Sinclair-Jones and Comcare
[2004] AATA 546
•27 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 546
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/243
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL SINCLAIR-JONES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, Member
Date27 May 2004
PlacePerth
Decision The Tribunal sets aside the reviewable decision of 22 May 2000 and, in substitution therefor, decides that: (a)the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to the applicant in accordance with s 19 of that Act in respect of an injury to his back suffered by him on 2 February 1996 which resulted in his incapacity for work, and such liability was continuing on and from 16 August 1999, and is presently continuing;
(b)the amount of compensation payable to the applicant as from 16 August 1999, in accordance with s 19 of the SRC Act, is as specified in paragraph 144 of the Tribunal’s reasons herein.
The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the respondent pay the costs of the applicant of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.
............(sgd S D Hotop).....................
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by National Native Title Tribunal (NNTT) as Community Liaison Officer – applicant suffered back injury in February 1996 – applicant claimed compensation – respondent accepted liability to pay compensation in April 1996 – applicant subsequently commenced graduated return to work programme – applicant resigned from NNTT before completion of programme, with effect from 16 August 1999 – respondent made determination that liability to pay incapacity payments to applicant ceased from 16 August 1999 – respondent made a reviewable decision affirming determination – scope of Tribunal’s review of reviewable decision – Tribunal may consider and determine whether applicant suffered a compensable back injury in February 1996 and whether applicant was ever incapacitated for work thereby – applicant did suffer compensable back injury in February 1996 – applicant’s back injury resulted in ongoing incapacity for work – quantum of compensation payable to applicant by way of incapacity payments – suitable employment – amount per week applicant able to earn in suitable employment – reviewable decision set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 14(1) and s 19
Lees v Comcare (1999) 29 AAR 350
Martin v Australian Postal Corporation (2000) 32 AAR 199
Power v Comcare (1998) 89 FCR 514
Telstra Corporation Ltd v Warner (1994) 20 AAR 259
REASONS FOR DECISION
27 May 2004 Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, MemberIntroduction
1. Michael Sinclair-Jones (“the applicant”) has applied to the Tribunal for a review of a “reviewable decision”, dated 22 May 2000, made by a Review Officer of Comcare (“the respondent”) in the following terms:
“The decision made in this matter on 08/11/1999, namely, ceasing liability to award incapacity benefits on and from 16/08/1999 in respect of ‘soft tissue injury to back affecting back, neck, right shoulder and arm’ sustained on 06/02/1996, is AFFIRMED.”
The phrase “liability to award incapacity benefits” in that decision is a reference to the respondent’s liability (as accepted by it on 23 April 1996) to pay compensation to the applicant pursuant to ss14 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).
2. At the hearing before the Tribunal, constituted by Senior Member R D Fayle and Member Dr D Weerasooriya, the applicant was represented by Mr L Gandini, solicitor, and the respondent was represented by Ms L Walker of counsel. The Tribunal had before it the documents (“T documents”, comprising T1-T187, pp 1-292) lodged by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975(Cth) (“the AAT Act”) and various documentary exhibits tendered in evidence by the applicant (Exhibits A1-A8) and by the respondent (Exhibits R1-R17). Oral evidence was given by the applicant and by the following additional witnesses: Dr Michael Sadka, Dr Geoffrey Gee, Mr Peter Woodland and Dr Andrew Harper (who were called by the applicant), and Dr Peter Connaughton and Ms Judith Bock (who were called by the respondent).
3. At the conclusion of the hearing the Tribunal reserved its decision and it had not made and delivered its decision at the date of Senior Member Fayle’s death on 12 October 2002. The Tribunal was subsequently, by direction, reconstituted to comprise Deputy President S D Hotop and Member Dr D Weerasooriya, and, at the request of the parties, it was determined that the matter would not be re-heard by the reconstituted Tribunal but that, instead, the matter would, pursuant to s 34B of the AAT Act, be decided by that Tribunal “on the papers” (including the transcript of the previous hearing before the Tribunal as originally constituted). Subsequently, however, at the request of the Tribunal a resumed hearing was held for the purpose of receiving further evidence from the parties. At that resumed hearing the applicant was again represented by Mr L Gandini, and the respondent was represented by Mr B Ablong, solicitor.
The Factual Background
4. The background facts, which are not in dispute and as found by the Tribunal on the basis of the T documents and exhibits, are as follows.
5. The applicant, who was born on 5 February 1951, was, at all material times, employed by the National Native Title Tribunal (“NNTT”) as a Community Liaison Officer (Classification: Senior Officer Grade B).
6. On 9 February 1996 Dr I Churchward issued a “First Medical Certificate” in respect of the applicant which he stated a diagnosis of “soft tissue injury to back and shoulder”, recorded the applicant’s “description of how the disability occurred“ as follows:
“carrying cases and bags while travelling interstate in Queensland – back pain started on 2/2/96”;
and recorded the applicant’s “description of the injury or disease” as follows:
“low back/back pain radiating to shoulders”.
Dr Churchward certified that the applicant was “totally unfit for work” for 10 days and referred him for “imaging”. (T5)
7. On 12 February 1996 Dr Churchward issued a “Progress/Fitness Medical Certificate” regarding the applicant’s “low back pain” in which he certified that the applicant was “totally unfit” for one week and added: “Admit to Hospital”. (T6)
8. A report, dated 13 February 1996, of a CT scan of the applicant’s lumbo-sacral spine from L3 to S1 revealed a “minimal disc bulge … at the L4/5 level with no evidence of neural compression”, but no other abnormalities. (T7)
9. On 17 February 1996 Dr Churchward issued a “Progress/Fitness Medical Certificate” regarding the applicant’s “low back pain” in which he certified that the applicant was “unfit for normal duties” for 2 weeks but added that he was “partially fit” and recommended that he “continue physiotherapy”. (T8)
10. On 19 February 1996 the applicant lodged with the NNTT a “Claim for Rehabilitation and Compensation” form in respect of an injury which he described as:
“ extreme soreness in lower back coupled with longer term soreness in neck and right arm.”
He indicated that he first noticed this condition at 11.00 pm on 6 February 1996 and that he first received medical treatment for it on 7 February 1996. In response to questions on the form regarding the circumstances of the relevant injury, the applicant stated:
“ I believe injury to back occurred at Townsville Airport on 2/2/96. …
I believe back injury occurred while carrying luggage from Air Charter Office to Townsville Air Terminal – about 200-300m…
I believe carrying luggage as described [above] after a week of strenuous liaison activity on Palm Island, Qld contributed to lower back injury. I subsequently travelled 14 hours by air to return home to Perth. On the Brisbane-Perth leg (5 hours) arriving at 11.30 pm, I was unable to sit comfortably in aircraft seat despite business class accommodation. I spent all the next day (Sat) resting, plus much of Sunday, but worked normally without pain (except tiredness) on Monday & Tuesday. However by night about 11.00 pm my back was so sore I was unable to move from lying on my back in bed.”
(T3)
11. Dr Churchward issued 3 further “Progress/Fitness Medical Certificates”, dated 20 February 1996, 27 February 1996 and 1 April 1996, regarding the applicant’s “low back pain” whereby he certified that the applicant was “unfit for normal duties” for the periods 20 February-5 March 1966 and 1-12 April 1996. (T10, T12, T16)
12. In response to a request by the respondent, Dr Churchward provided a report regarding the applicant. That report, dated 2 April 1996, states as follows:
“I first saw Mr Michael Sinclair-Jones on the 9 February 1996. He informed me that while undertaking his duties with the National Native Title Tribunal which involved desk and office work including using computer equipment and that he had recently travelled to Queensland and this involved carrying heavy equipment including luggage and handbags to remote places in Queensland.
Following some activities on the 2 February 1996 in remote Queensland, which involved carrying heavy equipment and luggage he notice increasing pain in his back especially in his lower back with some radiation into his thoracic spine and into the neck and right shoulder and arm.
Prior to seeing me on the 9 February 1996 he had attended another doctor, I believe on the 7 February 1996 and also had some physiotherapy. His symptoms on the 9 February 1996 were particularly of low back pain but some radiation up the back into the right shoulder and neck. This back pain limited his ability to sleep and seemed to be exacerbated by his activities at work, particularly bending over a desk for long periods of time and using a computer.
I reviewed him again after commencing him on some analgesia and anti-inflammatory medications but unfortunately by the 12 February 1996 his back pain seemed to becoming increasingly worse and I understand he attended Royal Perth Hospital during the middle of the night because of increasing pain which required narcotic analgesia to reduce his pain.
In view of the severity of the pain and the need for narcotic analgesia particularly in the middle of the night I felt it was unsuitable to continue managing him on an outpatient basis as it is likely this pain would continue to be a problem particularly in the middle of the night, and frequent night time or early morning attendance at Royal Perth was an unsuitable way of managing this problem I arranged for him to be admitted to our local private hospital, St Anne’s Mercy Hospital, where in fact his pain gradually decreased but initially he did require further narcotic analgesia which I then withdrew gradually and transferred him to anti-inflammatory suppositories. While in hospital I arranged for him to have some physiotherapy treatment with the hospital based physiotherapist.
Mr Sinclair-Jones was discharged from hospital on the 17 February 1996 and he was able to return to work the following Monday, however at that stage he continues to be in a state of incomplete fitness for work as he continues to have low back pain which limits his ability to twist and lift heavy objects and maintaining a sitting posture for long periods of time. He continues to have sleep disturbance, he is unable to lift his children at home which is considerably difficult given their young age.
When last reviewed on the 1 April 1996 he continued to have back pain and thoracic pain with some radiation into the right shoulder. X-Rays have not revealed any evidence of any bone problems. I have arranged for him to re-commence physiotherapy treatment.
I understand also that a workplace assessment has been carried out with some minor adaptations made to his workplace. These will need to be continued to be monitored as other modifications may be necessary if his condition does not improve. I would recommend that we regularly review him as well as needing continual physiotherapy and would suggest that he not undertake interstate travel as I believe this has lead to a slowing of his recovery. He should avoid carrying heavy bags and cases and henceforth taxi travel to and from his workplace to home would be appropriate. I intend to review him on a regular basis but he will need continuing treatment and continuing physiotherapy.”
(T17)
13. On 12 April 1996 Dr Churchward issued a further “Progress/Fitness Medical Certificate” regarding the applicant’s “soft tissue back pain” in which he certified that the applicant was “unfit for normal duties” until 30 April 1996. (T18)
14. On 23 April 1996 the respondent “accepted” the applicant’s claim for compensation in respect of a condition described by the respondent as:
“soft tissue injury to back affecting back, neck, right shoulder and arm”.
