Proctor and Telstra Corporation - [2002] AATA 441

DECISION AND REASONS FOR DECISION [2002] AATA 441

ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/948
)

) No N2000/996
)

GENERAL ADMINISTRATIVE DIVISION       )          No N2000/663
           Re      ALAN JOHN PROCTOR
  Applicant
           And    TELSTRA CORPORATION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date11 June 2002
PlaceSydney

Decision      In relation to applications N2000/663 and N2000/996 the tribunal sets aside the decisions under review and decides that the respondent was liable to pay appropriate compensation to the applicant at all times from 16 January 1997 to the present and continuing. In relation to application N1999/948 the tribunal sets aside the decision under review and decides that the applicant qualifies for a 10% whole person permanent impairment payment in accordance with table 9.5 of the Comcare guide. The matters are remitted for the respondent to assess any compensation owing in respect of the applicant's medical expenses, incapacity payments and permanent impairment payment. The respondent is liable to pay the applicant's costs in all three applications.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – aggravation of disease as injury – lumbar spondylolisthesis – ligamentous injury to lumbar spine - qualification for weekly incapacity payments – qualification for medical expenses – whole person permanent impairment lumbar spine and lower limb

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)("ailment", "disease", "impairment", "injury", "permanent"), (9), 14(1), 16(1), 19(1), (2), (4)(c), 24(1), (2), (3), (4), (5), (6), (7), 27(1), 28(1), (3), (4), (5), (7), (9), (10), 37(1), (5).

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Comcare v Amorebieta (1996) 66 FCR 83
Re Gibson and Commonwealth (1985) 7 ALD 558
Re Prica and Comcare (1996) 44 ALD 46
Pulitano v Telstra Corporation (1998) 50 ALD 1015
Tippett v Australian Postal Corporation (1997) 27 AAR 40
Re West and Comcare (AAT 9320, 23 February 1994)

REASONS FOR DECISION

11 June 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

HISTORY OF APPLICATIONS
n2000/663 – incapacity payments and medical expenses

On 30 January 1997 Alan John Proctor ("the applicant") filed an incident report with Telstra Corporation ("the respondent") (ex TD1/T3). He said that on 16 January 1997 at 1.50 pm he was trying to pull a cable through a duct when he felt a sharp pain in his lower back. He said he had "back strain". Mr N Beard was named as a witness.
On 22 January 1997 Mr Proctor had filed a workers compensation claim with Telstra (ex TD1/T4). This covered similar territory to the incident report but noted that he had treatment on 17 January 1997. He had been sent for x-rays. He had had no similar previous injury. He had not returned to work.
On 30 January 1997 a compensation delegate within Telstra determined (ex TD1/T8) that Telstra was liable to compensate Mr Proctor for "lower back strain" and incapacity payments were awarded for 17 to 24 January 1997. Subsequent decisions authorising incapacity payments were made. Subsequent determinations to pay compensation for the applicant's reasonable and injury-related medical expenses were also made.
On 7 July 1997 the applicant embarked on a rehabilitation program within Telstra (ex TD1/T38). On 3 July 1997 a delegate had issued a determination (ex TD1/T37) requiring the applicant to undergo the rehabilitation program and advising that his weekly compensation payments would be made under s 37(5) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") instead of s 19 of the Act.
On 27 November 1997 a Telstra delegate determined (ex TD1/T54) that liability in respect of lower back strain had ceased with effect from that day.
On 4 December 1997 the applicant sought reconsideration of the decision to cease liability (ex TD1/T58). He wrote that after his return to work on full duties problems arose from 25 September 1997 and his symptoms had recurred.
Reviewable Decision

On 26 February 1998 a respondent's delegate issued a reviewable decision (ex TD1/T69, T70) affirming the primary decision in paragraph 5 above. In the reasons for the reviewable decision the delegate said in paragraphs 5 to 8:
"The subject of this review is to determine whether Telstra Corporation continues to be liable to pay compensation to the claimant in respect of the injuries sustained in accordance with the provisions of the SRC Act.
"I have noted the comments of the rehabilitation case manager indicating that the claimant had been assessed fit to return to pre-injury duties from 8 September 1997 by his treating doctor, Dr Blair, which has been discussed in the reasons accompanying the determination in dispute.
"I also note the claimant was afforded the opportunity to provide further specialist medical evidence to support any claim for ongoing effects associated with this claim, however no such medical evidence was provided to the primary delegate nor has the claimant provided any further medical evidence in support of this request for reconsideration.
"I have carefully considered all the material facts of this case and have particularly noted the claimant's lengthy submission. I am satisfied, on balance that the claimant no longer suffered effects of the injury sustained on 16 January 1997 and was found to be fit to return to his normal duties from 8 September 1997. I note that the claimant indicates in his submission that around 3 December 1997 he had aggravated his condition. I consider this to indicate that there may have been a new injury sustained around that time, for which the claimant has now submitted a further claim for compensation. I do not intend to discuss the claim further in this review."
On 2 May 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision in paragraph 7 above. This application was submitted after the period of 60 days allowed for applications to the tribunal under s 65(4) of the Act. On 14 June 2000 the tribunal decided to extend the time for the lodging of the application for review to 2 May 2000.
n1999/948 – permanent impairment
On 14 January 1998 the applicant filed an incident report (ex TD1/T63) stating that there had been an aggravation of the original compensable injury that occurred on 16 January 1997 (see paragraph 1 above). The continual lifting of a ladder on and off the applicant's work truck, together with his having to do some work in a crawl position had brought on constant pain. He had sought medical help on 3 December 1997. In the claim (ex TD1/T64) filed on the same day he described constant pain in his lower back and buttocks because of the continual lifting of ladders and his crawling in ceilings and under houses. He wrote that he had had a similar injury previously. Formally he claimed for "disc lesion, spondylolisthesis".
On 1 April 1998 a delegate determined that the applicant had suffered an injury on 3 December 1997 causing a temporary aggravation of his L4-L5 disc lesion and L5-S1 spondylosis (ex TD1/T78-T80). A determination approving incapacity payments followed, as did determinations paying medical expenses.
On 28 March 2000 a delegate determined that the respondent was no longer liable to compensate the applicant for the aggravation injury (ex TD2/T12). Liability had in fact ceased on 11 December 1998. It was decided that certain medical expenses paid after that date should not have been paid. These overpayments were waived.
On 3 November 1998 the applicant had lodged with Telstra a claim for a lump sum compensation payment in respect of permanent impairment (ex TD1/T106). He claimed in respect of chronic lower back pain, restricted movement, impaired walking and forward displacement of vertebrae over the lower segment. A non-economic loss questionnaire was attached.
On 27 November 1998 a delegate determined that the permanent impairment claim was to be rejected (ex TD1/T117-T119).
On 20 December 1998 the applicant sought reconsideration of the decision in paragraph 13 above (ex TD1/T126).
Reviewable decision

On 10 June 1999 a delegate issued a reviewable decision (ex TD1/T138-T140) affirming the primary decision. Essentially, the delegate reasoned that the medical evidence suggested that the applicant had a 10% whole person permanent impairment in the lumbar spine resulting for a degenerative pre-existing condition and that the permanent impairment was in no way related to the applicant's employment by Telstra.
On 28 June 1999 the applicant lodged with the tribunal an application for review of the decision in paragraph 15 above (ex TD1/T1).
N2000/996 – incapacity payments
On 19 March 2000 the applicant's representative wrote to the respondent seeking to have Mr Proctor's incapacity payments recommenced (ex TD2/T10). On 3 December 1998 Telstra had written to Mr Proctor (ex TD1/T120) in respect of his claim for disc lesion and spondylolisthesis (see paragraph 9 above). The applicant had been referred to Dr A Chan, an orthopaedic surgeon, for a routine review on 18 November 1998. Dr Chan had stated that as a result of Mr Proctor's work on 3 December 1997 he had suffered a temporary aggravation of his pre-existing condition, however the aggravation had ceased. The writer said:
"On the basis of Dr Chan's report it appears that GIO [for Telstra] should no longer accept liability for your condition. However, prior to making a decision in this regard, I wish to afford you an opportunity to submit any further medical evidence which will be duly considered as part of the review process."
The applicant's representative on 19 March 2000 wrote (ex TD2/T10):
"Our client has instructed us that he was under the impression that his application for review [ie N1999/948 above] dealt with ongoing incapacity payments and treatment expenses. There is a letter from GIO dated 3 December 1998 [the letter in paragraph 17 above] which foreshadows that a decision regarding ongoing payments would be made, however GIO has never made a determination. …
We are now instructed to claim ongoing incapacity payments from 14 November 1998 to date and continuing at the rate of 75% of his preinjury earnings pursuant to s19 of the Act and to claim ongoing treatment expenses pursuant to s16 of the Act."
On 28 March 2000 Telstra issued a determination (ex TD2/T12) to the effect that Telstra's liability ceased on 11 December 1998.
On 4 April 2000 the applicant sought reconsideration of that decision (ex TD2/T14).
Reviewable decision

