ROBERT GEORGE WELLMAN and BHP BILLITON LTD
[2010] AATA 397
•28 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 397
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1384
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT GEORGE WELLMAN Applicant
And
BHP BILLITON LTD
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate28 May 2010
PlacePerth
Decision
The Tribunal sets aside the reviewable decision of the respondent, dated 19 March 2009, and, in substitution therefor, decides that on and from 30 January 2009 (being the date of effect of the reviewable decision) to the present date, and as at the present date, compensation is payable to the applicant, pursuant to s 28 and s 31 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth), in respect of his lower back injury sustained on 8 June 1991.
Application may be made to the Tribunal in relation to the costs of this proceeding within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 92(1) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth), that the costs of this proceeding incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
COMPENSATION – seafarers – applicant suffered lower back pain in June 1991 on board ship operated by respondent – respondent accepted liability to pay compensation to applicant for lower back injury – respondent decided that as at 30 January 2009 not liable to pay compensation to applicant for costs of medical treatment and for incapacity for work in respect of lower back injury – applicant continues to suffer pain symptoms as result of lower back injury – applicant is partially incapacitated for work as result of lower back injury – compensation continues to be payable to applicant for cost of medical treatment and for incapacity for work – reviewable decision set aside
Seafarers Rehabilitation and Compensation Act 1992 (Cth), s 3, s 26(1), s 28 and s 31
Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth), s 6 and s 7(1)
Seamen’s Compensation Act 1911 (Cth), s 5, s 5A(1) and Sch 1
REASONS FOR DECISION
28 May 2010 Deputy President S D Hotop
Dr J Chaney, Member
Introduction
1. Robert George Wellman (“the applicant”) has received ongoing workers’ compensation payments from the respondent in respect of an injury to his lower back which he suffered in the course of his employment as a marine engineer on board the ship “Iron Spencer” on 8 June 1991.
2. On 19 March 2009, however, an officer of the respondent made a “reviewable decision” under s 78 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“SRC Act”) that, as at 30 January 2009, the respondent was not presently liable to pay to the applicant either compensation for medical treatment expenses pursuant to s 28 of the SRC Act, or compensation for incapacity pursuant to s 31 of the SRC Act, in respect of the lower back injury sustained on 8 June 1991.
3. The applicant has applied to the Tribunal for review of that decision.
The Evidence
4. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T37, pp 1–74) lodged with the Tribunal by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A3 tendered in evidence by the applicant;
· Exhibits R1–R6 tendered in evidence by the respondent; and
· the oral evidence of the applicant and of Mr Barrie Slinger, Dr Joel Silbert and Mr Philip Hardcastle.
Background
5. The following background material and information regarding the relevant injury and subsequent medical treatment and assessments is contained in the T Documents and Exhibit A1.
6. An injury report form, signed by the Master of the ship “Iron Spencer” and dated 24 June 1991, contains (inter alia) the following details regarding the injury suffered by the applicant on board that ship on 8 June 1991:
· the injury was first reported on 10 June 1991;
· the applicant was on duty at the time of the injury and did not cease duty;
· no treatment for the injury was given on board the ship;
· a medical report, dated 18 June 1991, was provided and the applicant’s injury was diagnosed as “low back strain, left sciatica” and he was certified as unfit for duty for 7 days;
· the applicant was “engaged in normal engine room duties before, during and after onset of illness” and “no particular event led to [his] condition”. (T3, p 7 )
7. A report by Dr G K Martin regarding the applicant, dated 11 July 1991, states as follows:
“ This is to confirm that the above patient was seen at this clinic on 25.6.91 in relation to pain he was experiencing in the left buttock region with radiation into the posterior thigh. He described the onset of this pain commencing on or about the 8.6.91 while he was working on board the vessel and described it as being most noticeable when he was changing positions from standing to sitting or sitting to standing. He did not recall any specific work incident which produced an onset of the pain but said that had (sic) been performing his usual fairly heavy physical activities involved with his position.
On examination he had flexion to his ankles, some stiffness in the low back, the central nervous system examination in the legs was essentially normal, he had normal power and sensation and straight leg raising to one hundred degrees, bilaterally.
Mr Wellman advised me that he had a previous history of low back problems dating back to 1976 when he was off work for approximately 2 weeks following a strain to his low back lifting a lathe chuck. He had a further occurrence of his low back pain in 1989 which required 10 days off.
A diagnosis of PROBABLE DISCOGENIC LOW BACK PAIN was made and he was referred for a C T Scan of the lower lumbar spine. These (sic) demonstrated a posterior disc herniation of the L5/S1 level, with a disc fragment lying slightly to the left of the midline in the spinal canal. There was some associated deformity of the S1 nerve root sleeve. Mr Wellman was referred to Mr Frank Bell, Orthopaedic Specialist, for an opinion on his low L5/S1 disc problem.
I have not seen him since his last consultation on 28.6.91 and cannot pass any comment on his current medical condition in relation to this injury.
It would seem from the history that there is a likelihood that this patient had pre-existent disc pathology in his lower lumbar spine, however it would seem that at some time around the 8.6.91 he sustained a further exacerbation of this pathology, with extrusion of disc material into the spinal canal, with some impingement on the nerve structures in the vicinity. …” (T7)
8. Mr F G Bell, Orthopaedic Surgeon, provided a report, dated 16 July 1991, regarding the applicant to Dr Martin as follows:
“ Thank you for your note and referral of this man aged 39 and working as a marine engineer. He told me that on the ‘Iron Spencer’ on the 8th June 1991 he was spontaneously awakened with pain in the left leg buttock to knee, was unable to walk for more than a few minutes, worse with sitting. He carried on with the ship was seen by a doctor in Newcastle who repatriated him forthwith. He had anti-inflammatories and had undertaken physiotherapy which he said made it worse. He does give a history of back pain on and off since 1976 with two episodes of ten days off but he said with recurrent significant back pain.
His complaint when I saw him was of mild low back pain, severe pain in the left buttock radiating thigh to knee but little below. He admitted to no numbness of (sic) tingling of his foot. Bowel and bladder function were normal.
Clinically he was a slimly built man, stood erect. He said that he regularly had scoliosis for one or two hours in the morning but this seemed to recover during the day. He was tender about the spine of L5 and in the substance of his left buttock. Forward flexion of his back was quite grossly limited. Extension and lateral flexion were not affected. I could not fault his hips. Straight leg raising was possible to 90˚ only the right, 45˚ on the left with a positive Lesaghue’s sign. I thought there was some depression of his left ankle jerk however sensation and power appeared normal. I viewed his plain x-rays and CT scan which show a clear disc extrusion left of centre at the lumbosacral disc.
I advised him a myelogram (sic). This showed clear cut off of the left S1 nerve root with a good deal of oedema and in view of his wish to have some early solution to his problem with the prospect of lasting relief, I advised him simple laminotomy (sic). He would have been quite a good case for epidural injections which of course are no longer tenable. In any event he was keen to proceed with operation and I did this on the 12th July at Bethesda Hospital.
He proved to have a well defined herniation with a rather tight S1 nerve root which I have freed, evacuated the disc and covered with a small fat graft. I anticipate he will be out of bed within two or three days and probably fit to go home within the week. However, I do not think he will be fit to work as a ship’s engineer even though it be a sitting down job, largely pushbutton and dial watching, for a period of about two months. I think he should do well.” (T8)
9. On 12 September 1991 Dr Martin certified that the applicant was fit for sea duty, noting that, on examination, he had “near full range of pain free movements”. (T10)
10. On 19 September 1991 Mr Bell provided a report to Dr Martin in which he opined that the applicant was fit to return to work. (T11)
11. Mr Bell provided a report, dated 16 June 1992, regarding the applicant to Dr Martin as follows:
“ This man rang me on the 9th June saying that he had done two trips of ten to twelve weeks on ships overseas and was currently attending the Maritime College. He said that since I discharged him he has had pain when getting up from the sitting and standing positions which had become worse over the last few weeks and on the day he contacted me he had acute back pain on the right side radiating slightly into his leg and was unable to stand. He was comfortable lying.
I advised him to go into St Joseph’s Hospital and found that he could stand out of bed only with difficulty, was tender about the L4 – 5 and L5 – S1 levels more markedly on the right than the left and mainly over the facets. His movements were quite grossly limited but neurologically he was intact. X-rays showed slight narrowing of his lumbosacral disc (the one for which laminectomy was performed). I suggested that he should have facet joint injections at the L4 – 5 and L5 – S1 levels on the right. These allayed his acute pain but he still has some aching of his back but no leg pain.
