Riddle and Telstra Corporation Ltd - [2005] AATA 266

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 266

ADMINISTRATIVE APPEALS TRIBUNAL ) N2004/1095

)N2004/1410

GENERAL ADMINISTRATIVE DIVISION ) N2004/40

LESLIE RIDDLE

Applicant

And

TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal

Ms G Ettinger - Senior Member

Dr M E C Thorpe - Member

Date 23 March 2005

PlaceSydney
DecisionThe decision in Matter N2004/40 is set aside. No decision is made in substitution therefor.
The Tribunal has made no order for costs in Matter N2004/40. It awaits the written submissions of the Applicant and Respondent regarding costs in this matter, which, if they are to be taken into account must be lodged with the Tribunal and served by the parties on each other on or before 22 April 2005.
The decisions in Matters N2004/1095 and N2204/1410 are affirmed.
Costs may not be awarded pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 in Matters N2004/1095 and N2204/1410.

Ms G Ettinger
Senior Member

CATCHWORDS

Compensation – claim for permanent impairment - nature and conditions – s14 ‘Liu’ cease liability issue; decision set aside – issue of indemnity costs – permanent impairment and nature and conditions claims – other decisions affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27

CASE LAW

Australian Postal Corporation v Oudyn [2003] FCA 318

Rosillo v Telstra Corporation Limited [2003] FCA 1628

Liu and Comcare [2004] AATA 617 (18 June 2004)

Lees v Comcare (1999) 56 ALD 84

Re Carson v Telstra Corporation [2001] AATA 648

Fuad and Telstra Corporation Limited [2004] AATA 1182

Bradley Stephen Maley and Comcare (AAT 12616A, 21 July 1998)

Power v Comcare (1998) 89 FCR 514

Hannaford and Telstra Corporation Limited [2004] AATA 1250 (26 November 2004)

Comcare Australia v Hill (1999) 56 ALD 487

Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31

Comcare v Amorebieta [1996] FCA 312

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Repatriation Commission & Cavanagh (1990) 21 ALD 560

REASONS FOR DECISION

23 March 2005

Ms G Ettinger - Senior Member

Dr M E C Thorpe - Member

The applications before the Administrative Appeals Tribunal (“the Tribunal”) were those of Mr Leslie Riddle, the Applicant in these proceedings, appealing against decisions of Telstra Corporation Limited (“Telstra”), the Respondent, made within the legislative environment of the Safety Rehabilitation and Compensation Act 1988 (“the Act”).
The decisions were as follows:

N2004/1095 – The decision under review was the decision of GIO Australia on behalf of Telstra dated 19 August 2004, affirming its determination of 4 August 2004, and denying liability in respect of permanent impairment related to “aggravation of pre-existing spinal canal stenosis at L4/5”.

N2004/40 – The decision under review was the decision of GIO Australia on behalf of Telstra, dated 6 January 2004, which affirmed the determination dated 28 October 2003 to deny liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, (“the Act”), in respect of compensation for further incapacity or medical treatment of Mr Riddle’s lumbar spine on the basis that there was no evidence to show that the Applicant was suffering anything more than the natural progression of an underlying and pre-existing degeneration.

N2004/1410 – The decision under review was the decision of GIO Australia on behalf of Telstra dated 6 October 2004 (Exhibit R3), and affirmed in the reviewable decision dated 26 October 2004 (Exhibit R4), in which it was held that the available evidence did not establish an entitlement for compensation on the basis of the nature and conditions of the Applicant’s employment with the Respondent.

At the Tribunal Hearing, the Applicant was represented by Mr D Richards of counsel instructed by Slater Gordon Lawyers, and the Respondent, Telstra, by Mr B Kelly of counsel, instructed by Henry Davis York Lawyers.

ISSUES BEFORE THE TRIBUNAL

It was agreed by the parties, and the Tribunal accepted that the decision N2004/40 concerning section 14 liability be set aside. (Australian Postal Corporation v Oudyn [2003] FCA 318 and Rosillo v Telstra Corporation Limited [2003] FCA 1628). No decision is made in substitution therefor.
The Tribunal had to decide whether any permanent impairment of the lumbar spine the Applicant suffers is compensable pursuant to sections 24 and 27 of the Act. (N2004/1095)
The Tribunal had to decide whether the condition of Mr Riddle’s back and lower limbs is as a result of the nature and conditions of his employment with the Respondent. (N2004/1410)

LEGISLATIVE FRAMEWORK

The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988 (“the Act”), in particular sections 4, 14, 24 and 27.
Section 4 of the Act defines “disease” and “injury” as follows:
“4. (1) In this Act, unless the contrary intention appears:
...
“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;
...
“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;
...”

Liability pursuant to section 14(1) of the Act was not in question, and the Tribunal noted as follows:
“14 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.
…”

Sections 24 and 27 of the Act are relevant in relation to claims for permanent impairment. As relevant they follow
“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.
...
(5)       Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
...
(7)       ... [W]here 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.”

“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.”

EVIDENCE BEFORE THE TRIBUNAL

Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (‘the AAT Act”), the (“T-Documents”). A number of other documents were also admitted into evidence and are referred to during the course of these Reasons for Decision.
Oral evidence was given by the Applicant, Dr G Griffith, surgeon, Dr E Schutz, surgeon and Dr S Dalton, rehabilitation physician.

