Pearsall and Australian Postal Corporation
[2000] AATA 1061
•1 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1061
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1109 &
) N2000/415
GENERAL ADMINISTRATIVE DIVISION )
Re BEDE SIDNEY PEARSALL
ApplicantAnd AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date1 December 2000
PlaceSydney
DecisionThe decision under review is set aside and the Tribunal substitutes in lieu thereof its decision:
1.that the Respondent, Australian Postal Corporation, is liable to pay compensation to Bede Sidney Pearsall for the work-caused disease of lumbosacral disc degeneration;
AND THAT he suffers a permanent impairment as a result of the said disease amounting to 20% on the Guide to the Assessment of the degree of permanent impairment prepared pursuant to s28 of the Safety, Rehabilitation and Compensation Act 1988.
2.This matter is remitted to the Respondent in order that it might assess the amounts of compensation to be paid.
3.The Respondent is to pay the Applicant's costs.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
WORKERS COMPENSATION - Discrete injury to Applicant. Whether the effects of that injury had ceased. Whether the injury unmasked an underlying degenerative condition.
Jurisdiction of Tribunal. Whether claim for permanent impairment and economic loss had been the subject of a reviewable decision by Respondent.
Safety, Rehabilitation and Compensation Act 1988 - ss16, 19, 24, 27, 60, 62, and 64
Lees v Comcare and Anor 29 AAR 350
REASONS FOR DECISION
1 December 2000 Senior Member M D Allen
On 24 November 1992 the Applicant, whilst in the course of his employment as a night sorter at the Campbelltown Post Office, injured his lower back when lifting a bag of mail.
An application for compensation was acceded to by the Respondent and the Applicant continued to be paid compensation for the work-caused injury up to the 26 June 1998.
On 29 June 1998 a delegate of the Respondent determined that the Applicant was no longer entitled to the payment of compensation in respect of the injury described as "soft tissue injury to back". That determination was affirmed on review on 30 July 1998.
The Applicant sought review of the reviewable decision of 30 July 1998 by the Administrative Appeals Tribunal and that matter came before the Tribunal bearing number N1999/1109.
On 16 December 1999 the Applicant's solicitors wrote to the Respondent stating inter alia (T2: N2000/415):
"We provide the following details in relation to our client's claim:-
1. …
2.…
3.Between 1976 and 1986 Mr Pearsall worked as a post officer and would load and unload trucks with bags and would then load his own bag with mail and deliver that mail in a one strap bag by carrying it on one shoulder and delivering mail which required bending and lifting whilst he continued to carry the bag.
4.Between 1986 and 1995 Mr Pearsall worked at Campbelltown Post Office as a night sorter and would unload all bags and parcels onto a conveyor belt, lifting the bag and then emptying the contents of the bag onto the conveyor sorter.
5.On 24th November, 1992 Mr Pearsall injured himself by lifting a bag of mail in the course of his employment.
6.During the course of Mr Pearsall's employment with Australia Post his requirement to carry mail on a one strap bag and his duties to lift and empty contents of bags onto a conveyor belt caused him to suffer injury.
…"
The said letter also made claims for economic loss pursuant to s19 and s21 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) together with claims for permanent impairment and non-economic loss. A further claim for household services, pursuant to s29 of the said Act was also made.
On 22 February 2000 a delegate of the Respondent wrote to the Applicant's solicitors stating inter alia (T3: N2000/415):
"We note your client's application for a claim for compensation in respect of permanent impairment and non-economic loss.
Liability in relation to his back condition was ceased in a determination dated 29/6/98. That determination was affirmed in a s62 decision dated 30/7/98.
I have examined the available medical evidence, including the report of Dr Bracken which was enclosed with your correspondence and Mr Pearsall's application 16/12/99. I am not satisfied on the evidence that Mr Pearsall continues to suffer from a work-related injury and therefore it is my view that the decision to cease liability was correct. To remove any doubts which may exist regarding the AAT's authority to consider your client's claims under sections 24 and 27, I will issue a further s 62 decision specifying the extent of the cessation and denial of further liability:
The determination of 30/7/98 is varied to read as follows:
'Australia Post is not liable to pay compensation to Mr Pearsall in respect of any injury to the back. The cessation of liability encompasses all relevant provisions of the Act, including sections 14, 16, 19, 20, 21, 24, 25 and 27.'"