(T19)
15. Dr Churchward issued 2 further “Progress/Fitness Medical Certificates”, dated 3 May 1996 and 30 May 1996, regarding the applicant’s “low back pain” in which he certified that the applicant was “unfit for normal duties” for the periods 3-24 May and 30 May-20 June 1996, and recommended a continuation of physiotherapy. (T21, T22)
16. Mr P Everard, Physiotherapist, provided 2 reports dated 1 July 1996 and 17 July 1996 to Dr Churchward regarding treatment of the applicant’s “thoracio-lumbar strain” / “thoracic spine strain”. (T23, T24)
17. On 5 August 1996 Dr Churchward issued a further “Progress/Fitness Medical Certificate” regarding the applicant’s “low back pain” in which he certified that the applicant was “unfit for normal duties”, but was “fit for light duties”, and recommended chiropractic therapy. (T25)
18. On 8 August 1996 Mr S Pereira, Chiropractor, issued a “First Treatment Certificate” regarding the applicant in which he stated that his examination findings were “erector spinae myospasm”, “lumbo sacral tenderness” and “biomechanical dysfunction of lumbo sacral joint” and gave a provisional diagnosis of “chronic lumbo sacral strain”. (T26)
19. An x-ray report, dated 21 August 1996, of the applicant’s thoracic spine and cervical spine revealed “mild spondylotic change in the lower cervical segments” and “no paravertebral soft tissue abnormality” in respect of the cervical spine, and “no significant degenerative change or evidence of paravertebral soft tissue abnormality” in respect of the thoracic spine. (T28)
20. On 21 October 1996 Dr M Sadka issued a “Progress/Fitness Medical Certificate” regarding the applicant’s “ongoing back pain” in which he certified that the applicant was “unfit for normal duties“ for 4 weeks, and added “as previous”. (T31)
21. On 1 November 1996 Dr P McCarthy, Psychiatrist, certified that the applicant was “medically unfit for work” from 1 November to 15 November 1996. (T32)
22. Mr P Woodland, Orthopaedic Surgeon/Spinal Surgeon, provided a report dated 4 November 1996 regarding the applicant to Dr M Sadka, the applicant’s treating general practitioner. The contents of that report are as follows:
“Thank you very much for asking me to see Mr Sinclair-Jones aged 45 in regard to his continuing difficulties with mid thoracic back pain. Thank you also for your letter and I saw him today, 4 November 1996. I essentially agree with you that this man does have mechanical thoracic back pain with most appropriate treatment being a conservative exercise programme.
Michael told me that he is employed by the Native Title Tribunal, I understand as a Community Liaison Manager and this work does of course involve a fair degree of travelling, both intrastate and interstate in addition to clerical responsibilities. I understand that previously he worked as a Journalist in Perth.
He confirmed to me that on 2 February 1996 he initially injured his back. He told me how he had just flown in from Palm Island, arriving at the Townsville airport in Queensland. He had a lot of luggage with him and had to carry luggage bags across his shoulder the heaviest being across his right shoulder. He walked about 200 metres with the luggage and did notice discomfort but no significant pain at that stage. About one hour later he then boarded the aircraft to fly back to Perth with many stops along the way and it was a very long trip back. He got increasing discomfort in the upper thoracic region, also across the back of the right shoulder.
At home in Perth, he had continuing discomfort and on Tuesday 6 February 1996 at home he woke up with increasingly severe upper thoracic pain at night and actually was taken by ambulance to Royal Perth Hospital residing in Casualty from 2am to 7am at which point he was given analgesic medications and sent home by taxi. He was then reviewed by your colleague, Dr Ian Churchwood (sic), with direct admission to St Annes Hospital, Mt Lawley. He was in hospital for about five days with bedrest, Valium and Pethidine injections in addition to hydrotherapy treatments. He was off work for about two weeks with continuation of physiotherapy and hydrotherapy. He managed to return to full duties but with persisting symptoms.
He took holidays in June but there were significant family traumas I understand that contributed significantly to secondary depression requiring treatment under your care. He also tried chiropractic treatment with some slight improvement and in recent months has been persevering with an exercise programme including swimming and he certainly is much fitter and stronger but is still troubled by interscapular pain. He did mention that earlier he had a combination of thoracic and lumbar back pain but the pain seems to have localised to the interscapular region. I understand that he has not worked for about two weeks on account of increased symptoms.
On specific questioning there had been previous injuries and in the 1980s there was a lifting injury with a short time off work and again in about 1990 he was lifting a rabbit cage at home when he got lumbar back pain requiring him to be off work for about one week. Certainly I would not consider these injuries significant and he said that prior to the injury earlier this year he had not had significant back pain.
On examination I found him to be a very genuine man of lean build, reasonably fit looking although his erector spinal muscle tone could be improved. His standing posture was satisfactory, possibly with very slightly increased thoracic kyphosis. He located his pain to approximately the T6/7 level and there was some degree of tenderness in the mid line but no muscle spasm. He had a full range of lumbar spine flexion and extension and his thoracic spine rotation movements were 60° bilaterally without pain. His lower limb neurology was entirely normal.
I reviewed his x-rays, including;
Thoracic spine, 22.8.1996; These do not show obvious abnormality.
Cervical spine, 22.8.1996; Show longstanding relatively minor lower thoracic degenerative change.
Lumbar spine CT scan, 13.2.1996; No obvious abnormality.
I do feel that his pain is mechanical and there doesn’t seem to be any other features of more sinister condition such as spondylarthropathy. I note his blood parameters including B27 have been normal. It would appear that he has sustained mid thoracic sprain such as facet join sprain and in my experience these pain symptoms are quite resistant to treatment but I would hope and expect that with time symptoms will slowly improve. He could be further investigated with MRI scan to exclude thoracic disc protrusion although I think this would be very unlikely and would not affect management. Likewise facet joint injections could be tried but again I personally would prefer him to be involved with some type of specific exercise programme such as using a lightweight programme to strengthen the upper body and thoracic spine musculature.
I have in fact suggested that he see a physiotherapist specifically in regard to a supervised weights exercise programme but you may in fact have made your own arrangements.
…”.
(T33)
23. Dr M Sadka provided a report dated 12 November 1996 to the respondent as follows:
“As you are aware Mr. Sinclair-Jones has suffered from ongoing neck, thoracic, lumbar pain, since 02.02.96. He reported that these symptoms developed carrying awkward and heavy luggage in the course of his responsibilities as a community liaison manager for the National Native Title Tribunal. He developed initially lower back discomfort which then over the next 3 to 4 days increased in severity to involve most of his back. The pain was so severe that some time later he ultimately had to present to the local emergency centre and was finally admitted to St. Annes Private Hospital for between 5 and 6 days for appropriate treatment. Since then his treatment has included relative rest, physiotherapy, hydrotherapy, TENS machine, pain relief and Valium.
He first presented to me on the 08.08.96 quite miserable and depressed. He had felt that his pain had reached a plateau. Although variable, the pain was ongoing and appeared not to be resolving. He localised his pain to below and between his shoulder blades with stiffness and aching in his lumbar spine and neck. There was no radicular nature to his symptoms and there were no symptoms referable to his bowels or bladder. He was despondent, fed up, frustrated and angry. He reported that he had commenced seeing a chiropractor for approximately one week. Examination at that time revealed reduced range of movement in all directions of his thoraco lumbar and cervical spine. He was tender diffusely over much of his spinal musculature but particularly tender over C4/5, T10-12 and L3/4. Straight leg raising was limited to 70º by tight hamstrings but sciatic stretch test was negative and neurological examination was otherwise normal.
Mr Sinclair-Jones was seen again fairly soon after and it was decided that he should rest with approximately one week of work. He should employ general measures with heat, massage, care with posture and lifting and be engaged in sensible exercise to maintain his physical fitness and back strength and mobility. Xrays of his neck and thoracic spine were performed. He was reviewed again on the 27.08.96. He felt that his back had significantly improved compared with the level of pain he was experiencing on 08.08.96. He felt that the chiropractor had made a significant difference with reduction in pain and increase in mobility. At this time, he felt less miserable and despondent, felt he was not depressed and at this time certainly felt more optimistic. It was suggested that he return to work on Monday 02.09.96 with appropriate self management measures, light duties and chiropractic treatment. On 15.09.96 he was again reviewed with a minor exacerbation of his pain. He was encouraged to continue with the current course of management.
He has again been reviewed on several occasions, most recently 21.10.96. During the period of the last several weeks Mr. Sinclair-Jones had become increasingly more depressed resulting in referral to a Psychiatrist, medication and psychotherapy being necessary. Factors involved in his depression include his ongoing back pain, certain difficulties at work and the recent loss of his mother who died after a long illness. Factors most important in the significant deterioration such that he required treatment and time off work were certain considerable traumatic family problems.
When most recently seen both his back pain and his depression were improving with the treatment instituted. He had also been referred for specialist review to orthopaedic surgeon Mr. Peter Woodland (back specialist).
In summary Mr. Sinclair-Jones has been attending this surgery on regular occasions since the onset of his back pain. At present his management should be sensible self management measures such as attention to posture, not sitting for long periods, refraining from heavy lifting or recurrent bending, back and neck mobility exercises in particular and exercise in general of a sensible nature. He should be able to use non-steroidal anti-inflammatories and analgesia in limited fashion when necessary. In the light of the benefits he is experiencing from his chiropractic treatment I believe that this should continue at least in the short term. An opinion should be sought also from Mr Peter Woodland (back specialist). He is also receiving ongoing treatment for his depression.”
(T35)
24. Dr M Sadka provided a further report dated 29 May 1997 to the respondent as follows:
“Thank you for your letter dated the 16th May 1997 requesting further information with regards to Mr Sinclair-Jones’ back injury.
Since my last report to you dated the 12/11/1996, Mr Sinclair-Jones has been seen on regular occasions at this surgery. He reported that his back pain was variable albeit improved. He still felt some residual discomfort and stiffness particularly of the intra thoracic region. He was swimming as much as possible and felt much less oppressive pain. He had also been doing some yoga. He had been reviewed by Peter Woodland who felt that he had probably had thoracic facet joint pain and suggested a referral to Mark Rodwell Physiotherapist for a formalised exercise program. This was more convenient to Mr Sinclair-Jones in view of the fact that it was closer to his work.
On the last review specifically with regards to his back problem on 21/04/1997, he reported that his pain was mostly low level, central thoracic grade 1-3 out 10. He also reported that he was occasionally stiff in the lower part of his spine. However he found his symptoms problematic if he does any lifting such as his children. He did no gardening and no recreative sport save swimming and cycling. He was working fulltime at that stage approximately 40 hours per week but with ‘amended duties’. He reported that he was receiving physio approximately three times a week since November at a time when he had ceased Chiropractic therapy.
In the light of this I recommended to Mr Sinclair-Jones, after a phone call discussing his problem with Mr Rodwell, that his physio should continue for approximately one further month. It was important that it included an exercise program, and that he should be encouraged to pursue this as much as possible. If at that time there had been no significant shift in his residual symptoms a referral to Geoffrey Gee should be considered.”
(T41)
25. Mr P Woodland provided a report dated 3 July 1997 to the respondent as follows:
“Thank you for your letter dated 27 May 1997 requesting a medical report in relation to Mr Sinclair-Jones. I can confirm that I saw him again today, 3 July 1997, at the request of his treating General Practitioner, Dr Michael Sadka. I note that your office has a copy of my initial letter addressed to Dr Sadka, dated 4 November 1996, which is self-explanatory.
To summarise, this man, who is employed by the Native Title Tribunal as a Community Liaison Manager, injured his back on 2 February 1996 when on a work-related trip to Queensland. He had just arrived at the Townsville airport, had a lot of luggage to carry, including carrying luggage bags over his right shoulder. After walking about 200 metres he noticed increasing pain in the upper thoracic region, also across both shoulders. On boarding a plane and flying back to Perth, he had increasing upper thoracic pain, also radiating to the right shoulder mainly. He actually presented to Royal Perth Hospital back in Perth on 6 February 1996 and then was admitted to St Anne’s Hospital Mt Lawley for rest and pain relief. He had about two weeks off work initially with treatments including physiotherapy and hydrotherapy.
When I saw him in November 1996, he had taken two weeks off work because of increased symptoms but told me on review today, 3 July 1997, that he had returned to work in about December 1996 and now continues to work full time. I understand that his work environment has changed with a more structured organisation and his work stress has been reduced. Since last review, he has had further physiotherapy treatments, possibly with some improvement but he continues to complain of interscapular thoracic pain. He also has been involved with a home exercise programme and in addition meditation and Yoga. All these treatment modalities appear to have improved his pain although he still certainly does have symptoms. There is no sleep disturbance, he has no particular difficulty sitting and he can stand and walk for prolonged periods. However increased activities will worsen his upper thoracic pain.
