Quinn and Telstra Corporation Limited
[2004] AATA 755
•20 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 755
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1175
GENERAL ADMINISTRATIVE DIVISION
Re: PETER JOHN FRANCIS XAVIER QUINN
Applicant
And: TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Date: 20 July 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
COMPENSATION — lumbar spine – aggravation by work incident – whether effect of aggravation ceased – exaggeration of symptoms – credit of applicant
Safety, Rehabilitation and Compensation Act1988
REASONS FOR DECISION
20 July 2004 Mr B.H. Pascoe, Senior Member
This is an application to review a decision of the respondent dated 17 September 2002 which affirmed a determination of 9 July 2002 that the respondent's liability to pay compensation in respect of strain to lower back – L4‑5 discogenic injury had ceased on and from 9 July 2002.
At the hearing, the applicant, Mr P. Quinn, was represented by Mr M. Carey, of counsel, and the respondent was represented by Mr J. Ferwerda, of counsel. Evidence was given by Mr Quinn and the following medical practitioners:
Dr J. Gruner, general practitioner
Dr E. Lenaghan, rheumatologist
Mr E. Schutz, general surgeon
Mr P. Wilde, orthopaedic surgeon
Mr P. Battlay, general surgeon
Mr P. Lugg, orthopaedic surgeonDr K. Muirden, rheumatologist
In addition to the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
CT Scan Report – Diagnostic Imaging Group dated 13 May 1998 Exhibit A1
MRI Scan report – Radar medical Imaging dated 3 March 1998 Exhibit A2
Letter to Dr P. Kelly from Mr Wilde dated 19 May 1998 Exhibit A3
Report of Mr Wilde dated 18 January 2000 Exhibit A4
Report of Mr Wilde dated 18 December 2003 Exhibit A5
Report of Dr Gruner dated 15 June 2003 Exhibit A6
Report of Dr Lenaghan dated 19 June 2003 Exhibit R1
Report of Mr Lugg dated14 August 2003 Exhibit R2
Video – Mr Quinn on occasions 16 February 2004,
17 February 2004 and 18 February 2004 Exhibit R3
Report of Mr M.J. Kerrigan & Associates dated 26 February 2004 Exhibit R4
Supplementary Report of Dr Lenaghan dated 20 April 2004 Exhibit R5
Supplementary Report of Mr Schutz dated 12 May 2004 Exhibit R6
Report of Mr Battlay dated 17 May 2004 Exhibit R7
Medical Notes – Epping Chiropractor (subp) Exhibit R8
Medical Notes – Vermont Life Chiropractic Centre Exhibit R9
Medical Notes printout – Dr Gruner (6 pages) Exhibit R10
Supplementary Report of Dr Muirden dated 14 May 2004 Exhibit R11
Wage report from Metro Supermarket dated 12 February 2004—
15 April 2004 Exhibit R12
On 6 February 1998 Mr Quinn lodged a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act1988 (the Act) in respect of a lower back injury suffered on 29 January 1998. The respondent accepted liability on 26 March 1998 in respect of chronic lumbar disc degeneration. Mr Quinn was examined by Mr Schutz on 16 May 2002, who reported to the respondent that symptoms were due to degeneration of the lower back, the effects of the injury in January 1998 had been temporary and would have ceased within some 6 to 12 weeks. As a result of this report, the respondent determined to cease liability. Mr Quinn did not return to work after 29 January 1998 and his employment was terminated on 16 April 1999.
Mr Quinn gave evidence that he left school at age 15 and he joined the predecessor of the respondent in the telephone division. He was employed in general administration and research roles. In 1983 approximately, he transferred to a materials handling depot at Keon Park. He became the supervisor of staff at the depot which stored cable drums and other large materials. A fork life was used to transfer materials from delivery trucks to storage areas. Mr Quinn said that there was an emphasis on multi‑staffing and he obtained a truck driver's licence to provide a back‑up for absent staff.
Mr Quinn could not recall when he experienced his first episode of back pain, but believed that it was in the early 1980s. He said that he experienced discomfort, tightness and pain in the upper part of his neck when lifting his arms above shoulder height. He assumed that it was caused by over work. At times, he had difficulty getting in and out of trucks. He visited a chiropractor and arranged to take time off from work for treatment which, usually, involved one day off work. He thought that it was after 1990 before he sought such treatment. On occasions, he would take one or two days off work as sick leave and, after rest, the pain generally went away. He was prescribed Naprosan by his general practitioner in 1990 but said that this did not appear to provide relief. He accepted that he had sought treatment for back problems on several occasions between 1990 and 1997. Mr Quinn said that he was a competitive swimmer until he was 28 years of age and continued regular swimming twice a week until 1998. Until approximately 1995, he played competitive squash and football.