The Applicant then lodged with the Administrative Appeals Tribunal an application to review the reviewable decision of 22 February 2000 and that application became matter N2000/415 before the Tribunal.
Both matters came on for hearing before me at Sydney on 6 November 2000. At the outset of the proceedings, counsel for the Respondent submitted that the only matter properly before the Tribunal was a review of the decision ceasing liability to pay compensation for injury arising out of the incident of 24 November 1992. In his submissions counsel referred to the decision of the Full Court of the Federal Court in Lees v Comcare and Anor 29 AAR 350.
Section 60 of the SRC Act defines "reviewable decision" as a decision made under s62 of the SRC Act. Subsection 62(1) then states:
"A determining authority may, on its own motion:
(a) reconsider a determination made by it; …"
Subsection 64(1) of the SRC Act then states that an application may be made to the Administrative Appeals Tribunal for review of a reviewable decision.
In my opinion the delegate of the Respondent on 22 February 2000, in varying the reviewable decision of 30 July 1998, exercised powers pursuant to subs62(1) and, as he stated, issued a further s62 decision. That decision encompassed what was termed a "nature and conditions claim", that is to say a claim that the Applicant suffers injury as a result of the nature and conditions of his work additional to the specific injury of 24 November 1992 together with claims for both economic and non-economic loss. The matter of household expenses, pursuant to s29 of the Act, was not considered by the delegate and consequently was not before me.
The Applicant, who was born on 17 July 1938, entered the employ of the Respondent on 7 April 1975 after an initial series of sedentary type occupations mainly concerning retailing. It has not sought to be suggested by the Respondent that anything in the Applicant's employment history prior to 7 April 1975 caused or contributed to his current condition.
The Applicant's original employment was as a postman in the Sutherland Shire and he continued in these duties until 1986. These duties involved him walking a 10 kilometre beat from Monday to Friday inclusive and carrying a bag full of mail. This mail-bag had one strap which was carried over his right shoulder (the Applicant being left-handed). For the last 12 months of his duties he was given a trolley, which he pushed, as a result of complaining about pain in his shoulder and headaches.
The mail-bag carried by the Applicant weighed between 16 to 19kgs, depending on the volume of mail. Once the contents of the bag were exhausted, he would go to a further pick-up point where additional mail was waiting for him. In evidence he stated that during this time he had no difficulties with his back but only his shoulder.
In 1986 the Applicant transferred to Campbelltown Post Office as a night sorter. At that Post Office he worked under the supervision of a Head Night Sorter but there was only himself and the Head Night Sorter to carry out the work. This involved unloading three trucks a night and sorting letters and parcels. He worked from 10pm to 6.30am the next morning. If additional mail came in, then overtime was worked.
The Applicant's duties involved him picking up mail-bags and placing those mail-bags onto a conveyer belt in the case of first class mail, whereas parcels were kept downstairs. Initially letter-bags could weigh up to 30kgs, and bags of parcels up to 70kgs. In particular, when he first started at Campbelltown, some of the parcels were extremely heavy as spare parts for motor vehicles were forwarded using the postal system.
After loading mail-bags containing letters onto the conveyer belt, the Applicant was then required to take the bags and tip the contents into bins. The Applicant stated that these bins came to "nearly chest height". After placing the letters into bins, the Applicant and his supervisor would then sort them.
The Applicant, in his evidence, stated that it was on 22 October 1992 when he injured his back. This is clearly incorrect and, in giving his evidence, the Applicant was clearly mistaken as to many details. For example, he also stated that the weight restriction on mail-bags was 19kgs whereas his own report of injury form completed on 25 November 1992 (Document T26) correctly states that bags are not to be more than 16kgs. Given inaccuracies in his evidence, I find that where the Applicant's own evidence contrasts or contradicts with contemporaneous written material, the contemporaneous written material is the correct version of events.
In his evidence the Applicant stated that weight restrictions on bags of mail were imposed in 1991 but that Mail Centres took no notice of it. Exhibit R5 is the copy of an Australia Post Staff Notice dated 6 June 1985 which states interalia:
"Wherever possible the gross weight of a bag of mail originating in Australia (including parcels weighing up to 15kg) should not exceed 16kg.
No mail officer is required to manually handle a mail bag exceeding 16kg without assistance. In handling such items assistance must always be sought either from another mail officer or by using suitable mechanical aids where available."
The staff instruction then goes on to provide for positive identification of bags weighing in excess of 16kgs.