EVIDENCE OF THE APPLICANT

Mr Riddle whose date of birth is 16 January 1952, gave oral evidence before the Tribunal. He said that he commenced working for Telstra in 1981, and referred to his Statement dated 20 May 2003 which was at PT14. Mr Riddle then recounted an incident on 19 February 2003, which he said occurred when he was some 300 – 400 metres from his local railway station, and was walking home from work. He said that he felt pain of spontaneous onset in his lower back and right buttock, and by the time he arrived home, a tingling, like a cramp, down the right side of his leg. Mr Riddle said during that evening, the pains became sharper, and increased in severity. He said that the next morning he was in severe pain, and could not get out of bed, so he was driven to see Dr Ken Wong, his general practitioner of 10 years.
Mr Riddle said that he also informed his supervisor.
The Applicant gave evidence that when he returned to work on 28 April 2003, he was on restricted duties. His substantive work had been repairing and installing telephone services which involved climbing ladders, crouching, being in ceiling spaces and under the floors of houses, but from April, he did clerical work and inspections on vehicles for safety audits. At the time of the Hearing, Mr Riddle was validating CNI incidents which involved safety for manholes and pits in various areas. This involved short drives from place to place, and rendered Mr Riddle’s work 70 percent in the field, and 30 percent of his time spent in the office. He indicated that he could move about as he pleased, which accommodated his disability. The Tribunal noted that Mr Riddle was off work from 9 July to 5 August 2003.
Mr Riddle said that from the time he went back to work, and continuously since, he has continued to suffer pain, but said that the symptoms had moved further down the right side of his leg and into his heel and big toe. On 19 February 2003, he initially felt the pain only in his lower back and buttock, and within the next few hours, also down his leg to the knee.
Mr Riddle gave evidence of seeing various doctors, having investigations such as a CT scan and an MRI carried out, and having an epidural injection in October or November 2003, which he said did not assist. He also underwent physiotherapy and acupuncture.
Mr Riddle told the Tribunal that he could no longer play golf because he could not walk the distance. However, in cross-examination, Mr Riddle conceded that his golf was a low key social game, and that he had stopped playing golf in October 2002 due to time commitments. He said that he had difficulty attending movies because he cannot sit for long, and is restricted in travelling. He said that he could sit for approximately 45 minutes before getting up to stretch, and that his duties at Telstra had previously involved driving, up to 50 percent of the day.
Mr Riddle told the Tribunal that he had previously had injuries to his back in approximately 1985/6 working in the Telstra stores, and again while getting out of a truck in 1986/7. He also said that he had an injury in 1999/2000, and had had a couple of days off. He said that each of those injuries had resolved, and he had had no continuing back pain. The Applicant also said that for sometime before the incident on 19 February 2003, he had had no injuries, nor back pain. Since then he has consulted Dr Wong approximately every fortnight.

SUBMISSIONS AND THE TRIBUNAL’S DELIBERATIONS

Having heard the oral evidence, the Tribunal had to take it into account, as well as the written evidence, submissions of the parties, case law and legislation, to decide whether Mr Riddle is permanently impaired as a result of an injury or aggravation of his degenerative spine on 19 February 2003, and whether he is entitled to compensation pursuant to sections 24 and 27 of the Act.
It is not in dispute, and the Tribunal accepted that Mr Riddle, whom it considers a witness of truth, suffered pain in his lower back, right buttock and right leg above the knee, on his journey home from work on 19 February 2003. This rendered symptomatic, his asymptomatic lumbar spine which showed multi-level degenerative disc disease. The Tribunal accepted that he has suffered pain since that day, and that the pain in his right leg which was initially above the knee, extended down his leg after four to five months, and developed into full blown sciatica.
The Tribunal also accepted from the medical evidence that Mr Riddle’s loss of normal range of movement may bring him within the 10 percent threshold for Table 9.6 of the Comcare Guide, noting of course that causal issues are central to the argument whether he is eligible for compensation pursuant to sections 24 and 27.
It is unlikely that the Applicant would reach the 10 percent threshold in relation to Table 9.5. The Tribunal was satisfied from the evidence that Mr Riddle can rise to a standing position, that he can walk, and that on the balance of probabilities, he gave up golf due to time constraints rather than any inability to walk the distance on the golf course. Difficulty with grades and steps was not explored by several of the doctors, although the Tribunal was satisfied that Mr Riddle’s former work involved climbing ladders, and crouching.
In coming to a conclusion, the Tribunal had to deal with three files, the first, being N2004/40.

MATTER N2004/40 - SECTION 14 LIABILITY AND COSTS

Cessation of liability arose in Matter N2004/40, in which the Applicant had written to the Tribunal on 11 November 2004, in the following terms:
“We confirm that it is the Applicant’s contention that the reviewable decision dated 6 January 2004 affirming the determination dated 28 October 2003, is unsustainable for the following reasons:
1. It attempts to undo an earlier s.14 determination;
2. It attempts to bind a future decision maker;
3. Was issued as a result of a review and not a specific claim for compensation; and
4. Does not speak of s. 16, s. 19 or any other section of the Safety, Rehabilitation and Compensation Act 1988.
In the light of the above, we advise of the Applicant’s intention to make application to the Tribunal at the commencement of the proceedings to have the Tribunal set aside the decision under review pursuant to s. 43 of the Administrative Appeals Tribunal Act 1975.”
A Telephone Directions Hearing with the parties’ representatives had taken place shortly afterwards, and sometime before the Hearing.
However, it was not until the Hearing commenced that the Respondent agreed that its decision in Matter N2004/40 decision was not sustainable, and that it had to be set aside. Pursuant to the decisions in Rosillo v Telstra Corporation Ltd (supra)and Australian Postal Corporation v Oudyn (supra) and Liu and Comcare [2004] AATA 617 (18 June 2004), the Tribunal agreed that that was the correct course of action.
Mr Richards then submitted that sections 16 and 19 of the Act were not before the Tribunal because there had been no claims made in regard to those sections of the Act, in connection with the section 14 decision, and the Respondent did not therefore have power under the Act to review its decision spontaneously. He submitted that the Tribunal would be setting aside the decision to cease liability and hence as he put it, “…there is no jurisdiction for section 16 and 19. So there is nothing left … before the Tribunal under that decision.”
Mr Richards submitted that the Respondent was relying on Lees v Comcare (1999) 56 ALD 84, and the three tiered approach discussed in that case which stated that without an application, there was no jurisdiction in the Tribunal.
Mr Kelly submitted that notwithstanding the Tribunal was not estopped from reviewing the original section 14 acceptance of liability, the Respondent has the power to review an Applicant’s situation from time to time to assess whether an accepted condition is still causing incapacity, and therefore assess the need for medical treatment. He submitted liability had been accepted pursuant to section 14 in relation to Mr Riddle, and that accordingly, at the time, he had also been receiving medical treatment pursuant to section 16 of the Act.
Mr Kelly submitted that the Respondent rejected the Applicant’s argument that to review a claim, the Respondent required an application before it. That was unworkable Mr Kelly submitted, because otherwise, a person who was incapacitated, and for whom liability had been accepted, and who was in receipt of continuing payment of compensation, would for example, have to make a specific claim to Comcare for each day of compensation. In that regard Mr Kelly submitted that the Respondent was relying on Re Carson v Telstra Corporation [2001] AATA 648.
The Tribunal was mindful also of Mr Kelly’s submissions regarding the powers under the Act, noting his submission that: “… we are not confined to dealing with claims and/or requests made by the Applicant. We have the power to take all necessary action in respect of subsequent management of those claims and to do anything and to meet any obligations ….”
The Tribunal noted that Mr Riddle applied for compensation on 28 April 2003 (T4), that liability was accepted on 25 June 2003 (T19), and that on 28 October 2003 (T50) it was ceased. The application for review by Mr Riddle for review of that decision was dated 27 November 2003 (T57), and the Respondent affirmed the decision pursuant to section 62(5) of the Act on 6 January 2004 (T66). The Tribunal noted also that in the decision of the Respondent at T50, medical treatment was mentioned (section 16 of the Act).
As agreed at this Tribunal, the reviewable decision in Matter 2004/40 must be set aside. Once liability has been accepted, section 16 and 19 entitlements flow on, and may be applied for as necessary. It is clear from the Respondent’s decision that Mr Riddle had been receiving medical treatment pursuant to section 16 of the Act.
The Tribunal relies on what Justice Downes had to say in paragraphs 4 and 5 of Fuad and Telstra Corporation Limited [2004] AATA 1182:
“4….
These matters are not dealt with in the determination because of the decision that liability has ceased, but, in my opinion, the effect of the decision in Oudyn is that even though an application for compensation is refused pursuant to s 14 or s 16, with the consequence that the decision-maker does not address fully the actual applications under s 19 , s 21 or such other section as is appropriate, nevertheless, the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant.
5. It follows that all matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way. That leaves a problem of identifying exactly what was before the decision-maker but that is a practical problem and not a jurisdictional problem.”

