Smith and Telstra Corporation Ltd
[2002] AATA 335
•10 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 335
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/293
GENERAL ADMINISTRATIVE DIVISION )
Re JEFFREY SMITH
Applicant
And TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Mr R D Fayle, Senior Member; Dr D Weerasooriya, Member
Date10 May 2002
PlacePerth
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision of the respondent under review is set aside. In substitution therefor the Tribunal decides: 1) The applicant suffers from a permanent disability under the Act, namely Cumulative Soft Tissue Damage to the L5, S1 joint complex including the L5, S1 facet joints 2) The compensable injury will prevent the applicant from ever returning to his original work as a fitter and turner. 3) The injury has contributed to a degeneration of L5/S1 disc in particular and facet joint at L5/S1. 4) Long term regular palliative physiotherapy is not reasonable therapy for this condition. 5) The matter of determining as to what would be reasonable physiotherapy treatment of the applicant's back in relation to the compensable injury is remitted to the respondent for determination, with liberty granted to parties to apply to be heard in this respect only. 6) The matter of costs pursuant to s67(8) & (9) of the SRC Act to be determined by parties filing a consent agreement or if no agreement then by way of further submissions. Parties are given leave to apply in this respect.
..……..(sgd R D Fayle)…....…..
Senior Member
CATCHWORDS
COMPENSATION – worker injured at work – several incidents of back injury – whether effects of injury ceased – whether worker still incapacitated – whether regular physiotherapy over many years "reasonable medical treatment"
Safety Rehabilitation and Compensation Act 1988 – ss4, 14, 16
Australian Postal Corporation v Bessey [2001] FCA 266
REASONS FOR DECISION
10 May 2002 Mr R D Fayle, Senior Member; Dr D Weerasooriya, Member
Jeffrey Smith ("the applicant"), commenced work as a fitter and turner with the predecessor of Telstra Corporation Limited ("the respondent") in March 1973 and experienced several episodes of work related injury, the subject of workers' compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The applicant remained actively employed by the respondent, in a clerical role, at the time of the hearing. On 23 June 1999, the respondent advised the applicant that it ceased liability under the Act in respect of "lumbar muscle strain". Following a request on behalf of the applicant to have that determination reviewed, the respondent advised the applicant on 23 July 1999 that, after review of all the available medical and other evidence, it affirmed the original decision pursuant to s62(5) of the Act. It is that decision which has been referred to this Tribunal for review.
Mr B Nugawela of counsel, assisted by Mr C Prast, represented the applicant. Mr M Pilkinton of counsel assisted by Mr A Kawalsky represented the respondent. The Tribunal had before it documents files pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). Oral evidence was given by:
The applicant;
Mr Peter Anderson, orthopaedic surgeon;
Dr Laura Carija, general practitioner;
Professor Peter Hollingworth;
Dr Zdenek Srna, psychiatrist; and
Mr John Wright, orthopaedic surgeon.
The following exhibits were taken into evidence:A1 Statement by applicant (as amended), 3 August 2000;
A2Schedule of medical and like expenses – Physiotherapy 4 June 1999 to 24 May 2001;
A3Schedule of medical and like expenses – Swim 1 June 1999 to 15 May 2001*;
A4Schedule of medical and like expenses – Fares 1 June 1999 to 15 May 2001*;
A5Report of Mr Peter C Anderson, 13 September 1999;
A6Report of Dr Laura Carija, 27 October 1999;
A7Annexure JDPS-10 to the Applicant's statement of Facts and Contentions;
A8Annexure JDPS-12 to the Applicant's statement of Facts and Contentions;
R1Summary of applicant's sick leave record for period 13 December 1974 to 29 August 1988*,
R2Report of Dr Zdenek Srna, 18 February 2000;
R3ALetter from Downings Legal, 8 June 2000;
R3BReport of Mr Wright, 28 February 2000
R3CLetter from Downings Legal, 30 June 2000
R4Letter from Downings Legal, 17 February 2000.
*Subject to objection as noted.
The Applicant's evidence
The applicant was born in 1948. He left school after year 10 and became an apprentice mechanical fitter and turner. He commenced work as a mechanical fitter and turner with the respondent (in its predecessor capacity) in March 1973. He recalled that on 7 October 1974, he was lifting sheets of steel, measuring about 2400 x 1200 x 3 millimetres from a stack to a workbench for guillotining into required sizes. The applicant had to bend down to pick up the sheets to lift them onto to workbench. He said that during this exercise his back started to hurt when straightening up while lifting the sheet. He said that as a result he had a couple of weeks off work.
The applicant said that the next incident of injury occurred in October 1979 which coincided with an appendix operation. He said that he was off work for about a month this time. There is some doubt as to whether the applicant's then absence from work was due solely to his appendicitis, his sore back or both. However, he said that in early 1980 he recalls having back problems after four to six hours of bending over and straightening up when required to weld a big frame on a low bench. The applicant thinks that he was off work this time for about 2 to 3 weeks.
Mr Nugawela asked the applicant to describe what happened on 7 October 1974.
"Okay. Can you tell the Tribunal what happened on 7 October 1974?---As far as I can remember I was cutting some large sheets of steel, lifting them by myself and cutting them into pieces and as I lifted one piece of steel, a full sheet my back started to hurt. I carried on with the job and I can't remember whether I booked off that day or later on." (tr p.11 lines 23 – 27)
The Tribunal questioned him in relation to more detail as to what he was actually doing and at what point in time he was suffering discomfort.
The following exchange occurred.
"MR FAYLE: Can I just come in there? I'm sorry to take the witness away from you but the Tribunal would probably like to know a bit more about this incident. Particularly in relation to more detail as to what you were actually doing - at what point in time you found that you were suffering discomfort?---As to - - -
Can I just lead you bit there. This sheet steel is what - where is the sheet steel?---Laying on the floor.
On the floor. In a heap or just one single piece?---I think it was part of three or four sheets, I can't remember.
Okay. And it's just a very small millimetre?---One-eight, three mil.
Right?---I think.
Okay. So what happened?---My job was to pick them up, cut them. I didn't have any lifting equipment, I was picking up physically.,
How big was the sheet?---As far as I can remember it was 8 by 4 which is 1200 by 24. So I'd have to - - -
So 8 by 4 what?---Foot. So it's about 2400 by 1200 millimetres.
Right?---My standard lifting technique would have been to turn it on edge, lift one edge up and then bend or crouch down and lift up the other end and slide it onto the guillotine.
Right?---And then set it up and cut it into the sizes for the job which I can't remember.
Right. So at what point in time do you think your back began to hurt?---It could have been the second or third sheet.
And what were you doing at the time?---Straightening up with the sheet.
So you'd bent down, you had that sheet in your hands?---And lifting the sheet.
So one edge was on the ground and you're levering it up?---Most probably.
Okay. I mean, it's a long time ago, isn't it?---Yeah, I can't remember the exact job, can't remember how many sheets but - - -All right, thank you. That's really what I needed to know. I will hand the witness back to you.
MR NUGAWELA: Thank you, sir. (Tr p.11 line 29 - p.12 line22)
Mr Nugawela asked him to describe the nature of the work as a fitter and turner generally at that point in time.
MR NUGAWELA: Could you describe the nature of your work as a fitter and turner, generally at that point in time?---Generally, lathe work, sheet metal work, cutting, bending, spot welding, fabrication.
Did you say spot welding?---Spot welding is where you get two or more sheets of steel, put them together, put them in a piece of equipment which fires an electronic charge, electric charge through it, melts the steel together. So it's part of fabrication process. Welding, construction, external field work, building towers, construction towers, installation of fabricated products into telephone exchanges, into post offices. What's called distribution frames which are about 14 foot long which is - I can't remember how many millimetres going in to the basement of telephone exchanges, putting all the steelwork in so that they can run the cables into. Digging holes, mixing cement, which was - carry on as part of the general duties. Anything that was required by the foreman as part of the job. Preparation for painting, store work which is issuing tools and equipment and steelwork to other employees, maintenance which is stripping down machinery, rebuilding it so it works again. Preventative maintenance which is cleaning machines, replacing things where - so it was quite a big range. Safety inspections, stock-taking which is everything that - - -
DR WEERASOORIYA: Sorry, when you were mixing cement, was it in a small mechanical mixer or did you have to mix it with a shovel?---No, a shovel, out in the field, jack hammer, pick and shovel to dig holes. Hand winches to lift 30 foot towers up with sheer legs. I even done painting preparation, a bit of carpentry, hand tools, power tools but basically it was lathe work, fabric - steel fabrication and installation of the finished products.
MR NUGAWELA: Now, you mentioned a foreman giving you instructions. Were there any other fitters and turners working in a team with you?---Most of the time, no. Because I was so big and so tall and at the time I said I was fit, so I usually sometimes used to get an apprentice to help you or a second tradesman. But most of the jobs I was given they said, you know, you didn't need a hand so I didn't have a forklift licence so I wasn't allowed to use the forklift for lifting. Most of the time you just tried to wedge it up, pack it, move it.
And the kind of weights you would man-handle prior to your injury?---Lengths of steel about as long as this room.
Could you give us a rough, quick estimate of the type of weights if you know, if you don't that's okay?---I wouldn't know because I - heavy channel, six by four, which is 150 by 100, about 10 mil thick and they were channel that you cut and welded into fabrication steel constructions.
Would it be more than 30 kilograms?---Oh, yes, definitely.
