dr Downes concluded that Mr Olliek had entered into illness behaviour, that it was not curable and that there was functional overlay and not much physically wrong with him. Dr Downes had concluded, Mr Stockley further noted, that there was a continuity of history going back to 1984 with Mr Olliek's back worsening in 1992 and that that may have represented disc degenerative changes becoming symptomatic in 1992. Mr Stockley submitted that Dr Downes accepted Mr Olliek’s illness behaviour was triggered by pain initially but had further concluded that the symptoms were not maintained by pain. Mr Stockley further contended that although Dr Gliksman had reservations about Mr Olliek's presentation, he did not come to the conclusion that there was nothing wrong with Mr Olliek.
85. Mr Stockley acknowledged that the credit issues in this matter are enormous, however he urged the Tribunal not to consider this case as a "black and white" issue particularly given all of the circumstances of Mr Olliek's background, his ability and motivation in the past to recover. In relation to the credibility issues raised by Dr Downes in his second report of 7 December 2000 (Exhibit R5), in which Dr Downes agreed with Dr Gliksman and Dr Carr, Mr Stockley submitted that that opinion is hard to reconcile with other parts of Dr Downes' opinion. Referring to Mr Olliek's treating specialist, Dr Maniam, Mr Stockley noted that Dr Maniam has been treating Mr Olliek since 1999. Mr Stockley contended that despite what Dr Maniam saw in the two videos, he still maintains his opinion that Mr Olliek has a degree of disability in his back causally related to the 1998 work injury. Dr Maniam agreed that Mr Olliek should and can upgrade his hours per week but only on appropriate restricted duties. There is no support from any of the medical experts, Mr Stockley submitted, for Mr Olliek to undertake full hours at his pre-injury duties.
86. Mr Stockley noted the Applicant's primary submission is that if Dr Maniam's opinion is accepted as to there being a degree of incapacity for work, then there is a permanent impairment of ten per cent which took into account non work-related degenerative changes. Dr Maniam's view that the degree of impairment was a progression of degenerative changes was consistent with Dr Gliksman's opinion, Mr Stockley contended.
87. In relation to the issue of a psychological condition or functional overlay, Mr Stockley noted that neither Dr Walden nor Dr Klug or any other medical specialist considered that there was any psychiatric illness suffered by Mr Olliek. Dr Klug opined that Mr Olliek presented in a genuine fashion and that he was suffering from a chronic pain syndrome for which the injury of December 1998 provided a causal relationship. While Mr Stockley conceded that Dr Klug did not see the video evidence, nevertheless, Dr Klug provided an explanation and drew a causal relationship between the 1998 injury and Mr Olliek's continuing back pain.
88. Mr Stockley submitted that considering all of the medical opinions, Dr Maniam, as the treating doctor is in a superior position to assess Mr Olliek in the clinical setting over a four year period. Dr Maniam had adjusted his impairment assessment given further evidence provided at the hearing including the video evidence. Accordingly, Dr Maniam could not be considered as an advocate for Mr Olliek given his ability to objectively consider all the evidence provided. There was no reason medically to not accept Dr Maniam's opinion.
89. Considering Dr Maxwell's opinion, Mr Stockley submitted that Dr Maxwell had allowed the possibility that on balance, there could be some permanent change in Mr Olliek's back pathology, although his preferred view was that there had been improvement and no permanent change. Dr Maxwell also had a different approach to the radiography, Mr Stockley submitted, in that Dr Maxwell considered there had been sequestration of the disc, but that disc had been resorbed. Dr Maniam's opinion on the other hand was that there was a herniated disc. Both Dr Maniam and Dr Maxwell agreed that there is a wide variation in the interpretation of radiographic results.