I reviewed him on the 15th June. He has a mild scoliosis convex to the left, limited forward flexion with some back spasm but no pain on hyperextension and no neurological deficit. I have arranged for him to have some physiotherapy which hopefully will loosen him up but I think he is probably presenting some degree of instability of his lumbosacral joint following laminectomy which of course is always a hazard.” (T16)
12. On 11 August 1992 Mr Bell provided a further report to Dr Martin as follows:
“ Since I last wrote this young man has been undergoing physiotherapy. When I saw him on the 7th August he said he had very little back pain, was able to walk indefinite distances and no more than the very occasional twinge of pain in his leg.
He has no scoliosis, there is no tenderness in his scar. He has normal movements including hyperextension and neurologically he is intact. I believe he could return to work on the sea as of the 10th August.” (T19)
13. Meanwhile, on 10 July 1992, Mr Graham Forward, Orthopaedic Surgeon, provided a report regarding the applicant to the respondent as follows:
“ On the 9 July 1992 I examined this man who is a marine engineer who has had pain on and off in the low back for about 15 years. He was operated on by Frank Bell in July 1991 who performed a left sided L5 / S1 diskectomy. Approximately a month ago he stepped backwards off a low platform sustaining a recurrence of his low back pain with locking in a twisted position. Facet joint blocks were of little help at that time but physiotherapy has relieved his symptoms greatly. He is now able to stand straight, has no leg pain and although he is sometimes stiff to get started he does not have constant back pain.
EXAMINATION
He has a mobile lumbosacral spine and is able to flex his fingers to the mid tibia. Extension is normal and lateral flexion is to the knee joints bilaterally. Straight leg raise is 90˚ on right and left sides. Reflexes are normal as is sensation.
The x-ray show (sic) there to be some narrowing of the L5 S1 disk space with subsequent instability.
This man has degeneration of the L5 S1 level with instability. This gives rise to intermittent back pain but I do not feel that there is any indication yet for fusion.
I think that he is fit for full duties on board ship with no precautions regarding climbing ladders or performing all his duties. I think it must be accepted that this man may have short periods in the future when he is troubled by back pain but that overall he is fit for full work.” (T18)
14. Mr Bell provided a report, dated 17 November 1999, regarding the applicant to the respondent as follows:
“ This man attended again on 3 November 1999. …
…
He declares in August 1999 he hurt his back at home, he lifted a limestone block with his brother he says with his back and knees bent. He had sudden back pain and a feeling of popping in his back. Two days later he had physiotherapy and massage without benefit, went back to sea and slept with a rolled up towel behind his back.
About mid September he noticed some tingling about his left heel and some sharp pain but not into the foot.
He recounted how in August 1999 he had some pain about his right elbow radiating to the musculature above and below the elbow but never into the hand. He declared that he had some difficulty in focusing his eyes following that.
On examination he was a healthy man, stood erect but admittedly did stand from a sitting position somewhat stiffly.
He had a normal posture.
There was some minor lumbosacral tenderness but none about the facet joint.
He could flex fingertips to ankles without difficulty, extend and hyperextend without pain and lateral flexion was normal.
Straight leg raising was possible to 70 degrees and reflexes were normal.
Xrays:
I examined some xrays which were presented. These show some narrowing of the lumbosacral disc space, the level at which he formerly had his laminectomy in 1991.
There was some minor retrolisthesis at this same level, his facet joints appeared to have been reasonably well preserved.
I really have not advised him any particular treatment but to carry on taking his non steroidal as are necessary and expect that this minor exacerbation will resolve.” (T21)
15. On 2 August 2007 Dr William Chapman, the applicant’s general practitioner, issued a Workers’ Compensation Progress Medical Certificate in which he noted that the applicant had “had a recurrence of low back pain recently … at the L5 S1 level” and opined that, as from 2 August 2007, the applicant was “unfit to return to work”. (T24)
16. Dr Chapman provided a report, dated 3 October 2007, to the respondent as follows:
“1. What current symptomatology has Mr Wellman presenting (sic) with at this time?
Mr Wellman presented with a history of pain his back (sic) and a feeling of instability on the left side of his lower back.
2. What is your diagnosis of his current back condition?
My diagnosis is aggravation of his degenerative lumbar spine. He demonstrated a decreased range of movement of his lumbar spine.
3.Does his current back condition have any relationship to his injury and subsequent diskectomy in 1991?
I have reviewed his past medical records and believe his current condition is related to his prior back injuries and surgery.
4.What history did Mr Wellman provide to you regarding his current condition and symptomatology in respect to the cause of it?
Mr Wellman has advised he has a recurrence of his prior back pain. He has had no new injuries or causes for this current situation.
5.What treatment do you recommend Mr Wellman undertakes for the management of his current condition?
I have referred Mr Wellman for a physiotherapy rehabilitation back program. I am hoping a program of muscle strengthening will reduce his pain and protect him from further spinal pain and degeneration.
I have also recommended the use of anti inflammatory medication. I believe with a good rehabilitation program his prognosis is good.” (Exhibit A1)
17. Dr Joel Silbert, Consultant Occupational Physician, provided a report, dated 5 November 2008, regarding the applicant to the respondent as follows:
“ …
History
Mr Wellman reports an injury to his back at work on 25 June 1991. Whilst undertaking his employed duties as a marine engineer and based on an iron ore carrier, he recalls working on a lathe in the workshop within the ship when his right leg fell between a lathe and a workbench. Mr Wellman recalls striking his right hip on the lathe and experiencing some bruising about the affected region.
Mr Wellman recalls the subsequent development of sharp pains through the left leg. He reports attendance with a doctor in Newcastle/Port Kembla and then in Fremantle. He advises of an attendance at Westport Medical Centre and being subsequently referred to Mr Frank Bell (Orthopaedic Surgeon).
Mr Wellman recalls being diagnosed with a lumbosacral disc protrusion and subsequently undergoing surgical decompression by Mr Bell in July 1991. He reports a good recovery of his left leg symptoms and improvement of back symptoms. Nonetheless, Mr Wellman recalls a deterioration of his symptoms approximately 6 months following surgery and undergoing a corticosteroid injection to the back with an easing of his symptoms.
Mr Wellman recalls a complete resolution of his left leg symptoms and a good improvement of his lower back pain. He recalls some residual aching within the lower back. Nonetheless, he recalls being certified fit to return to duties at sea.
Mr Wellman recalls a relapse of his lower back pain in 1992. He recalls a marked deterioration of symptoms and barely able to walk. He advised of undergoing a further corticosteroid injection with a good improvement of his symptoms and a subsequent return to his employed duties on a full-time and unrestricted basis.
Mr Wellman recalls further episodes of pain within the lower back about 1997 and 1998 or 1999. He recalls undergoing radiological investigations and physiotherapy treatment. Mr Wellman recalls a bulging disc being identified as the source of his symptoms. He recalls each episode settling with conservative management and returning to his employed duties without incident.
Mr Wellman advises of remaining asymptomatic from 1998/1999 until 2007. He denies a specific incident but recalls the insidious onset and gradual development of left leg weakness with attempting to stand from the seated position. He also recalls the development of left buttock pains and gradually deteriorating to a maximum severity of 8/10 and affecting his ability to ambulate. Mr Wellman recalls attendance with his general practitioner and undergoing radiological investigation. He recalls the identification of disc bulges and a recommendation towards conservative management.
Mr Wellman recalls the commencement of a physical rehabilitation programme and funded by his Workers’ Compensation Insurer. He reports regular review by his treating exercise physiologist and continuing the programme for a period of 1 year until September 2008. During this time, Mr Wellman reports an increase in muscular tone but no substantial alteration of his back or left leg symptoms.
Progress to Date
Mr Wellman reports remaining pain free at rest. He advises of the precipitation and perpetuation of a dull ache at a severity of 1 or 2/10 and confined to the left lower back. He also reports an occasional left leg, foot or calf ‘tingling’.
Mr Wellman reports the precipitation of symptoms with prolonged posturing. He advises of a sitting and standing tolerance of approximately 15 minutes. Otherwise, he reports the precipitation of symptoms with striking his left hip or sleeping incorrectly. Mr Wellman advises of an inability to fully bend, lift, or twist. He reports exercising due care and attention with these movements in order to avoid any precipitation of symptoms. Mr Wellman also reports exercising due care and attention with kneeling or squatting pursuits in order to avoid any precipitation of symptoms. Otherwise, Mr Wellman denies any other particular aggravating features.