Could you estimate the type of weights you would handle on a regular basis?---Anything from 1 kilo to 60 kilo. Finished products could be 100 kilo". (Tr. p.12, line 29 – p.13, line 31)
Mr Nugawala asked the applicant about subsequent injuries. The applicant thought that the next time he went off work was in October 1979 and while off work for his back, he developed appendicitis and he thought he had his appendix out within 2 or 3 days. Asked when he went back to work after this October 1979 departure, he replied about a month. He described the events of that occasion and the next absenteeism relating to workers' compensation in 1980, respectively:
"MR NUGAWELA: Now do you recall the next time you went off work?---think it was October '79.
And why did you go off work then?---Sore back. I was getting treatment. Then I went to - I was sent back to the doctor because I developed appendicitis, I was getting pains in the abdomen and I went then sent by the doctor, the GP to a surgeon and I think I was in hospital and appendix out within 2 or 3 days.
But the initial reason for leaving work in October '79 you said was a sore back?---Yeah, according to my work diary.
All right. And do you recall when you went back to work after the October '79 departure?---About a month.
All right. Do you remember the next time you left work?---Early 80 - early 1980.
Do you recall why?---If the - I think that's the welding one where I was welding a big frame on a low bench, steel fabrication, cutting tube up and then welding it up into a large - I can't remember what it was.
Okay. And what happened then? Could you give us some more detail in the way you gave the Senior Member in relation to your first episode?---I think because I had to reach into the centre of the table all the time to weld into the centre of the object and after about 4 or 6 hours I started having problems bending over and straightening up. I think I booked off that day, I can't remember whether I went to the doctor that day or the next.
And how long off work did you go for that one?---I think 2 or 3 weeks, I think it was." (Tr. p.13 line 44 – p.14, line 27)
He was asked if he could recall any other incidents where he suffered back pain. He replied 1981, 1982 and 1983. Regarding the 1983 incident he thought he was off in April. Whilst he could not recall with any exact detail, he though that he was also off on compensation in 1983 during the months of September, October and December on into 1984.
He recalled the cause of his back pain in April 1983 as - "I think it was the jackhammer. We were trying to get it to work properly and I think we were lifting it up and down off the work bench while we were working on it and then coupling it up and testing it and lift it up on to the bench again." He could not remember at what stage he felt pain in his back. He explained how he operated the jackhammer at the time. He said that when they (that is, his assistant and the applicant) arrived at the work location the jackhammer "broke down again so we had to go back to pick and shovel and crowbar."
The applicant could not remember the cause of his absence in September 1983 but he thought he was then off for one or two weeks.
The applicant recalled that he had another episode of back pain in October 1983 causing absence on compensation but could not recall what caused it. He did recall that "that was the long one that went through to December and into January 84 when I had my myelogram in December."
The applicant then described the pain in his legs which he thought started about 1980 or 1981. "It seemed to be in the centre of the leg going from the top of the leg at the back right down through the knee, right down to the ankle and it was about- it wasn't very wide not even 10 millimetre wide. It seemed to be a band going down. It wasn't all day every day but it was starting to be a regular occurrence". (Tr p.16 line 36 – 40).
At the time, on advice from Mr E R Griffiths, orthopaedic surgeon, the applicant was deployed to clerical duties. Mr Nugawela asked him about the type of clerical duties that he started doing in March of 1984. The following exchange occurred.
"MR NUGAWELA: Now, what type of clerical duties did you start doing in March of 1984?---Time sheets, filing. I learned to two-finger touch type for reports.
On computers?---No. Computers didn't exist in those days. They had mainframes but desktops no.
Yes?---Ordering stores. Paperwork related to vehicles, to field trips, to ordering stores, stocktaking, answering the phone, petty cash. General administration duties. Later when I didn't stuff up paperwork too much, generated - I started doing reports for them, the team leader of that section.
How much later?---Virtually within 3 months. What it was was creating summaries from - from the daily work sheets, keeping financial records. Book-keeping virtually so that we keep a record of how much money we'd spent.
When you say book-keeping, have you been for a book-keeper's course?---No, this was internal, just saying: our bucket of money is so much. Record each item that you buy, how much, so we know how much money we've got in case of emergencies or to spend.
Is that like a slush fund?---No. This is - we have to keep in the store a certain number of items, a minimum number. If the usage was too much - so you keep general stocktaking day to day and say: look, we need to buy, have we got the money?
Yes, I understand. And would you describe the nature of the clerical duties then as very much - or to what extent would you describe it as being desk-bound?---At least 80 per cent of the time.
And this is an 8-hour day?---Yes." (Tr. p.17 line 19 – p.18 line 1)
The applicant said that if he sat for too long he would experience pain. He said that he moved around to relieve the pain. He also said that when his supervisor realised the quality of his work and his capabilities he was given more responsibility. He continues to work in administration which he described as "some days its interesting and some days it's as boring as hell". (Tr p.18)
The applicant told the Tribunal that he still experiences back and leg pain, which is exacerbated by prolonged sitting or standing. He said that moving around is better and his job allows that to happen. He described the sort of activities that cause him pain as "moving, lifting … to squat down, pick up things off the floor, accessing low cupboards, moving things around, stationery, goods received, … standing too quickly or sitting down without bracing myself". He described the pain as occurring in his lower spine, pelvis, rear pelvis, hips, sometimes upper spine and "the neck sometimes if I've been sitting too long and looking at the computer too long". (Tr p18-19)
Mr Nugawela asked the applicant whether his physiotherapy treatments were beneficial. The applicant described his perception of this as:
"The early times the muscle, the actual heat treatment and manipulation eased the tension on the muscles so that I can move more. Later on when I started locking up virtually, couldn't turn from side to side with pain in the muscles, in the spine, the traction stretched me and freed up so I could – the pain became tolerable ---
MR NUGAWELA: Intolerable you mean?---No, no, from intolerable to tolerable.
Before physiotherapy on a scale of 1 to 10, how would you describe your pain in your back and legs? (Objection by Mr Pilkinton – more specific question put) ---Two of the periods I was off, one I was in bed for a week ---
What year was that?---Could have been 1980, but I didn't receive any treatment because I couldn't get out of bed. The second time was about 11 days I couldn't get out of bed before I started getting treatment …
Can you go to 1999, say, June of 1999 and describe what physiotherapy did for you this way. The pain you went to a physiotherapist and the pain you felt, if any after treatment?---There was pain in the mid spine to lower spine, aches in the lumbar muscle, freezing cold in left or right or both legs from the knee down before treatment. After treatment, traction and manipulation, the pain in the spine eased. Still had the aches and the freezing would go away for a day, 2 days. Then it would come back again and I would go for treatment again.
And how many times a week would you go for treatment and on what days? Sorry, since June 1999?---I started to try and cut down. I went from 3 to twice a week. Some weeks I went once a week. My best ever time was April 2000. I think I only went 3 times or 4 times in the month. I think it was about 17 days that I didn't see the physiotherapy. The truss, I wasn't wearing until the afternoon just to travel home, because that was when the pain and the discomfort got the worst. I could tolerate it during the day if I didn't do any sudden movements or lifting or things like that.
The times you would get this physiotherapy treatment, was that during office hours after 1999?---After 1999 I've never received physiotherapy during working hours. My physiotherapist starts work about 6 in the mornings so I see him about 6.30 and then I go to work and I start work about … quarter to 8.
And what time do you finish work?---Anywhere between 4.30 and 5.30." (Tr pp.19-21)
The applicant told the Tribunal that he used public transport to commute to work, to attend the physiotherapist and the swimming pool. He said that he walks every day and swims almost every day, although he had recently reduced the distance swum due to stiffness and "locking up". He said that currently his medication is a 1000 (microgram) slow release Naprosyn tablet daily, an anti-inflamatory. Previously, in the early 1980s, he was taking daily doses of Panamax, Panamax Co, Norgesic and Naprosyn. He said he believed that his walking, swimming and physiotherapy has helped reduce his reliance on medication.
Under cross-examination by Mr Pilkinton, the applicant said that he first injured his back at work when employed by Westgate, his previous employer to the respondent. That injury, a sprain to the lower back, occurred when the applicant was lifting "some shafts from the floor to the lathe and from the lathe to the pallet" (Tr p.31). The applicant consulted Dr Gregson, his treating doctor at the time. He was prescribed rest, heat treatment, liniment and some medication. Apparently Dr Gregson has since retired or passed away and no records of this consultation are available. The applicant also has a vague recollection that he suffered a further back incident whilst with Westgate, which he left in 1971 or 1972. No records of that incident are available.
The applicant has not taken any sick leave or compensation related leave from his job with the respondent since August 1988. However, before that time and since, the applicant was attending his physiotherapist regularly for therapy to his back. When asked why he believed he had not taken any sick leave since August 1988, the applicant said:
"Because through misguided loyalty to the [respondent] I've endeavoured to concentrate on my job to help, how we say, block off because I found if I concentrated on something, the symptoms, the sharp edge of pain seemed to work – being working, going to work every day was a distraction from my back and spine." (Tr p.36)
The applicant also attributed his ability to continue working without interruption to the fact that he also engaged in regular exercise in the form of swimming and walking, besides the physiotherapy treatment. He added that these activities were undertaken in his own time and that he lost no time from work as a result.
Details of Contemporaneous Documentation of Medical Evidence pertaining to the question - What was the compensable injury in this case and how did it occur?
The applicant's first back injury occurred in about 1967 when he was 19yrs of age and working for Westgate before becoming employed by the respondent's predecessor. He appeared to have recovered quickly from this injury. The evidence is that the applicant informed the respondent (predecessor) of this injury and they employed him nevertheless.