On 19 May 2000 a Telstra delegate issued a reviewable decision affirming the decision in paragraph 19 above. In paragraphs 13-15 the decision-maker wrote:
"... I am satisfied that the weight of the medical evidence establishes that the claimant's condition resulting from the incident on 3 December 1997 has resolved and any condition that he now suffers is related to his underlying back condition. I have also noted that the claimant is now complaining of pains in the neck, shoulders and upper limbs which commenced in January 1999 after he ceased employment with Telstra and for which the cause is unknown.
"In these circumstances I have decided to affirm the primary determination pursuant to Section 62(5) of the SRC Act and so find that Telstra Corporation Limited is not liable to pay compensation to the claimant in respect of this claim on and from 11 December 1998, being the date of Dr Chan's last report. The relevant determination (Reviewable decision) to this effect is attached along with the notice of the claimant's rights of appeal.
"The claimant had been performing alternative suitable duties on a permanent basis when he ceased employment with the Telstra Corporation on 13/11/98. I agree with the primary delegates [sic] decision that the claimant is not entitled to any incapacity payments for the period between 13/11/98 11/12/98 in accordance with the SRC Act because the employee took a voluntary redundancy and thereby failed to continue to engage in suitable employment."
On 27 June 2000 the applicant lodged with the tribunal an application for review of the decision in paragraph 20 above.
RELEVANT LEGISLATION
The following provisions of the Safety, Rehabilitation and Compensation Act 1988 are relevant: ss 4(1)("ailment", "disease", "impairment", "injury", "permanent"), (9), 14(1), 16(1), 19(1), (2), (4)(c), 24(1), (2), (3), (4), (5), (6), (7), 27(1), 28(1), (3), (4), (5), (7), (9), (10), 37(1), (5).
SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
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;
…
permanent means likely to continue indefinitely;
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
Compensation for injuries resulting in incapacity
19. (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
…
(c) 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;
…
Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(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.
…
Compensation for non-economic loss
27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…
Approved Guide
28. (1) Comcare may, from time to time, prepare a written document, to be called the "Guide to the Assessment of the Degree of Permanent Impairment", setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
…
(3) A document prepared by Comcare under subsection (1), and an instrument under subsection (2), have no force or effect unless and until approved by the Minister.
(4) Where Comcare, a licensed authority, a licensed corporation or the Administrative Appeals Tribunal is required to assess or re-assess, or review the assessment or re-assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non-economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensed authority, the licensed corporation or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re-assessment or review, and the assessment, re-assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non-economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1) (c) may be 0%.
…
(7) When a document prepared by Comcare in accordance with subsection (1), or an instrument under subsection (2), has been approved by the Minister, Comcare shall cause copies of the document or instrument, as the case may be, to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives those copies.
…
(9) Sections 48 (other than paragraphs (1) (a) and (b) and subsection (2)), 49 and 50 of the Acts Interpretation Act 1901 apply in relation to a document, being the approved Guide or an instrument varying or revoking that Guide that has been approved by the Minister, as if, in those sections, references to regulations were references to such a document and references to a regulation were references to a provision of such a document.
(10) For the purpose of the application of the provisions of the Acts Interpretation Act 1901 in accordance with subsection (9), a document referred to in that subsection shall be taken to have been made on the date on which it was approved by the Minister under this section.
…
Provision of rehabilitation programs
37. (1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
…
(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a) if the employee is undertaking a full-time program-compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b) if the employee is undertaking a part-time program-compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.
…

BACKGROUND

Mr Proctor was born on 16 February 1957 (ex TD1/T3). He left school at age 18 (ex TD2/T9) with Higher School Certificate (ex A2). He worked as a plasterer for five years (ex TD2/T9). He commenced work with Telstra (or its predecessors) on 15 January 1981 and concluded with Telstra on 13 November 1998 (ex A5). He took involuntary redundancy from Telstra (ex A5).
Mr Proctor is no longer with his wife. He has the care of four children aged between 18 and 10. He attends to housework but cannot do gardening. He played rugby union football until 1991 and lawn bowls up to January 1997 (ex TD1/T74).
Mr Proctor's work history with Telstra in the final two years was:

Immediately before and on 16 January 1997 he worked full-time as a communications officer grade 3.
He was injured on 16 January 1997 and went off work.
He was off work entirely until 7 July 1997 when he returned to work on a rehabilitation program doing "spotting" (ex TD1/T38). This was a restricted duties, full-time position. During four weeks of the period he was on recreation leave (ex TD1/T74/141).
On 9 September 1997 the rehabilitation program ceased (ex TD1/T51). He commenced to work doing his pre-injury duties (ex TD1/T49). Mr Elliott, for Mr Proctor, pointed out that Mr Proctor had never completely recovered. He still complained of pain and of having to work carefully to avoid causing too great a level of pain. (Exhibit TD1/T58/114 supports this.) Mr Elliott said that Dr Blair's clinical notes (ex A6) show that the applicant was never completely satisfactorily back at work. An entry for June 1997 might offer some support for this.
On 3 December 1997 he saw his general practitioner, Dr Blair, because his symptoms had re-emerged. He was off duty on medical grounds from 4 December 1997 until about 23 March 1998.
Dr Blair certified him as fit for suitable duties for a month from 23 March 1998 (ex TD1/T82). He was able to return to work but with restrictions: no lifting in excess of 5 kg, no repetitive bending or stooping, no work involving climbing ladders or working in restricted spaces. He was given office support duties (ex TD1/T76).
On 27 May 1998 that rehabilitation program was closed (ex TD1/T97) and he worked on full-time, on restricted duties, until the redundancy.

Mr Proctor is in receipt of a Disability Support Pension from Centrelink (ex TD2/T9). He has been in receipt of such since 20 November 1998 following a successful appeal to the Social Security Appeals Tribunal after his claim was initially rejected.
HEARING, APPEARANCES AND DOCUMENTS
The tribunal convened a hearing in this matter in Sydney on 16 and 17 January 2001. Mr G Elliott of counsel represented Mr Proctor. Mr B Kelly of counsel represented the respondent.
The tribunal had access to documents which were accepted into evidence and marked as follows:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1-T141) provided by the respondent for application N1999/948.
Exhibit TD2 - Section 37 Statement and associated documents (exhibits T1-T18) provided by the respondent for applications N2000/663 and N2000/996.
Exhibit A1 – Report by Dr J H Drew, orthopaedic surgeon, 14 October 2000.
Exhibit A2 – Report by Dr C H New, orthopaedic and spinal surgeon, 23 March 2000.
Exhibit A3 – Report by Dr New, 18 May 2000.
Exhibit A4 – Radiology report, 11 March 2000.
Exhibit A5 – Telstra statement of service, 23 November 1998.
Exhibit A6 – Dr Blair's clinical notes.
Exhibit A7 – Applicant's statement of facts and contentions for N1999/948, 22 November 1999.
Exhibit R1 – Four-page Report by Dr A Chan, orthopaedic surgeon, 7 February 2000.
Exhibit R2 – Two-page report by Dr Chan, 7 February 2000.
Exhibit R3 – Letter dated 17 April 2000 from Dr N Southern to Dr P G McManis.
Exhibit R4 – Report by Dr McManis, neurologist, 17 April 2000.
Exhibit A5 – Back pain disability assessment form.
Exhibit R6 - Applicant's pain distribution sheet.
Exhibit R7 – Respondent's statement of facts and contentions for N1999/948, 18 May 2000.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The applicant is seeking a range of compensation. He wishes to be paid regular incapacity payments, compensation for his relevant medical expenses and a lump sum in respect of a permanent impairment of the lumbar spine. If the applicant is to succeed in these claims the tribunal must be satisfied that the applicant sustained an injury as defined in the Act and that it continues to affect him.
medical evidence
General practitioners

Dr Blair, the applicant's general practitioner, provided numerous medical certificates and several full reports. The thrust of the certificates was:

17 January 1997 (ex TD1/T5): low back strain. Unfit for work for a week. Rest and x-rays ordered.
28 January 1997 (ex TD1/T6): same diagnosis. Two weeks off work. Physiotherapy ordered.
Subsequent certificates until 12 February 1997 (ex TD1/T13) where a CT scan was ordered.
Continuous certificates excused the applicant from all work until 14 July 1997.
From 3 March 1997 (ex TD1/T14) the diagnosis, based on the CT scan, changed to minor spondylolisthesis at L5-S1 and disc lesions at L5-S1, L4-L5.
4 September 1997 (ex TD1/T49): L4-L5 disc lesion. Fit to return to pre-injury duty from 8 September 1997. In ex TD1/T31 Dr Blair wrote a report detailing good progress in recovery and a likelihood that he would return to full duties.
3 December 1997 (ex TD1/T57): Spondylolisthesis diagnosed. Unfiit for work 4-18 December 1997.
Subsequent certifications were that Mr Proctor was unfit for work until 23 March 1998 (ex TD1/T82). Rest, physiotherapy, and a new CT scan were ordered in the intervening period. As of 23 March 1998he was certified as fit for work on restricted duties.
On 22 March 1998 Dr Blair wrote (ex TD1/T75) that Mr Proctor had likely aggravated his previous injury on or about 3 December 1997. The effects were temporary and he said would cease in four to six months. Mr Proctor required physiotherapy and rehabilitation. His work restrictions were no lifting over 5 kg, no awkward lifting, no repetitive stooping or bending, no ladder work, no work in confined spaces, no crawling.
On 7 January 1999 Dr N Southern, Dr Blair's practice partner, reported (ex TD1/T128) that he had seen Mr Proctor from 16 December 1998. There had been no radiation of pain into the right buttock and back of right thigh reported until May 1998. By August 1998 pain was reported also in the right leg and foot. He concluded that Mr Proctor initially sustained a stress fracture through the L5 pars interarticularis when he injured himself in January 1997. Even if his spondylolisthesis had predated the injury, the injury aggravated the problem and caused it to become symptomatic. He had spondylolisthesis secondary to spondylosis caused or aggravated by the January 1997 injury.
On 29 July 1999 Dr Blair reported (ex TD2/T6) that Mr Proctor had a painful back. It was unlikely he would ever resume his normal duties as Telstra linesman. He reiterated the work restrictions. His summary opinion was that the original injury was as a direct result of pulling the cable through a conduit. He later hurt his back again lifting ladders on and off the side of his truck. He had a remote prospect of recovery.

Radiology

The CT of the lumbosacral spine dated 17 February 1997 (ex TD1/T12) found a minor L5 on S1 spondylolisthesis with a right pars defect. There was a slight L5-S1 disc bulge and a posterior lateral disc bulge at L4-5.
An x-ray of the lumbosacral spine on 27 August 1998 (ex TD1/T109) found a bilateral pars defect with minimal spondylolisthesis and a minimal L5/S1 disc bulge. There had been no evidence of significant change or deterioration since the last examination.
An x-ray of the lumbar spine dated 11 March 2000 (ex A4) found sclerosis at the pars interarticularis regions of L5 in keeping with the known defect. Osteoarthritis changes at L4-5 and L5-S1 facets were suspected. A MRI of the lumbar spine was carried out. The report found disc degeneration and small focal disc protrusions/annular tears at the L4-5 and L5-S1 levels. There were bilateral L5 pars interarticularis defects with marked sclerosis at the left side. "This in combination with disc changes cause[d] some minor effacement of the left L5 nerve root in the exit foramen although some fat still surrounding the nerve root [was] present. No other evidence of neural compression [was] identified".
Dr A Chan (reporting for the respondent)

On 16 March 1998 (ex TD1/T74) Dr Chan, an orthopaedic surgeon, diagnosed spondylolisthesis due to a pars defect on the right side with slight bulging in two lower lumbar discs. Mr Proctor was not fit to return to work as a linesperson. Lifting and bending were to be restricted to prevent further deterioration. Full-time office duties and supervision work were approved. He had to avoid lifting over 10 kg and working in a bending position for long periods.
On 23 November 1998 he diagnosed degenerative osteoarthritis in Mr Proctor's back (ex TD1/T115). The January 1997 accident had temporarily aggravated the pre-existing condition. The aggravation had ceased when he returned to full duty work in 1997. He said there had been no real accident on 3 December 1997 (despite liability having been accepted for such). "The patient said [this]. The symptoms he felt were manifestations of an underlying degenerative disorder, namely, the ligaments in that area have been stretched after years and years of having to maintain an upright posture" (page 221). There was no permanent impairment caused by the 1997 accident. The January 1997 injuries had healed. He had a 10% impairment under table 9.6 of the Comcare guide (Guide to the Assessment of the Degree of Permanent Impairment ( but it was not attributable to work.
On 11 December 1998 (ex TD1/T124) Dr Chan expanded on his earlier report:
"… I believe the January, 1997 accident had temporarily aggravated a pre-existing condition. It had ceased when he returned to work in July that year.
"On the 3.12.97 it was not an accident at all, so he did not aggravate the pre-existing condition. His feeling of pain is due to years and years of stretching the lumbar ligaments. He would have had that pain whether he stayed at work or not. If you consider it an aggravation of a pre-existing condition, it has now ceased."
On 7 February 2000 (ex R1) Dr Chan recorded Mr Proctor's current complaints as pain in the lower right side of the lumbar spine. He reported pain in the right side of the lower lumbar spine going down the buttocks and back of the thigh with pins and needles and aches down the left leg as far as his toes but to the right leg in the bow of the foot. Mention was made also of other widespread sites of pain as on the diagram in ex R6. Dr Chan said that since Mr Proctor's return to work the persistence of pain was not consistent with injuries related to his symptoms at all. He said it was more likely that the cause was the stretching of ligaments which had occurred because of pre-existing weakness in the pars interarticularis of the L5 vertebrae. After 20 years of stretching it had become symptomatic. The accident only drew attention to the weakness in the lumbar spine. It did not cause the basic abnormality. The pre-existing condition was the cause of Mr Proctor's inability to work. His main complaint was of pain which is difficult to cure. The stretched ligaments would affect Mr Proctor from then on, albeit sometimes intermittently.
Dr D R Sloane (reporting for the applicant)

Dr Sloane, a general surgeon, reported on 18 August 1999 (ex TD2/T7) that as a result of the January 1997 injury Mr Proctor sustained a musculoligamentous injury to his lower back. The prognosis was poor, rehabilitation and pain management having failed. Mr Proctor was not fit for his pre-injury employment and was unfit for any work at the time Dr Sloane saw him. He found a 24% whole person impairment but referred only in general to the Comcare guide and did not explain his opinion.
Dr J H Drew (reporting for the applicant)

Dr Drew, another orthopaedic surgeon, wrote on 11 November 1999 (ex TD2/T9) that Mr Proctor had low back pain associated with a pars defect on the right at L5 and a right postero-lateral disc bulge at L4-5. He was uncertain whether these injuries predated the January 1997 injury. Mr Proctor told him too of other widespread sites of pain. He said Mr Proctor would have difficulty doing any work requiring bending, twisting, heavy lifting or even moderate physical activity. He found a 10% impairment under table 9.6 (ex TD2/T9). He said the back injury appeared to be due to the injury at work on 16 January 1997. On 14 October 2000 Dr Drew commented (ex A1) on the x-ray and MRI of 11 March 2000 and said they were consistent with his report findings from November 1999.
At the hearing Dr Drew gave evidence. He considered the MRI scan (ex A4) significant in view of Mr Proctor's symptoms. The scan indicated degeneration of the lowest two discs in the spine, in addition to pars defects. He saw the injury in January 1997 as having made pre-existing asymptomatic conditions symptomatic. He saw the events of December 1997 as probably causing symptoms representing a work-related continuation of the problem that emerged in January that year.
Dr Drew regarded Mr Proctor's return to work on his pre-injury duties in September 1997 as risky. The pars defect could cause the vertebra to slip forward.
Dr New had asked Mr Proctor about difficulties he had negotiating grades and steps. He had found a 20% whole person impairment as a result in the lower limbs. Dr Drew agreed he had not asked about Mr Proctor's lower limb symptoms. He thought a 20% impairment rating fair.
Dr Drew regarded Mr Proctor's condition as permanent. He would need occasionally to see a doctor. Dr Drew said that Mr Proctor should avoid lifting, bending and twisting. He had no record of problems with standing or walking. He doubted that prolonged sitting was a problem.
Dr Drew disagreed with Dr Chan's assessment in his report of 7 February 2000 (ex R1, R2). Dr Drew saw the onset of symptoms at the time of each of the work events as relevant.
In cross-examination Dr Drew agreed that the degree of Mr Proctor's spondylolisthesis was not unusual. It existed to a very minor degree. Counsel suggested that the CT scan showing spondylolisthesis might have been wrong but Dr Drew did not necessarily accept that. It did not appear on the MRI but, Dr Drew said, it could still be present.
Dr C H New (reporting for the applicant)