Mr Wellman reports a resolution of his lower back pain with changing posture, laying on the floor, avoidance of activities likely injurious to his back, and the use of physiotherapy treatment. He denies any other particular relieving features.
Mr Wellman reports his left leg currently remaining asymptomatic. He advises of ‘tingling’ or ‘pins and needles’ type discomfort through the posterior aspect of his leg and calf as well as the sole of his foot. He denies any symptoms in his toes. Mr Wellman reports symptoms within the left leg on driving to the consultation. He advises of remaining asymptomatic at present and denies any other particular aggravating or relieving features.
Current Treatments
Mr Wellman reports continuing with physiotherapy treatment each fortnight. Otherwise, he denies the use of any current medications, treatments, nor the use of aids or appliances. He reports completion of his physical rehabilitation programme and denies undertaking any self corrective exercises at present.
Current Activities
Mr Wellman advises of currently utilising his available time caring for his wife with Parkinson’s disease. He advises of retiring from employment in February 2004, having previously maintained employment as a Tug Engineer with Western Maritime, as a contractor to Pilbara Iron in Dampier. Otherwise, Mr Wellman denies undertaking any other current social, sporting, leisure or recreational pursuits.
Past Medical History
Mr Wellman advises of remaining relatively well. He advises of macular degeneration of the left eye. He also reports hypertension controlled on medication. Otherwise, Mr Wellman denies any other previous or intercurrent medical illnesses, injuries, operations or hospitalisations. Mr Wellman utilises fish oil on a daily basis but denies the use of any other medications, treatments, nor the use of aids or appliances. He reports no known allergies.
Social and Occupational History
Mr Wellman advises of retiring from paid employment in February 2004 in order to care for his wife, who has Parkinson’s disease. Mr Wellman denies undertaking any current social, sporting, leisure or recreational pursuits. He reports previously maintaining employment with Western Maritime between 2001 and 2004 and previously with BHP Transport since 1990.
Mr Wellman resides with his wife. He has adult children. Mr Wellman utilises his recreational time watching football but denies any other social, sporting, leisure or recreational pursuits. Mr Wellman is an ex smoker of 25 years and consumes alcohol on occasion.
Examination
Examination findings at the consultation today reveals a forthright and reliable historian in no distress. Mr Wellman was noted to move freely and fluidly with no obvious deformity or gait disturbance. He is noted to stand 178 cm tall and weigh 92 kg.
Examination of the lumbosacral spine reveals a well healed midline lumbosacral surgical scar. Otherwise, there is no evidence of any other swellings, deformity, surgical or traumatic scarring. A restricted range of lumbosacral movement is demonstrated with forward flexion measured to two thirds of the normal excursion. Lateral flexion is restricted to 90% of the normal excursion, bilaterally. Otherwise, the remainder of the lumbosacral movements are within normal limits. Straight leg raise is measured at 90° bilaterally. Neurological assessment of the lower limbs is normal and slump test is negative, bilaterally.
Examination of the cervicothoracic spine reveals no obvious swellings, deformity, surgical or traumatic scarring. Crepitus is noted to arise on movement of the head and neck. A full range of movement is demonstrated. Otherwise, the remainder of the examination is normal.
Investigations
[Dr Silbert referred to reports of radiological and other investigations regarding the applicant’s lumbosacral spine dated 25 June 1991, 28 June 1991, 9 July 1991, 9 June 1992, 3 August 1998, 6 August 1998, 30 August 1999, 26 July 2007, and 28 May 2008, and continued:]
Assessment
In my opinion, Mr Wellman presents with a clinical picture consistent with mechanical lumbosacral back pain. This is considered to be non-specific and without a clear and obvious precipitant. There is no evidence of any direct causal, temporal, or other relationship between Mr Wellman’s current mechanical lumbosacral back pains and intermittent left leg symptoms with his reported lumbosacral disc protrusion of 25 June 1991. Mr Wellman reports a lumbosacral disc injury on 25 June 1991 with the subsequent completion of a lumbosacral discectomy by Mr Frank Bell (Orthopaedic Surgeon). Mr Wellman is considered to have enjoyed a complete recovery of the effects of the trauma of 25 June 1991, lumbosacral disc protrusion and surgical treatment. He reports intermittent lower back pain subsequent to this time. This is considered to be manifestations of pre-existent degenerative change within the lumbosacral spine and/or isolated episodes of mechanical lumbosacral back pain. There is no evidence of any direct causal, temporal, or other relationship between Mr Wellman’s back injury of 25 June 1991 and the subsequent development of episodic lower back pain since this time.
The MRI of the lumbosacral spine completed on 28 May 2008 is noted. There is evidence of disc protrusions at the L1/2 and L4/5 levels. These findings are non-specific radiological findings with no predictive value or relationship to Mr Wellman’s current reporting of lower back pain.
Questions
With regard to the questions that you raised in your request of 30 October 2008:
1.What is the history of Mr Wellman’s current symptomatology as described by Mr Wellman?
The history provided by Mr Wellman at the consultation today, has been documented above.
2.What is your diagnosis of any current ailment or condition that Mr Wellman presents with?
In my opinion, Mr Wellman presents with non-specific mechanical lumbosacral back pain. This is considered to be of unknown aetiology. Nonetheless, there is no evidence of any direct causal, temporal, or other relationship between Mr Wellman’s development of mechanical back symptoms in 2007 and his reported back injury of 25 June 1991. The radiological findings are noted and are considered to be coincidental findings with no evidence of any direct causal, temporal, or other relationship with Mr Wellman’s reported back injury of 25 June 1991 or development of back pain in 2007.
3. Is Mr Wellman fit for work either full-time or part-time as a marine engineer?
In my opinion, Mr Wellman has a capacity for work. Nonetheless, he is considered unfit to undertake the inherent requirements of a marine engineer at present. This is as a direct and exclusive manifestation of his current mechanical back symptoms arising from 2007. There is no evidence of any direct causal, temporal, or other relationship between Mr Wellman’s development of these symptoms in 2007 and his previously reported back injury of 25 June 1991.
In my opinion, Mr Wellman’s capacity for work as a marine engineer, or other, has not been materially or adversely affected by his reported back injury of 25 June 1991. This is considered to have resolved in its entirety. Mr Wellman reports remaining entirely asymptomatic for the periods 1992 to 1997 and between 1998/1999 until 2007. There is clear and unequivocal evidence of a complete recovery of all back symptoms and full restoration of normal back function during these intervening periods to completely and unequivocally discount any relationship between the reported back injury of 25 June 1991 and Mr Wellman’s current symptoms that has been deemed to adversely impact upon his capacity for work.
4.If not fit for work, what restrictions would you place on him to enable him to perform any suitable duties and what sort of duties would that entail?
In my opinion, Mr Wellman remains fit to undertake all manner of sedentary, clerical, supervisory, administrative, as well as light and medium manual activities on a full-time basis. The following medical restrictions remain applicable on an ongoing basis:
1. Fit to lift weights to a maximum of 10 kg on a prolonged or repetitive basis or 20 kg on an occasional basis.
2. Unfit to undertake prolonged or repetitive bending, lifting or twisting pursuits.
3. Unfit to negotiate stairs, ladders, slippery or uneven surfaces on a prolonged or repetitive basis.
4. Unfit to lift weights in excess of 10 kg whilst negotiating stairs, ladders, slippery or uneven surfaces.
5. Unfit to lift weights in excess of 10 kg in a confined space or with an awkward posture.
6. Unfit to undertake activities with exposure to whole body vibration or jarring.
5.What treatment would you recommend to manage any condition that Mr Wellman now presents with?
In my opinion, the management instituted to date remains appropriate. Mr Wellman will benefit with continuation of a self corrected physical rehabilitation programme to maintain and improve the strength, stability, as well as flexibility of the lumbosacral spine. He will also benefit with receipt of appropriate instruction on back care, manual handling and safe lifting techniques. Otherwise, there is no indication to consider any other medical or surgical interventions at present or in the longer term.
6.Is any condition Mr Wellman (sic) now attributable to his back injury of 5 November (sic) 1991 or not related at all?
In my opinion, Mr Wellman is considered to have enjoyed a complete recovery of all manifestations of his reported back injury of 25 June 1991. By his own admission, he reports two periods of remaining asymptomatic between 1992 and 1997, and again between 1998/1999 and until 2007. During these intervening periods, Mr Wellman reports undertaking all manner of activities without symptoms, requirement for medical treatment or restriction.