He is not able to carry out many household duties such as gardening and is not able to lift weights and lift up his young children because of symptom aggravation. He takes the anti-inflammatory medication Voltaren most days but avoids analgesic medications. On examination, once again I found him to be a very pleasant, genuine man of fairly lean build with good posture and physique although again his erector spinae muscle pain could improved. There was localisation of his pain and tenderness to the T6/7 level approximately but with no muscle spasm. He had a good range of thoracolumbar movement with fingertips reaching the mid shins on forward flexion. He had a full range of upper limb movement with normal upper limb neurology. In the sitting position he had satisfactory thoracic trunk rotation to 60° bilaterally.
This man has not had further x-rays or scans since I last saw him. Previous thoracic spine x-rays, 22 August 1996 have not shown obvious abnormality.
In answer to your specific questions;
1.Diagnosis: My provisional diagnosis is that of mid thoracic soft-tissue injury, probably comprising facet joint sprain. There are no clinical features to suggest more serious injury such as disc injury.
2.Is Mr Sinclair-Jones’ current condition totally attributable to the work-related incident? From Mr Sinclair-Jones’ account of events it would appear that there was a definite incident, 2 February 1996. I understand that at that time he was under the employ of National Native Title Tribunal. I am not aware of any other incidents or injuries responsible for symptoms.
On specific questioning, this man has indicated to me that he has had previous minor spinal injuries; in the 1980s he had a lifting injury with a short time off work and in about 1990 he was lifting a rabbit cage at home when he got lumbar back pain requiring him to be off work for about one week. I would not consider these injuries to be significant and this man has told me again that in the years immediately prior to the incident, 2 February 1996, he had not had significant back pain of any type.
With diagnosis of soft tissue injury/facet joint sprain, I would expect that symptoms would slowly settle and indeed this appears to have occurred although he still does remain symptomatic. In summary, I am obliged to say that his current condition is largely attributed to the work related incident in February 1996. There does not appear to be any significant underlying degenerative or inflammatory disorder on his various x-rays and tests.
3.Pre-existing condition: As above, I am not aware of any pre-existing conditions contributing towards his current condition. I am aware that this man was exposed to considerable work pressures last year and also there were significant events in his family which contributed to depression, requiring treatment. It is possible that these other factors exacerbated and prolonged recovery in regard to his spinal pain but I would still take the view that there has been a definite physical component to his continuing symptoms.
4.Restrictions when undertaking employment duties: This man currently works full time without obvious impairment in regard to his duties. I understand that he no longer travels intra and interstate. I general terms he should not be involved in repetitive lifting and bending but obviously this does not apply to his employment duties at this stage.
5.Future treatment/therapy required: This man has had previous physiotherapy and chiropractic treatment for his thoracic pain but with continuing symptoms. I understand that these treatments did improve symptoms initially but symptoms then plateaued without further improvement over the last few months. I personally believe that ‘active’ self-motivated exercise programmes are more important than ‘passive’ treatments from practitioners.
I do in fact believe he would be suitable for a supervised exercise programme as such offered by appropriate Pain Clinics in Perth. I do not think that there is any place for invasive treatments such as surgery or injections. I have actually organised for this man to be assessed in one such Clinic, pending of course funding approval. I certainly do not think it appropriate that this man receive continuous, long term treatment of any type as I would expect that with an appropriate self-motivated exercise programme, symptoms will slowly settle.
6.Expectation of duration of symptoms: It is difficult to say but certainly since last review in November 1996 his symptoms have settled slightly and as I had initially predicted, with time symptoms should continue to improve. It is possible that in the long term he may have residual, relatively minor symptoms.”
(T43)
26. Dr G Gee, Consultant in Pain Management, provided a report dated 26 September 1997 to Mr P Woodland as follows:
“Thank you for referring Mr Sinclair-Jones who attended for a consultation on 24 September. He complains of central dorsal pain with a dull ache across the upper dorsal region. His symptoms are increased by lifting, or sleeping in a flexed position. He states that his symptoms appeared to be easing with stretching. He was swimming, but has found that difficult to fit into his program recently.
He states that he sustained injury on 2 February 1996 when he was carrying luggage. Three days later he developed quite significant spasm with pain. His management has included initially a period in hospital, and then hydrotherapy, physiotherapy, and chiropractic management. He has used non-steroidals with a cover from Zantac. He has made a good commitment to exercise, but doesn’t seem to improve the strength in the dorsal region.
In assessing his health he is clear to acknowledge the presence of depression. I note he is seeing Peter McCarthy for psychiatric treatment, and Dr David Malcolm for counselling. It appears that Mr Malcolm got him motivated to exercise but does not seem to have addressed some of the underlying issues.
Otherwise his health is pretty good. He has some problems with hay fever. He has no significant surgery. He is a non smoker. His sleep is variable. He often feels that he never gets enough sleep.
In assessing his understanding he does not know why he is experiencing his pain. He has significant concerns that he won’t be able to do his job properly and this is leading to a level of insecurity. I note that there have been a number of background issues that are influencing his outcome.
Clinically he seems healthy. I noted tenderness through the cervical muscles, with particular reference to the trapezius and levator scapulae. This muscle tenderness was also noted at the elbows over the extensor and flexor muscles. In the dorsal spine there is no central tenderness, but there is certainly paraspinal muscle tenderness, which is over the area of longissimus and iliocostalis. In fact these muscles are quite tender to palpation.
Mr Sinclair-Jones has a really good range of cervical, dorsal, and lumbar movement. There is no indication of any neurological abnormalities in these regions.
While I acknowledge the process of injury has started his symptoms, there are other factors that are helping to maintain this. There are clearly issues in relationship to the work demands, and I think he would benefit from some further counselling from Chris Semmens to assess the capacity to improve this area. I also believe that Mr Sinclair-Jones would benefit from a consultation with Mr Michael Ponchard to assess his exercise program and see whether he needs to do anything more involved.”
(T46)
27. On 7 November 1997 Dr Gee reported to Mr Woodland as follows:
“Mr Sinclair-Jones was reviewed on 6 November. He is only now able to start looking at undertaking the physical training program with Michael Ponchard. He has clearly had benefit through his counselling with Chris Semmens.
At this stage I would like Mr Sinclair-Jones to get his physical training program underway, and I will review him in January.”
(T47) On 27 January 1998 Dr Gee reported briefly to Mr Woodland on the applicant’s progress with his exercise program. (T48) A detailed report on that program was provided to the respondent by Mr M Ponchard, Exercise Physiologist, on 5 March 1998. (T49)
28. Dr Gee provided a further report dated 22 December 1998 to Mr Woodland as follows:
“Mr Sinclair-Jones was reviewed on 17 December 1998 with a recent aggravation while travelling and carrying luggage. Fortunately, his symptoms are settling with time. I note that he continues using the gym, is swimming, and more recently is using a kayak for paddling – which seems to assist him in controlling his symptoms.
Clinically, he is very tight through the trapezius and has a lot of paraspinal muscle tenderness. Apart from this, I don’t believe there are any specific abnormalities.”
(T52)
29. On 7 January 1999 and 14 January 1999 Dr Sadka issued “Progress/Fitness Medical Certificates” in respect of the applicant’s “ongoing thoracic back pain”, noting that the applicant had suffered an “exacerbation” of this condition on 3 December 1998 and certifying that he was “totally unfit” until 20 January 1999. (T54, T59)
30. A report by Dr G Bower, dated 22 January 1999, on the results of a Dynamic Localised Bone Scan with Tomography regarding the applicant’s thoracic spine concluded as follows:
“Despite symptoms in the upper thoracic spine, the dominant changes are present at T9 level. While these may be associated with an inflammatory underlying condition, previous trauma could have produced the changes in the vertebral bodies. The normal haematologic parameters argue somewhat against an inflammatory basis also.”
(T61)
31. On 4 February 1999 Dr Gee reported to Dr Sadka as follows:
“I reviewed Mr Sinclair-Jones on 25 January 1999. I note that he is returning to work with phased in light duties. His bone scan shows changes at T8-9 and T11-12 although there is not a good clinical correspondence with these changes.
His examination revealed continuing tenderness and spasm through the right paraspinal muscles.
I cannot see any need for invasive treatment. I note that he is due to have a review with Peter Woodland in late February 1999. I will see whether we can arrange for him to have further exercise routines.”
(T68)
32. On 22 January 1999 Dr Sadka issued a “Progress/Fitness Medical Certificate” regarding the applicant’s “ongoing thoracic back pain” in which he certified that the applicant was “unfit for normal duties” for 8 weeks and referred to a Rehabilitation/Return to Work Program, as discussed with H Brandis, which he described as “acceptable”. (T62)
33. On 27 January 1999 the applicant commenced a Graduated Return to Work Programme, prepared by Ms H Brandis, Senior Occupational Therapist, “Work-Link” Occupational Health and Rehabilitation Service, at the NNTT. (T67) That programme was subsequently varied, in accordance with advice from Dr Sadka and a fresh 10-week programme was prepared by Ms Brandis, with a commencement date of 10 March 1999. (T84)
34. Meanwhile, Ms Brandis had requested that a psychological report regarding the applicant be prepared by Mr B White, Clinical Psychologist, and that a further report be prepared by Mr P Woodland, Orthopaedic Surgeon/Spinal Surgeon.
35. Mr B White provided a report, dated 26 February 1999, to Ms Brandis in which he expressed the following opinion:
“Mr Sinclair-Jones feels caught in a bind. If he becomes physically well and more able, he is expected to return to what he perceives as a very stressful job – one that is difficult for him, and from which he is tiring. If he remains in pain and disabled, he doesn’t have to return to work, but he perceives his opportunities to find an alternative career or job are limited. He carries within him a lot of the stresses and pressures from his job. It is my opinion, they are impacting upon his physical state, but he doesn’t see it as clearly as this. I expect his doctors are somewhat puzzled by the extent and length of his disablement in terms of identifying clear pathophysiological causes.
I believe he would benefit from psychological therapy, but his is not so keen on this at the moment. He indicated the main reason for coming to see me was for me to write a report for various parties to understand his situation, rather than receive psychological assistance. I spoke to him about some of the strategies that could be employed to reduce his stress and improve his coping abilities, and I invited him to get in touch with me if I could help out.” (original emphasis)
(T77)
36. Mr P Woodland provided a report, dated 26 February 1999, to Ms Brandis as follows:
“Thank you for your letter dated 25 February 1999 requesting a medical report in relation to Mr Sinclair-Jones. I can confirm that I saw him in my rooms today, 26 February 1999. I initially saw him 4 November 1996 and had reviewed him 3 July 1997. At last review I noted that he had returned to work with the Native Title Tribunal and at that time he was working full time but with modifications to his work environment which obviously had been quite stressful.
I had referred this man to Dr Geoff Gee, Cambridge Pain Management Centre in September 1997 and he had undergone a three month exercise programme including gymnasium work and he also had undergone clinical psychologist assessment (Mr Christopher Semmens). This programme certainly improved his general fitness but Mr Sinclair-Jones told me that he did not think that his upper thoracic pain, had significantly been improved. Nonetheless this man had returned to full time duties again and he told me that his after hours social life had been significantly affected by his symptoms.