90. Considering the issue of sexual function, Mr Stockley submitted that Dr Maniam had not attempted an assessment from Table 11.1 until the Hearing. The Applicant relies on a report by Dr M Lowy dated 31 July 2001 (T7, p21, Bundle 2). The reproductive organ which is relevant to the assessment under Table 11.1 in Mr Olliek's case, is the penis. The condition relied upon by the Applicant as causing sexual dysfunction is Mr Olliek's back impairment. Dr Maniam has assessed a 15 per cent permanent impairment from Table 11.1 of the Guide. Notwithstanding Dr Maniam's assessment, Mr Stockley submitted that the correct assessment from Table 11.1 from the Guide is ten per cent to reflect that sexual function is possible, but with some degree of difficulty with erection, ejaculation and or sensation. Mr Stockley further submitted that the opinions of Dr Walden and Dr Downes about Mr and Mrs Olliek having marital difficulties are speculative, particularly given their evidence.
91. In terms of there being any evidence of malingering by Mr Olliek, Mr Stockley submitted that this is inconsistent with Mr Olliek's repeated attempts over the years to return to work and to increase his hours.
92. Considering medical treatment costs, Mr Stockley submitted that there has been no surgery and no great expense either medical or diagnostically. In term of a pain management clinic, Dr Maxwell was not in favour and Dr Maniam has recommended this in the past.
93. Mr Stockley concluded that there is ongoing incapacity experienced by Mr Olliek as a result of the 1998 injury to his lower back at work. Mr Olliek has increased his economic situation in recent times because he has gradually increased his hours. Referring to his MRI scan in August 2001, there has been an improvement shown in the pathology, given Dr Maniam's best guess. The Tribunal should, Mr Stockley contended, prefer the opinion of Dr Maniam and Dr Gliksman that there is permanent impairment from a work-related back condition in conjunction with aggravating degenerative changes in Mr Olliek's lower back region. Mr Stockley further submitted that simply because the pathology is variable, does not mean that it is not permanent. This is supported in the context of no one opining that Mr Olliek can undertake his pre-injury duties. The flexibility of Mr Olliek's employer plus his motivation has improved his functioning.
94. Mr Stockley submitted that Dr Maniam's opinion that Mr Olliek has a permanent impairment based on limitation of movement at least sometimes, should be accepted. It should also be accepted that on some occasions Mr Olliek is able to undertake some tasks, while on others he is not. Mr Stockley did concede that his submission was less persuasive because it was not at every instance that Mr Olliek was unable to undertake some tasks. In this regard, Mr Stockley noted that Dr Maniam had stated that Mr Olliek showed less than normal range of movements on the video but yet full range of movement in his room on clinical examination. While Dr Maniam also acknowledged that Mr Olliek may exaggerate, this is different to fabrication, Mr Stockley submitted. There is no allegation of fabrication and even if there is an exaggeration, that does not mean that there is an absence of permanent incapacity. Mr Stockley concluded that there is ongoing incapacity and there is a further danger of injury to the pre-existing injury.
95. Mr Johnson, for the Respondent, submitted that Mr Olliek has experienced a number of back injuries and has been able to return to normal work duties in the past. The 1998 back injury was, Mr Johnson submitted, time-limited with the temporary effects of the injury ceasing by January 2001.
96. Mr Johnson referred to the MRI report dated 10 August 2001, which indicated degenerative changes at L4/5. If there was a permanent incapacity, then, Mr Johnson submitted, it would be expected that there would be evidence of wasting, loss of power as a result of symptoms and the restrictions that permanent incapacity would leave. Mr Johnson submitted that Mr Olliek has an inconsistent presentation.
97. Referring to the report of Dr O'Neill, Consultant Neurologist, dated 11 February 2003, he opined that having viewed the video footage that this showed an "’elaboration of the pain complaint’ consistent with a non-credible witness". Mr Johnson submitted that even Dr Maniam had revised his assessment of permanent impairment having viewed the video footage. Mr Johnson further submitted that Mr Olliek exaggerated his symptoms and the Tribunal would have to consider his genuineness in terms of any determination. The Tribunal was further referred to the opinions of a number of doctors who have considered the issue of exaggeration and Mr Olliek's credibility. Mr Johnson submitted that the most important evidence in this matter is the medical evidence.
