Silsby and Comcare
[2007] AATA 1158
•21 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1158
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/320
GENERAL ADMINISTRATIVE DIVISION ) Re GLENN SILSBY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr M.D. Miller AO, MemberDate21 March 2007
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that Mr Silsby is entitled to compensation for incapacity and medical treatment expenses in relation to his previously accepted lower back injury from 10 March 2005 to the present. The matter is remitted to Comcare to determine the extent of incapacity consistent with these reasons.
The parties have seven days in which to file submissions in relation to orders for costs.
..............................................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION – Previously accepted lower back injury – Determination ceasing liability to pay compensation for incapacity and medical treatment expenses – Pain – Continuous and consistent symptoms – Mechanism of pain not resolved on the medical evidence – Reasonable satisfaction – Frank injury – Disease – Balance of persuasion – Incapacity resulting from injury – Decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 19, 67
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Canute v Comcare (2006) 229 ALR 445; [2006] HCA 47
Kennedy Cleaning Services Pty Ltd v Petkovska (2000) 200 CLR 286; [2000] HCA 45
Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Australian Postal Corporation v Lucas (1991) 33 FCR 101; (1991) 14 AAR 487
Comcare v Sahu-Kahn [2007] FCA 15
McDonald v Director General of Social Security (1984) FCR 354; (1984) 6 ALD 6
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
REASONS FOR DECISION
21 March 2007 Mr S. Webb, Member
Dr M.D. Miller AO, Member1. On 10 March 2005 Comcare determined that Mr Silsby was not entitled to compensation for incapacity and medical treatment expenses in relation to his previously accepted lower back injury in May 1986. The determination was affirmed on reconsideration and is presently before the Tribunal for review.
2. The issues to be determined are whether Mr Silsby is entitled to compensation for incapacity and medical treatment expenses in relation to his lower back injury in the period from 10 March 2005 to the present.
3. For compensation to be payable the Tribunal must be reasonably satisfied [1] that Mr Silsby’s claimed incapacity for work is the result of his compensable injury [2] and the medical treatment he has obtained is medical treatment for that injury[3] during the period in question. ‘Injury’ is defined to include a disease or a physical or psychological injury, or the aggravation thereof, (subject to exclusions which are not presently relevant).[4] Injury is the resultant effect of an incident or ailment upon the employee’s body; Canute v Comcare (2006) 229 ALR 445.[5] It does not describe the general condition of the employee following an incident. Incapacity for work is taken to mean an incapacity to engage in any work or an incapacity to engage in work at the same level in which the employee was engaged immediately prior to the injury.[6]
[1] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
[2] Safety, Rehabilitation and Compensation Act 1988 ss 14 and 19.
[3] Section 16.
[4] Section 4.
[5] At paragraph 10.
[6] Subsection 4(9).
FACTS
4. Mr Silsby suffered an injury to his lower back at work on 1 May 1986 in relation to which Comcare accept liability to pay compensation. At the time he was a 3rd year apprentice motor mechanic employed by the Department of Territories and Local Government. The injury was described as a muscle strain. We are satisfied that the injury was a physical injury, involving a sudden and identifiable physiological change; Kennedy Cleaning Services Pty Ltd vPetkovska (2000) 200 CLR 286,[7] and not an injury relating to disease. Mr Silsby was certified unfit to return to his employment until 5 July 1986 by his treating doctor. Despite some further complaints of low back pain he resumed full duties, but was transferred from the heavy vehicle workshop to a workshop dealing with lighter vehicles. He aggravated his injury on 3 March 1988 and returned to work a week later. He was examined again on 14 March 1988 as his condition had not improved, he received pain medication and was certified unfit for work until 25 March 1988.[8] He continued to complain of low back pain and was transferred to clerical duties at the ACT Department of Housing in 1989 where he was employed in the Information
Technology branch. He has continued to complain of low back pain, in varying degrees, from that day to this, and has been examined by numerous medical practitioners (some of whom have given evidence in these proceedings).