Mr Quinn said that he had transferred to the Foxtel depot in Glen Iris in 1991. He said that, on 28 January 1998, he felt fine when he started work. Two semi‑trailers of cable arrived at the depot in covered boxes on pallets. He drove an old fork lift to offload the pallets and then consolidated the cable in containers which had been hired to provide secure storage. Mr Quinn said that the containers provided limited access for the fork lift and the cable drums needed to be manually taken off the pallets and packed in the containers to make maximum use of the space. He said that, at the same time, he was required to use the fork lift to provide materials from the store required during the day by field staff. He said that he finally finished work at 6:30 p.m. on that day. Mr Quinn had difficulty getting into his motor vehicle, was unable to stand straight or lift his arms above his head. He said that the pain was primarily in his lower back. He went home, showered and went to bed. Mr Quinn said that he had massive pain the next morning and stayed in bed for the weekend. On the Monday, he telephoned work to say that he would not be in and has not returned to work since. During that next week, he sought treatment from a chiropractor every day and, thereafter, on a regular basis. His general practitioner prescribed anti‑inflammatory medication and rest. In April 1998, he was referred to Mr Wilde who arranged an MRI scan but did not propose any surgical treatment. He was referred to a rehabilitation specialist, Mr T. Lim, and to Dr C. Thomas, another rehabilitation specialist. He completed a rehabilitation program in 1999 involving hydrotherapy, physiotherapy and pain management.
In describing his current symptoms, Mr Quinn appeared to consider that his neck was the major problem. He believed that this was related to his lower back condition. He said that he suffers headaches frequently, usually after being in bed. He maintained that he had restricted movement in his neck and thought it was approximately 50 per cent of a normal range of movement. He said that shaking his head hurts, with pain travelling down his back. He said that he had problems with his shoulders and arms with pain when lifting anything or raising his arms. He tries to lift things/objects with a straight back and bent knees. He had no idea what weight he could lift and maintained that he was unable to bend his back to lift. Mr Quinn said that he gets pins and needles in his arms, particularly the left arm. He can sleep in a chair better than in a bed. While he considered that he can drive his motor vehicle, he maintained that he has problems with his leg, is restricted in turning his head and has difficulty in getting in or out of the motor vehicle. Mr Quinn said that he has difficulty walking and, frequently, can manage no more than 400 metres, although, at times, can walk much further. He said that he uses a walking stick some 25 per cent of the time to stabilise him against stumbling. He considered that his back was tolerable and he has not taken any medication for his back since soon after January 1998.
Mr Quinn said that he was upset when his employment was terminated in April 1999, as he wanted to keep working. Since then, he has looked for employment. He has acted as a Father Christmas on two occasions for two weeks on each occasion. He said that, in late 2003, he commenced a trial of delivering groceries to Safeway Supermarket (Safeway) customers in Belgrave for a couple of hours per day, five days a week. He said that, on some days, he makes only two deliveries. He uses his own motor vehicle and loads the vehicle from a trolley. Mr Quinn maintained that he does not lift the shopping bags of groceries above waist height and believed that he would be unable to do so. He complained that, apart from some $200 part payment for his first two weeks, he has not been paid for the work.
The respondent produced in evidence a surveillance video of Mr Quinn taken on 16, 17 and 18 February 2004. On the first day, the video showed him walking and then standing for some time outside what appeared to be an industrial building. He was talking with others and, at times, waving his arms and pointing with his arm above his head. A subsequent scene showed him unloading a shopping trolley and placing some 20 shopping bags into the back of a van. On the second day, he was shown using both hands to place shopping bags from a fully laden trolley into the van. On several occasions, he was leaning into the trolley to lift the bags out and leaning into the van when placing the bags in the rear. After getting into the van, he then alighted to collect another trolley full of shopping bags for loading into the van. There was no obvious difficulty shown in Mr Quinn getting in or out of the driving seat and driving. The third day was a repeat scene of transferring shopping bags from fully laden trolleys to the van. A subsequent scene showed Mr Quinn taking shopping bags from the van at an apparent delivery site. He displayed no apparent difficulty in carrying 3 to 4 bags at a time, including lifting them to shoulder height.