98. Considering Mrs Olliek's evidence, Mr Johnson noted that she stated that her husband had lost enthusiasm and that she had the impression that her husband was not doing as much as he could. Mr Johnson noted Mrs Olliek's evidence that her husband ceased undertaking many activities including bushwalking which occurred in 1997, but this was before the 1998 work injury. Furthermore, Mr Johnson submitted that the Tribunal should note that Dr Maniam did not provide a permanent impairment rating from Table 9.6 of the Guide in relation to lower limb function. Apart from the video, there was other evidence of exaggeration in the documents and as noted most particularly by Dr Maxwell and Dr O'Neill. Dr Gliksman’s report dated 15 April 1999 (T11, pp89-90, Bundle 1) noted that Mr Olliek walked with what appeared to be an exaggerated, inconsistent "Trendelenburg-like gait". Dr Gliksman opined, "I harbour considerable concern that a substantial degree of voluntary exaggeration or functional overlay is present".
99. Mr Johnson noted Dr Carr's report of 26 October 1999 (T18, p111, Bundle 1), that Mr Olliek walked with an exaggerated limp in his right leg which is uncharacteristic of disc disorder. Dr Carr further opined that Mr Olliek was over-reacting to his pain and that his level of stress and anxiety about his disc disease made the prognosis poor. This was in the context, in Dr Gliksman's report, of there being normal lumbar lordosis with no paralumbar muscular spasm and with bilateral lumbar rotation remaining at full range (T33, p140, Bundle 1). Furthermore, straight leg raising was not possible voluntarily beyond 25 degrees. Dr Gliksman had opined that if this was a full range of Mr Olliek's capability, he would be unable to ambulate without using a quad walker or using a walking stick. While Dr Gliksman concluded that Mr Olliek did continue to suffer from a condition of degenerative disc disease in addition to post-traumatic change to the spine, there was contrary evidence, Mr Johnson submitted, of functional overlay which was distorting the actual severity of Mr Olliek's condition.
100. Mr Johnson submitted that Dr Downes also commented on exaggeration (T54, pp194-197, Bundle 1). Dr Downes had concluded, Mr Johnson submitted, that Mr Olliek was showing so many signs of functional illness behaviour that Dr Downes could not tell whether there was much in the way of genuine problems present with Mr Olliek's back. Dr Downes also noted that the limitation on straight leg raising as evidenced by Mr Olliek, would only occur in a person who has an acute disc problem of massive proportions and he or she would not be able to walk or would need a walking frame. Dr Downes agreed with Dr Carr and Dr Gliksman that there was not much physically wrong with Mr Olliek. Mr Johnson submitted that Mr Olliek has not returned to his full duties not because of continuing injury, but because of fear of another injury. Accordingly, Mr Johnson submitted that there could be no application of sections 14 or 16 of the Act and that the decision under review in this respect should be affirmed. The only problem experienced by Mr Olliek relates to his degenerative changes as the effects of the work injury of December 1998 have not been present since January 2001. In so submitting, Mr Johnson stated that the Respondent prefers the opinion of Dr Maxwell which acknowledges that there might have been an injury in 1998 but that the effect of this has ceased.
101. In relation to Dr Walden's opinion and that of Dr Klug, neither psychiatrist provided a psychiatric diagnosis. Furthermore, Mr Johnson noted that neither Dr Klug nor Dr Walden had considered the video footage. Dr Klug had accepted the restrictions reported to him by Mr Olliek. It was also the case that Dr Gliksman had not seen any video coverage of Mr Olliek's activities over a number of days in an unguarded situation. Thus, Mr Johnson concluded that there was no continuing injury and that the decisions under review should be affirmed as it is the effects of underlaying degenerative conditions that are present and nothing related to the work injury of 1998. Furthermore, Mr Johnson contended that there was no clinical indication for pain management regardless of what inherent value is put on such a treatment regime.
102. Considering the issue of sexual dysfunction and an application of Table 11.1 of the Guide, Mr Johnson submitted that the heading at the commencement of the Table needs to be considered which states:
"This Table is used to assess conditions affecting the testes, prostate, penis, seminal vesicles, spermatic cord, epididymis and scrotum".
103. Mr Johnson submitted that this Table can only be used to assess the specific named body parts. In addition, the problem certified by Mr Olliek is that his back condition causes sexual difficulties, but the Respondent submits that the underlying condition from the back is not permanent and is not considered by the Respondent.