COSTS

Mr Richards made submissions regarding costs in relation to Matter N2004/40. He referred to Rosillo v Telstra Corporation Limited (supra), in which the Tribunal noted that Madgwick J had stated:
“As to the costs of the ‘appeal’ to this Court, the applicant’s solicitors wrote to the respondent’s solicitors, before commencing proceedings in this Court, inviting them ‘to concede that the Tribunal’s decision is wrong and it should be set aside’. The solicitors referred the respondent’s solicitors to Oudyn and to a case of the Tribunal, Abarca v Telstra Corporation Limited (2003) AATA 468 in which a differently constituted Tribunal handled a similar case entirely correctly, and indicated that if they had to commence proceedings, an application for indemnity costs would be made.
Counsel for the respondent had the unenviable task of seeking to defend the Tribunal’s position, and did his best to say that the effect of everything that the Tribunal had done was not to prejudice the appellant for the future and, as the respondent had never held any different position, there was an argument to be presented that, even if the course taken by the Tribunal were erroneous, the Court ought not, in the circumstances, for the lack of a real controversy between the parties, make a costs order.
There was, in the circumstances of this case, some argument to be presented despite the Calderbank letter and I do not think that in this case an order for indemnity costs would be warranted. In what would be the unthinkable event that the Tribunal repeated what has been done in this case, any respondent who caused an applicant to contest a case in this Court to correct the Tribunal’s error would likely not be so fortunate.
The decision of the Tribunal is set aside. The decisions purportedly made on behalf of the respondent concerning the appellant on 28 August 2001 and 26 October 2001 are set aside. The respondent is to pay the applicant’s costs before the Tribunal which if not agreed are to be taxed by a relevant officer pursuant to s 67(13) of the Compensation Act. The respondent is to pay the applicant’s costs in this Court to be assessed or taxed.”

Mr Richards submitted that because of the Respondent’s late concession, the Applicant had incurred costs in preparation of the Oudyn and Rosillo arguments. He submitted, referring to paragraph 24 of the Federal Court decision, first that the Applicant was seeking indemnity costs, and emphasising by reference to Rosillo (supra), that the Respondent knew about the ruling by 6 January 2004, at the time of making its reviewable decision in this matter. He noted that Rosillo had been handed down by the Federal Court on 8 December 2003.
Mr Richards also referred to Bradley Stephen Maley and Comcare (AAT 12616A, 21 July 1998) in particular paragraphs 18 and 19, in support of his further argument that the Applicant was now seeking 100 percent of the Federal Court scale rather than indemnity costs. Mr Richards argued that this was a relevant case, as “proceedings were commenced or continued in wilful disregard of known facts or clearly established law”, (Sheppard J being quoted by Senior Member Beddoe at paragraph 19 of Re Maley and Comcare (supra). Mr Richards submitted also that the Respondent could have resolved the section 14 issue long before the Hearing, and avoided the Applicant incurring costs in arguing it. He also drew attention to Senior Member Beddoe’s statements about costs, and the fact that the Senior Member had added:
“Each case must be considered on its own particular facts, having regard to the general principle that the usual award of party/party costs to the successful party should be made unless there are special circumstances to justify the making of a different order.”
In making his submissions, Mr Kelly also referred to paragraph 19 of Re Maley v Comcare (supra), in regard to the argument regarding costs, submitting that the argument in that case centred around proceedings commenced or continued in wilful disregard of known facts or clearly established law. In that regard, he submitted that the Respondent did not commence these proceedings, and the fact that the Applicant may have commenced proceedings because of a determination of the Respondent, was a different issue. He also submitted that the Respondent had made its determination on 28 October 2003, sometime before the decision of the President of the Tribunal handed down his decision in Liu and Comcare (supra) on 18 June 2004.
Mr Kelly also referred to paragraphs 9 and 10 of Fuad (supra) where Justice Downes had stated at paragraph 9:
“Because it is now well established that short of a successful challenge to at least the Full Federal Court and possibly the High Court of Australia, cease liability orders of the kind I am dealing with here cannot be made, applicants will incur very little costs in challenging those orders that are made within the system and relate to decisions that were made either before the decisions in Oudyn and Rosillo or by a decision-maker who was not aware of them. However, in principle, an argument can be mounted in favour of an order for costs and members of the Tribunal may consider that orders for costs relating to cease liability orders should be made from time to time. …
10. It seems to me that where a decision not authorised by the Act is made, in most circumstances an applicant will be entitled to an order for costs associated with the making of that incorrect decision. However, as I have said, the knowledge of applicants that such a decision is really unsustainable will mean that the costs that they incur will be slight and it seems to be that any costs they will be entitled to, although I cannot and do not attempt to bind the discretion of members of the Tribunal in the future, could not survive an unequivocal communication by a respondent to an applicant that the respondent did not seek to sustain the cease liability decision before the Tribunal. It follows that whilst in many cases there will be a technical entitlement to costs, it may be that it proves not to be substantial.”