The Applicant's evidence was that he regularly handled bags weighing in excess of 16kgs. Notwithstanding the instruction outlined above, I am prepared to accept that what the management of Australia Post decreed as standard operating instructions was not always adhered to in mail centres and that bags in excess of 16kgs without markings found their way to the mail centre where the Applicant was employed.
As to the incident on 25 November 1992, in the accident report referred to above the Applicant stated:
"Cutting tags of mail bags coming up conveyer belt. Picked up bag to put with others felt sharp pain, middle of back upper. Also pain in right groin area. Head n/sorter weighted (sic) bag. It was 25kgs. It was full of large letters & loose Readers Digests."
The Applicant then went on to state:
"Bags are to be not more than 16ks. This bag was 25kgs. The one after 19kgs. We consistently have bags over the reg. weight. W/out the card that says, two to lift."
That the bag did not have the correct label was confirmed by the Applicant's superviser (Document T27).
The Applicant stated that having hurt his back, he immediately stopped work and went home. He consulted his general practitioner the next day. Initially the general practitioner gave the Applicant a certificate for absence from work and prescribed pain killers but, when the pain did not resolve, sent him to Dr Giblin, Orthopaedic Surgeon.
Whilst under the care of Dr Giblin, and some five to six months after the initial injury, the Applicant noted he was getting pain in his groin and, as a result, Dr Giblin requested that the Applicant's hips be x-rayed and it was found that the Applicant had arthritis in his hips. That condition has continued and the Applicant is currently waiting admission to hospital for a bilateral hip replacement.
On 10 May 1995 the Applicant ceased his employment with the Respondent as he accepted a voluntary redundancy. Prior to that time he had attended work on light duties, working no more than four hours per day.
In 1993 the Applicant undertook a return to work program which involved sitting at a computer and redirecting mail and also the sorting of mail. It did not, however, involve lifting weights. He ceased these duties because he began to get pain in his back once more.
In discussing these events I found the Applicant's reasoning and motivation quite bizarre. He stated that when he went back to work on light duties, he stopped taking his medication and, when pain returned, he then sought a further certificate from his medical practitioner stating that he was unfit for work. He then, having ceased work, recommenced taking his medication.
The Applicant again returned to work in 1994 on restricted duties. Again he ceased taking his medication when he returned to work. He stated in evidence that he would be at work for short periods, then off for another couple of months.
In cross-examination the Applicant conceded that he had sought a voluntary redundancy and a reason for that was that his hips had begun to trouble him to a greater extent. Although he then added that he did not ask for a redundancy but that it was offered, I note that a memorandum dated 4 September 1995 from the Applicant's Area Manager, addressed to the Manager of the Human Resources Branch of the Respondent, regarding the Applicant states inter alia (Document T73):
"The CEPU have contacted me and requested that I pursue the offer of a VER as soon as possible."
That memorandum also states that attempts to a graduated return to work had failed with the Applicant only being able to resume for a few days at a time.
The Applicant's attitude to his work at that stage stands in contrast to his attitude as at 21 April 1994 where the rehabilitation counsellor overseeing his return to work, reported (Document T69):
"At last contact on 14.4.94, Mr Pearsall was experiencing no difficulties with his duties and agreed that there was no further need for rehabilitation intervention. Mr Bruce Donaghey, Area Postal Manager Campbelltown Network is pleased with Mr Pearsall's progress and also agrees with this file closure."
Later in his cross-examination the Applicant stated that the pain had abated in February 1994 but later came back.
As stated above, the Applicant was initially seen by Dr Giblin, Orthopaedic Surgeon. In a report dated 25 January 1993 (Document T33) Dr Giblin states:
"His CT Scan was difficult to interpret and his xrays showed some multiple level degenerative changes."
At that time Dr Giblin referred him for physiotherapy. On 12 March 1993 the Applicant was examined by a Commonwealth Medical Officer who found that the Applicant had no obvious deformity of the lumbar spine and walked normally, and opined (Document T34):
"Bede Pearsell (sic) has a clinical diagnosis of a soft tissue injury to the lower back. He is fit to return to 2 days a week restricted duties while he is attending physiotherapy. Thereafter he is fit for full-time restricted duties."
That same Commonwealth Medical Officer, on 17 May 1993, opined as follows (Document T37):
"There is no evidence to suggest that he has more than an uncomplicated spondylosis of the lumbar spine with chronic pain aggravated by his soft tissue injury."