I bring to your attention the occupational history provided by Mr Wellman at the consultation today. He advises of maintaining employment with BHP Billiton and then subsequently with Western Marine (sic) between 2001 and 2004 as a marine engineer. He reports subsequently undertaking full-time care of his wife (who has Parkinson’s disease) since his retirement in 2004. With this, Mr Wellman reports two periods of several years duration each of remaining entirely asymptomatic and undertaking all manner of physical pursuits without restriction. There is no evidence at the consultation today or on review of all available medical documentation to support any residua (sic) of Mr Wellman’s back injury of 25 June 1991 and his current presentation.
In my opinion, Mr Wellman’s current symptoms are considered to be that of mechanical lumbosacral back pain. This is considered to have arisen in 2007, for which a clear and unequivocal aetiology cannot be established. Nonetheless, Mr Wellman is considered likely to have developed such symptoms through activities of day-to-day living, caring for his wife, or as an idiopathic event.
In my opinion, there is no evidence of any direct causal, temporal, or other relationship between Mr Wellman’s previous back injury of 25 June 1991, surgical treatment and the subsequent development of back pain in 2007. Indeed, Mr Wellman reports a capacity to undertake his employed duties as a marine engineer and documents employment with Western Marine (sic) from 1998/1999 (sic) with no significant dysfunction and until his retirement in 2004 and then the subsequent development of back symptoms in 2007. This intervening period of 8 years demonstrates a clear and unequivocal medical exclusion of any relationship between his previous back injury of 25 June 1991 and the subsequent development of lower back pain approximately 16 years later.
7.What is your future prognosis for Mr Wellman in terms of his recovery from any current back symptomatology?
In my opinion, the prognosis in this case is good for a resolution of Mr Wellman’s back symptoms. Nonetheless, he is considered likely to experience further episodic lower back pain as a manifestation of his back history and the natural effects of aging. With this, he is considered likely to experience further episodes with a requirement for conservative management. There is no evidence that Mr Wellman would require interventional treatments inclusive of injections or surgery.
…” (T28)
The Applicant’s Evidence
18. In his examination-in-chief the applicant gave oral evidence to the following effect:
· he commenced employment with the respondent in 1990;
· in the 1980s, when he was employed by Hamersley Iron, he had a back problem;
· he was off work for a few days and he consulted a chiropractor who fixed the problem, and he then returned to work with Hamersley Iron and had no further problems;
· on 8 June 1991, while doing maintenance work in the course of his employment with the respondent, he was standing on a platform and “turning up” a piece of metal on a lathe when he stepped down and struck his right hip on a workbench behind him and experienced soreness and bruising and, subsequently, pain down his left leg;
· he saw Dr Martin who referred him to Mr Bell, an orthopaedic surgeon, who performed a laminectomy on him;
· Mr Bell subsequently certified him fit for duty but, when he returned to sea, he found that he had difficulty in performing his usual duties but that did not cause any problems with his employer;
· he had a “relapse” in 1992 and sought medical treatment and Mr Bell gave him cortisone injections and again certified him fit for duty;
· he went back to sea but found that he had the same physical problems as he had after the 1991 incident, including difficulty in going up and down stairs;
· he continued his employment with the respondent until February 2001 and he then commenced employment with Western Maritime, a tugboat operator;
· when he applied for employment with Western Maritime he told them that he had had back problems and that he was slightly restricted in lifting;
· while working for Western Maritime he found that he had problems going up and down stairs to the tugboat engine room and getting on and off tugboats;
· the laminectomy operation he had in 1991 “relieved part of the pain” and he continued to have restriction of movement;
· in 1999 while shifting limestone blocks at his home he “pinched” his back in the same position as the operation, after which his back “felt the same as before”;
· in February 2004 he told Western Maritime that he wanted to terminate his employment because his wife had Parkinson’s disease and because he did not feel able to perform his work duties;
· he has since been his wife’s carer and has not engaged in paid employment and his sole source of income has been carer pension;
· since 2004 his back has been deteriorating and he has to be careful when performing his carer duties, and, if he overdoes it in washing, vacuuming, moving furniture in the house and the like, he “will be a cripple the next day”;
· in 2007 he consulted his general practitioner again regarding pain in his back in the same area as before;
· although the respondent ceased to pay for medical treatment from February 2009, he intends to continue with medical treatment and fortnightly physiotherapy for his back.
19. In cross-examination the applicant said that, since June 1991, he has not been free of back pain. He acknowledged, however, that from 1992 to 2005 he had applied for, and received, a Certificate of Medical Fitness issued by an Australian Maritime Safety Authority Medical Inspector every 2 years (see T20, T21, Exhibit R5, Exhibit R6). He said that he just wanted to keep his seaman’s certificate and he reiterated that he has had ongoing back pain since June 1991.
20. The applicant was referred to his letter of resignation, dated 27 February 2001, addressed to the respondent (Exhibit R2). He acknowledged that, in that letter, he referred only to his wife’s medical condition and her need for him to be with her in order to provide ongoing support, and made no reference to back pain or difficulties in performing his work duties.
21. The applicant was also referred to an Employment Termination Questionnaire, dated 17 March 2001, which he had completed at the request of the respondent (Exhibit R3). The applicant confirmed that , in that questionnaire form, he had stated that (inter alia) he was leaving his employment with the respondent because his wife required him to be “close at hand” because she was suffering from Parkinson’s disease, and that he did not “have another job to go to”. He acknowledged, however, that shortly after leaving the respondent’s employ he had commenced employment with Western Maritime.
22. The applicant was next referred to a “Group Risk Insurance Personal Statement” made by him on 29 January 2004 for the purpose of life insurance coverage as an employee of Western Maritime (Exhibit R4). He acknowledged that, although he had disclosed in that document that he had suffered a “lower back ruptured disc” in 1991, he stated that he had had an operation to rectify the problem which was a “complete success” and that his back condition “does not restrict [his] social or work habits”. He also acknowledged that he had falsely stated that he had not sought any medical advice from 1991, notwithstanding that he had signed a declaration that all information provided by him in that document was true and correct to the best of his knowledge and belief.
23. The applicant also acknowledged that, during his employment with Western Maritime from 2001 to 2004, he had made no mention to his employer of any back problems or difficulties in performing his work duties.
The Evidence of the Medical Witnesses
Mr Barrie Slinger
24. Mr Slinger, Orthopaedic Surgeon, confirmed that he had examined the applicant at the request of the applicant’s solicitors and had prepared a report dated 4 June 2009. The contents of Mr Slinger’s report are as follows:
“ I reviewed the above on the 20 May 2009, at which time I was in receipt of your letter requesting an assessment and report in respect to injuries sustained at work in 1991.
At the time of review I was in receipt of copies of reports, which I have read, from colleagues including Mr Frank Bell, Mr Graham Forward and Guardian Rehabilitation.
BACKGROUND:
I confirmed this man completed secondary education to year 10 and then completed an apprenticeship as a fitter and turner, following which he was employed by a boat builder, and then at Hammersley (sic) Iron for ten years, working at his trade on locomotive engines.
Thereafter, he attended Maritime College in Fremantle for 18 months, obtained a diploma in marine engineering and because of the lack of further employment worked at Ocean Ship Yards for nine months and then completed an IR course over six months in Tasmania. Following completion of the IR course he was employed by BHP as a marine engineer until resigning in 2004, since which time he has been a carer for his wife who is suffering from Parkinson’s disease and gastrointestinal cancer.
HISTORY OF INJURY:
The injury occurred in 1991, when, (sic) whilst working on board a vessel, without any specific work incident, but occurring whilst he was changing position from standing to sitting or sitting to standing.
TREATMENT:
Treatment at that time included surgery with Mr Bell in the nature of laminectomy discectomy at L5/S1, from which he made excellent progress and returned after three months to normal duties.
Thereafter, he had continuing intermittent symptoms, which he usually managed himself by self manipulation, with a number of relapses, or more severe exacerbations.
In June 1992, following such aggravation, he was reviewed by Mr Bell, referred for facet joint injections at L4/5 and L5/S1, which were associated with marked improvement, at that time being away from work for some two to three weeks.
In 1993 he had further aggravation, at which time he was reviewed by Mr Forward who considered he was fit to continue with full duties, that surgery was not an indication and he was reviewed again by Mr Bell in 1999, following further aggravation whilst lifting a limestone block at home. Those symptoms subsequently settled with anti-inflammatory medication.