[7] See Gleeson CJ and Kirby J at paragraphs 35-36.
[8] Documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), T18 and 19.
5. Comcare paid compensation for partial incapacity and medical treatment expenses until 10 March 2005, when it was decided that Mr Silsby’s injury was not the cause of any incapacity and it did not require further medical treatment.
6. Comcare asserts that Mr Silsby’s lower back injury in 1986 was not the cause of any incapacity for work and did not require medical treatment on 10 March 2005 or thereafter to the present, in consequence of which he was not entitled to compensation. Comcare says that the incapacity Mr Silsby claims to suffer is not the result of his accepted injury, if it exists to the degree claimed. Rather, it is more likely to be the result of other non-work-related factors, including distressing events in Mr Silsby’s life, his obesity, his inactivity, narcotic treatments prescribed by his doctor and a measure of embellishment or exaggeration. Comcare’s case was put on the basis that Mr Silsby’s ongoing symptoms of low back pain and leg pain do not result from his accepted low back injury in May 1986, and any resultant incapacity for work or medical treatment is not work-related or compensable under the Act.
7. As will appear, we do not agree.
8. We are reasonably satisfied that Mr Silsby genuinely suffers from low back pain that is the result of his injury in 1986. We are also satisfied that Mr Silsby suffers incapacity for work as a result of the pain he experiences. We will return to issues of incapacity and medical treatment. First it is necessary to address issues of causation.
9. All the examining doctors whose opinions are reflected in the evidence before us accept that Mr Silsby’s complaints of ongoing pain since 1986 are genuine. The pain complained of is localised in his lower back and is associated with localised tenderness in the low and mid back areas. Mr Silsby has also complained of pain in his legs. We are reasonably satisfied that Mr Silsby genuinely suffers from such pain symptomatology.
10. Much of the evidence was directed to establishing a mechanism or an explanation for Mr Silsby’s ongoing complaints of pain. It appears that his symptoms are not readily explained on the basis of radiological investigations or physical pathology. The evidence is ambiguous and, in some aspects, conjectural. We will address the submissions of the parties and the evidence concerning pain causation in some detail.
Is Mr Silsby’s pain caused by centralised sensitisation of nociception?
11. It is possible that Dr Cohen and Dr White are correct in their assessment that centralised sensitisation of nociception resulted from Mr Silsby’s injury and is the cause of his pain. However, the theory of centralised sensitisation of nociception is just that, a theory that is not proven. It may provide a possible explanation in the absence of any other reasonable explanation but it remains a controversial subject, especially in terms of diagnosis. We note that the purported diagnostic criteria for sensitisation of nociceptor afferents include prior nerve trauma[9] and allodynia.[10] There is some evidence pointing to the presence of allodynia and the possibility that some nerve damage was caused by the injury in May 1986 cannot be ruled out. That being so sensitisation of nociceptor afferents cannot be ruled out as a possible cause for Mr Silsby’s ongoing symptoms of pain. But it is not established to our reasonable satisfaction as a matter of probability. We note Dr Cohen’s evidence that, in some people, neural pathways that are turned on as a result of a minor injury, do not turn off again. It is possible this has occurred in Mr Silsby’s case. Certainly Dr Cohen and Dr White hold that opinion.
[9] Dr Stevenson & Dr McGill.
[10] Dr Cohen & Dr McGill.
Is Mr Silsby’s pain attributable to disc derangement?