The first injury whilst in the employ of the respondent as a fitter and turner occurred in October 1974 when he lifted a sheet of steel. (T4 pg. 11). The respondent accepted that his injury of 7 October 1974 was work related. (T12 pg. 21) The First Medical Certificate was given with the provisional diagnosis of "strained left sacroiliac joint". The Final Medical Certificate was issued on 8 November 1974 (T7 pg. 14) indicating that "he is now fully recovered and is fit to resume his occupation on 11.11.74". (emphasis added). In a "First Election under Section 103" form completed in relation to the injury, the applicant described his injury in lay terms as "strained back". (T11 pg. 20) According to this documentation, the applicant had completely recovered from this injury, officially described as "left sacroiliac strain," by 11 November 1974. The applicant was then 26yrs old.
The applicant's next documented injury occurred on 25 March 1980 (six years later). (T13, pg. 22). Dr Gregson, the treating doctor noted that "following working at a bench lower than the usual, doing welding, he strained his back again. (emphasis added). Pain from T10 to S1. All movements limited by muscle spasm". The provisional diagnosis on this occasion was "subluxated facet joints". The doctor referred to this as a recurrence of an old injury. The doctor examined him eleven days later on 5 April 1980 and on this occasion he did not give him a final medical certificate, but he issued a Fitness Certificate. The Tribunal understands that it is standard practice to issue a Fitness Certificate only if the patient is fit to resume work but requires further medical treatment. In that Certificate Dr Gregson denoted against date of injury: "No specific date, on and off since 1974". Dr Gregson also changed the provisional diagnosis from "subluxating facet joint" on his first certificate, to "back strain and lumbago". (T14). Dr Gregson then noted that the applicant was sufficiently recovered and fit to resume his occupation on 8 April 1980 but that "he needs to avoid any job involving stooping as he is so tall" (T14).
The Tribunal understands that in the normal course of events involving compensation claims, the treating doctor would furnish a final medical certificate. There is no such record available to the Tribunal in the documents provided. The Tribunal cannot therefore come to a definitive conclusion as to when or if at all, the injury settled sufficiently to warrant a final medical certificate. The only evidence before the Tribunal is that of the issue of the Fitness Certificate referred to above.
The applicant's next injury, (according to the documentation before the Tribunal), occurred while a locum, Dr Miller was acting for Dr Gregson in 1982. There is no documented evidence as to the nature of this injury or indeed whether it related to the applicant's work. However as there was no documentation by Dr Miller regarding this injury the Tribunal tried to glean some information pertaining to this injury from relevant letters on the record sent by the specialist orthopaedic surgeon, Mr E Griffiths. In passing, the Tribunal notes that the copies of Mr Griffiths' letters, at T32, T34 and T66, were on his letterhead. Also, the reports at T32 and T34 have the word "Compo" handwritten on the top of the first page and also, typed on the first pages the phrase "Copy to Telecom Australia". T66 indicates that a copy was sent to Telecom. It makes no reference to compensation. T15 is a copy of a letter dated 27 July 1982 signed by Mr Griffiths. It does not mention compensation, has no notation to that effect nor does it indicate that a copy was sent to the respondent at the time. However, Mr Griffiths did send a copy of his 27 July 1982 report to the respondent on 12 August 1992 (T78). It seems reasonable therefore to infer that the information sought by the respondent was in relation to the applicant's compensation claim.
In his 12 August 1992 letter to the respondent, Mr Griffiths writes:
"Thank you for your letter of 11th August, 1992 regarding Jeffrey David Smith.
I saw Mr Smith on 27th July 1982 at the request of Dr Peter Miller, who was acting as Locum for Dr Harry Gregson in Midland at the time.
I enclose a copy of my report as you have requested. I think you will see that prior to my seeing this young man, in 1982, he did have a history of injury to his back commencing in 1967 with further episodes occurring in 1974, 1979, 1981 and in 1982 just eight weeks or so prior to my seeing him". (T78)
The Tribunal concludes in relation to the material before it that Mr Griffiths saw the applicant on 27 July 1982 regarding an episode of back pain that occurred eight weeks prior. Further, in this regard, the Tribunal concludes that the referral by Dr Miller, was for a back injury, if not a fresh injury then a sequela of back injury suffered at work.
In his report of 27 July 1982 (T15), Mr Griffiths notes:
"…He is still single and seems to have had a lot of bother with his back as far back as 1967 when he strained his back with further episodes in 1974, 1979, 1981 and 1982, the most recent one being about eight weeks ago, after which he has just got back to work again.
…when Peter Miller wrote the letter [of referral], [the applicant] had at that time radiation of pain down the left thigh into the left foot. (emphasis added) I think Peter queried whether he had a disc problem or not.
At any rate when I saw this lad today he had settled down very well and no longer had any pain in his leg. But still occasional back ache when he attempted to bend forwards too much. (emphasis added)
… I went right through his X-rays starting back in 1974 up to the most recent one in 1982, a little while ago.
They all looked pretty good except for the lumbo-sacral disc which could be getting a bit narrow, though it hasn't changed dramatically in very many years.
…and [the applicant] has got a suspect lumbo-sacral disc which obviously did give some nerve root compression or irritation a few weeks ago when Peter Millar saw him (emphasis added).
In his next report of 25 November 1983 (T23), Mr Griffiths concludes:
"I feel the time has come for further investigation in the form of lumbar myelography to further establish a definitive diagnosis for him … to at least eliminate a mechanical cause for his persisting symptoms which do seem to be located mainly in the lower lumbar spine and especially at the lumbo-sacral joint". (emphasis added).
Prior to Mr Griffith's report of 25 November 1983, on 11 April 1983, the applicant had attended Dr Seman, who took over from Dr Gregson as the applicant's treating doctor. The purpose of that visit was to report the jack hammer incident referred to above. Dr Seman issued a First Medical Certificate (T16), noting that
"while helping to test the jackhammer, motor would not start, later he felt pain when bending".
Dr Seman noted "tenderness at the lower spine, with limitation of movement". He made a provisional diagnosis of "low back strain". Under "Extra remarks (e.g. likely complications affecting the existing disease or former disabilities)", he noted, "Possibly recurrence of old injury" (T16).
The next relevant medical report is an x-ray report by radiologist Dr P Goodwin, of 20 September 1983 which states (T21):
"The series of previous films have been provided for comparison. The vertebral alignment remains good with good preservation of intervertebral disc spaces. No significant degenerative disease is seen. The lateral facet joints appear normal.
Comparison with the three previous films show little change".
Then follows chronologically the report of Mr Griffiths of 25 November 1983 (T32) to Dr Seman (supra). In it Mr Griffiths reports:
"He tells me that he's had some three weeks of in April of this year, further time off in September, and has now been off work again since 14 October of this year, with problems in his lumbar spine and now with radiation of discomfort and pain in the upper thoracic and in the cervical areas.
Today, his complaints were multitudinous in the spine, and he was very concerned indeed about his ability to carry on with profitable employment.
…I could find very little in the thoracic and cervical spine in the way of abnormality but he was still tender over the lumbo-sacral joint on deep pressure, and had some tenderness behind the right knee and some sensory changes over the lateral side of the right foot.
There was some slight limitation of straight leg raising on the right side compared to the left and lumbar flexion, when standing, was restricted again by some radiation of pain into both buttocks.
I looked at the X-rays taken recently and they were very similar to those which I'd inspected on my previous consultation, and which went back very many years.
There is some narrowing of the L5-S1 disc space and I wonder if this lad has, in fact, got some disc degeneration at L5-S1, precipitated by a previous trauma and causing, this time, right sciatic nerve root irritation, though it was the left one when I saw him some eighteen months ago." (emphasis added)
I feel the time has come for further investigation in the form of lumbar myelography to establish a definitive diagnosis for him and I have asked him to come and see you in a week or so to discuss this with you. If you agree I could arrange for this to be done for him to at least eliminate a mechanical cause for his persistent symptoms, which do seem to be located mainly in the lower lumbar spine, and especially at the lumbosacral joint". (emphasis added). (T32)
After reviewing the myelogram report Mr Griffiths saw the applicant on 16 December 1983. He then reported (T34 supra):
"… The myelogram was interesting in that it showed some annular bulges at L5-S1 and also L4-5 level, suggestive of a disc deterioration at the lower two lumbar levels. The oblique and lateral view showed no evidence of nerve root compression.
Accordingly any form of surgery is not indicated for this young man, but he does obviously have a problem with his discs at the lower two lumbar levels." (emphasis added).
Mr Griffiths suggested that the applicant should consider weight reduction and be shown, by his physiotherapist, a program of extension exercises to strengthen his back muscles. He also made a recommendation that the applicant should think about deployment as his job as a mechanical fitter and turner "is likely to cause further problems with his back such as have occurred in the past years". (emphasis added). In this respect Mr Griffiths mentioned as suitable "any occupation which does not involve prolonged bending, or stooping or heavy lifting … and he should make an approach to his employers for reassessment and employment in an area where he is not at risk of further back problems".(T34)
Mr Griffiths further advised the applicant's treating doctor that:"I've also sent him down to get a lumbosacral support at the moment which he should wear if acute problems arise, but he should not allow the presence of the support to deter from developing his back muscles, and he's young enough to develop his own spinal brace by muscle build-up, and the support should only be used sparingly". (T34)
Finally, Mr Griffiths noted that he saw no reason why the applicant should not "get back to work given a little longer to develop his back muscles and to get over the effect of the myelogram. This I leave to your discretion". (T34)
The Tribunal observes that the last page of this report (T34), bears a hand written annotation:
"Alex Little advises request for deployment has been submitted. JB 16/1/84".
There is no evidence on the record of a Final Medical Certificate in relation to the 1983 jackhammer incident.