In 2007 he had a further aggravation of symptoms and that has continued to the present, for which he is attending for treatment with physiotherapist, Mr Stuart Meredith, attending usually every one to two weeks, and for the last eight weeks, once a week, for massage and mobilisation, which resolves symptoms for a period of two to three days and then symptoms recur.
Previous medication, under the care of Mr Bell, was with Digesic, however, aware of the potential problems of long-term use of medication, he has reserved his tablets for times of symptomatic exacerbation, using Panamax or Panadeine Forte, but this is not taken on a regular basis during the day, but rather in the late afternoon, early evening, to assist sleep, otherwise, his wife indicates that he is restless and fidgety.
PRESENT:
Pain persists in the area of the left buttock, radiating distally to the lateral aspect of the left shin, associated with pins and needles and numbness in the same area and tingling about the sole of the foot, this latter if he takes his weight off the foot, as when sitting or lying.
At the time of the onset of symptoms in 2007, he was aware of aggravation, with difficulty standing from sitting and difficulty walking, and physiotherapy has assisted in improving those symptoms, he is careful to avoid any heavy lifting, has difficulty making the bed or maintaining a flexed position and commonly wears a brace, particularly when physically active.
Sitting tolerance is 15-20 minutes and walking he usually finds unrestricted, but the next day he will experience pain in the left lower limb.
ACTIVITIES:
At home he lives with his wife, for whom he is a carer, as mentioned in the preceding, performs all the domestic activities, but does so by pacing those activities, as he instanced, vacuuming half the house one day and a few days later completing that vacuuming.
Gardening is undertaken for 10-15 minutes, using a brace, and he continues with the sweeping, mopping, laundry and all the other activities about the house, as well as driving an automatic vehicle and undertaking the shopping.
The only social interest he has is watching sport on television.
EMPLOYMENT:
In 2004 he resigned from his position with BHP to be a full-time carer for his wife.
EXAMINATION:
To examination he was a pleasant fellow with good generalised muscle tone who presented in an entirely appropriate fashion and gave a clear history, walking with a normal gait, although his wife had noted that since 2007, he does walk with a slight awkward fashion, with slapping or flapping of the left foot.
In the lumbar spine the well healed surgical scar was noted, to the left of which there was slight tenderness, movements were performed slowly, with forward bending fingers reaching to the upper third of the tibia, the remainder of movements limited to some half the expected range, with rotation being a little less restricted.
Straight leg raising on the left was limited to 70˚ with a positive sciatic stretch test, although the slump test, sitting on the side of the couch, was weakly positive. There was sensory impairment over the anterolateral aspect of the leg, including the dorsum of the foot, weakness of the foot, power 4, which was most pronounced on plantar flexion, and diminution in the ankle jerk.
RADIOLOGY:
Lumbar Myelogram (1991): Confirmed the acute disc protrusion or herniation at L5/S1 on the left.
Lumbar Spine CT (July 2007): Confirmed degenerative disc bulging and small focal disc protrusions at L1/2, L4/5 and L5/S1 with no convincing evidence of neural compromise.
Lumbar Spine MRI (May 2008): Confirmed a shallow L1/2 disc protrusion, a further minor disc bulge at L4/5 with no evidence of neurological compromise.
Lumbar Spine MRI (May 2009: Confirms post-operative changes at L5/S1 on the left with an annular remnant bulging at this level, but no evidence of recurrent disc protrusion or spinal stenosis or nerve compression. At L1/2 there was a shallow 2-3mm left paracentral protrusion producing mild thecal sac indentation.
TO ANSWER YOUR QUESTIONS:
...
(c) Your diagnosis.
The diagnosis is that of acute disc protrusion or herniation occasioned by the accident at work of 1991, subsequent to which, as is the natural history of that condition, progressive degenerative change and present symptoms are consistent with that degenerative change, as a direct result of the injury of 1991
In other words, in the absence of that injury of 1991 he would not be in his present situation or condition.
(d)Your opinion as to whether our client’s current symptomatology relates by way of cause of the original employment injury.
I have indicated in the preceding your client’s current symptomatology relates to the original injury, as a result of progressive degenerative change occurring as a result of the acute disc protrusion or herniation.
…
(f) Your opinion as to what likely ongoing medical care our client may require.
In respect to treatment, this should be to general principles of care, on the understanding that his original injury of 1991 is responsible for his symptoms, with the associated degenerative change, the severity of those symptoms, however, is a reflection of either undue physical stress placed upon the lumbar spine, or alternatively, inadequate supports.
The corollary of that concept would be to sensibly avoid provocation, avoiding those activities which are likely to aggravate his symptoms, such as static postures, repetitive bending or heavy lifting, emphasising there is no reason to suppose any one activity will produce any damage as such or adversely affect his long-term future, and the ability to continue that activity should be governed by his perception of the pain, if any, so produced.
In addition, a regular stretching and strengthening programme to maintain trunk mobility as well as core, trunk and abdominal muscle strength.
Local measures such as heat, massage and mobilisation, along with physiotherapy are best reserved for times of symptomatic exacerbation.
(g) Your opinion as to our client’s fitness for his pre-injury employment.
I am of the opinion this man is not fit to return to his pre-injury employment, as I have detailed, he is having difficulty managing at home as the carer for his wife, pacing those activities, avoiding any heavy lifting, and whilst he would be capable of some part-time light work, he would not be capable of returning to his pre-injury employment as a marine engineer.
…” (Exhibit R1, pp 5–9)
25. In his oral evidence-in-chief Mr Slinger reiterated his opinion that the applicant suffered a significant disc protrusion in his lumbosacral spine at the L5/S1 level in the course of his employment resulting in an ongoing degenerative process at that level of his lumbosacral spine which accounts for his ongoing lower back pain symptoms.
26. In cross-examination Mr Slinger acknowledged that the applicant may have had pre-existing degeneration of his lumbar spine as at 1991, although, he added, he had not seen any radiological evidence that indicated that that was the case. In that event, he said, the 1991 episode may have been “the straw which broke the camel’s back”. He also acknowledged that it is possible that the applicant’s present back pain symptoms are coming from a level other than the L5/S1 level of his lumbar spine. He said that back pain commonly comes from the L4/L5 and L5/S1 levels and it is often very difficult to distinguish between those two levels.
27. In re-examination Mr Slinger said that the applicant had had “a significant insult or trauma to his back in the nature of a disc protrusion”, over and above any pre-existing degeneration of his lumbar spine. He added:
“ One thing that will make [degeneration] progress and one thing that will likely initiate, produce and cause symptoms in later life is an insult such as an acute disc protrusion or herniation.”
In response to questions form the Tribunal Mr Slinger said that, in the absence of “invasive procedures”, there is no way of knowing which level of the lumbar spine is causing symptoms. He added, however, that, in the applicant’s case, there is radiological evidence that there is “advanced” degenerative change at the L5/S1 level, as compared with “minor” degenerative change at the L4/L5 level, and, on that basis, he opined that it is the L5/S1 level which is probably causing the applicant’s lower back pain symptoms.
Mr Philip Hardcastle
28. Mr Hardcastle, Consultant Orthopaedic Surgeon, confirmed that he had examined the applicant at the request of the respondent’s solicitors and had prepared a report dated 6 July 2009. The contents of Mr Hardcastle’s report are as follows:
“ Thank you for your letter of 25 May 2009 requesting an independent assessment on Mr Robert Wellman who was reviewed on 30 June 2009.
Thank you for the following:
·Dr Joel Silbert report.
·Medical certificates.
·CT lumbar spine report (26/07/07).
·Mr Frank Bell letters.
·Mr Graham Forward letter.
·Dr G K Martin letter.
·BHP transport fleet operations incident report.
BACKGROUND
Mr Wellman was born in Western Australia and left school when he was 15 years old. He then did an apprenticeship as a Fitter and Turner which he completed and for 18 months worked as a boat builder before joining Hamersley Iron between 1975 to 1985 as a Mechanical Fitter.
He then went to Fremantle Maritime College for 18 months on Austudy and trained as a Marine Engineer, doing six months after this in Tasmania as a Trainee before going to BHP in 1991, where he worked as a Marine Engineer up until 2001. He then took a three year contract on the tugs in Dampier until 2004 and has been a Carer for his wife since February 2004 on a full time basis, not doing any other work.
He is computer literate.
PAST HISTORY
He had a left eye laser procedure for macular degeneration and he suffers from arthritic problems in his hands.
He denies any previous problems with his back prior to 1991 (Dr Martin has referred to previous back problems going back to 1976 with periods off work) and had been active up until then.
There is no history of motor vehicle crashes.