Mr Kelly submitted that accordingly, there was no basis for an indemnity order.
The Tribunal was mindful that the parties requested to make further written submissions regarding costs after the substantive decision had been handed down, to which the Tribunal acceded. It has accordingly noted the arguments above, and not yet made any decision about costs in Matter N2004/40.

ISSUE ESTOPPEL

Mr Kelly, referring to Power v Comcare (1998) 89 FCR 514, and the case of Hannaford and Telstra Corporation Limited [2004] AATA 1250 (26 November 2004), made submissions about there being no issue estoppel which applies to the Tribunal. He submitted that on the basis of the evidence, the Tribunal could find that section 14 liability ought never to have been accepted in relation to Mr Riddle. (Hannaford and Telstra Corporation (supra), Power v Comcare (supra)). Comcare Australia v Hill (1999) 56 ALD 487.
In support of his argument, Mr Kelly also referred to Carson (supra) which he said was referred to with approval in Oudyn. Mr Kelly conceded that pursuant to Oudyn, liability could not be ceased, but submitted that the Respondent could review a situation to see whether the condition of a recipient of compensation was still causing incapacity or whether that person was still requiring medical treatment.
The Tribunal noted that in Hill (supra), Spender J stated at paragraph 10:
“It is clear that issue estoppel does not apply in respect of decisions of Comcare and of decisions of the AAT in relation to disparate claims, and the position is that the question of ‘work connection’ under a claim pursuant to s 24 of the Safety, Rehabilitation and Compensation Act is not precluded by an earlier determination. The earlier determination by Comcare concerning incapacity and medical expenses and the subsequent decision of the tribunal affirming that determination did not have the effect that the issue of ‘work connection’ was irrelevant, that issue having already been concluded by the earlier stance taken by Comcare.”
Mr Richards, on the other hand, found serious disagreement with Mr Kelly’s argument, but conceded that if a reconsideration of own motion by the Respondent under section 62(1) of the Act had taken place, then that decision would be able to be reviewed by the Tribunal. However, as it had not, that was not before the Tribunal. He referred to Lees (supra), and the three tiered process referred to in that case.
Mr Richards submitted the Applicant disagreed with the decision in Hannaford (supra) which he submitted was at odds with the Federal Court authorities on the subject.
The Tribunal has noted the submissions of the parties, and relies on the powers regarding reconsideration of own motion accorded to the Commonwealth pursuant to section 62(1) of the Act, and the jurisdiction of the Tribunal (Lees (supra)).

WHETHER MR RIDDLE SUFFERED PERMANENT IMPAIRMENT AS A RESULT OF THE INJURY OF 19 FEBRUARY 2003

The Tribunal then considered Mr Riddle’s claim for permanent impairment, and has reproduced Tables 9.5 and 9.6 of the Comcare Guide below. Table 14.1 is a “Combined Value Chart” from which the Tribunal can combine two or more impairment ratings in order to work out a total impairment.
Tables 9.5 and 9.6 indicate as follows:

“9 MUSCULO-SKELETAL SYSTEM

TABLE 9.5

Limb Function - Lower Limb

(Percentage Whole Person Impairment)

%	DESCRIPTION OF LEVEL OF IMPAIRMENT
10	Can rise to standing position and walk BUT has difficulty with grades and steps
20	Can rise to standing position and walk but has difficulty with grades, steps and distances
30	Can rise to standing position and walk with difficulty BUT is limited to level surfaces
50	Can rise to standing position and maintain it with difficulty BUT cannot walk
65	Cannot stand or walk

TABLE 9.6

Spine

DESCRIPTION OF LEVEL OF IMPAIRMENT

%	CERVICAL SPINE	THORACO-LUMBAR SPINE
0	X-ray changes only	X-ray changes only
5	Minor restrictions of movement	Minor restrictions of movement OR Crush fracture - compression 25-50 percent
10	Loss of half normal range of movement	Loss of less than half normal range of movement OR Crush fracture - compression greater than 50 percent
15	Loss of more than half normal range of movement	Loss of half normal range of movement
…..”

Mr Richards submitted that:

There was no section 14 issue to deal with, and it had been accepted that Mr Riddle suffered a compensable aggravation of his pre-existing spinal canal stenosis on 19 February 2003. He submitted that the Applicant suffered the permanent impairment on his journey home on 19 February 2003, or, in the alternative, arising from the nature and conditions of his work. He acknowledged that Mr Riddle had certain degeneration of the lumbar spine which had been asymptomatic and became symptomatic on that day, due to a structural injury (which could have been a disc protrusion or annular tear, or chemical change – per Dr Griffith), which has remained thus (Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31). Mr Riddle had attended at his general practitioner, Dr Wong, on more than 50 occasions in relation to symptoms in his back since that day, Mr Richards submitted.
Mr Richards drew the Tribunal’s attention to the case of Comcare v Amorebieta [1996] FCA 312 where at paragraphs 9, 70 and 71, Jenkinson J had indicated that:
“9. The measure of that compensation is the degree of permanent impairment which has resulted from that aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the applicant’s spine is caused by - ‘results from’ – that aggravation, whatever the lesser degree of impairment was which preceded that aggravation, and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment.
70. … We are satisfied that the pain and restrictions from which he currently suffers followed and resulted from the January 1992 incident. At the very least, the incident of January 1992 rendered what was essentially an asymptomatic condition into a symptomatic condition.
71. As at least that has happened, Mr Amorebieta has suffered an injury within the meaning of the 1988 Act. … That is to say, the aggravation of his pre-existing condition has arisen out of, or in the course of, his employment in January 1992. This is so even if we are unable to identify whether the incident in January 1992 changed the underlying pathology of his condition.”
Mr Richards submitted that Mr Riddle relied on the medical evidence of the doctors who found that he suffers restriction of movement and impairment which is more than minor, and which is permanent.
Mr Richards submitted that Dr Matheson had found loss of 30 percent normal range of movement. Dr Dalton, who, although he did not accept the impairment was work related, came to the conclusion after reviewing what Dr Griffiths found, that the impairment was perhaps 10 percent. Mr Richards emphasised that Dr Dalton opined the impairment could have been 20 percent pursuant to Table 9.6 of the Comcare Guide. He submitted that Dr Griffiths and Dr Wong had opined Mr Riddle suffered 10 percent permanent impairment pursuant to Table 9.5, and 10 percent permanent impairment pursuant to Table 9.6 of the Comcare Guide, making a total of 19 percent. Mr Richards submitted that the evidence of Dr Schutz should not be preferred because he had acted as an advocate for the Respondent.
Mr Richards also referred to Dr Nall, a doctor qualified by the Respondent, who opined in his report at T17, that there may have been a small lateral disc prolapse which had occurred and initiated the symptoms in Mr Riddle’s right buttock on the day of the development of the symptoms. (The Tribunal noted that Mr Richards had taken Dr Nall’s statement out of context, and that the sentence which preceded the one referred to above read: “It is quite possible that the symptoms of which Mr Riddle complained were progression of the underlying spinal canal stenosis at L4/5”).
Mr Richards drew attention to the fact Dr Nall had reported in terms of an aggravation of a pre-existing condition attributable to the prolonged sitting on the day of the development of symptoms.
Mr Richards submitted that should the Tribunal consider the nature and conditions claim, then the principles in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 applied. In regard to nature and conditions of the workplace having contributed to Mr Riddle’s permanent impairment, Mr Richards submitted that Dr Wong, treating general practitioner, Dr Griffith (T3, 8 March 2004 and 26 June 2004 Exhibit A1), and Dr Kam (T46), all implicated the workplace.

THE RESPONDENT’S SUBMISSIONS

A summary of Mr Kelly’s submissions made on behalf of the Respondent follows:

Submissions about section 4 of the Act, and the submission that “something” can be both an injury and a disease (Zickar v MGH Plastic Industries Pty Limited (supra)).
Mr Kelly submitted on behalf of the Respondent that it was the rupture of the blood vessels in Zickar which was the injury in that case. He also submitted that as a matter of law, although rupture or breaking was not an essential pre-requisite to the finding of injury, symptoms alone did not suffice, and that a change of some nature, an ascertainable lesion or traumatic physiological change was required (Zickar v MGH Plastic Industries Pty Limited (supra) and Australian Postal Corporation v Birch) and Repatriation Commission & Cavanagh (1990) 21 ALD 560.
Mr Kelly submitted that a disc prolapse was not an inevitable consequence of a pre-existing back condition. However, the development of symptoms in Mr Riddle’s case was a mere temporal connection with work, and that was insufficient to constitute injury.
Mr Kelly submitted that the Tribunal consider Dr Griffith’s opinion that the Applicant suffered a disc lesion or further bulging leading to the onset of symptoms, and consider then, whether the Tribunal preferred the opinion of Drs Schutz, Matheson and Dalton that what occurred to Mr Riddle was the natural manifestation of the progression of the underlying degenerative condition without there being any sudden physiological change. He also submitted that Drs Schutz, Matheson and Dalton opined that a disc protrusion would be expected to have caused immediate, severe, incapacitating pain in the back, and probably immediate sciatica. Mr Riddle, however, suffered pain in the buttock and leg (above the knee), with below the knee symptoms developing some four or five months later.
Mr Kelly also referred to the report of Dr Nall, and the proposition that the prolonged sitting at a meeting on 19 February 2003 had aggravated Mr Riddle’s pre-existing condition with the development of symptoms. He submitted, referring to Mr Riddle’s evidence, that there was no indication the pain the Applicant suffered on the way home from work had anything to do with sitting at the meeting, acknowledging however, Mr Riddle’s evidence that after sitting all day he was a little stiff and sore around the shoulders, (no mention of the back). Mr Kelly submitted that Dr Nall’s various reports were not consistent and should be given little weight.
Mr Kelly referred to Dr Kam’s opinion (the written report), submitting that he did not clarify his views about any work contribution to the development of symptoms on 19 February 2003. He also submitted that Dr Wong, as the treating general practitioner, should be given less weight than the specialists called to give evidence.
Mr Kelly submitted that the opinions of Drs Schutz, Matheson and Dalton who did not find work related permanent impairment should be preferred. He submitted that only Drs Griffith and Wong made findings regarding compensable levels of permanent impairment, (10 percent), the latter having made no reference to the Comcare Guide. He emphasised that neither Dr Wong nor Dr Griffith made any assessment in regard to difficulty the Applicant may have had with grades or steps. Mr Kelly submitted that Dr Griffith’s views regarding the 10 percent assessment of permanent impairment of the leg and back were both unconvincing and equivocal, and that Dr Griffith attempted to apportion the permanent impairment between Mr Riddle’s episode of 19 February 2003 and his degenerative condition.
Mr Kelly submitted that based on the medical evidence, the maximum available to Mr Riddle would be a 5 percent impairment, insufficient to meet the threshold in sections 24 and 27 of the Act. He acknowledged that Comcare v Amorebieta (supra) stood for the proposition that where an asymptomatic condition becomes symptomatic, and injury or aggravation is found, there is no discount for the underlying condition when assessing permanent impairment.