On about 5 December 1998 there was aggravation of his symptoms when he had travelled to Melbourne by plane in the course of his work. He was in the Melbourne office and he lifted up his travel bag which weighed 5kg to 6 kg, as he lifted the bag across over his right shoulder he got severe mid to upper thoracic pain. He had to stop working and I understand in about the second week of January 1999 he attempted returning to work but lasted three days then had to stop because of increased thoracic pain again.
I understand that in early February 1999, that is approximately three weeks ago, he returned to work, averaging four hour per day, five days per week, but with about one day off each week, due to reported increase in symptoms, according to your letter. I understand in fact that within the last week, his work hours have been reduced to three hours per day, five days per week on account of increased symptoms. I note that you have referred this man to Mr B White, Clinical Psychologist, seen 25 February 1999. Mr Sinclair-Jones told me that this consultation was helpful with identification of underlying stresses, particularly in regard to this man’s inability to enjoy his leisure hours and relax on account of his symptoms.
Michael reported continuing variable pain in the mid to upper thoracic spine region with radiation to both shoulders but not associated with upper or lower limb neurological symptoms. Symptoms are present every day but are variable.
There is definite increase in symptoms with increased activities. He reported sleep disturbance on account of his pain. He reported difficulty sitting for a prolonged period of time, particularly at his office desk and at a computer station. He was a little more comfortable keeping mobile but if he walked on a hard or uneven surface he would have increased symptoms. He avoided medications but limited this to taking Panadol and taking anti-inflammatory medications from time to time. He had not had any invasive treatments such as injections.
On examination today, this man has obviously increased his muscle bulk and strength on account of his intensive exercise programme last year and he has also been swimming regularly with a daily stretching exercise programme. He walked and moved reasonably freely without obvious limp with a reasonable standing posture. He reported pain with tenderness from approximately the T4 to T8 levels but there was no muscle spasm. There was tenderness in the erector spinae musculature over those levels. He maintained a reasonable range of thoracolumbar movement with fingertips reaching the lower third shins on forward flexion and extension was near full. In the sitting position there was moderate restriction of trunk rotation, particularly at the left which was reduced to 45° and on the right side 60°. Upper and lower limb neurology was normal.
Previous plain x-rays have not shown obvious abnormality. Technetium bone scan 22 January 1999 has shown some increased uptake in the vertebral body of T9 and to a lesser extent at the left T8/9 facet joint level with some changes also on the right side at that level. There was increased uptake in the left T11/12 facet joint level. These changes were non-specific. MRI scan showed minor disc degenerative change at the T9/10 level but no other untoward feature.
I note that Dr Sadka, General Practitioner, has carried out various blood tests including those for ankylosing spondylitis conditions and these were reported as being normal.
In answer to the specific questions in your letter,
1. Diagnosis:
I would not modify my previous opinion – mid thoracic soft tissue injury, probably comprising facet joint sprain. The symptoms are persisting longer than I would normally expect, taking into account the initial mechanism of injury, but I have looked after other patients with continuing thoracic symptoms, despite various treatments. It has to be said that this man’s symptoms have persisted with significance for approximately three years. Symptoms persist for whatever reason. Based on Mr Sinclair-Jones’ account of events it would be unlikely that symptoms will dramatically improve in the near future.
The long term prognosis is reasonable with expectation that over the years symptoms will improve. It is possible that he may be left with residual, relatively minor symptoms in the long term.
2. Capacity to return to full time preinjury duties:
This man obviously has demonstrated that he has the capacity to return to full time employment prior to the aggravation of symptoms in December 1998. As I have indicated previously it appears to me that there are other significant factors affecting this man’s ability to work. I understand that his work environment has been quite stressful and busy. I personally feel that if he found himself in an easier and less stressful work environment which he enjoyed, he probably would have the ability to work full time from now.
From a physical point of view he does have the ability to work full time in office/sedentary type work but I accept that he does have ongoing symptoms and this is affecting his family and leisure activities. I would take the view that he should try to keep in the work force, hopefully getting back up to four hours per day, five days per week over the next few weeks and I would think that he could then progressively increase his work hours to full time. Ideally, as mentioned, his work environment should be changed.
It is essential also in my opinion that he continue with some type of regular exercise programme to maintain general fitness, spinal mobility and muscle strength. He should not be expected to lift weights greater than 5 kgs as obviously with relatively trivial lifting manoeuvres he is at risk of reinjury according to his account of events.
3. Recommendations in regard to graduated return to work programme: Outline in Question 2.
In regard to treatment, I would not change my previous view that he should continue with conservative exercise based treatment and I do not think that he would benefit at all from any type of invasive treatment.”
(T78)
37. Mr Woodland also provided a report, dated 26 February 1999, to Dr Sadka as follows:
“Thank you for your letter and recent telephone discussion concerning Michael Sinclair-Jones. I saw him today, 26 February 1999. I note that this man had a recurrence/aggravation of his mid to upper thoracic symptoms in early December 1998 when he was in Melbourne. He was lifting up a travel bag to place it across his right shoulder when he got quite severe pain. He could not continue working and there was a failed return to work attempt in the second week of January 1999. He recommenced work again in early February 1999 and at this time is working three hours per day, five days per week.
I note the more recent investigations including thoracic spine MRI scan also technetium bone scan have not shown obvious abnormality apart from some disc degenerative changes at the T9/10 level also increased isotope uptake at the T8/9 level which of course is lower down compared to his mid to upper thoracic symptoms.
On examination he is certainly fitter and stronger than when I last saw him. He still localises his pain with tenderness in the region of the T4-T8 but his upper and lower limb neurology is normal. He has a good range of thoracolumbar movement apart from reduced thoracic rotation, 45° on the left 60° on the right.
We discussed possible treatments for his symptoms and essentially I would not modify any of my previous views; I feel he should continue conservatively with an ongoing self-motivated exercise programme. He felt that recent kayaking was strengthening and improving his thoracic symptoms and it reinforces my opinion that a self-motivated exercise programme is most appropriate for him. I also told him that there is no reason why symptoms would persist or worsen. Symptoms have now continued for over three years with the recent aggravation. I doubt if symptoms will dramatically improve in the near future but with time I am sure symptoms will settle.
I agree that invasive treatments would be unlikely to help matters and I personally do not think that rheumatology assessment would shed further light or be of help; he has excluded obvious underlying spondylarthropathy or inflammatory condition and one has to assume his continuing symptoms relate to the initial incident 2 February 1996.
The diagnosis therefore presumably is that of mid thoracic soft tissue injury, probably comprising facet joint sprain. I could not be more specific. I have written a report for WorkLink indicating generally that he could progressively increase his work hours to achieve full time employment as he did prior to December 1998. I have also indicated that ideally he should be transferred to another work environment as I believe work stresses are a major factor with this man.”
(T79)
38. On 23 March 1999 Dr Sadka issued a “Progress/Fitness Medical Certificate” regarding the applicant’s “ongoing thoracic back pain” in which he certified that the applicant was “unfit for normal duties” for 4 weeks and recommended that he continue with sedentary duties 4 hours per day, 5 days per week. (T87) The applicant’s Graduated Return to Work Programme was amended accordingly. (T93)
39. Dr Sadka issued 2 further “Progress/Fitness Medical Certificates” on 19 April 1999 and 3 May 1999 regarding the applicant’s “ongoing thoracic back pain” in which he certified that the applicant was “unfit for normal duties” until 30 May 1999 and recommended that he continue working 4 hours per day. (T100, T101)
40. On 21 May 1999 Dr Gee reported to Dr Sadka as follows:
“Mr Sinclair- Jones was reviewed on 17 May. He states that he is managing to work four hours, five days per week, continues to have massage once per week, and maintains his exercise. He had planned to be in full-time work, but feels that his symptoms are not allowing that to happen. I note he has had a recent review with Mr Woodland who has noted that stresses at work are not assisting Mr Sinclair-Jones in managing his symptoms. It does appear that this is becoming an issue, and I note he has been referred to Barry White a Clinical Psychologist, to discuss these issues. He is apparently also having difficulties on the home front and I am sure Barry White will be able to assist in this area.
As I have indicated in my previous letters, I feel it is a little difficult to be precise as to what is causing Mr Sinclair-Jones’ severe ongoing symptoms. I noted the changes in the bone scan, which I did not feel correlated well with the site of this clinical symptoms.
At this stage I think the appropriate thing for Mr Sinclair-Jones is to continue his counselling with Barry White and maintain his exercise routines.”
(T107)
41. In response to a request from the respondent, the applicant was examined by Dr A Home, Consultant in Occupational Medicine, who provided a report dated 29 June 1999 to the respondent as follows:
“Thank you for asking me to see Mr Sinclair-Jones who attended on 28 June 1999 as requested.
I have reviewed a large number of medical and other reports attached to your letter and further information made available by his accredited rehabilitation provider WorkLink. I note all of the medical certificates, medical reports, psychologist’s report, rehabilitation reports, a chronology and case summary and further job-related information.
History
Mr Sinclair-Jones reports that he sustained injury to his upper and lower back in a workplace incident on 2 February 1996. He tells me that he was carrying his luggage within the Townsville Airport when he experienced mild discomfort in his back. He said that he felt uncomfortable on the flight home but ‘did not think much more of it’. He says that he travelled 14 hours by air to return home to Perth. He tells me that on his return to Perth he attended the casualty department of Royal Perth Hospital. He was in quite a lot of pain at that time and was provided with some type of injection and after several hours he was sent home.
He recalls that he saw his general practitioner soon after that, who arranged admission to Mercy Hospital over a period of several days. I note from the attached documents that this admission was between 13 and 17 February 1996.
I note that diagnostic investigations with radiographs and CT scans of the lumbar spine demonstrated no specific abnormality.
He recalls that symptoms began to localise to the mid thoracic area over the next month or so. He did not lose much in the way of time form his work, that is, he returned to his normal work in community liaison with the Native Title Tribunal. He recalls that over the next six months he was attending physiotherapy at Mercy Hospital and also hydrotherapy and massage sessions when in Perth.
He confirms that he did suffer a mild exacerbation of complaints around three days prior to a planned holiday in July 1996. He was attending a team building exercise at Joondalup. This involved some physical activity such as climbing ropes and passing though an obstacle course. He says that he did not undertake all of the required activities. He experienced an increase of pain leading into his holidays.
He adds that he feels he has never ‘recovered fully’ since the onset of his complaints in February 1996.
Mr Sinclair-Jones confirms that around August 1996 his mother died of cancer. He says that there were several other stressful ‘traumatic events’ relating to his family and seeking clarification of this they seemed to relate to disputes regarding his mother’s care. He adds that he was also feeling rather sore in his back at the time.
He confirms that he was diagnosed as suffering major depression and certified off work for three or four months. He came under the care of psychiatrist Peter McCarthy and a psychologist Mr Malcolm. He recalls treatment with Aurorix and anti–depressant medication. He tells me that he discontinued the medication in December as he had received some counselling and also undertaken some self directed research into the effects of chemicals. He says that he did suffer physical withdrawal symptoms over three days after ceasing that medication.
He recalls that his psychologist did give him some useful advice about his back and this included advice to undertake freestyle swimming on a regular basis. He has continued freestyle swimming, including the use of a snorkel to avoid excessive at least twice each week. He swims 600m freestyle over approximately half an hour, then undertaking hydrotherapy exercises in the pool.
He says that he and his wife separated in December 1996 and reunited in June 1997. He believes that his back complaints have caused some difficulty with certain aspects of his home life including his capacity to undertake heavy domestic chores and to play with his children.
He tells me that during 1997 he returned to special projects duties, this largely involving the creation of an Intranet site and later in 1997 writing a comprehensive compendium of information regarding the Native Title legislation.