PERSONAL HISTORY
He is married with four adult children and five grandchildren, all in Western Australia. He is an ex-smoker who drinks alcohol occasionally and has no specific hobbies at the moment apart from watching sport.
DETAILS OF INJURY
He reports on 8 June 1991 he was turning steel down with a lave (sic) and when he turned he caught his right hip on a bench which was adjacent due to the uneven height of the floor between the platform and the floor of about 300 to 400mm. He said that within a few hours the pain went down the back of the leg on the left and symptoms increased to the point where he saw one of the doctors in Port Kembla. He was subsequently flown back to Fremantle where he underwent some investigations and was subsequently seen by Mr Frank Bell where he undertook a laminectomy for an L5/S1 disc protrusion on the left.
PROGRESS
He said this helped a lot and he returned to work but he still had some symptoms and said he had two sets of injections with relief of these and he got back to working as a Marine Engineer. He recalls taking medication with Di-gesic and anti-inflammatories for about nine months and then changed this to Panadol and Panadeine Forte before coming off the latter. He was uncertain as to the frequency as it is such a long period of time.
He recalls doing some physiotherapy in 1997 and was getting some low back and left buttock pain. He had a further session of physiotherapy with massage and mobilisation therapy in 2007 and some strapping of his left foot and he has continued this and still has it on a weekly basis.
He said there has been a gradual increase in symptoms over the last three months, with the pain going into the buttock and leg. He presently takes Panadol, one or two tablets a week.
STATUS AT PRESENT
He complains of constant left buttock pain and occasional low back pain. Symptoms can be relieved by lying on the floor.
He is generally good in the morning for the first 30 minutes and then it is constant after that without any specific aggravating or relieving factors apart from physiotherapy, massage and medication.
He gets tingling in his left toes which he said he has had for a long period and he is worse when he lies down with these.
Bowel and bladder function are reported as normal.
CURRENT ACTIVITIES
He can drive the car and he is a full time Carer; his wife has Parkinson’s disease although she is independent of a lot of her dressing and other activities. He does the general duties around the house and garden. He does have a contractor for the mowing and does the shopping and he also takes her to medical appointments. He does not do any activities with grandchildren and most of the time is spent at home.
On his self assessed Oswestry questionnaire he reports at the time of assessment his pain score of seven out 10 (sic) on the visual analogue scale.
He also reported the following:
· Pain is very moderate at the time of assessment.
· Can look after himself normally but is very painful.
· Pain prevents him sitting or standing for more than half an hour.
· Pain prevents him walking more than one mile.
· Pain prevents him from lifting heavy weights but can manage light weights if conveniently positioned.
· Because of pain has less than six hours sleep.
· Can travel anywhere but it gives extra pain.
· Pain has restricted his social life and he does not go out as often.
PHYSICAL EXAMINATION
He was a very well looking man, with silverish hair and a moustache. He was thin and had a normal posture and gait, weighing 88 kg.
…
Back/Spine
There were normal spinal curves, with a well healed scar and he was tender at the L5 level, as well as the mid buttock. On forward flexion the fingertips came to 4 cm below the knees, with extension at 15 degrees and lateral flexion and rotation were both restricted by stiffness.
Simulated rotation and head compression tests were negative.
Lower Limbs
These had a normal appearance and straight leg raising was 80 degrees on both sides. Reflexes were symmetrical and intact and motor and sensory examination was normal. The femoral stretch and slump manoeuvres were negative.
He could walk on his toes, heels and squat, with a little difficulty doing the latter and Trendelenburg test was negative on both sides.
INVESTIGATIONS
1. Plain x-rays, lumbar spine (25/06/91)
There is quite marked narrowing at L5/S1 and the other levels appear normal. There are five lumbar vertebrae and no congenital anomalies.
2. CT, lumbar spine (28/06/91)
There was a left sided disc protrusion at L5/S1 and facet alignment of L4/5 is symmetrical with very mild coronial orientation but symmetrical.
3. Myelogram (09/07/91)
There is disc bulging at L1/2 and to a lesser extent L4/5 with a left sided disc protrusion and cut off of the S1 nerve root on the left.
4. CT (06/08/98 and 31/07/07)
There is a small disc bulge at L5/S1 but no evidence of a recurrent disc protrusion and the previous laminectomy was noted on both pictures. There is an unstable facet alignment at L4/5 with an open left sided facet compared to the right which is closed and a small bulge to the right of this level.
5. Plain x-rays, lumbar spine (30/08/99)
There is no major change in the appearance from the previous x-rays with significant narrowing at L5/S1.
6. MRI, (28/05/08 and 25/05/09)
These both showed degenerative problems at L1/2 and advanced degeneration at L5/S1 with disc bulging and an annular fissure at L4/5. There is no evidence of nerve compression.
OPINION
The enclosed reports outline the symptoms and treatment at the time of the disc protrusion in 1991. He made a good recovery and the effects of the disc protrusion from reviewing the reports, particularly those from Mr Bell, confirmed that he recovered from the effects of this. There is one report of June 1992 of recurrent pain but this is on the right side, going into the leg and this was one of the post operative injections he had was (sic) in the facet joints around this period. The evidence would suggest he made an excellent recovery.
Mr Bell has reported in August 1999 that he lifted a limestone block with his brother with sudden pain and a popping in his back with some tingling in the left heel and a sharp pain. Despite this lifting aggravation Mr Bell recorded that he could flex with his fingertips coming to the ankles and there did not appear to be any objective neurological nerve root compression signs.
My provisional diagnosis of his current symptoms relate to symptoms of the L4/5 level, where there is evidence of progressive pathology reviewing the facet joints, where on the original films they were symmetrical and closed and now they are asymmetric and consistent with a degree of segmental instability. There is also some associated disc pathology.
The effects of the work related injury of 1991 have resolved and there is no evidence on radiological findings, particularly the CT and recent MRI scans of any pathology there that would account for his symptoms and there is evidence from the enclosures that he made a full recovery from the effects of the disc protrusion without any sequelae.
In response to your specific questions:
1. Diagnosis of the applicant’s condition, if any.
Degenerative instability at L4/5 with referred pain to the left leg is my provisional diagnosis.
2.Do you consider that the applicant has suffered from any, and if so what, condition which has been caused and/or materially contributed to by his employment in June 1991, providing reasons for your answer.
It is not my opinion his injury of June 1991 is having any effect on his present chronic back syndrome.
3.If you consider that the applicant has suffered from a condition which has been caused and/or materially contributed to by his employment in June 1991
a. What condition has the applicant suffered?
It is not my opinion there has been any material contribution from the employment activities of June 1991 as described.
4.Has the applicant suffered any, and if so what, incapacity for employment due to the compensable condition?
The incapacity related to the employment or injury of 1991 has resolved.
5.If you consider that the effects of the medical condition have not ceased, do you consider that they will cease in the near future and if so, when do you consider the effects of the incident in question to be permanent, stating reasons for your opinion.
In my opinion the medical condition from that period has ceased.
6.If you consider that the applicant is entitled to ongoing medical treatment as a result of the condition which he claims related to his employment in June 1991
a. What form of treatment would you recommend and for what period of time and what benefits do you expect that he will receive from these treatments?
No.
7.What is your prognosis in relation to the applicant’s condition?
The prognosis for his present pain situation is guarded based on the radiological features as the problems from my clinical assessment and reviewing the radiological features are predominantly now at the L4/5 level where there is evidence of instability and this is a condition that is known to cause symptoms for a protracted period of time.
It is not my opinion he has reached the point though where he requires consideration of invasive treatment.
…” (Exhibit R1, pp 16-21)
29. In his oral evidence-in-chief Mr Hardcastle reiterated the opinions expressed in his abovementioned report. He opined that the applicant’s back pain symptoms were coming from the L4/L5 segment, and not from the L5/S1 segment, of his lumbar spine, and he based that opinion on his clinical examination of the applicant and the radiological investigations referred to in his report. As regards his reference to “quite marked narrowing at L5/S1” shown on the x-ray of 25 June 1991, he opined that that was probably of a degenerative nature.
30. In cross-examination Mr Hardcastle acknowledged that there was “advanced degeneration” at the L5/S1 level of the applicant’s lumbar spine but he added that such degeneration was not necessarily symptomatic. Rather, he said, that degeneration had reached the stage where it had stabilised – a state which he described as “a spontaneous biological fusion”. As regards the site of the applicant’s back pain, Mr Hardcastle said that he is able to establish “reasonably accurately” where the pain is emanating from by means of his palpation technique and that, in his opinion, it is more likely that the applicant’s pain is coming from the L4/L5 level rather than from the L5/S1 level. He acknowledged, however, that the applicant’s pain was “possibly” coming from the L5/S1 level. Finally, Mr Hardcastle accepted that the applicant has back pain symptoms which restrict his work capacity but he opined that they are not related to the 1991 work incident.