Dr New, another orthopaedic surgeon, reported on 23 March 2000 (ex A2). He gave no specific diagnosis. On 25 June 1997 he had said that the January 1997 injury exacerbated a pre-existing condition of spondylolisthesis (ex TD1/T34). He said the condition in 2000 was such that Mr Proctor would continue to have chronic low back pain and fluctuating leg pain. He was unlikely to return to the gainful work for which he was qualified. His ability to do any work depended on Mr Proctor's sitting tolerance. He would find office work difficult. A return to Telstra work was unlikely. He could seek sedentary work which permitted him to get up and move about. He was not to be involved in prolonged driving, sitting or standing. Dr New considered that Mr Proctor should be able to access the Telstra superannuation scheme.
On 18 May 2000 (ex A3) Dr New, again giving no diagnosis, described debilitating back and leg pain. It was unlikely Mr Proctor would ever return to work as a plasterer or Telstra linesman. He could retrain for sedentary office work. He had a 20% whole person impairment of lower limb (table 9.5) but this was not compensable. He had a 10% impairment under table 9.6.
Dr P G McManis (reporting for the applicant)

Dr Southern referred Mr Proctor to Dr McManis, a neurologist, because it was difficult to correlate Mr Proctor's symptoms to any specific diagnosis. He had queried if the condition was neurological (ex R3). Dr McManis said (ex R4) on 17 April 2000 that there was no spondylolisthesis and that a detailed neurological examination turned up normal results.
mr proctor's evidence
In oral evidence Mr Proctor described a high level rugby league and union history between ages 14 and 31. He sustained injuries to eyes, lip and shin, however his back was never injured in football. He took up lawn bowls as a more sedate sport in 1992 after finishing with union. He had stopped bowls after the 1997 accident. In cross-examination he agreed he could still play bowls but thinks it would cause some pain. He had done bushwalking throughout his life. Before 1997 he had had no health problems, seeing Drs Southern or Blair as necessary. He had not seen those doctors about his back, about walking or problems with steps.
When he returned to work in July 1997 on restricted duties he had coped but his back still hurt. When he returned to his pre-injury duties he had taken recreation leave after a few weeks. His pain had increased in that time. During the holidays his back eased but the pain was still present. He had a back "spasm" while on holiday. He could not recall for respondent's counsel, Mr Kelly, what he had been doing at the time. After the holidays, when he returned again to work, the pain grew worse.
On 3 December 1997 the back "locked up" again. He had loaded a 6.5 m ladder onto the top of a truck. His pain had worsened as compared to the previous week. The ladder was dropped or it fell. He could not lift it. However, Mr Kelly, for the respondent, elicited in cross-examination that Mr Proctor had not seen a doctor between June 1997 and the end of that year. Exhibit A6 bears this out. Mr Kelly also put to Mr Proctor that Dr Blair did not record that the back had "locked" in December 1997. The back was described as "very sore again" on 3 December 1997. Dr Blair wrote that the back had never been 100% since return to work on 8 September 1997 but that it had become very sore in the previous two or three weeks. There was no reference to any frank injury. Mr Kelly referred also to Dr Chan's report of 16 March 1998 (ex TD1/T74) in which he recorded that Mr Proctor's back grew worse on 3 December 1997 "without any specific injury".
By mid-1998 the December 1997 symptoms had persisted. He had been unable to mow lawns or do gardening. He could not walk distances (100 m was about his limit) and steps were "a bugger". He had radiating pain in the backs of his legs from early in 1998.
In cross-examination, however, Mr Kelly referred to Dr Blair's notes (ex A6) where, on 16 June 1997, Dr Blair recorded, "back comfortable most of the time but gets some [?] twinges of pain L side of back". Mr Kelly put to Mr Proctor the successive reports of Drs Blair and New who in 1997 tracked improvements in the back as time passed.
He had told Dr New on 23 June 1997 that the pain comes and goes (ex R5). Mr Proctor said this did not mean he was ever pain-free. He simply had more pain at some times. All responses to Dr New's questionnaire (ex R5) were said to suggest relatively limited pain. Mr Proctor had said that the pain had not grown worse recently, that he could tolerate the pain without pain killers, that he could look after himself without causing extra pain, that pain did not prevent him from walking any distance and that he could stand as long as he wanted, albeit with extra pain. He had answered that he could lift heavy weights, albeit with additional pain. He disagreed with that at the hearing. He had said he could complete journeys of less than two hours and that sitting was not a problem for up to an hour.
Mr Kelly pointed out that Dr Sundaraj (ex TD1/T50) had seen a full range of movement in the lumbar sacral spine.

Mr Kelly identified for Mr Proctor a number of other difficulties in Mr Proctor's presentation of his case.

Mr Proctor said he could walk only 100 m. He had walked from the station to the tribunal, probably a little over 100 m. He walks, depending on the day, to do shopping. That is about 200 m. Mr Proctor said he uses a shopping trolley as a type of walker on these expeditions.
Mr Proctor said he had told doctors of his problems walking. Mr Kelly said he had not. Mr Proctor was certain that he had but could not say why he had not, if that was the case. Mr Proctor said he had told Dr New. Mr Kelly referred to the non-economic loss questionnaire (ex TD1/T106) where there had been no reference to walking restrictions. The applicant did not accept that he had had no problems with grades and steps when he completed the non-economic loss questionnaire. Mr Proctor said that his use of a walking stick had been his own idea. Dr Blair had approved it. As regards driving, Mr Proctor said in the non-economic loss questionnaire that he had pain after driving for 15 minutes. He agreed that he does drive longer distances, such as to Penrith a half-hour away from home.

Mr Proctor agreed that he had been fit for the clerical duties assigned him up to the time he left Telstra. Mr Proctor tended to suggest that that work had involved little effort on his part. He answered phones in the morning and processed reports on weekend overtime worked by others, and things of that sort. In cross-examination Mr Proctor conceded he could still do some work. He was capable of washing up. He said he could not do clerical work for eight hours a day, however. He would have problems getting to work. He had not sought work since leaving Telstra. He denied that he could work as a console operator in a petrol station. He would be prevented by his back pain.
Mr Kelly challenged Mr Proctor that he was not as disabled as he said he was. Mr Proctor did not accept this.
the applicant's case
The applicant's case as it was put to the tribunal was that he had been injured in the incident with an obstinate cable on 16 January 1997 and that his condition had been aggravated in late 1997. This resulted in a significant back problem. Mr Proctor was said to have had no back problems before January 1997. Since that time his back problems had been continuous, if variable. Before January 1997 he had led an active and healthy life. He had engaged in rugby at a high level. He had taken up lawn bowls and had enjoyed bushwalking.
A CT scan on 17 February 1997 (ex TD1/T12) had disclosed the applicant's spondylolisthesis. It was uncertain how much degeneration had occurred before the January 1997 injury. The January 1997 incident could be seen as a frank injury or an injury by way of aggravation.
Mr Elliott was critical of the respondent's decision to return Mr Proctor to his full duties in September 1997. Requiring him to lift ladders and work in confined spaces was inconsistent with medical indications. Concerning the duties allocated to Mr Proctor in 1998, Mr Elliott described these as inappropriate clerical duties. They were not an offer of suitable work. The job on offer was a "make work" job.
Mr Elliott referred to Dr Blair's notes for May 1998 where he noted pain radiating into the right buttock and occasionally into the back of the mid-thigh (ex A6). In oral evidence Dr Drew had said that this was consistent with radiated pain caused by spondylolisthesis.
The applicant's post-Telstra medical history has involved pains in many locations, including the lower legs. He has taken such medications as Celebrex, Panadeine Forte and Voltaren since before finishing at Telstra.
Mr Elliott addressed the medical evidence. As regards the evidence of Dr Chan, Mr Elliott said that the aggravation of Mr Proctor's spondylolisthesis identified as temporary by Dr Chan was not temporary at all, in relation to the Act's legal operation. It is instructive to consider Dr Chan's most recent report (ex R1, 7 February 2000). Amongst other things, he said the following in that report:

Since Mr Proctor returned to work the persistence of pain has not been consistent with the injuries related to his symptoms (ex R1/4).
The pain is more likely to be due to the stretching of the ligaments which has occurred because of pre-existing weakness in the pars interarticularis of the L5 vertebrae. After 20 years of stretching it had become symptomatic. The accident (on 16 January 1997) only drew attention to the weakness in the lumbar spine. It did not cause the basic abnormality (ex R1/4).
The main complaint in February 200 was pain, which Dr Chan said is difficult to cure (ex R1/4).
The stretched ligaments would affect Mr Proctor "from now on albeit sometimes it can be intermittently" (ex R1/4).