Further relevant evidence regarding deployment and back injury
As mentioned, the applicant was deployed from his job as fitter and turner to clerical position in which he has remained to date. Interestingly, the subject of deployment of the applicant by the respondent had already begun before Mr Griffiths' report of 16 December 1983 discussed immediately above, which referred to deployment. On 20 October 1983 the respondent's Chief Engineer's delegate sent a minute to the Manager Personnel Operation Section in the following terms:
"Mr Jeffrey David Smith, Fitter and Turner with Workshop section has had a long history of back injuries which keep occurring in many different ways. Due to the nature of his work this will keep happening in the future, so it is impossible to employ him in this line of work without him sustaining an injury to his back.
As Workshop Section does not have any position for him to be employed in could arrangements be made to re-deploy Mr Smith to another area within the Commission." (A7, JDPS 10)
On 25 October 1983 the Chief Manager – Personnel sent a minute to the Chief Engineer in the following terms:
"… Your submission did not supply anywhere near enough information to enable this department to commence deployment action. For instance, you indicated that Mr Smith had a long history of back injuries which keep recurring in many different ways. What is the nature of these injuries? Are they of a compensable nature? What medical evidence have you to suggest that he is no longer capable of performing the duties of a Fitter and Turner?
It is suggested that the first course of action which you should take would be to refer the matter to the Commonwealth Medical Officer in accordance with instructions issued in the Personnel and Industrial Relations Department Guidelines and Procedures. It will be necessary for you to supply the Department of Health the true details of Mr Smith's medical history with particular emphasis on injuries he may have sustained. The approach to the Commonwealth Medical Officer should be made on the specific form designed for this purpose.
If and when a report is issued from the Department of Health recommending the deployment of Mr Smith, then the matter should be resubmitted to this department for any action which may be deemed necessary or possible. (A7, JDPS-11)
The Chief Engineer replied on 8 December 1984 (A8, JDPS 12) stating that the applicant had been examined by the Commonwealth Medical Officer who opined that the applicant was unfit for continued employment in his present duties. The CMO expressed the view that the applicant should be deployed into a clerical/office based position where he could avoid lifting. Further, that the applicant was then on compensation leave, and although he was fit for light duties, he was to remain on leave until such time as a suitable position could be found. (A7, JDPS 12)
On 13 January 1984 the Chief Engineer concluded that the applicant may be suitable to fill a clerical position when one became available. (A8,JDPS 13)
The applicant was deployed on 3 February 1984 to duties at the Trunk Service Technical Centre Robinson Ave, Perth for a limited period whilst the incumbent was on sick leave. After a week's trial it was reported that the applicant had settled in and was proving to be a useful member of staff. (A7, JDPS-14)
On 17 December 1987, over two years since his deployment, the applicant was asked to submit to a medical examination by the CMO in relation to what seems to be his fitness to resume his duties as a Fitter and Turner. (T55). On 26 January 1988, after a clinical examination, the CMO reported that the applicant was managing current clerical duties and that he is fit to continue in those duties. He expressed the view, in the light of his clinical examination and other relevant reports, that the applicant's back condition contributed wholly (that is, 100%) to his incapacity. He further noted that apart from five days at Christmas time in 1985, the applicant had not taken any sick leave whilst in the deployed position.
The evidence is that the applicant had a positive attitude towards his deployment and did a commendable job. His evidence was that he enjoyed the challenge of the new role for which he was not trained, and he appreciated the help he received from the respondent in obtaining computer skills required for his new work. His evidence is however, that he continued to have symptoms related to his compensable injury but was able to manage due to the fact that he had some flexibility about moving around when pain intensified and that any aggravation caused by having to bend or lift was much less frequent and severe than in his previous work as a fitter and turner.
The evidence is also that, in spite of the deployment, he indicated to the CMO that his back pain was deteriorating. Unfortunately the document regarding this, ie (PT55 p. 69) appears to be only a part of a more expansive document, and this particular page is not dated. However, the CMO then noted that the applicant was "managing current clerical duties since 1984 February but back pain apparently deteriorating". It is clear, in contemporary terms that over two years after deployment the applicant continued to have back pain that was deteriorating, that is, getting worse rather than resolving. Since his deployment the applicant's evidence is that he did experience a several incidents of acute back pain as distinct from his ongoing chronic pain. Those incidents coincided with (out of the ordinary) physical exertion associated with moving his office location and having to lift heavy objects such as boxes of stationery.
The Tribunal accepts that the applicant was a witness of truth. His evidence regarding the impairment he was suffering due to back pain can be summarised as:
The injury to the applicant's lumbar spine was initiated in October 1974 as a result of trauma at work whilst in the employ of the respondent's predecessor. That particular injury appears to have resolved, however there is no evidence that the March 1980 "work bench incident" or the 1983 "jackhammer incident" injuries resolved. Since at least 1984 the applicant's pain has persisted but fluctuated in intensity and made worse from time to time by having to lift heavy objects. The applicant perceives that the pain has generally worsened through time despite his deployment.
There were at least three incidents since the applicant's deployment of him having to move office requiring heavy lifting.
The applicant can successfully and satisfactorily perform his current clerical duties on a full-time basis.
In recent times the pain has limited, in a relative sense, the applicant's ability to swim and to walk but he can and does still undertake those exercises on a regular basis as therapy for his back condition.
The applicant's alleged "sick role"
Mr Pilkinton, when cross-examining the applicant referred to what was termed the applicant's entrenched sick role. The following exchange occurred between Mr Pilkinton and the applicant in reference to the report of Professor Hollingworth (T113):
"MR PILKINTON: I suggest to you that he told you that there was really nothing physically wrong with you and that what was wrong with you, if anything was your mental attitude?---I remember that bit but he was specific about the lumbar muscle. At that stage the lumbar muscle was not giving me any problems.
Right?---And I was saying - I was trying to say that most of the problems at that stage were in the spine, pelvis, hips.
He told you, didn't he, that there was absolutely no justification for you continuing with physiotherapy treatment?---And I disagreed with him.
And he told you that in his view you'd become introverted and focussed totally on your condition, didn't he?---He did say that but again I disagreed with him because in my opinion I was trying to do everything possible to alleviate any alleged problems that I might have psychologically or whatever. The exercise and the swimming I've been doing continuously since '83.
Can I suggest to you, Mr Smith, that that in fact is the case, you are introverted and you are totally focussed on your physical condition as you perceive it to be?---Since '98 I would say I'm focussed on my back because of all the incidents that have happened. Introverted, in what respect, please?
It's all you can think about, isn't it?---No. I have a social life. I have - I go to work. If I was introverted I would be running around every day trying to get someone to do something whereas, in fact, I'm working 5 days a week or 9 days a fortnight. I have a social life and as far as I see I'm not introverted because introverted to me means you hide away in a corner, you don't see people, you don't talk to people, you don't - you're a recluse which I'm not.
Professor Hollingworth also told you that in his opinion you needed psychiatric assistance?---That annoyed me, so when I wrote to GIO I asked for - send me to a shrink and they said no twice in writing." (T pg. 39 line 25 to pg. 40 line 10)
The Tribunal notes that there is no evidence that the applicant saw his doctor frequently whether for compensation related matters or not. Also the evidence is that the applicant was swimming and walking regularly. He also exercised at home to help his problem. These activities were in addition to seeing the physiotherapist discussed later.
Mr Pilkinton asked the applicant about his attitude to his back asserting that his current treating doctor, Dr Carija, has tried on a number of occasions to discuss the possibility of changing his attitude to his back.
"MR PILKINTON: And she's tried on a number of occasions to talk to you about changing your attitude to your back, hasn't she?---What attitude?
Your attitude, your belief that you have a serious physical disability?---I have not expressed the opinion that I have a serious - I have a problem with my back which I'm endeavouring to fix but I'm still working, I'm still walking, I've got friends in wheelchairs so I do not classify myself as being seriously disabled. I have a problem which interferes with my life standards but on many occasions I can cope with it, it's only occasionally that it becomes bad.
Right. And you agree that it's never been bad enough since August 1988 to stop you working?---Well, I've gone to work with up to 20 pills plus drinking at lunch time and after work and being shall we say "deadened" so that the sharp pains are there as a severe discomfort not as a crippling - not as a, how would you say, so that I cannot do my duties in a satisfactory manner. On many occasions I've gone home. Before my parents died, I've just laid around at home on weekends and not done anything other than my exercises and swimming because of the impairment of my spine. On other occasions I will go home and I will be able to do things but it's not all day, every day that it flares up. (T pg 41 line 45 – pg 42 line 17)
… Would you agree or disagree with this proposition. It's your belief, let me suggest to you, that you have a significant, long-standing and persistent serious physical disability?---Not a serious and it's not only a belief, it's a physical thing, it's there, but it's not - again it's not serious in the fact that I'm still mobile, relatively mobile, it's not life-threatening, it's not crippling in that I can still move around, I can still do my job at this point in time. Again, one of my friends is in a wheelchair and I use to visit him at Shenton Park and I would see all the people with real physical disabilities that are quadriplegics, paraplegics in wheelchairs and I think I'm lucky that I can move around, so I wouldn't say that it's not a serious - no, it's a - occasionally it is serious, but not 24 hours a day, 7 days a week. It prevents me from doing some things I would like, it inhibits me from doing other things I would like, it's something there which interferes with my lifestyle. Not through choice, but through inability to clear it up.
And you believe, don't you, that all of the problems that you've been telling the Tribunal about are related to your injury in 1974?---No, I said they started in 1974 and progressed.
And - - -?---And got worse.