THE MEDICAL EVIDENCE

The Tribunal then moved to consider the medical evidence regarding permanent impairment.
The Tribunal first considered the investigations which had been made.

investigations

A report of the CT of Mr Riddle’s lumbo-sacral spine was made on 25 February 2003 (Exhibit R1, T5). The result was: “Degenerative facet arthritis. Broad based annular disc bulge at L4/5 with ligamentum flavum hypertrophy causing a generalised degree of thecal compression at the L4/5 level.”
On 14 July 2003, after a visit to Dr Kam, Mr Riddle underwent an MRI, which reported: “The lower three lumbar discs are narrowed with evidence of degenerative change. Small focal posterior disc protrusions are demonstrated. There are also changes of facet arthrosis.” (Exhibit R1, T25)
The Tribunal was satisfied that notwithstanding the differences in technique between the CT (February 2003) and the MRI (September 2003), the results of the examinations taken some four to five months apart, were very similar, and did not support the Applicant’s argument that he had suffered a rupture on his way home from work on 19 February 2003.

doctors’ evidence

Dr G Griffith, who is a consultant surgeon, had reports dated 8 March 2004 (Exhibit R2, T3), and 26 June 2004 (Exhibit A1), before the Tribunal. He gave oral evidence by telephone. In his written report, he had reviewed the reports of the other examining doctors, and referred to the reports of Drs Dalton and Matheson. Dr Griffith considered that: “it is drawing a long bow to state that the disc lesion was inevitable”. He emphasised that a disc lesion of the nature of Mr Riddle’s lesion “is not an invariable consequence of the passage of time, though it may occur”.
Dr Griffith also opined in his report that he agreed with Dr Dalton, that had Mr Riddle’s employment been office based, he would have been less likely to have suffered a disc lesion as an aggravation to the degenerative changes in his spine.
In his oral evidence, Dr Griffith said that he agreed with the other doctors who found that Mr Riddle has very significant underlying degenerative changes in his spine. He stated however, that he considered the Applicant had developed significant disc lesions on 19 February 2003, and that this was the first occasion when the pain had been referred down to his foot at an L5 distribution. He opined that the history of the pain following that occasion, meant it was likely to be disc related because Mr Riddle had impulse phenomena, and the pain was totally different to other pain he had previously suffered. Dr Griffith opined that Mr Riddle suffered an annular tear at L4/5, a structural injury which manifested itself through acute pain while on the journey home from work on 19 February 2003, and has continued since. He added in his oral evidence that had it not been a structurally based injury, it was likely to have remitted within three months.
Dr Griffith opined that taking into account Table 9.6 of the Comcare Guide, Mr Riddle’s impairment of 10 percent could be attributed half to the underlying condition of Mr Riddle’s spine, and half to the injury of 19 February 2003.
When asked how he ascribed impairment to the leg pursuant to Table 9.5, Dr Griffith admitted he had not questioned the Applicant about his ability to walk on grades or steps, but had relied on the history he took regarding the Applicant’s walking, and mentioned the tests appropriate to the New South Wales workers’ compensation jurisdiction. The assessment was therefore not made on a sound basis, and as he applied the incorrect Tables, his assessment should be disregarded.