And recommended that the Applicant was fit for restricted duties. That opinion was substantially agreed with by Dr Giblin who, on 19 May 1993, considered that the Applicant was fit for light duty work. As the Applicant did not return to work, claiming that he still experienced back pain, he was examined by Dr James Evans, Orthopaedic Surgeon, at the request of the Respondent, on 23 June 1993. In his report of that day (Document T42), Dr Evans opines:
"1. This man suffers from aggravation of degenerative change in the lumbar spine.
2. On the balance of probabilities:-
An aggravation of an underlying and pre-existing condition to which the 24.11.92 incident has contributed something, but I believe that other factors are probably more important. It appears that for the last 19 years he has worked for Australia Post. For ten years he was on the beat carrying a heavy bag which he said could go up to 30 kg at times. He was always carrying this on one shoulder and he said that the current wisdom is to carry on one shoulder then change to the other. For a couple of years, before he went off work, he said that he spent quite a lot of his time unloading 25 kg bags and throwing them to one side, apart from his other job of mail sorting. Therefore, I think that this sort of work over the years could contribute significantly to the degenerative change he has. Furthermore, on X-ray, I note that at least at one level there are what are called traction osteophytes. These are thought to be more the result of injury than of degenerative change.
3.I believe there is some permanent aggravation of the underlying condition to which his employment did contribute.
4.He is fit for light duties only. …"
In his report, Dr Evans also stated that he did not think that physiotherapy was going to be of any use to the Applicant. He stated:
"It will relieve him for brief periods only but will be of no long term benefit. He will be just as well off going for a good walk or a swim, or perhaps having some hydrotherapy. …"
As a result of these comments the Respondent ceased paying for the Applicant's physiotherapy.
The Applicant was again seen by Dr Evans on 22 December 1993 and Dr Evans' report following that consultation is Document T56. In taking a history from the Applicant, Dr Evans noted:
"… he was put back to work on night shift in August. He lasted one night only. He was sorting mail but he said he had to do some bending and he could not manage this. I note that he went back to work four hours per day on 19.11.93. He said that he had to drive for an hour each way to and from work and sitting and standing at work brought on the symptoms. There was, however, not much bending involved. he worked for four days only. He has not worked since then. …
PRESENT COMPLAINTS Backache is lumbar and down to the back of the left leg to the knee and lately he has had aches at the back of the left thigh, to a lesser extent. He said symptoms have increased since he saw me last. He is most comfortable lying down. He can sit and stand for about 15 minutes before he has symptoms. He needs to walk about."
Following the taking of the history and examination, Dr Evans opined that the Applicant suffered lumbar spondylosis aggravated by his years of work but the condition was not attributable to the incident of 24 November 1992 from which he would have, by now, recovered. Dr Evans, however, did not think that the aggravation to the lumbar spondylosis would cease and that there was a permanent aggravation from years of work.
The Applicant saw Dr Evans and gave him the history outlined above on 22 December 1993. On Saturday 18 December 1993 and Sunday 19 December 1993, the Applicant was the subject of a surveillance report. The video film taken of the Applicant on those dates, together with the written investigation report, comprised Document T99 in these proceedings. That video film shows the Applicant mowing a lawn and, immediately after finishing mowing, hanging washing on a clothes-line. The latter activity involved him in bending and picking clothes up from a clothes-basket and then putting them on the line. The next day he was observed to drive his vehicle from his residence at Bundanoon to Heathcote, a distance of some 104 kilometres. The video then shows him walking quite normally following that journey.
The video films were shown to Dr Evans who, on 10 January 1994 (Document T57A), stated:
"On the evidence of these videos, one would have to say that on these days it is likely that he would be fit for normal work, including mail sorting and lifting up to 16 kg bags."
On 11 May 1998 the Applicant was examined by Dr Anthony Hodgkinson, Orthopaedic Surgeon, at the request of the Respondent. Dr Hodgkinson took a history that the Applicant was at that time taking Panadeine Forte, three a day because of hip discomfort, and Zesttoil for control of raised blood pressure. Having examined the Applicant and viewed x-rays of the Applicant's hips, Dr Hodgkinson opined (Document T92):
"1. Mr Pearsall is grossly overweight and is suffering from a constitutional degenerative change in both hips, the right of which is more advanced than the left. He has also a history and evidence clinically of some lower lumbar back degeneration. Discomfort in the lower back at this stage I feel is a secondary effect as a result of painful stiffness developing in the hips, forcing stressful motion on the lower lumbar spine to compensate for restriction in the hip function.