104. Mr Johnson's overriding submission is that Mr Olliek cannot be trusted. Mr Olliek stated that he was restricted in certain activities yet later evidence indicates that this is not so. Dr Walden's reports suggested other reasons for Mr Olliek's sexual difficulties, especially given Mr Olliek's poor credibility.
105. Turning to Table 9.6, for the thoraco-lumbar spine, Mr Johnson submitted that there was no impairment rating from this Table. There is no continuing injury and no section 24 application as supported by the opinions of Dr Maxwell and Dr O'Neill. Considering Dr Maniam's opinion, Mr Johnson submitted that Dr Maniam changed his opinion after seeing the video evidence but did not seem comfortable with this. Dr Maniam conceded that on his own examination, Mr Olliek demonstrated a full range of movement.
106. Accordingly, Mr Johnson submitted that it could not be sensibly contended, given the video evidence over a number of days and the range of activities that Mr Olliek claimed to be restricted in, that at the end of 2001 and in 2002, such restrictions were not borne out by the coverage. Certainly, Mr Johnson submitted, Mr Olliek does not reach an impairment of restriction of half of all the range of movement which is required for ten per cent permanent impairment from Table 9.6. Mr Johnson's alternative submission is that there has been an improvement as noted by Dr Maxwell and therefore no permanent impairment could be applied.
FINDINGS
107. The issues in this matter are whether or not Mr Olliek has a continuing incapacity as a result of injury to his back on 15 December 1998, given that liability was accepted for that injury up until 11 January 2001. If there is continuing incapacity as result of Mr Olliek's injury, is there a permanent impairment in the terms as required by the legislation? Furthermore, a determination is required as to whether or not the back injury had caused permanent impairment in relation to Mr Olliek's sexual functioning.
108. It is clear from objective radiology reports that Mr Olliek has a degenerative disc disease at L4/5 and L5/S1 and as opined by other relevant specialist opinion.
109. There is video evidence available to the Tribunal taken of Mr Olliek over a four day period in late November and one day in December 2001 (Exhibit R6) lasting for a period of one hour and 55 minutes, in addition to another video of one hour and 10 minutes duration taken over a four day period in July 2002 (Exhibit R7). The coverage includes Mr Olliek working on his car, attending a motor vehicle repair shop, undertaking grocery shopping and light repairs of a motor vehicle. The Tribunal finds that the video evidence certainly did not support the level of incapacity and restriction described by Mr Olliek to various doctors and to the Tribunal. Dr Maniam, Mr Olliek's treating Orthopaedic Surgeon, revised and lowered his assessment of permanent impairment having considered the video evidence.
110. There are a number of medical experts who do not believe the level of his back impairment as reported by Mr Olliek and some considered he has no impairment at all, these including the opinions of Dr Maxwell, Dr Downes, Dr Carr, Dr O'Neill and Dr Walden. Dr Maniam believes that there is a level of impairment as does Dr Klug and both doctors consider that Mr Olliek has a chronic pain disorder. On balance, Dr Gliksman who did not have the benefit of the video evidence but who noted exaggeration, considered that there was a level of impairment in combination with degenerative disc disease.
111. It is very clear to the Tribunal and it so finds, that Mr Olliek has exaggerated his symptoms. All doctors acknowledged this. However, Dr Maniam also states that exaggeration in the circumstances of a claim for compensation should not of itself disentitle Mr Olliek from compensation because of the impact of the injury of 15 December 1998. As noted, this is the position of Dr Gliksman and indeed Dr Klug. Dr Maxwell opined that the effect of the work injury has ceased but conceded that it is possible that there has been a permanent aggravation of Mr Olliek's underlying degenerative condition although that is not his preferred opinion.
112. The Tribunal is satisfied and so finds that there is no psychiatric condition as opined by Dr Klug and Dr Walden. The Tribunal also notes that psychologist Ms Morley does not provide a diagnosis of any psychological or psychiatric condition. The Tribunal does however agree with Dr Maniam and Dr Klug that there is chronic pain disorder which in part may explain Mr Olliek’s exaggerated pain responses. Other possible explanations are that there may be some compensatory gain for Mr Olliek. The Tribunal must however reach a decision in any matter taking into account the totality of evidence available to it which includes not only that of treating specialists, but also that of the Applicant himself.