You believe don't you that whenever you choose to see your doctor, or whenever you choose to have physiotherapy you have an absolute entitlement to be paid compensation for that?---Not every time I see my doctor, or every time I have physiotherapy, it's just that Telstra has let it go on for 15 years without saying anything, without sending me to a specialist, or somebody who will say definitely, this, that or the other." (T pg. 43 line 39 – pg. 44 line 18)
The Tribunal did get an impression that the applicant tended to be somewhat obsessive, and dwelt on his illness. However, it does not conclude that these traits were so extraordinary as to be labelled pathological, when viewed in the context of the whole situation. The Tribunal is not satisfied that there is sufficient objective evidence to draw the conclusion that the applicant is pathologically obsessed with an exaggerated back ailment. Nor is the Tribunal of the opinion that the evidence supports the proposition that the applicant has an exaggerated belief of the seriousness or debilitating effect of his back pain.
The Tribunal has considered in particular the more contemporaneous medical evidence from the available documentation provided by treating doctors, specialist and CMOs' findings. The Tribunal is of the opinion that the applicant's own assessment of his disability is in keeping with that evidence. Also, that he had an intelligent insight into his problem and has a programme of swimming and walking as conservative treatment, almost to the extent of being mildly compulsive. Further, the Tribunal is of the opinion, based on its assessment of the applicant's presentation and evidence generally, that he has a positive approach to his deployment, has met the challenge of the new job, has settled in with his fellow workers and made a good impression on his supervisor. The applicant was not attending his doctor unduly and was keen to reduce the amount of medication. In the Tribunal's opinion the evidence is that the applicant was managing his disability, which though it was not serious most of the time, did, on occasion, impair him significantly.
The relevant lawThere are essentially two issues – whether the respondent's liability, pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act"), to compensate the applicant for his ongoing lumbar muscle strain has ceased and or whether the applicant is entitled to ongoing (and past) compensation for physiotherapy treatment. In terms of liability for ongoing medical expense (i.e. physiotherapy) compensation, the relevant legislative provisions are contained in s16 of the SRC Act.
SECT 14 Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay
compensation in accordance with this Act in respect of an injury
suffered by an employee if the injury results in death, incapacity
for work, or impairment.
(2) Compensation is not payable in respect of an injury that is
intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is
caused by the serious and wilful misconduct of the employee but is
not intentionally self-inflicted, unless the injury results in
death, or serious and permanent impairment.S4 – Interpretation
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;
medical treatment means:
(a) medical or surgical treatment by, or under the supervision of,
a legally qualified medical practitioner;
(b) therapeutic treatment obtained at the direction of a legally
qualified medical practitioner; …
therapeutic treatment includes an examination, test or analysis
done for the purpose of diagnosing, or treatment given for the
purpose of alleviating, an injury.SECT 16 Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to
pay, in respect of the cost of medical treatment obtained in
relation to the injury (being treatment that it was reasonable for
the employee to obtain in the circumstances), compensation of such
amount as Comcare determines is appropriate to that medical
treatment.
(2) Subsection (1) applies whether or not the injury results in
death, incapacity for work, or impairment.
…
The Reasonableness of Physiotherapy Treatment
The Medical Evidence
The evidence is that the applicant has sought physiotherapy treatment from his physiotherapist Mr Karl Sturtridge for many years. Since early June 1999 the respondent has refused to meet the cost of those visits. Exhibit A2, a schedule prepared by the applicant of his unpaid visits to his physiotherapy since 4 June 1999 shows, for a period of approximately 2 years (that is, from 4 June 1999 to 14 May 2001), that the applicant had the following attendances on his physiotherapy:
Period 4 June 1999 to 3 June 2000 85 visits (i.e. one year)
Period 4 June 2000 to 14 May 2001 87 visits (i.e.nearly one year)These average at just over 3 visits per fortnight.
The applicant's evidence is that he seeks physiotherapy treatment when his back locks. Dr Carija, his current General Practitioner, indicated that, in her opinion, an episode described by the applicant as his back "locking" equates to an episode of muscle spasm sometimes triggered by subluxation of the facet joint or joints. In her opinion the physiotherapy would be beneficial in those circumstances.
Mr E R Griffiths, orthopaedic surgeon, in his letter of 27 July 1982 to the applicant's then treating doctor:
"I don't know that seeing a lot of chiropractors and doctors is the answer for him, and I think he'd be much better off approaching Karl Sturtridge for a programme of exercises which he should take up, perhaps getting advice from a dietician on reducing his weight and building up his muscle power more and, in general, self-care rather than a lot of medication." (T32)
And after the applicant's lumbar myelography in December 1983, Mr Griffiths made the following comment in a letter to the applicant's then treating doctor:
"I would suggest that his programme be, firstly, that of weight reduction as extra weight would be deleterious to his load bearing joints at the lower lumbar spine. Secondly, he should be shown a programme of extension exercises to strengthen his back muscles by Karl Sturtridge, whom I gather he is carrying on seeing at the moment and I am sending a copy of this letter to Karl for his information." (T34)
On 4 October 1989 after seeing him again, Mr Griffiths made the following comment in relation to physiotherapy in a letter to the applicant's then treating doctor:
"It would be nice if he could tail off the physiotherapy and use it only when acute attacks arise, perhaps 3-4 times in short courses per annum and not regularly twice a week as he is doing at the moment." (T66)
The applicant's current treating general practitioner, Dr L Carija, in her report of 27 October 1999 (Ex. A6) refers to the physiotherapy treatment by Mr Sturtridge over the years and in this regard, states:
"Í informed [the applicant in April 1999] that I felt that wearing his back brace 12 hours daily and 2-3 sessions weekly of manipulation was probably not in his best interests."
Professor Hollingworth opined that the regular physiotherapy administered to the applicant would not help the applicant's physical condition, although there may be some benefit if, as he suspects, the applicant's desk and sitting posture are inappropriate for his size. (Tr p93). When cross-examined by Mr Nugawela on this point he said that physiotherapy and exercise may help if the applicant suffered (back) spasm because of a bad work posture. (Tr p.94) Professor Hollingworth did not take issue with Mr Nugawela that the applicant may well honestly believe that the physiotherapy "helped unlock his back" (Tr p.118) and give him symptomatic release.
Mr David Wright, orthopaedic surgeon, prepared two reports at the behest of the respondent. His first report (R3b) relates to his examination of the applicant on 17 February 2000. He states that:
"[The applicant] suffers from recurrent low back pain which is due to facet degeneration in the lower lumbar segments. In addition to the physical component of his back pain, [the applicant] appears to have psychosomatic problems to the point where he is almost obsessed by his back problems.
…
It is really impossible to blame any one injury for [the applicant's] current back condition. A number of factors have been involved in the production of his symptoms including some work injuries and perhaps the injury in October 1974 when he was picking up a heavy piece of sheet steel was the most significant of those. In addition [the applicant] is a very tall man and would have been likely to develop back symptoms with the passage of time.
It is likely that [the applicant's] had an underlying condition which was aggravated by the incidents at Telstra.
Each of [the applicant's] aggravations has resulted in a temporary exacerbation of his symptoms but since 1984 it would appear that he has had fairly continuous back pain.
… In a sense [the applicant] does suffer from an underlying or pre-existing condition which has been important in the production of his condition. He is a tall, overweight man and from reading the reports he has been overweight for many years. People with that body habitus are prone to developing degeneration of the lumbar spine.
… I very much doubt that the physiotherapy treatment is achieving anything for him, although he considers that he does derive benefit from it. … I suggest that he stop formal physiotherapy for a period 6-8 weeks and then be reassessed by his general practitioner to decide if his condition has deteriorated through the lack of physiotherapy.
Mr Wright, during oral evidence, reiterated his view that ongoing physiotherapy treatment is likely to be ineffective in the treatment of the applicant's condition. (Tr p169). He added that he though the applicant's ongoing physiotherapy treatment was not curative. Mr Wright also thought that because the applicant attends the physiotherapist so regularly then "the treatment is likely to provide some sympathetic interaction with other people and perhaps physical treatment, such as heat, which could be applied just as easily by himself using a heat pad." (Tr p170) Despite considerable questioning of Mr Wright by the applicant's representative, on this point, he did not change his opinion in any material way.
The Tribunal is of the opinion, based on all available evidence, that the predominantly temporary relief of pain and muscle spasm that helped the applicant's mobility was allowed to continue for so long that he believed that frequent and regular physiotherapy was a necessary part of the long term management of his problem - a part of the management that he could not achieve on his own, and for which he should be compensated.
The evidence is that the real need for physiotherapy intervention has been infrequent. Medical opinion in this case is that the frequency and length of treatment has been far in excess of what could be considered as reasonable treatment for the applicant's level of impairment caused by his compensable injury. The Tribunal agrees with this view.
The Current Situation in relation to the impact of the Compensable Injury after Deployment
The Tribunal notes that this evaluation was hampered by several factors:
a)There is a 10 year gap between the obtaining of specialist medical opinion about an ongoing medical condition, the subject of compensation. Mr Griffiths last saw the applicant in 1989. Then followed, in 1999, a review by Professor Hollingworth. That is, some 19 years after the 1980 work bench incident and some 16 years after the jackhammer incident for which no final medical certificates are in evidence.
b)The compensable injury continued to be labelled "lumbar muscle strain". This seems to be how the injury was presented to medical specialists. Professor Hollingworth in his evidence commented that he did not have a clear idea as to what injury the applicant had suffered. The Tribunal had to sift through a range of data, sometime incomplete, to try to understand the nature of the injury or injuries from which the applicant suffered. The injury or injuries (and possibly sequelae) resulted in the applicant being entitled to compensation for 25 years (although since 1988 no claim was made for lost time). Secondly, the compensable injury resulted in the applicant being deployed in 1984 from a physically demanding job for which he had trained to a relatively less physical job for which he was not then trained.
c)Issues of age related degeneration were referred to by several of the medical specialists but no plain x-rays of his whole spine, since 1989, were in evidence.
d)There was a CT scan of the applicant's (lumbar) spine in 1999. The Tribunal had only an oblique reference to that report. The report itself was not in evidence.