2. On the balance of probabilities, I do not believe the condition of his hips in any way is related to the incident of the 24th November 1992. Any stress on his lower back judging by clinical findings today, would have settled down reasonably after two or three months following the incident on the 24th November 1992.
3. I do not believe Mr Pearsall will continue to suffer from the effects of a compensable condition. I cannot relate his constitutional hip degeneration to any original injury or his work with Australia Post.
4. I feel that the Claimant's underlying condition would have naturally progressed to the state whereby it could be said that he is now incapacitated as a result of those conditions irrespective of any work contribution or aggravation.
5. I feel that the effects of the compensable condition, that is his lower back strain, would have ceased in all probability about February 1993."
Dr Hodgkinson again went on to state:
"6. I do not believe any treatment programme such as acupuncture or physiotherapy is indicated for his back. …"
On 4 November 1999 the Applicant was examined by Dr David Maxwell, Orthopaedic Surgeon, on behalf of the Respondent's solicitors for the purpose of these proceedings. On examination Dr Maxwell noted (Exhibit R2):
"Range of movement of lumbar spine: He is able to flex and reach to his knees. Extension is full with no pain. Lateral flexion to the right is full. He is able to reach to his knees with no pain. Lateral flexion to the left is also full. …"
And opined that the Applicant did not have a significant back injury.
On 12 October 1999 Mr Bracken, Orthopaedic Surgeon, examined the Applicant at the request of his solicitors. Mr Bracken's report of 12 October 1999 is Exhibit A2. Upon examination, Mr Bracken noted:
"Extension was markedly limited to a maximum of 10 degrees only with complaint of more marked pain across the lumbo-sacral junction. … Lateral flexions were terminally limited with complaint of pain at the lumbo-sacral junction. Tenderness in the low back was present at L4-5 and L5-S1 levels and immediately to the right of both those levels."
And opined:
"It is certain that this man had significant degenerative changes present in his low back prior to the incident of 22.11.92 but apparently not symptomatic prior to that date. The action he described as having occurred on 22.11.92 where he threw a 25 kilograms bag of mail into a bin with a twisting motion of his spine was certainly one liable to aggravate degenerative changes in his low back and it is certain that this is what occurred.
Thereafter his back has been symptomatic and it is evident that marked stiffening has occurred in his back such that he now has a less than half normal range of movement in the back. …"
Mr Bracken concluded his report by stating that on the basis that the Applicant's range of movement in the back was reduced to less than half normal range, he had a 20% whole of body impairment.
Mr Tinning, Orthopaedic Surgeon, examined the Applicant on 11 September 2000 and his report of 28 September 2000 is Exhibit A3 in these proceedings. Dr Tinning took a history that:
"His back bothered him after an incident on the 22nd November, 1992 when he lifted and threw a postal bag some 16 or more kgs in weight."
And, after examination of the Applicant, Mr Tinning opined:
"Essentially, I consider that this man has a condition in his lower back of lumbosacral disc degeneration and facet joint degenerative changes and that this condition is due to the nature and conditions of his employment. X-rays in 1992, when he first had this complaint, demonstrate that the condition had been coming on for some time before that, but asymptomatic until 1992. There was then the aggravating incident when he picked up and threw a very heavy mail bag. Symptoms thereafter persisted."
And, having regard to the Comcare Tables, Mr Tinning went on to opine that the Applicant has a 20% level of whole person impairment with regard to the disability in his lumbosacral region.
The Applicant was cross-examined regarding complaints of backache prior to the incident of 24 November 1992 but could not remember any. What is clear, however, from his employment records with the Respondent is that he had, on several occasions prior to 24 November 1992, applied for sick leave on the basis that he was suffering back pain. The first of these occurred on 16 January 1989. In addition, in a history taken by physiotherapist Mr Young (Exhibit R4), the Applicant is recorded as having stated that he had had back pain on and off since 24 November 1992 after lifting mail-bags but had had intermittent back and right leg pain for 10 years.
Although the Applicant, I accept, has had periods of back pain prior to the incident on 24 November 1992, those incidents were not for prolonged periods and are consistent with a degenerative condition which is being aggravated by work activity.