He says that around October 1997 the media officer at the NTT resigned and he took over that job and he continued that until May 1998. He recalls that he was working as a manager in media liaison and also did some fall back work in the publication area of the CAMS work.
He says that from May 1998 he took on fulltime work as a manager of CAMS. He says that this corresponded with the passing of new Native Title legislation. He tells me that he was involved in developing a raft of new publications and interpreting legal terminology into layman’s terms for various stakeholders. He tells me that he was also involved in developing a further national information kit and his work took him to tour various regional centres.
He says that Comcare had funded a three month gymnasium membership commencing around July 1998. Additionally he was undertaking swimming and yoga meditation. He tells me he was ‘just managing’ his work although he felt that his home life had been affected.
In clarifying his management responsibilities at the time, he replied that he had one staff member in Brisbane, Sydney, Melbourne and an administration staff member and two senior officers in Perth, also three administration support individuals in Perth.
He says that he was becoming rather ‘burnt out’ in November 1998 and decided to take a month off on accrued annual leave. He says that on the first day of his holiday the boss rang up and asked him to come back as his 2IC had suffered some heart problems. He said that he felt under pressure to return to work during his holidays but did not do so.
He did return to work in early December as planned. His first trip, on 3rd December 1998, involved flying to Canberra to complete the Local Government publication (for the Australian Local Government Association). He stopped off in Melbourne to see one of his support officers. He says that he usually transported his luggage by trolley but there was no ramp leading into the office. On leaving the office he lifted his bag from a table and experienced a little pain in the upper back. He said this was ‘niggling’ at first however after he flew to Canberra he was unable to shake the pain. He says that the next day he experienced further discomfort and by the time he returned to Perth his pain had increased.
On the Friday he rested but was very stiff. He attended the doctor, as far as he can recall, on the Monday and by that time his back was extremely stiff. He says that he was certified off work at that time. He attempted to return to work just prior to Christmas holidays but was not able to manage it. It was then decided that he should wait until after Christmas. He did return to work briefly but experienced further aggravation of back pain. He tells me that at that stage he asked for further tests to be undertaken.
I note that around that time technetium bone scan and MRI scans of the lumbar spine were performed (see below).
Mr Sinclair-Jones confirms that he was seen by a rehabilitation provider at WorkLink.
He tells me that he was advised to seek a psychological assessment and he was sent to Barry White by Heidi Brandis from Work Link. Mr Sinclair-Jones tells me that he has more recently seen Mr White for further counselling.
I do note the report from Mr White with some interest.
Mr Sinclair-Jones also recalls that he saw Mr Woodland again in February 1999. He states that Mr Woodland was rather vague about the prognosis.
I note the diagnosis of mid-thoracic soft tissue injury and advice to continue exercise.
He has attended Cambridge Pain Management for massage therapy over three periods since mid 1998.
He says that he applies heat in the form of a hot shower frequently and also attends a spa whilst at the hydrotherapy pool.
He tells me that he currently takes Feldene along with Zantac two or three days per fortnight, sometimes not for two or three weeks and then for four days in a row. He takes Panadeine Forte and Panadeine combined in a similar fashion and with similar frequency.
Rehabilitation
He recalls a number of ‘false starts’ to return to work between January and March 1999. Since March he has attended on most occasions 4 hours per day although now is up to 5 hours every day.
He tells me that he is currently undertaking restricted duties. He says that during this year he has completed an all day Native Title Tribunal funding programme for indigenous people. He says that he was running a four day half day course on three occasions. He says that he has also designed an Intranet package and is involved in some research. He says at times he has given some advice regarding the preparation of publications.
He confirms that his current work is rather sedentary, mostly computer-based apart from training work which is performed in a standing position. He is not undertaking much writing or editing this year.
He says that last week he did attend a two-day full time work training course however experienced aggravation of back pain and was off for three days. He tells me that he was due to commence a six week period of annual leave at the end of this week.
Current Symptoms
Mr Sinclair-Jones reports ongoing pain as a constant mild ache, occasionally moderate in severity, around the T7 level. The pain is sometimes higher than that and on occasion lower.
He says that quite frequently he experiences right paravertebral pain around T12 (indicated) and extending across the lower edge of the scapula, occasional discomfort radiating down into the lower back and occasionally up to the neck and across the shoulders.
He says that symptoms are eased by sitting forward in a crouching position with his spine flexed. On occasion he is more comfortable flexing his right hip whilst seated.
He says that he has trouble walking at a normal speed and particularly up hills, less problematic down hills. He finds steps okay. He avoids bending at the waist.
He says that he avoids heavy lifting. He claims that he does not lift anything much more than 2 kgs and sometimes has trouble with even that.
Comment:I did note that his bag today weighed more than 2 kgs and I judged this to be around the 5 kg mark.
He is not undertaking any of the heavier domestic chores such as vacuuming, scrubbing, mopping or sweeping.
He says that he is undertaking some light domestic chores such as occasional cooking, washing dishes. He avoids lifting heavy pots but does have to do that sometimes. He does perform ironing. He says that he does undertake occasional light shopping but avoids the main grocery shop. On occasion he potters around the garden with a trowel. He avoids weeding or pruning.
He explains that he and his wife have four children aged between 4 and 15. He does not lift his 6 year old son. He does lift his 4 year old daughter on occasion ‘when absolutely necessary’.
He tells me that his wife works and has active interests that take her away from home in the evening at times and there is problem with child care at times.
He states that prior to his accident he was very active. He says that he often undertook physical activity as a way of relieving stress. This included bush walking and climbing. He also enjoyed making pergolas. He says that he did manage to continue the use of a canoe until late 1998. He says that at that stage he found the lifting of the canoe was outside of his capacity.
Past Medical History
There is a past history of back pain occurring with a lifting injury. He recalls that he was experiencing sharp right-sided low lumbar pain for approximately one week after he lifted a rabbit hutch many years ago.
He recalls in 1984 he suffered ‘RSI’ of the right arm above the elbow with further pain around the back and dorsum of his right hand. He calls that this all settled within a month after limited physiotherapy and change in his office ergonomics.
He recalls further pain in the right hand occurring in 1995 when undertaking long hours of keyboard work whilst writing an annual report for the NTT.
He denies other medical problems. He is a non-smoker.
Vocational Outlook
I asked Mr Sinclair-Jones about his outlook. He replies ‘this is another issue’.
He says that he had been with the Tribunal for five years. He adds that he believes he has ‘reached his use-by date’. He then claims that he found the (usual) work stressful.
I asked him to explain that. He replies that the Native Title area is controversial.
I asked him if he was involved in conflict or resolution of disputes and he replies in the negative. He says that it is his work to articulate the business of the Tribunal in a way that strikes a chord with the community.
He says that this involves understanding the legislation and the various positions that people hold. He sees it as his role to ‘hose down areas of dispute’. He says that he finds it stressful to ‘always read about the Tribunal in the newspapers’. He felt the Tribunal was often blamed for difficult issues such as delays in development projects. He says that he finds this ‘difficult’ to handle.
He adds that he has perceived new difficulties associated with the new legislation and further constraints. He believes that the whole issue is emotive.
He says that he finds it difficult to remain distant or isolated from controversy surrounding the legislation.
He then adds that he believes it is time for him to ‘move on’.
He states that he was looking for other work last year, that is, in 1998.
He says that he was interested in a position as a media manager of the WA Police Service but applied for the job too late.
I asked him what sort of work he felt he considers himself eligible for. He replies ‘possibly public affairs manager or media manager’ for organisations, perhaps in his old job as a sub-editor with a newspaper. He then added that he does not believe he has the physical capacity to undertake that type of work.
I asked him of his perception of the physical requirements. He replies that he would not be able to undertake keyboard operation for 8 hours in a pressure situation. He says that he also finds it hard to concentrate when he is in a lot of pain.
I asked him if he would be interested in returning to his usual job as a manager of CAMS if his symptoms settle during pending holiday. He replied that he hoped it will make a difference to him.
He is interested in setting up work in a web publishing business and he then adds that this would involve long hours on the computer and he does not believe that he is physically capable of undertaking that type of project work.
I asked him if he felt he was able to return to his old job, given that this involves a variety of tasks.
I asked him if he was aware of any change to the structure of his department. He replies that he is aware that the Tribunal had employed a writer and so he would not be required to undertake quite as much keyboard work. He believes this would be helpful.
However he then reiterated that he wants to move on. He says that he is ‘burnt out’ and feels that he is ‘stressed’ in this whole Native Title area.
He then added that he did not see the public service as being a lifetime career, that he felt this was a temporary situation. He had intended to move on after five years anyway.
He then added that he ‘doesn’t feel that he is trapped at all’.
Comment: I presume this is a response to the comments of Mr White.
He then added that he feels ‘a bit depressed’ about work and the fact that he is stuck at home, that he has pain and he has various flare-ups of his symptoms.
He does not like seeing doctors and rehabilitation providers all the time. He then added that as a journalist he enjoyed investigative work obtaining information from various sources. He added that he does not see himself as a manager.
I asked him to expand. He tells me that he was not involved in all of the recruitment in his current department. He believes that some of the other employees were not entirely suitable in their communication roles.
I asked him in general terms about his views of managing staff. He replied that when he was deputy sub-editor at the newspaper he had managed many staff and he does not see management per se as a contra indication to his return to work.
He then added that he does find it more difficult ‘managing within the bureaucracy’ as opposed to his previous work with the newspaper.
Investigations
I reviewed plain radiographs of the cervical spine dated 21 August 1996. These demonstrate disc space narrowing at C4/5, C5/6 and C6/7. There are uncovertebral osteophytes at the C5/6 level bilaterally and minor uncovertebral osteophytes at C6/7 also, more prominent on the right side. I do not believe there is any other significant change here.
Plain radiographs of the thoracic spine of the same date are reported as normal. There is a small anterior osteophyte at T8/9 but no other change.
Plain radiographs of the lumbar spine dated 7 February 1996 are normal. CT scans of lumbar spine demonstrate mild degenerative change in the facet joints at L4/5 and L5/S1. There is no evidence of a significant disc protrusion or nerve root compression at any level.
Technetium bone scan of the thoracic spine dated 22 January 1999 shows increased uptake at the T9 vertebra and possibly at the T8/9 facet joint however in my view these are unlikely to be clinically significant.
There is evidence of degenerative disc disease at T9/10 but no other abnormality on the MRI scan dated 10 February 1999.
Comparing the two scans the degenerative disc disease at T9/10 is likely to be the cause of the increased uptake at the intervertebral body of T9 on the bone scan. This is not clinically relevant.
Examination
Mr Sinclair-Jones is a 48 year old with medium height and thin to medium build, weighing 65 kgs. Mental state examination is normal. He presented with no difficulty with his concentration or his memory during a two-hour history. There was no evidence of disorder of speech. He presents with normal mood and affect, even when discussing past psychological difficulties.
There is a reduced range of flexion to reach fingertips to mid-shins, with the patient reporting a pulling sensation in the mid thoracic region. Extension is full in range without pain. Right and left rotation are reduced and there is greater stiffness moving to the left than the right. Discomfort is also reported with left lateral flexion to half normal range whereas right lateral flexion is normal and pain free.
To palpation there is tenderness localised to T7/8 and this is reproducible. Tenderness is a little more prominent on the left side than the right.
There were no other localising findings.
Assessment
Mr Sinclair-Jones gives a history of fairly constant mid-thoracic discomfort since early 1996. The history today and that outlined in previous medical reports is to suggest initial low back pain, more prominent at the time of his initial presentation, however those symptoms subsequently substantially settled. He is now left with constant mid thoracic pain.