Mr Quinn acknowledged that he was the person shown in the video recording. He said that he was at a motor vehicle body shop at Thomastown on the first day. This was some 30 to 45 minutes drive from his home. The next 2 days showed him at a Safeway store in Ferntree Gully and Belgrave. He said that he saw an advertisement in the local newspaper and arranged a trial at providing the delivery service. He said that he could not recall the name of the contractor and had spoken to a man named "Scott". He did not know his other name. Mr Quinn that he had received $200 as part payment for the first two weeks work, but he had not been paid subsequently amounts owing. It was noted that this version of obtaining the work differs from the evidence of Mr Quinn prior to the showing of the video where he said the supermarket delivery work was obtained through Centrelink. Subsequently, the parties' representatives advised the Tribunal that they had agreed that Mr Quinn had received $600 for work between 1 December 2003 and 10 January 2004. During the period to 21 February 2004, he received three amounts, being $346.20, $471.50 and $376.10. His working hours varied but, generally, were between 1:00 p.m. and 3:00 p.m. on Monday to Wednesday and 11:00 a.m. to 3:30 p.m. on Thursday and from 12 noon to 3:30 p.m. on Friday.
Mr Quinn did not accept that the video showed no difficulty in turning his head or in arm movements. He said that it did not show what he felt nor the repercussions on his body after the work. He said that his doctor encourages him to try working, but that he pays later for the effort. He said that he has a box on legs in his van so that he does not have to bend when transferring shopping bags from the trolley to the van and from the van on delivery.
Dr Gruner first treated Mr Watson on 9 May 2000. In his report of 15 June 2003, Dr Gruner said that …Mr Quinn has an entrenched chronic pain syndrome that has remained much the same since I have seen him. He understood from previous doctors that an MRI scan had revealed multi‑level lumbar disc degenerative change and L3‑5 disc prolapse with right sciatica. Dr Gruner assumed that Mr Quinn's lumbar condition had arisen from his work with the respondent, but accepted that he was unable to form any clear opinion on causation. He noted that Mr Quinn was socially isolated after a relationship break‑up. Dr Gruner said that he does
…not dispute that not all of his pain is due to discogenic structures in his spine…as it would be naïve to try to attempt to attribute all of his pain to these areas. Mr Quinn has a long term chronic pain syndrome that was…entrenched with all of its defensive movements at the time I first met him…in the agitated state he continues to be in.
Dr Gruner said that he encourages Mr Quinn to work at something so as to focus on things other than pain. He said he had seen the video recording and accepted that there were no signs of disability shown. He thought that the video demonstrated some 30° of flexion, but he did not change his view of Mr Quinn's condition after viewing the video. Dr Gruner acknowledged that he had not been aware of the work done by Mr Quinn at Safety prior to seeing the video.
Mr Wilde first saw Mr Quinn on 8 April 1998 on referral from his then general practitioner. He saw Mr Quinn again in May 1998, January 2000 and December 2003. In his report of 18 December 2003, Dr Wilde stated:
…
Mr. Peter Quinn is a 53‑year‑old man with a chronic lumbar spinal condition. His symptoms first developed with an injury at work in January 1998 as described above. Prior to this injury he denied significant lumbar symptoms.
The diagnosis is mechanical lumbar backpain [sic] secondary to internal disc and facet joint derangement with a disc bulge at L4/5 causing intermittent right L5 nerve root irritation. As he did not suffer with symptoms prior to his injury, I feel that the injury as described above has been a significant contributing factor. It is likely that there was a degree of asymptomatic degenerative disc disease prior to this injury, however, the injury caused further internal disc derangement thus precipitating symptoms.
In my opinion, the injury at work continues to materially contribute to this man's persistent lower pain syndrome because the disc prolapse sustained in the injury has not been surgically treated and this prolapse continues to contribute to intermittent nerve root irritation.
Until now, treatment has been with conservative means and this has been appropriate. Future treatment should remain along conservative lines.…
…
The prognosis is poor and I expect that he will always suffer with low‑grade symptoms of chronic lumbar pain and stiffness. He will have to modify personal and work activities to accommodate his symptoms to avoid further deterioration.