Both Drs Hodgkinson and Maxwell appear to have concentrated on the Applicant's hip condition and I am more convinced in these proceedings by Dr Evans who first saw the Applicant in June 1993, that is to say much closer to the date of the injury. Dr Evans was then of the opinion that the Applicant had, in November 1992, aggravated a pre-existing condition to which work factors had contributed. Dr Evans adhered to that report later, even though he was satisfied that the Applicant was then fit for work (see Documents T56 and T57A).
Dr Evans' opinion is confirmed by Mr Tinning. Mr Bracken refers to degenerative changes being present prior to the incident in November 1992 but not symptomatic. I do not consider that this opinion is inconsistent with the fact that the Applicant had prior intermittent episodes of back pain. What happened after the incident of 24 November 1992 was that his pain remained constant and in need of treatment for an extended period.
On the other hand it is clear from the video materials, and the opinion of Dr Evans of 10 January 1994, that any exacerbation of the Applicant's condition brought about by the incident of 24 November 1992 had ceased at the time the video was taken, namely 18 and 19 December 1993. It is, however, the exacerbation that has ceased and not incapacity caused by the underlying condition.
Although Dr Hodgkinson refers to the Applicant having fair mobility in all range of movements of his back, he does not put a percentage on this range of movement. Dr Maxwell also refers to the Applicant having a full range of both flexion and extension. To me this is consistent with the evidence on the video.
Against this there are the opinions by Messrs Bracken and Tinning, Orthopaedic Surgeons, following their examinations of the Applicant, that he has a impairment equating to 20% on the Comcare Tables as a result of loss of more than half the normal range of movement.
When Dr Evans examined the Applicant on 22 December 1993, he noted that he got the impression of some exaggerated response by the Applicant to his disability. This was confirmed by the video tape of the Applicant's activity which had been taken on 18 and 19 December 1993. In his report of 22 December 1993, Dr Evans found that forward flexion was about half normal. The Applicant has a degenerative condition and it is logical that his range of movement would have decreased since 1993. I am therefore more persuaded by the reports of Messrs Bracken and Tinning that the degree of incapacity is now at 20% as measured on the Comcare Tables.
Paragraph 19(4)(c) of the SRC Act states inter alia that, for the purposes of determining an employee's normal weekly earnings:
"where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;"
In this matter the Applicant was in suitable employment and, although he was only working four hours a day, that was a graduated return to work and he would have been entitled to the difference between the four hours actually worked and his normal weekly earnings. Immediately he accepted the offer of redundancy, which was a voluntary redundancy, he had failed to engage in suitable employment.
Paragraph 19(4)(f) states that where paragraph 19(4)(c) above applies to the employee, the Tribunal must consider whether the employee's failure to accept an offer of employment or to continue to engage in employment, to undertake or to complete a rehabilitation or vocational retraining program as the case may be, was reasonable in all the circumstances. In this matter the Applicant's redundancy was voluntary and indeed requested by him. There is no evidence whatsoever before me that any pressure was brought upon him to accept an offer of redundancy and his evidence is that he was pleased to accept the offer in that his osteoarthritic hips were causing him pain. In these circumstances, therefore, I do not consider that the Applicant is entitled to any payments pursuant to section 19 of the SRC Act.
Even if the Applicant were to mount an argument that he was capable of working at least four hours per week, the evidence persuades me that he would not be working in any event because of a totally unrelated condition, namely his bilateral osteoarthritis of the hips.
Claims have been made for medical treatment pursuant to s16 of the SRC Act but, given the reports of Drs Evans and Hodgkinson, I am satisfied that there would be no benefit to the Applicant in undertaking physiotherapy or acupuncture. Any claim under this head is therefore rejected.
For the reasons above, the decision under review will be set aside and the Tribunal will substitute its decision, namely that the Respondent is liable to pay to Bede Sidney Pearsall compensation for lumbosacral disc degeneration and that he suffers a permanent incapacity caused by the said condition which permanent incapacity amounts to 20% on the Comcare Tables.
The matter is remitted to the Respondent in order that it can calculate the amounts of compensation to be paid to the Applicant.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: .....................................................................................
AssociateDates of Hearing 6 & 7 November 2000
Date of Decision 1 December 2000
Counsel for the Applicant Mr J Wilson
Solicitor for the Applicant Lamond Howard & Associates
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Ms J Dejean,
Australian Government Solicitor's Office
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