The Tribunal was mindful of these difficulties when considering the more recent medical evidence by:
· Mr Anderson, an Orthopaedic specialist, who saw the applicant on 10 September 1999 (A5)
· Dr Carija, treating GP, who saw the applicant on 27 October 1999 (A6)
Professor Hollingworth, Rehabilitation Specialist, who saw the applicant on 20 April 1999 (T113). He also provided a follow-up report of 22 June 1999 (T127)
Dr S Srna, Psychiatrist, who saw the applicant on 24 January 2000 (R2)
Mr David Wright, Orthopaedic Surgeon, who saw the applicant on 22 February 2000 (R3b), and his follow-up report of 10 July 2000 (R3c)
Dr Peter Anderson's Report and evidence
Mr Peter Anderson, orthopaedic surgeon, examined the applicant on 10 September 1999 and issued his written report on 13 September 1999 (A5). In it he states:
"In terms of this man's current symptomatology, the narrow spinal canal at the L3/4 segment may be responsible for some of his symptoms of back pain and musculo-skeletal pain in his legs in keeping with the diagnosis of spinal stenosis. This problem is one associated with his anatomical structure rather than disease. The degenerative change in the lower lumbar spine at the L5/S1 level probably reflects the outcome of his industrial injuries and disabilities associated with the work period between 1974 and 1985.
…
This man has a large physical frame and has been overweight in the past. Part of his problem is maintaining his physique within these parameters of his structure. Maintenance of his physique with an exercise programme is the best course of management."In his oral evidence the applicant said that in 1982 or thereabouts he weighed roughly 114 kilograms, which varied to 111.5 kgs in 1987 and to about 100 kgs in 1989 eventually to about 120 kgs in 1999 (tr pp.50-51). The applicant is a tall man.
Under cross-examination by Mr Pilkinton, Mr Anderson said that he was not made aware that the applicant suffered an injury to his back in 1967 whilst employed by Westgate. Mr Anderson also stated that he had not been availed of the earlier reports of Mr Griffiths (supra) and of Professor Hollingworth (T113, 22 April 1999 & T116, 22 June 1999).
When asked, Mr Anderson said that he disagreed with the opinion of Professor Hollingworth (T113, p147) that: "[i]t is difficult to say whether [the applicant] has anything wrong with him at the present time other than being very unfit, overweight and extremely introverted having assumed the role of a person with serious chronic back problems". And in response to Professor Hollingworth's conclusion (T113) that he "could not find any direct connection between [the applicant's] current conditions and previous injuries or pre-existing conditions", Mr Anderson said:
"Well, this man's got abnormal features in his spine both in the physical assessment in terms of restriction of movement. He hasn't got much in the way of neurological features, he has classical symptoms of getting pain as he tends to walk … for about 4 or 5 hundred meters and then he experiences pain." (Tr p.63)
Mr Anderson admitted under cross-examination that the various incidents of which the applicant complained in which he sustained injury were describable as relatively minor incidents (Tr p.63 & 64). He further admitted, when pressed, that it was possible to attribute some ongoing minor damage to the applicant's spine to the injury or incidents which occurred whilst he was employed by Westgate. (Tr p67)
For the most part of the cross-examination of Mr Anderson by Mr Pilkinton, Mr Anderson's answers to questions put to him appear to be vague and digressive. The Tribunal simply notes that when asked a series of questions directed to enlightening the Tribunal as to the basis of his conclusion reached in exhibit A5 (supra), Mr Anderson gave the impression that he did not wish to express any view inconsistent with his report. For that reason the Tribunal finds much of Mr Anderson's evidence unhelpful. However, when pressed by Mr Pilkinton, Mr Anderson expressed the view that it was not "a favourable course of action" for a person to be undergoing physiotherapy treatment at the rate of about 100 sessions a year. (Tr p.73)
The Tribunal notes that although Mr Anderson attended the Tribunal to give evidence in relation to his examination of the applicant in September 1999 and the report then made (A5), he mentioned having met with the applicant outside the hearing room prior to giving his evidence. He said that he then discussed issues relating to his evidence. The Tribunal finds this behaviour rather unusual and inappropriate when the evidence was clearly intended to relate to Mr Anderson's September 1999 examination and conclusions then reached.
Professor Hollingworth's Report and evidence.
The Tribunal observes that Professor Hollingworth saw the applicant on the day of the first anniversary of the applicant's Father's death.
Professor Hollingworth noted that when asked to show the site of his pain, the applicant indicated from between the scapula down to the sacrum, going laterally into the quadratus lumborum on both sides. He did not have any recent imaging x-ray evidence of his thoraco lumbo spine so he was unable to assess whether there were indeed any physical changes in the spine that may correlate with his symptoms. Also, for that reason Professor Hollingworth was unable to assess whether there was evidence of any age related degenerative changes showing up in these other areas of the applicant's spine.
On physical examination, Professor Hollingworth found restriction of flexion, that extension was poor, that lateral flexion of the spine was limited and that whilst there were some inconsistencies, "it seems that the left sacroiliac joint and the left facet joints are also tender…."
Professor Hollingworth used psychiatric labels like "anankastic personality" and "extremely introverted" although he admitted that he was not trained in psychiatry. He concluded, "I believe the applicant's condition relates to his mental attitude rather than anything physical". Professor Hollingworth noted that:
"The applicant had not had any injury or symptoms which have required him to lose even a days work over the last 13 or 14 yrs. As such it is hard to say that there was any incident which has continued to cause trouble. … however, this man is very tall, very large, and it would be quite unusual if he were doing clerical work in an ergonomically acceptable way. I did not ask him about this as I believed this would just add to his fears. It is extremely difficult to get a person of that height doing clerical work, set up in an ergonomically acceptable way, unless they have had very special equipment bought for them".
During cross-examination Professor Hollingworth was asked by Mr Nugawela:
"MR NUGAWELA: But the exercise and the walking and the swimming will not cure his back condition, will it? --- Well the first thing is when we are talking about a back condition we have to ask what exactly is his back condition? (emphasis added). I did explain to Mr Pilkinton all the evidence which I've been given doesn't show any condition in the sense of a pathological process. There is some age-related degeneration. But I don't think we can call that a condition. The term condition normally suggests a pathological condition as opposed to just normal ageing. (T pg 94, lines 5 – 11)
Later Mr Nugawella asked Professor Hollingworth:
"MR NUGAWELA: Would you say that this man is fit to return to work as a fitter and turner his pre accident occupation prior to 1984? --- I certainly wouldn't be putting him in that sort of work. Its fairly heavy work, although he is doing his exercise program - on examination he doesn't come through as a sort of terribly fit person. And that sort of work as a fitter and turner, is a fairly physical job, and I wouldn't be recommending that. … If he insisted on going back there, I wouldn't say he was a lunatic and take all steps to prevent him, but I certainly would be advising his employer not to send him back to it." (Tr p94, line 45 – p.95, line 8)
Mr Nugawella also questioned Professor Hollingworth about his use of the term "anankastic personality":
"MR NUGAWELA: So that if he was being precise and had a good memory, or diary record, you would also call him anankastic?---No. If a person is sitting there with a diary and reading things off and doing that sort of thing, no that's not anankastic at all, that's just using notes. It's very unusual to find a person if you like who's rehearsed a thing to that extent. This really suggests that this man is if you like living the part, and when I suggested before that he was living the part of a person with a severe back injury, I think this is part of it. This is part of living and recalling all this.
Yes. But you would accept, wouldn't you Professor, that if he has actually sustained a back injury and has pain, and is doing the self-exercise and the walking, and the swimming and reducing his medication intake from 24 tablets down to 1, it is actually some basis in reality for what he recalls?---Oh look, I'm not questioning - I've never suggested that there was any lack of veracity or anything like that. That's not what it means at all. I found the man to be completely honest, please don't misunderstand … what I was saying about being anankastic, that's not suggesting dishonesty or anything."
And then follows this exchange:
"MR NUGAWELA: Do you, Professor, have a clinical record of the kinds of activities and hobbies he did in the past, prior to 1974?---Prior to '74?
Yes?---I haven't asked him about any sports or anything, if that's what you're meaning.
Yes?---No, I have no record of anything like that.
Yes. What about between 1974 and 1979?---No, I've nothing - I didn't ask about any sports at any time with him.
So when he says that his condition interferes with his lifestyle, you'd have no idea what he's talking about?---No. Over those years I just - I didn't ask at all how it affected him, he was going out to work and he's been going to work recently, for quite a long period without any lost time and again I didn't ask him what, if he had no pain, he would like to be doing instead. I got the impression of a person who is rather reserved, I think he told me that he liked to be fairly solitary, reading and doing things like that. He didn't tell me anything that he would like to do, after all he was swimming, he was doing an exercise program, he was doing walking, a considerable amount each day, so I didn't - I didn't ask specifically about sports because I didn't get the impression that he was a competitive person.
Yes and you said that the extent of his walking and his swimming and his self-exercise, is not inconsistent with someone maintaining a sick role as well Professor?---No. He didn't say that he couldn't do these things, rather he told me what he could do.
It is noted that Professor Hollingworth's report (T113, 22 April 1999) pre-dates that of Mr Wright (R3b), 28 February 2000. Mr Nugawella asked Professor Hollingworth:
MR NUGAWELA: So when you were examining this man the latest radiology you had was 16yrs old?--- Right.
And you formed the view that he didn't have any degeneration of any remarkable proportion?---Correct.