In his oral evidence, Mr Wilde said that disc injuries generally repair themselves slowly and, in the case of Mr Quinn, his sciatica had improved and he was left with a typical back ache. At December 2003, there was a mild restricted movement. Mr Wilde said that he had not taken any history of extensive pain in the upper spine and the general practitioner had not referred to any neck problems. However, he said that it was not uncommon for a patient to have para‑spinal spasms in other parts of the spine. Mr Wilde had seen the video taken of Mr Quinn but said that it had not changed his views significantly. He noted that it had demonstrated that Mr Quinn could use his back in limited circumstances and that he was moving appropriately. He accepted that the two days of video surveillance showed no signs of problems on the second day. He felt that Mr Quinn would struggle if required to perform such delivery work for eight hours per day. He said that he would have expected Mr Quinn to have told him in December 2003 that he was performing the grocery delivery work and was disappointed that he did not and felt misled. While Mr Wilde referred to a disc prolapse in his report, he said that it was difficult to differentiate between a small prolapse and a bulge and tended to use the terms prolapse and bulge interchangeably.
Dr Lenaghan examined Mr Quinn on 12 June 2003 and provided a report dated 19 June 2003. In that report, Dr Lenaghan stated:
…
Whilst on the day of my examination, Mr Quinn presents as a physical and psychological wreck and a cripple, this impression is inconsistent with his ability to drive a manual car and be quite independent and have no need for medication of any sort for either his back pain or his psychological condition.
Furthermore, apart from a great deal of abnormal illness behaviour including exaggerated limitation of spinal movements during the examination and physical signs which could not be clinically explained (such as the difference in straight leg raising noted in different positions and the variable sensory disturbance of the right foot), there was really no objective evidence of any serious problem with the back such as a disc prolapse or sciatica. There is, however, radiological evidence of degenerative disc disease and arthritis affecting the lower back.
Dr Lenaghan considered that the predominating feature of Mr Quinn's condition was a chronic pain syndrome. Prior to the hearing, Dr Lenaghan viewed the video recording and provided a further report dated 20 April 2004, which stated:
…
Whilst the observations contained in this material endorse my clinical impression regarding Mr Quinn's exaggerated presentation and level of physical disability, they also cause me to question my previous diagnosis of a chronic pain syndrome or more accurately, a pain amplification state. I find it difficult to reconcile the marked contrast between Mr Quinn's slow and grossly impaired mobility, apparent severe pain and psychological distress as displayed when I saw him at my rooms on 12.06.2003 – compared with the completely normal, able‑bodied level of physical function demonstrated in the Video Surveillance of February 2004. This showed him working as a Grocery Delivery Driver, pushing loaded supermarket trolleys, lifting bags of groceries, bending and twisting his back and neck, using his arms and carrying out a wide range of physical activities in a completely normal, brisk and efficient manner and on repeated occasions.
These disparate observations are impossible to attribute to a pain amplification state or indeed to any genuine physical or psychological condition. I don't think they can be accounted for other than by a deliberate misrepresentation of his condition when I examined him on 12.06.2003.
Mr Schutz examined Mr Quinn on 16 May 2002 and provided a report dated 29 May 2002 in which he stated:
…
The findings on this examination were of a solidly built 51‑year‑old man with reported significant symptoms felt in the neck. He moved his neck practically not at all and yet spontaneous movements in flexion and rotation were completely normal without any indication of discomfort. I consider there is a significant non organic aspect. In terms of the back, where there is a similar reduction in movements, the probability is that his back movements would organically be significantly better than demonstrated. There is no objective evidence of any cervical or lumbar radiculopathy (nerve root problem due to the spine) but there is the possibility of a minor peripheral neuropathies in the arms and he has a neurological test of the legs showing a neurological disorder (this could be an explanation of the symptoms he reports in the soles of his feet; rather than lumbar radiculopathy, of which there is no evidence).
I consider it is likely that a person with Mr Quinn's build and given the extent of degeneration would tend to experience symptoms. In this case Mr Quinn appears to be focusing excessively on the physical symptoms.
…
I consider the basic problem is due to underlying degeneration and Mr Quinn's undue focus upon symptoms. I consider the activities performed on 29.1.1998 caused a temporary aggravation of symptoms only and there is no evidence of any additional injury.
Mr Schutz considered that there was an aggravation of a pre‑existing condition on 29 January 1998, but that aggravation would have settled within 6 to 12 weeks. In his oral evidence, Mr Schutz said that, while symptoms can fluctuate, this is usually over a long cycle and do not result in pain one minute and no pain in the next minute. He felt it likely that psychological problems may be having an impact on Mr Quinn's problems. He noted that it was not uncommon for a person who had been in a fit condition previously to drop his bundle after an aggravation of a back condition. After viewing the video, Mr Schutz provided a supplementary report dated 12 May 2004. He noted that Mr Quinn was shown as …doing these activities normally if not very energetically. He concluded:
…
There is degeneration in the lower back and there may be related symptoms.