There is a history of symptom aggravation in December 1998.
Judging from the subjective clinical findings I believe that he has sustained a soft tissue injury around the T6/7 level, possibly involving the left sided facet joint however I cannot localise pathology further than that. That is, in general terms I agree with the diagnosis made by Peter Woodland.
The changes identified on MRI scan and technetium bone scan are of no relevance to the clinical presentation.
Psychological Complaints
Turning to his psychological complaints, I note that a diagnosis of depression was made in August 1996 and that led to a period of treatment. I note that it was decided that liability was not accepted by Comcare in relation to diagnosis of depression.
There is no clinical evidence on examination today of the diagnosis of depression. I do not believe that Mr Sinclair-Jones is clinically depressed. Whilst he may be experiencing an adjustment problem in relation to his ongoing symptoms and his frustration at his inability to secure alternative employment, I do not believe that this amounts to a depressive illness.
I note that his current position is relatively stress free to the extent that he does not have supervisory responsibilities and he is working on a part time basis to his own deadlines. I do not see that he is currently suffering stress related to the type of work that he is doing. I do not believe that he truly suffers from a stress related complaint in relation to his normal duties.
The extent that he indicates that he is ‘burnt out’ I do not equate this to a mental disorder. Rather he is tired of the requirements of the work and has made a conscious decision to seek alternative work.
Motivational Issues
It is evident from the history and also from my review of the attached reports that Mr Sinclair-Jones is not happy to return to his pre-accident work as a manager in the communication and mediation support (CAMS) section of the National Native Title Tribunal.
He alludes to a number of difficulties in this area and these are outlined in some detail above.
I do note with interest the comments of clinical psychologist Barry White regarding Mr Sinclair-Jones’ presentation. I note that Mr Woodland has also made a comment regarding his perception of his work environment.
However, he repeatedly comments that he feels that he is ‘burnt out’ and he no longer enjoys the work. He believes that he is ‘past his use by date’ and wants to ‘move onto something else’.
When I asked of his preference if his back was ‘fixed’, he replied that he would look for other work. His preference is in a media management role for another organisation or starting his own Internet-based business from home.
Capacity for work
Turning to his physical capacity, I believe that Mr Sinclair-Jones is suffering a mild level of (physical) disability.
I do not see any objective evidence of severe disability in relation to the function of the thoracic spine.
Whilst I have no doubt that this man does have thoracic back pain, I do not believe that this is a significant disability in relation to the requirements of his normal work as a manager of the CAMS branch of the National Native Title Tribunal.
I can determine no objective physical grounds to prevent him from a return to full-time work in that area.
Furthermore I do not agree with reported comments that stress encountered in undertaking that work would aggravate his physical disability.
My understanding of his normal duties, confirmed by my review of the attached rehabilitation and other reports, is that his work is of a sedentary nature. He is not tied to a computer 40 hours per week at present although I do understand from his history that there was a period last year when he was undertaking prolonged keyboard work in completing a particular project.
It is noted that the department has now contracted a writer to assist with keyboard preparation of documents.
His work is a mixture of attendance at meetings, telephone hook-up and using other communication means, some training and other work at a computer.
I believe there is no physical reason why Mr Sinclair-Jones could not undertake the necessary computer work by taking regular rest breaks and undertaking his stretching exercises at regular intervals. He has demonstrated a capacity for five hours of that work each day.
I note from attached documents that his employer is happy to rearrange his work to obviate his travelling requirements.
In answer to your specific questions:
1.There are no objective abnormalities to clinical examination. There are consistent subjective findings to suggest mid-thoracic facet joint injury, probably left-sided, at around the T6/7 level.
2.There are no obvious inconsistencies between those symptoms reported to me by Mr Sinclair-Jones and that reported to other medical practitioners. I found Mr Sinclair-Jones to be most straightforward in his presentation. He certainly answered all of my questions consistently and the examination was conducted over a two-hour period.
3.There are no obvious inconsistencies. I believe that he does underestimate his lifting tolerance. This is not unusual.
4.Based on the objective clinical findings I believe that this man’s compensable condition is not prohibiting him from returning to full hours in his pre-injury position.
5.Again, I can find no objective clinical findings to disbar him from returning to his normal pre-accident work
6.I note that the physical aspects of his pre-injury job involved sedentary duties. As a manager he has the opportunity to vary his timetable to take breaks from sitting as required. He is not required to undertake heavy lifting or bending, or any other forms of exertion. I note from the attached correspondence that the employer has indicated a capacity to remove any travel requirements from the manager’s position instead utilising video conferencing facilities. It is possible for other experienced communications officers to travel to present information as required. I believe that, given those restrictions, Mr Sinclair-Jones could return to full-time normal duties.
7.I believe that there are other significant factors preventing a return to work. I believe this largely relates to motivational factors outlined above.
8.On the medical information currently available and certainly on his clinical presentation today I do not consider that Mr Sinclair-Jones suffers from a psychological or psychiatric condition. I have not taken a detailed history of any social problems, as these are not in my view, relevant to his compensation claim. If he has marital problems or other difficulties at home which do not relate to his compensation problems, these may require counselling however I have not explored these in any depth. You may wish to seek advice from Mr Barry White about any such matters. I do not believe that psychological illness is preventing a return to his pre-accident work apart from the extent to which he is not motivated to return to that type of work.
9.In relation to pre-existing conditions, I do believe that notwithstanding his ongoing soft tissue injury this man is fit to return to a sedentary office based management administration position. I note there have been some periods of incapacity in this regard over the last three years however there is no ongoing physical incapacity to prevent a return to his normal pre-accident work on a full-time basis.
10.I do not believe that there is any evidence that this man suffers from an underlying degenerative condition or congenital complaint, or any other underlying disorder which would contribute to his ongoing symptoms. There is no evidence that his symptoms are now related to a previous 1990 injury.
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a)where the employee is not employed during that week – of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
(b)where the employee is employed for 25% or less of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;
(c)where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;
(d)where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings;
(e)where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and
(f)where the employee is employed for 100% of his or her normal weekly hours during that week – of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment – the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.”
Sections 8 and 9 of the SRC Act contain provisions relating to the calculation of an employee’s “normal weekly earnings” for the purposes of the Act, and of s 19 thereof in particular. Section 4(1) of the SRC Act contains the following relevant definitions:
“ ‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
…
‘disease’ means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
…
‘impairment’ means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
‘injury’ means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…
‘suitable employment’, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment – employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited to having regard to:
(i)the employee’s age, experience, training, language and other skills;
(ii)the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b)in any other case – any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv);”.
Finally, s 4(9) of the SRC Act provides:
“A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.”
A Preliminary Issue – the Proper Scope of the Tribunal’s Review
115. The respondent, notwithstanding that it had on 23 April 1996 (T19) “accepted” the applicant’s claim for compensation in respect of a condition described by the respondent as "soft tissue injury to back affecting back, neck, right shoulder and arm”, sought in these proceedings to revisit that issue and submitted that the applicant’s condition – in particular, his back condition – is not attributable to the employment-related incident of 2 February 1996 and, accordingly, is not an “injury” (as defined in s 4(1) of the SRC Act) within the meaning, and for the purposes, of s 14(1) of that Act.
116. Mr Gandini (for the applicant) submitted that the only subject matters of the primary determination (dated 8 November 1999) and the reviewable decision (dated 22 May 2000) in this case were the issues of whether the applicant had an incapacity for work as at August 1999 and, if so, whether such incapacity resulted from the “injury” suffered by him on 2 (or 6) February 1996, and that the respondent, having in effect determined on 23 April 1996 that the applicant did suffer such “injury”, and having not subsequently disputed that matter prior to these proceedings, is now estopped from disputing that matter in these proceedings. He also submitted that the scope of the Tribunal’s review in these proceedings is confined to the 2 abovementioned issues that formed the subject matters of the relevant primary determination and reviewable decision, and that it would be beyond the Tribunal’s “jurisdiction” in these proceedings for it to consider and determine the question whether the applicant suffered an “injury” (as defined in s 4(1) of the SRC Act) on 2 (or 6) February 1996. He relied, in support of his submissions, principally on the decision of the Full Court of the Federal Court of Australia in Lees v Comcare (1999) 29 AAR 350.
117. Ms Walker (for the respondent) submitted that the essential issue which was before the maker of the reviewable decision, and which is before the Tribunal in these proceedings, is whether the applicant is incapacitated for work as a result of a compensable injury, and that a consideration of that issue necessarily includes a consideration of whether the applicant suffered a compensable injury and/or whether the applicant was ever incapacitated for work as a result thereof. Thus, Ms Walker submitted that s 14 of the SRC Act is the “gateway” to the various heads of compensation under that Act including, relevantly, incapacity payments pursuant to s 19 of that Act, and that a determination regarding liability to pay compensation in accordance with s 19 of the SRC Act necessarily includes a consideration of the matter of liability to pay compensation under s 14 of that Act. She also submitted that the function of the Tribunal is to conduct a de novo review of the reviewable decision and that, in performing that function, it cannot be restricted by any principle of estoppel. As regards the case of Lees v Comcare (above) relied on by the applicant, Ms Walker acknowledged that, as determined in that case, the Tribunal has no power to make a decision regarding a particular head of compensation that was not the subject of the relevant reviewable decision; but, she submitted, in the present proceedings the Tribunal is being asked to make a decision regarding the same head of compensation that was the subject of the reviewable decision before it – namely, incapacity payments under s 19 of the SRC Act – and, accordingly, Lees v Comcare is not applicable.
118. The Tribunal generally accepts Ms Walker’s submissions. In the Tribunal’s opinion Lees v Comcare is authority for the proposition that the scope of the Tribunal’s review of a “reviewable decision” (being a decision made, on reconsideration of a primary determination, under s 62 of the SRC Act) is confined to a consideration of the question of liability (or otherwise) to pay the same particular head (or heads) of compensation, in accordance with the relevant provisions of the SRC Act, as was (or were) the subject of that “reviewable decision”. In the present case, the particular head of compensation, which was the subject of the “reviewable decision” of 22 May 2000, is compensation by way of incapacity payments in accordance with s 19 of the SRC Act. Thus, the scope of the Tribunal’s review of that “reviewable decision” is confined to a consideration of the respondent’s liability (or otherwise) to pay compensation by way of incapacity payments to the applicant in accordance with s 19 of the SRC Act. That liability, however, is created by s 14(1) of the SRC Act; s 19, on the other hand, is one of a number of provisions of the Act (including ss 16, 17, 18, 19, 20, 21, 21A, 22, 24, 27, and 29) which “define the nature and extent of the liability to pay compensation” imposed by s 14(1): Lees v Comcare (1999) 29 AAR 350 at 362. It follows that the scope of the Tribunal’s review of the “reviewable decision” in the present case extends to a consideration of the respondent’s liability (or otherwise), under s 14(1) of the SRC Act, to pay compensation to the applicant in respect of an “injury” (as defined in s 4(1)) in accordance with s19 of that Act.
119. An authority which, in the Tribunal’s opinion, is directly in point (but which was not cited by the parties) is Power v Comcare (1998) 89 FCR 514. In that case an employee claimed compensation and in 1990 Comcare accepted liability under s 14 of the SRC Act to pay compensation (including incapacity payments pursuant to s 19) to the employee for stress disorder and acceleration of coronary heart disease. In 1993 Comcare determined that compensation was payable to the employee, pursuant to ss 24 and 27 of the SRC Act, for permanent impairment and non-economic loss resulting from his abovementioned “compensable injury”. On 22 March 1995, however, Comcare, on the basis of a medical opinion that there was no causal relationship between the employee’s coronary artery disease and his employment, determined that there was “no further liability to pay compensation in respect of the acceleration of coronary artery disease from and including 9 March 1995. That determination was affirmed on a reconsideration under s 62(5) of the SRC Act and the latter “reviewable decision” was subsequently affirmed by the Tribunal. An “appeal” to the Federal Court of Australia was dismissed. Sackville J said (at 526-527):
“The question is then whether the reconsideration decision-maker was entitled to affirm the decision of 22 March 1995, on the basis of a finding that the applicant’s coronary disease had never been causally related to his employment. If so, the AAT was also entitled to approach the matter on this basis.