12. Radiological investigations of Mr Silsby’s lower back were carried out in 1986,[11] 1991 and 1993.[12] On that evidence a disc bulge was present at the L4-5 level in 1986, which was confirmed in subsequent scans (also revealing a smaller bulge at the L3-4 level). Dr Newcombe described the disc lesion as herniation of a moderate degree[13] at the L4-5 level. Dr Beckett diagnosed the L4-5 disc problem to be a disc prolapse.[14] Both doctors had access to a CT scan conducted on 20 August 1986 (which is not in evidence) and were of the opinion that the L4-5 disc lesion was the result of injury in May 1986. Dr Fish reported that Mr Silsby was suffering from intervertebral disc derangement and accepted that “as his current condition is the same as that in 1986, continuing incapacity is due to the same and continuing condition”.[15] However, the weight of the more recent medical evidence is that, in the absence of evidence of neural compromise, it is unlikely the L4-5 disc derangement is the cause of his pain, although it cannot be ruled out. It is possible that a symptomatic zygopophyseal joint is the cause of his ongoing pain, but that has not properly or thoroughly been investigated and diagnosed.[16]
[11] T14.
[12] Exhibit R4.
[13] T15.
[14] T14.
[15] T79, folio 124.
[16] Exhibit R3, Report of Dr Speldewinde of 11 November 2004.
Is the pain the result of age-related degeneration or constitutional factors?
13. There is no substantial evidence that age-related degeneration or constitutional factors have acted upon Mr Silsby’s lumbar spine to cause his pain symptomatology. Insofar as Mr Silsby’s pain symptoms may be associated with the L4-5 disc bulge, in Comcare’s submission there is a strong likelihood that the disc bulge is constitutional and not related to trauma. However there is no radiological evidence pre-dating the injury in May 1986 to confirm that possibility.[17] Furthermore in Comcare’s submission the disc bulge may be the result of age-related degenerative processes as suggested by Dr Stevenson, although age-related lumbar disc degeneration is less likely in a younger person[18] (Mr Silsby was 21 years old at the time of his injury) and there is no evidence of progressive degeneration in the L4-5 disc.[19] We are persuaded, based on the contemporaneous evidence of Dr Newcombe and Dr Beckett, that it is more likely than not that the disc lesion was either caused, aggravated or rendered symptomatic by the injury in 1986, even
though one would not expect disc trauma to result from a minor incident.[20] Furthermore, it appears from the medical evidence that the CT scan taken in August 1986 was not available to the examining doctors for the purpose of these proceedings, even though that is a crucial piece of the evidentiary matrix at the time of injury, or soon thereafter.
[17] Dr Stevenson.
[18] Dr Stevenson, Dr McGill, Dr White & Dr Cohen.
[19] Dr White, Dr McGill & Dr Cohen.
[20] Dr Fish, Dr Stevenson, Dr McGill.
14. In the absence of compelling radiological or other medical evidence concerning the existence of age-related degeneration or constitutional factors capable of causing the onset or continuation of Mr Silsby’s pain symptomatology, we are not persuaded that Mr Silsby’s present pain can be explained, on the balance of probabilities, by such possible causes.
Does Mr Silsby suffer from a chronic pain syndrome as a result of his injury?
15. It is possible that Mr Silsby suffers from a chronic pain syndrome,[21] although there is little evidence to support such a proposition. We note Dr Cohen’s evidence that the descriptor ‘chronic pain syndrome’ lacks validity as a diagnosis, as pain is not psychogenic in origin. It is a response and not a stimulus to which a person can become sensitised, although a person may have cognitive or emotional responses to pain.
[21] Exhibit A1, Report of Dr MacIver dated 28 November 2005.
16. It may be that Mr Silsby suffers from a Chronic Pain Disorder (DSM-IV) as diagnosed by Dr Stern, but Dr Stern was not given a complete history by Mr Silsby and his diagnosis is not supported by Dr Lewin who obtained a more complete history, but found no psychological condition or disorder. For that reason we are not satisfied that Dr Sterns’ diagnosis is made out as a probability.
Does Mr Silsby’s pain have a psychogenic origin?
17. It is possible psychosocial factors contributed to Mr Silsby’s experience of pain,[22] but that is not established as a probability on the evidence before us as the psychosocial stressors to which reference was made occurred several years after the onset of pain (which was contemporaneous with the index injury).