Based on your clinical assessment of him?--- Correct." (Tr. pg 113 lines 39-45)
And later:
"MR NUGAWELA: Have you got a record of all the episodes that he complained of while he was working at Telstra?---I got one that you talked about, the first was as an apprentice about 1967. …There's one when he was lifting a sheet of steel when he had lumbar pain again.
What date was that do you know?---I didn't put a date on that one. I think it was when he had a second lot of x-rays around early 80 – early 80s but I haven't put a specific date on that one.
So what was the episode lifting a…?---Well, he's got lifting a sheet of steel - had lumbar pain, with no radiation.
But you are not sure of the date?---No but it may well be that was 8 October 1974, when he had the lumbar spine x-rayed. …There was then a shoulder injury which he thought about again when he was an apprentice, but again I didn't put the dates down. What we have to remember is these all occurred as an apprentice which he started at 16 and did for 4 years. So we can say roughly they are within the four year period but I haven't got the specific dates down. The first one would be when he was 17 and there were two others, one before he got to 20.
Alright and what other episodes did you record in your clinical notes?---Those were the only ones he told me about of injuries at work. I've no dates on any others. He talked about one in '97 with his shoulder after swimming. But that was not strictly work related".
The Tribunal is not satisfied that Professor Hollingworth had a sufficiently detailed, accurate and relevant history, on which to base his conclusions. He did not appear to formulate the true nature of the original episodes of injury or the period or periods during which those occurred, particularly in relation to the cause of the applicant's deployment and his relevant medical history since. As such the Tribunal cannot place much weight on Professor Hollingworth's conclusions.
Dr Carija's Report and evidence.
Dr Carija succeeded Dr Seman to become the applicant's treating doctor in 1997. However, she appeared to have had access to file notes going back to 1974, (see A6).
Dr Carija noted that the applicant complains of low back pain sometimes accompanied by upper back pain usually brought on by an increase in activity. The pain restricts the applicant's physical activity on a day to day basis and has restricted the applicant's work in so far as he can no longer work as a fitter and turner.
In her report of 27 October 1999 (A6) Dr Carija concludes:
''As detailed above he actually has quite a good range of movement although he has some points of tenderness, down the spine and poor musculature. …My diagnosis is L5 S1 disc degeneration with osteoarthritis in his facet joints at that level. His symptoms are exacerbated by the long term use of a back brace, and manipulation which have resulted in the long term illness behaviour and preoccupation with his back problem. …In the foreseeable future the main emphasis should be on physical therapy and the loss of weight. …There is no doubt that the earlier employment as a fitter and turner contributed greatly towards his permanent disability.
Dr Carija completed a progress medical certificate on 11 December 1998 (TI09) in which she ticked the physiotherapy box and recommended a replacement lumbar corset. In an undated progress report (T123) but obviously written after she had received Professor Hollingworth's report of 22 April 1999, Dr Carija recommended physiotherapy three times per week. However, within a month on 29 May 1999, Dr Carija recommended physiotherapy at approximately two to three weekly intervals. (T124)
When asked by Mr Nugawella as to what are the clinical signs that correlate with a collapsed disc at L5 S1 in the applicant's case, Dr Carija replied "You would expect a collapsed disc to give low back pain intermittently perhaps, but low back pain". (Tr pg 77 lines 33-37)
Mr Nugawella asked Dr Carija whether anything had occurred since she first expressed her opinion that there was no doubt the applicant's early employment as a fitter and turner contributed greatly towards his permanent disability, such that it would change her view. In response she replied "Not really". (see Tr p 78, lines 10-16)
Mr Wright's evidenceIn his medical report of 28 February 2000 (R3b) Mr Wright concludes, "It is really impossible to blame any one injury for Mr Smith's current back condition... perhaps the injury in October 1974 when he was picking up a heavy piece of sheet steel was the most significant of those". (emphasis added).
As has already been established, the Tribunal considered contemporary documents in relation to the October 1974 injury noting that it settled within 4 days, sufficient for the treating doctor to issue a final medical certificate (T7) for that injury, implying that it had healed well.
The contemporary medical documentation before the Tribunal does not include any final medical certificate in relation to the March 1980 work bench incident nor the April 1983 jackhammer incident (T16). On the assumption that there never were final medical certificates issued for those injuries then it could be concluded that those incidents of incidents of injury were relatively more significant. The referral to Mr Griffiths by Dr Seman in November 1983 was in relation to an injury that caused "problems in his lumbar spine and now with radiation of discomfort and pain in the upper thoracic and cervical areas." (T32)
It appears therefore that Mr Wright was not provided with all relevant information about the applicant's injuries. His conclusions were based on the history taken and his understanding that the compensable injury occurred on 7 October 1974, that is, the sheet of steel incident. It seems that Mr Wright was not given an opportunity to consider in detail the medical documents relating to the history of back injury. He makes only an oblique reference to the early injuries and does not mention in particular either the 1980 work bench incident or the April 1983 jackhammer incident. Mr Wright does note however that since 1984 it would appear that the applicant has had fairly continuous back pain. He concludes:
"The earlier x-rays of Mr Smith's spine did not show any evidence of degenerate change and even the latest x-rays in 1989, after more than 25 years of back symptoms showed only mild to moderate changes." (R3b)1
The evidence is that Mr Smith had significant back symptoms escalating to maximum severity not in 1967 or 1974, but in 1980 and 1983, which resulted in deployment in 1984.
The evidence supports the conclusion that the level of the applicant's aggravation of the spine arising from work activities after deployment in 1984, was significantly less than in the previous period of his employment with the respondent.
Mr Wright noted that the applicant has a body habitus that is prone to develop degeneration of the lumbar spine - an opinion supported by other medical evidence.
However there is no evidence of any definitive nature that the applicant currently suffers from an age related degeneration in his cervical or thoracic spine. The evidence in this respect is limited to the reference to a 1999 CT scan of the lumbar region of the spine. It is the Tribunal's understanding that this points to back/spine deterioration precisely at the site of the injury that Mr Griffiths was talking about prior to 1984 and which correlates with the site of both the work bench and the jackhammer incidents of compensable injury. The Tribunal notes that there is no history of imaging evidence, x-rays or otherwise, of the cervical or thoracis spine which were not particularly affected by the compensable injuries. In the Tribunal's opinion such would have assisted the experts and the Tribunal to assess whether age related degeneration of the spine is generally present.
Under these circumstances, and taking into consideration all medical and other evidence before it, the Tribunal cannot find as fact or on the balance of probabilities that the applicant's current back symptoms are due solely or significantly to an age related degeneration of the spine.
Indeed on the balance of probabilities, the evidence supports a finding of fact that the applicant's current back pain owes its genesis to or has been significantly aggravated by incidents of injury at work since 1974.
Dr S Srna Psychiatrist's Report and evidence.
Dr Zdenek Srna, psychiatrist, examined the applicant on 24 January 2000 at the request of the applicant's solicitors. The Tribunal notes that Dr Srna is a forensic psychiatrist. He did not record electronically his interview with the applicant but relied on notes taken at the time. Dr Srna did not ask the applicant about the circumstances of his having been advised that he should see a psychologist or psychiatrist to probe the matter of his back pain further. That is, to obtain evidence of whether it was real or imagined. Dr Srna did not have access to any of Mr Griffith's four relevant medical reports but relied, for this purpose, on Dr Carija's interpretation of one only of Mr Griffith's four reports.
Dr Srna did have available the reports of Professor Hollingworth, Mr Peter Anderson and Dr L Carija. He reported (R2), inter alia:
Mental State Examination
This revealed an overweight, middle-aged, bespectacled man with a beard, who spoke with highly pitched voice that contrasted with his physique. He gave a history with excessive detail and appeared to be quite preoccupied with the perceived injustice and conspiracy against him. His affect was mildly depressed with frequent sighs but reasonably reactive. He was frequently touching his face pulling his beard and appeared otherwise quite restless. He was chatty and easily upset, exhibiting mild irritability. I could not identify any significant psychotic symptoms or major affective phenomena. His paranoia was a set of overvalued ideas based on his perceptions of the case and some actual events. It lacked a delusional quality. He expressed profound anger with the insurance company, feeling rejected and described feelings of entitlement for benefits which were cut, seeking compensation for loss of wages and expenses for swimming pool entries and fares to various rehabilitation agencies. He appeared to be quite self-righteous, using private logic. He stated that when attending physiotherapy and doctors for back pains, one ought to be automatically and fully compensated for by the workers' compensation system. He feels rejected by Telstra who, according to him, refused to pay for his rehabilitation and he feels entitled to full compensation.
…
Conclusions
From the available evidence and my assessment I conclude that [the applicant] suffers from Anxiety Disorder Not Otherwise Specified (as per attachment one) and some evidence of Social Phobia (attachment two). He has a Personality Disorder with obsessive compulsive, paranoid, avoidant and dependence personality traits. He seems to be entrenched in his sick role perceiving his health problems as purely resulting from work-related injuries. I have further diagnosed an unresolved grief for his father, his brother, and other relatives and friends who died in 1998, which is complicated by his personality structure and dependency traits.
Dr Srna, in his conclusion added:
"in terms of his sick role, I see the chances of rehabilitation from what he perceives as consequences of work-related injuries as poor.
… I do not see any specific work restrictions related to psychiatric issues resulting from the impact of the perceived injuries. On the contrary, work and structure would be regarded as positive step (sic) in relieving some of his psychiatric symptoms. There are no disabilities from the psychiatric point of view.Dr Srna agreed with Mr Nugawela during cross-examination that the applicant had not used the term "conspiracy" in relation to his work but that was an expression used by Dr Srna in the particular context relating to the applicant's assertion that documents had been removed from his employer's personnel file. Dr Srna denied that in reaching his opinion about the applicant's perceived sick role, which he said, he reached independently, that he had been influenced by Professor Hollingworth.