Mr Elliott said that these comments suggest a permanent aggravation of an underlying condition, manifested by continuing pain. This is a compensable form of injury.
Mr Elliott addressed the applicant's redundancy. The applicant's oral evidence had been that he had written to Telstra in 1997 to inquire about redundancy. He had received no response. The issue was discussed, however, in August 1998. The applicant said that he had agreed then to a management-initiated redundancy. The Telstra statement of service (ex A5) described it as an "involuntary redundancy". Mr Proctor told the tribunal that he had queried this at the time as he thought the redundancy to be voluntary at the time. He told the tribunal that, on mature reflection, he thought Telstra had initiated the redundancy because it had no job for him. His clerical job would end because it was intended that the office where he was working would be closing. His supervisor had told Mr Proctor he should sign to accept the redundancy because, if he did not, Telstra would retire him on medical grounds. The applicant told the tribunal that he did not think Telstra ever looked for other work for him. Mr Elliott submitted that the applicant's decision to terminate his employment with Telstra was not a decision of his own free will.
As regards the claim for a payment in respect of permanent impairment, Mr Elliott suggested that Dr New's assessment of 10% whole person impairment because of the lumbar spine was a conservative estimate. This was an assessment under table 9.6 of the Comcare guide. Mr Elliott suggested that the applicant's referred pain into his leg could attract a 20% rating under table 9.5 also. Addressing the possibly pre-existing nature of the spondylolisthesis, Mr Elliott cited the Federal Court's decision in Comcare v Amorebieta (1996) 66 FCR 83 for the proposition that where an employee had a problem with his back before a work injury, and it was not possible to measure the impairment level pre-injury, in assessing the level of impairment resulting from the work injury the totality of the impairment is attributable to the work injury. He saw the instant case as even stronger because there was no evidence of any pre-injury problem in this case.
Mr Elliott confirmed for tribunal member, Dr Campbell, that at base the applicant's case is based on two incidents of aggravation of an underlying condition.
After hearing Mr Kelly, Mr Elliott emphasised that whatever the history of fluctuations in the applicant's pain after January 1997 and before December 1997, after the second aggravation the level of pain had remained constant. Even in relation to Dr Blair's notes from June 1997 where he described the applicant's back as comfortable, Dr Blair referred Mr Proctor to Dr New, not a decision to be expected if Mr Proctor had completely recovered.
the respondent's case
Mr Kelly presented the respondent's case as involving two aggravations of an underlying spondylolisthesis condition. One aggravation was in January 1997, the other in about November 1997. These were, however, only temporary. So far as the original accident went, by 16 June 1997 Dr Blair was recording (ex A6) that Mr Proctor's back was comfortable most of the time. On that day he found a full range of pain free movement of the back apart from some low back pain on extension.

By 23 June 1997 Mr Blair certified Mr Proctor as fit to return to work on light duties (ex TD1/T31).
On 25 June 1997 Dr New found a good range of spinal movement (ex TD1/T34). He noted that Mr Proctor had only very minor restrictions as regards sitting and standing.
On 8 September 1997 Dr Sundaraj noted a full range of movement and only minimal signs and symptoms of any back problems (ex TD1/T50).
On 4 September 1997 Dr Blair certified Mr Proctor as fit to return to work on his pre-injury duties from 8 September 1997 (ex TD1/T49).
Between 30 June 1997 and 3 December 1997 Mr Proctor sought no medical attention from Dr Blair for his back (ex A6). In that time he did see Drs Sun (ex TD1/T41) and Dr Sundaraj (ex TD1/T50) but those consultations were arranged consequent on Dr New's recommendations in June 1997. Neither of those doctors saw Mr Proctor as requiring treatment other than following an exercise program of the type to be expected for a spondylolisthesis victim.

In view of this evidence, Mr Kelly submitted that, by 8 September 1997, any aggravation caused by the 16 January 1997 incident had ceased. He noted that Dr Drew had given evidence that once a spondylolisthesis has occurred the effects are permanent and the spine thereafter remains vulnerable to further episodes of increased symptoms with physical activity. This, submitted Mr Kelly, meant no more than the pre-existing spondylolisthesis made Mr Proctor more prone to episodes of aggravation. It did not mean that an episode of aggravation had permanently worsened the pre-existing spondylolisthesis.
Mr Kelly referred to Dr Chan's analysis in paragraphs 36 and 38 above in which he said that Mr Proctor's spinal ligaments had stretched over 20 years and rebutted the suggestion that Dr Chan was saying that a work injury had permanently brought about the stretching of these ligaments. Dr Chan was said to favour the view that the acute symptoms accompanying the injury resolved with time, leaving the applicant with symptoms referable to the underlying condition. Mr Kelly then put that even those remaining symptoms were minor and no barrier to a return to work on full duties in September 1997. Dr Chan said on 7 February 2000 (ex R1) that Mr Proctor's symptoms were not consistent with the injuries he had sustained. In response Mr Elliott noted that Dr Chan had said that one-fifth of the stretching of the ligaments, a permanent phenomenon, was attributable to Mr Proctor's work injury (ex R2). Thus, even Dr Chan saw some work connection. Mr Elliott queried how it could be otherwise. The actions of pulling an obstinate cable and lifting heavy ladders were contemporaneous with physical consequences. Mr Kelly responded in turn by pointing out that Dr Chan had expressed that view conditionally. He had said, "If his employment had contributed any it would not amount to more than one-fifth of the total". Mr Kelly said that Dr Chan was not accepting that there was any contribution at all
Mr Kelly pointed out that all those commenting on Mr Proctor's spondylolisthesis said it was minor. The CT scan showed that (ex TD1/T12), Dr New said that (ex TD1/T34), Dr Drew had conceded in cross-examination that the radiological findings may have been overinterpreted and there was in fact no spondylolisthesis. Mr Kelly suggested that Mr Proctor may not have a spondylolisthesis. Dr Drew was said to have conceded that certain of Mr Proctor's symptoms were not indicative of spondylolisthesis. For instance, sitting should not excite pain from a spondylolisthesis condition. Mr Elliott responded to this argument by stating that Dr Drew had said that spondylolisthesis symptoms can be varied.
Mr Kelly therefore submitted that the tribunal ought not find that aggravation continued beyond 8 September 1997 solely because of Mr Proctor's complaints of constant and unremitting pain since the first injury.
Mr Kelly drew further support from Dr Sloane (ex TD1/T7) who diagnosed musculoligamentous injury and did not attribute any symptoms to spondylolisthesis. Likewise Dr Sundaraj (ex TD1/T50) diagnosed soft tissue strain of the lower back. He did not mention spondylolisthesis or spondylosis.
Mr Kelly referred also to Dr Southern's letter to Dr McManis (ex R3) in which he said that he was finding it difficult to correlate the applicant's symptoms with any specific diagnosis. He did not confine that difficulty to the more recent neck and arm symptoms but he referred to all symptoms. Further, he referred to an earlier similar case where the symptoms were thought to be psychosomatic until the patient was found to have a meningioma involving the thoracic spinal cord. The inference was that, as Dr McManis found no meningioma on Mr Proctor's spinal cord, his case could involve psychosomatic behaviour. Mr Kelly had requested Dr Southern's presence for cross-examination but he was not forthcoming. For apparent good measure Mr Kelly mentioned that Drs Blair, New and Sloane had been nominated in the hearing certificate as required for cross-examination but to no avail.
Mr Elliott objected that no timely action had been taken to follow up on the list in the hearing certificate. Mr Kelly had also not raised this matter, perhaps as a reason for adjourning, when the hearing began on 16 January 2001.
Mr Kelly submitted that Mr Proctor's presentation, taken as a whole, was consistent only with non-organic pain, although he clarified for the tribunal that he was not suggesting any conscious fabrication or malingering. Mr Kelly did, however, suggest a degree of embellishment in Mr Proctor's performance in the witness box. Mr Kelly suggested that Mr Proctor had engaged in insincere grimacing. He had said he was virtually housebound and that his pain level at the tribunal was at an intensity of 6, 7 or 8 out of 10. He said that was the customary level. He then said that any train travel increases markedly his pain. He had travelled to the tribunal by train yet he claimed that his pain was only at the customary level. Mr Elliott criticised these submissions in that they had not, he said, been put directly to Mr Proctor.
Mr Proctor had said in evidence that his pain grew worse as the day progressed. However, he told Dr Chan (ex R1) that the pain lessened as the day progressed.
Mr Proctor had represented in the non-economic loss questionnaire that he had discontinued such sporting activities as football and surfing because of the work injury, yet in cross-examination Mr Proctor said he had ended these sports, except for lawn bowls, well before the January 1997 incident.
Mr Kelly then made submissions on Mr Proctor's redundancy. In his submission Mr Proctor understood the redundancy to be voluntary when he accepted it. In cross-examination he had been shown T8 in ex TD2. In this document he ticked a box stating:
"I request to avail of the redundancy offer made to me on 9/10/98 noting that my skills, knowledge, and experience have been reviewed against Telstra's needs and are no longer required. I understand that by accepting voluntary retrenchment, I cannot be re-employed by Telstra either directly or indirectly for a period of two years following the date of my separation …"
Mr Proctor told Mr Kelly in cross-examination that he had not sought redeployment within Telstra. He had ticked the box in the form in paragraph 82 above of his own volition. Mr Proctor agreed with Mr Kelly that he had been fit for the clerical duties assigned him up to the end of his time at Telstra. Mr Kelly made no specific submissions on ex A5, Telstra's document stating that Mr Proctor took an involuntary redundancy.
Mr Kelly submitted that, if the tribunal finds the redundancy to have been voluntary, the applicant should be assessed as able to earn an amount similar to that he was earning when the redundancy took effect. Mr Kelly submitted that it was unlikely in the current economic climate that the job Mr Proctor was doing for Telstra was simply a make-work position. However, if the tribunal accepts that the job was not a real job and that the redundancy was involuntary, the evidence is still that Mr Proctor has made no effort to find work.
The Federal Court in Pulitano v Telstra Corporation (1998) 50 ALD 1015 held that, in assessing incapacity payments in accordance with s 19 of the Act, where an employee's employment with the Commonwealth has ceased, the employee should be assessed as being able to earn an amount in some suitable employment of a type similar to that he did for the Commonwealth. In the present case, even if the redundancy was involuntary, regard can therefore be had to Mr Proctor's ability to earn in work for another employer where that work is similar to his work for Telstra. This would be work of a light clerical nature where he can sit, stand and move about at will. However, Mr Proctor, said Mr Kelly, had made no effort to find work. He refused to accept that he could work as a console operator where he could sit, stand or move about at will. Said Mr Kelly, "As at 13 November 1998 he was fit for such a light duties job. He does not suddenly become unfit for work of that nature simply because a particular job is no longer available to him".
Mr Kelly pointed out that medical assessments at about the date of the redundancy and later suggested that Mr Proctor was fit for work with the identified restrictions. The tribunal pauses to note that this is largely correct. Even in July 1999 Dr Blair was able to recommend restrictions (of the usual type) in work suitable for Mr Proctor (ex TD2/T6). Dr Drew (ex TD2/T9) in November 1999 saw difficulties with any work involving bending, twisting or even moderate physical activity. Dr New (ex A2) in March 2000 saw it as unlikely that Mr Proctor would return to gainful work for which he was qualified. He saw sitting tolerances as problematic for clerical work. However, even he said that Mr Proctor might look for sedentary work allowing him to get up and move about. The dissentient was Dr Sloane (ex TD2/T7) in August 1999 who saw him as unfit for his pre-injury occupation and not fit for any work at the time.
Mr Elliott, in response, pointed out that s 19 of the Act does not operate in a once and for all fashion. Even if Mr Proctor had qualified for relatively little by way of incapacity payments in November 1998, his later deterioration may have changed that situation.
As regards permanent impairment Mr Kelly made the following submissions:

Mr Proctor has no permanent impairment referable to his work injuries. He had been left with only non-organic back pain and the earlier employment-related aggravations had ceased.
Should the tribunal accept that Mr Proctor has a permanent impairment, it can be no more than 10%. Dr Sloane's assessment of 24% was not explained and ought to be rejected. Drs Drew and New found a 10% impairment referable to the back. Dr Chan found a 20% impairment but was doubtful about the genuineness of Mr Proctor's presentation. In ex R2 Dr Chan said:
"Mr Proctor had exhibited loss of more than half of normal movement in his back so would represent twenty percent loss of usage of the whole person. However this may not be the true figure as he could have just as easily voluntarily limit [sic] his back movements to that range".
Dr New cited a figure of 20% for the effect on the lower limbs. Mr Kelly recommended rejecting that assessment because there was no mention in Dr New's report (ex A3) of the specifics of any problems in using his legs. There is no material on any difficulties Mr Proctor has with grades and steps. Mr Kelly suggested that Dr New may have seen a 20% figure as reasonable given his general view of Mr Proctor's condition without having recorded any complaint about difficulty with grades, steps or distances. Mr Kelly reminded the tribunal that the applicant spontaneously told the tribunal that climbing steps caused him pain in the knees. Although he adjusted this answer later, Mr Kelly submitted that the immediate answer was more likely the accurate answer. A pain in the knees would not be referable to referred pain from the lumbar spine. Mr Elliott commented that Dr New had cited table 9.5 in assigning his 20% figure and must have done the necessary calculations to arrive at that figure.

tribunal findings

On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:
"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.
"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:
'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:
"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."
"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."
These principles apply in the present matter such that there is an implied onus on the respondent to satisfy the tribunal that the cease effects decision in November 1997, affirmed in February 1998, was the correct or preferable decision. If the tribunal is not so satisfied then the decision would be to set aside the cessation of effects. The same analysis applies to the respondent's decision to cease liability taken on 28 March 2000 and affirmed on 19 May 2000.
On the other hand, the implied onus is on the applicant to leave the tribunal satisfied that the correct or preferable decision would be to make a permanent impairment payment or reinstitute incapacity payments or compensation payments for medical expenses.
The respondent acceded to compensation claims in January 1997 and April 1998. The first decision provided for comprehensive compensation coverage until the cease effects decision on 27 November 1997. There can therefore be no dispute regarding that period. The second decision provided compensation for a temporary aggravation and sounded in actual compensation coverage for the period from 3 December 1997 to 11 December 1998. The applicant therefore had consistent compensation coverage from mid-January 1997 to mid-December 1998 with less than a week in late November to early December 1997 not covered by determinations. The practical issues are, therefore, whether the applicant has an injury that sounds in compensation on and after 11 December 1998 and whether the permanent impairment claim filed on 3 November 1998 (ex TD1/T106) should have been rejected. The permanent impairment claim was filed while the respondent still accepted general compensation liability under s 14(1) of the Act, so the claim was validly entertained. The sole issue is as to the application of the Comcare guide to compensable injury and the arguable effects of that injury.
The tribunal should do its best to identify the compensable injury. It is common ground that the applicant suffered from a pre-existing condition, which might have been spondylolisthesis, when he was injured on 16 January 1997. The tribunal does not interfere with this consensus on the parties' respective parts. Intuitively it seems to the tribunal more likely than not that a spondylolisthesis, if that is what the applicant has, would require more by way of an aetiology than the events of 16 January 1997. The tribunal is aware of the undisputed medical evidence (eg Dr New, ex TD1/T34) that only 6% of spondylolisthesis sufferers experience adverse symptoms. The tribunal notes the opposing theory, that of Dr Chan, which was that the applicant had stretched ligaments around the lumbar spine over a 20-year period.
As a result of the above agreement, the parties also agreed that the two claims by Mr Proctor were claims in respect of aggravation of the underlying condition. The tribunal finds on the balance of probabilities that this is the correct characterisation of the nature of Mr Proctor's claims. Section 4(1) of the Act allows that a compensable injury may be "a disease suffered by an employee". In the same section a "disease" can be the aggravation of an ailment suffered by an employee that was contributed to in a material degree by the employee's Commonwealth employment. An "ailment" can include a physical disorder, defect or morbid condition. The tribunal finds, therefore, that the applicant had an ailment within the Act, be it spondylolisthesis or stretched ligaments, that he had a disease in the form of an aggravation of the ailment, that the aggravation was contributed to by Commonwealth employment, and that this constituted a disease in accordance with paragraph (a) of the definition of "injury" in s 4(1) of the Act.
So far as issues of incapacity and medical expenses coverage are concerned it is necessary to ascertain whether the effects of the aggravations have continued beyond 11 December 1998. Some of the legal principles affecting injury in the form of aggravation appear from the authorities to be as follows.
(a)For the purposes of the definition of an "injury" in s 4(1) of the Act, an aggravation occurs when the experience of the injury for the employee is increased or intensified without any alteration to the underlying physical or mental condition (Tippett v Australian Postal Corporation (1997) 27 AAR 40 (Federal Court)).
(b)"If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury" (Tippett (above)).
(c)If the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment that will be a compensable injury (Tippett (above)).
(d)It must the employee's activities at work that cause him or her to suffer pain, or to suffer pain more intensely, if the employee is to receive compensation. Compensation is not payable if the employee would suffer the pain whether or not he or she was at work (Tippett (above)).
(e)The aggravation will be only temporary and will attract compensation only for the duration of the pain where the pain ceases after a time and leaves the underlying condition no worse than before (Australian Postal Corporation v Bessey (2001) 32 AAR 508 (Federal Court)).
(f)Where an employee experiences symptoms only when at work, but the employee has become more susceptible to a disease, eg dermatitis, because of his or her employment, that enhanced susceptibility constitutes an aggravation of the disease (Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385 (High Court)).
The propositions in paragraph 95(a), (b) and (c) above have been applied by the parties and the tribunal in the findings in paragraph 94 above. How the tribunal applies the propositions in paragraph 95(d), (e) and (f) will largely dictate the findings in the present case.
Dr Chan was of the view that Mr Proctor would have suffered as he now does regardless of the temporary aggravations. In ex TD1/T115 he said:
"I read the list of non-economic loss. It is possible that patients with pars interarticulares defects causing spondylolisthesis can have back pain. However, those pains are the result of a pre-existing condition, almost certainly before he joined Telstra in 1981. He would probably have had those symptoms if he had worked in an office or as a salesman. This is due to the fact that the ligaments which are bearing the stress instead of intact bone have been stretched to the limit after 20 odd years of doing so."
Dr Chan regarded the persistence of pain in 1998 as not consistent with injuries related to his symptoms at all (ex R1). He also wrote that the initial six months of total incapacity and a further three months of partial incapacity were consistent with injury related symptoms. With respect to Dr Chan, his meaning is not immediately clear. He seems from the use of language to be regarding "symptoms" as only those symptoms that are to be expected from an incident such as the pulling of the obstinate cable. He saw these symptoms as those one would find in an aggravation of an underlying condition. The CT scans satisfied him that there is a pars interarticularis defect at L5 causing minor bulging at L5/S1 and L4/5 discs. He regarded the persistence of pain as not a symptom as such because he thought it was not injury-related. He saw the pain as more consistent with the long term stretching of ligaments in the lumbar spine.
Dr Drew (ex TD2/T9) saw many of Mr Proctor's pain symptoms as having nothing to do with his injury on 16 January 1997. He said it was uncertain whether the pars defect and postero-lateral disc bulge were pre-existing or caused by the January 1997 injury. In a second report on the same day he said that the back condition "appears to be due to the injury at work about the 16/1/97".
General practitioner, Dr Southern (ex TD1/T128), saw the January 1997 incident as having fractured the L5 pars interarticularis and spoke in terms of aggravation of his spondylolisthesis. However, despite the term, aggravation, he seems to have seen the injury as permanent.
General practitioner, Dr Blair (ex TD2/T6) saw the January 1997 incident as the cause of the original injury. He thought there was a later injury caused by the lifting of heavy ladders. He saw only a remote prospect of recovery. "It is now more than 2 ½ years since his original injury and there has in that time been little or no improvement in his condition". Dr Blair has been Mr Proctor's medical practitioner since before the injury. He saw Mr Proctor the day after the January 1997 incident and the time when he experienced the second aggravation in December 1997. He provided medical certificates that appeared sensitive to the desirability of seeing Mr Proctor return to work as soon as was reasonable. He was not encouraging Mr Proctor in any sense to wallow in his disability. In many respects he appears a fair commentator who is best placed to comment on Mr Proctor's ongoing level of disability following the original incident. The sole problem is that he seems at some stage to have ceased practising. He presented this report in July 1999, however, well after the cessation of liability effective in December 1998.
Dr Sloane (ex TD2/T7), while diagnosing musculoligamentous injury to the lower back, had no difficulty in seeing it as work-related and a permanent physical problem. In some respects he agrees with Dr Chan on the diagnosis but unlike Dr Chan he identifies an ongoing employment connection with the permanent injury.
Dr New saw the injury initially as an exacerbation of pre-existing spondylolisthesis (ex TD1/T34). He initially referred Mr Proctor for pain management. Later (ex A2, A3) he regarded the condition as entrenched.
The tribunal has considered Mr Kelly's formidable submissions in support of there having been only temporary aggravation of an underlying condition. The tribunal comments on these as follows:

Mr Proctor saw no general practitioner about his back between June and December 1997 (paragraph 52 above). The tribunal thinks this is explicable. First, he did see Dr New, Dr Sun and Dr Sundaraj in that period. Second, the applicant asserts that his back improved in that period but was never pain free. The fact that Dr Blair moved from certifying Mr Proctor as unfit for work to certifying him for restricted duties, to certifying him afresh as unfit for work indicates that Dr Blair was able to plot a history of the fluctuations in Mr Proctor's condition. When the condition was relatively quiescent Mr Proctor was apparently able to self-medicate.
The worsening of the condition on 3 December 1997 was unaccompanied by a frank injury. The tribunal considers that this may be so. However, all doctors since early 1998 have precluded Mr Proctor from lifting weights above 5-10 kg, from prolonged bending and from working in confined spaces. The tribunal sees what occurred in December 1997 as the culmination of the conditions of Mr Proctor's employment. In retrospect Dr Blair may have been wrong in certifying Mr Proctor as fit to return to full pre-injury duties in September 1997 (ex TD1/T49).
The answers to Dr New's questionnaire (see paragraph 55 above), suggesting relatively moderate pain, were provided at a time when Mr Proctor had been resting for five months. In addition, he admitted to being able to do certain things, but with accompanying pain. This is consistent with his argument that the pain had subsided but was still present.
The inconsistent elements in Mr Proctor's presentation identified by Mr Kelly (see paragraph 57 above) are unfortunate for Mr Proctor and serve to weaken his case. It is especially curious that he omitted to refer to some restrictions when completing his non-economic loss questionnaire. At the same time, as Mr Kelly correctly identified, he claimed restrictions in relation to activities he had not done for many years. Mr Proctor seemed somewhat confused about the non-economic loss questionnaire and did not acquit himself well in answering these questions. The tribunal considers that, cogent as this material might be, it is outweighed by the other evidence in support of a worsening of the condition late in 1997 that persisted, perhaps at a less serious level, from that time onwards.
Dr Southern's letter to Dr McManis (see paragraph 77 above) referred to symptoms that were difficult to correlate with any specific diagnosis. Despite Mr Kelly's eloquent advocacy, the tribunal considers this to mean that Dr Southern was intrigued by the sum total of Mr Proctor's symptoms and not to mean that he necessarily doubted the veracity of the back symptoms.

Weighing the above evidence, the tribunal finds that the aggravation of Mr Proctor's condition that occurred late in 1997 was due to the nature and conditions of his employment. Further, it finds on the balance of probabilities that the aggravation has been ongoing and was still effective on 11 December 1998 and after. The only substantial evidence against that conclusion came from Dr Chan. About Dr Chan's analysis the tribunal would say this. If Dr Chan's analysis is accepted, the stretched ligaments were asymptomatic before 16 January 1997. They appear to have been symptomatic ever since that date, initially to an extent that declined, then to a greater extent late in 1997. Since then they settled to some extent but have continued to be symptomatic to some degree. While Dr Chan's opinion was that Mr Proctor would have suffered the same problems even if his work had been different, the fact remains that symptoms emerged only when they were apparently prompted by the incident in January 1997.
The tribunal therefore finds that the correct or preferable decision in relation to application N2000/996 would have been not to cease liability for payments of compensation to Mr Proctor. The tribunal finds for similar reasons that the correct or preferable decision in application N2000/663 would have been not to cease liability with effect from 27 November 1997.
So far as the claim for ongoing medical expenses is concerned, the tribunal's decision in application N2000/996 carries the implication that Telstra is responsible for paying compensation in respect of the cost of medical treatment obtained in relation to the applicant's lumbar spinal injury provided the expenditure is reasonable. The tribunal was not presented with evidence of amounts within this category in dispute between the parties so it is not possible to decide that any specific payments must be made.
So far as the claim for ongoing incapacity payments is concerned, the tribunal finds that Mr Proctor's redundancy was involuntary. This is for several reasons. First, the tribunal is impressed that Telstra thought it involuntary and said so in a contemporaneous document (ex A5). Second, the tribunal accepts Mr Proctor's evidence that he was effectively told that he should accept redundancy or he would be retired medically. There was no evidence produced to counter this assertion and Mr Proctor was not seriously challenged about it in cross-examination. Third, the very description of the job he was doing when he finished up was fairly thin. In ex TD1/T76 it is described as "office support duties – answering telephones, filing, entering tool audit results in tool register, other duties as directed by director". Telstra was of course to be commended for easing Mr Proctor's transition back to work, however the work was plainly not crucial to the operation of the unit where he had been stationed. It was essentially an artificial job as Mr Elliott submitted. Fourth, in signing the document in ex TD2/T8 (see paragraphs 82 and 83 above) Mr Proctor was not converting the redundancy into a voluntary redundancy. He seemed only to be expressing agreement with management that Telstra had no further use for his services.