[22] Dr Stevenson.
Was the pain associated with past depression?
18. It is possible that Mr Silsby’s pain is associated with previous depression. However there is no evidence that Mr Silsby was suffering from depression in 1986 when he was first injured. Dr Stevenson makes reference to a record of Mr Silsby feeling depressed apparently after a neck injury in 1982.[23] However, there is no evidence to indicate that any depression Mr Silsby may have experienced in 1982 continued to 1986 and beyond.
[23] Exhibit R6.
19. We accept that Mr Silsby was adversely affected psychologically by events in 1992 and 1993 involving his then fiancée, and may have suffered depression as a result. However, even if he was depressed at that time, and there is some evidence that he was, his pain symptoms had then been persisting for at least six years. It cannot be said that the pain symptoms were caused by the subsequent psychological condition. We are not persuaded to accept Comcare’s submission that Mr Silsby’s pain symptoms after 1992 or 1993 were the result of depression and were not related to his prior injury. It is possible that Mr Silsby ceased experiencing pain as a result of his injury and started experiencing the same symptoms of pain as a consequence of depression over a period of time after 1992 or 1993. However there is scant evidence to support such a proposition and we are not persuaded to that conclusion as a matter of probability on the available evidence.
Was the motor vehicle accident the progenesis of Mr Silsby’s later experience of pain?
20. It appears most unlikely that Mr Silsby’s experience of pain originates from his motor vehicle accident in 1982 as he injured his neck and not his lower back in that accident. Furthermore, there is no evidence that he suffered any symptoms of low back pain prior to the injury in May 1986.
21. We are not persuaded to conclude that the motor vehicle accident in 1982 or the cervical spine injury Mr Silsby suffered as a result are causally related to his present or past pain symptomatology.
Is secondary gain from the compensation process a likely cause of the pain of which Mr Silsby complains?
22. It is possible that Mr Silsby’s condition has been affected by more than 20 years involvement in compensation, as much by the possibility of secondary gain as by the anguish and frustration he clearly expressed concerning his dealings with Comcare. It is also possible that his condition has been affected by the disbelief of work colleagues and others concerning the veracity of his complaints of disabling pain without visible cause. However, these propositions are not supported by any compelling evidence, in the absence of which they remain mere possibilities and do not separately or in combination constitute an explanation for Mr Silsby’s pain symptoms that is established on the balance of probabilities to the reasonable satisfaction standard. We do not accept the proposition that Mr Silsby has manufactured or exaggerated pain symptoms over more than 20 years for the purpose of obtaining compensation. That is simply implausible. He has been accepted as genuine and truthful by doctors who have examined him over time and his reported history of symptoms has been consistent over time.
FINDINGS
23. As can be seen, numerous possible causes of Mr Silsby’s pain have been proposed in these proceedings. In all likelihood the progress of Mr Silsby’s experience of pain over time is multifactorial. We make the following findings:
(a)Mr Silsby suffered a frank physical injury to his lower back in May 1986.
(b)That injury caused an L4-5 disc protrusion and the onset of symptoms of pain in the region of his lower back.
(c)He has continued to suffer pain, in varying degrees, in his lower back ever since and has experienced varying degrees of incapacity for work as a result.
(d)We accept that his complaints of low back pain are truthful and note that all of the examining doctors over the years have accepted his complaints of low back pain as genuine.
(e)There are physical abnormalities in his lumbar L4-5 disc which have been consistently present at least since the date of injury and which may provide an explanation for his ongoing pain (although that is far from certain).
(f)A variety of explanations or mechanisms or diagnoses for his experience of ongoing low back pain are open on the evidence. We are not able to determine with certainty the precise mechanism of his ongoing pain symptoms and accept the limits of medical science in that regard. That is not to say, however, that the essential issue of causation is left entirely up in the air. We are satisfied that Mr Silsby suffers a degree of incapacity for work as a result of his low back pain which was originally caused by the injury he suffered at work on 1 May 1986.