I think the better view is that the reconsideration decision-maker, for the purpose of determining whether Comcare had a continuing liability to compensate the applicant for his coronary condition, had power to consider whether that condition had ever been causally related to his work. The question of Comcare’s liability arose because Comcare was empowered under s 69(a) of the SRC Act to make a determination ‘in relation to’ the claim made by the applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease. It was required to make that determination accurately (s 69(a)) and in accordance with the ‘substantial merits of the case’ (s 72(a)).
As the majority said in Langley [Langley v Repatriation Commission (1993)43 FCR194], the reconsideration decision-maker had to analyse all the necessary facts for herself to determine whether Comcare had a continuing liability. Fresh information, in the form of medical reports from Dr Keogh, was available. The reconsideration decision-maker was not bound by any issue estoppel arising from the earlier determination: Comcare v Grimes [(1994) 50 FCR 60] at 64. The AAT was in a similar position (Commonwealth v Sciacca (1988) 17 FCR 476 (FC) at 480; Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 (AAT) at 521-525), although it could have exercised its discretionary powers to exclude evidence recanvassing the issues resolved in the earlier decision: Quinn at 526. No issue as to the AAT’s discretionary powers has been raised here. Neither the reconsideration decision-maker nor the AAT had power to revoke the 1990 or 1993 determinations, at least not without invoking the power conferred by s 62(1) of the SRC Act. However, neither purported to do so. The determination of the reconsideration decision-maker, affirmed by the AAT, operated only from 9 March 1995 and did not affect compensation payments made to the applicant between 1990 and 1995.”
His Honour concluded (at 527):
“ … the decision under review by the AAT was not one which, as a jurisdictional matter, precluded the AAT from considering the evidence bearing on the association between the applicant’s coronary condition and his employment.”
120. Consistently with the decision of the Federal Court in Power v Comcare (above), the Tribunal, for the purposes of reviewing the “reviewable decision” of 22 May 2000 in the present case, is, in its opinion, empowered to consider and determine whether the applicant’s back condition was ever causally related to his employment with the NNTT, and whether the applicant was ever incapacitated for work as a result of a compensable “injury” to his back. If the Tribunal were so to determine, however, it would not have the power to set aside the respondent’s determination of 23 April 1996 accepting liability to pay compensation to the applicant, and, moreover, compensation paid to the applicant by way of incapacity payments between February 1996 and 16 August 1999 (the effective date of their cessation by the respondent) would not be affected thereby.
Consideration of Substantive Issues, and Findings
Did the applicant suffer an “injury” (as defined in s 4(1) of the SRC Act) to his back in early February 1996?
121. Having regard to the definition of “injury” in s 4(1) of the SRC Act, the question is, relevantly, whether the applicant, on 2 February 1996, suffered a back injury in the course of his employment with the NNTT, or a “disease”, in the sense of a back ailment that was contributed to in a material degree by his employment with the NNTT.
122. Ms Walker (for the respondent) submitted that, “upon a close review of the available evidence”, and having regard to certain “factual discrepancies” therein, the Tribunal could not be satisfied on the balance of probabilities that the applicant suffered an employment-related injury to his back on 2 February 1996 (as claimed by him). Ms Walker pointed, in particular, to the following aspects of the evidence:
· the absence of evidence that the applicant made a contemporaneous complaint to any person regarding the alleged initial onset of back pain on 2 February 1966;
· the general practitioner’s clinical notes, made at the first consultation (on 7 February 1996) after the alleged incidents on 2 February 1996, regarding the onset of mid-to-upper back pain while carrying heavy luggage at Townsville Airport and during the long return flight to Perth, do not refer to those incidents but instead refer to “gardening over the weekend 3 days ago” and “yesterday, ache across lower back”;
· although the “First Medical Certificate” issued by Dr Churchward on 9 February 1996, regarding the alleged incident on 2 February 1996, refers to “low back/back pain radiating to shoulders”, subsequent “Progress/Fitness Medical Certificates” issued by Dr Churchward in February, April and May 1996 refer only to “low back pain” (except the Certificate of 12 April 1996 which refers to “soft tissue back pain”);
· the contemporaneous radiological reports, dated 7 February 1996 and 13 February 1996, relate only to the applicant’s lumbar/lumbo-sacral spine; the first radiological report relating to the applicant’s thoracic spine was not made until 21 August 1996 shortly after the applicant’s management had been taken over by Dr Sadka;
· the compensation claim form completed by the applicant refers only to (relevantly) soreness/injury to “lower back”, not to mid back or upper back;
· reservations, expressed by Dr Connaughton and Mr Batalin in their respective reports, regarding the applicant’s having suffered an injury to his back on 2 February 1996 (as claimed by him).
123. The Tribunal acknowledges that the evidential matters raised by Ms Walker may collectively give rise to a reasonable doubt that the applicant suffered an employment-related back injury on 2 February 1996, as claimed by him, but, in the Tribunal’s opinion, those matters, when considered in the context of the whole of the relevant evidence and material, are insufficient to satisfy the Tribunal, on the balance of probabilities, that the applicant did not suffer such an injury on that date. On the contrary, having regard to the whole of that evidence and material, the Tribunal is satisfied that the applicant did suffer an employment-related injury to his back on 2 February 1996, as claimed by him. Although there are some inconsistencies in the material regarding the circumstances surrounding the sustaining of that injury – namely, as regards the weight of the luggage carried by the applicant at Townsville Airport on 2 February 1996 (20 kgs v 45 kgs), and as regards the location of the acute pain episode on the night of 6 February 1996 (lumbar spine v thoracic spine) – the Tribunal is generally satisfied, and finds, having regard to the applicant’s evidence and also having regard in particular to the contemporaneous medical certificates issued by Dr Churchward and to Dr Churchward’s report of 2 April 1996, that, by reason of his carrying luggage at Townsville Airport on 2 February 1996 in the course of his employment with the NNTT, the applicant suffered a soft tissue injury to his back resulting, during the following week, in acute pain symptoms in his lower back with some radiation of pain up his back into his right shoulder and neck. The Tribunal also finds, on the basis of the applicant’s evidence and the whole of the medical evidence before it, that the applicant’s lower back pain gradually resolved and ultimately ceased, leaving him with residual pain symptoms in his upper back / thoracic spine which have persisted with variable severity since the time of their onset. The Tribunal cannot, on the evidence before it, be precise about the timing of the resolution of the applicant’s lower back pain symptoms but it is satisfied, on the basis of Dr Sadka’s report of 12 November 1996 and his oral evidence, that those symptoms had substantially resolved by the time that he took over the applicant’s management in August 1996 and that thereafter attention and treatment centred on the applicant’s thoracic spine where his primary pain symptoms were then located.
Has the applicant’s back “injury” resulted in “incapacity for work” (as defined in s 4(9) of the SRC Act)?
124. The Tribunal is satisfied on the basis of the evidence and material before it, and finds, that, within the period from 6 February 1996 until at least 28 June 1999, the applicant was, as a result of the abovementioned back “injury” suffered by him on 2 February 1996, either wholly incapacitated for work (within the meaning of s 4(9)(a) of the SRC Act) or partially incapacitated for work (within the meaning of s 4(9)(b) of the SRC Act) during certain periods of time, and that the respondent was accordingly liable, under s 14(1) of the SRC Act, to pay compensation to him, and that the applicant was rightly paid compensation by way of incapacity payments pursuant to s19 of the SRC Act in respect of those periods of time. The more important question for the Tribunal’s determination, however, is whether the applicant’s resulting “incapacity for work” – whether total or partial – has continued beyond 28 June 1999. The significance of that date is that it was on that date that the applicant was examined by Dr A Home, Occupational Physician, and was assessed by Dr Home as having a “physical capacity for full-time hours of work” and the capacity to “return to his full pre-accident duties”, at least from the date of the expiration of his forthcoming recreation leave (namely, 13 August 1999), as stated in his report of 29 June 1999 (T118 – see paragraph 41 above).
125. The Tribunal notes that, at the time the applicant was examined and assessed by Dr Home, the applicant was participating in a Graduated Return to Work Programme formulated by Ms H Brandis of “Work-Link” and was then working 5.5 hours per day, 5 days per week, and performing restricted work duties. Dr Home, in his report of 29 June 1999, noted that fact and, notwithstanding his stated opinion that the applicant then had a “physical capacity for full-time hours of work” and a capacity to “return to his full pre-accident duties”, he also commented that, following the applicant’s return to work after completing his recreation leave (namely, on 16 August 1999):
“A gradual return to normal hours may be considered prudent”.
He also stated:
“I believe that a trial back to his normal pre-accident work would be a sensible approach”.
126. Dr Sadka, in his oral evidence, confirmed that it was his opinion that the applicant, by reason of his back pain symptoms resulting from his work injury in February 1996, continued to be not fully fit to perform the full duties of his “normal job” on a full-time basis for the period from July 1999 until November 2000 (when he last saw him).
127. Mr Woodland, Orthopaedic Spinal Surgeon, who examined the applicant in November 1996, July 1997, February 1999 and, most recently, on 8 June 2001, opined that in February 1999 and on 8 June 2001 the applicant, by reason of his ongoing thoracic back pain symptoms (which Mr Woodland attributed to the work-related injury of February 1996), was not fully fit to undertake the whole of his normal pre-injury duties – in particular, those involving interstate travel by air and the lifting of heavy luggage – on a full-time basis.
128. Dr A Harper, Occupational Physician, who examined and assessed the applicant on 3 April 2000, opined that the applicant, by reason of his thoracic spinal symptoms, was then “incapacitated for his pre-accident job” – although he was of the view that the applicant could probably work full-time in other, appropriate employment – and he attributed the applicant’s incapacity to his February 1996 work injury.
129. By contrast, Dr P Connaughton, Occupational Physician, who examined and assessed the applicant on 13 November 2000, opined that the applicant’s current thoracic back pain symptoms were not the result of his employment with the NNTT but were instead the result of “age-related degenerative change in the thoracic spine”, and that the applicant was “fit for full time employment as a journalist or in a range of clerical or administrative roles”. He further opined that the applicant was fit to perform, on a full-time basis, his pre-injury work duties even if those duties involved working 50-60 hours per week, travelling by aircraft and/or vehicle to remote locations in Australia, and carrying luggage up to 15 kgs in weight.
130. Likewise, Mr N Batalin, Orthopaedic Surgeon, who examined the applicant on 12 April 2001, opined that he had merely “minor degenerative changes in the lower thoracic and lower lumbar region” and that he saw “no contra-indication for the [applicant] doing full time work as a journalist or as an office worker”.