Dr K Wong, Mr Riddle’s general practitioner, had medical notes dated from October 1994 to March 2004 before the Tribunal as Exhibit A2, and a report dated 2 August 2004 at T5 in Exhibit R2. The Tribunal noted Mr Riddle’s evidence that he had attended upon Dr Wong on approximately 50 occasions since 20 February 2003 with back pain, referrals and treatment recorded. Dr Wong attributed Mr Riddle’s “chronic injuries” as he put it, to “heavy manual labour such as digging trenches, installing and repairing of phone line …”, and assessed 10 percent permanent impairment of the back, and 10 percent for the lower limb (side unspecified, and without reference to any particular Tables).
Dr J Matheson, consultant neurosurgeon, whose report of 30 March 2004 was before the Tribunal as Exhibit R5, gave oral evidence. He stated in his written report that he had reviewed the CT and MRI examinations, and diagnosed disc degeneration on three levels. He opined that this was a constitutional condition with facet degeneration.
Dr Matheson’s further report of 21 July 2004 was before the Tribunal as Exhibit R6. He referred to Dr Griffith’s report stating that they concurred on diagnosis, namely that Mr Riddle had constitutionally short lumbar pedicles. However, Dr Matheson opined that Dr Griffith relied on the MRI report of annular tears which he (Dr Matheson) thought was a doubtful finding, and further that Dr Griffith relied on a finding of progressive bulging which Dr Matheson said he did not accept. Dr Matheson said that there was no frank disc bulge, but some slight scalloping of the L4/5 and L3/4 disc.
Dr Matheson’s report of 18 November 2004 (with paragraph three deleted), was before the Tribunal as Exhibit R9. In it Dr Matheson opined that he did not find permanent impairment of the back or right leg attributable to the 19 February 2003 injury. In his oral evidence, Dr Matheson stated that he did not intend to convey what appeared in Exhibit R9 as a statement that Mr Riddle had not given him a history of sciatica. He said that it was written in a clumsy way and that he had intended to make a distinction between subjective sciatica and neurologically established sciatica. He said that it did not alter his opinion about Mr Riddle’s condition.
Dr Matheson stated that on the day he examined Mr Riddle, the Applicant demonstrated a minor restriction of mobility.
Dr Matheson was asked whether he agreed with Dr Griffith’s opinion that the CT taken on 25 February 2003, and the MRI performed on 14 July 2003 indicated there had been a progression of pathology demonstrated. He replied that taking into account the difference in technologies, the two investigations showed the same condition. Dr Matheson also considered that the history of the leg pain progressing from above the knee to below the knee, and the whole length of the leg, accorded with gradual progression of the underlying spondylosis from the incident of 19 February 2003. He opined that “the rupture of a disc or sudden prolapse of a disc usually produces fairly instant sciatica.”
Dr Matheson did not agree with Dr Griffith’s diagnosis of impulse phenomena being indicative of disc protrusion. Dr Matheson stated that Mr Riddle’s onset of symptoms on 19 February 2003 did not result from an ascertainable lesion or physiological change. In reply to Mr Richards, he said that, hypothetically, there could have been a reason for Mr Riddle’s symptoms to commence on 19 February 2003, and hypothetically only, it could have been a rupture or tearing.
Dr S Dalton, consultant in rehabilitation medicine, had two reports before the Tribunal. Exhibit R7, was dated 4 May 2004, and Exhibit R8, 3 December 2004. Dr Dalton’s diagnosis of Mr Riddle was multilevel degenerative disc disease and facet joint osteoarthritis affecting the lower three levels of Mr Riddle’s lumbar spine. Dr Dalton also referred to Mr Riddle having developmental spinal canal stenosis.
Dr Dalton concluded that there was no indication Mr Riddle had suffered an acute lumbar disc protrusion, and noted there was no history of injury, but that the nature and conditions of the employment involved physical activities which quite reasonably could have aggravated the underlying spine condition. In his oral evidence, Dr Dalton said that with Mr Riddle’s type of pathology, onset of symptoms as the Applicant experienced, is not necessarily related to trauma or physical activity. He added that the sitting at a meeting all day on 19 February 2003 may have triggered symptoms, but that did not mean it had created pathology or materially aggravated the underlying conditions.
When asked to comment on Dr Griffith’s theory regarding impulse phenomena, Dr Dalton stated that he did not agree with the view that the experience of pain with coughing or sneezing or movement necessarily indicated that a person had a disc problem as the primary source of pain.
As to assessment of any permanent impairment; Dr Dalton stated in his report (Exhibit R8), that the permanent impairment Mr Riddle suffers is due to the underlying pathology which is largely degenerative in origin, adding in his oral evidence that it was also partly developmental. He opined that the aggravation which occurred on 19 February 2003 had not resulted in any additional permanent impairment, and attributed zero percent to the back and zero percent to the right leg arising from the Applicant’s employment with Telstra. In his oral evidence, Dr Dalton said that he had a problem with assessing impairment on a single examination because range of movement can vary greatly. He was prepared to say however that applying Table 9.6 of the Comcare Guide, Mr Riddle probably suffers a 10 percent impairment of his thoraco-lumbar spine.
Dr Dalton concluded his oral evidence by saying: “I don’t think there’s any good clinical evidence that there was something that occurred on that day in particular that was responsible for symptoms that would not have occurred, had it not been that event.”
Dr E Schutz, consultant surgeon, had prepared reports dated 11 September 2003 (Exhibit R12, T38), and 3 December 2004 (Exhibit R10), which were before the Tribunal. Dr Schutz did not examine the Applicant in connection with the preparation of Exhibit R10.
He opined at Exhibit R10, and affirmed in his oral evidence that on findings at clinical examination, an assessment of permanent impairment of 10 percent under Table 9.5 would be reasonable, and attributed it to degeneration rather than to any effects of Mr Riddle’s employment. Dr Schutz affirmed that opinion in his oral evidence, saying that with the level of degeneration the Applicant exhibited, it was inevitable that at some point, Mr Riddle would have developed what he felt on 19 February 2003, “radiculopathy due to stenosis”.
In his report at T38, Dr Schutz opined in September 2003, some seven months after 19 February 2003, that Mr Riddle had continued to suffer symptoms, and that they now extended right down his right leg to the foot, and were likely to develop further.
At T38, Dr Schutz commented that the CT and MRI “basically confirmed the same findings”. In his oral evidence, he said that both the CT and MRI which were taken some five months apart, both showed degenerative change. Notwithstanding CT and MRI are different processes of investigation, Dr Schutz said that he did not agree with Dr Griffith that Mr Riddle had developed a disc lesion in the form of progressive bulging of the L4/5 disc. Dr Griffith had commented on a progression in the pathology with which Dr Schutz disagreed.
Dr Schutz referred to the fact that Mr Riddle suffered back pain, and pain in his buttock and in his right leg to the knee on and after 19 February 2003. He noted the significance of the fact that it was only some five months later, when the pain radiated down his calf to his foot, that he was referred for the MRI in July 2003.
Dr Schutz acknowledged he had not asked Mr Riddle about gradients or steps, and confirmed he had assessed the Applicant as 10 percent impaired pursuant to Table 9.5 of the Comcare Guide, and 5 percent pursuant to Table 9.6.
Dr Schutz did not agree with Dr Griffith that there may have been a chemical reaction, which took place on 19 February 2003, opining that if Mr Riddle had suffered a disc prolapse or significant annular tear, or even a disc lesion (as Dr Griffith put it), on 19 February 2003, then that may have been the result. He did not however believe either had occurred. Dr Schutz opined that the disc bulge which Mr Riddle has as part of his degeneration may have worsened through sitting in a meeting all day on 19 February 2003.
Dr R Nall, orthopaedic surgeon who had a report dated 2 June 2003 (Exhibit R1, T17), before the Tribunal did not give oral evidence. Mr Kelly submitted that due to certain internal inconsistencies in the report, the Respondent did not rely on it. The Tribunal noted that they related to whether the day sitting at the meeting on 19 February 2003 played a part in the commencement of the pain Mr Riddle suffered on his way home that day. The Tribunal noted that Dr Nall, while opining that Mr Riddle suffered spinal canal stenosis at L4/5, also stated that there may have been a small lateral disc prolapse which occurred and initiated the symptoms in the Applicant’s right buttock.
Dr A Kam, neurosurgeon, had reports in Exhibit R1 at T21, T28 and T46. In his first report on 1 July 2003, he referred Mr Riddle for MRI, and opined that he most likely had nerve root impingement secondary to the L4-5 level. Some weeks later, he commented (T28), that the MRI confirmed the presence of a broadbased disc bulge involving the L3-4, L4-5 and L5-S1 levels. Dr Kam was treating Mr Riddle, and commented that the aggravation of the degenerative changes seen on the MRI were contributed to by his work.