24. On those findings this case is similar to that of Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797 [24] although that case was decided under the Commonwealth Government Employees Act 1971 (Cth). In Musumeci’s case Deputy President Todd stated:
“…while inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between the employment and a claimed incapacity, that fact of itself does not militate against a finding for an employee under the legislation here applicable where the proofs are otherwise adequate.” (Emphasis added)[25]
[24] See paragraphs 13 to 16.
[25] at paragraph 14
As in Musumeci’s case, we are satisfied that the proofs are otherwise adequate to establish the requisite link between Mr Silsby’s claimed incapacity and his previous employment despite the difficulty determining the precise mechanism or diagnosis of his pain. Furthermore, in this case there is evidence that the ongoing pain symptoms may be related to physiological changes in Mr Silsby’s lumbar spine that occurred in May 1986. Thus it may not be necessary to deal with his ongoing pain symptoms as a secondary injury under the disease provisions of the present Act. We will return to this point below. Thus, being mindful of Burchett J’s remarks in Australian Postal Corporation v Lucas (1991) 14 AAR 487,[26] we are satisfied that Mr Silsby’s case is one of those rare cases to which his Honour referred.
[26] At 494-495.
25. In Comcare’s submission the injury must contribute in a material degree to the pain from which Mr Silsby suffers; Comcare v Sahu-Kahn [2007] FCA 15. However, Sahu-Kahn’s case concerned an injury that was a disease and Finn J’s conclusions were directed specifically to that issue. Mr Silsby’s case concerns a frank physical injury and subsequent symptomatology. Applying Canute v Comcare [2005] FCAFC 262 [27] if Mr Silsby’s symptomatology subsequent to injury is separate and distinct from his injury[28] and is a disease that was caused or aggravated by the frank injury then Finn J’s conclusions in Sahu-Kahn’s case[29] have application here. However, it is far from clear on the available evidence that Mr Silsby’s ongoing pain symptoms are properly characterised as a disease, as distinct from ongoing symptoms of the injury simpliciter. We are not satisfied that the pain symptoms constitute a secondary or consequent injury in the form of a disease. The mechanism of his pain following the injury is not known and is the subject of theory and speculation. Simply put, the contemporaneous symptoms of pain he suffered as a result of injury in May 1986 have not ceased. The reason they have not ceased is not able to be established as a matter of probability to the reasonable satisfaction standard. There is not sufficient evidence to establish as a matter of probability that Mr Silsby’s pain symptomatology is a disease under the Act that is distinct from the injury he suffered in May 1986. Thus Sahu-Kahn’s case is distinguished.
[27] At paragraphs 69 and 70.
[28] Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44.
[29] See paragraph 17 in particular.
26. However, if we are wrong on this point, and Mr Silsby’s ongoing pain symptomatology is within the meaning of disease, to be considered in relation to the disease provisions under the Act, the case does not resolve in Comcare’s favour. We note the Act does not impose an onus of proof on parties in proceedings before the Tribunal.
27. Simply put, we are not able to ascertain with any certainty the precise mechanism of Mr Silsby’s pain symptomatology. In the event of uncertainty on a question of essential fact, it is necessary to carefully consider the decision that is before the Tribunal for review; McDonald v Director General of Social Security (1984) 6 ALD 6 at 11. Mr Silsby was paid compensation for incapacity and medical treatment until the date of the determination,[30] as affirmed on reconsideration[31] that has led to this review. The task of the Tribunal in this matter, therefore, standing in the shoes of the original decision-maker and charged with making the correct or preferable decision on the evidence before it,[32] is to determine whether there are sufficient grounds to deny Mr Silsby compensation for incapacity and medical treatment for which liability was previously accepted by Comcare in relation to his low back injury. Such grounds will be found if it is established, on the balance of probabilities, by some rationally probative evidence that he is not so entitled. In the circumstances it is not sufficient to deny him previously accepted compensation entitlements on the basis of mere suspicion or speculation or evidence that is ambiguous or inconclusive to the extent that the Tribunal is left in a state of uncertainty, being unable to decide essential questions of fact one way or the other on the balance of probabilities to its reasonable satisfaction; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 155-156. Being in the shoes of the original decision-maker and considering the material before us, if we are unable to decide a question of fact either way on the balance of probabilities, then we have not achieved the necessary state of mind to disturb the status quo.