131. In the Tribunal’s opinion, Dr Home’s report of 29 June 1999 does not reflect an unequivocal view that the applicant was, at that time, fully fit to perform the whole range of his pre-February 1996 duties as Community Liaison Officer with the NNTT, including extensive interstate travelling and associated carrying of luggage. Rather, Dr Home’s report expresses the belief that the applicant’s thoracic back pain symptoms “will improve sufficiently for him to resume his full hours and duties upon his return to work” on 16 August 1999 after 6 weeks’ recreation leave, but nevertheless suggests that such a return to normal hours should be “gradual” and acknowledges that certification of the applicant’s fitness or unfitness to resume full hours and duties is the responsibility of his treating doctor and that the matter of a “gradual”, rather than an immediate, return to normal hours is “best judged by his usual treating doctor”. Given those qualifications expressed in Dr Home’s report, and given that the applicant’s treating general practitioner, Dr Sadka, clearly did not at that time think that the applicant was fit immediately to resume his full pre-injury duties on a full-time basis, it was, in the Tribunal’s opinion, inappropriate for the respondent to regard Dr Home’s report as a basis for terminating the payment of compensation by way of incapacity payments to the applicant as from 16 August 1999, and premature for it to terminate the payment of such compensation to the applicant as from that date.
132. The Tribunal accepts the opinions of Dr Sadka, Mr Woodland and Dr Harper to the effect that the applicant, by reason of his ongoing thoracic back pain symptoms attributable to his employment-related injury of 2 February 1996, continued to be incapacitated to perform the whole range of his pre-injury duties on a full-time basis beyond August 1999 and as at 8 June 2001 (the date of Mr Woodland’s most recent examination of the applicant). The Tribunal notes the contrary opinion of Dr Connaughton but attaches less weight to that opinion (which was based on one medico-legal consultation) than it does to the opinions of Dr Sadka, who was the applicant’s treating general practitioner during the period from August 1996 to November 2000, and Mr Woodland, who examined and assessed the applicant on 4 occasions, namely, in November 1996, July 1997, February 1999 and, most recently, on 8 June 2001. The Tribunal also attaches greater weight to the reports and opinion of Dr Harper, who is a highly qualified and experienced specialist in occupational medicine and who gave oral evidence and was cross-examined, than it does to the report of Mr Batalin, Orthopaedic Surgeon, who was not called to give oral evidence.
133. Accordingly, the Tribunal, having regard to the whole of the evidence and material before it, and primarily on the basis of the reports and opinions of Dr Sadka, Mr Woodland and Dr Harper, finds that the applicant, as at 16 August 1999, continued to have an incapacity for work, within the meaning of para (b) of s 4(9) of the SRC Act, as a result of the employment-related back injury suffered by him on 2 February 1996, and that that incapacity for work was continuing as at 8 June 2001 and, there being no evidence to the contrary after that date, is continuing at the present time. It follows from that finding that the respondent continues to be liable under s 14(1) of the SRC Act to pay compensation to the applicant, and that, by reason of s 19(1) of the SRC Act, s 19 of that Act applies to the applicant.
What is the amount (if any) of compensation that the respondent is liable, under s 14(1) of the SRC Act, to pay to the applicant in accordance with s 19 of the SRC Act, as from 16 August 1999?
134. The first matter to be determined, in addressing the above question, is the meaning of “suitable employment” in the circumstances of this case. Mr Gandini (for the applicant) conceded that the appropriate meaning of “suitable employment” in this case is that specified in para (b) of the definition of “suitable employment” in s4(1) of the SRC Act, namely:
“any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv);”.
The matters specified in those subparagraphs are as follows:
“(i) the employee’s age, experience, training, language and other skills;
(ii) the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter;”.
In the Tribunal’s opinion, Mr Gandini’s concession was rightly made because the applicant himself terminated his employment with the Commonwealth by voluntarily tendering his resignation on 30 July 1999 (see paragraph 79 above). Accordingly, para (a) of the statutory definition of “suitable employment” – which applies where the employee does not terminate their employment – is inapplicable, and para (b) of that definition – which applies “in any other case” – is applicable in this case.
135. The next matter to be determined is that of the applicant’s ability, or inability, “to earn in suitable employment” for the purposes of s19(3) of the SRC Act. By s19(4) of the SRC Act, that matter is to be determined having regard to the relevant matters specified in paras (a)-(g) of that subsection. Those matters are set out in paragraph 114 above.
136. The respondent submitted that para (b) of s19(4) of the SRC Act was applicable in this case in that the applicant had “received an offer of suitable employment” – in particular, at the meeting of 19 July 1999 convened by the NNTT to discuss his future employment with the NNTT – but that he failed to accept that offer and decided, instead, to resign from his position with the NNTT. For the purpose of considering that submission it is necessary for the Tribunal to determine, as precisely as possible, what the contents of any such offer of employment were. Having regard, in particular, to the evidence of the applicant and of Ms Bock, and to the contemporaneous record of the meeting of 19 July 1999 made by Ms Bock (Exhibit R9 – see paragraph 78 above), the Tribunal is satisfied that the NNTT’s expectation of the applicant was that he return to the position of Manager of CAMS (Communication and Mediation Support) at the NNTT on a full-time basis, on 16 August 1999 (on the expiration of his recreation leave which commenced on 5 July 1999), and that the applicant was apprised of that expectation. The Tribunal is also satisfied, on the other hand, that the NNTT was prepared to allow the applicant to resume his Graduated Return to Work Programme (which he was undertaking at the time he commenced his recreation leave), but on a non-compensable basis – that is, on the basis that he would be paid only for the reduced hours worked in that Programme and not for full-time hours – and that the applicant was also apprised of the NNTT’s attitude in that regard. Having regard, however, to:
·the fact that the applicant, at the time he commenced his recreation leave on 5 July 1999, was working reduced hours (namely, 27.5 hours per week), with recommended work restrictions, in accordance with a Graduated Return to Work Programme approved by his treating general practitioner, Dr Sadka; and
·the qualifications expressed in Dr Home’s report of 29 June 1999 regarding a “gradual” return to normal work hours (see paragraph 131 above);
the Tribunal is of opinion that full-time employment as Manager of CAMS with the NNTT was not “suitable employment” for the applicant at that time and that, in the circumstances then prevailing, it was reasonable for the applicant not to accept that employment. Likewise, the Tribunal is of opinion that it was reasonable for the applicant, at the expiration of his recreation leave on 16 August 1999, not to resume the Graduated Return to Work Programme working reduced hours but on a non-compensable basis. Had the NNTT been prepared to allow the applicant to resume, and complete, that Programme on the same basis as that on which he was undertaking it when he commenced his recreation leave on 5 July 1999, it would in those circumstances, in the Tribunal’s opinion, have been unreasonable of the applicant not to do so – but that option was not offered to the applicant.
137. Accordingly, the Tribunal finds that, as at 16 August 1999, “suitable employment”, which the applicant then had the physical capacity to perform, was limited to “suitable employment” involving the reduced work hours and the recommended work restrictions (as set out in T114) that applied in the Graduated Return to Work Programme that he had been undertaking at the NNTT immediately before the commencement of his recreation leave on 5 July 1999.
138. As from 29 September 1999, however, the applicant was consistently certified by Dr Sadka (see T154, T157 and T162), and subsequently by other general practitioners (see T166, T168), as “fit for restricted return to work”, with specified work restrictions (including no heavy lifting or repetitive bending), but with no specification of restricted hours. Likewise, since April 2000 specialist occupational physicians (Dr Harper and Dr Connaughton) and orthopaedic surgeons (Mr Woodland and Mr Batalin) have opined that the applicant is physically capable of working on a full-time basis in appropriate employment.
139. In the Tribunal’s opinion, appropriate employment – or “suitable employment”, within the meaning, and for the purposes, of s19 of the SRC Act – in the applicant’s case, having regard to the applicant’s evidence and to the matters specified in the definition of “suitable employment” in s4(1) of that Act, would comprise employment in areas such as journalism, public relations, media/public affairs management, tertiary teaching (in journalism, media, cross-cultural studies), industrial/trade union organisation.
140. Accordingly, the Tribunal finds that, since 29 September 1999, the applicant has had the physical capacity to undertake such “suitable employment” on a full-time basis.
141. The determination of the amount that the applicant “was able to earn in suitable employment”, for the purposes of s19(3) of the SRC Act, however, involves a consideration, not only of the applicant’s physical capacity to earn in “suitable employment”, but also of other relevant matters (see s19(4) of the SRC Act) including the actual availability of “suitable employment” to the applicant”: see Telstra Corporation Ltd v Warner (1994) 20 AAR 259 at 264; Martin v Australian Postal Corporation (2000) 32 AAR 199 at 204-205.
142. The respondent tendered in evidence a report, dated 27 February 2004, prepared by Ms L Moyle of “LabourNet” containing relevant labour market information regarding certain occupations (including the occupations of journalist, public relations officer, university tutor and union organiser) and detailing rates of pay for those occupations from 1999 to date (Exhibit R17). The parties agreed that, for the purpose of applying subss (2) and (3) of s 19 of the SRC Act in the present case in the event that the Tribunal found that the respondent was liable to pay compensation to the applicant in accordance with s 19, the amount per week that the applicant is “able to earn in suitable employment” should be based on the rates of pay for the occupation of journalist, as specified in the abovementioned report.
143. The respondent also tendered in evidence material evidencing the applicant’s earnings during his employment with the NNTT from 25 July 1994 until 16 August 1999, together with relevant extracts from the NNTT Certified Agreement 1998 - 2000, the NNTT Certified Agreement 2000-2003, and the NNTT Certified Agreement 2003-2006 (Exhibits R14-R16). That material was not disputed by the applicant.
144. Having regard to the Tribunal’s findings specified in paragraphs 137 and 140 above and to the material referred to in paragraphs 142 and 143 above, the Tribunal finds that the amount of compensation that the respondent is liable, under s 14(1) of the SRC Act, to pay to the applicant in accordance with s 19 of the SRC Act, as from 16 August 1999, is as follows:
Period Amount of Compensation Payable to the Applicant per Week 16 August 1999 – 28 September 1999 $326.40
($1067.80 - [$1011.00 x ])29 September 1999 – 16 November 1999 $56.80
($1067.80 - $1011.00)17 November 1999 – November 2000 $150.84
($1161.84 - $1011.00)November 2000 – December 2000 $463.65
($1517.65 - $1054.00)January 2001 – January 2002 $484.95
($1585.95 - $1101.00)January 2002 – July 2002 $481.85
($1639.85 - $1158.00)July 2002 – July 2003 $475.62
($1695.62 - $1220.00)July 2003 – $501.54
($1753.25 - $1251.71).Decision
145. For the above reasons the Tribunal sets aside the reviewable decision of 22 May 2000 and, in substitution therefor, decides that:
(a)the respondent is liable under s14(1) of the SRC Act to pay compensation to the applicant in accordance with s19 of that Act in respect of an injury to his back suffered by him on 2 February 1996 which resulted in his incapacity for work, and such liability was continuing on and from 16 August 1999, and is presently continuing;
(b)the amount of compensation payable to the applicant as from 16 August 1999, in accordance with s19 of the SRC Act, is as specified in paragraph 144 of these reasons.
146. The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the respondent pay the costs of the applicant of these proceedings, such costs, in the absence of agreement between the parties as to the amount thereof, to be taxed by a District Registrar or a Deputy Registrar of the Tribunal in accordance with clause 6 of the Tribunal’s General Practice Direction dated 18 May 1998.
I certify that the 146 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President, and Dr D Weerasooriya, Member.
Signed: ..............(sgd V Wong)..................................
AssociateDate/s of Hearing 5 - 8 August 2002, 1 April 2004
Date of Decision 27 May 2004
Counsel for the Applicant Mr L Gandini
Solicitor for the Applicant ChapmansCounsel for the Respondent Ms L Walker (5-8 August 2002)
Mr B Ablong (1 April 2004)
Solicitor for the Respondent Dibbs Barker Gosling
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