However, there is such a significant discrepancy between demonstrated movements and observable findings – both in terms of spontaneous movements of the neck, which I established in 2002, and the range of movements in the neck shown in 2004, with similar discrepancies in terms of the lower back as shown in the video – that I consider there has been significant embellishment of symptoms and restrictions. I would consider this to be a voluntary exaggeration of symptoms in his presentation of his claim.
Mr Batley examined Mr Quinn on 12 November 1998. At that time Mr Battlay considered that he had an L4‑5 disc rearrangement with possible right‑sided sciatica. While there was evidence of pre‑existing degeneration, Mr Battlay considered the incident on 29 January 1998 as being significant. However, he noted that Mr Quinn's presentation indicated a significant functional overlay and, while believing that a course of rehabilitation exercises may help, was not optimistic about an early return to work. Mr Battlay re‑examined Mr Quinn on 6 April 1999. He, again, considered that there were emotional factors present. Mr Battlay provided a further report dated 17 May 2004 after viewing the video and the clinical notes of the chiropractors and general practitioners, who had treated Mr Quinn. He considered that Mr Quinn had either improved since his earlier examinations or was not so badly injured in the first place, and that his ongoing complaints were not genuine from the physical point of view. He concluded that, while there may be some symptoms, there was no total incapacity and that Mr Quinn was …voluntarily exaggerating his response for the purpose of maximising secondary gain.
Mr Lugg examined Mr Quinn on 10 July 2003 and provided a report dated 14 August 2003. He took a history of back pain from 1983 with possibilities of it commencing in the 1970s. Mr Lugg accepted that there was a significant aggravation in January 1998, but that the effect of that aggravation had ceased and Mr Quinn's current condition was the result of the natural progression of a pre‑existing degenerative condition. He noted evidence of over‑exaggeration of symptoms. Having viewed the video recording, Mr Lugg said that he was surprised that Mr Quinn was as agile as he appeared compared with that shown in his earlier examination. He considered that there was no apparent restriction in getting in and out of the van, carrying shopping bags, loading and unloading, bending without apparent effort and no limitation on gait. While Mr Lugg accepted that it was possible to have referred pain in the upper spine from a lumbar problem, it was more folk lore.
Dr Muirden examined Mr Quinn on 3 May 2001. In his report of the same day, Dr Muirden accepted that Mr Quinn had a degree of chronic lumbar disc degeneration, but that his then condition was mainly related to a widespread regional pain syndrome. There were no significant neurological findings to confirm any evidence of nerve root compression. He noted an indication of an exaggerated response to simulated rotation of the neck and spine. Dr Muirden considered that working activities were a contributing factor to his disc degeneration with the low back pain appearing to have been provoked by the incident in January 1998. After reviewing the video recording, Dr Muirden provided a further report dated 14 May 2004. He noted that Mr Quinn was able to bend forwards without showing any discomfort, repeated lifting and stretching was involved and there was no tendency to walk with a limp. Dr Muirden concluded that the condition previously suffered by Mr Quinn had resolved. He again noted that no medication was being taken in 2001 despite the reported symptoms. Dr Muirden considered that "…the pain and disability may have been genuine in the acute stages but were clearly exaggerated and not related to underlying pathology by the time I saw Mr Quinn in May 2001. He accepted that an orthopaedic surgeon seeing Mr Quinn in 1998 should be in a better position to diagnose his condition, but noted that care needs to be taken to see if the condition resolves with time.
It is relevant to note that, while Mr Wilde had referred to Mr Quinn as having a disc prolapse contributing to intermittent nerve irritation, and this description was adopted by Dr Gruner, no other examining specialist medical practitioner had found other than a degenerative lumbar spine with possible minor disc bulge. No medical practitioner had found any organic problem with the upper spine, neck, shoulders or arms.
It is clear that Mr Quinn suffers from a degenerative lumbar spine condition which was aggravated by heavy physical work in January 1998 and this is not disputed by the respondent who accepted liability for some four and a half years. The not unusual question for consideration here is whether, after 9 July 2002, the effect of that aggravation was no longer the cause of any incapacity or whether there was incapacity for work. The question has been made more complicated by Mr Quinn's primary concentration on alleged difficulties with his upper body where there is no evidence of any medical condition.