[30] T183 & T176,
[31] T195.
[32] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
28. However, we are mindful that for compensable incapacity to be found the incapacity must be the result of injury under the Act. As we have said, the requisite connection between Mr Silsby’s incapacity for work as a result of his pain and his relevant employment is established to our reasonable satisfaction. We are unable to determine, to our reasonable satisfaction, the precise mechanism or diagnosis of his ongoing pain symtpomatology. Considering that remaining uncertainty and the disease provisions of the Act, we have not achieved the requisite state of mind to conclude that Mr Silsby’s work injury does not materially contribute to his present pain symptoms, and we are not able, therefore, to conclude that his previous entitlement to compensation for incapacity and medical treatment in relation to his injury should cease from 10 March 2005.
29. It follows that the decision under review will be set aside and in place thereof we decide that from 10 March 2005 to the present Mr Silsby is entitled to compensation for incapacity and medical treatment expenses in relation to his low back injury. The parties made submissions about the extent of Mr Silsby’s incapacity. We note there is no specific claim for incapacity or for medical treatment expenses that has been denied by the decision under review and is before us. We make the following observations.
30. Comcare agreed to the terms of a consent decision entered by the Tribunal on 27 September 2000,[33] whereby Mr Silsby was paid compensation for permanent impairment as a result of the injury to his lower back in May 1986.
[33] T108.
31. On 14 February 2005 Comcare purported to refuse to determine Mr Silsby’s claims for particular treatment expenses pending his provision of further evidence.[34] The particularities of those claims are not before us in these proceedings.
[34] T182.
32. Reference is made in the reviewable decision to Mr Silsby being compensated for pharmaceutical medications until February 2005. No present claim concerning particular medications is before us. We note however, the evidence that Mr Silsby has been taking a variety of medications daily, including Efexor, Panadeine Forte and Oxycontin since at least February 2005. These medications are by prescription of Dr MacIver in relation to Mr Silsby’s pain symptomatology. Efexor and Oxycontin have been prescribed for pain relief following a prior recommendation by Dr Speldewinde. It is not for the Tribunal to determine the appropriateness of these treatments. However we feel compelled to observe that, on Dr MacIver’s evidence, Dr Speldewinde recommended the combination of Efexor and Oxycontin on a trial basis with the objective of improving Mr Silsby’s functionality. There is evidence some improvement was achieved initially by November 2004.[35] Dr MacIver’s medical certificates also indicate improvement: in November 2004 Mr Silsby was certified as totally unfit for work[36], whereas he was certified fit to work four hours per day, three days per week in the period from 7 December 2004 to 3 June 2005.[37] However, by Mr Silsby’s account his condition subsequently deteriorated to the extent that he became totally incapacitated for work. The reason for this is not clear on the evidence. We note however, that narcotic analgesia may produce lethargy and difficulty with concentration, and may lead to problems of addiction. It is for Mr Silsby’s treating doctors to consider the appropriateness of the particular treatments. If claims for specific medical treatment expenses are lodged following this decision, Comcare must determine those claims on the merits at the time.
[35] Exhibit R3.
[36] T178 & T179.
[37] T186, T188 and T187.
33. Mr Silsby asserts that he is totally incapacitated for work by the pain he suffers. He says that he cannot work 12 hours per week in his previous duties, even though he was provided with suitable ergonomic facilities, and he was able to sit or stand as needs, and he was able to pace his work to suit his condition.