Dr Joel Silbert
31. Dr Silbert, Consultant Occupational Physician, confirmed that he had examined the applicant on 5 November 2008 at the request of the respondent and that he had prepared a report on that date (set out in paragraph 17 above). He confirmed that he adhered to the opinions expressed in that report.
32. Dr Silbert was referred to Mr Slinger’s report of 4 June 2009 (set out in paragraph 24 above) and he confirmed that he disagreed with Mr Slinger’s opinion that the applicant’s current back pain symptomatology is related to the work incident of June 1991. He explained that a “critical element” of the history provided by the applicant to him on 5 November 2008 was that the applicant was “entirely asymptomatic” from 1992 to 1997 and from 1999 to 2007 and did not require medication or treatment in those periods, whereas the history given by the applicant to Mr Slinger was that he had had ongoing intermittent symptoms. He added that the history of no symptoms which he took from the applicant is inconsistent with Mr Slinger’s opinion that there has been progressive degeneration of the applicant’s lumbar spine. He said that he “cannot relate” the applicant’s present symptoms “to an event 20 years ago”, given the long intervening periods in which the applicant has been asymptomatic.
33. Asked in cross-examination to nominate the cause of the applicant’s “mechanical back pain”, Dr Silbert said that there were several possible causes, including age-related degeneration, further trauma, general activities of daily living, in addition to the laminectomy operation following the 1991 work injury.
34. Dr Silbert said that the applicant’s history is “critical” to establishing a connection (if any) between his 1991 work injury and his present symptoms. Asked to comment on the applicant’s history of ongoing back problems and restrictions at work, Dr Silbert said that that was not the history he had been given by the applicant. He added that, if in fact the applicant did have those problems, they could be related to the original back trauma of June 1991.
Relevant Legislation
35. Part 2 (ss 4–14) of the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth) deals with injuries that happened before 24 June 1993. Section 6 provides that, subject to Part 2, the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“SRC Act”) applies in relation to an injury suffered by an employee whether before or after 24 June 1993 (the date on which Part 2 and the SRC Act commenced). Pursuant to s 7(1) a person is not entitled to compensation under the SRC Act in respect of an injury suffered before 24 June 1993 if compensation was not payable in respect of that injury under the Seamen’s Compensation Act 1911 (Cth) (which was repealed by s 16).
36. Section 5 of the Seamen’s Compensation Act 1911 (Cth) provided for the liability of an employer to pay compensation, in accordance with Schedule 1, to an employed seaman who suffered “personal injury by accident arising out of or in the course of the employment”. Schedule 1 set out the “scale and conditions of compensation” and prescribed amounts of compensation payable where the seaman was “totally incapacitated for work by the injury” or “partially incapacitated for work by the injury”. Section 5A(1) provided for payment, by an employer, of the cost of reasonable medical treatment in relation to a compensable injury suffered by a seaman.
37. Section 26(1) of the SRC Act provides for the payment of compensation for an “injury” suffered by an employee that results in incapacity for work, or impairment. Section 28 provides for the payment of compensation for the cost of reasonable medical treatment obtained by an employee for an “injury” suffered by the employee. Section 31 provides for the payment of compensation in the event that an employee is incapacitated for work as a result of an “injury”. Section 3 relevantly provides:
“ 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;
…
‘injury’ means:
(a) a disease; 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;
…”
Analysis
38. In the present case it is common ground that the applicant suffered a lower back injury on 8 June 1991 which was initially compensable under the Seamen’s Compensation Act 1911 (Cth) and which, following the repeal of that Act on 24 June 1993, thereafter became compensable under the SRC Act. The question for the Tribunal’s determination is whether, as at 30 January 2009, compensation continues to be payable to the applicant, pursuant to s 28 and s 31 of the SRC Act, in respect of that injury.
Does the applicant continue to suffer lower back pain as a result of the compensable injury suffered on 8 June 1991?
39. Having regard to the whole of the evidence before it, the Tribunal is satisfied, and finds, that:
· prior to 1991, and prior to his employment with the respondent, the applicant had a history of intermittent low back pain from 1976, including two work-related incidents – one in 1976, the other in 1989 – as a result of which he was off work for, respectively, approximately two weeks (in 1976) and 10 days (in 1989) (see the reports of Dr Martin (11 July 1991 – T7), Mr Bell (16 July 1991 – T8) and Mr Forward (10 July 1992 – T18));
· on 8 June 1991 the applicant suffered a low back strain in the course of his employment with the respondent (T3);
· on 9 July 1992 the applicant reported to Mr Forward that in or about June 1992 he had suffered a recurrence of low back pain when he stepped backwards off a low platform (T18);
· on 3 November 1999 the applicant reported to Mr Bell that in August 1999 he had suffered back pain when he lifted a limestone block at his home (T21);
· on 2 August 2007 Dr Chapman certified that the applicant had recently suffered a recurrence of low back pain (T24).
40. As regards the applicant’s evidence (summarised in paragraphs 18–23 above), the Tribunal generally accepts that evidence, although it does not accept that the applicant’s compensable lower back injury sustained on 8 June 1991 occurred when he stepped down from a platform while operating a lathe, as described by him in his oral evidence-in-chief. Given the long passage of time since that injury was sustained, the Tribunal places greater weight on the contemporaneous material before it (referred to in paragraphs 6–15, 39 above) and, on the basis of that evidence, finds that, although that injury occurred in the course of the applicant’s employment, it was not occasioned by any specific work incident or event (T3, T7). Although the Tribunal is prepared to accept that an incident, in which the applicant suffered low back pain when stepping down from a platform while operating a lathe in the course of his employment, did occur, the Tribunal is satisfied, on the basis of Mr Forward’s report of 10 July 1992 (T18), that that incident probably occurred in or about June 1992, and it so finds.
41. The Tribunal accepts, in particular, the applicant’s evidence that, from the time he sustained the relevant lower back injury on 8 June 1991, he has continued to experience some pain symptoms in his lower back, notwithstanding the apparently successful laminectomy performed by Mr Bell on 12 July 1991, and that, in certain subsequent incidents, namely, in 1992, 1999 and 2007, he has suffered exacerbations of his ongoing lower back pain symptoms.
42. There is no dispute, and the Tribunal finds, that the applicant was experiencing lower back pain symptoms as at 30 January 2009 (the date of effect of the reviewable decision in this matter), and that he has continued to experience such symptoms from that date and presently experiences such symptoms. The critical question for the Tribunal’s determination is whether the lower back pain symptoms which the applicant has experienced on and from 30 January 2009 to date are causally related to his compensable lower back injury sustained on 8 June 1991. That question is to be determined by the Tribunal having regard to the whole of the medical evidence before it.
43. As regards the medical witnesses who gave evidence before the Tribunal (each of whom had recently assessed the applicant), there is a clear difference of opinion regarding the abovementioned question between Mr Slinger on the one hand, and Mr Hardcastle and Dr Silbert on the other. In short, Mr Slinger opines that the applicant’s current lower back pain symptoms are causally related to his work injury of 8 June 1991, whereas Mr Hardcastle and Dr Silbert opine that those symptoms are not causally related to that injury but, instead, result from non-work-related causes including, in particular, age-related degeneration of his lower lumbar spine.
44. The Tribunal prefers the analysis of Mr Slinger, and accepts his opinion, for the following reasons.
45. Although there are references in the reports of Dr Martin (11 July 1991 – T7), Mr Bell (16 July 1991 – T8) and Mr Forward (10 July 1992 – T18) to the applicant’s having experienced back pain from 1976 (including two apparently significant episodes – one in 1976, the other in 1989 – each of which necessitated a period of 10 – 14 days off work), there is no radiological evidence before the Tribunal regarding the condition of the applicant’s lumbar spine prior to 1991. The Tribunal, however, notes Dr Martin’s comment:
“ It would seem from the history that there is a likelihood that [the applicant] had pre-existent disc pathology in his lower lumbar spine …” (T7 p12)
There is, however, such radiological evidence in the period immediately following the onset of the applicant’s lower back pain on 8 June 1991 which demonstrated significant disc pathology at the L5/S1 level of the applicant’s lumbar spine (T4, T5, T6), on the basis of which Dr Martin commented:
“ … it would seem that at some time around the 8.6.91 he sustained a further exacerbation of the [pre-existent disc] pathology, with extrusion of disc material into the spinal canal, with some impingement on the nerve structures in the vicinity.” (T7, pp 12–13)
Having viewed that radiological material, Mr Bell (to whom the applicant had been referred by Dr Martin) recommended, and on 12 July 1991 performed, a laminectomy at the L5/S1 level of the applicant’s lumbar spine (T8).