The restrictions imposed by the doctors prevented Mr Proctor from returning to the duties he was doing before January 1997. In accordance with s 4(9) of the Act this means that he had an incapacity for work in that he had "an incapacity to engage in work at the same level at which he … was engaged by [Telstra] immediately before the injury happened". The tribunal held in Re Prica and Comcare (1996) 44 ALD 46 that the reference to "the same level" in s 4(9) is meant to refer not to the remuneration a new job attracts. It refers to the nature of the work in the sense of its characteristics, which will include its degree of difficulty. The applicant is, in the relevant sense, incapacitated for work within s 19(1) of the Act.
In accordance with s 19(2) of the Act he therefore qualifies for incapacity payments at a rate based on his normal weekly earnings for Telstra minus the weekly amount he is able to earn in suitable employment. Mr Proctor is not employed and has not been since his separation from Telstra. Section 19(4)(c) was called in aid for the respondent. It applies where, as in Mr Proctor's case, an employee, after becoming incapacitated for work, received an offer of suitable employment (arguably the clerical work given Mr Proctor by Telstra) and, having accepted that offer, the employee has failed to engage in the employment. Where this occurs the employee is taken to be able to earn the amount per week that he or she would be earning in that employment had he or she been engaged in it.
In the case of a voluntary redundancy it can be argued that s 19(4)(c) applies and the ability to earn is the same as the weekly amount on offer in the position not taken up by the employee. That argument is, however, not invariably successful (Re West and Comcare (AAT 9320, 23 February 1994)). The present case is, however, a case involving an involuntary redundancy. Further, the Telstra document signed by Mr Proctor on 16 October 1998 (ex TD2/T8) (see paragraphs 82 and 83 above) represented that there were no jobs within Telstra for Mr Proctor to do. Telstra does not, on the evidence, seem to have protested this assertion.
Mr Elliott and the applicant also argued that the clerical work assigned to Mr Proctor did not amount to a genuine job and was not, therefore, suitable employment. Section 4(1) provides a definition of "suitable employment" that bifurcates depending on whether the employee has ceased Commonwealth employment. If he or she has not ceased Commonwealth employment, suitable employment is that for which the employee is suited having regard to his or her age, experience, training, language, other skills, suitability for rehabilitation or retraining, the location of available employment, and any other relevant matter. If the employee has terminated his or her Commonwealth employment, suitable employment is any employment, having regard to the matters listed in the previous sentence.
Mr Proctor has terminated his employment with the Commonwealth via the redundancy which was formally involuntary, but which he was prepared to accept. There may be other employment he could do in accordance with the criteria in paragraph 112 above. If so, then that work indicates Mr Proctor's ability to earn. There are several relevant authorities. The first, the Pulitano case (above), endorses a consideration of whether Mr Proctor can be considered able to do work outside Telstra similar to that he did for Telstra. He clearly cannot do linesperson work and he was not doing clerical work for Telstra of a type readily required in the private sector - arguably, it was not even required by Telstra.
In the tribunal's decision in Re Gibson and Commonwealth (1985) 7 ALD 558 it was held that there is no obligation on an employer to find work for a partially incapacitated employee. However, in the case of a large Commonwealth employer such as Telstra with a policy of assisting disabled persons, a failure to find work for an employee is strong evidence of the employee's inability to attract an employer and, hence, of his or her total incapacity. Conversely, if that employer offers suitable employment to an employee, that is strong evidence to displace any suggestion that he or she is totally incapacitated.
The tribunal notes that recent medical assessments suggest that:

Mr Proctor is unlikely to return to gainful work for which he is qualified but he could seek sedentary work allowing him to get up and move about while avoiding prolonged sitting, standing or driving (Dr New, ex A2, 23 March 2000; ex A3, 18 May 2000).
Mr Proctor would have difficulty doing any work involving bending, twisting, heavy lifting or even moderate physical activity (Dr Drew, ex TD2/T9, 11 November 1999).
Mr Proctor's inability to work is caused by a pre-existing condition, but he apparently cannot work (Dr Chan, ex R1, 7 February 2000).

In the tribunal's view the applicant's age, experience, training and other skills (s 4(1) of the Act, definition of "suitable work") do not equip him for work for which he is intellectually able. Additionally, from its observations in other cases, the tribunal doubts that a rehabilitation authority would regard Mr Proctor as a person with good rehabilitation potential. Mr Kelly may have made a salient point in raising the suggestion of work as a console operator. This may be within his competence but Mr Proctor thought his back would not tolerate such work. In the absence of firmer evidence suggesting that Mr Proctor would have genuine potential for such work the tribunal is loath to seize upon that option and say that he has an ability to earn as a console operator.
The tribunal therefore finds that Mr Proctor qualifies for incapacity payments, and that he has done so since 11 December 1998. The tribunal further finds that, since 11 December 1998, Mr Proctor has had no ability to earn as that term is understood in s 19(2) of the Act.
So far as the applicant's permanent impairment claim is concerned, the provisions of s 24(1) of the Act require that Mr Proctor has had an injury under s 4 of the Act which has resulted in permanent impairment. The tribunal has already found that Mr Proctor has had an injury in the form of an aggravation of an underlying disease. The tribunal finds this to have generated a permanent impairment. Section 4(1) defines an impairment, amongst other things, as the damage or malfunction of any part of the body or any bodily system or function or part of any such system or function. The adverse effects of the injury on the applicant's lumbar spine, whether the diagnosis of Dr Chan or that of Dr Drew is correct, are permanent, in that they are expected to last indefinitely as required in the definition of "permanent" in s 4(1). The reports confirm this. The tribunal is satisfied that the totality of the evidence satisfies the specific requirements in s 24(2) of the Act. The impairment is expected to last indefinitely, there is no likelihood of improvement in the condition and there is no recommended rehabilitative or therapeutic treatment recommended for Mr Proctor.
The tribunal finds that Mr Proctor has a 10% whole person impairment in his lumbar spine in accordance with table 9.6 of the Comcare guide. It relies on the opinions of Drs Drew (ex TD2/T9), New (ex A3) and Chan (ex R2) for this assessment. The tribunal applies the principles in Amorebieta (above) in taking account of the totality of the applicant's restrictions. It is likely that a part of these restrictions can be attributed to the pre-existing condition but there is a dearth of solid evidence justifying a discounting of the 10% figure. The tribunal in truth cannot safely decide on a discount figure.
On the other hand, the tribunal rejects the applicant's claim for a permanent impairment claim in respect of the lower limbs. The uncertainties surrounding the precise diagnosis and whether the applicable diagnosis would result in pain referred to the legs, together with difficulties in relation to the applicant's evidence as to his mobility, fully essayed earlier, mean that the tribunal is not satisfied that any lower limb restrictions are attributable to the compensable injury. As noted earlier, it is the applicant who bears the implied onus of proof in relation to permanent impairment. That onus has not been discharged to the tribunal's satisfaction in relation to table 9.5 of the Comcare guide.
CONCLUSION
n2000/663
The tribunal sets aside the decision under review and decides that liability to pay compensation continued on and after 27 November 1997.
n2000/996
The tribunal sets aside the decision under review and decides that liability to pay compensation continued on and after 11 December 1998. The applicant qualifies for incapacity payments and payments in respect of relevant and reasonable medical expenses as of that date. The matter is remitted to the respondent for assessment of incapacity payments on the basis that, at least to the date of this decision, the applicant has had no ability to earn. The matter is remitted to the respondent for assessment of compensation for medical treatment expenses in accordance with the usual procedures.
n1999/948
The tribunal sets aside the decision under review and decides that the applicant qualifies for a 10% whole person permanent impairment payment pursuant to table 9.6 of the Comcare guide. The matter is remitted to the respondent for it to assess the quantum of that payment in accordance with ss 24 and 27 of the Act.
These decisions mean that the respondent is liable to pay the applicant's appropriate costs in all three applications.
DECISION
In relation to applications N2000/663 and N2000/996 the tribunal sets aside the decisions under review and decides that the respondent was liable to pay appropriate compensation to the applicant at all times from 16 January 1997 to the present and continuing.
In relation to application N1999/948 the tribunal sets aside the decision under review and decides that the applicant qualifies for a 10% whole person permanent impairment payment in accordance with table 9.5 of the Comcare guide.
The matters are remitted for the respondent to assess any compensation owing in respect of the applicant's medical expenses, incapacity payments and permanent impairment payment.
The respondent is liable to pay the applicant's costs in all three applications.
I certify that the 128 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  16 and 17 January 2001
Date of Decision  11 June 2002
Counsel for the Applicant        Mr G Elliott
Solicitor for the Applicant         Turner Freeman
Counsel for the Respondent    Mr B Kelly
Solicitor for the Respondent    Henry Davis York