THE TRIBUNAL

The evidence of Mr Riddle which the Tribunal accepted, was that he developed pain in his lower back and right buttock which then radiated down the leg to the knee on 19 February 2003, and the day following. He did not however develop true sciatica, that is pain, tingling and numbness down the extent of the leg and to the toes until some four months later when he was referred to Dr Kam, who referred him for an MRI. The Tribunal noted that the results of the CT taken in February 2003 shortly after the onset of pain on 19 February 2003, and the MRI some four months later, notwithstanding the difference in technology, indicated, as confirmed by the various doctors who examined Mr Riddle, that the results of the two examinations showed very similar results. The Tribunal preferred those opinions over that of Dr Griffith who opined that the MRI showed a progression of disc changes (Exhibit R2, T3).
The Tribunal acknowledges that Mr Riddle has multilevel degenerative disc disease and facet joint osteoarthritis affecting the three lower levels of his lumbar spine, aggravations of which may occur from time to time, and for which liability has been accepted by the Respondent. The Tribunal accepts that he suffers pain, and is likely to suffer further aggravations from time to time.
However, the Tribunal accepted that any permanent impairment Mr Riddle suffers is due to underlying pathology which is largely degenerative in origin, (Drs Matheson, Dalton, Schutz, Kam), and also partly developmental (Dr Dalton). Dr Schutz affirmed that with the level of degeneration the Applicant exhibited, it was inevitable that at some point, Mr Riddle would have developed what he felt on 19 February 2003, was, “radiculopathy due to stenosis”.
Dr Schutz opined that an assessment of permanent impairment of 10 percent under Table 9.5 would be reasonable, and attributed it to degeneration rather than to any effects of Mr Riddle’s employment. Others of the doctors also gave assessments of permanent impairment (Dr Dalton), although Dr Wong, in giving his, did not refer to the Comcare Tables.
Dr Griffith did not ask Mr Riddle about any problems he had with gradients and steps, and made an attempt to equate that difficulty with climbing ladders, which the Tribunal considers inappropriate. The assessment was therefore not made on a sound basis. Further, he applied incorrect Tables, so that his assessment can accordingly be disregarded.
The Tribunal noted also that Mr Riddle does not use ladders in his present supervisory job which he has been doing since returning to work after 19 February 2003.
In any case, even if Mr Riddle’s impairment can be said to have reached the 10 percent threshold, the Tribunal was not satisfied that it was compensable because the Tribunal agreed with the medical evidence which indicated the impairment he suffers is due partly to constitutional factors, partly to the degenerative condition of his spine, and to the natural progression of those conditions (Drs Matheson, Dalton and Schutz).
In regard to the issue of permanent impairment, the Tribunal preferred the opinions of Drs Matheson, Schutz, and Dalton over that of Dr Griffith and general practitioner Dr Wong, and did not give much weight to Dr Nall’s reports due to the inconsistencies exhibited therein.
The Tribunal noted that Dr Griffith alone relied on impulse phenomena, and appeared to believe that Mr Riddle developed sciatica immediately whilst walking home on 19 February 2003, which is not what Mr Riddle told the Tribunal had occurred. The other medical evidence, including the opinion of Drs Dalton and Matheson, which the Tribunal preferred, was that impulse phenomena did not necessarily imply that the experience of pain with coughing or sneezing or movement necessarily indicated that a person had a disc problem as the primary source of pain.
The Tribunal was satisfied from the medical evidence (Dr Matheson and Dr Griffith), that if Mr Riddle had ruptured a disc, he would have felt immediate and severe pain with full sciatica on 19 February 2003. Accordingly, the Tribunal accepted that Mr Riddle did not suffer an acute lumbar disc protrusion on the way home from work on 19 February 2003, and that applying Zickar (supra), noted that there was no disc rupture, or significant annular tear, no disturbance of the normal physiological state, rather just a temporal connection between the onset of pain and the journey home from work. The Tribunal accepted the opinion of the doctors (Dalton, Matheson and Schutz), who said that with Mr Riddle’s type of pathology, onset of symptoms as the Applicant experienced, is not necessarily related to trauma or physical activity.
The Tribunal was satisfied in relation to Mr Riddle’s back pain, that there was only a temporal, and no causal connection with the employment, and that any permanent impairment suffered on 19 February 2003 was therefore not compensable.
In summary, having reviewed the medical evidence, the Tribunal was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003. The decision under review must be affirmed.

CONSIDERATION OF THE CLAIM REGARDING NATURE AND CONDITIONS OF THE EMPLOYMENT

Mr Richards argued that if Mr Riddle was not successful in regard to the claim regarding aggravation which occurred on 19 February 2003, then the application for a nature and conditions claim should be considered. In that regard, the Tribunal noted the decision in Matter N2004/1410 that the available evidence did not establish an entitlement for compensation on the basis of the nature and conditions of the Applicant’s employment with the Respondent.
The Tribunal was mindful of Mr Richards’ submissions regarding the application of Treloar (supra), and noted the principle from that case, that for an aggravation to be compensable, it is not of import whether the contribution of the work place be large or small.
The Tribunal noted the evidence of Mr Riddle that the work he carried out previous to 19 February 2003 involved climbing ladders, crouching, and working in restricted space such as ceilings and under the floors of houses, and that Drs Griffith and Wong implicated the work place in his present condition.
The Tribunal noted that Dr Dalton, who concluded that Mr Riddle had not suffered an acute lumbar disc protrusion, opined that the nature and conditions of his employment involved physical activities which quite reasonably could have aggravated the underlying degenerative spinal condition.
Dr Griffith also opined in his report that he agreed with Dr Dalton, that had Mr Riddle’s employment been office based, he would have been less likely to have suffered a disc lesion as an aggravation to the degenerative changes in his spine.
The Tribunal was satisfied from the medical evidence which it has discussed in the paragraphs above, that Mr Riddle had not suffered a disc lesion, or other injury or aggravation on the way home from work on 19 February 2003, and that his impairment was as a result of the natural progression of his degenerative lumbar spine, and was not attributable to the nature and conditions of his employment.
The Tribunal was not satisfied that the available evidence established an entitlement for compensation on the basis of the nature and conditions of the Applicant’s employment with the Respondent. The decision under review must be affirmed.

DECISION

The decision in Matter N2004/40 is set aside. No decision is made in substitution therefor.
The Tribunal has made no order for costs in Matter N2004/40. It awaits the written submissions of the Applicant and Respondent regarding costs in this matter, which, if they are to be taken into account, must be lodged with the Tribunal and served by the parties on each other on or before 22 April 2005.
The decisions in Matters N2004/1095 and N2204/1410 are affirmed. Costs may not be awarded pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 in these matters.

I certify that the preceding 105 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member.

Signed: Neil Glaser
Associate

Dates of Hearing 6 & 7 December 2004
Date of Decision 23 March 2005

Counsel for the Applicant                Mr D Richards
Solicitor for the Applicant                Slater Gordon Lawyers,
Counsel for the Respondent           Mr B Kelly
Solicitor for the Respondent Henry Davis York Lawyers