46. In subsequent progress reports in the period from September 1991 to June 1992 (T11, T12, T16) Mr Bell noted that the applicant was continuing to experience back pain and, in his report of 16 June 1992, he opined as follows:
“ … I think he is probably presenting some degree of instability of his lumbosacral joint following laminectomy which of course is always a hazard.” (T16)
47. Likewise Mr Forward, in his report of 10 July 1992, opined:
“ This man has degeneration of the L5 S1 level with instability. This gives rise to intermittent back pain …
… I think it must be accepted that this man may have short periods in the future when he is troubled by back pain …” (T18)
48. The Tribunal has had regard to the material before it regarding radiological investigations of the applicant’s lumbar spine over the period from 25 June 1991 to 26 July 2007 (T4, T5, T6, T14, T23), and to the references in Mr Slinger’s report of 4 June 2009 and Mr Hardcastle’s report of 6 July 2009 to subsequent radiological reports in May 2008 and May 2009. The Tribunal is satisfied that those radiological investigations demonstrate that (inter alia) there has been degeneration at the L4/L5 and L5/S1 levels of the applicant’s lumbar spine but that the degeneration at the L5/S1 level is significantly greater than the degeneration at the L4/L5 level.
49. The Tribunal notes Mr Bell’s report of 17 November 1999 (T21) regarding the applicant’s reporting of an episode of back pain in August 1999 when he lifted a limestone block at his home. In that report Mr Bell described that incident as a “minor exacerbation”.
50. As regards the applicant’s reported onset of back pain in 2007, the Tribunal notes that the CT of the applicant’s lumbar spine performed on 26 July 2007 did not demonstrate that there had been any significant change as compared with the previous CT performed on 6 August 1998. The Tribunal also notes the report of Dr Chapman dated 3 October 2007 (Exhibit A1) in which the opinion is expressed that the applicant’s current back condition (including back pain symptoms) is related to his 1991 back injury and surgery, and that he has had “no new injuries or causes” for his current back pain.
51. Having regard to the medical evidence before it, the Tribunal is satisfied, and finds, that:
· on 8 June 1991 the applicant sustained a lower back injury involving a disc protrusion/herniation at the L5/S1 level of his lumbar spine in the course of his employment with the respondent;
· that disc protrusion/herniation either precipitated, or exacerbated pre-existing, degenerative change at the L5/S1 level of the applicant’s lumbar spine;
· notwithstanding a successful laminectomy operation on the L5/S1 level of the applicant’s lumbar spine performed on 12 July 1991, he thereafter continued to experience lower back pain symptoms resulting from the degeneration of the L5/S1 level which was precipitated or exacerbated by that disc protrusion/herniation;
· the applicant has continued, from 8 June 1991 to date, to experience lower back pain symptoms resulting from the degeneration of the L5/S1 level of his lumbar spine which was precipitated or exacerbated by the disc protrusion/herniation at the L5/S1 level suffered by him on 8 June 1991;
· the ongoing chain of causation between the L5/S1 disc protrusion/herniation suffered by the applicant on 8 June 1991 and his present lower back pain symptoms has not been broken by any intervening incident or event, including the episodes of lower back pain in August 1999 and July 2007 which caused him to seek medical treatment on each of those occasions.
52. The Tribunal does not accept Mr Hardcastle’s opinion that it is more likely that the applicant’s current lower back pain symptoms are coming from the L4/L5 level, rather than the L5/S1 level, of his lumbar spine. The Tribunal regards that opinion as inconsistent with the objective radiological evidence which clearly demonstrates that the degree of degeneration at the L5/S1 level of the applicant’s lumbar spine has, at all material times, been substantially greater than the degree of degeneration at the L4/L5 level. The Tribunal is prepared to accept that a component of the applicant’s lower back pain symptoms is attributable to degeneration at the L4/L5 level of his lumbar spine but, in the Tribunal’s opinion, having regard to the whole of the evidence before it, the greater likelihood is that those symptoms are predominantly attributable to degeneration at the L5/S1 level of his lumbar spine. Accordingly, the Tribunal does not accept Mr Hardcastle’s opinion that the applicant’s present lower back pain symptoms are not causally related to his work-related disc protrusion/herniation injury of June 1991.
53. Likewise, the Tribunal does not accept the opinion of Dr Silbert that the applicant’s present lower back pain symptoms are entirely attributable to non-work-related causes including, in particular, age-related degeneration of his lower lumbar spine. The Tribunal notes, furthermore, that Dr Silbert, in his oral evidence, acknowledged that his opinion was largely based on his understanding that the applicant’s lower back was “entirely asymptomatic” for long periods, namely, from 1992 to 1997 and from 1999 to 2007 – an understanding which is inconsistent with the applicant’s oral evidence (which the Tribunal accepts) that he has experienced lower back pain symptoms intermittently throughout the period from June 1991 to date. The Tribunal also notes that Dr Silbert acknowledged, in his oral evidence, that a cause of the applicant’s current ongoing “mechanical lumbosacral back pain” could be the laminectomy operation he underwent in July 1991 following the L5/S1 disc protrusion he sustained in June 1991.
54. As previously stated, the Tribunal accepts the opinion of Mr Slinger that the applicant’s present ongoing lower back pain symptoms are causally related to the L5/S1 disc protrusion/herniation injury sustained by him in 1991 in the course of his employment with the respondent. In particular, the Tribunal adopts the following passage from Mr Slinger’s report of 4 June 2009:
“ The diagnosis is that of acute disc protrusion or herniation occasioned by the accident at work of 1991, subsequent to which, as is the natural history of that condition, progressive degenerative change and present symptoms are consistent with that degenerative change, as a direct result of the injury of 1991.
In other words, in the absence of that injury of 1991 he would not be in his present situation or condition.” (Exhibit R1, p 8)
In the Tribunal’s opinion, Mr Slinger’s analysis of the aetiology of the applicant’s current ongoing lower back pain symptoms is more consistent with the body of contemporaneous medical evidence relating to the history of the applicant’s L5/S1 disc protrusion/herniation injury sustained by him on 8 June 1991 and its subsequent progress and physical consequences than is the analysis of either Mr Hardcastle or Dr Silbert, and the Tribunal accordingly accepts Mr Slinger’s analysis.
55. The Tribunal finds, therefore, that on and from 30 January 2009 to date, and as at the present date, the applicant continues to suffer lower back pain symptoms resulting from the L5/S1 disc protrusion/herniation injury which he sustained on 8 June 1991 in the course of his employment with the respondent.
Compensation continues to be payable to the applicant
56. It follows, from the foregoing finding, that compensation is payable to the applicant for the cost of reasonable medical treatment obtained by him for his compensable lower back injury sustained on 8 June 1991, pursuant to s 28 of the SRC Act, on and from 30 January 2009 to the present date, and as at the present date.
57. As regards compensation for incapacity for work, both Mr Slinger and Dr Silbert have opined that the applicant has a capacity for work but that he does not have the capacity fully to undertake work duties as a marine engineer. On the basis of that evidence the Tribunal finds that the applicant is partially incapacitated for work. The Tribunal further finds, on the basis of Mr Singer’s evidence, that the applicant’s partial incapacity for work results from the compensable lower back injury which he sustained on 8 June 1991. It follows that compensation is payable to the applicant for incapacity for work, pursuant to s 31 of the SRC Act, on and from 30 January 2009 to the present date, and as at the present date.
Decision
58. For the above reasons the Tribunal sets aside the reviewable decision of the respondent, dated 19 March 2009, and, in substitution therefor, decides that on and from 30 January 2009 (being the date of effect of the reviewable decision) to the present date, and as at the present date, compensation is payable to the applicant, pursuant to s 28 and s 31 of the SRC Act, in respect of his lower back injury sustained on 8 June 1991.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member
Signed: ................[sgd D Brodie]........................
Associate
Dates of Hearing 19–21 April 2010
Date of Decision 28 May 2010
Counsel for the Applicant Mr H Kelly
Solicitor for the Applicant W G McNally Jones Staff
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Curwoods Lawyers
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