34. Dr MacIver certified Mr Silsby fit to work 4 hours per day over 3 days per week until 3 June 2005. Mr Silsby says that he was not able to manage that workload and subsequently his condition deteriorated (without any plausible explanation) rendering him totally incapacitated for work.
35. We are not persuaded by Mr Silsby’s assertions concerning the extent of any incapacity. We note that Mr Silsby is able to sit in a car for a sufficient period to drive from Canberra to Sydney with only two breaks and to ride his Harley Davidson motorcycle from time to time. We note that Mr Silsby’s evidence was that he had
travelled approximately 8,000 kilometres since purchasing the vehicle in 2001. We also note that Mr Silsby gave inconsistent evidence concerning his recent use of his motor cycle. Mr Silsby has two computers at home which he uses daily to communicate with his friends and associates, and to maintain at least two internet sites. Furthermore, we observed Mr Silsby sitting in the witness box giving his evidence over the period of several hours. Despite being offered breaks on request, he declined to do so during the morning sitting. At the conclusion of his evidence the Tribunal questioned Mr Silsby about his symptoms. He explained that he was in severe pain and that normally he would change his position to alleviate the pain in his lower back, but had not requested breaks because he wanted to get the hearing over as quickly as possible. We accept that may have been part of his motivation for not requesting breaks in the morning session, however we observed Mr Silsby sit for more than 1 hour without any sign of discomfort whatsoever. Mrs Silsby’s evidence is that she can tell when Mr Silsby is in a lot of pain “as he gets physical symptoms … and he begins to sweat profusely”.[38] We accept Mrs Silsby’s evidence. We also accept that Mr Silsby had taken two Panadeine Forte and 20 milligrams of Oxycontin prior to the hearing. Nevertheless, we are persuaded to conclude that Mr Silsby’s assertion that he is not capable of undertaking 12 hours of clerical information technology work each week in an ergonomic facility in which he is able to sit or stand at will and pace his work in relation to his symptoms is not well founded and is not consistent with his actual capacity.
[38] Exhibit A3.
36. However, there is insufficient evidence before us to properly determine the extent of Mr Silsby’s incapacity for work since 3 June 2005, as certified by Dr MacIver. Thus, the matter will be remitted to Comcare to determine the extent of Mr Silsby’s incapacity from 4 June 2005 to the present.
37. Finally, and for completeness, even though issues of suitable employment were not ventilated in these proceedings we note that immediately prior to his injury Mr Silsby was an apprentice motor mechanic. It is not contended by Comcare that work as a motor mechanic is suitable employment he is able to perform. Mr Silsby has not performed such work for many years, having been redeployed to clerical information technology duties many years ago. Despite his evidence that he cannot sit for long periods of time, it may be that the clerical work in information technology in which he was previously employed, with appropriate ergonomic facilities and flexible work practices, is suitable employment for Mr Silsby. That is a matter for Comcare to determine pursuant to sections 4 and 19 of the Act.
38. Thus, the matter is decided in Mr Silsby’s favour. No submissions were made in relation to orders for costs pursuant to subs 67(8). We are minded to order that Comcare pay Mr Silsby’s reasonable costs in these proceedings as taxed or agreed pursuant to the Tribunal’s General Practice Direction. The parties have seven days in which to make submissions in relation to costs. In the event that no submissions are forthcoming the orders indicated will be made.
Decision
39. The decision under review is set aside and in substitution thereof the Tribunal decides that Mr Silsby is entitled to compensation for incapacity and medical treatment expenses in relation to his previously accepted lower back injury from 10 March 2005 to the present. The matter is remitted to Comcare to determine the extent of incapacity consistent with these reasons.
40. The parties have seven days in which to file submissions in relation to orders for costs.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member and Dr M.D. Miller AO, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 26-28 February 2007
Date of Decision 21 March 2007
Counsel for the Applicant Mr S Whybrow
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Ms L Walker
Solicitor for the Respondent DLA Phillips Fox
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