113. While it may be tempting to conclude that Mr Olliek has no incapacity at all, let alone related to a work injury in 1998, the Tribunal finds on a consideration of all the evidence, that there is incapacity of Mr Olliek's lower back as a result of a work accident on 15 December 1998 and continuing past 11 January 2001. This work injury impacted significantly and permanently on the underlying degenerative changes in Mr Olliek's lower back. In this regard, the Tribunal is of the view that there has been a permanent aggravation of the underlying degenerative condition. The Tribunal's finding is based on the opinions of Dr Maniam and Dr Gliksman. Dr Klug’s opinion supports Dr Maniam’s view that there is a chronic pain disorder operating in this gentleman. Thus, the Tribunal finds that there is a continuing incapacity as a result of the work injury on 15 December 1998 and that Mr Olliek is entitled to receive compensation in relation to that continuing incapacity and also medical treatment expenses as reasonably recommended by qualified medical practitioners. The Tribunal considers that this medical treatment includes assessment and treatment provided in an appropriate multi-disciplinary pain management clinic as discussed principally by Dr Maniam and Dr Klug.
114. Considering the issue of permanent impairment, as has already been found by the Tribunal, Mr Olliek clearly exaggerates the level of his disability and restrictions as evidenced by the video. This is a case in which the video evidence has significantly impacted on medical opinion and on the Tribunal's determination. The Tribunal finds that on all of the evidence, while there is ongoing incapacity, there is not a loss of half the normal range of movement as required for a ten per cent impairment from Table 9.6 of the Guide. At best, the Tribunal considers the appropriate impairment is five per cent from Table 9.6 of the Guide which represents minor restrictions. There is no rating appropriate from Table 9.5 of the Guide.
115. In relation to the issue of permanent impairment of sexual functioning as a result of Mr Olliek's back injury, which the Tribunal finds is continuing to incapacitate him beyond 11 January 2001, it is difficult, given the evidence, to objectively assess whether or not there is any sexual dysfunction experienced by Mr Olliek. The Tribunal does consider, as a side issue, that if there was sexual dysfunction, then Table 11.1 of the Guide is appropriate to assess such dysfunction. The Tribunal notes however that in relation to a condition being permanent, it must satisfy the "Principles of Assessment" as discussed at the commencement of the Guide. Noting the opinions of Dr Lowy and Dr Katelaris, there have been recommendations in relation to treatment by way of medication and perhaps the pain management clinic which may in fact assist Mr Olliek in relation to what he alleges is his sexual dysfunction. Given the Guide’s requirement that to be permanent an impairment must take into consideration whether an employee has undertaken all reasonable rehabilitative treatment for the impairment and when the full and final effects of the natural healing process and active medical treatment has been achieved. The Tribunal is of the view that these treatment measures have not been undertaken by Mr Olliek to the degree which could allow a consideration to be given as to the permanency of any sexual dysfunction reported by Mr Olliek. In such circumstances, the Tribunal does not consider that it is appropriate at this time to make any assessment of sexual dysfunction.
116. Accordingly, for the reasons set out above and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(i)To set aside the decision under review in relation to matter N2001/273 and in substitution therefor determines that liability for compensation for Mr Olliek's low back injury continues from 11 January 2001 and compensation is payable pursuant to sections 14, 16, 19, 20 and 21 of the Act. The decision in N2001/273 in relation to sections 24, 25 and 27 of the Act is affirmed;
(ii)In relation to matter N2001/1692, the decision under review is affirmed.
(iii) The Respondent is to pay the Applicant’s reasonable legal costs as agreed or taxed in accordance with the Tribunal’s Practice Direction dated 18 May 1998, in relation to matter number N2001/273.
I certify that the 116 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J D Campbell, Member
Signed: .......................................................................................
AssociateDates of Hearing 12, 13, 14 February 2003
Date of Decision 30 October 2003
Counsel for the Applicant Mr P Stockley
Solicitor for the Applicant Ms S McTegg, Paul A Curtis & Co, Solicitors
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Ms E O'Connor, Sparke Helmore
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