Dr Gruner, as Mr Quinn's treating practitioner, may be seen as one who could provide the best evidence of Mr Quinn's condition. However, Dr Gruner has treated him from May 2000 only and cannot comment on the history of his complaint prior to and in the two years following the January 2000 incident. In addition, it is accepted that the treating practitioner needs to provide support for his patient and may find it more difficult to stand back and provide a dispassionate opinion. However, Dr Gruner is clear that the major problem of Mr Quinn is seen as an entrenched pain syndrome with symptoms not compatible with the discogenic structures of his spine. It was noted the medical certificate to 20 June 2000 provided by Mr Quinn's previous general practitioner, Dr Kelly, described the diagnosis as severe L/5 strain/sciatica. Subsequent medical certificates by Dr Gruner through to 13 September 2002 showed Mr Quinn as being unfit for any work duties by his condition shown as either chronic pain syndrome or chronic low back pain. Inevitably, Dr Gruner relies on the symptoms and history given by his patient. While Mr Quinn said that he had told Dr Gruner of his work with Safeway in December 2003, Dr Gruner had no record or memory of being told of such work and became aware of it only after seeing the video recording. This is somewhat surprising if Mr Quinn was truthful in his evidence.
Similarly, Mr Quinn did not tell Mr Wilde that he was working at the time of his examination in December 2003. It is somewhat surprising that, in addition, Mr Quinn had not given Mr Wilde any history of pain in his upper spine, neck or arms notwithstanding his apparent concentration on such problems in his evidence to the Tribunal. When these anomalies in his evidence are considered with the views of Dr Lenaghan, Mr Schutz, Mr Battlay, Dr Muirden and Mr Lugg that Mr Quinn had voluntarily or deliberately exaggerated his symptoms, there must be some considerable doubt as to the veracity of Mr Quinn. The opinions of the medical practitioners who had seen the video of Mr Quinn confirmed my view that it showed no sign of physical difficulties experienced by him. It is accepted that a person may be stoic and prepared to undertake some activity notwithstanding some pain during the activity and later suffering as a consequence of that activity. However, it is difficult to accept that Mr Quinn was able to perform the work without apparent difficulty on, at least, the two successive days shown and, in fact, five days per week with the condition he described in his evidence. A further factor which goes to the credit of Mr Quinn is his evidence of being paid only $200 by the contractor which was subsequently contradicted by his legal advisors agreeing that he had received nearly $1800 between 1 December 2003 and 21 February 2004.
In their respective submissions, the parties sought a conclusion from the failure to call two medical witnesses. Mr Carey submitted that the failure of the respondent to call Mr Shannon, an orthopaedic surgeon, who examined Mr Quinn on 31 March 1998, should produce a conclusion that his evidence would not have assisted the respondent. He found lumbar disc degeneration and moderate bulge with a probability that it was caused or aggravated by the January 1998 incident. However, I am not disposed to come to the conclusion sought. The question to be dealt with is not whether that incident caused an injury and incapacity in 1998, but whether, by 9 July 2002, it had ceased to cause incapacity or whether there was any such incapacity. With the large number of medical witnesses called who had examined Mr Quinn in more recent times, I am of the view that the opinion of a practitioner who last saw Mr Quinn over six years ago would not have assisted the Tribunal at all. Similarly, the respondent sought a similar conclusion from the failure to call Dr Kelly, the former general practitioner. He last saw Mr Quinn in June 2000, over two years prior to the relevant date. Again, I am unable to see how his evidence would have assisted.
Given my degree of satisfaction that Mr Quinn has been deliberately exaggerating his symptoms based on his evidence, the evidence of the majority of medical practitioners and the visual evidence of the video, I am unable to find that the work‑related injury of January 1998 continued to cause any incapacity for work after 9 July 2002. While there was acceptable evidence that he suffers from a degenerative lumbar spine condition, his concentrated exaggeration of symptoms, particularly in his upper body, make it impossible to find any specific degree of incapacity after some four and a half years from when that condition was aggravated by the work‑related incident in January 1998.
It follows that the decision under review should be affirmed.
I certify that the twenty‑five [25] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 27 February 2004
17—18 May 2004
Date of Decision: 20 July 2004
Counsel for the applicant: Mr M. Carey
Solicitors for the applicant: Slater & GordonCounsel for the respondent: Mr J. Ferwerda
Solicitor for the respondent: Frenkel Partners
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