Dr Srna said during the consultation that the applicant tended to deflect answers to questions put to him, back to his perceived injuries. (Tr p146) When it was put to Dr Srna by Mr Nugwela that the applicant has not had a sick day off work for many years, he responded that that did not alter his view that the applicant had a sick role. He suggested that a sick role impairs a person's social function and other aspects of their lives. (Tr p.150).
In particular, the transcript records the following:
MR PILKINTON: Right. Now, under the heading of Conclusions, which appears on page 5, you've said that he seems to be entrenched in his sick role. I take it that you agree with the opinion of Dr Hollingworth and others, who have said much the same thing?---Well, that was my perception of the whole situation, judging from reports and Mr Smith's presentation that he was sort of entrenched. He was sort of in what we call abnormal illness behaviour type of situation." (Tr pg 129, lines 41-46)
MR NUGAWELA: All right. Now, if I can take you to page 3 of your report. My learned friend took you to the very last sentence about the kind of conspiracy. Mr Smith has given sworn evidence that he didn't himself use the word "conspiracy". Could you check your clinical notes to see if you have that in quotations or whether he said conspiracy?---I can't retrace that particular word in my notes.
Take your time?---No, there is no mentioning of that particular word he actually used." (Tr p130 lines 34-41)
If you assume that perhaps more than one person at Telstra in the personnel department might have handled the file, and material might have been misplaced temporarily and when requested was not available, would a comment of that nature by an examinee necessarily be delusional?---I don't think I have ever indicated that Mr Smith was delusional. The conspiracy word doesn't necessarily imply that he was not commenting on an actual situation. That was his perception of reality. (Tr p 131 lines 22-28)
Overall, the Tribunal is of the opinion that Dr Srna came to his conclusions based on limited medical information provided to and sought by him.
The report did not reflect (and the evidence at the Tribunal did not show), that he had considered a wide range of collateral issues about the applicant's functioning as a human being during critical times. That is, it makes no observations in this regard about the time before the onset of the work injuries. Nor does it discuss a wide range of presumably relevant considerations. For example, the report does not consider the applicant's functioning for the duration of his work as a fitter and turner, or the effect of the deployment in 1984, his relationship with his new workmates, his functioning in the new deployment, his concerns if any about his future, and the impact on his psyche of the death of three close family members, specially the circumstances of the death of his father, and the fact that he saw Dr Hollingworth on the anniversary of his father's death and had not had enough time to complete his grieving at the time he saw Dr Srna.
Whilst the Tribunal accepts Dr Srna's opinion that he believes the applicant has an entrenched sick role, it was not Dr Srna's opinion that the applicant did not suffer chronic back pain. Dr Srna, in his evidence, agreed with Mr Nugawella's suggestion that to form a firm view about real or imagined pain necessitates several clinical examinations. For that reason the Tribunal is not relying on Dr Srna's report or his oral evidence as evidence that the applicant has exaggerated his back pain. However, in the circumstances of the entire evidence before it, the Tribunal accepts that the applicant is quite focussed on his back pain and believes its cause to be work related. These views, the Tribunal observes are understandable. In the case of the former it is an understandable attitude given the lack of interest shown over the years by the respondent prior to 1999. In the case of the latter, there is indeed corroborating evidence, as discussed above, to support that belief.
Whilst Dr Srna's evidence does indicate that the applicant exhibits some traits in his personality make up that would cause him to dwell on his medical problems, more than the average, his overall evidence did not convince the Tribunal that the applicant's tendency to dwell on his medical problems was pathological and that real and significant problems did not exist.
The submissionsThe Tribunal agrees with the submission by Mr Prast for the applicant that he is a witness of truth. Any failure on the part of the applicant to recall detailed events in the past is, in the opinion of the Tribunal, due only to the lapse of time and does not reflect on the applicant's honesty. The applicant was asked to recall such events going back more than 30 years or so. Mr Prast submitted that the evidence clearly supports the applicant's claim that he was injured in the course of his employment with the respondent and the effects of those injuries have continued to give him back pain requiring physiotherapy treatment complemented by his program of regular exercise. Mr Prast submitted that the employer acknowledged the seriousness of the applicant's work related back injury and its ongoing effect when, in 1984, it deployed the applicant into a clerical role on advice from Mr Griffiths.
It was submitted for the applicant that this is not a case about seeking liability for incapacity payments but merely to be compensated for (past and) ongoing physiotherapy to treat the applicant's back stiffness which enables him to carry on working. It was submitted that the applicant's evidence that ongoing regular physiotherapy, taken with the program of exercise, has enabled him to attend work without absence since 1988. Mr Prast submitted that an appropriate order by the Tribunal, in the event that it finds that there is an ongoing liability for compensation for lumbar muscle strain, that he be compensated for ongoing physiotherapy as directed from time to time by his general practitioner.
Mr Pilkinton for the respondent submitted that the applicant's belief, as evidenced, that he has an absolute entitlement to be compensated, is not consistent with s14 of the SRC Act. He submitted that the evidence is that the applicant's work related injuries were essentially two minor musculo ligamentous type strains dating back to October 1974, March 1980 and April 1983. In the first instance, he submitted, the applicant was off work for a month and in the second, two weeks. Mr Pilkinton submitted that the applicant's present back pain/ache condition is solely attributable to degenerative change and is no longer work caused. He referred the Tribunal to the Federal Court decision of Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266, 20 March 2001. This was an appeal from the Administrative Appeals Tribunal concerning an application for review of a decision pursuant to the SRC Act to cease liability under s14. Australia Post had ceased liability for Mr Bessey's compensable injury described as "in respect of degenerative spondylosis'. His Honour observed:
"6 It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 and Casarotto v Australian Postal Commission (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.
7 In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.
8 This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury (including aggravation) but rather resulted from the underlying condition."Mr Pilkinton submitted that irrespective of the applicant's belief, the medical evidence, other than that of Mr Anderson, supports the contention that the applicant's work related injuries in 1974, 1980 and 1983 have ceased to have effect and have not worsened the underlying condition. For that reason there can be no relevant injury continuing to cause incapacity. He submitted that the applicant has been able to work without sick leave for many years which is indicative that the applicant's work has not adversely affected his underlying condition. Further, Mr Pilkinton submitted that the evidence does not support a finding that the injuries suffered in 1974, 1980 and 1983 were such that, as a consequence, the applicant suffers an "impairment" to his back as that term is defined in s4 of the SRC Act. That is, "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." To this end Mr Pilkinton referred to T document T119, a description by the applicant of his then perceived effect of his injuries completed in May 1999, which the applicant confirmed in cross-examination remained the case. Mr Pilkinton submitted that if this was the reality rather than a belief, then it would be difficult to see how the applicant could do any work or have any life outside work.
FINDINGS OF FACT
Based on the evidence before it the Tribunal finds the following:
The compensable injury described as "lumbar muscle strain" that the respondent has admitted liability for until its determination on 23 July 1999, is an accumulation of a series of incidents causing back injuries to soft tissue, in and around the L5, S1 joint complex ("the injury"). Significant amongst these incidents are the work bench incident of 1980 and the jackhammer incident of April 1983.
As a result of the injury, the applicant was assessed as unsuitable for continuing with the heavy job of fitter and turner. He was deployed to a less strenuous clerical position in February 1984.
The injury has continued to cause him impairment and suffering by producing bouts of pain, muscle spasm, stiffness and occasional irritation of the facet joints.
These symptoms continued, though generally at a relatively modest level, with occasional exacerbations of acute pain on a few occasions (e.g. moving offices). The applicant's back pain is not resolving but apparently worsening.
The only current radiological examination to date shows collapse of the L5/S1 disc and arthritis of the facet joints at this level. This is precisely at the site of the soft tissue damage caused by the compensable injury of April 1983, for which no final medical certificate was in evidence (a matter of significance given the amount of other medical evidence, including numerous compensation related medical certificates).
The injury that the applicant suffers from does not currently warrant the duration, frequency and regularity of his physiotherapy treatment. In particular, the frequency of physiotherapy treatment since 23 June 1999, in terms of s16 of the SRC Act, is not reasonable.
The Tribunal is of the opinion that given some physical circumstances of back pain, phyisotherapy treatment would be appropriate. However, in the absence of submissions in that respect, the matter of determining those circumstances and conditions is remitted to the respondent for determination.
Because of his back injuries, the applicant will not be able to return to his original employment as a fitter and turner.
DECISION
For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision of the respondent under review is set aside. In substitution therefor the Tribunal decides:
The applicant suffers from a permanent disability under the Act, namely Cumulative Soft Tissue Damage to the L5, S1 joint complex including the L5, S1 facet joints
The compensable injury will prevent the applicant from ever returning to his original work as a fitter and turner.
The injury has contributed to a degeneration of L5/S1 disc in particular and facet joint at L5/S1.
Long term regular palliative physiotherapy is not reasonable therapy for this condition.
The matter of determining as to what would be reasonable physiotherapy treatment of the applicant's back in relation to the compensable injury is remitted to the respondent for determination, with liberty granted to parties to apply to be heard in this respect only.
The matter of costs pursuant to s67(8) & (9) of the SRC Act to be determined by parties filing a consent agreement or if no agreement then by way of further submissions. Parties are given leave to apply in this respect.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member
Signed: .
Barbara Paterson.............................
AssociateDate/s of Hearing 17 & 18 May 2001 and 7 December 2001
Date of Decision 10 May 2002
Counsel for the Applicant Mr B Nugawela, Barrister
Solicitor for the Applicant Mr C Prast, Slater & Gordon
Counsel for the Respondent Mr M Pilkinton
Solicitor for the Respondent Mr A Kawalsky, Downings Legal
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